Shri. Tanaji Baburao Tanugade vs The Manager Kolhapur District ...
2016 Latest Caselaw 5306 Bom

    (901)-WP-11343-11.doc.

                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                          
                          CIVIL APPELLATE JURISDICTION

                             WRIT PETITION NO.11343 OF 2011 




                                                                  
    Shri. Tanaji Baburao Tanugade 
    Age 40 years, R/O Kanchanwadi,
    Tal. Karveer, Dist. Kolhapur.                                           ..Petitioner




                                                                 
             Versus 

    1. The Manager Kolhapur 




                                                    
        District Central Co-op. Bank
        Ltd., Head Office, Kolhapur. 

    2. Member, Industrial Court,
                                    
        Kolhapur.                                                           ..Respondents
                                   
    Shri.   Abhay   Nevagi   a/w   Ms.   Prerna   Patil   i/by   Abhay   Nevagi   & 
    Associates for the Petitioner. 
    Shri. M. S. Topkar for the Respondent No.1. 
       


       
    



                                                    CORAM : R. M. SAVANT, J.

DATE : 16th SEPTEMBER, 2016

ORAL JUDGMENT

1 The writ jurisdiction of this Court is invoked against the

judgment and order dated 18.10.2011 passed by the Learned Member of

the Industrial Court, Kolhapur, by which order, the Revision Application

(ULP) No.31 of 2010 came to be allowed and resultantly, the judgment

and order dated 03.02.2010 passed by the Learned Member of the

Labour Court, Kolhapur came to be set aside.

    BGP.                                                                                    1 of 14



     (901)-WP-11343-11.doc.

    2                 The facts giving rise to the filing of the above Writ Petition 




                                                                                       
    can in brief be stated thus :- 




                                                               

The Petitioner herein is the original Complainant who has

filed Complaint (ULP) No.69 of 1999 invoking items 1(b) and (f) of

Schedule IV of the MRTU & PULP Act, 1971 (for short "the said Act").

The Respondent No.1 herein is the Kolhapur District Central Co-operative

Bank and is a society registered under the Maharashtra Co-operative

Societies Act. The Petitioner was working with the Respondent No.1 on

daily wages. It was the case of the Petitioner that he was working with

the Respondent No.1 from May 1996 to September 1998 when his

services came to be orally terminated. It was his case that since he had

completed more than 240 days of service in a calender year, he had

become permanent, and therefore his services could not be terminated

without following the due process of law and without payment of

compensation as contemplated by Section 25(f) of the Industrial Disputes

Act (for short "the ID Act"). The Petitioner therefore prayed for a

declaration of an unfair labour practice being committed by the

Respondent No.1 and for his reinstatement with continuity of service.

3 The Respondent No.1 filed its written statement. It was the

case of the Respondent No.1 that the Petitioner was appointed on daily

BGP. 2 of 14

(901)-WP-11343-11.doc.

wages as and when work was available. It was the case of the Respondent

No.1 that the wages were paid to the Petitioner at the end of each week

and by voucher. It was further the case of the Respondent No.1 that since

he was appointed on daily wages, question of termination of his services

did not arise. The Respondent No.1 denied that the Petitioner has

completed 240 days or more in a calender year. It was the case of the

Respondent No.1 that the Petitioner was not appointed through proper

channel i.e. employment exchange, no sanction of the co-operative

department was taken and therefore a back door entry cannot be

permitted. The Respondent in its written statement sought to rely upon

the instructions of the NABARD issued vide its order dated 15.07.2009

which instructions were in respect of the recruitment in all the District

Central Co-operative Banks. The Respondent No.1 had therefore sought

dismissal of the Complaint.

4 On the basis of the pleadings of the parties, the Learned

Member of the Labour Court framed the issues, amongst which were

issues, which were to the following effect :-

i) Whether the services of the Complainant have been terminated ?

ii) Whether the termination of service of the Complainant is legal and proper ?

    BGP.                                                                                     3 of 14



     (901)-WP-11343-11.doc.

