Bombay High Court

Dattatraya Laxman Rakh vs The State Of Maharashtra on 2 December, 2013

Bench: R.M. Borde, A.I.S. Cheema

                                                 Writ Petition No.7582/2012
                                   1


          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                   
                     BENCH AT AURANGABAD




                                           
                 WRIT PETITION NO.7582 OF 2012




                                          
     Dattatraya Laxman Rakh
     Age 59 years, Occ. Nil,
     R/o Plot No.17, Sinhagad Colony,




                                
     N-6, CIDCO, Aurangabad
     District Aurangabad
                    ig                     ...      PETITIONER


          VERSUS
                  
     1.   The State of Maharashtra
          through the Secretary,
          Education Department,
      


          Mantralaya, Mumbai
          (Copy to be served on
   



          Government Pleader, High Court
          of Judicature at Bombay,
          Bench at Aurangabad)





     2.   Maharashtra State Board of
          Secondary and Higher
          Secondary Education,
          Aurangabad Divisional Board,
          Aurangabad,





          through its Divisional Secretary....      RESPONDENTS


                                   .....
     Shri S.V. Mundhe, Advocate for petitioner
     Shri S.G. Sangle, A.G.P. for respondent No.1.
     Shri D.V. Soman, Advocate for respondent No.2
                                   .....




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                                                   Writ Petition No.7582/2012
                                      2


                            CORAM:        R.M. BORDE &
                                          A.I.S. CHEEMA, JJ.




                                                                      
                            DATED:        2nd December, 2013.




                                              
     JUDGMENT (Per A.I.S. Cheema, J.)

1. Rule. Rule made returnable forthwith. Heard

finally with the consent of parties.

2. The petitioner Dattatraya Laxman Rakh

(hereinafter referred to as the "employee") has filed this

Writ Petition claiming that he was in employment with the

respondent No.2 Maharashtra State Board of Secondary

and Higher Secondary Education, Aurangabad Divisional

Board, Aurangabad (hereinafter referred to as the "Board")

and has retired, but his pensionery benefits have not been

released.

3. It is the case of the employee that :-

(a) He was appointed on 15.11.1984 in the post of

Peon and continued in service till 1.2.1988 when

his services were orally terminated by the Board.

Writ Petition No.7582/2012

He approached the Deputy Commissioner of

Labour at Aurangabad and the dispute was

referred to Labour Court by the Deputy

Commissioner vide order dated 14.2.1989. The

employee and the Board went before the Labour

Court at Aurangabad in Reference (I.D.A.) No.

26/1989. An award was passed in favour of the

employee, directing that he should be reinstated

by the Board in service with continuity and back

wages.

(b) The Board filed Writ Petition No.2560/1993

against the award, which was finally decided by

this Court on 5.3.2012 and the Rule issued earlier

came to be discharged, in favour of the employee.

Labour Court. The employee rendered service of

about 24 years in the office of the Board and now

he has retired on 31.5.2012. In April 2012, the

employee requested the Board to forward his

pension papers. However, the Board did not take

necessary steps. Thus, the employee has prayed

that his pension papers should be forwarded by

the Board to the competent authority and he

Writ Petition No.7582/2012

should be given all benefits to which other

permanent employees are entitled.

4. Respondent No.2, the Board has resisted the

claim of the employee, claiming that all the facts as stated

in the petition were already before this Court in Writ

Petition No.2560/1993, which has been finally decided. In

the Writ Petition, it was argued that there was no ground of

regularisation of services of the employee and this Court

observed that the issue was not before the Court. The

employee has already retired and he was informed that he

was not entitle to benefits of permanency as his services

were continued on the basis of order of this Court for 20

years. The Board has prayed that the petition be rejected.

5. We have heard the learned counsel for both the

sides putting up their respective cases on above lines. We

have gone through the record.

