STATE OF MAHARASHTRAversusDATIATRAYA DIGAMBER BIRAJDAR

A                        STATE OF MAHARASHTRA
                                   v.
                      DATIATRAYA DIGAMBER BIRAJDAR

                                  AUGUST 27, 2007

B                   (DR. ARIJIT PASA YATAND D.K. JAIN, JJ.J


           Industrial Disputes Act, 1947-s. JO-Re-instatement with back wages-
    Claim of-Daily wager leaving employment of establishment forjoining
C   another Department and thereafter terminated from the Department-Claim
    for continuity ofservice with the first establishment-Held: There was sufficient
     material and evidence that claimant not in employment offirst establishment
    and had voluntarily left to join another Department-Thus, courts below not
    justified in granting the claim and erred in holding that burden to prove that
    claimant worked for more than 240 days was on employer-Also, the claim
D    raised was stale-Hence, order of courts below set aside.

          Respondent was working as daily wager in Public Works Division-
    appellant's establishment since 1984. On 10.3.1986, 52.posts·of Surveyor on.
    contract employment were created in Soil Conservation Department.By order
    dated 18.3.1986 respondent was appointed as Surveyor in the Soil Conservation
E   Department and was to join from 3.4.1986..Thereafter, he was transferred to
    other place. Subsequently, 52 posts of Surveyor on temporary establishment
    were abolished and respondent was terminated from the Department.
    Respondent filed application under section l 0 of the Industrial Disputes Act,
    1947 seeking continuity of service with back wages with PWD. It was
F   submitted that he was working in PWD till 30.4.1986 when he was orally
    terminated. Labour Court passed an award holding that the termination of
    respondent with effect from 30.4.1986 was illegal and he was to be reinstated
    with 25% back wages. High Court upheld the order. Hence the present appeal.

          Allowing the appeal, the Court
G
          HELD: It is crystal clear that ample material and evidence were placed
    before the Labour Court to justify the stand that with effect from 3.4.1986
    respondent was not in the employment of the appellant. He himself had
    voluntarily left the department to join another dep_artment. In any event, the
    claim was stale and was filed after about eight years of the alleged order of
H                                         504
    -1-

                 STATE v. DATIA1RAYADIGAMBERBIRAJDAR[PASAYAT,J.]                  505

          termination. The Labour Court and the High Court erroneously held that the      A
          burden to prove engagement of240 days lies on the employer. Thus, the order
          of the Tribunal and the A ward by the Labour Court as upheld by the High
          Court cannot be maintained and are set aside.
                                                        [Paras 6 and 7) (507-B, C, DJ

               Range Forest Officer v. S. T. Hadimani (2002) 3 SCC 25, relied on.         B

               CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1000 of2006.

                From the final Judgment and Order dated 15.03.2004 of the High Court
>         of Judicature at Bombay, Bench at Aurangabad in Writ Petition No. 444 of
          2004.                                                                           c
               Ravindra Keshavrao Adsure for the Appellant.

               The Judgment of the Court was delivered by

                 DR. ARIJIT PASAY AT, J. I. Challenge in this appeal is to the order      D
          passed by a learned Single Judge of the Bombay High Court at Aurangabad.
          The writ petition filed by the appellant was dismissed. Challenge in the writ
          petition was to the Award made by the Labour Court, Aurangabad.

                2. Background facts as projected by the appellant are as follows:-
                                                                                          E
                Respondent was working as a daily wager as Mukadam and was being
          paid Rs.30/- per day in the Public Works Division, Osmanabad, District
          Maharashtra since August, 1984. On 10.3.1986 the District Commissioner of
          Labour, Aurangabad created 52 posts of Surveyor on contract employment.
          Respondent joined as Surveyor in the office of Divisional Soil Conservation F
          Officer with effect from 3.4.1986 on consolidated pay of Rs.450/- per month.
          On 25.9.1986 the Deputy Divisional Soil Conservation Officer transferred the
          respondent to Paranda with effect from 6.10.1986 to the office of Sub-Divisional
          and Soil Conservation Officer, Aurangabad. On 5.8.1987 Divisional Soil
          Conservation Officer abolished all the 52 posts of Surveyor engaged on
          various places as they were on temporary establishment. Accordingly, service G
          of respondent as Surveyor came to be terminated on 20.8.1987. After about
          eight years, respondent submitted an application for reference in terms of
          Section l 0 of the Industrial Disputes Act, 1947 (in short the 'Act') befor\!
          Deputy Commissioner of Labour, Aurangabad. It was stated that the
          respondent was working in the Public Works Department, Aurangabad till
                                                                                          H
    506                    SUPREME COURT REPORTS                     [2007] 9 S.C.R.

