MAHARASHTRA STATE ROAD TRANSPORT Vs. RARMBAI VIJAY SHENDE

JUDGEMENT

(1.) By this Writ Petition filed under Articles 226 and 227 of the Constitution of India, the petitioner/employer has challenged concurrent judgments of Labour Court and Industrial Court granting relief of reinstatement with full back wages to respondent No. 1/employee. This Court has on 26/10/2005 while issuing rule in the matter, granted stay only to back wages and consequently respondent No. 1 has been reinstated in December, 2005.

(2.) Advocate Mehadia for the petitioner states that respondent No. 1 was working on contract basis and was being paid Rs. 450/- per month and as such her termination could not have been held to be retrenchment under Section 25-F of the Industrial Disputes Act. It is further argued that merely because the provisions of Section 25-F are found to be violated, relief of reinstatement with full back wages could not have been granted. He also invites attention to judgment of Hon'ble Apex Court in case of Indian Drugs & Pharmaceuticals Ltd. vs. Workmen, Indian Drugs & Pharmaceuticals Ltd. " (2007) 1 SCC- 408 in support of his contention. Lastly, it is argued that the Labour Court could not have granted full back wages because in the present matter, there is no plea of absence of gainful employment and also there is no evidence adduced by present respondent No. 1 to show that she was not gainfully employed. Advocate Mehadia argued that burden was upon respondent No. 1 to show her entitlement to back wages and as that burden has not been discharged, grant of full back wages cannot be sustained.

(3.) Advocate Joshi, on the other hand, contends that entitlement of present respondent No. 1 to reinstatement was not questioned before the Labour Court or even before Industrial Court in revision. He contends that the finding of fact that respondent No. 1 rendered 240 days continuous service in preceding 12 months prior to her termination cannot be reopened in present writ petition and as such the provisions of Section 25-F are definitely violated. He argued that the alleged employment of respondent No. 1 on contract basis is not established as no such contract has been placed on record. He invites attention to judgment of Division Bench of this Court in case of M. S. R. T. C. vs. Kishore Kondiram Jagade & others " 2005 (4) Mh. L. J.- 798 particularly paragraph 15 thereof to show that engagement of present respondent No. 1 on daily wages cannot be said to be a back door entry. He further states that if such a question was to be raised, it ought to have been raised specifically before Labour Court to enable respondent No. 1 to lead appropriate evidence in that respect. He also relies upon other Division Bench judgment of this Court reported at 2008 (3) Mh. L. J.-743 " Taranjitsingh I. Bagga vs. M. S. R. T. C., Amravati to show that merely because there is no plea or proof of absence of gainful employment, back wages cannot be declined.