Bombay High Court
C.E.O., Z.P. Wardha vs Suresh Kesarimal Chura (Dead) ... on 21 September, 2017
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
LETTERS PATENT APPEAL NO. 6 OF 2010
with
LETTERS PATENT APPEAL NO. 147 OF 2010
IN
WRIT PETITION NO. 5809 OF 2007
...................
LETTERS PATENT APPEAL NO. 6 OF 2010
APPELLANT : The Chief Executive Officer,
Zilla Parishad, Wardha
VERSUS
RESPONDENT/s : Suresh Kesarimal Chura
(Dead, thruough Lrs)
1a. Saroj Wd/o Sureshchandra Chura,
Aged 66 years,
1b. Smt. Mona Kailashcnadra Vyas,
Aged 46 years,
1c. Smt. Preeti Sudhir Purohit,
Aged 42 years,
1d. Shailesh Sureshchandra Chura,
Aged 40 years,
1e. Hitesh Sureshchandra Chura,
Aged 38 years,
All R/o Krushna Nagar, Ward No.31, Wardha.
WITH
LETTERS PATENT APPEAL NO. 147 OF 2010
APPELLANT/s : Suresh Kesarimal Chura
(Dead, thruough Lrs)
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1. Saroj Wd/o Sureshchandra Chura,
Aged 66 years, (Widow)
2. Smt. Mona Kailashcnadra Vyas,
Aged 46 years, (Daughter)
3. Smt. Preeti Sudhir Purohit,
Aged 42 years, (Daughter)
4. Shailesh Sureshchandra Chura,
Aged 40 years, (Son)
5. Hitesh Sureshchandra Chura,
Aged 38 years, (Son)
Legal representatives of Late Sureshandra
Chura all R/o Krushna Nagar, Ward No.31,
Wardha.
VERSUS
RESPONDENT : The Chief Executive Officer,
Zilla Parishad, Wardha
----------------------------------------------------------------------------------------------
Shri S. D. Thakuk, Advocate for the appellant/workman
Shri P. D. Meghe, Advocate for the respondent/employer.
----------------------------------------------------------------------------------------------
CORAM : B. P. DHARMADHIKARI and
ARUN D. UPADHYE, JJ.
DATE : SEPTEMBER 21, 2017.
ORAL JUDGMENT (Per B.P. Dharmadhikari, J.)
1] Heard Shri S. D. Thakur learned counsel for the
employee and Shri P. D. Meghe, learned counsel for the employer in
these letters patent appeals.
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2] Both these letters patent appeals challenge the judgment
dated 08.9.2009 delivered by the learned Single Judge of this Court
in Writ Petition No.5809 of 2007, modifying award of the learned
Presiding Officer, Labour Court, Wardha, in Reference (IDA) No.13
of 2002. Letters Patent Appeal No.6/2010 is filed by the workman,
whereas Letters Patent Appeal No.147/2010 is filed by the employer.
3] The only contention raised by the employer is absence of
provision and power to treat the period from 01.4.1976 till
31.3.2000 as leave or otherwise in the light of direction by the
learned Single Judge to grant continuity in service. The workman
seeks restoration of award of Labour Court.
4] The question referred to the learned Presiding Officer,
Labour Court, Wardha for adjudication reads as under :
"Shri Suresh Kesarimal Chura, R/o Krushna
Nagar, Wardha, who has been terminated from
the employment of the Chief Executive Engineer,
Zilla Parishad, Wardha should be reinstated with
payment of back wages and continuity of service
w.e.f. 01.04.1976."
5] Labour Court delivered the award on 30.7.2007 and
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declared oral termination w.e.f. 01.4.1976, illegal. It was
accordingly set aside and the workman was given reinstatement with
50% back wages and continuity till the date of superannuation. The
Labour Court also found that workman was born on 01.4.1945. In
lieu of reinstatement, 50% back wages were also allowed.
6] While adjudicating Writ Petition No. 5809/2007 filed by
the employer, the learned Single Judge has on 08.9.2009 found it
necessary to modify the above directions of the Labour Court. In
paragraph 12 of the judgment, the learned Single Judge observed
that period from the date of demand i.e. notice dated 31.3.2000 till
the workman attained the age of superannuation, should be counted
for pensionary benefits. Apart from this, other directions issued
while allowing the writ petition partly, read as under :
"13. In view of this, the petition is partly allowed.
The impugned award, insofar as it grants 50% back
wages, is set aside. The respondent would be entitled to
continuity of service. The petitioner may decide as to
how the period of absence from 01.4.1976 till
31.3.2000, when the notice of demand was issued,
should be regulated by granting admissible leave, if any.
