Bombay High Court
The State Of Mah vs Madhav Umaji Mekale on 27 September, 2016
Bench: R.V. Ghuge
WP/9637/2012
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 9637 OF 2012
The State of Maharashtra
Through the Deputy Conservator
of Forest, Nanded Forest Division,
Near Mahatma Gandhi Statute,
Nanded. ..Petitioner
Versus
Madhav Umaji Mekale,
at Bachoti, Post Wagad,
Tq. Bhokar, Dist. Nanded.ig ..Respondent
...
Special Advocate for Petitioner : Shri Gaddime Arvind N.
a/w AGP Shri Kutti P.N.
Advocate for Respondent : Shri Shelke Avishkar S.
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: September 27, 2016
...
ORAL JUDGMENT :-
1. Heard learned Advocates for the respective parties.
2. Rule.
3. By consent, Rule is made returnable forthwith and the petition
is taken up for final disposal.
4. The petitioner is aggrieved by the award dated 19.1.2011, by
WP/9637/2012
which, Reference IDA No.2 of 2007 has been allowed and the
petitioner is directed to reinstate the respondent in service with
continuity. Backwages have been denied.
5. Shri Gaddime, learned Advocate for the petitioner has
strenuously contended as under:-
(a) The petitioner is not an "industry" under Section 2(j) of
the Industrial Disputes Act, 1947.
(b) Though the respondent claims to be working from
15.7.1996 till 1.4.2005, as a Watchman, he was actually
working on the Employment Guarantee Scheme ("EGS").
(c) His daily wages were paid from the funds allotted to the
EGS by the Collector of the said district.
(d) The Muster Roll indicates that the respondent was
working on EGS.
(e) The respondent has been reinstated on 16.8.2012.
(f) The petitioner did not lead oral and documentary
evidence and hence the Labour Court has allowed the
Reference.
6. Shri Shelke, learned Advocate has strenuously opposed the
petition. He contends that the Reference proceedings instituted in
WP/9637/2012
2007 have resulted in the award dated 19.1.2011, which is practically
after 4 years. The petitioner has been negligent and merely filed a
Written Statement, but did not lead oral and documentary evidence.
Besides raising contentious issues, the petitioner did not contradict
the case of the respondent and hence the Reference was allowed.
He, therefore, prays that this petition deserves to be dismissed with
costs or in the event, the Court is inclined to remand the matter to
the Labour Court, heavy costs may be imposed on the petitioner.
7.
I have considered the submissions of the learned Advocates
and have gone through the bunch of papers tendered across the Bar
by the petitioners.
8. On the basis of the papers tendered today, Shri Gaddime
points out the attendance register, on the basis of which he contends
that the respondent was always working on EGS. He, however, has
no explanation as to why has the Deputy Conservator of Forests,
Nanded Forests Division, who was the first party in the Reference
proceedings, has not participated before the Labour Court and has
not led evidence. He, however, submits that as the petitioner did
not participate in the proceedings, an employee working on the EGS
is likely to be foisted upon the petitioner.
9. I have dealt with a large number of such cases and invariably it
WP/9637/2012
is noticed that the State or it's instrumentalities, do not participate
in the proceedings before the Labour / Industrial Court / Tribunal.
The matters are not conducted with seriousness. After the verdict is
delivered against the establishment, it is strenuously canvassed
before this Court that because the department did not contest the
matter, that the judgment has been delivered against the
department. The case on hand is yet another example of the kind.
10.
From the papers tendered across the Bar, it appears that the
respondent has been working from 1996 till March, 2005. The issue is
as to whether he was working on EGS or on a project or scheme of
the Forest Department. It ought not to happen that a person working
on EGS is foisted on the petitioner as the department did not
participate in the proceedings before the Labour Court. It is for
these reasons that I am remanding Reference (IDA) No.2 of 2007 to
the Labour Court, Nanded for a decision afresh, but by imposing costs
on the petitioner.
11. Shri Shelke points out that the petitioner has issued a letter
dated 14.9.2016, thereby, shifting the respondent from Survey No.51,
Mauje Wagad, where he was reinstated on 16.8.2012 as a Watchman,
to a Nursery Part II, under the Maharashtra Rural Employment
Guarantee Scheme, which is about 25 kms. away from the place at
which the respondent is presently working. Since the matter is being
WP/9637/2012
remanded, the interest of the petitioner will also have to be
protected since he is vulnerable to the act of the petitioner in
shifting him to EGS, which is likely to defeat his claim before the
Labour Court.
12. In the light of the above, the impugned award dated
19.1.2011, is quashed and set aside. Reference (IDA) No.2 of 2007 is
remitted back to the Labour Court, Nanded on the following
conditions:-
(A) The Deputy Conservator of Forests, Nanded Forest
Division, who was in charge of the department at the time of
the recording of oral evidence, when the respondent filed his
affidavit Exhibit U-5, shall pay costs of Rs.15,000/- (Rs. Fifteen
Thousand only/-) from his own salary to the respondent /
employee, by depositing the said amount before the Labour
Court, Nanded within six weeks from today.
I am issuing the above direction since the laxity and
negligence shown by the concerned officer needs to be
penalised and the State exchequer ought not to be burdened
for the manner of conducting the case.
(B) The litigating sides shall appear before the Labour Court
on 14.10.2016.
(C) Formal notices need not be issued. After the amount is
deposited, the respondent shall withdraw the same as costs.
WP/9637/2012
(D) After appearing before the Labour Court, the petitioner
shall tender it's oral and documentary evidence expeditiously.
(E) The Labour Court shall decide the Reference
proceedings as expeditiously as possible and preferably by the
end of June, 2017.
(F) Till the decision of the Labour Court in the Reference
proceedings, the respondent shall continue to work at Survey
N.51, Mauje Wagad.
(G)
Since the above direction is an interim arrangement,
the Labour Court shall decide the Reference on it's own
merits.
(H) All contentions of the litigating sides are kept open.
13. Writ Petition is partly allowed accordingly. Rule is made
partly absolute in above terms.
( RAVINDRA V. GHUGE, J. )
...
akl/d
