W.P.No.1746-6136.01 1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1746 OF 2001 The Executive Engineer, Bandhakam Vibhag, (North), Zilla Parishad, Satara. ... Petitioner v/s Shri Damodar Narayan Gaikwad ... Respondent ALONG WITH WRIT PETITION NO. 6136 OF 2001 Shri Damodar Narayan Gaikwad ... Respondent v/s The Executive Engineer, (Construction), (North), Zilla Parishad, Satara. ... Petitioner Mr.M.B.Mehere for the petitioner in W.P.No.1746 of 2001 and for the respondent in W.P.No.6136 of 2001. Mr.K.S.Bapat for the respondent in W.P.No.1746 of 2001 and for the petitioner in W.P.No.6136 of 2001. CORAM: SMT.NISHITA MHATRE, J. DATED: 1ST MARCH, 2011 ORAL JUDGMENT: 1. Two cross petitions have been preferred against the W.P.No.1746-6136.01 2 award passed by the Labour Court in Reference (IDA) No.7 of 1993. Since the workman has attained the age of superannuation during the pendency of the reference, the Labour Court directed that his services should be treated as continuous with the Zilla Parishad from 30.11.1981 till his date of retirement. All service benefits including the back wages except for the period from 1.4.1981 to December, 1989, have been awarded by the Labour Court. 2. The brief facts in the present case are as follows:- From 4.4.1982 to 7.7.1982 the workman was absent according to the Zilla Parishad. He was terminated from service on 21.7.1982. Thereafter it appears that he was mentally ill and, therefore, he did not take any action in the matter for 10 years. A medical certificate was issued by a private doctor on 12.3.1991 indicating that the workman was under his treatment from 1982 to 1989. The workman then obtained a reference on 26.8.1993 for his reinstatement with continuity of service and full back wages with effect from 12.10.1982. That reference was decided on 19.9.2000. Admittedly, the workman has retired in 1995. 3. The main contention raised on behalf of the Zilla Parishad is that the Labour Court ought not to have granted any relief when the workman had approached the Court W.P.No.1746-6136.01 3 belatedly. It is contended that the delay of over 10 years did not justify for any relief being granted to the workman. It is further submitted by the learned advocate for the Zilla Parishad that the Labour Court ought not to have relied on the medical certificate issued by a private doctor who was a psychiatrist to believe that the workman was justified in approaching the Court belatedly. The learned advocate submitted that only a certificate from the Civil Surgeon or a mental hospital could have been accepted by the Labour Court, and not a certificate issued by a private doctor. It is,therefore, urged that the petition be allowed and the reference be rejected. 4. On behalf of the workman it is submitted that the Labour Court was considering the termination from service in the year 1982. It has found that the termination of service had been effected without following the principles of natural justice envisaged in law. Further more, the Labour Court, according to the learned advocate, has considered all the relevant factors and has held that the workman was entitled to reinstatement with continuity of service. The learned advocate submitted that the Labour Court has erred in not granting full back wages to the petitioner i.e. from the date his services were terminated till reinstatement or in any W.P.No.1746-6136.01 4 event till he attained the age of superannuation. 5. The basic argument of the learned advocate for the Zilla Parishad was that the Civil Surgeon’s certificate was required to be produced before the Labour Court could hold that the delay on the part of the workman was justified. The reference made in the year 1993 pertained to the termination of service in the year 1982. The Zilla Parishad did not challenge that reference by approaching this Court. The Labour Court has found that the reference was maintainable and, in my view, there is no error in that respect. 6. The submission that only a Civil Surgeon’s certificate ought to have been relied on by the Labour Court is unacceptable. It may be that when a Zilla Parishad employee resumes work, he is expected to produce a certificate from the Civil Surgeon showing that he is fit for work. However, this aspect is not relevant at all in the present case. The issue before me is the termination of service in 1982 and not whether the workman should have been allowed to resume work when he produced a certificate in 1991. Therefore, the submission that it was only the Civil Surgeon’s certificate which could be considered by the Labour Court is untenable. W.P.No.1746-6136.01 5 7. The Labour Court has found from the evidence on record that the services of the workman were terminated without holding an enquiry. In fact, the charge was taken from the workman on 31.11.1982 indicating that since he was absent from duties from 4.4.1982 to 7.7.1982 he was not entitled to continue to work with the Zilla Parishad. Obviously, therefore, it was because of his absence for three months that the Zilla Parishad thought it fit to terminate his services. However, no enquiry was held. In my opinion, the Labour Court has found rightly that in these circumstances the termination was illegal. Apart from this, the Zilla Parishad, besides denying him employment did not offer him retrenchment compensation on the ground that he had been discharged from service. 8. Considering the facts in the present case, in my opinion, the award of the Labour Court directing that the services of the workman should be treated as continuous from 30.11.1981 up-to the date of superannuation is required to be modified. The reference indicates that the demand was that the workman should be reinstated with effect from 12.10.1982. Therefore, the Labour Court should not have directed that the workman should be treated in continuous service with effect from 30.11.1981 as he was in service on W.P.No.1746-6136.01 6 that date and thereafter till 12.10.1982. 9. The award of the Labour Court is modified as follows:- (i) The Zilla Parishad shall treat the workman in continuous service with effect from 12.10.1982 till he attained the age of superannuation and pay him all service benefits. (ii) The back wages for the period from 12.10.1982 to 26.8.1993 are denied because the reference was made only in the year 1993. 10. The writ petitions are disposed of accordingly. ..... 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