Bombay High Court
Executive Engineer & Others vs Ashok Bajirao Gaikwad on 29 September, 2016
Bench: R.V. Ghuge
*1* 916.wp.5140.95
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5140 OF 1995
1 Executive Engineer,
Public Works Division,
Ahmednagar.
2 Sub Divisional Engineer,
Public Works Sub Division,
Shevgaon, Dist.Ahmednagar.
...PETITIONERS
-VERSUS-
Shri Ashok Bajirao Gaikwad,
At Post Tajnapur, Tq.Shevgaon,
Dist.Ahmednagar.
...RESPONDENT
...
AGP for Petitioners/ State : Shri P.N.Kutti.
Advocate for Respondent : Smt.Renuka Palve.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 29th September, 2016
Oral Judgment :
1 The Petitioners are aggrieved by the award dated 04.01.1995
by which Reference (IDA) No.56/1989 has been allowed and the
Petitioners are directed to reinstate the Respondent in service with
continuity and full back wages.
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2 The learned AGP on behalf of the Petitioners has criticized the
impugned award. He contends that the Respondent was working on
Employment Guarantee Scheme (EGS). An employee working on EGS has
no right to seek reinstatement or continued employment. This Court has
held, time and again, that employees working on EGS cannot approach
the Labour or Industrial Court under the MRTU & PULP Act, 1971 or
under the Industrial Disputes Act, 1947 for claiming reliefs in connection
with their employment.
3 Smt.Palve, learned Advocate for the Respondent/ Employee,
has supported the impugned award. She contends that the Respondent
had worked continuously and was in uninterrupted service of the
Petitioner from 29.03.1983 upto 23.06.1986. Section 25F of the Industrial
Disputes Act, 1947 was violated while terminating the service of the
Respondent. The documents on record indicate that the Respondent was
working continuously for three years.
4 It is further submitted that this Court has stayed the award on
the condition that 50% of the back wages would be deposited in this
Court. The Petitioners have deposited Rs.72,792/- and the Respondent has
withdrawn Rs.50,000/-. She further submits that this petition deserves to
be dismissed and the Respondent deserves to be granted continuity in
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service and the back wages as have been granted by the Labour Court.
5 Having considered the submissions of the learned Advocates,
I have gone through the petition paper book.
6 The Petitioners have consistently contended that the
Respondent was working on EGS. The Written Statement at Exhibit C-7
puts forth the said contention. The Labour Court has perused the
documents placed on record. The Petitioners had canvassed on the basis of
the documents at Exhibits C-12, C-13, C-14, C-15 and C-17 that the
Tahasildar, Shevgaon had appointed the Respondent. The Executive
Engineer, PWD, had not appointed him. Exhibit C-14 was the joining
report of the Respondent which clearly indicates that he was working
under the EGS.
7 It was on the basis of the documents produced by the
Petitioners that the Labour Court concluded that the Respondent has
completed 240 days in each calender year of service. When the
Respondent as well as the Labour Court relied upon the documents
produced by the Petitioners, the Labour Court should have considered the
total effect of the said documentary evidence coupled with the oral
evidence on record.
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8 If the Tahasildar, Shevgaon had appointed the Respondent, it
was apparent that he was appointed under EGS which is implemented by
the District Collectorate. In my view, the Labour Court could not have
ignored this aspect when these documents pointed towards the
employment of the Respondent being on EGS. The impugned award,
therefore, indicates non application of mind and deserves to be quashed
and set aside.
9 Be that as it may, it needs to be considered that after this
petition was filed in October, 1995, the Respondent was entitled to the
benefits of Section 17B of the Industrial Disputes Act, 1947 though such
an application was not filed. The last drawn wages of the Respondent in
June, 1986 are said to be in between Rs.12/- to Rs.15/- per day. The
wages under Section 17-B would be about Rs.80,000/-. So also, if it is
taken into account that the Respondent had worked for about three years,
he would be entitled to an amount of Rs.90,000/- as compensation for
having put in three years in service, in the light of the ratio laid down by
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
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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 It, however, cannot be ignored that this Court has settled the
issue that workers working on EGS, cannot make claims of reinstatement
or continued employment, considering the fact that the EGS is a
benevolent scheme. As such, I do not find it appropriate to grant
quantified compensation to the Respondent in the light of the ratio laid
down by the Honourable Apex Court in the above four cases.
11 The benefits of Section 17B, however, would always be
available to the employee. It is apparent that the Respondent was not
advised to file an application for claiming the benefits under Section 17B.
The Respondent is in litigation for about 25 years. Considering that
Section 17B wages from the date of filing of this petition would be
roughly about Rs.80,000/-, I am inclined to permit the Respondent to
withdraw Rs.30,000/- from this Court in the light of the fact that the
Petitioners have deposited Rs.72,792/- in 1996 and the Respondent has
already withdrawn Rs.50,000/-.
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12 As such, this Writ Petition is partly allowed. The impugned
award dated dated 04.01.1995 is quashed and set aside and Reference
(IDA) No.56/1989 stands rejected.
13 However, the Respondent shall withdraw Rs.30,000/- (Rupees
Thirty Thousand) from this Court as noted above by tendering tangible
evidence of identity in the form of the Election Commission of India's
Voters Identity Card and an application duly signed and identified by the
learned Advocate. Considering the accrued interest after withdrawal of
Rs.30,000/-, rest of the amount shall be withdrawn by the Petitioners.
14 Rule is made partly absolute in the above terms.
kps (RAVINDRA V. GHUGE, J.)
