1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION No. 3015 OF 2005. The Executive Engineer, Public Works Division, Wardha. ... PETITIONER. VERSUS Raju Govinda Lokhande, aged adult, r/o.Waigaon (Nipani) District Wardha. ... RESPONDENT. --------------------------- Shri Kothari, learned AGP for Petitioner. Shri S.A. Kalbande, Advocate for Respondent. ------------------------- CORAM : B.P. DHARMADHIKARI, J. DATED : JANUARY 05, 2010. ORAL JUDGMENT : 1. By this Writ Petition under Articles 226 and 227 of the Constitution of India, the Head of the Department of Public Works Division, 2 Wardha under State Government has challenged the award dated 07.09.2004 delivered by the Labour Court, Wardha in Reference IDA No. 14/1995. By the said award while setting aside the termination of respondent w.e.f. 01.08.1985, the Labour Court has granted him relief of reinstatement with continuity and 50% back wages. This Court has on 17.10.2006, while issuing Rule in the matter granted stay to payment of back wages and continuity, subject to petitioners reinstating the employee back in service. Accordingly, the respondent has been reinstated and is continuing in service. 2. In this background, learned A.G.P. Shri Kothari, appearing on behalf of petitioner, argues that the reference was sought after about 10 years and thus it was belated. He points out that because of this delay, the records pertaining to service of respondent [if any], with the petitioners were destroyed, as per provisions of Rule 272 of P.W.D. Manual and hence, the claim of respondent about employment or its length could not be verified. He argues that, as reference itself was sought belatedly, the Court below could not have granted him reinstatement. He further states that as the employee was working only on daily wages, there was no scope for granting him relief of continuity and back wages, as he was not holding any post. He has also contended that the burden to prove employment 3 with petitioner and completion of 240 days of continuous service was upon the employee, as that burden has not been discharged the impugned award is unsustainable. In support of his contention he has relied upon the judgment reported at 2007 [5] SCC 727 (Director, Food and Civil Supplies, Punjab .vrs. Gurmit Singh). 3. Shri Kalbande, learned counsel for respondent / employee contends that, fact that reference was sought belatedly by itself is not fatal to the award. He points out that the issue has been appropriately dealt with by the labour Court in paragraph nos. 24 onwards and as that consideration is not perverse, no interference is warranted in writ jurisdiction. He further states that, destruction of records pertaining to service of present respondent has not been established on record, and he invites attention to the cross examination of witness Shri Dinesh Nandanwar, for said purpose. According to him, as the burden to prove the destruction of said record is not discharged, the inference that the record is available ought to have been drawn. He further argues that, in such circumstances, as Labour Court has accepted the evidence on affidavit tendered by the respondent in this respect, the said exercise by the Labour Court is not without jurisdiction and no objection thereto can be taken at this stage. He further states, that no case is made out warranting any interference 4 in writ jurisdiction. He further argues that the law relating to back wages has under gone change recently, otherwise burden was upon the employer that the employee was having other source of employment. He argues that in view of the law then prevailing, in exercise of the discretion then available, the Labour Court has granted 50% back wages and use of that discretion cannot be labeled as perverse. He further states that, once the termination is found to be illegal, grant of continuity by the Labour Court also cannot be interfered. 4. The facts clearly show that the present respondent claimed to be in service on daily wages from 01.04.1983 till 01.08.1985 i.e. for period slightly more than two years. He moved conciliation machinery for the first time in 1995 and the Reference which resulted thereafter was registered as Reference IDA No.14/1995. In his claim statement, the respondent has not given any reasons as to why he could not move the conciliation machinery immediately. The petitioner filed their written statement denying employment of respondent. At the same time, it point out that as records have been destroyed they are not in a position to ascertain the correctness or otherwise of the claim. They also relied upon one judgment reported at 1996 [1] CLR 520 (Balwant Singh .vrs. Labour Court, Bhatinda) to substantiate 5 their stand. In this respect they contended that the reference needed to be answered in negative because of the delay only. 5. The respondent examined himself in support of his contention. While the petitioner examined one Shri Dinesh Nandanwar, to substantiate its stand. The respondent deposed that he worked from 01.04.1983 on monthly salary of Rs. 400/- and he was getting salary on muster roll. He claimed that he was terminated orally on 01.08.1985. In cross examination, he accepted that the reasons for delay namely death of his father was not disclosed by him in his statement of claim filed before the Labour Court. He denied the knowledge about availability of records with his employer. Shri Nandanwar, witness examined by the employer deposed that, as per Rule 272 of the PWD Manual, records were destroyed. He further stated that, no record of respondent was available and he further pointed out that in seniority list published on 16.02.1987 (Exh.14), list of employees, his name was not appearing. In his cross examination, he denied that he did not file muster roll deliberately and he volunteered that, he tried to trace out the muster roll, but it was not found. 