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2007 Supreme(SC) 1119
2007(6) Supreme 64
Supreme Court of india
(From Bombay High Court)
Dr. Arijit Pasayat & D.K. Jain, JJ.
State of Maharashtra — Petitioner
versus
Dattatraya Digamber Birajdar — Respondent
Appeal (civil) 1000 of 2006
Decided on : 27-08-2007
important points
Stale claims are not maintainable.
Burden of proof of having worked for 240 days lies on the worker and not the employer.
Headnote:(a)Industrial Disputes Act, 1947 – Section 25F – Courts below erroneously holding that burden of proof of the respondent having not worked for 240 days lies on the appellant – The burden lies on the workman to prove that he had worked for 240 days. (Para 6)
(2002) 3 SCC 25 – Relied upon.
(b)Industrial Disputes Act, 1947 – Section 25F – Respondent, a daily rated worker, left the employment of the appellant voluntarily to join another establishment from where he was ultimately dismissed – It was not a case of the appellant terminating services of the respondent – Courts below erred in ordering re-instatement that too with back wages. (Paras 6 and 7)
(c)Industrial Disputes Act, 1947 – Section 10 – Respondent seeking reference after eight years of his dismissal – Not maintainable, being stale. (Paras 6 and 7)
Facts of the case :
Respondent was working as a daily wager as Mukadam and was being paid Rs.30/- per day in the Public Works Division, Osmanabad, District Maharashtra since August, 1984. On 10.3.1986 the District Commissioner of Labour, Aurangabad created 52 posts of Surveyor on contract employment. Respondent joined as Surveyor in the office of Divisional Soil Conservation Officer with effect from 3.4.1986 on consolidated pay of Rs.450/- per month. On 25.9.1986 the Deputy Divisional Soil Conservation Officer transferred the respondent to Paranda with effect from 6.10.1986 to the office of Sub-Divisional and Soil Conservation Officer, Aurangabad. On 5.8.1987 Divisional Soil Conservation Officer abolished all the 52 posts of Surveyor engaged on various places as they were on temporary establishment. Accordingly, service of respondent as Surveyor came to be terminated on 20.8.1987. After about eight years, respondent submitted an application for reference in terms of Section 10 of the Industrial Disputes Act, 1947 before Deputy Commissioner of Labour, Aurangabad. It was stated that the respondent was working in the Public Works Department, Aurangabad till 30.4.1986 when he was orally terminated. Prayer was made for continuity of service with back wages. The Deputy Commissioner of Labour made reference under Section 10(1) and 12(5) of the Act to the Labour Court, Solapur for adjudication. The Public Works Department, on receipt of the notice from the Labour Court made enquiries about the service particulars from the office of the Sub-Divisional Soil Conservation officer. By letter dated 9.3.1995, Sub-Divisional Soil Conservation Officer, Osmanabad, informed the Sub-Divisional Engineer that by order dated 18.3.1986 respondent was appointed as Surveyor on contractual employment, and on 25.9.1986 he was transferred to Sub-Divisional Soil Conservation Officer, Paranda. As per order of the Commissioner, Aurangabad appointments of Surveyor on temporary establishment came to an end. Respondent examined himself in support of his claim and exhibited 3 documents. One of the documents purportedly indicated that the respondent worked in the Division till 31st August, 1986. An officer of the Sub-Divisional Soil Conservation Office, Aurangabad was examined in support of the appellant’s case. The Labour Court passed an award, inter alia, holding that (1) termination of respondent with effect from 30.4.1986 was illegal; and (2) he was to be reinstated with back wages i.e. 25% of the back wages. Challenging the aforesaid order, writ petition was filed before the Bombay High Court which was dismissed by impugned order.
Findings of the Court :
The Courts blow erred in facts as well as law. Respondent was not terminated/dismissed by appellant but he left the employment voluntarily and the claim was stale; hence the reference was not maintainable. Burden of proof as to the workman having worked for 240 days lies on the workman and not the employer.
Result : Appeal allowed.
JUDGMENT
Dr. ARIJIT PASAYAT, J.—
1.Challenge in this appeal is to the order passed by a learned Single Judge of the Bombay High Court at Aurangabad. The writ petition filed by the appellant was dismissed. Challenge in the writ petition was to the Award made by the Labour Court, Aurangabad.
2.Background facts as projected by the appellant are as follows :
“Respondent was working as a daily wager as Mukadam and was being paid Rs.30/- per day in the Public Works Division, Osmanabad, District Maharashtra since August, 1984. On 10.3.1986 the District Commissioner of Labour, Aurangabad created 52 posts of Surveyor on contract employment. Respondent joined as Surveyor in the office of Divisional Soil Conservation Officer with effect from 3.4.1986 on consolidated pay of Rs.450/- per month. On 25.9.1986 the Deputy Divisional Soil Conservation Officer transferred the respondent to Paranda with effect from 6.10.1986 to the office of Sub-Divisional and Soil Conservation Officer, Aurangabad. On 5.8.1987 Divisional Soil Conservation Officer abolished all the 52 posts of Surveyor engaged on various places as they were on temporary establishment. Accordingly, service of respondent as Surveyor came to be terminated on 20.8.1987. After about eight years, respondent submitted an application for reference in terms of Section 10 of the Industrial Disputes Act, 1947 (in short the ‘Act’) before Deputy Commissioner of Labour, Aurangabad. It was stated that the respondent was working in the Public Works Department, Aurangabad till 30.4.1986 when he was orally terminated. Prayer was made for continuity of service with back wages. The Deputy Commissioner of Labour made reference under Section 10(1) and 12(5) of the Act to the Labour Court, Solapur for adjudication. The Public Works Department, on receipt of the notice from the Labour Court made enquiries about the service particulars from the office of the Sub-Divisional Soil Conservation officer. By letter dated 9.3.1995, Sub-Divisional Soil Conservation Officer, Osmanabad, informed the Sub-Divisional Engineer that by order dated 18.3.1986 respondent was appointed as Surveyor on contractual employment, and on 25.9.1986 he was transferred to Sub-Divisional Soil Conservation Officer, Paranda. As per order of the Commissioner, Aurangabad appointments of Surveyor on temporary establishment came to an end. Respondent examined himself in support of his claim and exhibited 3 documents. One of the documents purportedly indicated that the respondent worked in the Division till 31st August, 1986. An officer of the Sub-Divisional Soil Conservation Office, Aurangabad was examined in support of the appellant’s case. The Labour Court passed an award, inter alia, holding that (1) termination of respondent with effect from 30.4.1986 was illegal; and (2) he was to be reinstated with back wages i.e. 25% of the back wages. Challenging the aforesaid order, writ petition was filed before the Bombay High Court which was dismissed by impugned order.”
3.Learned counsel for the appellant submitted that the approach of the Labour Court and the High Court is clearly erroneous. The effect of the documents produced i.e. Exhibits C25-C27, clearly establishing the appointment of respondent in the Soil Conservation Department, his transfer and ultimate termination has been lightly brushed aside by the Labour Court and the High Court. The respondent himself admitted that in fact the details were given by the Soil Conservation Officer in the letter dated 9.3.1995. The Labour Court has come to a conclusion that respondent had worked for more than 240 days.
4.Learned counsel for the appellant further submitted that there is no question of termination as the respondent voluntary joined another department. According to him, the documents clearly established that he had joined another establishment. Therefore, the claim was stale and was made after more than eight years. The Labour Court and the High Court erroneously held that the question wheth
