Bombay High Court
Executive Engineer & Ano vs Dinesh S/O. Namdeorao Patil & Ano on 23 November, 2017
Bench: B.P. Dharmadhikari
1 lpa315.10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
LETTERS PATENT APPEAL NO. 315 OF 2010
(ARISING OUT OF WRIT PETITION NO. 686 OF 2009).
1) Executive Engineer, Public
Works Department, Division-III,
Nagpur,
2) Sub-Divisional Officer, Public
Works Department, Sub-Division
Umrer, Umrer, Dist. Nagpur. ..... APPELLANTS.
....Versus....
1) Dinesh s/o Namdeorao Patil,
aged about 39 years, R/o Ukadwadi,
Tah. Umrer, Dist. Nagpur,
2) Manoranjan s/o Maruti Deogade,
aged about 56 years, R/o Saiki,
Tah. Umrer, Dist. Nagpur. ...... RESPONDENTS.
Mr. H.R. Dhumale, Assistant Government Pleader for the appellants,
CORAM : B.P. DHARMADHIKARI & MRS. SWAPNA S. JOSHI, JJ.
DATED : NOVEMBER 23, 2017.
B.P. DHARMADHIKARI
ORAL JUDGMENT (PER , J.)
1] The learned Single Judge of this Court vide judgment
dated 1.9.2009 delivered in Writ Petition No. 686/09 upheld the relief
2 lpa315.10
of reinstatement with continuity granted by Labour Court as also by
Industrial Court but brought down full back wages to 25%. This Court
in L.P.A. on 17.9.2010 admitted L.P.A., granted ad-interim relief of
reinstatement after taking on record statement that amount of back
wages as awarded by learned Single Judge has already been
deposited. This interim stay has been confirmed on 25.11.2010. It
appears that on that day Shri D.C. Naukarkar, learned Counsel
appearing for respondents/workmen, sought time to apply for
withdrawal of amount. However, that application has not been filed till
date.
2] Though learned A.G.P. has invited our attention to two
Complaints (ULP) filed vide Complaint (ULP) No. 16/98 and
Complaint (ULP) No. 15/98, first adjudication therein by third Labour
Court on 27.12.2001, the common order dated 10.2.2003 passed by
Industrial Court remanding the matter back to Labour Court to answer
the issue whether provisions of Industrial Disputes Act, 1947 were
attracted and the later common judgment delivered by very same
Labour Court again granting reinstatement with continuity and full
back wages, we do not wish to go into all these niceties. By said
judgment dated 18.8.2003 Labour Court declared termination of
complainant before him with effect from 1.1.1998 as an unfair labour
3 lpa315.10
practice falling under Item 1 of Schedule IV of the Maharashtra
Recognition of Trade Unions and Prevention of Unfair Labour
Practices Act, 1971 (hereinafter referred to as "the Act No. 1 of 1972).
Consequently, it granted relief of continuity with full back wages. The
employer then approached Industrial Court in Revision Petitions
(ULPN) No. 259/03 & 260/03. Vide order dated 26.7.2004 the
Industrial Court dismissed those Revisions preferred under Section
44 of Act No. 1 of 1972. This concurrent adjudication was then
questioned in Writ Petition No. 686/09 and learned Single Judge has
found no substance in it vide judgment dated 1.9.2009. However,
because of readiness and willingness shown by learned Counsel for
workmen, quantum of back wages was brought down to 25% from the
date of dismissal till reinstatement. The learned Single Judge has
modified the adjudication by Labour Court only to that extent.
3] Mr. H.R. Dhumale, the learned Assistant Government
Pleader for the appellants, submits that the respondent no.2
Manoranjan had completed 56 years when L.P.A. was filed in 2009
and as such, by this date must have reached the age of
superannuation and gone out. In so far as the other respondent
Dinesh is concerned, he claims ignorance about actual joining either
by Dinesh or Manoranjan. He submits that after 2009 he has not
4 lpa315.10
received any instructions from the Department in this connection.
However, as there was stay given by this Court, both of them have
admittedly not joined the employment.
4] He submits that burden to prove completion of 240 days of
continuous service was upon the respondents and they have failed to
discharge it. He invites our attention to consideration by the Industrial
Court in paragraph no. 7. According to him, the Industrial Court has
erroneously treated "continuous service" to be admitted fact. He has
invited our attention also to memo of Complaints (ULP) filed by
respective complainants and written statement filed thereto to show
that fact was very much in dispute. He, therefore, contends that
Industrial Court has proceeded on a wrong premise and ignored
specific ground raised vide ground no. 14 in Revision (ULP) under
Section 44 before it. Thus, there is failure to exercise jurisdiction.
5] According to learned A.G.P., learned Single Judge of this
Court has fallen into same error. When there is no evidence of
completion of 240 days of continuous service, the contention that
provisions of Section 25-F of the Industrial Disputes Act have not
been complied with is erroneous and inconsequential. He, therefore,
prays for allowing of L.P.A. and for dismissal of Complaints (ULP).
