Prakash B. Jadhav Vs Bajaj Electrical Ltd.

2.	The Pet	itioner w	orked wit	h the Respondent as	a
Peon	at	the	Reay	Road Office	between 17th	July	1995
and	31st	Janua	ry 19	98. From	17th July	1995,	until
28th	July	1995,	the	Petitioner wa	s paid wages	at	the
rate	of Rs.	40 pe	r day.	From Ma	y 1996 until	May	1997
the	wages	were	increa	sed to Rs.60	per day.	From	June
1997,	the	Pe	titioner	was paid	salary at the	rate	of

¶17

:2:

¶18

Rs.2,000/-	per	mo	nth. According to the	Petitioner,
there	was a	vas	t disparity in the wages and	other
conditions	of	service	that were allowed to him	as
compared	to	other	Peons who were permanently	engaged.
The	latter,	accord	ing to the Petitioner, received	a
salary	of	about	Rs.5,000/- per month together	with
allowances	and	leave.	In the month of January	1998,
the	Petitioner	made	a grievance to the	Senior
Administrati	ve Offi	cer	who assured the Petitioner	that
his	grievance	would	be looked into. However,	on 31st
January	1998,	the	Petitioner was told not to	report
for	work with	effect	from Monday, 2nd February	1998.
By	a letter	dated	3rd September 1998, the	Petitioner
claimed	re-inst	atement.	The demand of the	Petitioner

¶19

was taken into Conciliation and upon a failure report,

¶20

a reference to adjudication was made.

¶21

3.	The	Respon	dent filed a writt	en state	ment.
Evidence		was	adduced on	behal	f of	the	wor	kman and	the
management	.		The Labour	Court	by	its	award	dated	2nd
August	20	02	dismissed	the	Refere	nce.		The	primary
finding	of	the	Labour C	ourt	is	that	the	Petitioner	had
not	work	ed	continuously	for	240	days.		This	finding
has	been	arri	ved at by	the	Labour	Court	on	a	perusal

¶22

:3:

¶23

of	the	vouc	hers. T	he	eviden	ce		on	the	record		showed
that	the	name	of the		Petitioner		was		not	borne	on	the
Muster	Roll	or	Wage Re	gis	ter an	d		pay	ments	were	made	to
him	on	voucher	s. The		case	of		the	man	agement	was	that
the	Petiti	oner	was bein	g	called		u	pon	to	wor	k w	henever
work	was	avai	lable, on		a tem	po	rary		basis.		The	Labour
Court	held	that	as soon		as a		tem	por	ary	vacancy	came	to
an	end,	the	work f	o	r	w	hich		the	Petit	ioner	was
appointed		was	concluded	a	nd ther	e		was	no	ques	tion	of
the	workman	being	terminate	d.		Th	e	L	abour	Court	was	of
the	view	that	the ma	n	agement		has		also	proved	that	the
workman		had	stopped r	ep	orting	fo	r	d	uty	from	June	1998

¶24

and there was accordingly an abandonment of service by the Petitioner.

¶25

On behalf of the Petitioner it has been submitted that : (i) The finding that the Petitioner had not completed 240 days of work in the preceding 12 months prior to the termination is ex-facie erroneous;

¶26

(ii) The vouchers which were admitted by the witness for the management clearly show that during the period

¶27

:4:

¶28

1st February 1997 till 31st March 1998, the Petitioner had in fact, worked for a period in excess of 240 days (325 days to be precise); (iii)The termination of the services of the Petitioner was unlawful in the absence of compliance of Section 25(F) of the Industrial Disputes Act, 1947;

¶29

(iv) The	evidence	would	show	that it	was	the
management	which	directed	the	Petitioner	to	stop

¶30

reporting and the finding that there was abandonment was ex-facie perverse;

¶31

(v)	even	in	the	case	of an all	eged aba	ndonme	nt of
service,	as	a	princi	ple of	law, the	managem	ent	must
atleast	offer	an	opp	ortunity	to the	workman	to	tender
his	explanation.		In	the	present	case	no	such

¶32

inference could be drawn and not even an opportunity

¶33

was granted to the workman.

