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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 1366 OF 2009
1] The Deputy Conservator of Forest,
Wild Life, Gondia, District Gondia.
2] The Assistant Conservator of Forest,
Wild Life, Navegaon Bandh,
Tah. Morgaon (Arjuni), Distt. Gondia.
3]
The Range Forest Officer,
Navegaon Bandh,
Tah. Morgaon (Arjuni), Distt. Gondia ... PETITIONERS
...VERSUS...
Anwar Ali Khan,
aged about 43 years,
R/o. Jamnalal Bajaj Ward,
Bhandara, Tah. And Distt. Bhandara...... RESPONDENT
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Shri P.A.Gode, counsel for Petitioners-employer.
Shri V.P.Marpakwar, counsel for Respondent-employee
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CORAM: R. K. DESHPANDE, J.
th DATE : 8 OCTOBER, 2015 .
ORAL JUDGMENT 1] Complaint (ULPA) No. 16 of 1999 filed before the Labour Court at Gondia under Section 28 read with Item 1 of Schedule IV of M.R.T.U and P.U.L.P Act challenging the ::: Uploaded on - 14/10/2015 ::: Downloaded on - 14/10/2015 23:58:55 ::: 2 wp1366.09.odt oral termination by respondent No.1 with effect from 23.08.1999 was allowed on 10.10.2005. It was held that the petitioner-employer is engaged in an unfair labour practice as covered by Item 1(a) and (b) of Schedule IV of the said Act and the direction was issued to reinstate the complainant to his former post of driver with continuity in service with effect from 23.08.1999. The Labour Court also directed the payment of full backwages to the complainant.
2] In Revision (ULPA) No. 106 of 2005, the Industrial Court at Bhandara vide its judgment and order dated 14.11.2005 set aside the order of payment of backwages, but maintained the order of reinstatement with continuity in service on the post of driver and directed the employer to provide the complainant an alternate job on par with the job of driver by protecting his salary or wages as driver. This writ petition was preferred after lapse of period of five years on 15.01.2009. This Court granted interim relief of stay on 08.04.2009 to the judgment delivered by the Industrial Court. The interim relief so granted is continued pending the decision of this writ petition.
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3] The respondent-employee claimed that he was
appointed initially on 21.01.1983 as driver and he was terminated on 21.12.1984, which was the subject matter of challenge in Complaint filed before the Labour Court.
Ultimately, by virtue of final order passed on 15.04.1998 by the Industrial Court in Revision ULPA No. 83 of 1986, the complainant was directed to be reinstated in service.
Accordingly, the complainant was reinstated on 18.05.1998.
The complainant continued to work on the post of driver till 24.04.1999.
4] The complainant proceeded on leave from 25.04.1999 and thereafter he was not permitted to join the duties. Hence, treating it as oral termination with effect from 24.04.1999, Complaint ULP No. 79 of 1999 was preferred before the Labour Court. On 21.10.1999, the petitioners filed the pursis in the said complaint, the contents of which are reproduced below.
In the Court of Labour Judge, Bhabndara Complaint (ULPA) No. 79/99 Anwar Ali Khan vs RFO Navegaon & Dy. C.F.
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PURSIS
The respondents did never terminate services of complainant & are still ready to provide works to complainant. Hence this pursis is filed.
Bhandara sd/- R.F.O Navegaon
Dt. 21.10.99 21.10.99
Respondent
sd/-
Counsel for respondents
The complainant was accordingly permitted to work with effect from 21.10.1999. The complaint was pending.
5] During the pendency of the aforesaid complaint, the petitioner came to be terminated on 15.01.2001 from service as driver on the ground that the work of driver did not exist. By virtue of interim order dated 06.02.2002 the petitioner-employer was directed to allow the complainant to work on his former post of driver or to provide him any alternate job till the vehicle gets repaired. It is the stand taken by the petitioner that the complainant was provided the job of Van-majoor and not of a driver. The Labour Court allowed the complaint on 10.10.2005 and directed reinstatement of the complainant to his former post of driver.
This order is confirmed in Revision on 14.11.2005 which is the subject matter of challenge in this writ petition. The ::: Uploaded on - 14/10/2015 ::: Downloaded on - 14/10/2015 23:58:55 ::: 5 wp1366.09.odt complainant performed the said job till 08.04.2009, when he was again terminated for the reason that this Court has stayed the order passed by the Industrial Court impugned in this petition on 08.04.2009. Since then the complainant is out of employment.
