bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 4847 OF 1997 PETITION NO. 4847 OF 1997 PETITION NO. 4847 OF 1997 Executive Engineer, Employment Guarantee Scheme, Nashik. ... Petitioner v/s Mukund Ashokrao Shewale, Nashik. ... Respondent Mr.C.R.Sonawane, A.G.P. for the petitioner. Mr.K.S.Bapat for the respondent. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 7TH AUGUST, 2008 7TH AUGUST, 2008 7TH AUGUST, 2008 ORAL ORAL ORAL JUDGMENT JUDGMENT JUDGMENT: 1. The petition challenges the award of the Presiding Officer, Labour Court, Nashik, dated 20.1.1997 in Reference (IDA) No.81 of 1993. The respondent workman was employed as a Muster Assistant with effect from 5.5.1983. He had completed more than 240 days in service when his services were terminated with effect from 6.10.1986. No charge-sheet was issued nor was any enquiry held against the workman. The workman being aggrieved by the decision of the petitioner, sought a reference for adjudication of his dispute under the Industrial Disputes Act. The appropriate Government 2 referred the dispute to the Presiding Officer, Labour Court, Nashik by Reference (IDA) No.81 of 1993. 2. The parties filed their respective pleadings before the Court. The main contention of the petitioner was that the workman was employed under the Employment Guarantee Scheme which was not an industry and, therefore, the provisions of the Industrial Disputes Act were not applicable. The Labour Court by its Award Part-I has held that the respondent is a workman under Section 2(s) of the I.D.Act. The submission of the petitioner that it is not an industry has been negated by the Labour Court. The Labour Court has held that the termination of service of the workman was illegal and, therefore, has granted reinstatement in service with continuity. As regards the back wages, the Labour Court has observed that the workman had approached the Court after a delay of seven years and has, therefore, denied him back wages for that period. The Labour Court has granted full back wages w.e.f. 15.7.1992 i.e. the date when the demand was raised till the realization. 3. The petition was admitted on 8.10.1997. However, the award was stayed only with respect to back wages. The workman was thus reinstated in service with continuity. It appears that the workman preferred 3 Complaint (ULP) No.7 of 2001 under Items 5, 9 and 10 of Schedule IV of the M.R.T.U. & P.U.L.P. Act. The grievance of the workman in that complaint was that, after being reinstated in service pursuant to the award of the Labour Court, he had not been paid for the period from October, 2000 onwards. The other grievance made by him was that, he was entitled to be made permanent in service as he had completed 240 days. The Industrial Court accepted the contentions of the workman and held that the petitioners had committed an unfair labour practice under Item 9 of Schedule IV of the M.R.T.U. & P.U.L.P. Act. The Industrial Court directed the petitioners to pay wages to the workman from October, 2000 onwards, while he was in employment. 4. Thus, there is no dispute that the workman has been reinstated in service continuity by the petitioners. The only question which now remains to be considered is whether the back wages which have been awarded are justified. The learned A.G.P. submitted that the petitioners ought not to be saddled with the back wages as the workman had sought a reference about seven years after his services were terminated. He submits that no explanation has been given by the workman for setting in motion the procedure under the Industrial Disputes Act for obtaining a reference. He, therefore, submits that 4 the amount of back wages as awarded should be set aside. 5. This submission of the learned A.G.P. is without merit. The Labour Court has granted back wages from 15.7.1992 i.e. the date on which the demand was raised by the workman. The Labour Court, in para 19 of the award, has considered the fact that there was an inordinate delay on the part of the workman in obtaining a reference for adjudication before the Court. The Labour Court has, therefore, not granted wages from the date of termination of his service i.e. from 6.10.1986 till 15.7.1992. The Labour Court has considered the fact that although the workman had deposed that he was not gainfully employed, the petitioner has chosen not to lead any evidence to rebut this fact. The Labour Court has rightly, therefore, accepted the version of the workman that he was not gainfully employed during the period from 1992 till the award was passed. 6. In my opinion, therefore, there is no need to interfere with the findings of the Labour Court. 7. Writ petition dismissed. Rule discharged. No order as to costs. 8. Mr.Bapat makes a grievance that the workman’s name 5 has not been included in the list of workmen to be absorbed under the Scheme which was formulated by the petitioner and approved by the Supreme Court. He submits that the pendency of this petition has caused the petitioner to refuse to include the name of the workman in the list. If that be so, the petitioner must take steps to comply with the Scheme approved by the Apex Court.