1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.3448/1996 The State of Maharashtra Through the Executive Engineer, National Highway Division No.XI, Dhule .. PETITIONER VERSUS 1] Smt.Jubedabi Karimshah At & Post Talwel, Tal Bhusawal, Dist.Jalgaon 2] The Ld. Presiding Officer Labour Court, Jalgaon. .. RESPONDENTS .... Shri D.R.Kale, A.G.P. for petitioner Shri V.Y.Patil,Adv.for respondent no.1. .... CORAM : R. K. DESHPANDE, J. DATE : 24/6/2010. ORAL JUDGMENT : This Writ Petition is filed by the State of Maharashtra as an employer challenging the award dated 18/9/1993 passed by 2 the Labour Court at Jalgaon answering Reference IDA No.2/92 in favour of the respondent no.1-employee. The award further directs the employer to reinstate the workman i.e. respondent no.1 in service with continuity in service and payment of 100% backwages w.e.f. 26/9/1987. 2] The respondent Smt.Zubedabee claimed Reference under Section 10 of the Industrial Disputes Act regarding her termination from service w.e.f. 26/9/1987. The Reference was registered as Reference IDA No.29/1988. The case of the respondent no.1 here, was that she was employed on the work of construction 1/2/1982 and she was continuously on duty till 26/9/1987 when her services were terminated. In the statement of claim, she alleged that she has completed 240 days continuous service preceding the date of her termination on 26/9/1987, however, without compliance of the Provisions of Section 25-F and 25-G of the Industrial Disputes Act [said Act for short], her services were terminated from 26/9/1987. She alleged that she was neither given notice of termination, nor was paid the compensation. She further alleged that the persons employed subsequent to her appointment and juniors to her, were retained in service and thus there was contravention of Section 25-G of the said Act. On all these grounds, she challenged the termination and claimed reinstatement and backwages in service on the ground that the petitioner employer was engaged in an unfair labour practice. 3 3] The claim was opposed by the employer. It was stated that the respondent-employee was not in service from December 1984 to May 1986, although she was initially appointed as a daily wager in the Public Works Department. It was submitted that she was in part time duty and hence it was not necessary to give one months notice or to comply with the requirements of Section 25-F of the said Act. 4] The respondent no.1-employee examined herself at Exh.U-9 in support of her claim. She also examined 2 more witnesses at Exh.O-13 and O-22. She filed an application Exh.U-7 for production of documents i.e. daily attendance sheet and payment of wages and the vouchers for the period from 1/2/1987 to 26/9/1987. She also demanded seniority list as on 26/9/1987 maintained by the Department. The employer did not adduce any evidence. However, the witnesses of the employee were cross examined. 5] The learned Judge of the Labour Court recorded a finding that the employee was appointed as a casual labour in Public Works Deparment i.e. for cleaning Rest House, Varangaon and this version of the employee was corroborated by another witness whose depositions are recorded at Exh.O-13 and O-22. The Labour Court further held that employer has failed to produce the documents as were called by the employee and 4 therefore, adverse inference was required to be drawn against the employer. On the basis of the evidence available on record, finding was recorded that the employee has completed more than 240 days continuous service in the year preceding the date of her termination. It was further held that the employee was not served with any notice nor was paid with the retrenchment compensation. The seniority list was also not produced and hence there was clear violation of the Provisions of Section 25-F and 25-G of the said Act and hence employee was entitled to be reinstated. In respect of backwages, a finding was recorded that there is no documentary or oral evidence led by the employer to disentitle the employee for 100% backwages from the date of termination i.e. 26/9/1987 till the date of reinstatement. Hence, ultimately complaint was allowed and reinstatement with full backwages was granted. 6] The learned A.G.P. Shri D.R.Kale, has urged that the witness has given an admission in the cross examination that he has not seen the order of appointment issued in favour of employee. It is further urged that there is no evidence on record show that the employee had completed 240 days continuous service prior to the date of alleged termination on 26/9/1987. He submits that the employee was working on part time basis and hence provisions of Section 25-F and 25-G were not required to be complied with. 5 7] Merely because an order of appointment has not been produced, or was not seen by the witness who was another employee, that would not prevent the employee from leading oral evidence to establish the appointment. The labour Court has relied upon the evidence of the complainant herself alongwith 2 witnesses who have stated that the employee has worked continuously from the year 1982. The learned A.G.P. could not point out from the evidence on record that the witnesses have not deposed that the employee has completed more than 240 days continuous service prior to the date of termination. The finding of the Industrial Court is also based upon the adverse inference drawn against the employer for non-production of vital documents viz. the daily attendance sheet, the payment of wages made to the employee, monthly payment vouchers for the period from 1/2/1987 to 26/9/1987. The employee has also not produced the seniority list as on 26/9/1987. Undisputedly the provisions of Section 25-F and 25-G have not been complied with. In this factual background, it cannot be said that the findings recorded by the labour Court holding that the employee has completed 240 days continuous service immediately preceding the date of termination, is in any manner perverse or in ignorance of any evidence on record. The same therefore, needs no interference. 8] The question whether the provisions of Section 25-F and 25-G are attracted in case of an employee working on part time 6 basis Shri Patil, learned counsel appearing for the employee has relied upon decision of the Apex Court reported in (2008) 10 S.C.C. 698 in the case of Divisional Manager, New India Assurance Company Ltd. V/s A Sankaralingam. It has been held in the said decision by the Apex Court that the applicability of the Provisions of Section 25-F is not limited to the full time employee. It also covers the employee appointed on part time basis under the control and supervision of employer, in terms of Section 2(s) of the Industrial Disputes Act, and the employee is therefore, entitled to protection of Section 25-F of the said Act. In view of this ratio laid down by the Apex Court, the matter is no more res-integra and the contention raised by the learned A.G.P. is rejected. 9] So far as question of backwages is concerned, the learned Judge of the Industrial Court has granted full backwages from the date of termination from 26/9/1987 till the date of reinstatement. However, it seems that the employee was not reinstated in service in view of the interim order passed by this Court on 10/7/1997. In view of the judgment of Apex Court reported in AIR 2006 S.C. 3592 in the case of State of Uttar Pradesh V/s Brijpal, the burden of proof in respect of backwages is on the employee. It is a matter of pleading and proof and unless it is established by the workman that she was not employed in any alternate employment during the period from termination of service till the date of reinstatement, no 7 backwages can be paid. In terms of the interim order dated 21/9/2001, passed by this Court directing the employer to comply with the provisions of Section 17-B of the said Act, the employee was required to be paid with full wages last drawn from the date of award i.e. 18/9/1993. It is presumed that such a compliance must have been done by the employer in respect of the order dated 21/9/2001 passed by this Court, on Civil Application No.3591/1998. There is no finding recorded that the employee was not in alternate gainful employment. On that count, the order of payment of full backwages passed by the Labour Court required to be modified by reducing it to 50%. 10] In the result, the instant Writ Petition partly succeeds. The order dated 18/9/1993 passed by the learned Presiding Officer, Labour Court, Jalgaon in Reference IDA No.29/88 is modified only to the extent of award of backwages. Instead of 100% backwages granted w.e.f. 26/9/1987, the employee will be entitled only to 50% backwages w.e.f. 26/9/1987 till 18/9/1993. Thus, Rule is made absolute in above terms with no order as to costs. [R.K.DESHPANDE,J.] umg/wp3448-96