Raju Rangdeoji Dhale vs Municipal Council, Wardha, Thr. ...
2021 Latest Caselaw 10596 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH, NAGPUR.

                   LETTERS PATENT APPEAL NO. 102 OF 2011
  Raju s/o Rangdeoji Dhale
  R/o. Channaki Kopara,
  Post : Kopara, Tah. Seloo,
  Distt. Wardha                                     .... APPELLANT

                                 // VERSUS //

  Municipal Council,
  Wardha, Through its Chief Officer,
  Near Civil Hospital, Wardha               .... RESPONDENT

  Mr. S.A. Kalbande, Advocate for appellant.
  Mr. Abhay Sambre, Advocate for respondent.
  ________________________________________________________________

                                CORAM       : A.S. CHANDURKAR AND
                                              G.A. SANAP, JJ.

DATE : 9th AUGUST, 2021.

ORAL JUDGMENT: [PER:- A.S. Chandurkar, J.]

Heard finally with the consent of the learned counsel

for the parties.

2. The challenge raised in the Letters Patent Appeal is to

the judgment of learned Single Judge in Writ Petition No.774/2006.

By the said judgment the writ petition filed by the respondent

herein challenging the award passed by the Labour Court on

08.10.2005 in favour of the appellant was allowed and that award

was set aside.

204.lpa102.2011(Judg).odt

3. It is the case of the appellant that he was engaged as a

labourer on 20.09.1994 with the Municipal Council, Wardha. He

was continued without any break in service. His services were

discontinued on 01.04.1999 orally without complying with the

provisions of Section 25-F of the Industrial Disputes Act, 1947

(herein after referred to as "the Act of 1947"). It was further the

case that about four labourers junior in service to the appellant were

retained and on that count, he approached the Assistant

Commissioner of Labour, who thereafter made a reference. The

Labour Court accordingly entertained those proceedings. In the

written statement filed by the respondent the case of the appellant

was denied. It was stated that the appellant had worked only for the

period from 20.09.1994 to 03.11.1995. From 04.11.1995 the work

of collecting garbage was undertaken by calling tenders from

private contractors. It was denied that the appellant worked on

daily wages till 01.04.1999.

4. The parties led evidence before the Labour Court and

after considering the same, the learned Judge of the Labour Court

recorded a finding that the appellant has worked for the period

from 20.09.1994 to 03.11.1995. It held that the respondent did not

204.lpa102.2011(Judg).odt

file any document to show that the appellant was not in

employment from 03.11.1995 to 01.04.1999. After finding that

there was no compliance with the provisions of Section 25-F and

Section 25-G of the said Act and that the seniority list under Rule 81

of the Maharashtra Industrial Rules (for short, the said Rules) had

not been published, the reference was answered in the affirmative.

While directing reinstatement of the appellant, the relief of back

wages was refused. The respondent being aggrieved by the

aforesaid order filed Writ Petition No.774/2006. The learned Single

Judge found that there was no averment in the statement of claim

that immediately preceding the date of termination, the appellant

had worked for 240 days. It was further found that as per the

evidence led by the respondent, there were five labourers senior to

the appellant and that he was the most junior amongst them. As

there was no violation of the provisions of Section 25-F of the Act of

1947, the award passed by the Labour Court was set aside and the

writ petition came to be allowed. Being aggrieved the appellant has

filed the present Letters Patent Appeal.

5. Shri S.A. Kalbande, learned counsel for the appellant

submitted that the oral termination of the appellant on 01.04.1999

204.lpa102.2011(Judg).odt

was effected without complying with the provisions of Section 25-F

& 25-G of the Act of 1947. It was specifically pleaded in the

statement of claim that the oral termination was effected on

01.04.1999 and therefore, it was for the respondent to show that

the appellant had not worked during that period. The respondent

did not place on record the muster roll and the Labour Court,

therefore, was justified in granting relief to the appellant. He further

submitted that the seniority list as required under Rule 81 of the

said Rules was also not published and juniors in service had been

retained. Reference was made to the adjudication in Writ Petition

No. 5631/2006 (The Chief Officer Vs. Chandrakant Mahadeorao)

decided on 23.09.2010 and it was submitted that this Court did not

interfere with the award passed by the Labour Court granting relief

to the complainant therein. Placing reliance on the decisions in the

case of Anoop Sharma Vs. Executive Engineer, Public Health

Division No.1, Panipat (Haryana) 2010(5) SCC 497, Maharashtra

State Board of Secondary and Higher Secondary Educatin, Amravati

and anr. Vs. Sanjay Krishnarao Shrungare, Amravati 2008(2) CLR

301 and Director, Fisheries Terminal Department Vs. Bhikubhai

Meghajibhai Chavda 2010(1) SCC 47, it was submitted that the

204.lpa102.2011(Judg).odt

appellant was entitled for appropriate relief which was rightly

granted by the Labour Court.

6. Shri Abhay Sambre, learned counsel for the respondent

supported the impugned judgment. According to him, the appellant

was in service during the period from 1994 to 1995 and not

thereafter. He had produced muster roll for that period but failed to

produce any other material to indicate service prior to 04.11.1999.

The respondent had led evidence to show that juniors had not been

retained in service. Work of collecting garbage from November 1995

had been assigned to private contractors by calling for tenders and

therefore, the learned Single Judge rightly found that in absence of

evidence on record the appellant was not entitled for any relief.

7. We have heard the learned counsel for the parties at

length and we have also perused the material placed on record. It is

the case of the appellant that he was engaged with the respondent

from 20.09.1994 and his services were orally terminated on

04.11.1999. The muster roll produced on record at Exhibit-15 by

the appellant is for the period from 20.09.1994 to 03.11.1995.

There is no further material placed on record by the appellant to

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indicate completion of continuous service of 240 days prior to

04.11.1999. On the contrary, it was an admitted position that from

04.11.1995 the work of collecting garbage was assigned to private

contractors. It is pertinent to note that though the appellant could

file the muster roll from 20.09.1994 to 03.11.1995, he did not take

any steps to produce further material nor was any notice given to

the respondent to produce muster rolls on record. This fact has been

noted in the impugned judgment and that is the distinguishable

feature in the present proceedings and in Writ Petition

No.5631/2006. The witness examined by the respondent has in

clear terms stated that the appellant was the junior most amongst

six employees named in the complaint. This aspect has also been

noticed by the learned Single Judge in the impugned judgment.

As regard to the reliance placed on the decisions by the

learned counsel for the appellant there can be no dispute with the

legal proposition laid down therein. However, if the facts of the

present case are concerned, the ratio laid down therein cannot be

made applicable to the case in hand. We find that the learned Single

Judge has considered all the material on record and had concluded

that there was no violation of the provisions of Section 25-F and 25-

G of the Act of 1947. We do not find that there is any illegality

204.lpa102.2011(Judg).odt

committed while allowing the writ petition filed by the respondent.

Consequently, we do not find any merit in the Letters Patent Appeal.

It is accordingly dismissed, leaving the parties to bear

their own costs.

                             JUDGE                                 JUDGE
Prity