Executive Engineer, ... vs Malan Haribhau Moon And Others
2017 Latest Caselaw 1309 Bom

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

                   Writ Petition No.5363 of 2015


  Executive Engineer,
  Construction Division,
  Zilla Parishad, Wardha.                          ... Petitioner


       Versus


  1. Malan Haribhau Moon,
     Aged 60 years,
     Occupation - Agriculturist.

  2. Ravindra Haribhau Moon,
     Since deceased, through his
     legal representative :

  2a. Smt. Ujwala w/o Ravindra Moon,
      Aged about 37 years,
      Occupation - Housewife,
      R/o At Sarul, Post Waygaon Nipani,
      Tah. Deoli, Dist. Wardha.

  3. Waman Haribhau Moon,
     Aged 35 years,
     Occupation - Agriculturist.

  4. Mahendra Haribhau Moon,
     Aged 30 years,
     Occupation - Agriculturist.




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        All R/o Sarula, Post : Waigoan (Nipani),
        Tah. & District Wardha.                  ...  Respondents


  Shri P.D. Meghe, Advocate for Petitioner.
  Shri S.A. Kalbande, Advocate for Respondents.


                Coram : R.K. Deshpande, J.

th Dated : 30 March, 2017

Oral Judgment :

1. Notice was issued for final disposal of the matter on

22-9-2015. The parties were served.

2. On 2-3-2017, this Court had passed an order as under :

" Ms. Lanjewar, learned counsel appearing on behalf of Shri Meghe, learned counsel for the petitioner prays for some time.

Respondents, namely, (1) Malan Haribhau Moon, (2a) Smt. Ujwala w/o Ravindra Moon, (3) Waman Haribhau Moon and (4) Mahendra Haribhau Moon are present in this Court. They submit that notice issued by this Court is recently received by them and pray some time for engagement of the counsel. At the request of the

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respondents who are present in this Court, four weeks time is granted to take necessary steps.

Stand over to 30-3-2017.

Next date is also intimated to the respondents who are present in this Court."

3. Rule, returnable forthwith. Heard finally by consent of

the learned counsels appearing for the parties.

4. The Labour Court has answered the reference under

Section 2-A of the Industrial Disputes Act, 1947 in the affirmative

by setting aside the termination of the workman, the husband of

the respondent No.1, with effect from 1-1-1982. The Reference

Court has directed payment of back wages for the period from

23-1-1995 to 7-9-2000. Hence, this petition by the employer.

5. The workman claimed to have served with the petitioner

from 1975 to 1982. It was claimed that the termination was

effected from 1-1-1982 without complying with the provisions of

Sections 25F and 25G of the Industrial Disputes Act. It was a

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specific plea raised before the Reference Court that there was a

delay of 13 years in claiming a reference and the same, therefore,

should have been rejected on that count itself. The Reference

Court records the finding that at the most, the workman will not

be entitled to back wages, but the termination can be set aside

without awarding back wages and the workman would be

entitled to salary for the period from 23-1-1995 to 7-9-2000.

6. The statement of claim nowhere discloses the delay of

13 years caused in claiming a reference. There is no evidence led

to explain the delay. Mere oral statement of making

representations was not enough to explain the delay. The

employer has examined one witness Shri Satish, who stated that

there is no record available to indicate that the workman was in

the employment of the petitioner. It was also informed to the

workman that if muster roll is to be searched, it will have to be

done by approaching Chief Accounts and Finance Officer at Zilla

Parishad, Wardha from the store room. This has not been done

by the workman.

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7. On merits, it was a plea raised that the workman was

never in the employment and there is no evidence produced on

record to show that the workman was either in the employment

or completed 240 days of continuous service preceding the date

of termination. The Reference Court has, therefore, committed

an error in answering the reference in the affirmative.

8. In the result, the petition is allowed. The judgment and

order dated 20-2-2014 passed by the Labour Court in

Reference IDA No.22 of 1995, is hereby quashed and set aside.

The reference stands answered in the negative.

9. Rule is made absolute in above terms. No order as to

costs.

JUDGE.

Lanjewar