¶34

5.	On behalf	of th	e Responden	t however	, it has	been
submitted	that		even	assum	ing	that	the	workman	had
completed	240		days	in	the	prece	ding	calendar	year
prior	to	th	e term	ination,		the	evi	dence of	the

¶35

:5:

¶36

management	witness would	sustain	the	abandonment	of
service.	In the alternative	it	was	submitted	that
neither has a cas	e for the grant of re-instatement
been made out no	r for the regularization of service.

¶37

6.	In the course of th	e cross examination of the
witness	who d	eposed on behalf of	the management	, it
has	emerged tha	t the Petitioner wa	s being paid	salary
on the	basis	of vouchers. The	contention o	f the
management	was	that when a regular	Peon was	deputed
for a	ssisting in	audit work, there	was a	temporary
vacancy	which	was filled up	by engaging	the
Petitioner.	The	witness for the	management	admitted
in the	course of	his cross examinatio	n that all	the 30
vouchers	produced	by the workman	alongwith a	list,
Exhibit	V-4 pertain	to the Petitioner	for the	payments
made	to him.	The witness stated	that the	originals
were	with the	Company. The wit	ness has also	admitted
that	the managem	ent has not written	any letter	to the
Petitioner	for his	alleged absence.	The name of	the
Petitioner,	it was	admitted, was not	borne either	on

¶38

the Muster Roll or in the Wage Register since payments

¶39

have been made on vouchers.

¶40

:6:

¶41

Counsel appearing on behalf of the management has

¶42

fairly	not	disputed	au	thent	icity	of	the	copies	of
vouchers	since	the	witn	ess	of	the		management	also
candidly	admi	tted to	the	co	rrectne	ss	of	the	vouchers

¶43

that were produced on behalf of the workman. The vouchers are on the record of these proceedings.

¶44

8.		In the course	of the hearing of the Petition, the
exercise		of fin	ding out the actual number of days that
the		Petitioner	had worked between February 1997 and
January		1998	has been carried out with the assistance
of	Co	unsel.	The vouchers would show that between
February		1997	and April 1997, the Petitioner had put
in	49	days	of work. For May 1997 the Petitioner was
paid	a	consolid	ated amount of Rs.1800/- for 30 days of
work.		Therea	fter, from June 1997 until the end of
January		1998,	the Petitioner was paid a consolidated
salary		of	Rs.2,000/- per month. Hence, between May
1997		and	January 1998, payment was not made for the
actual		number	of days worked, but on the basis of a
consolida	ted	salary	for the entire month. This period
between		May	1997 and January 1998 is of nine months.
In		Workmen	of American Express International Banking
Corporati	on	v/s.	Management of American Express

¶45

:7:

¶46

Internation	al Banking Corporation (AIR 1986	S.C.
458),	the Supreme Court held that the exp	ression
"actually	worked under the employer" in Section	25(B)
of	the Industrial Disputes Act, 1947 would not	refer
only	to the number of days that the workman	had
actually	worked with ‘hammer, sickle and pen’,	but
would	comprehend the total number of days for	which
the wo	rkman was actually engaged and was paid. In	the
present	case, the vouchers which have been produced	on
the	record clearly establish that in the preceding	12
calendar	months, prior to the date of termination,	the
workman	had worked for a period in excess of 240	days.
The	finding of the Labour Court is, th	erefore,
manifestly	contradictory to the evidence on record	and

¶47

will have to be interfered with in the exercise of the jurisdiction under Article 226.