6. Record shows that the employee moved the

Deputy Commissioner of Labour, Aurangabad and a

reference under Sections 10 and 12 of the Industrial

Disputes Act, 1947 (I.D. Act for short) was referred to the

Writ Petition No.7582/2012

Labour Court for decision. In the Labour Court, the

employee claimed that he had been appointed by the Board

w.e.f. 15.11.1984 in Class IV service as a Peon and worked

on daily wages continuously. After completing three years,

he claimed privileges of permanent employee, but was

terminated w.e.f. 1.2.1988 without assigning any reason or

following any procedure. The Board appointed fresh

candidates for getting the same work done.

                      ig                                            He was not

     given   any     notice   or    notice       pay     or      retrenchment
                    
     compensation as per Section 25-F of the I.D. Act.                       Before

the Labour Court, the Board claimed that, it was not an

industry, and the services of the employee had been taken

purely on temporary basis. The Labour Court, after

recording the evidence, recorded finding that the Board

was indeed an industry. It also found that the Board had

employed fresh candidates for doing the work which was

being taken from the employee and there was breach of

Section 25-F of the I.D. Act. The Labour Court recorded

that, termination of the employee was illegal and the

employee was entitled to be reinstated in service. It also

found that the employee was entitled for continuity of

service and back wages. Consequently, the Board was

directed to reinstate the employee in service with

Writ Petition No.7582/2012

continuity and back wages.

7. Perusal of record of Writ Petition No.2560/1993,

which was filed by the Board in this Court shows that, it

was not disputed that the Board had engaged the employee.

It was claimed that the employee was engaged on purely

temporary basis as daily rated worker as and when

required and after 15.11.1984 he was engaged as a casual

labour. The services of the respondent (employee) were

terminated w.e.f. 1.2.1988 as his services were no longer

required.

8. Various contentions were raised in the Writ

Petition, but the Board itself mentioned in the Writ Petition

that it had not been able to lead necessary evidence

"because of some unavoidable circumstances".

9. It has been now claimed by the Board that, in

spite of the earlier Writ Petition, the employee was not

entitled to retiral benefits as although there were directions

to reinstate the employee, he was not given benefits of

permanency. We do not find substance in this defence of

the Board. Admittedly, the employee had been engaged

Writ Petition No.7582/2012

during the period 15.11.1984 to 1.2.1988, whereafter the

dispute started. While the employee claimed to have been

continuously engaged during this period, the Board

resisted, but admittedly did not bring on record the

necessary evidence, and the Labour Court directed

reinstatement with back wages. Record of the Writ Petition

No.2560/1993 shows that although this Court initially had

granted stay to the judgment of the Labour Court when the

writ petition was admitted, but subsequently the stay came

to be vacated and the Board was required to implement the

award. The employee was required to file Contempt

Petition No.263/1995, in which orders were passed on

11.12.1995. Later, another Contempt Petition No.101/1996

was required to be filed by the employee, in which following

order came to be passed on 25.7.1996 :-

" This is a second contempt petition, whereby the petitioner is forced to approach this Court on

failure of the respondent No.1 to comply with the order passed by the Labour Court.

The petitioner was employed as daily rated employee with the respondent No.1 but his services were terminated for which, the petitioner has filed complaint before the Commissioner of Labour, Aurangabad on 23.1.1989, wherein he has claimed benefits of a permanent employee. The Deputy Commissioner of Labour, therefore, made a reference I.D.A. No.26/1989 before the Labour Court, Aurangabad. By an award dated 17.7.1993,

Writ Petition No.7582/2012

the Labour Court allowed the reference and directed the respondent No.1 to reinstate the petitioner in

service with continuity and back wages. Non compliance of the said award gave rise to the filing of Contempt Petition No.263/1995. That contempt

petition came to be disposed on 11.12.1995 by the following order :

" The respondent No.1, who is

Divisional Secretary is present personally in Court. This petition is filed by the original respondent in W.P.2560/93 for taking action against respondent No.1 for contempt of Court for not implementing

the award passed by the Labour Court on 17.7.1993.

Shri Joshi, learned counsel for the respondent No.1, under instructions, makes the statement at the Bar that

respondent No.1 will implement the Award of Labour Court within six weeks from today but the reinstatement of the original respondent in the writ petition will be subject of the result in the writ petition.

Shri Dhongade, counsel for the petitioner accepts this statement.

In the circumstances, without going into any details of the allegations made by the petitioner, I find that the statement

made by Shri Joshi, counsel for the respondent is reasonable to be acted upon and accordingly, it is directed that respondent No.1 shall implement the award of the Labour Court, which is impugned in the writ petition within six

weeks from today. However, that will be subject to the result in writ petition. Contempt Petition, therefore, stands disposed of accordingly."

