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2009 Supreme(Bom) 271

IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
J. H. BHATIA, J.
Shradhanand Anathalaya - Appellant
Versus
Asha Bhojraj Shende - Respondent
Writ Petition No.539 of 2008 WITH Writ Petition Nos.540 to 545, 547 to 550, 744, 749 & 750 of 2008
Decided On : 26 February, 2009

Advocates Appeared:
In Writ Petition Nos.539. 541. 543. 545. 548. 550; 749 of 2008 Smt. K. A. PATHAL, Counsel for the Petitioner; Shri. Y. D. SHUKLA, Counsel for the Respondent No.1;Smt. A. R. TAIWADE, Assistant Government Pleader for R-2 In Writ Petition Nos.540. 542. 544. 547.549.744 & 750 of 2008 Smt. T. D. KHADE, Assistant Government Pleader for R-2.

Headnote:(A)Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act (1971), S.28 - Industrial Disputes Act (1947), Ss.25-F and 25-G - Civil P.c. (1908), O.8, Rr.3, 4 :- Though the provisions of Civil procedure code is not applicable to the proceedings before a Labour Court, the broad principles of civil procedure code like the rules of pleadings may be taken aid of. Thus where there is no specific denial by the management of the fact alleged by the workman that he had worked for 240 days continuously, it is to be deemed to have been admitted because the purpose of filing a written statement is reason for providing an opportunity to management to contradict pleadings of the claimants.

       (B)Industrial Disputes Act (1947), Ss.25-Fand 25-G - Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act (1971), S.28, Sch.IV, Item l(a), (b), (d) and (f):- The burden of proof lies on the claimant to prove that to prove that he worked for 240 days continuously by placing cogent material evidence on record, but not by self- serving statement by the claimants.

       (C)Industrial Disputes Act (1947), S.25-F:-Where the Management has not produced the documentary evidence in spite of the availability, it is permissible for the courts to make adverse inference against the management regarding non-compliance with provisions of S.25-F by Management.

       (D)Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act (1971), Ss.44, 30 - Civil P.c.(1908), S.115:- The labour court is having limited jurisdiction under Section 44 and it can not reappreciate evidence before it and overcome finding of facts.

JUDGMENT:-

All these petitions may be disposed of by common judgment as the common question of law and facts are involved though the dates of appointments of the respondent No.1 in each of the cases may be different.

2. Rule. Rule made returnable forthwith. In all the petitions with consent of the learned counsel for the parties the matters are taken up for final hearing immediately.

3. To state in brief, the petitioner claims to be a registered public trust running Anathalaya or Orphanage for the orphan children and is also getting certain grants from Divisional Social Welfare Officer respondent No.2, who is the Office under Government of Maharashtra. Admittedly respondent No.1 in each of these 14 petitions was working with the petitioner and according to the petitioner the seniority list of the staff members was prepared and was also exhibited. These respondents were working either as Dai. Nurse or Nurse-cum-Dai. The seniority list prepared by the petitioner, reveals he names of 19 persons working as Dai, Nurse H Nurse-cum-Dai and their dates of appointment with the petitioner. Admitted fact s that services of all the respondents/ complainants were terminated with effect from 1.09.1997. Services of other remaining 5 persons were also terminated on the same day some of them did not make any complaints some made complainants before the Labour Court but withdrew the complaints later on because of the settlement and the complainants, who are respondent No.1 in the present 14 petitions, prosecuted their complaints before the Labour Court. The grievance of each of them was that they were in the employment of the petitioner from the different dates continuously till the date of termination of their service and thus they have attained the status of permanent employee. It was contended by them that they were not paid even the minimum wages under the Minimum Wages Act. They were paid only Rs.600/- per month and therefore they had a grievance in respect of pay. They had also made the complaint against the petitioner with the Labour Department and therefore inspections were carried out by the officer of Labour Department. The petitioner was reluctant to pay wages as per law and the office bearers of the petitioner asked the complainants to withdraw their complaints and on their refusal, the petitioner terminated their services by the order dated 11.09.1997. The order is illegal, arbitrary, malafide and the colourable exercise of the powers of the petitioner. It is also in violation of the principles of the natural justice. With these allegations the complainants prayed for reinstatement with continuity of service and back wages.

4. The petitioner con tested the complaints before the labour Court by filing Written Statement. Firstly according to the petitioner it is a charitable trust running orphanage and therefore it is not a shop or commercial establishment nor it is industry, therefore the provisions of Maharashtra Recognition of Trade Union And Prevention of , Unfair Labour Practices Act, 1971 (in short 'MRTU & PULP Act') are not applicable. It is denied that the petitioner had indulged in unfair I labour practice. It is contended that provisions of Minimum Wages Act are not applicable. It is also denied that services of the complainants were terminated malafide and without following the procedure of law. It is contended that because the services of the complainants were not required they were terminated with effect from 11.09.1997. Along with termination order the petitioner had offered retrenchment compensation which the complainants had refused to accept. Therefore, the amount of compensation was sent to them by demand draft by registered post acknowledgment due but the same were refused by the complainants.

As such provisions of Section 25(F) of the industrial Disputes Act have been properly complied. It is denied that there was any violation of provisions of Section 25(F) or (G) of the Industrial Disputes Act. It is also contended


























































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