Full Judgment Text
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CASE NO.:
Appeal (civil) 1000 of 2006
PETITIONER:
State of Maharashtra
RESPONDENT:
Dattatraya Digamber Birajdar
DATE OF JUDGMENT: 27/08/2007
BENCH:
Dr. ARIJIT PASAYAT & D.K. JAIN
JUDGMENT:
J U D G M E N T
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
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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 whether the
workmen had worked for more than 240 days or not has to be
established by the employer.
5. There is no appearance on behalf of the respondent.
6. It is to be noted that in the written statement, it has been
clearly stated by the present appellant about the respondent
having left the employment of the appellant’s establishment for
joining another department and ultimately being terminated
from the said department. Exhibit C-25 dated 10.3.1986 is
the document showing place of posting, Exhibit C-26 dated
18.3.1986 shows that respondent was appointed and was
required to join from 3.4.1986. Exhibit C-27 is the transfer
order of the respondent by order dated 25.9.1986 and the
letter dated 9.3.1995 clearly shows that the respondent had
joined at Paranda at the transferred place to which he was
transferred. It is crystal clear that ample material and
evidence were placed before the Labour Court to justify the
stand that with effect from 3.4.1986 respondent was not in the
employment of the appellant. He himself had voluntarily left
the department to join another department. In any event, the
claim was stale and was filed after about eight years of the
alleged order of termination. Labour Court and the High Court
erroneously held that the burden to prove engagement of 240
days lies on the employer. The view is clearly contrary to what
has been stated by this Court in Range Forest Officer v. S.T.
Hadimani [2002 (3) SCC 25].
7. Looked at from any angle the order of the Tribunal and
the Award by the Labour Court as affirmed by the High Court
cannot be maintained and are set aside.
8. Appeal is allowed but without any order as to costs.