Mah. State Warehousing ... vs Ganesh Sampatrao Dhole
2017 Latest Caselaw 3843 Bom

                                                                               LPA.231.08
                                                1

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


                    LETTERS PATENT APPEAL NO. 231 OF 2008
                                      IN
                         WRIT PETITION NO. 640 OF 2007


     Maharashtra State Warehousing
     Corporation, Arvi, District Wardha,
     through its Manager.             ....                              APPELLANT/
                                                                        PETITIONER

                     // VERSUS //            

     Shri Ganesh Sampatrao Dhole,
     aged : Major, Occ. Service, 
     R/o Mahadeo Ward, Lokhandi
     Bridge, Arvi, District : Wardha.  ....                           RESPONDENT


     Mr. N.R. Saboo, Advocate for appellant.
     Mr. S.A. Kalbande, Advocate for respondent.  


                     CORAM :  B.P. DHARMADHIKARI & ROHIT B. DEO, JJ.

DATED : JULY 1, 2017.

ORAL JUDGMENT (PER B.P. DHARMADHIKARI, J.).

1] Award delivered on 7.7.2006 by Labour Court, Wardha

granting relief of reinstatement with continuity to respondent and

maintained by the learned Single Judge of this Court on 3.12.2007

while dismissing Writ Petition No. 640/07 has been questioned by

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appellant employer.

2] On 17.7.2009 in L.P.A. reinstatement was stayed. The

application under Section 17-B of the Industrial Disputes Act, 1947

moved by respondent workman was dismissed by this Court. Mr.

N.R. Saboo, learned Counsel for appellant, points out that period of

employment is extremely short. Oral termination has taken place on

1.4.1988 and for a period of about ten years thereafter, no steps were

taken. Demand notice itself was issued on 28.9.1998 and reference

proceedings were registered in 2000. He contents that thus there

was unreasonable delay in invoking the jurisdiction of Conciliation

Officer and in approaching Labour Court. As such, grant of

reinstatement is totally unwarranted.

3] Without prejudice, he points out that the employer

examined two of its responsible officers who on the basis of records

pointed out that workman had worked only for 191 days during the

above period. Thus, he did not complete 240 days in all from date of

his joining till his termination. As such, finding that he had worked for

240 days continuously in every year is perverse. He also adds that in

absence of challenge to said record maintained by employer and in

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absence of any notice to produce document, this oral evidence ought

to have been accepted.

4] Lastly, he relies upon judgment of Hon'ble Apex Court in

the case of Jagbir Singh .vs. Haryana State Agriculture Marketing

Board & another reported in 2009(9) SCALE 611 to urge that

considering the very short period of employment, relief of

reinstatement could not have been granted and the workman could

have been given reasonable compensation.

5] Mr. S.A. Kalbande, learned Counsel for respondent,

strongly opposed the appeal. He points out that after termination of

present respondent another employee by name Ganpat Gavai was

immediately appointed and that person was in employment even in

2005. He, therefore, states that there is no scope for awarding

compensation in the present matter and reinstatement as allowed

needs to be maintained. He also relies upon the evidence adduced

by workman and inconsistency in evidence of appellant herein to

submit that finding of completion of 240 days is not perverse.

According to him, in the present situation burden was upon the

appellant Corporation to produce record and to prove the daily wage

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paid to respondent on his completion of only 191 days of service as

alleged.

6] Mr. N.R. Saboo, learned Counsel for appellant, in reply

points out that finding on Section 25-H of the Industrial Disputes Act

as recorded by the Labour Court is unwarranted as it did not possess

the jurisdiction.

7] The respondent workman has specifically pleaded that he

was employed as Godown Chowkidar from 12.1.1984 and continued

till his oral termination on 1.4.1988. He has also pleaded that his

monthly salary was Rs.400/- per month and his duty hours were 9

p.m. to 8 a.m. This was denied by appellant by filing Written

Statement. They claimed that during entire period of about three

years, workman had put in only 186 days of service and that he was

being paid daily wages.

8] The workman has entered witness-box and deposed in

tune with his statement of claim. He has been cross-examined but

there is no challenge to his assertion of receipt of monthly wages,

completion of 240 days of continuous service in every year or then

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employment of another person immediately after his termination and

in his place. Impliedly, all his assertions on oath have remained

uncontroverted.

9] The appellant examined one of its officers Shri Vasant

Palkar. He has stated that workman worked from September, 1986

to March, 1988, i.e. for a period of 19 months and put in 191 days of

service. Suggestion given to him that workman worked from

12.1.1984 to 1.4.1988 was denied by the witness. He accepted that

he prepared muster-roll but muster-roll was not filed by him. He also

accepted that in place of workman one Gavai was appointed and he

was working even on the date when his deposition was being

recorded. This deposition, therefore, shows that Gavai appointed

after terminating workman in 1988 was being continued and was

working even on 12.9.2005.

