Bombay High Court
The State Of Mah vs Gorakhnath Khillari on 9 March, 2017
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 2329 OF 1998
Sub Divisional Officer,
Deolali Pravara Sub Division,
at Deolali Pravara, Tq.Rahuri,
District Ahmednagar.
...PETITIONER
-VERSUS-
Shri Gorakhnath Rangnath Khilari,
at Sarode Vasti, Kangar Road,
Tq.Rahuri, District Ahmednagar.
...RESPONDENT
...
AGP for Petitioner : Ms.S.S.Raut.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 09th March, 2017
Oral Judgment :
1 The Petitioner is aggrieved by the award dated 30.01.1996 by
which Reference (IDA) No.14/1992 has been partly allowed and the
Respondent is granted reinstatement without back wages and without
continuity.
2 Despite service of the court notice, the Respondent has not
chosen to enter an appearance either through an Advocate or in person.
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3 While admitting this petition, interim relief was not granted.
The learned AGP is not able to make a statement as to whether, the
Respondent is in employment since the Petitioner/ Department has not
submitted any information despite the correspondence from the learned
AGP.
4 The learned AGP has strenuously canvassed that the
Respondent was working under the Employment Guarantee Scheme
(EGS). There was no employer-employee relationship with the
Respondent. Considering these aspects, neither the reference was tenable
before the Labour Court, nor is the Kalelkar Award applicable.
5 In the light of the submissions of the learned AGP, I have gone
through the petition paper book.
6 The Written Statement at Exhibit C-1 was filed by the
Petitioner before the Labour Court. The Respondent had contended that
he was working with the Petitioner from 22.09.1983 till 30.08.1985. It
was canvassed in the Written Statement that the Respondent was engaged
on EGS. The work of Mustering Assistant is available only under the EGS.
As the Petitioner had not produced any documentary evidence to indicate
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that the Respondent was working on EGS or that his name was entered in
the EGS register and that the EGS identity card was issued to him, the
Labour Court held that the Respondent was not working on EGS.
7 It also appears from the record that the Respondent was
issued with the transfer order signed by the Executive Engineer
transferring him from Wadala Sub Division, Shrirampur to Deolali Pravara
Sub Division on 06.09.1983. Exhibit C-4 was the chart prepared by the
Petitioner placed before the Labour Court indicating that he was working
continuously from September, 1983 till August, 1985.
8 Considering the above, I do not find any reason to cause an
interference in the conclusions of the Labour Court to the extent of the
Respondent having completed two continuous years in employment. It
cannot be ignored that though the Respondent was disengaged after
30.08.1985, he slept over the matter and raised an industrial dispute in
1992 after about seven years. The impugned award is dated 30.01.1996,
which is delivered after 11 years of the Respondent's disengagement.
9 In the following four judgments delivered by the Honourable
Supreme Court, it is held that if an employee has worked for a short
duration and his disengagement is followed by a long spell of
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unemployment, granting reinstatement with continuity would be
impracticable and the compensation of about Rs.30,000/- per year of
service put in by the employee would be commensurate:-
(a) Assistant Engineer, Rajasthan State Agriculture Marketing
Board, Sub-Division, Kota Vs. Mohanlal, [2013 LLR 1009];
(b) Assistant Engineer, Rajasthan Development Corporation and
another Vs. Gitam Singh, [(2013) 5 SCC 136];
(c) BSNL Vs. Man Singh, [(2012) 1 SCC 558]; and
(d) Jagbir Singh Vs. Haryana State Agriculture Marketing Board,
[(2009) 15 SCC 327].
10 In the light of the above and in the event, the Respondent has
not been reinstated in service pursuant to the impugned award, this Writ
Petition is partly allowed. The impugned award dated 30.01.1996 is
modified by directing the Petitioner to pay compensation of Rs.60,000/-
(Rupees Sixty Thousand) to the Respondent within a period of TWELVE
WEEKS from today in lieu of reinstatement and further benefits.
11 It be noted that in the event the Respondent has been
reinstated in service, the direction to pay compensation would stand
recalled, the direction granting continuity by the Labour Court would
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stand sustained and the Respondent would then be entitled for such
service benefits to which he would be legally entitled to pursuant to his
reinstatement.
12 Rule is made partly absolute in the above terms.
kps (RAVINDRA V. GHUGE, J.)