6] Before the Labour Court, the complainant has entered the witness box and deposed his case. The complainant was cross examined by the petitioner-employer.
The employer examined one Dnyaneshwar Natthuji Meshram, working as Range Forest Officer at the same place since 18.06.2005. In the cross-examination, this witness has stated as under;
"I cannot tell whether the Jeep No. Mh-31-G-4121 was in running condition till October 2001, because the relevant log-book is not available with me. During the relevant period there were two vehicles Jipsy and Jeep, were available with our Office. It is true to say that on 15.01.2001 services of the complainant were terminated orally. He again approached the Labour Court challenging his termination, by this present proceeding. By interim relief the Court directed reinstatement of the complainant. While terminating the services of the complainant, notice was not issued to him nor payment in lieu of notice nor compensation was paid to him. The complainant's name was not included in the seniority list of drivers. The two Jeep which are available with our Officer are being driven by driver K.D.Thakare and Permanent Van-majoor Shripat Jambhulkar. It is true to say that post of a driver is vacant at our office, since 1998 till today. It is not true to say deliberately complainant is not posted on that post. I do not know that ::: Uploaded on - 14/10/2015 ::: Downloaded on - 14/10/2015 23:58:55 ::: 6 wp1366.09.odt complainant was doing job of driver with our office since 1983. I cannot tell since when he has been working with our office as a driver. I have not gone through that official record. It is not true to say I do not know anything and I am deposing false".
7] Both the courts on relying upon the aforesaid evidence led by the petitioner-employer held that the employer has deliberately and unnecessarily kept the complainant out of the post of driver and the work performed by him was assigned to another dailywager Van-majoor, who was regularized in service. It is apparent that till the decision and the date of recording deposition of the witness i.e. 19.08.2005, the post of driver was lying vacant, but the said job was not provided to the complainant. The Industrial Court has found that thereafter the work of driver was not available because the vehicles were sent for repairs. Hence, the Industrial Court modified the order of Labour Court by adding that the petitioner shall provided an alternate job to the complainant on par with the job of driver by protecting his salary/wages as driver.
8] From the undisputed factual position and the findings recorded by the Courts below, it is apparent that the respondent-employee has been performing the job of driver ::: Uploaded on - 14/10/2015 ::: Downloaded on - 14/10/2015 23:58:55 ::: 7 wp1366.09.odt from 21.08.1983. His reinstatement by order of the revisional Court passed on 15.04.1998 was on the post of a driver, which has attained the finality. The complainant continued to perform the said job but proceeded on leave with effect from 25.04.1999 and when he went to join the duties, he was not provided the job of driver, though there was willingness on the part of the petitioners to provide the complainant the job of Van-majoor. The complainant claimed relief of reinstatement on the post of driver. In response to the same, the contents of the pursis at Exh. 11 filed by the petitioner becomes significant. The pursis does not state that the complainant is to be provided the work as Van-majoor and not of a driver.
9] There is a clear admission given by the witness examined by the petitioner that while terminating the services of the complainant, he was neither given any notice nor pay in lieu of notice. There was no contest on the factual aspect that the complainant worked for 240 days preceding the date of his termination from service on 24.04.1999. The petitioners showed willingness to provide the complainant the job of Van-majoor, but resisted the claim for continuation of ::: Uploaded on - 14/10/2015 ::: Downloaded on - 14/10/2015 23:58:55 ::: 8 wp1366.09.odt the complainant on the post of driver. The courts have found that the complainant has been working on the post of driver.
The finding of fact is based the evidence led by the petitioner-employer. The evidence has also been brought on record that till the decision by the Industrial Court, the work of driver was available. The present writ petition has been preferred on 16.01.2009 i.e. after lapse of period of 4 years from the judgment and order passed by the Industrial Court on 14.11.2005, which is impugned in the present petition.
Surprisingly, the complainant has been terminated from the post of Van-majoor with effect from 08.04.2009 i.e. the date on which this Court passed an interim order staying the order passed by the Industrial Court. Thus, it is a clear case where the employer was engaged in an unfair labour practice under Item 1(a) of Schedule IV of the M.R.T.U and P.U.L.P Act.
No fault, therefore, can be found with the view taken by the Courts below. The writ petition is dismissed.
JUDGE Rvjalit ::: Uploaded on - 14/10/2015 ::: Downloaded on - 14/10/2015 23:58:55 :::