Bombay High Court
The Superintending Engineer And ... vs Dagadu Vishwanath Mane on 26 September, 2016
Bench: R.V. Ghuge
*1* 5.wp.3892.07.ca.12520.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.3892 OF 2007
1 The Superintending Engineer,
Command Area Development Authority,
Garkheda, Aurangabad-431001.
2 The Executive Engineer,
Jaikwadi Irrigation Division,
Nath Nagar (North), Paithan,
District Aurangabad.
...PETITIONERS
-VERSUS-
Dagadu Vishwanath Mane,
Aged Major, Occupation Not Known,
R/o Trade Union Centre,
Near Medical College,
Ambejogai, District Beed.
...RESPONDENT
WITH
CIVIL APPLICATION NO. 12520 OF 2016
IN WP/3892/2007
DAGADU VISHWANATH MANE
VERSUS
THE SUPERINTENDING ENGINEER AND ANOTHER
...
Advocate for Petitioners : Shri A.P.Chawre.
Advocate for Respondent : Shri Natu Sharad V.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 26th September, 2016
*2* 5.wp.3892.07.ca.12520.16
Oral Judgment :
1 Both the learned Advocates for the original Petitioner and the
Respondent graciously showed their willingness to proceed with the Writ
Petition instead of listing it for final hearing on some other day.
Considering the same, the Civil Application is allowed. The Writ Petition is
taken up for final hearing forthwith by the consent of the parties.
2 I have heard the strenuous submissions of the learned
Advocates for the respective sides.
3 The grievance of the Petitioners / Establishment is that by the
impugned award dated 22.12.2006, the Labour Court allowed Reference
(IDA) No.43/1999 and granted reinstatement to the Respondent as a
Clerk on daily wages with continuity in service and deprived him of the
back wages.
4 Shri Chawre, learned Advocate for the Petitioners, submits
that the documents produced by the Petitioners under the orders of this
Court dated 18.03.2008 specifically indicate the duration of work of the
Respondent from 20.08.1984 till 11.08.1987. However, the documents
placed on record with regard to the number of days worked would
indicate that the Respondent has actually worked in between 01.05.1985
*3* 5.wp.3892.07.ca.12520.16
till 30.04.1987 intermittently. In a few months, he has worked for three to
ten days and in some months, he had worked in between 15 to 25 days.
5 Shri Natu, learned Advocate for the Respondent/ Employee,
has strenuously supported the impugned award. He also relies upon the
Government Resolution dated 24.11.2000 by which all such workmen
working with the Petitioner Establishment having put in five years of
continuous service, are granted benefits under the Kalelkar Award. He,
therefore, submits that by virtue of the Kalelkar Award, the Respondent
needs to be absorbed on a Converted Regular Temporary Establishment
(CRTE) and after five years of such working, he needs to be regularized in
service.
6 I have considered the submissions of the learned Advocates
and I have gone through the petition paper book and the record available,
with their assistance.
7 The Respondent had produced the list of documents below
Exhibit U/5 which is referred to by the Labour Court in it's award. By
placing reliance upon the document at Exhibit U/5/1 and the affidavit in
lieu of examination in chief Exhibit U/9, the Labour Court has come to the
conclusion that the Respondent was working continuously since
*4* 5.wp.3892.07.ca.12520.16
20.08.1984 till 11.08.1987. Perusal of Exhibit U/5/1 would indicate that it
is a letter dated 06.11.1997 addressed by the Respondent to the
Petitioner/ Establishment indicating that he is not in employment from
12.08.1987 as he was unwell. He has produced the medical certificate on
record which indicates that he was suffering from Tuberculosis including
Hepatitis from 20.10.1987 till 31.12.1988 and was fit to join duties on
01.09.1989. It cannot be ignored that the Respondent raised an industrial
dispute about his unemployment w.e.f. 11.08.1987 in 1999. The Labour
Court has granted reinstatement with continuity in service.
8 Considering the impugned award, it is apparent that besides
the request letter at Exhibit U/5/1 and the affidavit of the Respondent,
there was no material before the Labour Court to conclude that the
Respondent had worked for 240 days in continuous service in a calender
year preceding the date of reference which is the purported oral
termination dated 12.08.1987. However, I find from the documents
produced by the Petitioner under the orders of this Court referred to
above, that the Petitioner concedes that the Respondent was working as a
daily wager in between 20.08.1984 to 11.08.1987. It is not in dispute that
the Respondent is not in employment for 29 years after having worked
intermittently for three years.
*5* 5.wp.3892.07.ca.12520.16
9 Considering the above, I deem it appropriate to place reliance
upon the judgments of the Honourable Supreme Court in the following
four cases:-
(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].
10 The Honourable Apex Court in the above four cases has ruled
that in the matters of a short spell of employment followed by a long
duration of unemployment, compensation of Rs.30,000/- per year of
service put in, would be appropriate and grant of reinstatement with
continuity and with or without back wages is impracticable.
11 As such, since the record establishes that the Respondent had
worked for three years and was out of employment for 29 years, this Writ
Petition is partly allowed. The impugned award dated 22.12.2006 is
modified and the Respondent is granted compensation of Rs.90,000/-
*6* 5.wp.3892.07.ca.12520.16
(Rupees Ninety Thousand) in lieu of reinstatement, continuity in service
and all benefits arising out of his employment and non employment.
12 The Petitioner/ Establishment is directed to pay the said
amount of Rs.90,000/- to the Respondent/ Employee within a period of
TWELVE WEEKS failing which the Petitioner shall pay interest at the rate
of 6% per annum on the said amount from January, 2007 till it's actual
payment. It be noted that if the payment of compensation is delayed, the
interest amount shall be paid from the salary of the concerned officer of
the Petitioner/ Establishment who is guilty of delaying such payment. The
interest shall not be paid from the State exchequer.
13 Rule is made partly absolute in the above terms.
kps (RAVINDRA V. GHUGE, J.)
