Sharad vs Forest Development Corporation
2010 Latest Caselaw 153 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                  
                     BENCH AT AURANGABAD.




                                          
                 WRIT PETITION No. 796 OF 1990




                                         
    Sharad S/o Jagappa Barjibhe,
    Age 31 years, Occu. Service,
    R/o Cinema Road, At, and
    Post : Yawal, Taluka Yawal,
    Dist. Jalgaon.                                ...PETITIONER




                            
                  ig        VERSUS
                
    1]   Forest Development Corporation
         of Maharashtra Ltd., Nasik
         Division, having its office at
         Kalikamata Mandir, road, Nasik
         (Notice to be served on Regional
      

         Manager)
   



    2]   Divisional Manager,
         Forest Development Corporation,
         Yawal Division, at & Post :
         Yawal, Taluka Yawal, District
         Jalgaon.





    3.   The Industrial Court,
         Nashik                                     ..RESPONDENTS.

                                 ...





                        ...
    Mr.R.P. Dhase, Advocate for Petitioner
    Mr. Parag Shahare Advhocate h/f Pradeep                      Sahare,
    Advocate for respondent Nos. 1 & 2



                            CORAM :- S.S. SHINDE, J.

             DATE OF JUDGEMENT         :16th November,2010




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    JUDGMENT:

This Writ Petition takes exception to the

Judgment and order dated 19th October, 1989 passed by

the Industrial Court, at Nashik in complaint (ULP) No.

67 of 1988, to the extent it refuses prayer of the

petitioner conferring on him status of Clerk in the

employment of the respondents.

Brief facts of the case are as under :-

2. It is the case of the petitioner herein who

is original complainant (Here-in-after referred as

'complainant') that he was employed temporarily on

daily wages with the respondent with effect from 1st of

April, 1982. According to complainant, he is

continuously in service with the respondent as a

workman, as daily wages with effect from 1st of April,

1982. There was no break in his service. Complainant

worked with the respondents for more than 240 days in

each each of the years, and he has paid daily wages at

the rate of Rs. 9.50 paise per day.

According to the complainant, he is continued

by the respondents as a temporary on daily wages from

year to year basis, in order to deprive him of the

benefits available to a permanent workman. It is the

case of the complainant that the respondent recruited

one Shri Badgujar with effect from 31st December 1987

and Shri A.B. Kulkarni from 29th April, 1987 in the

regular establishment of clerk. Although their

candidature was not recommended by the local

Employment Exchange.

The respondents than requisitioned a list

from local employment exchange for taking interviews

for appointment in the regular establishment of

clerks. Those interviews were scheduled on 28th March,

1988, and the complainant wanted that the respondents

shall be prevented from recruiting the above

candidates unless the complainant is considered for

his absorption in the regular cadre of clerk.

It is the case of the complainant that he is

qualified for the post of Clerk. He therefore, filed

complaint seeking necessary directions to the

respondent to absorb him in the regular establishment

of clerk. The complainant also filed application

Exhibit U-2 under Section 30(2) of the Act seeking

immediate interim relief. Considering the application

and hearing the Advocate appearing for the

complainant, the respondent was directed to continue

the complainant in his present job at the same station

till the disposal of the application Exhibit U-2. The

parties then proposed that the order dated 28th March,

1988 may be continued till the disposal of the main

complaint.

3. The respondents had filed written statement

at Exhibit C-4 on 17th June, 1988 contending therein

that the complainant being employed as a temporary on

daily wages, is not entitled for his absorption in the

present cadre of Clerk. The complainant is not

qualified for appointment as a Clerk in the regular

cadre.

4. After recording the evidence, and heraing the

respective parties, Industrial Court, Nashik passed

the following order :-

                "             It    is   hereby       declared          that      the
                respondents        are       indulging       in      an       unfair

labour practice under Item 6 of Schedule IV of the M.R.T.U. And P.U.L.P. Act, 1971 in

continuing the complainant as a temporary on

daily wages for years.

The respondent is hereby directed to stop and desist from the unfair labour practice with immediate effect and to pay

the complainant wages and provides him all other facilities which are available to his counter-parts employed in permanent establishment, from the date of complaint

i.e. 28th Mach, 1989.

ig The arrears of wages shall be drawn and paid to the complainant within a period

of two months of this order.