The period from 31.3.2000 till the date of
superannuation shall, however, be decidedly computed
as pensionable service."
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7] Shri P.D.Meghe, learned counsel for the employer
submits that the workman was away from 01.4.1976 and his first
overt act is issuing notice of demand dated 31.3.2000. Thus, the
dispute has been raised almost after 24 years and this period being
unreasonable, the reference ought to have been answered in
negative. He has relied upon the judgments reported in (2006) 5
SCC 433 in case of U.P. State Road Transport Corpn. .vs. Babu Ram ;
(2006) 5 SCC 481 in case of Asstt. Engineer, CAD, Kota .vs. Dhan
Kunwar ; (2006) 9 SCC 124 in case of Chief Engineer, Ranjit Sagar
Dam and another .vs. Sham Lal ; 2008 I CLR 240 in case of Lalit
Kumar .vs. Union of India and others ; and the judgment and order in
L.P.A. No.374/2008 dated 25.11.2008 upholding the judgment of
learned Single Judge dated 29.7.2008 in W.P. No.570/2008.
8] Shri Meghe, learned counsel has taken us through the
award and impugned judgment to urge that the workman has not
explained huge delay at all.
9] Shri Thakur, learned counsel for the employer points out
that the workman was a permanent employee and he worked from
1965 till 1976. There was oral termination in 1976 and because of
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family problems, he could not take any legal action. He sent some
letters to his employer intermittently, but could not follow them. He
states that all this has been deposed on oath by the workman and in
his cross-examination, nothing has been brought on record to doubt
his credibility.
10] Shri Thakur, learned counsel also emphasizes that the
employer come up with defence of abandonment of service. The
employer being a public body could have taken action for not
remaining present or abandoning services and could have issued
notice to resume the work, but it was never done. He contends that
in this situation as relationship was never terminated, taking overall
view of the matter, learned Labour Court has delivered award in
favour of the workman and those findings are held not perverse by
the learned Single Judge. He also points out that though, there was
a direction to pay 50% back wages, the learned Single Judge has
deleted it without any justification. As letters at Exhs.9 to 12 are
proved, the workman was entitled to back wages also.
11] Shri Thakur, learned counsel submits that the workman
stood retired after reaching the age of 58 years and therefore, the
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learned Single Judge has given him only benefit of continuity to club
earlier services of 11 years with his service after raising demand i.e.
after 31.3.2000. The workman has expired during pendency of these
letters patent appeals and his legal heirs are now brought on record.
12] Shri Meghe, the learned counsel, in his brief reply,
submits that the workman in his cross-examination, accepted that he
attained the age of superannuation some time in the year 2000 and
as such, the Labour Court could not have accepted the date
01.4.1945 as the date of birth. He also submits that no records of
Zilla Parishad were available in 2000 to verify correctness or
otherwise of the story pleaded by the workman.
13] We find that the continuous employment of deceased
workman from 01.4.1965 till 01.4.1976 is not in dispute. He
happened to be a permanent employee. If he did not report for duty
and absconded, the employer being a public body ought to have
taken necessary action against him. The employer should have
proceeded against him departmentally and dismissed him from
service or terminated as deserter. No such steps have been taken.
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Hence, legally the relationship as employer - workman subsisted till
death of workman.
14] The workman also, on the other hand, has not taken any
immediate action. The letters/communications looked into by the
learned Single Judge were written by him pointing out injustice done
to him. Last of the letters written by him is dated 01.5.1992. The
Labour Court has referred to his letters as Exhs.9, 10, 11 and 12.
Thus, before 31.3.2000 and after 01.4.1976, the workman sent four
letters/communications on different occasions complaining about the
oral termination. He has entered into witness box and proved those
communications. He has been cross-examined, but the cross-
examination is only about non-availability of any acknowledgement
i.e. proof of receipt of those letters by the employer. The employer
has not entered the witness box and has not examined anybody to
rebut this fact. The employer could have produced its Inward-
Outward register or other similar material to show that no such
letters were received by it during said period. The employer did not
send any reply to these letters asking workman to join duties
immediately. Not only this, in written statement before Labour Court
also, he was not asked to join.
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15] Though, the workman should have been more diligent
and acknowledgements should have been procured, that by itself
cannot be used to his prejudice when he has entered the witness box,
deposed on oath and proved the fact of forwarding letters/
communications to the employer. This could have been rebutted by
the employer by deposing on same lines, but that has not been done.
