Bombay High Court
Uttam Daulat Savai vs The Chief Ex. Officer Z.P. ... on 22 March, 2016
Bench: R.V. Ghuge
WP 2593/02 & another
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2593 OF 2002
Shri Uttam S/o Daulat Savai,
Age - 41 years, Occ. Unemployed,
R/o. Itkheda, Po. Deogaon Rangari
Tq. Kannad, Dist. Aurangabad.
...Petitioner...
Versus
The Chief Executive Officer,
Zilla Parishad, Aurangabad.
...Respondent...
.....
Shri A.S. Shelke, Advocate for petitioner.
Shri Deelip Patil-Bankar, Advocate for respondent.
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
WITH
WRIT PETITION NO.3818 OF 2002
The Chief Executive Officer,
Zilla Parishad, Aurangabad
Through Executive Engineer,
Works Department, Zilla Parishad,
Aurangabad having its office at
Aurangpura, Aurangabad.
...Petitioner...
Versus
Shri Uttam S/o Daulat Savai,
Age - 41 years, Occ. Ex-Daily
Wager Labourer, R/o. Itkheda,
Po. Deogaon Rangari
Tq. Kannad, Dist. Aurangabad.
...Respondent...
.....
::: Uploaded on - 29/03/2016 ::: Downloaded on - 31/07/2016 10:00:14 :::
WP 2593/02 & another
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Shri Deelip Patil-Bankar, Advocate for petitioner.
Shri A.S. Shelke, Advocate for respondent.
.....
CORAM: RAVINDRA V. GHUGE, J.
DATE: 22.03.2016
ORAL JUDGMENT :
1] The first petition has been filed by the
employee and the second petition has been filed by the
establishment challenging the judgment and award dated
11.7.2001 delivered by the Labour Court, Aurangabad, in
Reference (IDA) No.148/1992. Considering that both the
parties have challenged the said award, I have taken up
these two petitions together for disposal.
2] Both these petitions have been admitted by this
Court.
3] The material clause, which is Clause (2) in the
order impugned, reads as under:-
"The party No.1 is hereby directed to reinstate
the party No.2 in service with continuity of
service with 40% of back wages for unemployment
period (or to pay Rs.40,000/- towards
compensation in lieu of reinstatement with
continuity of service with 40% back wages)
within a period of one month from the date of
publication of Award."
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4] The employee has contended that he was working
from 1.11.1986 with the employer till his oral
termination on 31.10.1990. An industrial dispute was
raised promptly and was referred to the Labour Court as
Reference (IDA) No.148/1992.
5] Shri Shelke, learned Advocate for the employee,
contends that he had discharged the onus and burden of
proving 240 days of employment in each year with the
establishment before the Labour Court. It was
specifically averred in the statement of claim that he
was working as a Gangman on daily wages in the Kannad
sub-division. The work of road repairing and maintenance
was undertaken by the establishment. Such maintenance
work is of a perennial nature. He has worked on various
road projects namely Verul to Deongaon Rangari, Mategaon
to Devnala, Sulibhanjan to Khultabad and Devgaon Rangari
to Devli etc.
6] It is further submitted that he had filed an
application for seeking production of documents before
the Labour Court. Despite the order of the Labour Court
directing the establishment to produce the documents for
the period during which the employee had claimed to have
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been in employment, the establishment did not produce any
such document. Though the employee was cross-examined by
the establishment, neither has the establishment led any
oral evidence nor has it produced any document. The
Labour Court, therefore, has drawn an adverse inference
since the establishment failed to produce any documents
despite directions.
7] Shri Shelke, therefore, strenuously submits that
when there was no delay in raising an industrial dispute
and when the employee had succeeded in proving completion
of 240 days in continuous employment, there was no reason
for the Labour Court to grant compensation of Rs.40,000/-
and 40% of the back wages for the period of unemployment
in lieu of reinstatement with continuity and full back
wages.
8] Shri Deelip Patil Bankar, learned Advocate
appearing on behalf of the establishment, has strenuously
criticized the impugned award. Contention is that the
employee had worked for only 135 days intermittently for
the period 1.10.1987 to 30.7.1989. He, however, submits
that the establishment neither led oral evidence nor did
it produce documents as per the directions of the Labour
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Court. He, however, adds that merely on the basis of an
adverse inference, the Labour Court could not have
concluded that the employee was working continuously for
four years since the burden to prove completion of 240
days in each calender year on the basis of oral and
documentary evidence, lies on the shoulders of the
employee.
9] He submits that an amount of Rs.40,000/- has
already been deposited in this Court by the establishment
under the orders of this Court. The said amount
deposited in 2002 is still lying in this Court and must
have gathered interest.
10] He further submits that besides the oral
statement made by the employee, there was nothing to
establish his completion of 240 days and as such the
Labour Court should have rejected the reference. He
further submits that the work of road maintenance is not
of a continuous character. Only where the maintenance is
to be undertaken, that the work becomes available. He,
therefore, prays for the quashing and setting aside of
the impugned award.
11] I have considered the submissions of the learned
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Advocates as have been recorded hereinabove.
12] The reference proceedings were brought before
the Labour with promptitude by the employee. Statement
of claim was filed by the employee. The establishment
filed its written statement. It was, therefore, within
the knowledge of the establishment that the proceedings
were pending before the Labour Court. Needless to state,
the establishment should have been properly represented,
inasmuch as the establishment should have been diligent
in ensuring that the documents, as directed by the Labour
Court, should have been produced and the matter should
have been contested on its merits. Neither has the
establishment produced the documents, which led to the
drawing of adverse inference, nor did it lead oral
evidence.
13] It, however, cannot be ignored that the employee
has put in a short spell in service of about four years.
He is out of employment for the past more than 25 years.
In similar facts, the Hon'ble Supreme Court has concluded
that payment of quantified compensation in lieu of
reinstatement with continuity and back wages would be
more practical and appropriate rather than granting
WP 2593/02 & another
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reinstatement. The said view was taken in the following
four cases :-
[1] Assistant Engineer, Rajasthan State
Agriculture Marketing Board, Sub-Division, Kota
v. Mohanlal (2013 LLR 1009)
[2] Assistant Engineer, Rajasthan Development
Corporation & another v. Gitam Singh [(2013) 5
SCC 136]
[3] BSNL v. Man Singh [(2012) 1 SCC 558] and
[4] Jagbir Singh v. Haryana State Agriculture
Marketing Board [(2009) 15 SCC 327]
14] The Apex Court has held that compensation of
Rs.30,000/- per year of service put in would be
reasonable compensation. As such, in the instant case,
the employee would be entitled for compensation of about
Rs.1,20,000/-. The establishment has deposited an amount
of Rs.40,000/- in this Court in the year 2002. Same has
accrued interest. It is informed by the Registry of this
Court that the said amount is Rs.83,770/- as on date.
15] In the light of the above, the establishment
shall pay a difference of Rs.36,230/- to the employee
within a period of ten weeks from today. The employee is
at liberty to withdraw the amount of Rs.83,770/-
deposited in this Court by producing tangible proof of
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identity in the form of his election ID / voter's card or
the Aadhar card and upon identification by the learned
Advocate of the employee.
16] In the light of the above, both these petitions
are disposed of by modifying the impugned award as above.
Rule is discharged. No order as to costs.
ig (RAVINDRA V. GHUGE, J.)
ndk/c223169.doc