No order as to costs. "

5. Aggrieved by the Judgment dated 19th

October, 1989 in complaint (ULP) No. 67 of 1988,

thereby refusing the relief of status of clerk to the

petitioner in the establishment of the respondent

herein, this Writ Petition is filed by the petitioner.

6. The learned Counsel appearing for the

petitioner invited my attention to the pleading in the

petition, grounds taken therein, annexures thereto and

all other relevant documents and submitted that since

the petitioner was working with the respondent NO. 2

i.e. Divisional Manager, Forest Development

Corporation, Yawal with effect from 1st April, 1982 as

a clerk, he is entitled to be absorbed as a Clerk in

the establishment of the respondent No. 2. It is

further submitted that when the complainant was filed,

the petitioner has served as clerk on daily wages,

without even a break of a single day, and through out

his service carrier the petitioner has rendered

bootless service.

                          ig     It    is    further      submitted        that       the

    petitioner       has      discharged         duties   of     clerical         work,
                        
    accounting,       inward-outward,             preparing      bonus       account,

    maintaining          account        of        World      Food        Programme,

maintaining cash-book and maintaining other registers

as directed by the officers. The learned Counsel

further submitted that this fact is supported by an

extract of muster filed by the respondents before the

Industrial Court, Nashik, which shows that under 30

items shown in the extract the petitioner served for

319 days from March, 1987 to February, 1988 and he has

served for 345 days for the period March, 1986 to

February, 1987. The learned Counsel further submitted

that the service record of the petitioner maintained

by the respondent was sufficient to confer the status

of Clerk on the petitioner. The learned Counsel

further submitted that though the petitioner was

qualified, the Industrial Court has not considered the

said fact and also evidence brought on record and

record maintained by the respondents about the

services rendered by the petitioner as a clerk in the

establishment of respondent NO. 2. Therefore, this

petition may kindly be allowed.

7. On the other hand, learned Counsel appearing

for the respondents submitted that since the

respondent was not qualified, therefore, Industrial

Court, Nashik has rightly rejected the claim of the

petitioner that he should be absorbed as a Clerk on

permanent basis in the establishment of the respondent

No. 2 herein.

8. I have given due consideration to the rival

submissions and I am of the opinion that since present

petitioner was not fulfilling the prescribed

qualification for the post of Clerk, the Industrial

Court, Nashik, has rightly decline the relief to the

petitioner i.e. he should be absorbed as a Clerk on

permanent basis in the establishment of respondent No.

2. The Industrial Court, Nashik, has recorded the

findings of facts in para No. 6 and held that the

petitioner was not entitled for the appointment on the

post of Clerk because he has not passed the typing

examination from the recognised institution with a

speed of 30 W.P.M.

It is not in dispute that such qualification

was prescribed for the post of Clerk. Though the

petitioner herein ig produced certificate from the

institution where he has taken training of typing to

the effect that he can conveniently type 30 to 40

words per minute. However, fact remains that said

institution was not recognised. Therefore, Industrial

Court, Nashik, taking into consideration the

qualification of the petitioner decline to grant

relief of absorption in permanent cadre of clerk.

The Industrial Court, Nashik, has also

recorded the finding of fact that the petitioner who

is original complainant is getting Rs. 9.50 paise per

day which fact indicate that the complainant is

appointed as a helper on daily wages and not as a

clerk because the daily wager available to a clerk

must be much more than Rs. 9.50 paise per day. There

is however, no evidence led by the petitioner or by

the respondents on this aspect.

9. Taking into consideration the important

aspect of the matter that the petitioner was not

qualified to be appointed on the post of clerk, the

Industrial Court, Nashik, decline the relief to the

petitioner that he should be absorbed on the post of

Clerk. Therefore, to that extent the findings recorded

by the Industrial Court, Nashik needs no interference.

The other findings which are recorded in favour of the

petitioner are kept intact.

10. In the light of the above the Writ Petition

stands dismissed. However, it is made clear that

whatever benefits are ordered by the Industrial Court,

Nashik by way of impugned Judgment and order to the

petitioner are not distrubed by this Court in this

Writ Petition.

The Rule stands discharged. Writ Petition

stands dismissed.

In view of the dismissal of the Civil

Revision Application, Civil Application, if any stands

disposed of accordingly.

[S.S. SHINDE, J]

SDM*796.91WP/21010