Digambar S/O. Kisan Ohekar vs The State Of Maharashtra Thr ...
2017 Latest Caselaw 5800 Bom

        wp2056.16.J.odt                                                                                               1/9    


                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                          NAGPUR BENCH, NAGPUR


                                  WRIT PETITION NO. 2056 OF 2016


             Digambar S/o Kisan Ohekar.
             Aged about 62 years, Occ : Unemployed.
             R/o. Shanti Nagar, Old City,
             Akola - 444002.                                .....PETITIONER

                          ...V E R S U S...

        1]  The State of Maharashtra,
              Through its Secretary for Public Works
              Department, Mantralaya, Mumbai.

        2]  The Executive Engineer,
              P. W. D. No.1, Akola.

        3]  The Sub-Divisional Officer,
              P. W. D. Sub-Division No.3, Akola.

        4]   The Member
               Industrial Court, Akola.                           ...... RESPONDENTS.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri A. B. Patil, Advocate for the Petitioner.
        Shri A. A. Madiwale, AGP for Respondents.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                           CORAM  :   S. C. GUPTE, J.

th DATE : 9 AUGUST, 2017.

ORAL JUDGMENT :

Heard learned counsel for the parties.

        02]                The present petition challenges an order passed by the





         wp2056.16.J.odt                                                                                               2/9    

Labour Court, Akola in an unfair labour practice complaint and the

order passed by the Industrial Court, Akola in revision confirming

that order. In view of the notice for final disposal issued earlier,

Rule is issued and made returnable forthwith.

03] The petitioner was appointed on 2nd April, 1984 as

labourer (mazoor)/male coolie with Public Works Department of

the State of Maharashtra. His services were terminated alongwith

110 other employees, who were also similarly appointed as

labourer (mazoor)/male coolie. By the date of this termination

order, many of these appointees had completed more than 2 years

of continuous service. In the petitioner's case, he had completed

more than 3 years of continuous service. The petitioner, in the

premises, filed a complaint of unfair labour practices under

Section 28 read with Item - I of Schedule - IV of the MRTU and

PULP Act before the Labour Court at Akola being U. L. P.

Complaint No.97/88. About 56 other employees, who were part of

the group of 110 employees terminated on 30 th April, 1987 and

who were similarly placed as the petitioner herein, likewise filed a

collective complaint through the Secretary of the Trade Union,

being complaint ULP No.120/1987. While the petitioner's

wp2056.16.J.odt 3/9

complaint was pending before the Labour Court, on 30 th

September, 1992 the Labour Court allowed the collective complaint

of 56 employees (ULP Complaint No.120/1987) and granted relief

of reinstatement to the complainant employees. A revision

preferred by the respondents herein challenging that order was

rejected by the Industrial Court at Akola. Being aggrieved, the

respondents filed a Writ Petition before this Court. During the

pendency of that Writ Petition, the respondents settled the matter

with the complainants whose cases formed part of the subject

matter of the Writ Petition. By way of such settlement, complainant

employees were reinstated in service but without the benefit of

back wages. In fact, as a result of this settlement, nearly 24

employees, who were junior to the petitioner, came to be

reinstated. This reinstatement was preceded by a Government

Resolution of 8th May, 2007 allowing reinstatement of the

employees without back wages. It appears from the record of the

case that the respondents were willing to consider the case of the

petitioner for reinstatement on the same lines as 56 others referred

to above. As in the case of those 56 employees, a suitable

undertaking was called for from the petitioner that he was ready

and willing to forgo back wages in case of his reinstatement.

wp2056.16.J.odt 4/9

Despite this undertaking, it appears, nothing was done in the

matter of the petitioner. All this while, the petitioner's complaint

was pending before the Labour Court at Akola. Finally, when the

complaint was heard, the petitioner pointed out the intervening

facts, some of which have been recounted above and prayed for

reinstatement on the same lines as in the case of the others. The

Labour Court, by its impugned order, rejected the petitioner's

complaint. The matter was carried in revision by the petitioner

before the Industrial Court at Akola. By its impugned order dated

7th October, 2015, the Industrial Court dismissed the revision.

Hence, the present petition.

04] There is no denying that the petitioner's case is similar

to that of 56 complainants, who had filed the collective complaint

(Complaint ULP No.120/1987) in the matter of their termination

by the same order as that of the petitioner. Their complaint was

allowed by the Labour Court and the respondents' revision

therefrom was dismissed. The respondents finally accepted the

verdict of reinstatement, though of course on an assurance by the

complaining employees that they would forgo their claim of back

wages granted by both the Labour Court and the Industrial Court.

wp2056.16.J.odt 5/9

All employees were thereupon reinstated. The petitioner similarly

applied for reinstatement against his giving up of the claim of back

wages. The respondents even appear to have indicated their

willingness to reinstate the petitioner on the same lines and to that

end, even called for a similar undertaking from the petitioner as

submitted by 56 employees who were reinstated. There is no

apparent reason why the respondents should not have reinstated

the petitioner on this basis.

