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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 2422 OF 2009
Waman Vithobaji Bhadade,
aged about 38 years, Occ. Presently
unemployed, R/o. Chichghat (Navegaon),
Tah. Kuhi, Distt. Nagpur. ...... PETITIONER
...VERSUS...
1. State of Maharashtra,
Department of Irrigation,
Through its Secretary, Mantralaya,
Mumbai-32
2. Superintending Engineer,
Irrigation Circle, Gosikhurd Project Circle,
Sinchan Bhavan, Civil Lines, Nagpur...
3. Executive Engineer,
Gosikhurd Right Bank Canal,
Division No.1, WAHI (Pavani),
Tah. Pavani, Distt. Bhandara.
4. Sub Divisional Officer,
Gosikhurd Right Bank Canal,
Sub Division No.9, Bramhpuri Sub Division,
Tah. Bramhpuri, Distt. Chandrapur.
5. Vidarbha Pat Bandhare Vikas Mahamandal,
Sinchan Bhavan, Civil Lines, Nagpur,
through its Chairman.. RESPONDENTS
AND
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WRIT PETITION NO. 2428 OF 2009
Duryodhan Kashiram Raghorte
aged about 46 years, Occ. Presently
unemployed, R/o. Plot No.64, Shikshak
Colony, Bharat Nagar, Kalumna Road,
Nagpur . ...... PETITIONER
...VERSUS...
1. State of Maharashtra,
Department of Irrigation,
Through its Secretary, Mantralaya,
Mumbai-32
2. Superintending Engineer,
Irrigation Circle, Gosikhurd Project Circle,
Sinchan Bhavan, Civil Lines, Nagpur...
3. Executive Engineer,
Gosikhurd Right Bank Canal,
Division No.1, WAHI (Pavani),
Tah. Pavani, Distt. Bhandara.
4. Sub Divisional Officer,
Gosikhurd Right Bank Canal,
Sub Division No.9, Bramhpuri Sub Division,
Tah. Bramhpuri, Distt. Chandrapur.
5. Vidarbha Pat Bandhare Vikas Mahamandal,
Sinchan Bhavan, Civil Lines, Nagpur,
through its Chairman.. RESPONDENTS
-------------------------------------------------------------------------------------------
Shri A.R.Patil, counsel for Petitioner.
Shri S.B.Bissa, AGP for Respondent No.1
Shri P.B.Patil, counsel for Respondent nos. 2, 3 and 4
-------------------------------------------------------------------------------------------
CORAM: R. K. DESHPANDE, J.
th DATE : 13 APRIL, 2017 .
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ORAL JUDGMENT
1] The Labour Court at Bhandara has dismissed on
24.01.2008, two separate Complaint ULPA Nos. 158 of 1997 and 159 of 1997, filed by the petitioners, challenging their termination from service by an order dated 21.01.1997. The Industrial Court by its common judgment and order dated 09.01.2009, dismissed the separate revisions preferred by the petitioners, confirming the decisions by the Labour Court. Hence, both these petitions are by the employees. 2] The factual position can be stated as under;
The lands belonging to the family of the petitioners were acquired for the irrigation project of the Vidarbha Irrigation Development Corporation (in short VIDC) and the petitioners were appointed by an order dated 02.07.1996 for a period of six months as project affected persons on temporary basis on the posts of junior clerk by the respondent VIDC. The petitioners were terminated by an order dated 21.01.1997 for the reason that their tenure of appointment has come to an end. The petitioners invoked ::: Uploaded on - 21/04/2017 ::: Downloaded on - 27/08/2017 23:07:09 ::: 4 wp2422.09 + 2428.09.odt the provisions of Items (a) (b) and (c) of Schedule IV of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act (in short MRTU and PULP Act), by filing separate complaints before the Labour Court. 3] The case of the respondents was that the petitioners were terminated from service in terms of the orders of appointments issued to them. It was the specific stand taken that the petitioners failed to produce a certificate of project affected persons from the competent Authority i.e. the District Collector/ District Rehabilitation Officer and therefore, they were not entitled to be continued in service. 4] Both the Courts below accepted the stand of the respondents that the petitioners have failed to produce such certificate of project affected persons from the competent authority i.e. District Collector/ District Rehabilitation Officer to establish their claim. The finding is recorded that it was not a case of retrenchment under Section 2(oo) of the Industrial Disputes Act and the terminations were effected in terms of the orders of appointment after the expiry of the specific period of appointments. The dismissal of complaints is ::: Uploaded on - 21/04/2017 ::: Downloaded on - 27/08/2017 23:07:09 ::: 5 wp2422.09 + 2428.09.odt maintained in Revision by the Industrial Court. 5] Both the Courts below have held that one person from the family of project affected persons is entitled to get an employment on permanent basis. Undisputedly, for employment as project affected person, the applicability of the regular recruitment rules is exempted as per Government Resolutions dated 21.01.1980 and 18.06.1990 at Exh.65 and 44 respectively. In order to get such employment, a certificate as a project affected person issued by the competent authority i.e. District Collector/ District Rehabilitation Officer is required to be produced as per Exh.
