Civil Appeal No. 4247 OF 2006
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
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 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;
(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
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.
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