Bombay High Court
State Of Maharashtra vs Mahadeo Sahebrao Abhang on 23 September, 2016
Bench: R.V. Ghuge
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.4863 OF 2001
WITH
CIVIL APPLICATION NO.7001 OF 2016
The State of Maharashtra,
Through the Executive Engineer,
Public Works Department, (EGS)
Division, Aurangabad Road,
Ahmednagar -- PETITIONER
VERSUS
Mahadev Sahebrao Abhang,
At Post : Pathardi (Kasba),
Tq.Pathardi, Dist.Ahmednagar -- RESPONDENT
Mr.P.N.Kutti, AGP for the respondent/State.
Mr.D.R.Jayabhar, Advocate for the respondent/employee.
( CORAM : RAVINDRA V. GHUGE, J.)
DATE : 23/09/2016
ORAL JUDGMENT :
1. The petitioner is aggrieved by the award dated 06/05/2000
delivered by the 2nd Labour Court, Ahmednagar vide which Ref.(IDA)
No.57/1993 filed by the respondent has been partly allowed. The
petitioner is directed to reinstate the respondent on his original post
with continuity of service from 01/05/1987, without back wages.
2. By an order dated 28/11/2001, this court admitted the petition
khs/SEPT.2016/4863-d
and did not grant interim relief as the impugned award is dated
06/05/2000 and the petition was lodged on 05/11/2001.
3. By the order of this Court dated 14/10/2003 on the civil
application filed by the respondent u/s 17-B of the I.D.Act, this Court
has granted last drawn wages to the respondent until disposal of this
petition. It is stated by the respondent that he has received
Rs.68,850/- till 2014 and Rs.16,200/-have been deposited in this
Court. The civil application has been filed for seeking withdrawal of
the said amount.
4. Considering the above position, the civil application is allowed
and the respondent is permitted to withdraw Rs.16,200/-.
5. I have considered the strenuous submissions of the learned
AGP on behalf of the petitioner and Mr.Jaybhar, learned Advocate on
behalf of the respondent/employee, on the writ petition.
6. The respondent had contended that he was engaged as a daily
wage labourer from 01/04/1984 at the Pathardi Sub Division. After
having worked continuously, he was disengaged orally on
13/04/1987. He had put in 240 days in continuous employment in
khs/SEPT.2016/4863-d
each calendar year and especially in the calendar year preceding the
date of disengagement.
7. The petitioner had filed its written statement at Exh.C-4. It
was denied that the respondent has worked continuously. It was
denied that he was working on any permanent vacant post. A chart
indicating the number of days worked was produced at Exh.C-7/4 by
which it was indicated that the respondent had worked for 128 days
in between October 1984 to September 1985 and for 205 days in
between October 1985 to September 1986. It was further indicated
that from 09/08/1986 till 30/04/1987, as work was not available,
the respondent had not worked for even a single day.
8. In the light of Section 25-B and 25-F of the I.D.Act, in order to
conclude that the termination amounts to illegal retrenchment owing
to non compliance of Section 25-F, an employee is required to put in
240 days in continuous employment in a calendar year preceding the
date of reference, which is the date of termination. There is no
dispute that the respondent has come with a case of termination
w.e.f. 01/05/1987. As such, from 01/05/1986 to 30/04/1987,
which is the period of reference, the respondent has to establish
completion of 240 days. He has put in 97 days from May 1986 till
khs/SEPT.2016/4863-d
April 1987. It is equally undisputed that besides this chart, which is
placed on record, there was no documentary evidence before the
Labour Court to conclude otherwise. It appears that the impugned
award is based on the presumption that since the chart Exh.C-7/4
indicates the number of days worked, the respondent has established
completion of 240 days. I, therefore, find that the impugned award is
perverse.
9. In so far as the non-compliance of Section 25-G is concerned,
there was no evidence before the Labour Court to conclude violation
of Section 25-G.
10. The respondent was a daily wager who effectively has put in
205 days in between September 1985 till October 1986. He has put
in 128 days in between April 1984 to August 1985. He is out of
employment for the past 29 years. In fact, going by the chart placed
on record, he is not in employment from September 1986 till
30/04/1987.
11. The Hon'ble Supreme Court in the following four judgments
has concluded that when a short spell of employment is followed by a
long duration of unemployment, there cannot be an order of
khs/SEPT.2016/4863-d
reinstatement with continuity and with or without back wages :-
"1. Assistant Engineer, Rajasthan State Agriculture Marketing
Board, Sub-Division, Kota Vs. Mohanlal [2013 LLR 1009],
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]. "
12. In the above judgments, it is concluded that Rs.30,000/- per
year of service put in was appropriate compensation. Even if it is
presumed that the respondent has put in 2 years in continuous
service, he would ordinarily be entitled for a compensation of
Rs.60,000/-. With the order of the civil application passed today, he
has received Rs.85,050/-. As such, I am inclined to grant him
Rs.15,000/- more so as to make the figure of payment as
Rs.1,00,000/-.
13. In the light of the above, this petition is partly allowed. The
impugned award dated 06/05/2000 is modified and in the peculiar
facts of case, considering the order u/s 17-B, the petitioner is
khs/SEPT.2016/4863-d
directed to pay an additional amount of Rs.15,000/- to the
respondent within 12 weeks from today. Needless to state, in the
light of the order on CA No.7001/2016, the petitioner shall withdraw
the amount of Rs.16,200/- as also accrued interest, if any.
14. Rule is made partly absolute in the above terms.
ig ( RAVINDRA V. GHUGE, J.)
khs/SEPT.2016/4863-d
