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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.