The parties led evidence in respect of their respective assertions. The

Petitioner led the evidence of one Pandurang Krishnaji Bhanage who was

the Branch Manager of the concerned Branch wherein the Petitioner was

working at the relevant time, whereas the Respondent No.1 had led the

evidence of one Ranjit Marutrao Bagal who was the Assistant Manager in

its legal department. It seems that prior to the framing of the issues, the

Petitioner had filed an application for amendment of the Complaint

which amendment was to the effect that to avoid a situation where the

Petitioner would be completing 240 days of service, the Petitioner was

shown as working in the names of his brothers whose names were

mentioned in the said amendment application. The said amendment

application came to be allowed by the Labour Court and the factum of

the Petitioner having completed 240 days of service in a calender year

was accordingly incorporated in the Complaint.

5 Now coming to the evidence led on behalf of the parties. In

so far as the evidence of Shri. Pandurang Bhanage is concerned, it has

come in his evidence that the Petitioner was working with the

Respondent No.1 between the years 1996-1998. It has further come in his

evidence that the selection is made at the head office level and thereafter

the employees are assigned to the various branches and offices of the

Respondent No.1.

    BGP.                                                                                 4 of 14



     (901)-WP-11343-11.doc.

    6                 In so far as the evidence of Shri. Ranjit Bagal is concerned, it 




                                                                                          

has come in his evidence that in respect of persons who are daily wagers,

their attendance is maintained by the Respondent No.1 Bank. It has

further come in his evidence that for the years 1996-1997 and 1998 such

attendance registers were maintained. It has further come in his evidence

that for the year 1996-1997 and 1998 the record in respect of wages paid

to the employees is maintained. It has further come in his evidence that

in such attendance record the days when a workman has attended and

the payment made to him is recorded.

7 In the light of the evidence of Shri. Ranjit Bagal, the

Petitioner had filed application Exh.21 in the Labour Court for a direction

to be issued to the Respondent No.1 to produce the registers of the daily

wagers for the period May 1996 to September 1998. In spite of such

directions being issued, the Respondent No.1 did not choose to produce

the said record and the justification given for the same was that the

record has not been produced since the Petitioner's name is not appearing

in the said record.

8 The Labour Court adjudicated upon the said Complaint and

by its order 03.02.2010 has allowed the said Complaint by answering the

issues against the Respondent No.1. The Learned Judge of the Labour

BGP. 5 of 14

(901)-WP-11343-11.doc.

Court on the basis of the evidence of Shri. Pandurang Bhanage and Shri.

Ranjit Bagal came to a conclusion that the Petitioner had worked for 240

days and accordingly recorded a finding of fact. The Learned Judge of the

Labour Court drew an adverse inference against the Respondent for not

producing the registers though directed vide order passed on Exh.21. The

Learned Member observed that since it was the case of the Respondent

No.1 that the name of the Petitioner was not appearing in the registers, it

was necessary on the part of the Respondent No.1 to produce the said

registers. The said registers would have been the best evidence for the

Respondent No.1 to controvert the case of the Petitioner that he had

worked for more than 240 days in a calender year. The Learned Member

has held that since the registers were not produced, it would have to be

held that there was material in the said registers which was not

conducive to the Respondent No.1 and hence the registers were not

produced. The Learned Judge of the Labour Court resultantly held that

the termination of the services of the Petitioner was illegal without

following the procedure and therefore directed the reinstatement of the

Petitioner and instead of awarding backwages awarded compensation of

Rs.50,000/- in lumpsum.

9 The said judgment and order dated 03.02.2010 passed by

the Labour Court was taken exception to by the Respondent No.1 by way

BGP. 6 of 14

(901)-WP-11343-11.doc.

of a Revision filed under Section 44 of the said Act which Revision was

numbered as Revision Application No.31 of 2010. The said Revision came

to be allowed by the Learned Member of the Industrial Court and

resultantly, the judgment and order dated 03.02.2010 passed by the

Labour Court was set aside and the Complaint was dismissed. The gist of

the reasoning of the Industrial Court was that the finding of the Labour

Court that the Petitioner had worked for 240 days was perverse. The

Learned Member of the Industrial Court whilst recording the said finding

has adverted to the evidence of Shri. Pandurang Bhanage but has not

referred to the evidence of Shri. Ranjit Bagal who was in fact the witness

of the Respondent No.1. The Learned Member of the Industrial Court

observed that the Labour Court misread the evidence and has drawn a

wrong inference by believing the story of the Petitioner. The Learned

Member of the Industrial Court observed that the Labour Court has

wrongly shifted the burden on the Respondent No.1 just because it did

not produce the documents. The Learned Member of the Industrial Court

further observed that the entry of the Petitioner was a back door entry,

dehors the rules and therefore the order of reinstatement could not be

granted. The Learned Member of the Industrial Court accordingly

allowed the Revision by judgment and order dated 18.10.2011. It is the

said judgment and order passed by the Industrial Court which is taken

BGP. 7 of 14

(901)-WP-11343-11.doc.

exception to by way of the above Petition.

