Oral Judgment:
RULE. Rule made returnable forthwith. The petition is heard finally with the consent of the learned counsel for the parties.
2. By this petition, the petitioners impugn the judgment of the Labour Court dated 21/12/2005 allowing a complaint filed by the respondent and directing the petitioners to reinstate the respondent in service with full back wages. The petitioners also impugn the judgment of the Industrial Court dated 03/08/2012 confirming the judgment of the Labour Court and dismissing the revision filed by the petitioners. The respondent had filed a complaint before the Labour Court under section 28 of the maharashtra recognition of trade unions & prevention of unfair labour practices act, 1971 challenging his termination dated 01/08/1996 and seeking reinstatement in service with full back wages. It was the case of the respondent that the petitioners had acquired about 36 gunthas of land from the land belonging to the respondent and his father and had, therefore, engaged the respondent on daily wages on 01/11/1995. According to the respondent, he was promised that he would be appointed as a helper on permanent basis. According to the respondent, the petitioners terminated the services of the respondent on 01/08/1996 without following the provisions of Sections 25F and 25G of the Industrial Disputes Act, 1947. The respondent pleaded that he had worked with the petitioners for more than 240 days before the institution of the complaint and the petitioners could not have terminated his services without complying with the provisions of Section 25F of the Act of 1947.
3. The petitioners filed the reply and denied the claim of the respondent. It was specifically denied that they had assured or promised that the respondent would be permanently appointed as a helper. It was denied that the respondent had worked from November, 1995 till 31/07/1996. It was denied that the respondent had completed 240 days of service. On the pleadings of the parties, the Labour Court framed the issues and on an appreciation of the material on record, held that the respondent had proved that he had put in 240 days of service and there was a non compliance of the provisions of Sections 25F and 25G of the Industrial Disputes Act, 1947. The Labour Court directed the reinstatement of the respondent in service with full back wages. The petitioners challenged the judgment of the Labour Court in a revision before the Industrial Court. The Industrial Court, however, by the impugned judgment dated 03/08/2012, dismissed the revision filed by the petitioners.
4. Shri M.M. Agnihotri, the learned counsel for the petitioners, submitted that both the Courts erroneously held that the respondent had put in more than 240 days of service before he was allegedly terminated on 01/08/1996. According to the learned counsel, there was hardly any evidence before the Labour Court to prove that the respondent had worked for more than 240 days before he was terminated. The learned counsel submitted that no notice was ever issued to the petitioners to produce the muster roll and the attendance register and in this background, there was no reason to draw an adverse inference against the petitioners. The learned counsel submitted that both the Courts committed an error in holding that the respondent was entitled to full back wages though the respondent had neither pleaded nor proved that he was not gainfully employed after his termination. The learned counsel submitted that the Courts erroneously casted the burden on the petitioners to prove that the respondent was gainfully employed after his termination, though the respondent had not discharged the initial burden to prove that he was not gainfully employed. The learned counsel submitted that there was material on record to show that only few gunthas of land belonging to the respondent and his father was acquired and the respondent cultivated more than four and half acres of land, which was lying with him and the respondent must have earned sufficient income from agriculture. In any case, according to the learned counsel, in the facts and circumstances of the case, when the respondent had allegedly worked only for a period of nine months, more than fifteen to seventeen years earlier, the Courts were not justified in directing the reinstatement of the respondent.
The learned counsel relied on the judgments reported in (2007) 9 SCC 353 (Uttaranchal Forest Development Corpn. v. M.C Joshi.), (2009) 15 SCC 327 (Jagbir Singh v. Haryana State Agriculture Marketing Board and another), (2006) 1 SCC 479 (U.P. State Brassware Corpn.Ltd. and another v. Uday Narain Pandey) and 2008 (4) SCC 261 (Ghaziabad Development Authority and another v. Ashok Kumar and another) to substantiate his submission that the order granting reinstatement with back wages was not proper and the respondent could have been paid some compensation in lieu of reinstatement and back wages.
