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IN THE HIGH COURT OF BOMBAY AT AURANGABAD BENCH
RAVINDRA V. GHUGE, J.
The State of Maharashtra – Appellant
Versus
Shri Ramnath Nivrutti Khedkar – Respondent
Writ Petition No. 3825 of 1998
Decided On : 06-06-2017
Advocate Appeared:
For the Appellant : Shri N.T. Bhagat.
For the Respondent: Shri Ajinkya Reddy.
The main legal point established in the judgment is that in cases where reinstatement is impractical due to a long duration of unemployment, the court may grant compensation instead of reinstatement, considering the circumstances of the case and the failure to move an application for last drawn wages.
Headnote:
Labour Court - Employment Dispute - The court modified the impugned judgment and award by directing the petitioner to pay compensation of Rs. 60,000 in lieu of reinstatement in service with continuity.
Fact of the Case:
The respondent claimed reinstatement with continuity and full back wages, but the Labour Court concluded that the respondent had not completed 240 days in a calendar year in service with the petitioner, and his disengagement without compliance of Section 25F of the Industrial Disputes Act was sustained.
Finding of the Court:
The court found that the respondent had not completed 240 days in continuous service, had worked intermittently, and was not in employment for 32 years. Considering the respondent's situation and the failure to move an application for last drawn wages, the court modified the judgment and awarded compensation of Rs. 60,000 in lieu of reinstatement.
Issues: The issues revolved around the respondent's claim for reinstatement with continuity and full back wages, the petitioner's compliance with the Industrial Disputes Act, and the failure to maintain a seniority list.
Ratio Decidendi: The court considered the duration of the respondent's intermittent work, the impracticality of reinstatement after a long duration of unemployment, and the failure to move an application for last drawn wages under Section 17B of the Industrial Disputes Act. The court also referred to relevant judgments to support the decision to grant compensation instead of reinstatement.
Final Decision: The petition was partly allowed, and the impugned judgment and award were modified to direct the petitioner to pay compensation of Rs. 60,000 in lieu of reinstatement in service with continuity. The compensation was to be paid within three months, failing which it would carry interest at the rate of 6% per annum from the date of the impugned award.
RAVINDRA V. GHUGE, J.
1. The petitioner/State is aggrieved by the judgment and award dated 27.06.1997, by which, Reference (IDA) No. 25/1988, has been partly allowed and the respondent is granted continuity of service from 01.07.1988, without back wages.
2. Pursuant to the Court notice dated 19.04.2017, the respondent appeared in person before the Court today. Since, I realized that he was unable to engage an advocate due to paucity of funds, I have called upon Shri Ajinkya Reddy, learned advocate to appear as amicus curiae for representing the cause for the respondent.
3. This matter was heard after an adjournment post lunch.
4. I have considered the submissions of the learned advocates for the respective sides.
5. It is apparent from the impugned judgment that the respondent had claimed to have been working intermittently and in different spells. At times, he had also worked on the Employment Guarantee Scheme ("EGS").
6. The respondent had approached the Labour Court in Reference (IDA) No. 25/1988, claiming reinstatement with continuity and full back wages with effect from 01.09.1986. In response to his statement of claim, the petitioner filed its written statement stating that the respondent was working intermittently. He had put in 55 days on daily wages between 01.10.1982 till 07.12.1982, 197 days in between 02.01.1983 to 31.12.1983 and 46 days in between 01.04.1984 to 18.06.1984. The payments made to him and the details of the vouchers maintained in the cash book were also produced before the Labour Court. Based on the oral and documentary evidence, the Labour Court concluded that the respondent had not completed 240 days in a calender year in service with the petitioner. Therefore, his disengagement without compliance of Section 25F of the Industrial Disputes Act ("ID" Act) was sustained.
7. In paragraph No. 12 of the impugned judgment, the Labour Court concluded that the respondent had worked on EGS. It is settled law that an employee working on EGS cannot claim reinstatement or continued employment as a matter of right. However, the Labour Court has granted the relief of reinstatement without back wages to the respondent because the petitioner did not maintain a seniority list. On account of failure to maintain a seniority list, the Labour Court concluded that there was a breach of Section 25G of the ID Act.
8. In my view, though the said conclusion would be unsustainable looking at the duration of work performed intermittently by the respondent, the Labour Court could have quantified compensation instead of reinstatement. The respondent submits that ever since his disengagement from 18.06.1984, he is not in employment with the petitioner for the last 32 years. An application for last drawn wages under section 17B of the ID Act was not filed before this Court though the petition was admitted and the impugned award was stayed by the order of this Court dated 11.04.2001.
9. It is, therefore, apparent that the respondent was not continuously in employment, had not completed 240 days in continuous service and had worked intermittently, coupled with the fact that the respondent is not in employment for 32 years.
10. The Hon'ble Apex Court has concluded that when short spell of employment is followed by a long duration of unemployment, reinstatement is impractical and quantifying compensation at the rate of Rs. 30,000/- per year of service, would be an appropriate relief, in the following four judgments:
1. Assistant Engineer, Rajasthan Development Corporation and Another vs. Gitam Singh, 2013 LLR 1009
2. Assistant Engineer, Rajasthan Development Corporation and Another vs. Gitam Singh, (2013) 5 SCC 136
3. BSNL vs. Man Singh, (2012) 1 SCC 558
4. Jagbir Singh vs. Haryana State Agriculture Marketing Board, (2009) 15 SCC 327
11. Considering the above and the fact that the respondent had not moved an application for last drawn wages under Section 17B, I find it appropriate to grant compensation to the respondent by modifying the imp