¶48

9.	The termina	tion o	f service b	y the employer	and
the	dispensing		with	the service	s of	the	workman	was
contrary	to	law	since	it is	an	admitt	ed position	that
there	was	no	complia	nce with	Section	25((	F) of	the
Industrial	Dis	putes	Act,	1947.	The	co	ntention of	the
management	that	the	re w	as an	abandonm	ent	of service	is
not	supported	by	any	evidence	on reco	rd.	The case	of

¶49

:8:

¶50

the management that the	workman stop	ped reporti	ng for
work was belied by the eviden	ce of the	witness	for the
management who stated that	in Februa	ry 1998,	the
workman had contacted him, at	which point	of time	he
was informed that there was	no vacancy	and tha	t he
should report some time in	September	1998.	In
September 1998 when the	workman	contacted	the
Administrative Officer, he was	informed	that there	was
no vacancy available. The	evidence of	the	workman
which remained unshaken in	the c	ourse of	cross
examination is also to the ef	fect that at	the end	of
January 1998, he was directed	not to r	eport for	work
from 1st February 1998.	Prior thereto	, the	workman
was engaged on a monthly	salary of	Rs.2,000/-	since
June 1997. The procedure	required to	be	followed
under the law for dispensing	with the	services	of the

¶51

workman was not followed and no retrenchment

¶52

compensation was offered.

¶53

10. The question that arises before the Court is in

¶54

regard	to	the		relief	t	hat	can be	app	ropriately
granted.		In	the	present		case	the	workman	was
admittedly		engaged		on a	tem	porary	basis.	The	witness
who	deposed		on	behalf	of	the	management	stated	that

¶55

:9:

¶56

the workman	was	enga	ged	w	hen a	vacancy	arose	a	s a
result of the	fact	that	the		regular	Peon	was		deputed
to handle the	files	relati	ng	to	audit	work.		In	recent
decisions, the	Su	preme	Court		has	emphasised		that	a
breach of	the	provisi	ons	o	f Secti	on 25(F)	wo	uld	not
entitle the	work	man	to a	n	order	of		regul	arization.
This was e	nunciated	in	the		Judgment	in	M.P.		State
Agro Industries		Develop	ment		Corporati	on	V/s.		S.C.

¶57

Pandey (2006) 2 Supreme Court Cases 716, where the

¶58

Supreme Court observed thus :-

¶59

" It	is also a well-settled	legal	position
that o	nly because a temporary	employee	has
completed	240 days of work, he	would	not
be	entitled to be regularised	in	service.
Otherwise	also the legal positi	on in	this
behalf	is clear as would appear	from	the
decision	of this Court in Dha	mpur	Sugar
Mills	Ltd. v/s. Bhola Singh	((2005)	2
SCC 470) a ((2005) 1 SC	part from Mahendra L. Jain C 639)."

¶60

11.		Ha	ving regard to	the circu	mstan	ces of t	he
case,	includin	g	the	length	of	time	for	which	the
worker	has		been	engag	ed,	the	interests	of	justice
would	be		served if	an	orde	r is	passed	directing	the
Respondent		to	pay	to	the	Petit	ioner co	mpensation	in
lieu	of	re-	instatement.	T	he	last	drawn	salary of	the
worker	was		Rs.2,000/-	per	mo	nth.	This	amount	which

¶61

:10:

¶62

the	worker	had draw	n	w	as	substant	ia	lly below what	was
paid	to	the other	wor	k	men.		C	onsidering the in	terests
of	justice	the Resp	ondent		is	directe	d	to pay to	the
Petitioner	an	amount of	Rs.	1	.00	lac a	s	and by way	of
compensati	on	in lieu	of		re-in	statement.		The Award	of
the	Industrial	Court	shall		sta	nd set		aside and	the
reference	shall	stand	di	s	posed	of	in	terms of	the
aforesaid	di	rections.	Pay	m	ent	as		aforesaid shall	be
made	within	a period	of	t	hree	weeks		from today.	The
Petitioner	would	be entit	led		to	such		spread over as	is
otherwise	ad	missible for	th	e		purposes		of Income	Tax.

¶63

Rule is made absolute in the above terms. There shall

¶64

be no order as to costs.

Prakash B. Jadhav v. Bajaj Electrical Ltd.

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Prakash B. Jadhav v. Bajaj Electrical Ltd.

Case brief

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What did the court decide?

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