10] The deposition of this witness, therefore, shows that he

does not support statement in Written Statement that workman had

worked only for 186 days. He has given period of 19 months only

and he points out service of 191 days during said period. This 19

months' period is not specifically pleaded in Written Statement.

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11] In the light of this evidence, it is apparent that burden was

upon employer to bring on record the material demonstrating that he

has worked only for period of 19 months or then for a period of 186

days during said 19 months.

12] At this stage of dictation, Mr. N.R. Saboo, learned Counsel

for appellant, has with the leave of Court invited attention to certified

copy of deposition of workman available with him. He submits that

deposition was recorded in handwriting and its first three pages are

only annexed as deposition with Writ Petition filed before this Court.

He submits that latter part of cross-examination, therefore, is not

provided either to learned Single Judge or this Court as an annexure.

We have looked into the latter part also, though Mr. Kalbande,

learned Counsel for respondent, is objecting to this process. In latter

part, the workman has accepted that he was paid Rs.16.90 paise

daily. He further stated that he was not accepting that during period

September, 1986 to March, 1988 he worked for 186 days only. He

has further stated that he was called by employer whenever work is

available. He has also accepted that when regular employee goes

on leave, he was called for work. He has stated that he worked on

daily-rated-basis and he was paid Rs.16.90 for such work. This part

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of cross-examination does not specifically point out the period during

which he was called for work whenever work was available. Whether

he was allowed to work even after termination in leave vacancy or

not, is not very clear. Moreover, the learned Single Judge of this

Court has not looked into this part and Writ Petition has been decided

without referring to it. However, considering the position of appellant

as a Public Corporation, we have looked into that part. We also direct

appellant Corporation to place photo copy of certified copy along with

its true typed copy on record of this L.P.A.

13] The reference by Labour Court to provisions of Section 25-

H of the Industrial Disputes Act is only to highlight the legal obligation

cast upon the employer when work again becomes available. The

Labour Court has found that though work was available, it was not

provided to workman.

14] In the backdrop of the fact that after termination of

workman, one Gavai was appointed and he continued to work till

2005 or even thereafter clearly shows that the oral termination of

respondent was unwarranted. If the work was available, he should

have been continued. If work became available after his termination,

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he should have been given due preference and it could not have

been given to new employee.

15] We, therefore, find nothing wrong with consideration of

controversy either by Labour Court or by learned Single Judge of this

Court.

16] The learned Labour Court was aware of the fact that it was

looking into a dispute which was referred after a gap of almost 12

years. It has, therefore, refused to grant any back wages to

respondent. This denial of back wages has attained finality and

respondent did not assail it. The appellant did not reinstate the

workman after award by Labour Court or then after rejection of Writ

Petition by the learned Single Judge of this Court. Thereafter,

reinstatement was stayed by this Court in L.P.A. on 17.6.2009. That

interim order is operating even today.

17] The contention about grant of compensation to respondent

in lieu of reinstatement needs rejection, as after termination of his

services, Shri Gavai came to be appointed and continued for long

time. In judgment reported in the case of Jagbir Singh (cited supra),

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employee Jagbir was daily wager who worked from 1.9.1995 till

18.7.1996 and his termination was found violative of Section 25-F of

Industrial Disputes Act. He was not substituted by any fresh

employee. The length of service put in by him was less and hence in

these facts the Hon'ble Apex Court has found it proper to allow

compensation in lieu of reinstatement. In present facts, when

immediately after termination another person substituted respondent,

work was very much available and hence, grant of compensation

cannot be accepted as a just relief. New recruit was continuing even

on the date when approach notice was issued. Injustice to

respondent workman was therefore continuous one. The industrial

dispute had not died due to lapse of time.

18] As we are not inclined, the contentions of appellant need

to be dismissed. If the L.P.A. is dismissed, respondent workman

becomes entitled to back wages for the period from award of Labour

Court, i.e. from 7.7.2006 till his reinstatement, i.e. almost for a period

of 11 years. In facts noted supra, when interim stay granted by this

Court has operated till today, we direct appellant Corporation to pay

him back wages of 1/3rd of the total back wages for said period.

Thus, wages payable to respondent for period from 7.7.2006 till his

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reinstatement shall be calculated and 1/3rd portion thereof shall be

paid to him within four months from today. He shall also be reinstated

in the meanwhile.

19] Accordingly, we partly allow the the L.P.A. only to the

extent of quantum of back wages and maintain rest of the award of

Labour Court as it is. No costs.

                     JUDGE                                              JUDGE.

     J.