Bombay High Court
The State Of Mah . & Another vs Eknath Baburao Rashinkar on 20 October, 2016
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 690 OF 1997
The State of Maharashtra.
Through the Executive Engineer,
Public Works Division,
Sangamner, Tq.Sangamner,
District Ahmednagar.
...PETITIONER
-VERSUS-
1 Eknath Bhaurao Rashinkar,
Age : Major, Occupation : Nil,
R/o Dhangarwadi, PO Wakadi,
Tq.Shrirampur,
District Ahmednagar.
2 Presiding Officer and Judge,
IInd Labour Court, Ahmednagar.
...RESPONDENT
WITH
CIVIL APPLICATION NO.7753 OF 2003
IN WP/690/1997
Eknath Bhaurao Rashinkar.
-versus-
The State of Maharashtra and another.
...
AGP for Petitioner / State : Shri S.B.Joshi.
Advocate for Respondent/Employee : Shri L.S.Shaikh h/f Shri G.B.Kadlag.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 20th October, 2016
Oral Judgment :
1 Respondent No.2 being the Presiding Officer of the Labour
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Court, stands deleted from the proceedings.
2 The Petitioner is aggrieved by the award dated 18.10.1995
delivered by the Labour Court by which Reference (IDA) No.31/1990 has
been allowed and the Respondent is granted reinstatement with continuity
and full back wages from 04.05.1986.
3 I have heard the learned Advocates for the respective sides.
With their assistance, I have perused the petition paper book and the
material available on record.
4 This Court, by order dated 12.06.1997, admitted the petition
and by granting interim relief in terms of prayer clause (D), stayed the
award.
5 The Respondent filed Civil Application No.5182/2000 seeking
benefits of Section 17-B of the Industrial Disputes Act, 1947. By order
dated 29.06.2001, the Civil Application filed by the Respondent was
allowed and the Petitioner was directed to pay the last drawn wages of the
Respondent on regular basis. Liberty to reinstate him was also granted.
The litigating sides are unable to make a statement as to whether, the
Respondent was reinstated in service or not. Nevertheless, the Respondent
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again filed Civil Application No.7753/2003 stating on oath that he is
unemployed and has no source of income. The said application is still
pending.
6 The record reveals that the Respondent had approached the
Labour Court in 1990 alleging that he was working as a daily wager with
the Petitioner from 1979 till 03.05.1986. He claimed oral termination on
04.05.1986.
7 The Petitioner filed a cryptic Written Statement stating that
the Respondent had never worked continuously and had not completed
240 days in any calender year. He himself was remaining absent and has
abandoned the service on 07.06.1986.
8 It was in the above backdrop that the Labour Court allowed
the reference and had granted reinstatement with continuity and full back
wages from 04.05.1986.
9 The impugned award further reveals that besides oral
evidence, the Respondent had produced three pay slips pursuant to the
inspection reports Exhibits U/5 and U/6. One pay slip indicates that the
Respondent worked for 45 days from April, 1980 to 23.05.1980. The
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second pay slip indicates that he worked from 03.12.1980 to 02.01.1981
for 30 days and the last pay slip indicates that he worked from 08.03.1983
to 07.04.1983 again for 30 days.
10 The inspection report Exhibit U/5 indicates that the name of
the Respondent was not shown on the muster roll-cum- pay slip from
1980 to 1986. The second inspection report Exhibit U/6 indicates that the
name of the Respondent was not appearing on the muster roll from 1979
to 1984.
11 As such, the documents reveal that the Respondent had
worked intermittently in 1980, 1981 and 1983. However, the Written
Statement filed by the Petitioner mentions that the Respondent was absent
from 07.06.1986 and he had abandoned his service. The said written
statement filed by Shri S.D.Dashpute, Assistant Executive Engineer, Public
Works Division, Shrirampur is apparently vague and an ambiguous written
statement which indicates non application of mind by the concerned
officer. The Written Statement bearing six sentences throws no light on
this case except the admission that the Respondent had abandoned the
service from June, 1986.
12 Even if the pay slips are taken as skeletal evidence available
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for indicating the work performed by the Respondent, it is apparent that
the Respondent was working intermittently. In this backdrop, the Labour
Court ought not to have granted reinstatement with continuity in service
and full back wages.
13 Eventually, this is a case of a short spell of employment
followed by a long period of 30 years of unemployment. The Honourable
Apex Court in the following four cases has concluded that in such a
situation, quantified compensation would be an appropriate relief rather
than granting reinstatement with back wages:-
(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
(d) Jagbir Singh Vs. Haryana State Agriculture Marketing Board,
[(2009) 15 SCC 327].
14 Considering that the pay slips could be an indicator of some
work performed by the Respondent, though I find that the impugned
award is perverse and erroneous, I am granting monetary benefits to the
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Respondent keeping in view the order passed by this Court dated
29.06.2001 by virtue of which the Respondent would be entitled for the
last drawn wages under Section 17-B. The receipt indicates that he had
worked for some period in 1980 and then in 1983. The Petitioner
contends that the Respondent abandoned the service in 1986. There is no
iota of evidence to indicate completion of 240 days in continuous
employment in any calender year. I am, therefore, taking into account the
years 1980, 1983 and 1986 when the Respondent is said to have
abandoned the employment, for the purpose of quantifying the
compensation at the rate of Rs.30,000/- per year in service in the light of
the ratio laid down in the above referred four cases.
15 This Writ Petition is, therefore, partly allowed. The impugned
award dated 18.10.1995 is modified and the Petitioner shall pay
compensation of Rs.90,000/- (Rupees Ninety Thousand) to the
Respondent in lieu of reinstatement with continuity and back wages. In
the event, the last drawn wages have been paid to the Respondent by the
Petitioner pursuant to the order of this Court dated 29.06.2001, the said
amount shall be set off against this amount of compensation and the
remainder amount shall be paid to the Respondent. If some more amount
has been paid under Section 17-B of the Industrial Disputes Act, 1947
than the compensation granted, there shall be no recovery.
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16 Needless to state, if any compensation amount remains after
deducting the amount paid under Section 17-B, the same shall be paid to
the Respondent within a period of TWELVE WEEKS from today, failing
which the Respondent would be entitled for interest on the unpaid
amount at the rate of 6% per annum from the date of the award of the
Labour Court till it's actual payment. The said interest, which would be
payable due to delay on the part of the Petitioner, would then be
recovered from the salaries of the Executive Engineer, Public Works
Division, Sangamner and the said amount of interest shall not be paid
from the State exchequer.
17 Rule is made partly absolute in the above terms.
18 The pending Civil Applications, if any, do not survive and the
same stand disposed of.
19 The record and proceedings be returned to the concerned
Court forthwith.
kps (RAVINDRA V. GHUGE, J.)