10 Submissions of Shri. Abhay Nevagi the Learned Counsel

appearing on behalf of the Petitioner :-

A) That the Industrial Court in allowing the Revision has exceeded its

jurisdiction under Section 44 of the said Act by re-appreciating the

evidence and upsetting the finding of fact recorded by the Labour Court

in respect of the Petitioner having completed 240 days of service in a

calender year. Reliance is placed on the judgment of a Learned Single

Judge of this Court dated 21/22.01.2015 in Writ Petition No.5907 of

2005 in the matter of Agricultural Produce Market Committee Arjuni

Moregaon Vs. Ashok S/o Danaji Hatzode and Division Bench judgment

of this Court reported in (1996)-I LLJ 494 Bom. in the matter of Vithal

Gatlu Marathe Vs. Maharashtra State Road Transport Corporation

and others.

B) That the evidence of Shri. Pandurang Bhanage and Shri. Ranjit

Bagal if read together, unequivocally lead to a conclusion that the

Petitioner had worked for 240 days in a calender year and therefore his

services could not be discontinued without following the procedure.

    C)       That the Labour Court was right in drawing an adverse inference 

    BGP.                                                                                8 of 14



     (901)-WP-11343-11.doc.

against the Respondent No.1 for not producing the attendance and wage

registers. The Learned Counsel lastly contended that the Petitioner is not

interested in payment of any compensation but is only interested in

reinstatement.

11 Submissions of Shri. Mr. M. S. Topkar on behalf of the

Respondent No.1 :-

I)

The Learned Counsel would seek to support the impugned order

passed by the Industrial Court, that the finding recorded by the Labour

Court that the Petitioner had worked for 240 days is perverse.

II) The Learned Counsel however fairly conceded that the Industrial

Court has not taken into consideration the specific evidence of Shri.

Ranjit Bagal in respect of the maintenance of the registers.

III) The Learned Counsel also fairly conceded that though the

attendance registers were maintained of daily wagers, such registers were

not produced before the Labour Court. The Learned Counsel left it to this

Court regarding final relief to be granted in the above Petition.

    Consideration    




    BGP.                                                                                9 of 14



     (901)-WP-11343-11.doc.

    12                Having   heard   the   Learned   Counsel   for   the   parties,   I   have 




                                                                                         

considered the rival contentions. Since it is the contention of the Learned

Counsel for the Petitioner Shri. Abhay Nevagi that the Industrial Court

has exceeded its jurisdiction, in support of which reliance was placed on

the judgment of a Division Bench of this Court in Vithal Gatlu Marathe's

case (supra) and the judgment of a Learned Single Judge of this Court in

Agricultural Produce Market Committee Arjuni Moregaon's case (supra), it

would be necessary at the outset to refer to the said judgments. In so far

as the judgment of the Division Bench of this Court in Vithal Gatlu

Marathe's case (supra) is concerned, it has been held by the Division

Bench of this Court that in exercise of the supervisory jurisdiction under

Section 44 of the said Act, the Industrial Court cannot appreciate or re-

appreciate the material on record. In the facts of the said case, where the

Industrial Court had set aside the findings of the Labour Court by

overturning the said findings and the decision of the Labour Court the

Division Bench set aside the order of the Industrial Court and confirmed

the decision of the Labour Court. The Learned Single Judge in

Agricultural Produce Market Committee Arjuni Moregaon's case (supra) has

reiterated the position in law as regards the revisionary jurisdiction under

Section 44 and has held that the revisionary jurisdiction of the Industrial

Court cannot be invoked for overturning a finding of fact even if the same

BGP. 10 of 14

(901)-WP-11343-11.doc.

is erroneous. Hence, in so far as the revisionary jurisdiction under Section

44 is concerned, a finding of fact recorded by the Labour Court cannot be

upset by the Industrial Court just because another view is possible to be

taken in the same set of facts. The facts of the instant case would now

have to been seen in the said context. In the instant case, as indicated

above, the case of the Petitioner was that he had worked for more than

240 days till his services were orally terminated in September 1998. In

the background of the said case, the evidence of Shri. Pandurang

Bhanage who was the witness of the Petitioner and the evidence of Shri.

