The Chief Executive Officer Zp ... vs Balu Jaising Rathod
2016 Latest Caselaw 6345 Bom

                                                      *1*                          911.wp.2572.16


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         BENCH AT AURANGABAD




                                                                                     
                                 WRIT PETITION NO. 2572 OF 2016




                                                             
    The Chief Executive Officer,
    Zilla Parishad, Osmanabad.
                                                        ...PETITIONER




                                                            
              -VERSUS-

    Balu s/o Jaising Rathod,
    Age : 35 years, Occupation : Nil,




                                               
    R/o Behind Terna College,
    Laman Tanda, Osmanabad,          
    District Osmanabad.
                                                        ...RESPONDENT
                                    
                                             ...
                         Advocate for Petitioner : Shri Bondar U.B. 
                     Advocate for Respondent : Smt.S.A.Dhumal-Tambat.
                                             ...
       


                                           CORAM:  RAVINDRA V. GHUGE, J.

DATE :- 25th October, 2016

Oral Judgment :

1 Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

2 The Petitioner is aggrieved by the judgment and award dated

03.08.2015 delivered by the Labour Court by which Reference (IDA)

No.1/2011 has been allowed ex-parte and the Petitioner is directed to

*2* 911.wp.2572.16

reinstate the Respondent with continuity and full back wages.

3 I have heard the strenuous submissions of the learned

Advocates for the respective sides.

4 There appears to be no dispute that the Petitioner/ Zilla

Parishad has taken over the poultry project of Osmanabad in 2002 much

prior to the raising of an industrial dispute by the Respondent. The

Respondent has claimed to be working from 01.01.1984 to 30.12.1987 in

the continuous employment of the poultry project at Osmanabad. He has

claimed to be orally terminated with effect from 30.12.1987. The

industrial dispute is raised after 24 years from the date of oral

termination.

5 It also cannot be ignored that the Petitioner, having taken

over the project in 2002, should have been impleaded as the First Party in

the reference proceedings. The poultry project at Osmanabad was not in

existence on the date on which the reference was registered before the

Labour Court in 2011. As a consequence, none represented the First Party

before the Labour Court, which has led to the ex-parte impugned award.

    6               Though the Industrial Disputes Act, 1947 does not prescribe 





                                                        *3*                           911.wp.2572.16

any limitation, it is well settled that an inordinate delay caused in filing of

the reference cannot be considered casually. It is also settled that no party

can derive an advantage of it's own wrong. The Respondent could not

have been granted full back wages for a period of 24 years during which

he kept silent and did not raise an industrial dispute.

7 It is also well settled that merely because the Management/

Establishment has not participated in the proceedings, the claim of the

Complainant/ Employee/ Claimant cannot be allowed only by relying

upon the affidavit filed by the Claimant / Complainant / Employee

without there being any documentary evidence. It is equally settled that

the onus and burden lies on the employee to prove completion of 240

days in continuous employment in the calender year preceding the date of

reference before the Court.

8 Though the learned Advocate for the Respondent has

strenuously supported the impugned judgment, he contends that in the

event this Court is inclined to consider this petition, the matter may be

remanded to the Labour Court.

9 Considering the above, this Writ Petition is partly allowed.

The impugned award dated 03.08.2015 is quashed and set aside.

*4* 911.wp.2572.16

Reference (IDA) No.1/2011 is remitted to the Labour Court at Latur on

the following conditions:-

(a) The Respondent/ Employee shall forthwith array the

Petitioner/ Zilla Parishad through it's Chief Executive Officer

as the First Party No.2 in the reference proceedings keeping in

view the law laid down in the matters of M/s Hochtief

Gammon Vs. Industrial Tribunal, Bhubaneshwar , AIR 1964 SC

1746 and

Digambar Madye and others Vs. Union of India and

others , 2015(II) CLR 540 .

(b) The litigating sides which include the Petitioner, shall appear

before the Labour Court on 02.12.2016.

(c) After the Respondent/ Employee arrays the Petitioner as the

First Party No.2 in the reference proceedings, the Petitioner

shall file it's Written Statement within FOUR WEEKS from the

date of being impleaded.

(d) The Labour Court, while deciding the reference proceedings,

shall consider the following aspects:-

(i) Delay of 24 years caused in raising of the dispute.

(ii) The possibility of there being no documentary evidence

preserved by the Petitioner on account of passage of 24 years.

        (iii)      In the event, the Respondent succeeds in proving continuous 





                                                                  *5*                           911.wp.2572.16

employment for 240 days in the calender year preceding the

date of reference i.e. the date of termination, the Labour

Court shall consider the grant of compensation in lieu of

reinstatement, continuity and back wages keeping in view the

judgments delivered by the Honourable Supreme Court in the

matters of (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].

(e) The litigating sides shall endeavour to extend cooperation to

the Labour Court for the expeditious disposal of the reference

proceedings.

10 Rule is made partly absolute in the above terms.

    kps                                                            (RAVINDRA V. GHUGE, J.)