Bombay High Court
The Sub Divsnl Engineer, Pwd And ... vs Maroti Amrutrao Bramhankar on 27 April, 2017
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 4568 OF 2009
1. The Sub Divisional Engineer,
Public Works Department,
Chandur Railway,
Sub Division, Chandur Railway
2. The Executive Engineer,
Special Project,
Amravati Division, Amravati... PETITIONERS
...VERSUS...
Maroti Amrutrao Bramhankar,
aged about 35 years, Occ. Nil,
R/o. Chinch Fail, Amravati,
Ramdas Chute's House, Amravati,
Tq. And Distt. Amravati ............ RESPONDENTS
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Shri S.B.Bissa, AGP for Petitioners.
Shri N.R.Saboo, counsel for Respondent
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CORAM: R. K. DESHPANDE, J.
th
DATE : 27 APRIL, 2017 .
ORAL JUDGMENT
1] The Labour Court has answered Reference IDA
No. 372 of 1996 in the affirmative, directing reinstatement of
an employee with continuity in service, but without
backwages on the proved violation of Section 25F of the
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Industrial Disputes Act. The contention raised by the
employee that there was violation of Sections 25G and 25H
of the I.D. Act, has been rejected. The employer is before
this Court in this writ petition.
2] Undisputedly, the termination took place with
effect from 01.03.1987. A reference of dispute was sought in
the year 1996 i.e. almost after a period of 9 years. The
employee claimed that he continuously worked for more than
240 days during the period from 1980 to 01.03.1987.
3] The employee entered the witness box and the
employer has also examined the witnesses. The employee
did not produce any document on record to show that he
completed 240 days continuous service preceding the date of
his retrenchment on 01.03.1987, except his own self serving
statement. Irrespective of this, the labour Court recorded the
finding in its judgment as under;
"Therefore, it is clear that if the documents are in existence and
possession they should be produced. It has come in the evidence of
Party No.1 in the form of admission that he has personally verified
the Nominal Muster Rolls from 1980 to 1987 and are available at
Division Office, Amravati, but the said documents not produced.
Thus, it is clear from the said admission that existence of documents
is proved, possession is also proved, but said documents not
produced in spite of order of this Court. It is pertinent to note here
that when they have produced documents for the year 1984-85 then
why not for the year 1985 to 1987 which is best piece of evidence in
possession of party No.1. It is true that burden of proving factum of
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240 days lies on the workman and to prove his case. But it is not
stated any where how it has to be proved. He stated on oath that he
has worked continuously from 1980 to 01.03.1987 which clearly
shows that he has completed 240 days prior to one year before his
alleged termination dated 1.3.1987. Party No.1 is guilty of not
producing record though available with them which can falsify the
claim of Party No.2. There is no explanation come from party No.1
for not production of available record. If there is any justification or
reason for no production of record then there is no need to draw
adverse inference, but in the case in hand, the situation is different.
The existence and possession of document proved nor they filed
specific affidavit to that effect, therefore, inference can be drawn that
said Nominal Muster Rolls produced before this Court from 1.3.1986
to 1.3.1987 would definitely goes against them or proved claim of
Party No.2"
The Labour Court proceeded to record the aforesaid findings
after holding that the Court had directed the employer to
produce the document of muster roll or to file an affidavit of
existence and possession of the documents.
4] The dispute before the Labour Court was
whether the employee has established that he has completed
240 days continuous service preceding the date of
retrenchment on 01.03.1987. Merely because the employer
has failed to produce the muster roll, it does not follow that
the employee can be treated to have completed 240 days
continuous service, particularly when the reference was
sought after inordinate delay of 9 years. In case of delay in
seeking reference, the real question which arises for
consideration is whether the dispute referred to exists or not.
In the recent decision of the Apex Court in the case of
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Prabhakar vrs. Joint Director, Sericulture Department and
another, reported in 2016 (1) All MR 486 (SC), it is held in
paragraph No.25 after considering the earlier decision of the
Apex Court in Raghubir Singh vrs. General Manager,
Haryana Roadways, Hissar, reported in (2014) 10 SCC 301,
relied upon by Shri Saboo, that even the labour Court/
Industrial Court can also hold that there is no industrial
dispute within the meaning of Section 2(k) of the said Act and
therefore, no relief can be granted. In paragraphs 35 and
36, the Court has observed as under;
"35. Let us examine the matter from another aspect, viz. Laches and
delays and acquiescence.
36. It is now a well recognized principle of jurisprudence that a right
not exercised for a long time is non-existent. Even when there is no
limitation period prescribed by any statute relating to certain
proceedings, in such cases Courts have coined the doctrine of laches
and delays as well as doctrine of acquiescence and non-suited the
litigants who approached the Court belatedly without any justifiable
explanation for brining the action after unreasonable delay. Doctrine of
laches is in fact an application of maxim of equity 'delay defeats
equities' "
5] The delayed reference has bearing on the
question of existence of dispute. In the present case, there is
absolutely no material placed on record to show that the
dispute existed as on the date of making reference after
lapse of 9 years from the date of termination of service. The
Labour Court has, therefore, committed an error in holding
that the delay in making reference would at the most be a
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cause for denial of backwages and not for setting aside
termination and granting continuity and reinstatement in
service. The award passed by the Labour Court cannot,
therefore, be sustained and it will have to be quashed and
set aside.
6] In the result, the writ petition is allowed. The
award dated 26.09.2008 passed by the Labour Court in
Reference IDA No. 372 of 1996 is hereby quashed and set
aside. The Reference IDA No. 372 of 1996 is rejected. No
order as to cost.
JUDGE
Rvjalit
