Bombay High Court
Ashok Harichandra Shirsath vs Jalgaon City Municipal ... on 24 July, 2017
Bench: R.V. Ghuge
WP/5787/2016
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5787 OF 2016
Ashok Harichandra Shirsath,
Age 55 Years, Occ. Nil,
r/o Jalod, Taluka Amalner,
District Jalgaon. ..Petitioner
Versus
Jalgaon City Municipal Corporation,
Jalgaon Through its Commissioner,
Jalgaon. ..Respondent
...
Advocate for Petitioners : Shri Deshmukh Anand
Advocate for Respondent : Smt. Kutti-Choudhary Chaitali
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: July 24, 2017
...
ORAL JUDGMENT :-
1. Heard learned Advocates for the respective parties.
2. Rule.
3. By consent, Rule is made returnable forthwith and the
petition is taken up for final disposal.
4. The petitioner is aggrieved by the judgment and award
dated 1.9.2009 by which, the Labour Court, Jalgaon has
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answered Reference (IDA) No.25 of 2004 in the negative.
5. There is no dispute that the Labour Court has concluded
that the petitioner has completed 240 days in continuous service
with the respondent from 1.4.1988 till 1.4.1991. It is equally
undisputed that the respondent has not challenged the
conclusions of the Labour Court that he has worked continuously
for three years.
6. It is trite law that the onus and burden of proving
completion of 240 days in continuous employment lies on the
shoulders of the workman. However, I am not required to go into
this aspect, as the conclusion of the Labour Court based on an
adverse inference drawn due to non-production of documents by
the respondent, has not been challenged by the respondent in
this Court.
7. It is equally settled that in an employment with 'State
Instrumentalities', mere completion of 240 days in continuous
employment would not entitle the claimant to reinstatement in
service. Nevertheless, the Honourable Apex Court has held in
four judgments that if an employee has put in a short tenure in
service and is followed by a long spell of unemployment,
WP/5787/2016
granting reinstatement would be impracticable. Compensation
at the rate of about Rs.30,000/- per year of service can be
granted in lieu of reinstatement claimed by the workman, the
law laid down in the following judgments:-
1. Assistant Engineer, Rajasthan State Agriculture
Marketing Board, Sub-Division, Kota Vs. Mohan Lal [2013
LLR 1009],
2. Assistant Engineer, Rajasthan Development Corporation
and another Vs. Gitam Singh [(2013) 5 SCC 136],
3. BSNL Vs. Man Singh [(2012) 1 SCC 558] and
4. Jagbir Singh Vs. Haryana State Agriculture Marketing
Board [(2009) 15 SCC 327].
8. In the instant case, though the petitioner has claimed that
juniors were retained in service and hence there was a violation
of Section 25-G of the Industrial Disputes Act, none of the junior
employees were examined, inasmuch as no evidence was
brought before the Court as regards their dates of appointment,
the department in which they were working and the nature of
duties performed by them. Merely engaging new persons or
retaining juniors cannot per se amount to non-compliance of
WP/5787/2016
Section 25-G. They must be comparable employees and for the
said purpose, they must be doing the same nature of work and in
the same departments in which, the claimant was working. On
this count, the conclusion of the Labour Court that Section 25-G
was not violated, appears to be sound and proper.
9. It, however, cannot be ignored that once an employee has
established continuous employment for a particular period as is
defined under Section 25-B and if the law of retrenchment is not
followed as defined under Section 25-F, the said employee needs
to be compensated if reinstatement is not possible. In the instant
case, after his dis-engagement as a daily wager, from 1.4.1991,
the petitioner raised an industrial dispute under Section 2A only
in 2004 which is after 13 years. Naturally, it would be
inappropriate to direct his reinstatement after having put in 3
years of service and followed by unemployment for a period of
almost 26 years. So also, there was no evidence before the
Labour Court as to whether the work was available and whether
the petitioner could be reinstated on a non-existing post.
10. Considering the law laid down by the Honourable Apex
Court in the above referred four cases, the Labour Court could
have quantified compensation in lieu of reinstatement. Learned
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Advocate for the Respondent has strongly opposed
compensation.
11. As such, this petition is partly allowed. The impugned
award dated 1.9.2009 is modified and Reference IDA No.25 of
2004 is partly allowed to the extent of granting compensation to
the petitioner at the rate of Rs.30,000/- per year of service put in
by him. The respondent / Corporation shall, therefore, pay a
lump sump compensation of Rs.90,000/- (Rs. Ninety Thousand
only/-) to the petitioner within 12 weeks from today, failing
which, it would carry interest at the rate of 6% P.A. from the
date of the award of the Labour Court.
12. Rule is made partly absolute in the above terms.
13. Learned counsel for the petitioner prays for leave to apply
afresh as a temporary employee. This Court cannot make any
observation about such an application.
( RAVINDRA V. GHUGE, J. )
...
akl/d
