Bombay High Court
Damaji S/O Chintaman Chandewaluke vs The Executive Engineer, Pench ... on 29 November, 2023
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
2023:BHC-NAG:16576
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 5197 OF 2017
Damaji Chintaman Chandewaluke
-Vs.-
The Executive Engineer, Pench Irrigation Management Divn., Nagpur & anr.
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr. J.L.Bhoot, counsel for the petitioner.
Mrs.U.A.Patil, counsel for the respondents.
CORAM : AVINASH G. GHAROTE, J.
DATE : 29TH NOVEMBER, 2023
Heard Mr.Bhoot, learned counsel for the petitioner
and Mrs.Patil, learned counsel for the respondents.
2. The petition questions the judgment of the learned
Labour Court dated 28/07/2010 (page-41) whereby the
complaint filed by the petitioner under section 28 of the
Maharashtra Recognition of Trade Unions and Prevention
of Unfair Labour Practices Act (MRTU & PULP Act) has
been dismissed and so also the judgment of the learned
Industrial Court in Revision No.182 of 2010 which
dismissed the revision by the judgment dated 23/02/2016
(page15)
3. It is the contention of the learned counsel for the
petitioner that for the purpose of invoking section 25-G of
the Industrial Disputes Act, the requirement of completion
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of 240 days is not necessary and since the claim was made
that the juniors to the petitioner were retained, the action
on the part of the respondents in discontinuing the services
of the petitioner would not be sustained in law and both
the Courts below therefore have erred on this count.
4. It is also contended that since names of the persons
are given in the complaint who are juniors to the
petitioner, the burden then shifted upon the respondents to
establish that this was not so, which has not been
discharged.
5. It is trite that when an employee comes to the
Labour Court with the complaint under section 28 of the
MRTU & PULP Act, the burden is upon the
complainant/petitioner to establish the averments made in
the complaint. Merely making a statement that certain
persons named, who are claimed to be junior to the
petitioner were retained, in my considered opinion would
not be enough to discharge the burden. The question of
shifting of burden would only be germane if the initial
burden upon the complainant stands discharged and not
otherwise. In the instant case, it is apparent that except for
naming two persons namely Vinayak Shamrao Mahure and
Prakash Sonkusare and claiming that they were juniors to
the petitioner and retained in employment nothing else has
been brought on record. Mr. Bhoot, learned counsel for the
petitioner does not dispute that there is no document
produced by the complainant on record, in spite of the
denial by the respondents of the above position, to establish
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that the above two persons were indeed employed by the
respondents and were in fact junior to the petitioner. In
this view of the matter, the question of there being any
violation of the provisions of Section 25-G of the Industrial
Disputes Act would not arise. That apart, it has come on
record (para-11, page 14) in the judgment of the learned
Industrial Court that the petitioner/complainant had
worked only for a period of 64 days. Though a plea is
being canvassed that under the provisions of Rule 81 of the
Industrial Disputes Maharashtra Rules, the respondents
establishment was duty bound to maintain a seniority list of
all the employees, it is an admitted position on record that
the complainant did not make any effort to get this list on
record before the learned Labour Court. In that view of the
matter, I do not see any reason to interfere in the
impugned judgments of the learned Courts below. The
petition is therefore, dismissed. No order as to costs.
JUDGE
Signed by: Mr. G.S. Khunte
Designation: PS To Honourable Judge
Date: 30/11/2023 10:23:44
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