A 30.4.1986 when he was orally terminated. Prayer was made for continuity of
    service with back wages. The Deputy Commissioner of Labour made reference
    under Section 10(1) and 12(5) of the Act to the Labour Court, Solapur for
    adjudication. The Public Works Department, on receipt of the notice from the
    Labour Court made enquiries about the service particulars from the office of
    the Sub-Divisional Soil Conservation officer. By letter dated 9.3.1995, Sub-
B   Divisional Soil Conservation Officer, Osmanabad, informed the Sub-Divisional
    Engineer that by order dated 18.3.1986 respondent was appointed as Surveyor
    on contractual employment, and on 25.9.1986 he was transferred to Sub-
    Divisional Soil Conservation Officer, Paranda. As per order of the Commissioner,
    Aurangabad appointments of Surveyor on temporary establishment came to
C   an end. Respondent examined himself in support of his claim and exhibited
    3 documents. One of the documents purportedly indicated that the respondent
    worked in the Division till 31st August, 1986. An officer of the Sub-Divisional
    Soil Conservation Office, Aurangabad was examined in support of the
    appellant's case. The Labour Court passed an award, inter alia, holding that
    (1) termination ofrespondent with effect from 30.4.1986 was illegal; and (2)
D   he was to be reinstated with back wages i.e. 25% of the back wages.
    Challenging the aforesaid order, writ petition was filed before the Bombay
    High Court which was dismissed by impugned order.                                  ~-




          3. Learned counsel for the appellant submitted that the approach of the
E   Labour Court and the High Court is clearly erroneous. The effect of the ·
    documents produced i.e. Exhibits C25-C27, clearly establishing the appointment
    of respondent in the Soil Conservation Department, his transfer and ultimate
    termination has been lightly brushed aside by the Labour Court and the High
    Court. The respondent himself admitted that in fact the details were given by
    the Soil Conservation Officer in the letter dated 9.3.1995. The Labour Court
F   has come to a conclusion that respondent had worked for more than 240 days.        1'

          4. Learned counsel for the appellant further submitted that there is no
    question of termination as the respondent voluntary joined another department.
    According to him, the documents clearly established that he had joined
    another establishment. Therefore, the claim was stale and was made after more
G   than eight years. The Labour Court and the High Court erroneously held that
    the question whether the workmen had worked for more than 240 days or not
    has to be established by the employer.

          5. There is no appearance on behalf of the respondent.

H         6. It is to be noted that in the written statement, it has been clearly
        STATE v. DATIATRAYADIGAMBERBIRAJDAR[PASAYAT,J.]                     507

stated by the present appellant about the respondent having left the                A
employment of the appellant's establishment for joining another department
and ultimately being terminated from the said department. Exhibit C-25 dated
 10.3.1986 is the document showing place of posting, Exhibit C-26 dated 18.3.1986
shows that respondent was appointed and was required to join from 3.4.1986.
Exhibit C-27 is the transfer order of the respondent by order dated 25.9.1986       B
and the letter dated 9.3.1995 clearly shows that the respondent had joined at
Paranda at the transferred place to which he was transferred. It is crystal clear
that ample material and evidence were placed before the Labour Court to
justify the stand that with effect from 3.4.1986 respondent was not In the
employment of the appellant. He himself had voluntarily left the department
to join another department. In any event, the claim was stale and was filed         C
after about eight years of the alleged order of termination. Labour Court and
the High Court erroneously held that the burden to prove engagement of 240
 days lies on the employer. The view is clearly contrary to what has been
 stated by this Court in Range Forest Officer v. S. T. Hadimani [2002] 3 SCC
 25.
                                                                                    D
      7. Looked at from any angle the order of the Tribunal and the Award
by the Labour Court as affirmed by the High Court cannot be maintained and
are set aside.

       8. Appeal is allowed but without any order as to costs.
                                                                                    E
N.J.                                                           Appeal allowed.