Ranjit Bagal assumes importance. In so far as the evidence of the said

two witnesses are concerned, gist of the same has already been extracted

in the earlier part of this judgment. It is on the basis of the evidence of

Shri. Ranjit Bagal that the Petitioner had filed the application Exh.21 for

a direction to the Respondent No.1 to produce the registers maintained in

respect of the daily wagers as Shri. Ranjit Bagal in his evidence in terms

has stated that such registers are in fact maintained by the Respondent

No.1. In spite of an order passed on the application Exh.21 filed by the

Petitioner, the said registers were not produced by the Respondent No.1

and the justification given was that since the name of the Petitioner was

not appearing hence the said registers were not produced. The said

explanation can therefore be said to be specious and has been merely

BGP. 11 of 14

(901)-WP-11343-11.doc.

given to keep away a document from the Court. Since it was the case of

the Respondent No.1 that the name of the Petitioner was not appearing in

the said registers, the best evidence for the Respondent No.1 would

therefore have been the said registers. Since the Respondent No.1 had

not produced the said registers, the Labour Court was within its right to

draw an adverse inference against the Respondent No.1 on account of the

non-production by presuming that the contents of the said registers might

not be conducive to the Respondent No.1. The Learned Judge of the

Labour Court has therefore on the basis of the material on record has

recorded a finding of fact that the Petitioner had worked for more than

240 days in a calender year and therefore the termination of his services

without following the procedure was illegal. The Labour Court deemed it

appropriate to grant reinstatement with lumpsum compensation.

13 On the matter being carried to the Industrial Court, the

Industrial Court embarked on an exercise of re-appreciating the evidence

on record and thereafter has overturned the finding of the Labour Court.

In the said process however the Industrial Court has only referred to the

evidence of Shri. Pandurang Bhanage but has not, even in passing,

referred to the evidence of Shri. Ranjit Bagal which in the context of the

case of the Petitioner is the clinching evidence in so far as his case that he

had worked for more than 240 days in a calender year is concerned. The

BGP. 12 of 14

(901)-WP-11343-11.doc.

Industrial Court also failed to appreciate that since the employer is in

custody of the documents, it is for him to produce the said documents

and if not produced, then an adverse inference is required to be drawn.

Hence, the impugned order passed by the Industrial Court in the teeth of

the parameters of the revisionary jurisdiction under Section 44 can be

said to be an order passed in excess of jurisdiction. The Industrial Court

was not entitled to re-appreciate the evidence much less in the manner it

has done in the instant case by adverting to only the evidence of Shri.

Pandurang Bhanage and not Shri. Ranjit Bagal.

14 In my view, therefore, the impugned order dated 18.10.2011

passed by the Industrial Court cannot be sustained. The same is required

to be quashed and set aside and is accordingly quashed and set aside.

Resultantly, the order dated 03.02.2010 passed by the Labour Court

would stand confirmed. However, since the Learned Counsel for the

Petitioner has submitted that the Petitioner is only interested in

reinstatement and not the lumpsum amount and since the Learned

Counsel appearing for the Respondent No.1 Mr. M. S. Topkar in all

fairness has left it to this Court as regards the final relief to be granted to

the Petitioner. In the facts and circumstances of the case, the grant of the

lumpsum amount of Rs.50,000/- by the Labour Court is set aside

however the order of the Labour Court granting reinstatement with

BGP. 13 of 14

(901)-WP-11343-11.doc.

continuity of service is confirmed. The Petition is allowed to the aforesaid

extent. Rule is accordingly made absolute, with parties to bear their

respective costs of the Petition.

                                

                                                                        [R.M.SAVANT, J]




                                                             
                                                
                                    
                                   
       
    






    BGP.                                                                               14 of 14