16] Thus, we get the workman who did not join duties after
01.4.1976 and makes a grievance about it belatedly. Because he
makes grievance, the employer takes a particular stand. The
employer otherwise had not taken any action after 01.4.1976 till
filing of written statement before the Labour Court or even
thereafter. The employer nowhere pleads and points out any date on
which it brought relationship with workman to an end.
17] In this situation, we find consideration of controversy by
the Labour Court on merits, not unjust. The learned Single Jude has
looked into the findings recorded by the Labour Court and with some
reservations, decided to accept the same. Here the fact that on date
of demand i.e. on 31.3.2000, jural relationship was in existence and
reference was by a workman who was not terminated by employer,
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(as per employer's version) assumes importance. The learned Single
Judge has accordingly modified the final relief given to the workman.
In the light of this molding, the act of learned Single Judge in
accepting the letters at Exhs.9, 10, 11 and 12 cannot be said to be
without jurisdiction. With full notices of rival contentions, the
learned Single Judge has appreciated the facts and has applied mind
in a particular mode and manner. We do not see any perversity in
said approach.
18] Coming to the case laws cited by Shri Meghe or by Shri
Thakur, learned counsel, we find that when period of limitation is
not prescribed and reasonable period, therefore, needs to be
ascertained, the necessary facts must be brought on record by the
party who is prejudiced because of such delay. Shri Meghe, learned
counsel has pointed out absence of record with the Zilla Parishad,
but then he has not pointed out such a plea taken in the written
statement filed before the Labour Court. No provision in law,
requiring Zilla Parishad to destroy records after a particular number
of years or then the facts showing actual destruction of record, have
been brought on record before the Labour Court. The various
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judgments, which expect ventilation of dispute within reasonable
time, in this situation do not help the appellant and the employer in
any way. Normally, industrial disputes never dies till it is redressed
and here, in the eyes of employer, the relationship was subsisting
even when dispute was raised. Hence, there is no delay or
unreasonable delay at all. We find that the law on the point is
concluded in (1999) 6 SCC 82 in case of Ajaib Singh .vs. Sirhind Co-
op Marketing cum Processing Service Society Ltd., where, while
resorting to doctrine of social justice, Hon'ble Apex Court points out
that employer's plea of delay is not sufficient to deny relief to
workman unless it is coupled with proof of "real prejudice" to him. It
also lays down that even in case of proved delay, relief to workman
can be molded by declining whole or part of back wages. The
Hon'ble Apex Court reiterates this law in (2014) 10 SCC 301 in case
of Raghubir Singh .vs. Haryana Roadways.
19] Hence, when the learned Single Judge has modified the
award and omitted the portion granting 50% back wages to the
workman, there is a direction to regularise that period as leave
period. We find substance in the contention of Shri Meghe that the
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period cannot be accordingly regularised in absence of specific power
with the employer. But, then that does not render the industrial
adjudicator helpless to modify the service conditions or arrangement.
In present situation, we find that continuity has been awarded with
a view to club earlier service of 11 years with the service which the
deceased workman would have rendered after 31.3.2000 till his
superannuation. Shri Meghe, learned counsel has pointed out that
the workman in his cross-examination has accepted that he reached
the age of superannuation some time in 2000 only. However, the
specific date of superannuation as such has not been brought on
record either by the employer or by the workman. The Labour Court
has found in paragraph 22 of its judgment that date of birth of the
second party is 01.4.1945 but then there is no basis for this finding
on record.
20] The workman's service record and date of birth ought to
have been proved by the employer and for not producing records,
adverse inference must be drawn. We, in these facts, presume that
workman retired on last day of year 2000. In this situation, we find
that in order to enable the workman to have benefit of his service,
which could have been rendered after 31.3.2000 till 31.12.2000, his
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salary should be notionally fixed as on 01.01.1996 at minimum and
then worked out accordingly up to 31.3.2000. Thus, the average pay
on which the pension needs to be computed is to be worked out after
notionally working out salary from 01.4.2000 up to 31.12.2000.
21] The aforesaid period shall be added to the period of
service of the workman prior to 01.4.1976 and as per service rules,
compassionate pension or other pension payable in such
circumstances, shall be paid to him for the period from the date of
his superannuation till the date of his death. Accordingly, we modify
the judgment delivered by the learned Single Judge. The exercise
stipulated supra shall be completed within a period of four months
from today and amount due shall be paid to his legal heirs as per
law.
22] The Letters Patent Appeal No. 6/2010 is thus partly
allowed. In view of above discussion, Letters Patent Appeal No.
147/2010 is dismissed. No costs.
JUDGE JUDGE
Diwale
