Bombay High Court
Shri Laxman S/O Durgaji Borkar vs The Sub-Divisional Officer, ... on 7 November, 2017
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Letters Patent Appeal No. 200 of 2010
In
Writ Petition No.3591 of 1997 (D)
Laxman Durgaji Borkar,
Aged Major, R/o.-Mahadeopura,
C.No.14, Wardha, Tahsil and District Wardha. .... Appellant.
Versus
1) The Sub-Divisional Officer,
Public Works Department, Sub-Division,
Sub-Division, Hinganghat, District Wardha.
2) State of Maharashtra,
through its Secretary,
P.W.D. Department, Mantralaya, Mumbai 400032.
3) Presiding Officer,
2nd Labour Court, Nagpur. .... Respondents.
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Shri S.A. Kalbande, Advocate for appellant.
Shri A.D. Sonak, AGP for resp. no.2.
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Coram : B.P. Dharmadhikari &
Mrs. Swapna Joshi, JJ.
Dated : 07th
November, 2017.
ORAL JUDGMENT ( Per B.P. Dharmadhikari, J.)
The appellant workman questions the judgment delivered by
the learned Single Judge on 14-08-2009 in Writ Petition No.3591 of 1997,
whereby award delivered by 2 nd Labour Court, Nagpur dated 18-08-1997
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in Reference (IDA) No. 77 of 1991 has been set aside. The learned Single
Judge has found that the appellant workman had abandoned his services
and therefore the contention that his termination was not in accordance
with the provisions of Section 25-F of the Industrial Disputes Act, 1947
[for short, 'ID Act'] was erroneous.
2] The 2Nd Labour Court, Nagpur has by an award directed the
employer to reinstate him in the post last held and pay full back wages
from 23-10-1989 when he approached the Conciliation Officer till his
reinstatement.
3] Learned Advocate Shri Kalbande for the appellant, invites our
attention to the reference as made to urge that the dispute regarding the
abandonment was not at all open for adjudication and in any case for such
abandonment appropriate order after departmental enquiry was must. He
heavily relies upon the findings of the learned Labour Court to show that
the employment of the workman and his termination was not in dispute.
The oral termination with effect from 20-04-1986 is established and non
compliance with the provisions of Section 25-F of the ID Act has also
come on record. He submits that there is a finding of fact by the Labour
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Court that case of voluntary abandonment with effect from 07-02-1986 was
not at all established.
4] The learned Advocate for the appellant by inviting our attention
to the judgment dated 14-08-2009 delivered by the learned Single Judge
states that it over looks the dispute as referred and accepts the story of
abandonment. He submits that the finding in paragraph 17 that there was
no effort to join after 18-04-1986 is erroneous. On the contrary, the
approach notice was given and machinery under the Industrial Disputes
Act for concilliation was set in motion. In absence of any termination
order, the abandonment could not have been used to deny the relief of
reinstatement. He has relied upon the judgment of the Hon'ble Apex Court
in the case of Nicks (India) Tools vs Ram Surat and another, reported at
(2004) 8 SCC 222, particularly paragraphs 14 and 19 therein, to submit
that the burden to show abandonment or then justify the termination was
upon the employer and the Labour Court rightly awarded the full back
wages. He submits that even the burden in that respect lay upon the
employer.
5] Today, he has invited our attention to the judgment of the
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Hon'ble Apex Court in the case of Vashrambhai Dhanabhai Vegad vs
State of Gujarat and others, reported at (2017) 2 SCC 508 to urge that
there when the Labour Court had reinstated the workman with 20%
back wages, the Hon'ble Apex Court granted compensation of Rs. 5 lacs
and also ordered its payment in stipulated time.
6] Learned Advocate Shri Sonak, on the other hand, submits that
as the abandonment has been established there is no question of
complying with the provisions of Section 25-F of the ID Act. He relies
upon the judgment of the Hon'ble Apex Court in the case of Assistant
Engineer, Rajasthan Development Corporation and another vs Gitam
Singh, reported at 2013 (5) Mh.L.J. 1 to submit that in case of daily wager
who does not hold any post there is no scope for reinstatement. He points
out that there the Hon'ble Apex Court granted compensation only of
Rs.50,000/-. According to him, in the present matter, even that
compensation cannot be awarded as the workman never attempted to
join duties and was only happy in fighting the Court case. He, therefore,
urged that an adverse inference should be drawn and the judgment of
the learned Single Judge should be maintained.