It may be stated that the respondent No.1 has filed the Writ Petition No.2560/1993 challenging the award but this Court declined to stay the award for the reasons recorded in the order dated 11.12.95. The non compliance of the order passed in Contempt Petition No.263 of 1995 again gave rise to the filing

Writ Petition No.7582/2012

of the Contempt Petition No.101/1996.

In reply, the respondent No.1 wants to resist the contempt petition on twofold grounds, firstly, that the respondent No.1 complied with the order of

the Labour Court as well as this Court by making deposit of back wages on the last pay drawn by the petitioner as daily wages and secondly, that the petitioner was intimated in writing to resume his

duties as a daily rated employee by letter dated 25.1.96.

It is thus clear that the respondent No.1 while treating the petitioner as daily rated employee read

the order of the Labour Court as well as this Court so as to reinstate him as a daily rated employee.

The respondent No.1, however, seems to have overlooked the main claim made before the Dy. Commissioner of Labour, wherein he has claimed permanency making grievance about non payment of

regular salary as a Peon in the office of the respondent No.1. The Labour Court indeed granted the reference and therefore the award must be read in its true sense and spirit that the petitioner was directed to be reinstated as a Peon in the pay scale

as applicable to the Class IV employee and not as a daily rated employee.

Indeed, the petitioner points out several circumstances to show how the repsondent No.1 intentionally avoided to obey the orders passed by

the Courts previously.

It is however, not necessary to go into the question about disobedience of the order of this Court or the Labour Court since Shri Joshi, learned counsel for the respondent No.1, under instructions,

made a statement on the earlier day that the petitioner will be reinstated in the letter and spirit of the award. Accordingly, Shri Joshi produces the order made today under the signature of the Divisional Secretary, reinstating the petitioner in the form of appointment letter, on the post of Peon subject to the decision in the Writ Petition No. 2560/1993 in the grade of Rs.750-12-870-EB-14-940 as applicable to Class IV employees.

The letter however, embodies three more

Writ Petition No.7582/2012

conditions at Sr.Nos.4, 5 and 6. I do not think that these conditions are necessary when the order of

reinstatement is to be implemented. These conditions are therefore, not to be enforced against the petitioner for the present.

Shri Phatak, learned counsel for the petitioner, therefore, accepts the appointment subject to his contention that the respondent No.1 will have to pay

the difference in wages or salary, as the case may be till the petitioner resumes his duty in the appropriate proceeding. The respondent No.1 stated that the back wages were deposited on the basis that the petitioner was a daily rated employee.

This position having not been disputed by the petitioner, the question of back wages on basis of

regular employment as a Peon will have to be dealt with independently in the writ petition.

Since I find that there is now compliance of

the order of reinstatement in its proper sence, I do not think that any further action is needed to be taken in the contempt petition.

The letter produced by Shri Joshi, learned

counsel for the respondent No.1 is taken on record by making it clear that conditions 4, 5 and 6 stand

deleted from the letter.

The contempt petition thus stands disposed of with no order as to costs."

(Emphasis supplied)

10. Thus, it is clear that, during the pendency of the

earlier writ petition, this Court referred to the true sense and

spirit of the award, & the Board was required to reinstate

the employee in letter and spirit of the award, in the form of

appointment letter on the post of Peon in the garde of Rs.

750-12-870-EB-14-940 as applicable to Class IV employees at

Writ Petition No.7582/2012

that time. Of course, the Board took the steps claiming that it was

subject to the decision of the Writ Petition.

11. After developments as above, on 25.7.1996, the

earlier Writ Petition had come up for final hearing before the

learned Single Judge of this Court on 5.3.2012. The learned

Single Judge referred to the dispute and earlier order dated

11.12.1995 in the matter and made following observations in

paragraph Nos.6 to 8 of the order :-

"6. It is submitted by the learned counsel for the respective parties that pursuant to the said statement the present respondent has been reinstated in service and is due to retire on 31.5.2012. In view of that, I do not feel it

appropriate to unsettle the said position which is in force for more than 16 years, as the employee is

likely to retire and the order impugned is already implemented by reinstating the respondent.

7. Shri Soman, the learned counsel tried to

submit that the respondent cannot claim regularization pursuant to the orders passed by the Labour Court, as he is not appointed by following due procedure of law. The same is not an issue in the present matter and as such the said argument is not considered.