The State Of Maharashtra vs Sadashiv Maroti Doke
2010 Latest Caselaw 227 Bom

                                          1         Writ Petition No. 177 of 1992


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                              
                    APPELLATE SIDE, BENCH AT AURANGABAD




                                                      
                        WRIT PETITION NO. 177 OF 1992


     1.    The State of Maharashtra




                                                     
     2.    The Sub- Divisional Forest Officer,
           Beed.                                                       ...Petitioners

           Versus




                                       
     1.    Sadashiv Maroti Doke,
                       
           C/o Trade Union Centre,
           Beed.
                      
     2.    The Presiding Officer,
           Labour Court, Aurangabad.                              ...Respondents


                                         .....
      


     Mr. D.R. Korde,, A.G.P. for petitioners.
   



     Mr. Pradeep Shahane, Advocate for respondent No. 1

                                         .....





                                                 CORAM: S. S. SHINDE, J.

DATED: 30th NOVEMBER, 2010

JUDGMENT:-

1 This Writ Petition is filed, challenging the validity and legality of

the Award passed in Reference (IDA) No. 26 of 1986 dated 20th

November, 1990.

The brief facts of the case are as under :-

2 The respondent No. 1 herein filed Reference (IDA) No. 26 of

1986 before the Labour Court, praying therein to reinstatement, back-

wages and for continuation of service in the employment of petitioner

as a watchman. It is the case of respondent No. 1 that he was

appointed as a watchman at Vedkinhi to look after plantation of the

trees and to protect said plaints. He was appointed on 19th July, 1980,

and he was removed from service on 1st April, 1983. It is the

contention of the respondent No. 1 that when he was removed from

service he was getting Rs. 150/- monthly salary.

It is further submitted that while removing the respondent No. 1

from the employment of the petitioners, no one month notice or

compensation in lieu of notice was not given, and therefore, the said

action of the petitioners to remove the respondent No. 1 from the

service without giving one month notice, or compensation in lieu of one

months notice is illegal and incorrect. It is further case of the

respondent No. 1 that when he was removed from the service no

charge-sheet was issued, no departmental enquiry officer was

appointed, no departmental enquiry was conducted, and by violating

principles of natural justice, out of malafide intentions by adopting

illegal meanse and unlawfully he was removed from service by the

petitione1st April, 1983. Therefore, it was prayed in the said Reference

that the removal of the respondent No. 1 from the services of the

petitioner is illegal, and therefore, petitioners should be reinstated in

the service, and his service should be treated as continuous and he

should be given back-wages for the period on which he was removed

from the services. It was also prayed that it should be declared that

the respondent No. 1 is in continuous service of the petitioner and

accordingly all benefits should be extended to the respondent No. 1.

The costs towards filing the Reference may be awarded to the

complainant. It was also prayed that the complainant reserves his right

to add, amend, the pleadings or delete the pleadings, if it is necessary

etc.

3 The petitioners filed affidavit in reply before the Labour court

through its Officer namely Madhukar Bhanudas Toke, working as

Deputy Conservator of forests, Beed on 27th August, 1987. It was

specifically stated in the said reply that the respondent No. 1 was

offered work from 19th July, 1980, on daily wages for protecting the

plants at plantation centre, at Vedkinhi It is further stated that since

work at said place had been over, the services of respondent No. 1

were not required. Therefore, automatically on 1st April, 1983, the

respondent No. 1 was left the service, as there is no work available to

him. It is further submitted that under the control of Deputy

Conservator of Forests, at other places work was going on and the

petitioners never refuse work for the respondent No. 1. The

respondent No. 1 was asked by the petitioners by letter bearing

outward No. 12/Estt./1229, dated 4th August, 1984. However, the

respondent No. 1 never made any attempts to join the work at Pangari

& Mauje. It is further stated that since the respondent No. 1 was

offered work at other places, there was no question of either paying

back-wages or any other reliefs to the respondent No. 1, since

respondent No. 1 himself has declined to join at other places i.e.

Pangari and Mauje.

It is specifically stated in the written statement that the

respondent No. 1 was not appointed on regular establishment. He was

offered work purely on daily-wages. Since the project/work which was

under taken in which the respondent No. 1 was working came to an

end, the respondent No. 1's services were no more required. However,

taking into sympathetic view, the petitioners offered work to the

respondent No. 1 at other places. However, respondent No. 1 had not

joined the services of the petitioners. It is further stated that since the

respondent No. 1 was appointed on daily-wages, there was no

question of issuing notice, charge-sheet, departmental enquiry. The

respondent No. 1 was offered work on daily wages and he was paid

Rs. 5/- per day. It is further stated that the said work was under

Employment Guarantee Scheme, under the said scheme the projects

undertaken for limited funds and grants were given by the

Government. It was further stated that there was no any malafide

intention on the part of the petitioners to deprive the respondent No. 1

from the work. However, since the respondent No. 1 was appointed

purely on daily-wages, the relief claimed by him in the statement of

claim cannot be given to him. Therefore, it was prayed that the said

Reference may be rejected.

