Case Note & Summary
The case involves a writ petition filed by the Deputy Director, Department of Horticulture & Social Forestry, Nagpur, and the Plantation Officer against the judgment of the Labour Court and Industrial Court which had ordered reinstatement of the respondent, Sau. Lilabai Sudhakar Deshbhartar, a daily wager, with continuity of service and full back wages. The respondent had worked under the Employment Guarantee Scheme (EGS) and was terminated. The Labour Court found that she had completed 240 days of continuous service and that her termination was illegal. The petitioners challenged this, arguing that the Social Forestry Department is not an industry and that the burden of proof for 240 days was not discharged. The High Court, relying on the precedent in Marathwada Sarwa Shramik Sanghatna vs. Assistant Director, Social Forestry, held that the Department is an industry. It also noted that the employer failed to produce muster rolls despite a notice, leading to an adverse inference that the respondent had completed 240 days. However, the High Court found that the grant of full back wages was not justified as the respondent did not adduce evidence of her unemployment or entitlement. The Court modified the award, upholding reinstatement with continuity but setting aside the back wages. The petition was partly allowed.
Headnote
A) Industrial Law - Industry - Definition - Social Forestry Department - The Department of Social Forestry is held to be an 'industry' under the Industrial Disputes Act, 1947, following the precedent in Marathwada Sarwa Shramik Sanghatna vs. Assistant Director, Social Forestry, 2002 (3) Mh.L.J. 760. (Para 4)
B) Industrial Law - Continuous Service - Burden of Proof - 240 Days - The burden to prove completion of 240 days continuous service in the preceding 12 months lies on the employer, not the workman. The employer failed to produce muster rolls despite notice, leading to an adverse inference. (Paras 4-5)
C) Industrial Law - Reinstatement - Back Wages - Daily Wager - Reinstatement with continuity of service is upheld, but full back wages are set aside as the workman did not adduce evidence of unemployment or entitlement. The High Court modified the award to grant reinstatement without back wages. (Paras 6-7)
Issue of Consideration
Whether the Department of Social Forestry is an industry under the Industrial Disputes Act, 1947; Whether the respondent had completed 240 days of continuous service; Whether the Labour Court's award of reinstatement with full back wages was justified.
Final Decision
The High Court partly allowed the writ petition. It upheld the reinstatement of the respondent with continuity of service but set aside the award of full back wages. The petition was disposed of accordingly.
Law Points
- Social Forestry Department is an industry under Industrial Disputes Act
- 1947
- Burden of proof for 240 days continuous service lies on employer
- Reinstatement without back wages is appropriate when no evidence of unemployment
Case Details
2010 LawText (BOM) (01) 286
Writ Petition No. 3202 of 2005
Mrs. T.D. Khade for petitioners, Shri D.C. Naukarkar for respondent
The Deputy Director, Department of Horticulture & Social Forestry, Nagpur Division and The Plantation Officer, Vena Range, Social Forestry
Sau. Lilabai Sudhakar Deshbhartar
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Nature of Litigation
Writ petition under Articles 226 and 227 of Constitution of India challenging Labour Court and Industrial Court orders granting reinstatement with back wages to a daily wager.
Remedy Sought
Petitioners sought quashing of Labour Court judgment in Complaint ULP and Industrial Court order in Revision, and stay of payment of back wages.
Filing Reason
Petitioners contended that the Department of Social Forestry is not an industry, the respondent did not complete 240 days of continuous service, and the award of full back wages was without evidence.
Previous Decisions
Labour Court granted reinstatement with continuity and full back wages; Industrial Court upheld the same in revision. Earlier, in Complaint ULPN No. 338 of 1992, the Industrial Court had found completion of 240 days, which was not disturbed by this Court in Writ Petition No. 5286 of 2005 decided on 24.01.2007.
Issues
Whether the Department of Social Forestry is an industry under the Industrial Disputes Act, 1947?
Whether the respondent had completed 240 days of continuous service in the preceding 12 months?
Whether the Labour Court's award of reinstatement with full back wages was justified?
Submissions/Arguments
Petitioners argued that Social Forestry Department is not an industry, relying on Marathwada Sarwa Shramik Sanghatna vs. Assistant Director, Social Forestry, 2002 (3) Mh.L.J. 760. They also contended that the respondent worked under EGS and could not be reinstated, and that the burden to prove 240 days was not discharged.
Respondent argued that the finding of 240 days continuous service was upheld by this Court in earlier writ petition, and that the employer failed to produce muster rolls despite notice. She also stated that due to poverty she could not file a fresh complaint as permitted earlier.
Ratio Decidendi
The Department of Social Forestry is an industry under the Industrial Disputes Act, 1947. The burden to prove that a workman has not completed 240 days of continuous service lies on the employer. Reinstatement is justified when termination is illegal, but full back wages cannot be granted without evidence of unemployment or entitlement.
Judgment Excerpts
By this writ petition filed under Articles 226 and 227 of Constitution of India, the petitioners have prayed for calling of records and for quashing and setting aside of the judgment of Labour Court in Complaint ULP and order of Industrial Court in Revision thereafter.
Mrs. Khade, learned Assistant Government Pleader has in this back ground contended that the Department of Social Forestry under which the respondent was working is not an industry and for that purpose, she has placed reliance upon the judgment of Marathwada Sarwa Shramik Sanghatna vs. Assistant Director, Social Forestry, reported at 2002 (3) Mh.L.J. 760.
In reply, Shri Naukarkar, learned counsel for the respondent has pointed out that finding of completion of 240 days continuous service is reached by the Industrial Court while deciding Complaint ULPN No. 338 of 1992 filed by respondent and though that judgment was assailed before this Court in Writ Petition No. 5286 of 2005, while delivering judgment on 24.01.2007, this Court has not disturbed that finding.
Procedural History
The respondent filed Complaint ULPN No. 338 of 1992 before the Industrial Court, which found completion of 240 days continuous service. The petitioners challenged that in Writ Petition No. 5286 of 2005, which was decided on 24.01.2007, permitting employees to file fresh complaints based on a Government Circular. The respondent then filed a fresh complaint (ULP) before the Labour Court, which granted reinstatement with continuity and full back wages. The petitioners filed a revision before the Industrial Court, which upheld the Labour Court's order. The petitioners then filed the present writ petition under Articles 226 and 227 of the Constitution of India.
Acts & Sections
- Constitution of India: Articles 226, 227
- Industrial Disputes Act, 1947:
