Vijay Giri Kishor Giri vs Marathwada Agril University ...
2017 Latest Caselaw 3891 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                  LETTER PATENT APPEAL NO. 176 OF 2012
                                    IN
                      WRIT PETITION NO. 11726 OF 2010

      Vijay Giris/o Kishor Giri,
      Age 45 years, Occ: Nil,
      R/o. C/o. Shri C.N. Shinde,
      Chief Secretary, Trade Union Centre,
      Jalkot road, At post: Udgir,
      Tq. Udgir, District Latur.                           ... APPELLANT

               Versus

1.    Marathwada Agril. University,
      Parbhani, through its Registrar.

2.   Assistant Cotton Research Officer,
     Somnathpur, Dist. Latur.                      ... RESPONDENTS
                                   ...
             Advocate for Appellant : Mr. Yenge Balaji B.
     Advocate for Respondents : Mr. Sakolkar Vijay G. Adv For R/1
                                   ...
                            CORAM : S.C. DHARMADHIKARI &
                                         MANGESH S. PATIL, JJ.

                            DATE       : 03.07.2017.

ORAL JUDGMENT :-

.              We have heard both sides.        We have perused the entire

record.      Admit.         Respondents waive service.      By consent, heard

forthwith.

2. The appellant is aggrieved and dissatisfied with the judgment

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and order of the learned Single Judge allowing the writ petition of the

employer first respondent to this appeal and setting aside the award of

the Labour Court.

3. The award dated 17.07.2010 of the Presiding Officer, Labour

Court, Latur in Reference I.D.A. no. 7 of 2005 directed that the

Marathwada Agricultural University and the Assistant Cotton Research

Center should reinstate the appellant in the services with continuity and

full back wages.

4. Aggrieved and dissatisfied with this award, the original

respondents Marathwada Agricultural University and another filed writ

petition no. 11726 of 2010. By the impugned order dated 21.07.2011,

that writ petition was allowed and the award of the Presiding Officer,

Labour Court in Reference I.D.A. No. 7 of 2005 was set aside.

5. Aggrieved thereby, the employee is before us.

6. We have perused the statement of claim, the written

statement of the university, and the oral and documentary evidence

placed before the Presiding officer of the Labour Court.

7.             Beyond        a      suggestion    in   the   cross-examination             of    the




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appellant-employee the original opponents/respondent before us could

not falsify his version. The chart that was produced before the

concerned Presiding Officer and was exhibited by consent reveals that

compliance is made with requirement set out by Section 25-F of the

Industrial Disputes Act, 1947. The appellant claims that he was working

as a daily wager from 01.01.1984. He completed his duty effectively and

promptly. There was never any misconduct on his part. An oral

termination order was issued on 01.07.1994. There has been no notice,

no inquiry, nor any compensation. Hench such an order is illegal.

8. The learned Presiding Officer has found from the record

namely the written statement and the documents that one of the defence

of the respondents and particularly the Agricultural University was that

the appellant before us was working as a temporary employee for

contigent seasonal work against no vacant permanent post. Secondly,

this appointment was not made by inviting any applications or any

proposals from the employment exchange. There was no interview nor

was any regular appointment order issued. At the same time, it was

urged that the appellant left the service on his own with effect from

07.07.1993 and since then he is not in employment. There is a denial

that such an oral order of termination was issued. In any event, he has

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not completed more than 240 days of service in a year.

9. It is such a defence which has been disbelieved and by

assigning, with greatest respect cogent and satisfactory reasons. The

appreciation of evidence from paragraph no.6 of the order of the

Presiding Officer until the reference therein to the exhibit-CA / chart

reveals, according to the learned Judge, that the appellant before us has

worked continuously from the time he was employed. If it was the case

of the respondent-university that there is an abandonment of service and

he has never reported for work from July 1993 then the burden was

squarely on the university to prove such an assertion. That burden is not

discharged. As far as the chart is concerned, it has not been disputed.

The services were terminated with effect from 01.07.1994. The number

of working days year wise for which the employee/workmen worked has

been set out in the chart. He has worked for more than 240 days except

in the year 1989. It is in these circumstances and when he was allowed

to work only till July 1993, then, for the deficit, the Presiding officer

opined that the workmen's version cannot be disbelieved. He cannot be

called upon to prove the negative. He has discharged the burden and the

case of the employee that he has worked is proved but it was the case of

the employer/university that he had not so worked. It also relied on this

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very chart. Thus, the version of the university was falsified by its own

documents.

10. Such an award of the Labour Court, with greatest respect

should not have been interfered with by the learned Single Judge. This

was not a permissible course and in writ jurisdiction. If there is no

perversity or error of law apparent on the face of record, then, it is not

permissible to interfere in writ jurisdiction. In writ jurisdiction it is not

permissible to reappraise and re-appreciate the same factual materials

merely to record a different opinion. Once the opinion of the learned trial

Judge was not suffering from such serious legal infirmities as would

enable this Court to interfere in writ jurisdiction, then, we agree with Mr.

Yenge that the impugned order and passed by the learned Single Judge

is illegal and deserves to be set aside.

11. Mr. Sakolkar appearing on behalf of the university tried to

persuade us in not interfering with the order of the learned Single Judge.

His argument was that the appellant has not worked and for the period

mandated by the statute. Hence, the termination cannot be said to be

illegal. We are unable to agree. The learned Single Judge in para 11 of

the impugned order has, with greatest respect, recorded an inconsistent

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and contradictory finding. He first comes to the conclusion that the

Labour Courts award and containing the above finding namely of

completion of 240 days of service in the preceding year is recorded

without any basis. With respect, there is no reference to the reasoning

of the learned Presiding Officer of the Labour Court nor the record. The

learned Single Judge, then refers to the point of delay. We do not see

that question to be germane and relevant. If it was the case of the

employee/workmen that his services were terminated in 1994 nothing

prevented him, according to the learned Single Judge, from challenging

alleged oral termination till 2004. It is only in the year 2004 such

reference was filed which is after ten years from the alleged oral

termination. Pertinently, this plea was raised by the first respondent

before us casually and it miserably failed to proved its case of the

Appellant abandoning the service. With greatest respect, this issue may

have some bearing on the ultimate relief to be granted but certainly not

on the legality of the termination. It could be that the

employee/workmen is dis-entitled from claiming the relief of

reinstatement in service with continuity and full back wages, however,

bearing in mind that the legality of termination was the prime issue and

there a factual finding was rendered in favour of the workmen/employee,

then, the learned Judge should have balanced the rights and equities.

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Instead of confirming the order of the Presiding Officer in its entirety,

suitable modifications could have been effected to it, in the interest of

justice.

12. It is this precise course which we intend to follow. We

reverse the order of the learned Presiding Officer of the Labour Court

only to the extent of the ultimate/final relief. In the process, we set

aside the judgment of the learned Single Judge.

13. We direct that since the workmen is now 56 years of age and

cannot be reinstated in service of the Agricultural University for various

reasons, interest of justice would be served, if the agricultural

university/employer is directed to pay a sum of Rupees Four Lakhs as

compensation in lieu of reinstatement, continuity of service and full back

wages. Thus, on the basis of the compensation amount determined and

paid to the appellant before us that would be in full and final settlement

of all his claims. Nothing would then survive. We direct such payment

be made as expeditiously as possible and within a period of eight weeks

from the date of receipt of a copy of this order. Letters Patent Appeal

stands allowed and disposed of accordingly.

[MANGESH S. PATIL, J.] [S.C. DHARMADHIKARI, J.]