Forest Development Corporation ... vs Vinayakrao Chintaman Gawande And ...
2021 Latest Caselaw 16679 Bom

                           1                24.WP.3216-2018 JUDGMENT.odt




    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
              NAGPUR BENCH : NAGPUR

            WRIT PETITION NO. 3216 OF 2018

1. Forest Development Corporation of
   Maharashtra Limited through its
   Managing Director Rawal Plaza, Abdi
   Chowk Bezonbagh, Nagpur-4.

2. The Regional Manager,
   Forest Development Corporation of
   Maharashtra Limited Rawal Plaza,
   Abdi Chowk Bezonbagh, Nagpur-4.

3. The Divisional Manager,
   Forest Development Corporation of
   Maharashtra Limited Depot Division
   Ballarasha, District Chandrapur.            PETITIONERS

         ...Versus...

1. Vinayakrao Chintaman Gawande,
   Aged about 44 years, Occ. Service,
   R/o. Maulana Azad Ward, Ballarsha,
   Taluka Ballarsha, District Chandrapur.

2. Bhimrao Angad Pazare,
   Aged about 44 years, Occ. Service,
   R/o. Maulana Azad Ward, Ballarsha,
   Taluka Ballarsha, District Chandrapur.

3. Dewanand Bhaduji Teltumbe,
   Aged about 44 years, Occ. Service,
   R/o. Maulana Azad Ward, Ballarsha,
   Taluka Ballarsha, District Chandrapur.
                                2              24.WP.3216-2018 JUDGMENT.odt




 4. Namdeo Vinayak Bhadke,
    Aged about 43 years, Occ. (Retired),
    R/o. Ravindra Nagar Ward, Ballarsha,
    Taluka Ballarsha, District Chandrapur.

 5. Purushottam Gangaram Atram,
    Aged about 44 years, Occ. (Retired),
    R/o.    Maharana     Pratap     Ward,
    Ballarsha, Taluka Ballarsha, District
    Chandrapur.                                  RESPONDENTS


-----------------------------------------------
Mr. Mohan M. Sudame, Advocate for the Petitioners.
Mr. Chandrakant V. Jagdale, Advocate for the Respondents.
-----------------------------------------------


                   CORAM : AVINASH G. GHAROTE, J.

                   DATED     : 2nd DECEMBER, 2021.

ORAL JUDGMENT :-


            Heard.

2. Rule. Rule made returnable forthwith. Heard finally

with the consent of the learned counsel for the rival parties.

3. The only issue involved in the present petition, is

whether the respondents have been rightly held entitled for full 3 24.WP.3216-2018 JUDGMENT.odt

back wages for the duration 2000-13, the period which they

were out of employment. Mr. Sudame, learned counsel for the

petitioners contends, that the Courts below do not consider the

admissions given by the respondents, inasmuch as, since they

survived for 13 long years, it could not be without being

gainfully employed in some establishment. He invites my

attention to the admissions of the respondents, as recorded in

para 13 of the order of the learned Labour Court, Chandrapur

and submits that considering them, the Courts below were

incorrect in awarding full back wages. Mr. Sudame, learned

counsel for the petitioners, relies upon J.K. Synthetics LTD. Vs.

K.P. Agrawal And Another, (2007) 2 SCC 433.

4. As against this Mr. Jagdale, learned counsel for the

respondents points out, that the evidence cannot be read in

isolation but has to be considered as a whole. He therefore

invites my attention to the findings of the learned Labour Court,

Chandrapur in para 14, where the evidence which has come on

record regarding the manner in which the respondents and their

families have survived for the period of 13 years by doing

menial jobs, like cleaning utensils being supported by the son 4 24.WP.3216-2018 JUDGMENT.odt

and wife, taking hand loans on various occasions, has been

considered, and therefore submits, that the onus which was

upon the respondents to satisfy the grant of full back wages has

clearly been discharged. As against this, he further points out,

that the petitioners did not enter into the witness box at all, and

merely relied upon the cross-examination of the respondents.

He therefore submits, that there is sufficient material on record,

as is indicated by the judgment of the learned Labour Court,

Chandrapur, to justify the award of full back wages. He further

submits, that the learned Industrial Court, Chandrapur also

considers the matter in proper perspective, and therefore, the

impugned judgments ought not be disturbed.

5. A perusal of the judgment of the learned Labour

Court, Chandrapur indicates the discussion in para 14 thereof,

where after considering the admissions relied upon by

Mr. Sudame, learned counsel for the petitioners, the learned

Labour Court, Chandrapur has recorded a categorical finding,

which is as under:

"14. Above referred five complainants have not admitted anywhere that during the period of year 2000 to 2013, they were engaged in gainful 5 24.WP.3216-2018 JUDGMENT.odt

employment of any particular establishment or with anybody else.

On the contrary, complainant - Vinayak Gawande has explained that for running the expenses of his family, he had taken loan from his brother and he was required to sell his house. Complainant - Namdeo has explained that his relative had spent the expenses over the marriage of his son. He further explained that his wife used to work of cleaning utensils. Complainant - Bhimrao Pasare has explained that his sons and his wife were working, because he did not get the job. Complainant

- Purushottam has explained that though he had made attempt to get the job, but he could not succeed. He further explained that he retired on dated 03.04.2016. Complainant - Devanand explained that he did not get the job. Therefore, he was required to take loan on two occasions from his relatives. Admittedly, respondents failed to adduce their evidence against the evidence of complainant. Consequently, there is no any sort of rebuttal evidence from the side of respondents in order to falsify the claim of complainants."

6. It is thus apparent, that the burden cast upon the

respondents, to claim entitlement to full back wages, was duly

discharged and accordingly shifted upon the petitioners.

However, there is no evidence whatsoever led by the petitioners,

in rebuttal to what has been brought on record by the

respondents. In J.K. Synthetics LTD., (Supra) relied upon by 6 24.WP.3216-2018 JUDGMENT.odt

Mr. Sudame, learned counsel for the petitioners, the Hon'ble

Apex Court has observed 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 and Uday Narain Pandey. 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."

(emphasis supplied)

This position has been reiterated by the Hon'ble

Apex Court in Rajasthan State Road Transport Corporation,

Jaipur Vs. Phool Chand (Dead) through Legal Representatives,

(2018) 18 SCC 299, after considering the earlier view in 7 24.WP.3216-2018 JUDGMENT.odt

Deepali Gundu Surwase Vs. Kranti Junior Adhyapak

Mahavidyalaya (D.Ed.) and others, (2013) 10 SCC 324.

7. As held above, by entering into the witness box and

considering the nature of the deposition, the respondents have

clearly discharged their burden which was not rebutted by the

petitioners, considering which, the findings as recorded by the

learned Labour Court, Chandrapur and confirmed by the

learned Industrial Court, Chandrapur, in my considered opinion,

are proper and reasonable, based upon the pleadings and

evidence on record and I do not see any reason, to disturb them.

8. The petition therefore, is without any merits and

accordingly dismissed with no order as to costs.

9. Rule is discharged.

( AVINASH G. GHAROTE, J.)

Signed By:SHRIKANT DAMODHAR BHIMTE S.D.Bhimte Signing Date:03.12.2021 17:05