Bombay High Court
The Chief Officer, Jalgaon ... vs Rafiq Nazir Patel on 22 November, 2017
Bench: R.V. Ghuge
WP/3041/2002 & ORS
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3041 OF 2002
The Chief Officer,
Nagar Parishad, Jalgaon
District Jalgaon. ..Petitioner
Versus
Dnyaneshwar Shridhar Kale
Age Major, Occ. Nil
R/o Plot No.527, Vithal Peth,
Jalgaon, District Jalgaon. ..Respondent
WITH
WRIT PETITION NO.3042 OF 2002
The Chief Officer,
Nagar Parishad, Jalgaon
District Jalgaon. ..Petitioner
Versus
Sanju Sitaram Pardeshi
Age Major, Occ. Nil
R/o Plot No. 14, Mayadevi Nagar,
Jalgaon, District Jalgaon. ..Respondent
WITH
WRIT PETITION NO.3051 OF 2002
The Chief Officer,
Nagar Parishad, Jalgaon
District Jalgaon. ..Petitioner
Versus
Rafiq Nazir Patel,
Age Major, Occ. Nil
R/o Plot No.193, Shivaji Nagar
Jalgaon, District Jalgaon. ..Respondent
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WP/3041/2002 & ORS
2
WITH
WRIT PETITION NO.3059 OF 2002
The Chief Officer,
Nagar Parishad, Jalgaon
District Jalgaon. ..Petitioner
Versus
Sudhakar Narayan Sapkale
Age Major, Occ. Nil
R/o Samata Nagar Zopad Patti
Jalgaon, District Jalgaon. ..Respondent
WITH
WRIT PETITION NO.3060 OF 2002
The Chief Officer,
Nagar Parishad, Jalgaon
District Jalgaon. ..Petitioner
Versus
Santosh Chandulal Bhavsar,
Age Major, Occ. Nil
R/o Plot No.263, Shivaji Nagar
Jalgaon, District Jalgaon. ..Respondent
WITH
WRIT PETITION NO.5363 OF 2002
Jalgaon Municipal Council,
Through it's Chief Officer,
District Jalgaon. ..Petitioner
Versus
Vithal Dashrath Patil
R/o Savkheda, Post. Pimprala,
Taluka and District Jalgaon. ..Respondent
...
Advocate for Petitioner : Shri P.R.Patil
Advocates for Respondents : Shri P.V.Barde
and Shri L.V.Sangit (in WP 5363/2002)
...
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WP/3041/2002 & ORS
3
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: November 22, 2017
...
ORAL JUDGMENT:-
1. Since the petitioner / erstwhile Municipal Council, which is
now a Municipal Corporation, is petitioner in all the petitions and
since respondent / workmen are identically placed, I have heard
learned counsel for the respective sides in all these matters together,
by consent.
2. In all these matters, the petitioner is aggrieved by the
common award delivered by the Labour Court in the Reference
Cases, by which, reinstatement with continuity and full backwages
have been granted, except in the cases of Vitthal Dashrath Patil
(Writ Petition No.6363 of 2002). One respondent Dnyaneshwar
Shridhar Kale (Writ Petition No.3041 of 2002) is said to be
subsequently terminated and is out of employment. One respondent
Sanju Sitaram Pardeshi (Writ Petition No.3042 of 2002) has passed
away. The said Writ Petition, therefore, abates.
3. I have considered the strenuous submissions of Shri Patil,
learned Advocate for the petitioner and Shri Barde, learned
Advocate on behalf of the respondents.
WP/3041/2002 & ORS
4. Shri Patil, primarily submits that in all these matters, an
Industrial Dispute was raised under Section 2A after a passage of
about 5 to 8 years. All these reference cases are, therefore, belatedly
filed and hence are barred.
5. I do not find the said submissions to have any merit for the
reason that the Industrial Disputes Act does not prescribe any
limitation in so far as the raising of an industrial dispute as against
the termination or dismissal is concerned. So also, the Honourable
Apex Court has consistently held that since there is no limitation
prescribed by the statute, even if an industrial dispute is raised after
a period of 5 or 10 years, the employee cannot be ousted from the
Court. At best, he could be deprived of all benefits for the period of
the delay caused. I am, therefore, of the view that the impugned
awards delivered by the Labour Court entertaining these matters
cannot be faulted on the issue of delay.
6. Shri Patil has then strenuously canvassed that all these
respondents were working on daily wages intermittently. None of
them had completed 240 days in continuous service with the
petitioner. A daily wager had no right to reinstatement.
WP/3041/2002 & ORS
7. It is revealed from the impugned award that these
respondents had demanded the production of their attendance
registers and documents pertaining to the payment of their monthly
wages. The petitioner had produced incomplete documents and the
Labour Court, therefore, concluded that some document have been
withheld by the Municipal council. Based on the available material
before the Court and since there was sufficient work available,
though the issue of availability of sanctioned posts was not
considered, the Labour Court concluded, on the basis of the chart
produced, that the respondents had worked for 240 days in
continues employment. It was also recorded that several other daily
wagers were kept in employment and same were also freshly
inducted. The municipal council was not maintaining the seniority
list and as such the termination of these respondents was held to be
illegal and unsustainable.