6. The evidence above therefore clearly shows that, the petitioners did not have any records to verify the fact of employment as pleaded by 6 the respondent. This was mainly on account of delay of 10 years in approaching the Labour Court. Perusal of the judgment of Hon’ble Apex Court in the case of Director, Food and Civil Supplies, Punjab .vrs. Gurmit Singh (supra), shows that, there the Labour Court has not considered the plea of delay and Hon’ble Apex Court therefore, remanded the matter back. In paragraph no.10, the Hon’ble Apex Court has relied upon earlier judgments to note that, after lapse of such time no industrial dispute can be said to be in existence, and therefore, no reference could have been validly made. In paragraph no.11, it has been also observed that the Labour Court or the Tribunal cannot invalidate the reference on the ground of delay, but the employer has to raise that challenge before the High Court in Writ Petition. Judgment in case of Sapan Kumar Pandit .vrs. U.P. State Electricity Board (2001) 6 SCC 222), is also referred to note that, lapse of time may cause the dispute to wave into total eclipse. 7. In 2006 [5] SCC 433 (U.P. State Road Transport Corp. .vrs. Babu Ram) delay in seeking reference under section 10 of the Industrial Dispute Act, has been considered and need for raising industrial dispute within reasonable time has been emphasized. It has been also observed that the burden was upon the workman to show that the 7 dispute was raised within reasonable time and he was not responsible for any delay. 8. Facts above show that, there was no such effort by the present respondent. The Labour Court has considered certain judgments and found that, in later judgment reported at 1999 (82) FLR 169 (Mahavir Singh .vrs. U.P. State Electricity Board and others), the Hon’ble Apex Court has held that, if termination is held illegal, entire reference could not be rejected on the ground of delay in raising dispute. It has accordingly chosen to rely upon this ruling, as it was later in point of time. 9. However, the Labour Court overlooked the fact that because of delay in the matter, the records could not be produced and petitioners were thus deprived of opportunity to effectively defend themselves. This position emerging from evidence of Shri Nandanwar and also provisions of Rule 272 of P.W.D. Manual, is not considered by it at all. Not only this, the burden to prove this employment and also to show the completion of 240 days of continuous service was upon the respondent. Where there was no records and department was coming with a case of destruction of records, the respondent ought to have shouldered more responsibility in this respect, and he should have 8 examined some other persons to bring his employment on record. He examined himself and deposed about the service put in by him, and about his name being in muster roll. He has not examined any other person who worked with him to bring on record that at the relevant time, the respondent was in employment of petitioners. The petitioners have produced seniority list at Exh.14, which contains list of employees who were in service from 1971 and 1974. Any of them could have been examined to show that he worked along with them on particular project or at particular site. I therefore, find that the basic burden to prove employment with petitioners and to prove continuous service of 240 days is not discharged by the present respondent in the matter. 10.In view of this finding, it is not necessary for this Court to consider the relief of grant of continuity or grant of 50% back wages by the Labour Court. If the respondent was holding any post he could have been given relief of reinstatement and then question of back wages could also have been considered in that background. Here the impugned award does not show any discussion as to how the Labour Court found the respondent entitled to 50% back wages. In view of the judgment of Hon’ble Apex Court reported at 2006 [1] SCC 479 (U.P.State Brassware -vrs- Udaynarayan), grant of 50% back wages 9 cannot be sustained. If the respondent was only working on daily wages, it is apparent that there is no question of granting him continuity, as petitioner employer is under obligation to provide hm work as and when the work is available. 11.In the circumstances, without prejudice to the rights of the respondent to claim work as and when available as daily wager, under section 25-H of the Industrial Disputes Act, the award dated 07.09.2004 is quashed and set aside. Writ Petition is allowed. Rule is made absolute in the aforesaid terms, with no orders as to costs. JUDGE Rgd