Bombay High Court
State Of Maharashtra And Anr vs Subhash Uttam Mahajan on 22 September, 2016
Bench: R.V. Ghuge
WP/2220/2001
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 2220 OF 2001
1. The State of Maharashtra
Through Government Pleader,
High Court, Bench at
Aurangabad.
2. The Plantation Officer,
Social Forestry, Chalisgaon
District Jalgaon. ..Petitioners
Versus
Subhash Utttam Mahajan,
Age major, Occ. Nil,
At post Mehunbare,
Tq. Chalisgaon, Dist. Jalgaon. ..Respondent
...
Special Advocate for Petitioners : Shri Patil Umakant K.
a/w Shri Kutti P.N., AGP
Advocate for Respondent : Shri Patil V.Y.
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: September 22, 2016
...
ORAL JUDGMENT :-
1. The petitioners have challenged the award of the Labour Court
dated 5.7.2000, by which, the Reference has been partly allowed and
the oral termination of the respondent dated 8.8.1995 has been set
aside.
2. By it's order dated 14.6.2001, this Court admitted the matter,
while issuing notice to the respondent and granted interim relief in
WP/2220/2001
terms of prayer clause (D), owing to which, the impugned award has
been stayed. An application for last drawn wages under Section 17B
of the Industrial Disputes Act had not been filed. The respondent is
out of employment for the past 21 years.
3. I have heard the strenuous submissions of the learned counsel
for the petitioners as well as the respondent. With their assistance, I
have gone through the record available.
4.
The issue before the Labour Court was with regard to the oral
termination of the respondent dated 8.8.1995. The petitioner placed
a Chart at Exhibit C-5 to indicate the number of days worked by the
respondent. In the twelve calendar months, preceding the date of
reference i.e. termination, the respondent had worked for 199 days.
The Labour Court added 52 weekly holidays and based on the said
conclusion, held that the respondent had worked for 240 days. Since
Section 25F of the ID Act was not complied with, his termination was
held to be unlawful and was, therefore, granted reinstatement with
continuity in service, without backwages. There is no dispute that
besides Exhibit C-5, there was no documentary evidence before the
Labour Court to conclude that the respondent had completed 240
days in continuous employment in a calendar year preceding the date
of reference.
WP/2220/2001
5. As such, it is obvious that since the petitioner placed the chart
at Exhibit C-5, the reference has been partly allowed by the Labour
Court. However, it cannot be ignored that the said chart indicates
that the respondent worked for 51 days from 1988 to 1989, 110 days
from April 1989 to April 1990 and 47 days from April 1990 to April
1991. From 30.4.1991 till 31.3.1994, the respondent was not in
employment. Considering that besides this chart, there was no
material before the Labour Court while allowing the reference, I find
that the Labour Court has lost sight of the fact that from 1988 to May
1994, the respondent had hardly worked. He was not given any work
for three years and had worked for short durations of 47 days, 51
days and 110 days from 1988 to 1991.
6. Considering the above, the impugned award deserves to be
interfered with. Merely because the respondent completed 240 days
in only one calendar year, he cannot be granted reinstatement with
continuity for 21 years.
7. Considering the ratio laid down by the Honourable Apex Court
in the following four cases, I deem it proper to modify the impugned
award and grant compensation to the respondent in lieu of
reinstatement and continuity in service:-
1. Assistant Engineer, Rajasthan State Agriculture Marketing
Board, Sub-Division, Kota Vs. Mohanlal [2013 LLR 1009],
WP/2220/2001
2. Assistant Engineer, Rajasthan Development Corporation and
another Vs. Gitam Singh [(2013) 5 SCC 136],
3. BSNL Vs. Man Singh [(2012) 1 SCC 558] and
4. Jagbir Singh Vs. Haryana State Agriculture Marketing Board
[(2009) 15 SCC 327].
8. As such, the petitioners shall pay an amount of Rs.75,000/-
(Rs. Seventy Five Thousand only/-) by way of compensation in lieu of
regularization and continuity in service. Said amount shall be paid by
the petitioner within a period of twelve weeks from today, failing
which, the said amount shall carry interest at the rate of 6% p.a. and
the said interest shall be recovered from the salary of the officer of
the petitioner for the delay caused in making the payment. The
interest amount shall not be paid from the State exchequer and by
fixing the responsibility on the officer who has caused the delay,
shall be payable from his salary account. The impugned award is
modified accordingly.
9 Rule is made partly absolute in above terms.
( RAVINDRA V. GHUGE, J. )
...
akl/d
