1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4132 OF 1996 Kashinath Narayan Gharat, since deceased through L.Rs. Daya Kashinath Gharat & Ors. ...Petitioners vs. Maharashtra State Electricity Distributin Company Ltd. & Anr. ...Respondents Mr.Kiran S. Bapat for the Petitioners. Ms.A.R.S. Baxi for Respondent No.1. CORAM : V.M. KANADE, J. DATED : JULY 7, 2009 ORAL ORDER :- 1 The petitioner herein expired during the pendency of the petition and his legal heirs have been brought on record. The petitioner had filed this petition challenging judgment and order passed by the Labour Court, Thane, whereby the Labour Court was pleased to direct the respondent to reinstate him in the same position as if he was never terminated, however, taking into consideration the 2 laches on the part of the petitioner workman, he was not awarded back wages. The petitioner being aggrieved by the order of non-payment of back wages has filed this petition under Articles 226 and 227 of the Constitution of India. 2 Brief facts are that the petitioner was employed with the first respondent on 6.4.1981. His services were terminated on 31.7.84. After a lapse of almost three years, the petitioner approached the Conciliation Officer sometime on or about 7.8.87 and the Government, thereafter referred the matter for adjudication before the 2nd Labour Court, Thane, in the year 1988 and thereafter, the Industrial Court passed the aforesaid award. 3 Shri Bapat, learned Counsel appearing on behalf of the petitioner submitted that the Tribunal after having held that the order of retrenchment was illegal ought to have passed an order of payment of back wages. He submitted that the petitioner had 3 made a specific averment in the complaint that he was unemployed after his order of termination and had specifically averred that in spite of best efforts taken by him, he could not find alternate employment. He submitted that even in the evidence, he has stated the said fact. The learned Counsel submitted that once the workman had made an averment to that effect, the burden of proving the fact that he was gainfully employed was on the company. He submitted that the said burden had not been rebutted by the management. In support of the said submission, he relied on the judgment of the Apex Court in J.K. Synthetics Ltd. vs. K.P. Agrawal and Another, reported in (2007) 2 SCC 433. He submitted that the Labour Court had erred in holding that on account of laches on the part of the workman, he was not entitled to claim back wages. 4 Ms.Baxi, learned Counsel appearing on behalf of the respondent, on the other hand, submitted that the petitioner was working on daily 4 wages and was not a permanent employee. She submitted that he had worked for less than 240 days in thee years from the date he was appointed from 6.4.81. She submitted that the Labour Court had, accordingly, after going through the evidence on record held that he was not a permanent employee and the claim of permanancy by the petitioner was not granted. The management has produced the certificate which shows that the workman had worked for 64 days from April 1982 to June 1982, 249 days from April 1983 to December 1983 and 159 days from January 1984 to July 1984. The petitioner in his cross- examination has admitted that he was engaged as daily rated workman. In view of this evidence, therefore, the Labour Court has rightly held that the petitioner was not permanent employee but was daily rated worker. In my view, there is some substance in the submission made by Ms.Baxi for the respondent. The Apex Court in the case of General Manager, Haryana Roadways vs. Rudhan Singh, reported in (2005) 5 SCC 591 has taken into consideration the 5 factors which have to be considered while awarding back wages. In para 8 page 596, the Apex Court has observed as under :- There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back ages should be awarded. A host of factors like the manner and method of selection and appointment i.e. Whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the import factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a 6 workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calender year. 5 The Apex Court in the said case, therefore, held that where the total length of service rendered by a workman is very small, the award of back wages for the complete period could be wholly inappropriate. The Apex Court further also has noted another important factor which has to be taken into consideration and that is the nature of employment. It has observed that the regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a 7 calender year. 6 Reliance placed by the learned Counsel appearing on behalf of the petitioner on the judgment of J.K. Synthetics Ltd. (supra) will not be of any assistance because in the present case though the initial burden has been discharged by the petitioner, the respondent, in my view, have also brought on record various factors which disentitle the petitioner from claiming back wages. The Labour Court has rightly observed that first of all, there is a delay of almost 3 to 4 years in filing an application for referring the matter to the Labour Court. Though the services of the workman were terminated in July 1984, he filed an application to the Conciliation Officer in 1987. The petitioner, therefore, was obviously guilty of laches in approaching the Conciliation Officer. Secondly, the Labour Court has also observed that even during the pendency of the proceedings, the respondent-employer 8 was prepared to provide work to the workman to N.M.R. However, the petitioner workman did not accept the said offer. Thirdly, the petitioner was a daily rated worker. He had worked only for a period of three years. The Labour Court has observed that he was not a permanent employee and therefore, the claim of permanency of the workman was not accepted. Taking into consideration all these factors, therefore, in my view, the Labour Court was justified in holding that the petitioner was not entitled to claim back wages. There is no merit, therefore, in the submission made by Shri Bapat, learned Counsel for the petitioner. In my view, no case is made out by the petitioner to interfere with the order passed by the Labour Cort while rejecting the claim of back wages. 7 Rule, therefore, is discharged. The writ petition is dismissed. Under the circumstances, there shall be no order as to costs. (V.M. KANADE, J.)