Dismissed

The Manager - Kavathe Mahankal Taluka Shetkari Sahakari Kharedi Vikri Sangh Ltd. v. Bapusaheb Pandurang Bhosale (Decd.)by Lrs.Nagesh Bapusaheb Bhosale and Ors.

Bombay HC6 Nov 2009LPA/221/2009

Case brief

AI extract

What is this about?

This Letters Patent Appeal challenged the Single Judge's interpretation of service rules and an Industrial Court's award of back wages. The Court dismissed the appeal.

What did the court decide?

The Letters Patent Appeal was dismissed with no merit found in the contention.

What the court decided

The Manager - Kavathe Mahankal Taluka Shetkari… — Service and Employment | Bombay HC (2009)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE JURISDICTION LETTERS PATENT APPEAL NO.221 OF 2009

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IN WRIT PETITION NO.1982 OF 2009

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The Manager, Kavathe Mahankal Taluka Shetkari Sahakari Kharedi Vikri Sangh Ltd. .. Appellant Vs Shri Bapusaheb Pandurang Bhosale, Since deceased by heirs Nagesh Bapusaheb Bhosale & Ors. Respondents -- Shri M.L. Patil for the Appellant. Shri Umesh Mankapure for Respondent Nos.1 to 3.

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CORAM : SWATANTER KUMAR, C.J. & A.M. KHANWILKAR, J DATED : 6TH NOVEMBER, 2009

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P.C.

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We have heard learned counsel appearing for the parties. The present Appeal is directed against the judgment and order dated 21^st July, 2009 passed by the learned Single Judge. The contention raised before us is that the relevant service rules provide that a person could serve for a 25 years of service or till he attains the age of 58 years. Thus, on its correct interpretation, once a person

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completes 25 years of service, he is required to retire automatically from the service. We find this argument without any merit as the said rules are beneficial provisions and must be construed liberally so as to achieve object which is sought to be framed by the Rule Framing Authority. The rule does not use the expression “whichever is earlier”. Absence of such expression would certainly imply the intention of the Legislature that the Rule Framing Authority does not deprive a person of the benefit to serve for 58 years of age. The view taken by the learned Single Judge therefore cannot be said to be either erroneous or unjust.

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Secondly, it was contended that the backwages could not

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have been awarded to the Respondent in the present Appeal because the Respondents had not raised specific plea with regard to his non employment in the claim petition. Reliance has been placed on the judgment of the Supreme Court in the case of U.P. State Brassware Corporation Ltd. & Another v. Uday Narain Pandey, (2006)1 SCC 479. The principle of law enunciated in the said judgment can hardly be disputed, however, the facts of this judgment have no application to the present case. There was a specific prayer made by the

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Respondent claiming full backwages which has been awarded. The award of the Industrial Court has been sustained by the learned Single Judge under the impugned judgment. We may notice that in the reply filed before the Industrial Court, the Management had not taken any plea that the Petitioner was gainfully employed and therefore was not entitled to backwages. Once such a plea was raised, the onus to prove that he was not gainfully employed would have rested on the Petitioner. In the absence of such plea, we are unable to find any fault in the order of the Industrial Court. We may also notice here that the Appellant had not raised any specific plea even in the Writ Petition where he challenged the order of the Industrial Court. Now, we cannot permit the Appellant to raise such a plea during the course of argument when such a plea has been taken for the first time in the Letters Patent Appeal. No merit in this Appeal. Hence, dismissed.

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CHIEF JUSTICE

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A.M.KHANWILKAR, J

The Manager - Kavathe Mahankal Taluka Shetkari Sahakari Kharedi Vikri Sangh Ltd. v. Bapusaheb Pandurang Bhosale (Decd.)by Lrs.Nagesh Bapusaheb Bhosale and Ors.

Case brief

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What the court decided

The Manager - Kavathe Mahankal Taluka Shetkari Sahakari Kharedi Vikri Sangh Ltd. v. Bapusaheb Pandurang Bhosale (Decd.)by Lrs.Nagesh Bapusaheb Bhosale and Ors.

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