of Maharashtra Vs. Dattatraya Digamber Birajdar
 Insc 873 (27
Arijit Pasayat & D.K. Jain Dr. Arijit Pasayat, J.
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.
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.
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
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.
officer of the Sub-Divisional Soil Conservation Office, Aurangabad was examined in support of the
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.
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.
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.
There is no appearance on behalf of the respondent.
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
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].
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.
Appeal is allowed but without any order as to costs.