Ajinath Keru Kardile v. State Of Maharashtra Thr Secretary And Others
Case Details
2024:BHC-AUG:27338 966-WP-5827-2023+.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5827 OF 2023 Ajinath Keru Kardile VERSUS State Of Maharashtra Thr Secretary And Others WITH WRIT PETITION NO. 5692 OF 2023 Suresh Sahebrao Gavhane VERSUS State Of Maharashtra Thr Secretary For Revenue And Forest Department And Others WITH WRIT PETITION NO. 5786 OF 2023 Dnyandeo Gunaji Bade VERSUS State Of Maharashtra Thr Secretary For Revenue And Forest Department And Others WITH WRIT PETITION NO. 5785 OF 2023 Vitthal Gopinath Shelke VERSUS State Of Maharashtra Thr Secretary For Revenue And Forest Department And Others WITH WRIT PETITION NO. 5787 OF 2023 Rajendra Sahebrao Chitale VERSUS State Of Maharashtra Thr Secretary For Revenue And Forest Department And Others WITH WRIT PETITION NO. 5849 OF 2023 Umesh PAGE 1 OF 9 966-WP-5827-2023+.odt Babasaheb Dattu Bade VERSUS State Of Maharashtra Thr Secretary For Revenue And Forest Department And Others WITH WRIT PETITION NO. 5829 OF 2023 Dnyandeo Yadav Bargaje VERSUS State Of Maharashtra Thr Secretary And Others WITH WRIT PETITION NO. 5828 OF 2023 Sarjerao Vilas Kharmate VERSUS State Of Maharashtra Thr Secretary And Others
Legal Reasoning
in any establishment. In our view, “gainful employment” would also include self- employment wherefrom income is generated. Income either from employment in an establishment or from self-employment merely differentiates the sources from which income is generated, the end use being the same. Since the respondent was earning some amount from his agricultural pursuits to maintain himself, the Labour Court was not justified in holding that merely because the respondent was receiving agricultural income, he could not be treated to be engaged in “gainful Umesh PAGE 7 OF 9 employment”. 966-WP-5827-2023+.odt 12. It is thus clear that the gainful employment is not only an employment with some employment but the cultivation of the agricultural land from which the income is derived is also to be considered as the income for sustainment of the workmen. Though it is sought to be argued that this is not the constant source of income which needs to be mentioned that it was obligatory part on the part of the workmen to disclose the said fact in his statement of claim as well as in the evidence on oath the workmen have suppressed the said fact. It is only during the course of the cross-examination it is revealed that the workmen are having income from their own agricultural land. Pertinently, there is no further explanation provided by them which would become relevant for the payment of back wages even partially. Needless to say that for the purpose of deciding the issue of back wages the Court is required to take into consideration the income earned by the workman. The income from the agricultural land is treated as consistent income unless shown otherwise. There is absolutely no evidence Umesh PAGE 8 OF 9 966-WP-5827-2023+.odt on record to indicate such otherwise. 13. Having regard to the aforestated facts and by following judgment off the Hon’ble Supreme Court, this Court is not inclined to cause interference in the impugned award to the extent of its denial of back wages. In the result, Petitions stand dismissed in above terms. Pending application(s), if any, are
Arguments
Mr. P. V. Barde, Advocate for the Petitioner Mrs. A. S. Mantri, AGP for Respondents/State *** *** CORAM : R.M. JOSHI, J DATE : NOVEMBER 19, 2024 COMMON ORDER : 1. These Petitions take exception to award dated 01.12.2021, 23.11.2021, 04.12.2021, 03.12.2021 passed in Reference (IDA) Nos. 21/2018, 20/2018, 22/2018, 30/2018, 23/2018, 26/2018, 27/2018 & 25/2018. 2. Parties are referred to as Workmen and Employer for sake of brevity. Umesh PAGE 2 OF 9 966-WP-5827-2023+.odt 3. Reference was made to Section 10(1)(c) of the Industrial Disputes Act by the Deputy Commissioner of Labour, Nashik for adjudication on the issue as per the schedule annexed therewith. The Labour Court has considered the issue of reinstatement of the Respondents and decided the said issue partly in favour of the Workmen. It is held that the workmen are illegally terminated from service with effect from 01.04.2009. The learned Labour Court has directed reinstatement of the workmen in the service with continuity of service but without back wages. These Petitions are filed by the workmen on the ground that the learned Labour Court has committed error in refusing back wages to them. The second limb of submission is that since the learned Labour Court has only taken into consideration the issue with regard to termination of service, the other issues which were specifically raised and referred to the Labour Court may be permitted to be agitated, in accordance with law. 4. 