Bombay High Court
The State Of Maharashtra And ... vs Dnyaneshwar Anantrao Kulkarni on 18 October, 2016
Bench: R.V. Ghuge
*1* 913.wp.9080.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 9080 OF 2016
1 The State of Maharashtra.
Through the Secretary,
Public Works Department,
Mantralaya, Mumbai.
2 The Superintending Engineer,
Public Works Division, Osmanabad.
3 The Executive Engineer,
Public Works Division, Osmanabad.
4 The Deputy Engineer,
Public Works Sub Division No.1,
Osmanabad.
...PETITIONER
-VERSUS-
Dnyaneshwar Anantrao Kulkarni,
Age : 42 years, Occupation : Nil,
R/o Ter, Tq. & Dist.Osmanabad.
Pin No.413509.
...RESPONDENT
...
AGP for Petitioners : Shri P.N.Kutti.
Advocate for Respondent : Shri Deshmukh Rajendra S..
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 18th October, 2016
Oral Judgment :
1 Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
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2 On 19.09.2016 while issuing notice, I had recorded the brief
facts of the case as under:-
"1. Leave to add the complete address of the respondent.
Addition be carried out within one week.
2. The petitioners are aggrieved by the ex-parte order
dated 10.8.2000, delivered by the Labour Court, by
which, Reference (IDA) No.90 of 1996 has been
allowed. Grievance is that the respondent had worked
from 1.3.1984 till 1.4.1985 and since he was a daily
wager and there was no work available, he was
disengaged. An industrial dispute is raised after 11
years. The respondent had approached this Court
after the Labour Court set aside the ex-parte award.
By judgment dated 1.7.2015, delivered by this Court
in Writ Petition No.11605 of 2014, the Misc.
Application filed by the petitioners for recalling the
ex-parte judgment and award was held to be
untenable. As such, on account of the observations set
out in paragraph No.30 of the said judgment, the
petitioners were granted the liberty to assail the ex-
parte award in this Court.
3. Issue notice before admission to the respondent,
returnable on 7.10.2016.
4. Till the next date of hearing in the matter, the
Criminal Complaint pending before the Labour Court,
Solapur / Latur shall be adjourned."
3 It is in the above backdrop that this petition is being
entertained.
4 The submissions of the learned AGP on behalf of the
Petitioners have been recorded in paragraph 2 of my order dated
*3* 913.wp.9080.16
19.09.2016 reproduced above.
5 Shri Deshmukh, learned Advocate for the Respondent, has
strenuously defended the ex-parte award dated 10.08.2000. He places
reliance upon the affidavit in reply filed by the Respondent which is
tendered today, to contend that it was on account of the lapse and
negligence of the Petitioner that the Labour Court was compelled to
deliver an ex-parte award. The said award was delivered almost 16 years
ago and it would cause irreparable harm, manifest inconvenience and
serious prejudice to the Respondent, if the said award is to be set aside.
6 He further submits that though the Respondent raised an
industrial dispute after about 11 years having worked from 01.03.1984 till
01.04.1985, the Labour Court has balanced the equities by depriving the
Respondent of back wages prior to 15.12.1995 which is the date on which
the Industrial Dispute was raised by the Respondent. He further submits
that this employment is the only source of income and as such, no
interference is called for.
7 I have considered the submissions of the learned Advocates as
have been recorded herein above.
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8 Keeping in view that the Respondent had worked from
01.03.1984 to 01.04.1985 which is a period of 13 months, the Respondent
has been out of employment for the last about more than 31 years. His
entry in employment on daily wages cannot be equated with an entry in
employment as against a permanent vacant post. In public employment,
back door entry, on the one hand, cannot be countenanced and on the
other hand, there could not be an order of reinstatement of an employee,
who has raised an industrial dispute after more than 11 years from the
date of termination.
9 In the light of the above, I deem it appropriate to place
reliance upon the following four judgments delivered by the Honourable
Supreme Court wherein it has been concluded that after a short spell of
employment, which is followed by a long period of unemployment, it
would not be practicable to grant reinstatement with continuity in
service:-
(a) Assistant Engineer, Rajasthan State Agriculture Marketing
Board, Sub-Division, Kota Vs. Mohanlal, [2013 LLR 1009];
(b) Assistant Engineer, Rajasthan Development Corporation and
another Vs. Gitam Singh, [(2013) 5 SCC 136];
(c) BSNL Vs. Man Singh, [(2012) 1 SCC 558]; and
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(d) Jagbir Singh Vs. Haryana State Agriculture Marketing Board,
[(2009) 15 SCC 327].
10 The Honourable Supreme Court in the above four judgments
has concluded that Rs.30,000/- per year of service would be
commensurate compensation in lieu of reinstatement with continuity and
back wages.
The peculiar facts of this case need to be considered while
granting compensation. The Petitioners neglected the proceedings before
the Labour Court and after four years of pendency of the proceedings, the
impugned ex-parte award was delivered. Thereafter, the Petitioners moved
an application for recalling of the ex-parte award beyond 30 days from the
date of it's publication. The said issue was dealt with by this Court in the
matter of Dnyaneshwar Anantrao Kulkarni vs. The Superintendent Engineer,
Public Works Division and others, Writ Petition No.11605/2014
(Aurangabad Bench) decided on 01.07.2015, by which this Court
concluded that the application for recalling the ex-parte award after 30
days of publication was not maintainable as the Labour Court was
rendered functus officio.
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12 In this entire process, the Respondent had to suffer the
rigours of litigation. As such, though he has worked for one year and is
entitled for compensation of Rs.30,000/-, I am awarding compensation of
Rs.50,000/-. The amount of Rs.20,000/- above the compensation amount
is towards the rigours of litigation which the Respondent has suffered on
account of negligence and laxity on the part of the Petitioners.
13 This Writ Petition is, therefore, partly allowed and the
impugned award dated 10.08.2000 is modified by granting compensation
to the Respondent for an amount of Rs.50,000/- (Rupees Fifty Thousand)
in lieu of reinstatement, continuity and back wages. The said amount shall
be paid by the Petitioners within a period of TWELVE WEEKS from today,
failing which the said amount shall carry interest at the rate of 6% per
annum from August, 2000 till it's actual payment. The said amount of
interest would then be recovered from Petitioner Nos.2 and 3 from their
salaries. Needless to state, on account of delay in payment if the interest is
required to be paid, the same shall not be paid from the State Exchequer
and the same shall be paid from the salaries of Petitioner Nos.2 and 3.
14 Rule is made partly absolute in the above terms.
kps (RAVINDRA V. GHUGE, J.)