05] The Labour Court appears to have dismissed the

petitioner's complaint on the ground that the petitioner failed to

prove violation of Sections 25-F, 25-G, 25-N and 25-H of the

Industrial Disputes Act, particularly in the face of the fact that the

respondents followed the provisions of Section 25-F of the

Industrial Disputes Act. As in the case of the petitioner, even 56

employees, who were reinstated, had likewise accepted the

compensation offered by the respondents under Section 25-F of the

Industrial Disputes Act. Anyway, these 56 employees gave up their

back wages against the acceptance of this compensation and the

respondents very well acted on their offer of accepting

reinstatement without back wages. Once again, in this behalf, the

wp2056.16.J.odt 6/9

petitioner's case is no different from the case of 56 employees, who

were admittedly reinstated by the respondents.

06] In a similar case (Janrao Jagaannath Bhatkar ..vs..

The State of Maharashtra and Others,decided on 5 th March,

2015), this Court accepted the case of a similarly placed the

petitioner, who was a labourer/coolie appointed with the

respondents and whose services were terminated by the same

order, i.e. order dated 30st April, 1987, by which the petitioner

alongwith 110 others, as noted above, was terminated. As in the

case of the present petitioner, argument before this Court in that

case was that there was no violation of Sections 25-F to 25-H of the

Industrial Disputes Act. This Court negatived the contention of the

respondents and allowed the case of the petitioner before it. The

Court, in terms, held that there did not appear to be any reason to

deny relief to the petitioner on the basis of the Government

Resolution of 8th May, 2007 allowing reinstatement of 56

complainants without back wages, as indicated above.

07] The petitioner, in the premises, deserves relief in his

complaint of unfair labour practice. Unlike in the case of 56 others

wp2056.16.J.odt 7/9

and the petitioner in the case of Janrao Jagaannath Bhatkar,

the petitioner herein, however, has already reached the age of

superannuation in the meanwhile. Learned counsel for the

petitioner, in the premises, prays for wages between 2004, when

56 others were reinstated, and 2012, i.e. date of his

superannuation. Even this relief cannot be fully accepted since it

would go against the principle of no work no pay. All this while,

the petitioner was not doing any work for the respondent and there

is no inquiry into any case of an alternative employment, if any,

taken up by the petitioner in the interregnum. Faced with this

circumstance, this Court will have to apply the principles of equity,

justice and good conscience,and work out, an adhoc compensation.

To that end, on the last date, this Court had called for a working

from the petitioner so as to indicate the loss suffered by him, as a

result of the respondents' failure to extend the same benefits to him

as 56 others. The petitioner has submitted an affidavit working out

his damages on account of loss of salary and pension till date. The

loss, according to this working, is to the tune of about

Rs.12,00,000/-. If one adds the amount of gratuity received by

those amongst 56 reinstated employees, who have superannuated

just as the petitioner, the amount of total loss is said to work out to

wp2056.16.J.odt 8/9

about Rs.17,00,000/-.

08] There is no exact scientific basis for working out the loss

in a case like this. The Court has to simply apply a thumb rule, on

the basis of various attending circumstances. These circumstances,

in the presence case, include the fact that the petitioner is exactly

similarly placed as 56 others, who were complainants in Complaint

bearing ULP No.120/1987; these complainants were reinstated as

of 2004 against their undertaking to forgo their back wages; the

petitioner similarly approached the respondents and even filed an

undertaking to forgo back wages as back as on 26 th May, 2006;

and this Court has found no reason why the respondents should

not have accepted the case of the petitioner as the others. In

other words, having been similarly placed as 56 others and having

offered himself for employment upon reinstatement on the same

condition as the others, the petitioner was denied an opportunity to

work without any fault of his. The petitioner has evidently

incurred a loss as a result, though exact estimation of that loss is

not possible as indicated above. Considering these circumstances

and the working given by the petitioner in his affidavit, which is

noted above, and applying a thumb rule towards giving justice to

wp2056.16.J.odt 9/9

the petitioner on the principle of justice, equity and good

conscience, this Court is of the view that a sum of Rs.5,00,000/-

will be an adequate compensation to the petitioner in the peculiar

facts and circumstances of the case.

09] Rule is accordingly made absolute by quashing and

setting aside the impugned orders of the Labour Court and the

Industrial Court and directing the respondents to pay compensation

of Rs.5,00,000/- to the petitioner. Such compensation must be

paid within a period of six weeks from today.

10] In the event, the respondents fail to pay the

compensation ordered above, the respondents shall pay interest on

this amount calculated at the rate of 9% per annum from the expiry

of six weeks from today and till such payment or realization.

11] The petition is disposed of in the above terms.

JUDGE PBP