5. Umesh Learned AGP has supported the award. This Court would like to take into PAGE 3 OF 9 966-WP-5827-2023+.odt consideration the second submission first with regard to leave sought by the workmen to agitate the issues which were referred to the Labour Court and not considered for want of jurisdiction of Court. For the purpose of convenience the issues which were referred to the Labour Court are reproduced as under: 1½ ekÖ;k 240 fnol lsok >kY;kiklwu eyk dk;e dkexkjkapk ntkZ nsÅu] fnysys osru vkf.k Qk;ns eyk dk;e Eg.kqu dke usequ nsbZi;Zar Qjdklghr vnk Ogkosr- iq<hy osru o Qk;ns dk;e dkexkjkaizek.ks feGkosr- 2½ fnukad 31@1@1996] 16@10@2012 ‘kkldh; vkns’kkuqlkj eyk fu;ehr d:u fu;ehr dsysY;k rkj[ksiklqu fnysys osru o ns; osru ;k dkGkps Qk;ns feGkosr] dke u fnysY;k dkGkps iq.kZosru vnk Ogkosr eyk fu;ehr] dk;e Eg.kqu vkns’k nsÅu R;kuqlkj dk;e dkexkjkaps Qk;ns vkf.k ntkZ n;kok- 3½ eyk deh dj.;kfo”k;d rksaMh vkns’k csdk;ns’khj] vkjksX;] uSlfxZd U;k;fo:/n vlY;kps tkghj d:u jnn dj.;kps vkns’k d:u ek>h uksdjh lyx /k:u e/khy dkGkrhy iq.kZ osru nsowu eyk dke usequ nsbZi;ZarP;k dkGkps iq.kZosru nsÅu dk;e dkedkj Eg.kqu gqnnk o ntkZ nsowu R;kuqlkj dke ns.;kl lq:okr d:u iq<hy osru o Qk;ns dk;e dkexkjkaizek.ks vnk Ogkosr- 6. Since the dispute was raised with regard to the aforestated issues, pursuant to failure report of Conciliation Officer dispute came to be referred under Section 10(1)(c) for adjudication to the Labour Court. There cannot be any quarrel with regard to the position Umesh PAGE 4 OF 9 966-WP-5827-2023+.odt of law that the Labour Court has jurisdiction to entertain the issue of termination of workmen and not to decide other issues referred to it. Merely because reference is made the Labour Court would not get jurisdiction to entertain and decide these issues. Learned Labour Court, therefore, has rightly taken into consideration the said aspect and issues no. 1 and 2 reproduced herein above were not dealt with. 7. The question arises as to whether the workmen have right to agitate these issues before the Competent Forum. Since the same were not entertained and decided by the Labour Court, there is no decision thereon from competent Court. Leave, therefore, is granted to the workmen to agitate issue nos.1 and 2 before the appropriate forum, in accordance with law. 8. There is no challenge to the award by the Respondent. The present Petitions take exception to this award only to the extent of denial of back wages to the workmen. 9. Learned Counsel for the Petitioners has drawn attention of the Court to the statement of the claim Umesh PAGE 5 OF 9 966-WP-5827-2023+.odt filed before the Labour Court wherein there is a specific plea raised with regard to the workmen being not in gainful employment. He also drew attention of the Court to the affidavit of evidence filed by the Petitioners before the Labour Court wherein similar contention is raised on oath. Thus, it is his contention that once a workman makes statement that he is not gainfully employed in the intervening period, the initial burden on the workman stands discharged and onus shifts upon the employer to prove that the workman was gainfully employed. However, no evidence on the said issue is led before the Labour Court by employer and hence, it is a fit case wherein back wages deserves to be granted to the workmen. 10. Learned AGP submits that there is suppression of facts by the workmen in the statement of claim as well as in the affidavit of evidence. She drew attention of the Court to the cross-examination of the workmen which indicates that the workmen were having their own agricultural land which was cultivated and income was derived therefrom. She contends that in view of the judgment of the Hon’ble Supreme Court the income Umesh PAGE 6 OF 9 966-WP-5827-2023+.odt derived from the cultivation of land also needs to be considered as gainful employment and has bearing while deciding the issue of back wages. 11. In this regard, it would be relevant to refer to the judgment of Hon’ble Supreme Court in case of North East Karnataka Road Transpot Corporation vs. M. Nagangouda, 2007 AIR (SC) 973 wherein it is held thus: 16. On the said question, we are unable to accept the reasoning of the Labour Court that the income received by the respondent form agricultural pursuits could not be equated with income from gainful employment