44. Upon production of such certificate, a person is entitled to get the employment in a suitable post in a permanent vacancy. As per the letter dated 24.06.1996 at Exh.54, issued by the Superintending Engineer of the project, the condition of production of certificate from the competent Authority was relaxed and the appointees were permitted to join the post upon production of certificate dated 28.02.1996 at Exh. 46 as a project affected persons, issued by the Executive Engineer of the project of the respondent VIDC, for which the acquisition is made.
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6] The petitioners were appointed by an order
dated 02.07.1996 at Exh. 47 on the post of Junior Clerks in the services of the respondent VIDC in the permanent vacancies. This appointment was for a period of six months in regular scale of Rs.950-10-1150-E.B-25-1500 per month. The order specifically state in clause (1), that as per Government Resolution dated 18.06.1990, the appointments are exempted from applicability of regular recruitment rules. The procedure under clause 5(a) in the order of appointment states that while joining the duties, the petitioners will have to produce original certificate of project affected person issued by the District Collector/District Rehabilitation Officer. The petitioners were permitted to join the duties as per letter of the Superintending Engineer, dated 24.06.1996 at Exh.54 upon production of certificate as project affected person issued by the Executive Engineer of the project of respondent VIDC, for which the lands of the petitioners were acquired. The petitioners have actually worked on the post from 02.07.1996 to 21.01.1997. The petitioners have in fact produced the certificate dated 01.12.1998 at Exh.42 and dated 09.02.1999 issued by the competent Authority i.e. ::: Uploaded on - 21/04/2017 ::: Downloaded on - 27/08/2017 23:07:09 ::: 7 wp2422.09 + 2428.09.odt District Collector / District Rehabilitation Officer clearly evidencing that they are the project affected persons. But in spite of representation, they were neither permitted to join the duties nor granted reinstatement in service by the respondents. The termination of the petitioners by an order dated 21.01.1997 was with retrospective effect from 03.01.1996 and 10.01.1996.
7] The witness Rahul Meshram, working as Sub Divisional Officer examined by the respondents has admitted that if the petitioners had produced the certificates from the competent authority i.e. District Collector / District Rehabilitation Officer at the time of initial appointment, then their appointments could have been made on permanent basis. He has stated that in order to get an appointment on permanent basis, the only requirement was to produce the certificate of project affected person from the competent authority. He admits that the petitioners have in fact produced such certificates from the competent authority issued on 09.02.1999 evidencing that they are the project affected persons. This witness also admits that four other persons namely (1) Chopkar, (2) Kamdi (3) Fating and (4) ::: Uploaded on - 21/04/2017 ::: Downloaded on - 27/08/2017 23:07:09 ::: 8 wp2422.09 + 2428.09.odt Mangar, working as Junior Clerk/Peon were also appointed vide orders dated 01.01.1996 and 02.01.1996 at Exh. Nos. 50 and 49 respectively on the same terms for a period of six months as project affected persons, they were terminated vide Exh. 42 from service for non production of certificates from the competent authority. But by an order dated 27.08.2009 issued by the respondents, they were reinstated in service upon production of the certificate from the competent authority. This witness admits that no such opportunity was given to the petitioners. This order dated 27.08.2009 was also placed on the record of the Labour Court. The witnesses Chopkar examined at Exh.59A and Digambar Barapatre at Exh. 59B, the employees similarly situated have supported the version of witness Rahul examined by the petitioner employer.
8] In the backdrop of the aforestated undisputed factual position, the question is whether the termination of the petitioners on 21.01.1997 was illegal, attracting the provisions of Items (a), (b) and (c) of Schedule IV of MRTU and PULP Act.
