1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.1919 OF 1997 Maharashtra State Road Transport Corporation. ...Petitioner. Vs. V.S. Kudke & Anr. ...Respondents. .... Mr. G.S. Hegde for the Petitioner. Mr. Ameha Tamhane i/b. Ms.Seema Sarnaik for Respondents. ..... CORAM :DR.D.Y.CHANDRACHUD, J. June 25, 2008. P.C.: The First Respondent was a daily wager to whom work was provided by the Petitioner between 1st April 1973 and 30th September 1977 and he had worked for 927 days. The engagement of the First Respondent was under oral directions. The services of the First Respondent were dispensed with commencing from 1st October 1977. The workman waited for nearly twelve years before raising a demand on 27th February 1989. A reference was made to the Labour Court by 2 the appropriate Government. Evidence was recorded. By its award, dated 16th August 1996, the Labour Court at Nasik granted reinstatement with continuity of service and full back wages with effect from 27th February 1989. 2. In assailing the award of the Labour Court, Counsel appearing on behalf of the Petitioner submitted that (i) The workman should have been held disentitled to any relief on the basis of the long and unexplained delay on his part in raising the demand – the termination being with effect from 1st October 1977 and the demand being raised nearly twelve years thereafter, on 27th February 1989; (ii) The workman was only a daily wager to whom work was provided as and when available and the mere completion of 240 days in a calender year, would not entitle him to reinstatement in the absence of a sanctioned post and when the engagement of the workman was not by a regular selection process; and (iii) The grant of full back wages with effect from 27th February 1989 was not warranted. 3 3. On the other hand, it has been urged on behalf of the Respondent-workman that the award of the Labour Court is just and fair, the workman had worked as a daily wager between 1973 and 1977 and has completed 240 days service in a calender year. 4. Having heard Learned Counsel, I am of the view that the award of the Labour Court is unsustainable and will have to be interfered with in the exercise of the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India. The Respondent- workman was a daily wager to whom work was provided as and when it was available. His services were dispensed with after 1st October 1977. The demand for reinstatement was made for the first time well over eleven and a half years after the dispensation of his services. Though no specific period of limitation is provided for raising a demand for a reference, the long and unexplained delay that has occurred on the part of the workman in the present case is liable to lead to an inference that there was an abandonment of his claim by the failure of the workman to assert it for nearly twelve years. It is 4 only appropriate and proper that the demand should be raised within a reasonable period. That apart, the Respondent workman was not recruited by following a regular procedure for selection or against a sanctioned post. The grant of reinstatement, in the circumstances of the case, is clearly unsustainable. The Labour Court was also totally in error in awarding full back wages with effect from the date on which the demand was raised. In view of the judgment of the Supreme Court in Kendrriya Vidhyalaya Sangathan Vs. S.C. Sharma,1 it is well settled that the grant of back wages lies in the discretion of the Court and the burden lies upon the employee to establish by cogent evidence that he was not gainfully employed during the interregnum. The Respondent workman had not discharged that burden. 5. In the circumstances, the petition will have to be allowed and shall accordingly stand allowed. The award of the Labour Court dated 16th August 1996 shall stand set aside and Reference (IDA) 13 1 (2005) 2 SCC 363 5 of 1990 shall stand dismissed. The attention of the Court has been drawn by the parties to the fact that in the meantime, since there was an order of this Court under Section 17B of the Industrial Disputes Act, 1947 of 21st April 1997, the Petitioner considered it appropriate to provide work to the workman as a daily wager. While disposing of this petition, it is clarified that the Petitioner may consider providing work on daily wages to the Respondent as and when work is available. The petition is allowed in these terms. There shall be no order as to costs. .....