Bombay High Court
Chief Officer,Ahmednagar ... vs Laxman Vishwanath Bagal on 11 May, 2017
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5544 OF 1999
Chief Officer,
Ahmednagar Municipal Council,
Ahmednagar.
...PETITIONER
-VERSUS-
Laxman Vishwanath Bagal,
Age : Major,
Occupation : Service,
R/o Savedi,
Taluka and district Ahmednagar.
...RESPONDENT
...
Advocate for Petitioner : Shri V.S.Bedre.
Advocate for Respondent : Shri P.V.Barde.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 11th May, 2017
Oral Judgment :
1 The Petitioner is aggrieved by the award dated 23.12.1997 by
which the Labour Court has allowed Reference (IDA) No.80/1993 and
has directed the Petitioner to induct the Respondent/ Workman on daily
wages at the prevailing rate.
2 While admitting this petition on 09.07.2001, this Court
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refused interim relief to the Petitioner.
3 I have heard the strenuous submissions of Shri Bedre, learned
counsel for the Petitioner and Shri Barde, learned counsel for the
Respondent.
5 There is no dispute that though this Court did not grant any
interim relief in favour of the Petitioner, the Petitioner Authority has failed
to implement the impugned award dated 23.12.1997. This aspect would
become relevant while quantifying compensation to the Respondent.
6 It is equally undisputed that after the Respondent/ Workman
raised the industrial dispute and the reference was addressed to the
Labour Court, he has merely pleaded in the statement of claim that he was
working as "Majdoor" from 01.01.1988 till 01.03.1991. The nature of
work performed by him is not stated in the statement of claim. It is
averred that he used to be given the work for about 15 to 20 days in each
month and that is how he has continuously worked in the above stated
period.
7 The Petitioner filed it's Written Statement and denied that the
Respondent was working continuously. A chart was produced before the
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Labour Court to indicate that the Respondent had worked for 56 days in
1988, 87 days in 1989 and 68 days in 1990. However, the Petitioner
Authority neither signed the said chart nor did the Petitioner lead any
evidence before the Labour Court. The Respondent stepped into the
witness box and merely averred that he had worked from 01.01.1988 till
01.03.1991. Even in the oral deposition, the Respondent did not narrate
the nature of work allotted to him.
8 I do not find from the award that a notice for production of
certain documents was issued by the Respondent and that the Labour
Court had allowed such an application and ordered the Petitioner to
produce such documents. Similarly, there is no mention of any adverse
inference having been drawn against the Petitioner for having not
produced any record. It is apparent from paragraph 7 of the impugned
award that the Labour Court has concluded that as the Petitioner
Establishment did not step into the witness box, the Labour Court is
accepting the oral testimony of the workman that he was orally
terminated from 01.03.1990. Based on this presumption, the Labour Court
concluded that the oral statement of the Petitioner that he has worked
from 01.01.1988 to 01.03.1990 needs to be accepted.
9 It is trite law that the onus and burden of proving continuous
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employment is on the workman. Had the Respondent issued the notice for
production of documents and had the Labour Court directed such
production, non production of these documents would have been a
ground for drawing an adverse inference against the Petitioner.
10 In the light of the above and in the absence of any evidence to
conclude that the Respondent had worked for a continuous period of 240
days in each calender year and especially in the 12 calender months prior
to the date of the purported termination in the light of Sections 25-B and
25-F of the Industrial Disputes Act, 1947, I do not find that the impugned
award could be sustained.
11 It, however, cannot be ignored that though this Court
declined interim relief to the Petitioner, the impugned award has not been
implemented for the last 18 years. It is for this reason, that I am imposing
costs on the Petitioner to be paid to the Respondent so as to reduce the
rigours of litigation suffered by him.
12 Considering the above, this Writ Petition is partly allowed.
The impugned award dated 23.12.1997 is quashed and set aside and
Reference (IDA) No.80/1993 stands answered in the negative. For the
reasons recorded as above, the Petitioner shall pay quantified costs as
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compensation to the Respondent of the sum of Rs.50,000/- (Rupees Fifty
Thousand) within a period of TWELVE WEEKS from today.
13 Rule is made partly absolute in the above terms.
kps (RAVINDRA V. GHUGE, J.)
