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2017 Supreme(Bom) 2185
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
B.P. Dharmadhikari, Rohit B. Deo, JJ.
Maharashtra State Warehousing Corporation - Appellant
Vs.
Shri Ganesh Sampatrao Dhole - Respondent
Letters Patent Appeal No. 231 of 2008 in Writ Petition No. 640 of 2007
Decided On : 01-07-2017
Advocate Appeared:
For the Appellant : Mr. N.R. Saboo
For the Respondent: Mr. S.A. Kalbande
The main legal point established in the judgment is the obligation of the employer to provide work when it becomes available and the unwarranted nature of the oral termination of the respondent.
Headnote:
Industrial Disputes Act - Reinstatement - Section 17B, Section 25H - The court discussed the provisions of Section 17B and Section 25H of the Industrial Disputes Act, 1947. It highlighted the legal obligation of the employer when work becomes available and found that the oral termination of the respondent was unwarranted. The court also emphasized that if work was available, the respondent should have been continued or given due preference, and it could not have been given to a new employee.
Fact of the Case:
The respondent workman was granted relief of reinstatement with continuity by the Labour Court, which was maintained by the learned Single Judge of the Court. The appellant employer challenged this decision, arguing that there was unreasonable delay in invoking the jurisdiction of the Conciliation Officer and approaching the Labour Court. The appellant also contended that the workman did not complete the required 240 days of continuous service and relied on a judgment to argue that reinstatement was not warranted.
Finding of the Court:
The court found that the oral termination of the respondent was unwarranted, as work was available and another employee was immediately appointed after the respondent's termination. It also noted that the appellant did not reinstate the workman after the award by the Labour Court, and reinstatement was stayed by the Court in a later proceeding. The court partially allowed the appeal, directing the appellant to pay the respondent back wages for a specified period and reinstating the respondent.
Issues: The issues involved unreasonable delay in invoking the jurisdiction of the Conciliation Officer, completion of the required 240 days of continuous service by the workman, and the appropriateness of reinstatement versus compensation.
Ratio Decidendi: The court emphasized the legal obligation of the employer when work becomes available and found that the oral termination of the respondent was unwarranted. It also considered the immediate appointment of another employee after the respondent's termination as evidence that work was available and that the respondent should have been continued or given due preference.
Final Decision: The court partially allowed the appeal, directing the appellant to pay the respondent back wages for a specified period and reinstating the respondent.
B.P. Dharmadhikari, J.
Award delivered on 7.7.2006 by Labour Court, Wardha granting relief of reinstatement with continuity to respondent and maintained by the learned Single Judge of this Court on 3.12.2007 while dismissing Writ Petition No. 640/07 has been questioned by appellant employer.
2. On 17.7.2009 in L.P.A. reinstatement was stayed. The application under Section 17B of the Industrial Disputes Act, 1947 moved by respondent workman was dismissed by this Court. Mr. N.R. Saboo, learned Counsel for appellant, points out that period of employment is extremely short. Oral termination has taken place on 1.4.1988 and for a period of about ten years thereafter, no steps were taken. Demand notice itself was issued on 28.9.1998 and reference proceedings were registered in 2000. He contents that thus there was unreasonable delay in invoking the jurisdiction of Conciliation Officer and in approaching Labour Court. As such, grant of reinstatement is totally unwarranted.
3. Without prejudice, he points out that the employer examined two of its responsible officers who on the basis of records pointed out that workman had worked only for 191 days during the above period. Thus, he did not complete 240 days in all from date of his joining till his termination. As such, finding that he had worked for 240 days continuously in every year is perverse. He also adds that in absence of challenge to said record maintained by employer and in absence of any notice to produce document, this oral evidence ought to have been accepted.
4. Lastly, he relies upon judgment of Hon'ble Apex Court in the case of Jagbir Singh v. Haryana State Agriculture Marketing Board & another reported in 2009(9) SCALE 611 to urge that considering the very short period of employment, relief of reinstatement could not have been granted and the workman could have been given reasonable compensation.
5. Mr. S.A. Kalbande, learned Counsel for respondent, strongly opposed the appeal. He points out that after termination of present respondent another employee by name Ganpat Gavai was immediately appointed and that person was in employment even in 2005. He, therefore, states that there is no scope for awarding compensation in the present matter and reinstatement as allowed needs to be maintained. He also relies upon the evidence adduced by workman and inconsistency in evidence of appellant herein to submit that finding of completion of 240 days is not perverse. According to him, in the present situation burden was upon the appellant Corporation to produce record and to prove the daily wage paid to respondent on his completion of only 191 days of service as alleged.
6. Mr. N.R. Saboo, learned Counsel for appellant, in reply points out that finding on Section 25H of the Industrial Disputes Act as recorded by the Labour Court is unwarranted as it did not possess the jurisdiction.
7. The respondent workman has specifically pleaded that he was employed as Godown Chowkidar from 12.1.1984 and continued till his oral termination on 1.4.1988. He has also pleaded that his monthly salary was Rs. 400/per month and his duty hours were 9 p.m. to 8 a.m. This was denied by appellant by filing Written Statement. They claimed that during entire period of about three years, workman had put in only 186 days of service and that he was being paid daily wages.
8. The workman has entered witness-box and deposed in tune with his statement of claim. He has been cross-examined but there is no challenge to his assertion of receipt of monthly wages, completion of 240 days of continuous service in every year or then employment of another person immediately after his termination and in his place. Impliedly, all his assertions on oath have remained uncontroverted.
9. The appellant examined one of its officers Shri Vasant Palkar. He has stated that workman worked from September, 1986 to March, 1988, i.e. for a period of 19 months and put in 191 days of service. Suggestion given to him that workman worked from