5 lpa315.10
6] Nobody appears for respondent nos. 1 & 2.
7] It is to be noted that in their respective complaints,
respondents point out that they have worked continuously either from
February, 1991 or then February, 1993. At the end of paragraph no.1
of Complaints (ULP), they have also specifically submitted that they
were in continuous service from their joining till date of their illegal
termination. They have pointed out that they were neither appointed
by Tahsildar nor their appointment was under recommendation of
Tahsildar, who acts as Competent Authority under Employment
Guarantee Scheme. This material has been looked into by Labour
Court as also by Industrial Court. Though evidence of witnesses of
employer has not been made available for our perusal, its discussion
in paragraph no. 11 of the judgment of Industrial Court dated
26.7.2004 shows that the appellant employer did not produce form
no. 7 for showing that names of complainants were recommended by
Tahsildar under Employment Guarantee Scheme. In paragraph no.
12 the learned Member of Industrial Court has also noted that
employer produced copies of muster for showing wages paid to
respective complainant for period from 6.10.1997 upto 26.12.1997.
This material along with evidence has been looked into.
6 lpa315.10
8] Perusal of written statement filed by employer does not
show a specific denial of initial date of entry into service, i.e. as
February, 1991 or then as February, 1993. Order of termination is
dated 29.11.1997 and services have been brought to an end on
1.1.1998. Thus, workmen who joined services in February, 1991 or
February, 1993 have continued upto 29.11.1997.
9] The employer has produced only documents of EGS work
done by complainants for period from 16.10.1997 to 26.12.1997.
Thus, nature of work done by them from February, 1991 or February,
1993 till 1.1.1998 has not been brought on record. If employer has
got records only for a period of about two months to show EGS work,
it is obvious that it must possess other records also but then same
have not been produced to prove the true and correct position. The
appellant would do so only if production of records is against its
interest and, therefore, in favour of respondents. If for long period
from February, 1991 or February, 1993 till 1.1.1998 employer can
demonstrate EGS work only of two months, an adverse inference
rightly needs to be dawn. After 26.12.1997 till their termination on
1.1.1998 the respective complainant/workmen must have done some
other work, i.e. non-EGS work. It also follows that before 16.10.1997
they have again done non-EGS work.
7 lpa315.10
10] The discussion by Industrial Court shows how EGS work
can be proved by getting necessary records from office of Tahsildar
as also from site where EGS work is actually done. Forms generated
in the process are also taken note of. Absence of such records of
respondents for period mentioned supra, therefore, clearly reveals
falsehood in their contention that respondents were all the while
working as EGS employees. The Industrial Court has in this
backdrop applied its mind and accepted the findings of fact reached
by Labour Court. The learned Single Judge in exercise of writ
jurisdiction has upheld these concurrent findings of fact.
11] We have perused the relevant judgments of Labour Court,
Industrial Court as also judgment delivered by the learned Single
Judge. The learned Single Judge has with proper reasoning
endorsed the concurrent findings. We do not see any jurisdictional
error or perversity.
12] The learned Single Judge has brought down back wages
to 25%. Instead of awarding 100% back wages from the date of
termination, i.e. from 1.1.1998 till reinstatement, the learned Single
Judge has accepted offer of workmen and given to them 25% of the
back wages with continuity. Thus, for period from 1.1.1998 till
8 lpa315.10
1.9.2009 the respondents are entitled only to 25% of the salary with
continuity.
13] As thereafter on 17.9.2010 in L.P.A. there is an interim
direction, the respondents could not join and, therefore, are out of
employment even today. Respondent no.2 Manoranjan cannot now
join back. The fate of other respondent, namely, Dinesh is also not
on record. If at this stage they are to be reinstated, Dinesh may get
back wages for the period from 1.1.1998 approximately for a period of
20 years. If grant of wages at 25% is upheld, he will get roughly
salary of about five years.
14] In this situation, we find that when respondents were
working on daily wages and not holding any post, the grant of wages
at 25% to respondent no.2 Manoranjan, who must have
superannuated already after 1.9.2009 till date of superannuation
would be unjust. We make it 50%. Thus, respondent no.2
Manoranjan will get back wages at 25% from 1.1.1998 till 31.8.2009
and thereafter at 50% from 1.9.2009 till his superannuation.
15] Dinesh, who may be now not more than 48 years old will
get back wages at 25% only from 1.1.1998 till his reinstatement. If he
9 lpa315.10
is not already working and is interested in reinstatement, he shall
report back to his employer within next one month. If he does not
report back, he will not earn the back wages or continuity.
16] Both the respondents shall, however, be given the benefit
of continuity. Thus, the judgment and order delivered by third Labour
Court in their respective Complaints (ULP) on 18.8.2003 is modified
to that extent.
17] The Letters Patent Appeal is thus partly allowed and
disposed of. No costs.
JUDGE. JUDGE.
J.