8. Barring the cases of Dnyaneshwar and Sanju, referred to
above, all other respondents are stated to be continued in
employment with the petitioner. Shri Barde submits that he has
received information that as the petitioner was converted into a
Corporation and about 1300 posts for Class IV workers were
created, most of the respondents have been regularized in
employment, except Dnyaneshwar and Sanju.
WP/3041/2002 & ORS
9. It cannot be ignored that these respondents have been in
employment since this Court refused interim relief to the petitioner /
employer. The impugned awards were, therefore, implemented.
10. In the above backdrop, I do not deem it appropriate to
interfere with the direction of reinstatement issued by the Labour
Court which has been implemented more than 15 years ago.
11. Both the learned Advocates have seriously canvassed their
cases with regard to the aspect of backwages. Shri Patil, strenuously
submits that the principle of "No Work No Wages" needs to be
applied to the case of these respondents. When they had not
performed any work, when they had belatedly raised an industrial
dispute and since a daily wager cannot claim right to wages while
being out of employment, the impugned award to the extent of the
grant of backwages in some of the cases deserves to be set aside.
12. Shri Barde has strenuously defended the grant of backwages
by contending that once any termination is held to be illegal, the
natural consequence is grant of reinstatement with continuity and
full backwages. He submits that depriving an employee of
backwages is an exception and grant of backwages is a Rule.
WP/3041/2002 & ORS
13. The Honourable Apex Court in the matter of J.K.Synthetics
Ltd vs. K.P. Agrawal and another [(2007) 2 SCC 433], has observed
in paragraph No.18 as under:-
"18. Coming back to back-wages, even if the court finds it
necessary to award back-wages, the question will be whether
back-wages should be awarded fully or only partially (and if so
the percentage). That depends upon the facts and circumstances
of each case. Any income received by the employee during the
relevant period on account of alternative employment or
business is a relevant factor to be taken note of while awarding
back-wages, in addition to the several factors mentioned in
Rudhan Singh (supra) and Udai Narain Pandey (supra).
Therefore, it is necessary for the employee to plead that he was
not gainfully employed from the date of his termination. While
an employee cannot be asked to prove the negative, he has to at
least assert on oath that he was neither employed nor engaged
in any gainful business or venture and that he did not have any
income. Then the burden will shift to the employer. But there is,
however, no obligation on the terminated employee to search
for or secure alternative employment. Be that as it may."
14. In Service jurisprudence the aspect of being in gainful
employment post termination is a decisive factor while considering
the grant of backwages. The Apex Court has, therefore, held in
catena of judgments, as like in K.P.Agarwal (supra), that the
WP/3041/2002 & ORS
employee must step into the witness box and aver that he is not in
employment. Evidence should be brought on record that he tried for
an alternate employment and was unsuccessful despite his best
efforts. Once this burden of proving lack of employment is
discharged, the management has to prove that the employee is in
gainful employment.
15. I find from the impugned award that there was no evidence
led before the Labour Court with regard to 'not being in
employment' and efforts for seeking alternate employment. In the
absence of any such averment and evidence, the Labour Court could
not have mechanically granted backwages. Shri Patil submits that
the Municipal Council / Corporation is in a bad financial condition.
Grant of backwages would be a severe financial burden on the
Corporation.
16. Considering the above, I deem it appropriate to deprive the
respondents of the backwages in those cases in which they have so
been granted. So also, a direction to the petitioner needs to be
issued to consider cases of these respondents along with similarly
situated daily wagers for regularization as per their seniority as and
when the post would be available.
WP/3041/2002 & ORS
17. As such, these petitions, except in the case of Vitthal
Dashrath Patil, are partly allowed. The direction to pay backwages,
issued by the Labour Court in the impugned awards is quashed and
set aside. The rest of the award to the extent of reinstatement and
continuity from the date of raising an industrial dispute, is
sustained.
18. Since Dnyaneshwar Shridhar Kale is said to have been
subsequently terminated, there would be no direction with regard to
his proposal for regularization.
19. With regard to Sanju Sitaram Pardeshi, who has passed away,
the directions which would be issued in this judgment would be
complied with to the extent of grant of monetary benefits to the
legal heirs of the deceased / respondent.
20. As such the petitioner shall forward the proposals of these
respondents, except mentioned above, along with all other similarly
situated daily rated workmen, within a period of twelve weeks from
today to the appropriate authority which is said to be the Secretary,
Urban Development Department, by considering their continuous
employment from the date of raising their industrial dispute. The
State / competent authority shall decide the said proposal, strictly as
WP/3041/2002 & ORS
per their seniority and availability of posts, within a period of four
months thereafter. If the posts are available, these respondents
would be considered for regularization. Needless to state, this
direction would not be applicable in cases where the respondents
have already been regularized. Notwithstanding the deprivation of
backwages to the respondents, in the event any backwages have
been paid by the petitioner to any of these respondents, there shall
be no recovery of the same.
21. Rule is made partly absolute in above terms.
22. Since backwages were already denied to Vitthal Dashrath
Patil, Writ Petition No.5363 of 2002 stands dismissed. Rule is
discharged
( RAVINDRA V. GHUGE, J. )
...
akl/d
