Bombay High Court

Sdakharam Bhanudas Gilbile vs Dist.Seeds Officer Beed on 5 May, 2017

Bench: P.R. Bora

                                       1                              WP 2579.98.odt



         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               BENCH AT AURANGABAD


                        WRIT PETITION NO. 2579 OF 1998


        Sakharam S/o. Bhanudas Gilbile,
        Age: 36 years, Occ: Service,
        C/o Shri Pandurang Kale, Trade
        Union Centre, Bashirganj, Beed,
        Dist. Beed.                                   ...       Petitioner

                 Vs.

        District Seeds Officer,
        Behind Canara Bank,
        At Post Tq. & Dist. Beed.                     ...       Respondent

                               ----
Mr. Parag Shahane, Advocate for the Petitioner.
                               ----

                         CORAM : P.R. BORA, J.
                            ...
        DATE OF RESERVING THE JUDGMENT : 20.04.2017
      DATE OF PRONOUNCING THE JUDGMENT : 05.05.2017
                            ...

JUDGMENT:

1. The petitioner has filed the present petition against the

order dated 02.08.1996 passed by the Labour Court, Aurangabad

Reference (IDA) No. 59 of 1989, whereby, the Labour Court has,

though, granted the relief of reinstatement with continuity of

service in favour of the petitioner, has refused to award the back

wages.

2. It is the case of the petitioner that, he was employed on

daily wages by the respondent in the year 1981 and, thereafter, he

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had continuously worked with the respondent till 01.08.1986. It

was his contention that w.e.f. 1.08.1986 his services were orally

terminated. The petitioner, therefore, raised the dispute before the

Deputy Commissioner of Labour, Aurangabad who in turn referred

the said dispute for adjudication to the Labour Court at

Aurangabad.

3. It was the contention of the respondent before the

Labour Court that the services of the petitioner were never

terminated by the respondent and since the petitioner himself

stopped coming for work, no work was provided to him. In the

written statement itself the respondent had taken a stand that, it

was open for the petitioner to immediately join the services with

the respondent.

4. The learned Labour Court after assessing the evidence

on record, held the termination of the petitioner illegal and,

therefore, directed the respondent to reinstate the petitioner with

continuity of service. The Labour Court, however, refused to grant

back wages by observing that his appointment was on purely

temporary basis and he was working on daily wages. The said part

of the order has been challenged by the petitioner by filing the

present petition.

5. Shri Shahane, the learned counsel appearing for the

petitioner submitted that, when the Labour Court has recorded an

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unambiguous finding that the services of the petitioner were

terminated illegally, the order of reinstatement in normal course

must have been followed with the further order of continuity of

service and back wages. The learned counsel further submitted

that, it was the specific contention raised by the petitioner before

the Labour Court that, though, in the meanwhile, he attempted to

secure alternate job, he could not get the same and was throughout

unemployed. The learned counsel further submitted that, the

contention so raised by the petitioner has not been negated by the

respondent. The learned counsel submitted that, once the

employee had raised a plea that he was not gainfully employed, the

onus was shifted on the respondent to rebut the said contention

and to bring on record cogent and sufficient evidence to show that

the employee was gainfully employed and was receiving

substantially similar emoluments which were being received by him

because of his employment with the respondent. In absence of any

such evidence brought on record by the respondent, according to

the learned counsel, there was no reason for the Labour Court to

refuse the relief of back wages.

6. The learned counsel submitted that, the Labour Court

has patently erred in not awarding back wages. The learned

counsel in support of his contentions relied upon the following

judgments:

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i) Tapash Kumar Paul Vs. BSNL and Anr. reported in

AIR 2015 SCC 357.

ii) Deepali Gundu Surwase Vs. Kranti Junior

Adhyapak Mahavidyalaya (D.ed.) and others.

iii) Taranjitshingh I. Bagga Vs. M.S.R.T.C. through the

Divisional Controller, Amravati reported in 2008

(3) MH.L.J. 743.

iv) Post Graduate Institute of Medical Education and

Research, Chandigarh Vs. Vinod Krishnan Sharma

and Another reported in 2000 (III) LLJ (Suppl)

1678.

v) C. Pinto Vs. M/s. Prahladrai Dalmia & Ors. reported

in 1987 (I) CLR (Bom H.C.)

7. None has appeared for the respondent. I have carefully

considered the submissions made on behalf of the petitioner and I

have also perused the material on record. It is not in dispute that,

the petitioner was working on daily wages and was appointed by

oral orders. As noted earlier, it was the case of the respondent that

the petitioner himself left the services and, as such, there was no

question of terminating his services by oral orders. From the

material on record, it is quite evident that, though, it was the

contention of the petitioner that, he was orally terminated by the

then concern officer namely Shri Dhone, the statement so made by

the petitioner has not been corroborated by any other evidence.

5 WP 2579.98.odt

The petitioner did not adduce any other evidence except his own

oral evidence.

8. The evidence adduced on behalf of the respondent

before the Labour Court also needs to be considered. One Manohar

Laxman Anshingkar had deposed before the Labour Court, who was

at the relevant time working at District Seeds Office, Beed, he has

in clear words denied the allegation that the petitioner was

terminated by oral orders. The said witness has further deposed

that the petitioner himself left the job and was not available for the

work at Majalgaon. It has also been deposed by the said witness

that, the respondent has expressed before the Conciliation Officer

that the respondent was ready to immediately take back the

petitioner in service, however, petitioner did not accept the said

offer and was insisting for back wages. The other allegation made

by the petitioner that junior employees were retained was also

denied by the respondent. In the cross-examination of the said

witness the aforesaid facts have remained uncontroverted.

9. In background of the facts as aforesaid, it apparently

does not appear to me that, the Labour Court has committed any

error in refusing the relief of back wages to the petitioner. In the

judgment of the Hon'ble Apex Court relied upon by the petitioner in

the case of Dipali Gundu Surwase V/s. Kranti Junior

Adhyapak Mahavidyalaya (D.ed.) and ors., the Hon'ble Apex

6 WP 2579.98.odt

Court has referred to one earlier judgment of the Apex Court in the

case of General Manager Haryana Roadways Vs. Rudhan

Singh reported in (2005) 5 SCC 591, in the said matter, three

Hon'ble Judges of the Supreme Court considered the question

whether back wages should be awarded to the workman in each

and every case of illegal retrenchment. The factual matrix of that

case was that after finding the termination of the respondent's

service as illegal, the Industrial Tribunal-cum-Labour Court awarded

50% back wages. The Writ Petition filed by the appellant was

dismissed by the Punjab and Haryana High Court. The Hon'ble

Apex Court set aside award of 50% back wages on the ground that

the workman had raised the dispute after a gap of two years and

six months and the Government had made reference after eight

months, the Court then proceeded to observe:

"There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25- F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages

7 WP 2579.98.odt

keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calendar year."

10. It appears to me that, observations so made by the

Hon'ble Apex Court squarely apply to the facts of the present case.

In the present matter also, though, it was the case of the

petitioner that his services were illegally terminated in the year

1986, the reference in that regard came to be made in the year

1989 i.e. after the period of three years. Moreover, the petitioner

was a daily wager appointed on temporary basis. It also cannot be

ignored that, it was the case pleaded by the respondent throughout

that, the petitioner himself left the services and there was no

question of terminating his services orally. It has also come on

record that in the conciliation proceedings itself an offer was given

by the respondent that the petitioner may immediately join the