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7] After hearing the learned respective Advocates, we find that
the fact that the workman was an Oilman from 01-11-1983 and worked till
20-04-1986 has been established by the workman by entering the witness
box. The suggestion was given to him that he voluntary left the job with
effect from 07-02-1986, but he has denied it. He also denied the receipt of
any letters from his employer dated 21-04-1986 and 06-05-1986. He
accepted that he forwarded the demand notice to his employer on
14-10-1988 and in it he gave date of termination to be 10-04-1986. He
accepted that he was paid salary up to 06-02-1986. He also accepted that
he was paid arrears on 07-03-1986.
8] This cross examination itself brings on record the hollowness
in the story of worker being a deserter. Admittedly, he had not submitted
any resignation and he therefore could not have left the job voluntarily on
07-02-1986. If he was absconding, there was no question of he being
paid on 07-03-1986 his wages. It is no doubt true in pleadings he has
pointed out, that he was terminated on 10-04-1986, but then that by itself
is not decisive. The employer always had relevant record with it and
could have produced the same to show that after 07-02-1986 he remained
absent. The employer also could have produced records to show that he
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did not work after 10-04-1986.
9] The reference made by the appropriate Government to the
Labour Court mentions date of termination to be 20-04-1986 and it appears
that no evidence on above lines was produced before the Labour Court.
10] The Labour Court after appreciating oral evidence has
recorded a finding of completion of 240 days' and therefore the violation
of provisions of Section 25-F of the ID Act. The receipt of approach notice
has also been accepted by the employer. The employer did not prove any
reply sent to these approach notices.
11] In paragraph 8, learned Single Judge has considered the
inconsistency about the date of termination. It has taken note of the fact
that in demand notice the date was mentioned as 10-04-1986. Because
of this inconsistency, the finding has been recorded that the workman did
not join from 08-02-1986.
12] The finding by the learned Single Judge, only because of the
inconsistency in the date of termination, cannot be sustained. The
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workman has entered the witness box, was subjected to cross examination
and his evidence has been accepted by the Labour Court.
13] The employer always had all records and better evidence to
rebut workman's contention but the employer failed to do so. The Labour
Court therefore has reached a probable finding in favour of weaker
sections of the society in welfare jurisdiction. The learned Single Judge
could not have overlooked this aspect.
14] We, therefore, find that the conclusion of the learned Single
Judge on violation of Section 25-F of the ID Act, is unsustainable.
15] It is not in dispute that because of the interim orders granted in
Writ Petition, the worker could not join and has superannuated in the
meanwhile and before his termination he has worked only for three years.
In this situation, even if grant of full back wages only is to be upheld, the
worker will be getting wages for past about 21 years as per award till his
superannuation i.e. 23-10-1989 onwards. The date of his superannuation
is not on record. Learned Advocate Shri Kalbande for the appellant
submits that he reached superannuation on 28-02-2010. Learned
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Advocate Shri Sonak disputes this. He points out that the workman was
only a daily wager, the daily wager does not hold a post and therefore
there is no question of his superannuation as such. However, in this
situation, taking overall view of the matter, following the law laid down in
the case of O.P. Bhandari vs. Indian Tourism Development Corpn. Ltd.
and others, reported at (1986) 4 SCC 337 and in the case of Workmen vs
Bharat Fritz Werner (P) Ltd and another, reported at (1990) 3 SCC 565,
1/3rd of the wages payable to the petitioner for period from 20-04-1986
up to date of reaching the age of superannuation can be made over to him.
16] Thus, we modify the award and maintain the relief of
reinstatement, but then as the actual reinstatement is not possible, we
direct that he shall be paid wages calculated at 1/3rd of the wages for
the said period as daily wager. This amount shall be calculated and paid to
the appellant after ascertaining his date of superannuation within next four
months. If the amount is not so paid, the respondents shall pay to him
interest calculated at 8% on it thereafter, till its realization.
17] Accordingly, we partly allow this Letters Patent Appeal. No
order as to costs.
JUDGE JUDGE
Deshmukh
