Bombay High Court
Baburao Umaji Dhotre vs The Chief Ex. Officer Z.P. ... on 22 March, 2016
Bench: R.V. Ghuge
WP 2591/02 & another
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2591/2002
Shri Baburao s/o Umaji Dhotre,
Age - 50 years, Occ.Unemployed,
R/o Chambharwadi, Po.Deogaon Rangari
Tq. Kannad, Dist. Aurangabad.
...Petitioner...
Versus
The Chief Executive Officer,
Zilla Parishad, Aurangabad.
ig ...Respondent...
.....
Shri A.S. Shelke, Advocate for petitioner.
Mrs. M.A. Deshpande, Advocate for respondent.
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
WITH
WRIT PETITION NO.5266/2002
Zilla Parishad, Aurangabad.
(through its Chief Executive Officer)
...Petitioner...
Versus
Shri Baburao s/o Umaji Dhotre,
Age - 50 years, Occ. Unemployed,
R/o Chambharwadi, Po.Deogaon Rangari
Tq. Kannad, Dist. Aurangabad.
...Respondent...
.....
Mrs. M.A. Deshpande, Advocate for petitioner.
Shri A.S. Shelke, Advocate for respondent.
.....
CORAM: RAVINDRA V. GHUGE, J.
DATE: 22.03.2016
ORAL JUDGMENT :
WP 2591/02 & another
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1] Both these petitions have been admitted by this
Court. The first petition is preferred by the employee,
who has challenged the impugned award dated 21.8.2001
delivered by the Labour Court, Aurangabad, in Reference
(IDA) No.110/1992 by which he was granted Rs.25,000/-
towards back wages and was granted Rs.25,000/- in lieu of
reinstatement and continuity of service. The second
petition is filed by the establishment challenging the
same award. Hence, I have taken up both these petitions
together for disposal.
2] I have heard the strenuous submissions of Shri
Shelke and Mrs.Deshpande, learned Advocates for the
employee and establishment respectively.
3] The employee had contended that he was working
from 15.2.1987 upto 15.8.1990 as a labourer in the Kannad
Sub-Division of the establishment. There were about 200
employees of such kind, who were doing the work of road
maintenance. It was contended that the work of road
maintenance is a perennial nature of work and is
available all round the year.
4] Since the employee was orally terminated, he had
raised an industrial dispute, which was referred to the
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Labour Court as Reference (IDA) No.110/1992. In the
statement of claim filed by the employee, he had also
contended that the work of maintenance of the roads being
available throughout the year, he could not have been
orally terminated on the false plea that the work had
come to an end. Juniors had been retained in service.
Fresh hands were engaged after his oral termination. He
had, therefore, alleged violation of Sections 25-F and
25-G r/w Rule 81 of the Industrial Disputes (Bombay)
Rules, 1957.
5] Shri Shelke submits that the employee had also
issued a notice for production of documents before the
Labour Court at Exhibit U-4. Despite the order of the
Labour Court, the establishment failed to produce the
Nominal Muster Roll (NMR) payment voucher for the period
15.2.1987 till 15.8.1990. The establishment placed some
documents on record below list C-8. Those documents did
not pertain to the period during which the employee had
worked with the establishment.
6] It is also submitted that the petitioner as well
as the Deputy Engineer on behalf of the establishment had
stepped into the witness box. The establishment had
WP 2591/02 & another
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taken a plea that since preservation of documents
pertaining to daily wagers and NMR is restricted to five
years, after the completion of five years, such documents
are normally destroyed.
7] The Labour Court had drawn an adverse inference
on account of the failure of the establishment to file
the documents. It is contended by Mrs.Deshpande that
when the documents pertaining to daily rated employees
was to be maintained for five years, the same having been
destroyed after five years, would not lead to drawing an
adverse inference. The Labour Court should have
considered the specific plea taken by the employer that
the documents were not available. If the documents were
destroyed, the drawing of adverse inference has,
therefore, led to the impugned perverse judgment.
8] She further submits that the employee himself
had admitted that he was working as a labourer (Mail
Kamgar / Majdoor) on the maintenance of road activity.
If such maintenance work is over, there was no reason for
the establishment to continue the employee. These facts
should have been taken into consideration by the Labour
Court before arriving at a conclusion in the impugned
WP 2591/02 & another
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judgment.
9] I have considered the specific contentions put
forth by the employee as well as the establishment. The
fact remains that the employee had worked for about three
years and six months. Though the documents placed on
record indicated that he had worked for only 142 days, by
drawing an adverse inference the Labour Court concluded
continuous employment.
10] Be that as it may, the employee had moved an
application for the benefits of Section 17-B. This Court
had granted the application. It is stated on
instructions based on the file notings by Mrs.Deshpande
that the employee was paid an amount of Rs.68,850/- for
the period 01.04.2007 to 30.04.2014. It is revealed from
the record that the employee had attained the age of
superannuation at 58 years in 2010. The employee has
been paid last drawn wages at the rate of Rs.810/- per
month upto 30.4.2014.
11] The Apex Court has considered the circumstances
of small spells of employment followed by long spell of
unemployment. While considering such situations, the
Hon'ble Supreme Court has delivered the following four
WP 2591/02 & another
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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]
12]
It is thus held that in matters where an
employee had put in a short span of employment and is out
of employment for a long duration, reinstatement with
continuity and back wages would be unreasonable.
Instead, it would be practicable and appropriate to grant
quantified compensation to such employees and the Hon'ble
Supreme Court has held that Rs.30,000/- per year of
service would be reasonable compensation.
13] In the instant case, the employee has worked for
about 3 years and six months. He would, therefore, be
entitled for compensation of about Rs.1,05,000/-.
14] It is submitted by Mrs.Deshpande on the basis of
the official record made available to her by the
establishment that from 01.04.2007 till 30.4.2014, which
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is the date of retirement of the employee, he was paid an
amount @ Rs.810/- per month, which is about Rs.68,850/-.
She submits that the amount of Rs.25,000/- was deposited
earlier on 31.3.2005, Rs.5780/- on 15.3.2007 and
Rs.1000/- on 29.3.2007. As such, the total amount paid
by the establishment is Rs.1,00,630/-.
15] In the light of the above, the establishment
shall pay a difference of Rs.5,000/- (rupees five
thousand only) to the employee within a period of 10
weeks from today. The employee is at liberty to withdraw
the entire amount deposited by the establishment in this
Court, by producing tangible proof of identity in the
form of an election identity card / voters card or the
Aadhar card and upon identification by the learned
Advocate of the employee.
16] Both these petitions are, therefore, disposed of
by modifying the impugned award in terms of the
compensation, which is to be paid as above. Pending
civil applications,if any, stand disposed of.
(RAVINDRA V. GHUGE, J.)
ndk/c22316.doc