4 The Presiding Officer, Labour Court, on the basis of averments

in the statement of claim prayers therein and reply filed by the

petitioners herein passed the final Award on 21st November, 1990.

The Labour Court, framed two issues for its determination which are

as follows :-

"1] Whether the order of termination is legal and proper?

2] Whether the second party is entitled to reinstatement, continuity of service and back wages?"

These are only issues framed by the Labour Court and issue

No. 1 was answered in negative and issue No. 2 was answered in

affirmative. It is further submitted that the Labour Court allowed the

second party i.e. complainant Sadashiv Maroti Toke to examine

himself. However, it is further submitted that the Labour Court has

observed on the date of hearing the petitioners herein remain absent.

Therefore, evidence of second party goes un-challenged. The

Presiding Officer, Labour Court, by cryptic observations allowed the

Reference filed by the respondent No. 1 and directed the petitioners to

reinstate the second party in service with continuity, back-wages with

effect from 1st March, 1983. The copy of this award directed to be sent

to Dy. Commissioner of Labour, Aurangabad for publication.

Being aggrieved by the Award passed by the Labour Court, this

Writ Petition is filed by the petitioners herein.

This Writ Petition was heard for admission before this Court and

it appears that by order dated 23rd March, 1992. It is further appears

that it is not in dispute, in the year 1992, the respondent No. 1 was

again taken in the employment of the petitioners and he is working on

daily wages, since then till this matter is taken for final hearing.

5 The learned A.G.P. appearing for the State submitted that the

Labour Court has framed only two issues and had not framed the other

necessary issues for its adjudication. It is further submitted that relying

on the statement of the respondent No. 1, that he was worked for 362

to 365 days in each year, the Presiding Officer, Labour Court

concluded that respondent No. 1 is entitled for continuity in the service,

back-wages and also for reinstatement. It is further argued that no

opportunity to cross-examine the respondent No. 1 was given to the

petitioners and merely relying on the testimony of respondent No. 1,

the Labour Court allowed the Reference. It is further submitted that

the respondent No. 1 was not appointed on any vacant regular post.

He was appointed as Mazdoor, and his appointment was not made

after following the due procedure. Hence, he cannot claim

reinstatement and continuity in the service. He was taken as Mazdoor

under the scheme, whenever the work is available. It is further

submitted that the provisions of Section 25-f of the Industrial Dispute

Act are not attracted, and therefore, there was no question of

compliance of provisions of said sections. The learned A.G.P. invited

my attention to the reported Judgment in the case of "Anil Bapurao

Kanse V/s. Krishna Sahakari Sakhar Karkhana Ltd., and another,

reported in AIR 1997 S.C. 2698" and submitted that, the Apex Court

has taken a view in the said matter that the termination of persons on

seasonal basis cannot be termed as a retrenchment within the

meaning of Section 2(oo), and they are not entitled for continuity of

services. The learned A.G.P. further placed reliance on reported

Judgment of this Court in the case of "The Divisional Controller,

M.S.R.T.C., Osmanabad V/s. Maruti Bapurao Lokhande, reported

in 2009(5) ALL MR 242" and submitted that in the said case this

Court held principles enunciated in cases of "Secretary, State of

Karnataka V/s. Umadevi (3), (2006), 4 SCC 1 and Mahboob Deepak

V/s. Nagar Panchayat, Gajrula, (2008) 1 SCC 575" could be utilised as

guiding principles in respect of matters wherein orders of

reinstatement or permanency are sought in view of the claim that the

complainant had worked for more than 240 days in a year with a public

body or corporation or instrumentality. The learned A.G.P. further

placed reliance on the reported Judgment of this Court in a case "

Pune Municipal Corporation and others V/s. Dhannanjay

Prabhakar Gokhale, reported in 2000(4) Mh.L.J. 66" and submitted

that merely because an employee continued to render service for 240

days in a year, that by itself will not be sufficient for him to claim

permanency in the post, unless he is able to establish that such a

permanent post duly approved by the competent authority is vacant

and the claimant is duly eligible for being appointed in such post. The

learned A.G.P. further placed reliance on the reported Judgment of

the Hon'ble Supreme Court in a case "Surendra Prasad Tewari V/s.

U.P. Rajya Krishi Utpadan Mandi Parishad & others, reported in

2007(1) ALL MR 461" and submitted that the persons employed on

contractual basis though worked for years together, are not entitled to

any right to be absorbed or made permanent in service. Relying on

various Judgments and also on the basis of grounds taken in the

petition, the learned A.G.P. would submit that this Writ Petition

deserves to be allowed.

6 On the other hand, the learned Counsel appearing for the

respondent No. 1 submitted that the Labour Court, after taking into

consideration the statement of claim and also evidence brought on

record by the respondent No. 1, framed the necessary issues and held

that the respondent No. 1 is entitled for the reinstatement with

continuity and back-wages. Therefore, no interference is warranted in

writ jurisdiction. Therefore, learned Counsel would submit that this Writ

Petition deserves to be allowed.