5. Shri Thakre, the learned counsel for the respondent, supported the judgments passed by both the Courts and submitted that the Courts have rightly recorded a finding of fact on a proper appreciation of the material on record that the respondent had put in 240 days of service and he could not have been terminated without following the procedure prescribed by Section 25F of the Industrial Disputes Act, 1947. The learned counsel submitted that the petitioners' witness had admitted that the respondent had worked from 01/11/1995 to 01/08/1996 as a daily wager and this statement fortified the case of the respondent that he had worked for more than 240 days. The learned counsel submitted that having worked for more than 240 days, the petitioners were liable to comply with the provisions of Section 25F of the Act of 1947 and since they were not complied, the Courts rightly directed the reinstatement of the respondent in service with full back wages. It is submitted that though the respondent had not pleaded that he was not gainfully employed after his termination, he had stated about his starvation in the complaint and the Courts have rightly considered that pleading. It is further submitted that merely because an employee does not specifically pleaded and prove that he was not gainfully employed after his termination, back wages cannot be denied to him. It is submitted that the Courts have rightly granted reinstatement and back wages and the respondent may not be paid compensation in lieu of reinstatement and back wages as submitted on behalf of the petitioners. The learned counsel relied on the judgment reported in (2010) 1 SCC 47 (Director, Director, Fisheries Terminal Department v. Bhikubhai Meghajibhai Chavda.) to substantiate his submission that in the facts of the present case, no interference is called for. The learned counsel sought for the dismissal of the writ petition.
6. On hearing the learned counsel for the parties and on a perusal of the impugned judgments, it appears that both the Courts were not justified in directing the reinstatement of the respondent with full back wages. A finding of fact has been recorded in favour of the respondent that he had completed 240 days of service from November, 1995 to July, 1996. It would not be possible for this Court to interfere with the finding of fact recorded by both the Courts, though the Courts were not justified in drawing an adverse interference against the petitioners for not producing the muster roll and the other attendance record. A notice was never issued to the petitioners for production of the same. Be that as it may, even assuming that the respondent had put in more than 240 days of service, the respondent was not entitled to reinstatement with back wages for non compliance of the provisions of Section 25F of the Industrial Disputes Act, 1947. Even according to the respondent, the respondent had worked only for a short period from 01/11/1995 till 31/07/1996. The complaint was pending before the Labour Court for nearly ten years. The revision was pending before the Industrial Court for nearly five years. More than fifteen years have lapsed from the termination of the services of the respondent with effect from 01/08/1996. Considering the fact that the respondent had allegedly worked with the petitioners only for a period of nine months almost sixteen to seventeen years earlier, the Courts could not have thrust the respondent on the petitioners and directed the petitioners to pay full back wages to the respondent.
It is a well settled principle of law that a daily wager working for a short period should not be mechanically reinstated in service after a long lapse of time, merely because there is a non compliance of the provisions of the Industrial Disputes Act, 1947. It has been held by the Hon'ble Supreme Court in a number of decisions that the factors involved in the case, namely the method of appointment, the nature of appointment, the length of service and the years after which the matters are decided should be considered by the Courts while considering the grant of relief to the employee. Hence, by relying on the judgments reported in (2007) 9 SCC 353 (Uttaranchal Forest Development Corpn. v. M.C Joshi.), (2009) 15 SCC 327 (Jagbir Singh v. Haryana State Agriculture Marketing Board and another), (2006) 1 SCC 479 (U.P. State Brassware Corpn.Ltd. and another v. Uday Narain Pandey) and 2008 (4) SCC 261 (Ghaziabad Development Authority and another v. Ashok Kumar and another), it would be necessary to direct the petitioners to pay some compensation to the respondent in lieu of reinstatement. Both the Courts have committed a serious error in directing the petitioners to pay full back wages to the respondent though the respondent had not specifically pleaded and proved the absence of gainful employment after his termination. Moreover, it is a matter of record, as it is pleaded by the respondent himself in the complaint that out of five acres of land belonging to the father of the respondent, 36 gunthas of land was acquired, with the result, the respondent could have as well cultivated the land belonging to the family and could not be said to have not been gainfully employed. Hence, considering the various factors involved in the case for deciding the relief which could be granted to the respondent, I am of the view that the ends of justice could be met if the petitioners pay compensation of rupees thirty thousand to the respondent.
7. Hence, for the reasons aforesaid, the writ petition is partly allowed. The impugned judgments are modified. The part of the orders directing the petitioners to reinstate the respondent in service with full back wages is quashed and set aside. Instead, the petitioners would be liable to pay compensation of rupees thirty thousand to the respondent.
Rule is made absolute in the aforesaid terms with no order as to costs.