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9] The terminations have been effected by an order
dated 21.01.1997 with retrospective effect i.e. 03.01.1996 and 10.01.1996 which by itself is illegal. Though the reason mentioned in the order of termination is the expiry of six months period of appointment as stipulated in the order of appointment, the real reason was of non production of certificate as project affected person from the District Collector/District Rehabilitation Officer. The orders of appointment no where mention that the petitioners will have to produce a certificate from the competent authority as project affected persons within a stipulated period for continuing in service beyond the period of six months. On the contrary, the appointments of the petitioners were made as per order of the Superintending Engineer, dated 24.06.1996 as project effected persons in permanent vacancies as Junior Clerks on the basis of the certificates to that effect issued by the Executive Engineer of VIDC. The petitioners were denied the same treatment of reinstatement in service upon the production of certificates dated 09.02.1999 from the competent authority, which was given to three other similarly situated persons namely (1) Chopkar, (2) Kamdi, (3) Fating and (4) Manger. The terminations ::: Uploaded on - 21/04/2017 ::: Downloaded on - 27/08/2017 23:07:10 ::: 10 wp2422.09 + 2428.09.odt attracted the provisions of clauses (a), (b) and (d) of Item of of Schedule IV of MRTU and PULP Act. The termination was not in good faith, but with undue haste and in colourable exercise of powers for the false reasons. The termination was discriminatory and resulted in victimization of the petitioners. The Courts below have committed an error in holding that the termination was in accordance with the terms of the order of appointment.
10] Before this Court, it was urged at the time of admission of this matter by the petitioners that the certificate issued by the competent authorities were produced before the labour Court and the proposal for their absorption was under consideration of the respondents. This was also supported by the respondent Nos. 2 to 5 and accordingly, on 9th October, 2010, this Court passed an order as under.
"Heard.
Learned Counsel for the petitioner states that necessary Certificates are produced by the petitioner and proposal for his absorption is now pending with the State Government. Mr. P.B.Patil, Adv., for respondent nos. 2 to 5 also states that the proposal is pending with the State Government. Mr. J.B. Jaiswal, Assistant Government Pleader states that he is awaiting instructions in the matter and that he is not aware of all these developments. In the circumstances, the Writ Petition is admitted for final hearing.::: Uploaded on - 21/04/2017 ::: Downloaded on - 27/08/2017 23:07:10 :::
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Hearing is expedited.
Mr. J.B.Jaiswal, Assistant Government Pleader waives notice on behalf of respondent No.1. Mr. P.B.Patil, Adv., waives notice on behalf of respondent nos. 2 to 5.
Liberty is granted to the parties to mention if the State Government takes any decision. The State Government shall consider the proposal, if any, forwarded to it by the respondents in accordance with law as early as possible and in any case by 30 th November, 2010".
11] Now, the attention of this Court is invited to the communication dated 02.08.2010 issued by the respondent VIDC informing the Government Pleader that the Government Pleader shall appear for and on behalf of the respondent VIDC and its officers. Accordingly, a common affidavit has been filed on record on 27th June, 2011, in which a specific stand is taken that it was misled before this Court that the proposal was forwarded to the State Government for regularization of the petitioners in service and in fact, no such proposal was forwarded to the State Government at any point of time.
12] In fact, the order of regularization of similarly situated employees was issued on 27.08.2009 by the Superintending Engineer, working under VIDC and it was in accordance with Government Resolution dated 23.11.2007. ::: Uploaded on - 21/04/2017 ::: Downloaded on - 27/08/2017 23:07:10 :::
12 wp2422.09 + 2428.09.odt Nothing prevented the respondents to consider the case of the petitioners for reinstatement as per the policy of the Government contained in the said Government Resolution. This is nothing but victimization of the petitioners. The litigation is pending since 1997 without any efforts on the part of the respondents to settle the dispute. The respondents, therefore, will have to bear the financial burden of payment of backwages to the petitioners.
13] In the result, the writ petitions are allowed. The judgment and order dated 21.08.1998 in ULPA Complaint No. 159/97 passed by the labour Court, as confirmed in Revision No. 40/2008 on 09.01.2009 by the Industrial Court are hereby quashed and set aside. The complaints filed by the petitioners before the Labour Court are allowed and the following order is passed.
[i] It is declared that the respondents were engaged in an unfair labour practice under item 1(a), (b) and (d) of Schedule IV of MRTU and PULP Act, in terminating the services of the petitioners on 21.01.1997;
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[ii] The respondents are directed to reinstate the
petitioners forthwith in service on the posts from which they were terminated.
[iii] The petitioners shall be entitled to all the benefits including the backwages and all other consequential benefits with effect from 03.01.1996 i.e. the date with effect from which termination has been given effect to.
[iv] Entire payments be made to the petitioners within a period of two months from today.
Looking to the attitude of the respondents, this Court is required to retain control over the matter. Hence, put up this matter after a period of two months to see the compliance of this order.
JUDGE Rvjalit ::: Uploaded on - 21/04/2017 ::: Downloaded on - 27/08/2017 23:07:10 :::