7 I have given due consideration to the rival submissions,

carefully perused pleading in the petition and annexures thereto,

statement of claim and also reply filed by the petitioners before the

Labour Court and findings recorded by the Labour Court, and I am of

the considered opinion that the impugned Judgment and Award of the

Labour Court, not only suffers from non application of mind but does

not taking into consideration the various pronouncements of Hon'ble

Supreme Court and also of this Court. On perusal of the Impugned

Judgment and Award, it clearly appears that no opportunity of hearing

was given by the Labour Court to the petitioners herein. The Labour

Court has only observed that the petitioners herein are absent on the

date of hearing, and therefore, the evidence of the second party goes

unchallenged. In fact, Judgment does not refer on which date the

matter was fixed for cross- examination of the respondent No. 1, The

Judgment also does not refer to any particulars on which the matter

was fixed for recording the evidence of the petitioners herein.

Therefore, on careful perusal of the impugned Judgment, it clearly

emerges that the Labour Court was in haste and without affording

proper opportunity to the petitioners proceeded to dispose of the

Reference hurriedly, and by cryptic reasons concluded that the

respondent No. 1 herein is entitled for reinstatement, continuity and

back-wages, such order is impressible.

8 At this juncture, it would be relevant to reproduce the entire

findings / reasons recorded by the Labour Court in para No. 6 of its

impugned Judgment.

" On perusal of the statement of working days of the

IInd party as produced in the Reference papers by the Ist party, it is clear that, the IInd party had worked for more than 240 days in presceding year of his termination

and therefore, he is protected u/s 25-F of the I.D. Act. Admittedly, no notice of termination of one month was

issued to the IInd party, nor was paid the notice pay and retrenchment compensation and therefore, his in violation

of the mandatory provisions of Sect. 25-F, of the I.D. Act. I therefore find that, the termination is illegal and improper. I therefore answer the issue No. 1 in the

negative.

In view of my finding to issue No. 1, I find that, the IInd Party is entitled for reinstatement in service with continuity and back wages. I therefore answere the issue

No. 2 accordingly and hence, the following order :-"

9 In my considered opinion, the Labour Court utterly failed in its

duties to advert to the contentions in the written statement filed by the

petitioners. There is no reference to the written statement of the

petitioners in the Judgment. It is not in dispute that the written

statement was filed by the petitioners herein. Even if it is assumed for

a moment that the petitioners remained absent on the date scheduled

for the hearing, the Labour Court was bound to refer to the written

statement filed on behalf of the petitioners. The Presiding Officer,

Labour Court, has not discussed how the provisions of Section 25-F of

the Industrial Dispute Act are applicable in the present case. It is

admitted position that the petitioners is a Government Department.

Secondly, the Labour court has not taken into consideration that the

respondent No. 1 was appointed purely on temporary basis under

Employment Guarantee Scheme, for a particular period on daily

wages. The Labour Court has also not taken into consideration that

though the work was offered to the respondent No. 1 at other places,

the respondent No. 1 did not join the said work, and therefore, the

petitioners cannot be held responsible for refusal of work by the

respondent No. 1. There is no discussion how the respondent No. 1

has completed 240 days in a calender year. There is no discussion

how the Labour Court arrived at the conclusion that the respondent

No. 1 has completed 240 days service. In my considered opinion, the

impugned Judgment and Award deserves to be set aside. It is not

necessary to burden this Judgment by referring pronouncements of

this Court, as well as Hon'ble Supreme Court on the point involved in

this matter that the daily wager has no any right to claim either

continuity, reinstatement or back-wages. Since the respondent No. 1

was offered work on daily-wages, there was no question of giving any

notice, notice or one month's pay in lieu of notice as held by the

Labour Court. Therefore, in my opinion, the impugned Judgment and

order deserves to be set aside. However, in order to balance equities

and keeping in mind the age of the respondent No. 1, and if he is

thrown out of service, his family may be ultimate sufferer,itt would be in

the interest of justice that the respondent No. 1 should be continued on

daily wages till the age of his superannuation. It will be also in the

interest of justice that, if any amount is paid to the respondent No.1

during the pendency of this Writ Petition or whatever benefits he is

already given, should not be recovered from him. It is not in dispute

that the respondent No. 1 has worked from 19th July, 1980 till 1st April,

1983,and thereafter from 1992 till today on daily wages. Therefore, in

order to balance equities and in the interest of justice, I feel it

appropriate that the respondent No. 1 should be continued on daily

wages till he attains age of superannuation, and further no any

recovery should be effected from him.

10. Therefore, this Writ petition is partly allowed. The impugned

Judgment and Order passed by the Presiding Officer, Labour Court,

Aurangabad is set aside, However, since respondent No. 1 is taken

back in service on daily wages from 1992 and he is working till today,

he should be continued on daily wages till he attains age of

superannuation. So far the direction of the Labour Court to consider

the services of respondent No. 1 herein with continuity and back

wages are set aside. The amount if any, which is lying in the fixed

deposits should be returned to the petitioner No. 1. Rule is made

absolute in above terms and the Writ Petition stands disposed of.

In view of the disposal of the Writ Petition, the Civil Application if

any is disposed of accordingly.

( S. S. SHINDE. J.)

SDM* 177.92WP/112010