Bombay High Court
Godawari Marathwada Irrigation ... vs Dnyanoba Bhimrao Yadav & Ors on 8 October, 2015
Bench: R.V. Ghuge
WP/552/1995
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 552 OF 1995
WITH CIVIL APPLICATION NO. 6198 OF 2002
AND CIVIL APPLICATION NO.7321 OF 2003
1.The State of Maharashtra
Through Executive Engineer,
Minor Irrigation Division,
Latur Tq. and Dist. Latur.
2. The Sub-Divisional Officer
Minor Irrigation Sub-Division
Nilanga, Dist. Latur. ..Petitioners
Versus
1. Dnyanoba Bhimrao Yadav,
Age 35 years, Occ. Nil,
R/o Borphal, Tq. Ausa,
District Latur.
2. The Ld. Judge,
Labour Court, Latur.
3. The Member,
Industrial Court, Solapur. ..Respondents
...
Special Counsel for Petitioner : Shri P R Tandale
a/w Shri S.G.Sangle, AGP
Respondents 2 and 3 : Deleted.
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: October 08, 2015
...
ORAL JUDGMENT:-
1. Leave to delete respondents 2 and 3 is granted. Deletion be carried
out forthwith.
2. This petition was admitted by order dated 2.2.1995.
WP/552/1995
3. The petitioners are aggrieved by the judgment and order dated
31.10.1992, delivered by the Labour Court in Complaint (ULP) NO.10 of 1989
and the judgment of the Industrial Court dated 24.6.1994 delivered in
Revision (ULP) No.4 of 1993.
4. Despite court service, after admitting this matter, none appears for
the respondent. The respondent had challenged his termination dated
30.4.1985 by filing Complaint (ULP) No.10 of 1989.
5. The petitioners submit that the Tahsildar appointed the respondent
as a watchman on the Employment Guarantee Scheme (EGS), when the
project for construction of Walwade Percolation Tank was undertaken.
After the project was completed, the respondent was disengaged on
30.4.1985. This specific stand was taken in the Written Statement at
Exhibit C/8 for opposing Complaint (ULP) NO.10 of 1989 filed by the
respondent alleging illegal retrenchment.
6. It is further pointed out that the document at Exhibit C/16 indicated
that the respondent was working on EGS from November 1982 till April 1985.
The moment the project was over, the respondent was disengaged. The
Tahsildar used to pay him daily wages under the EGS. It is, therefore,
submitted that merely because the respondent had completed 240 days in
employment, would not mean that a right was created in the respondent.
WP/552/1995
7. The petitioners have replied upon the judgment of this Court in the
matter of State of Maharashtra Vs. Bhausaheb Nathu Falke [2002 (1) Mah.
L.R. 74 (SC)], to support their contention that the employees who are
offered work in the EGS Scheme, cannot claim reinstatement or
regularization He, therefore, prays for the quashing and setting aside of
the impugned judgments. It is stated that the respondent is not in
employment for the last 30 years.
8.
I have considered the submissions of the learned Advocate for the
petitioners. Due to the demise of the earlier Advocate of the respondent,
notice was issued and the same was served upon the respondent on
4.6.2005. No appearance has been caused by him in this matter.
9. I have gone through the complaint filed by the respondent wherein it
was contended that he has worked continuously from 1979 till 1985. Section
25(F) of the Industrial Disputes Act, 1947 was not complied with, while
terminating his services.
10. By the impugned judgment of the Labour Court, it is evident that the
petitioners established the fact of the project undertaken for construction
of Walwade Percolation Tank. It was also admitted that the Tahsildar used to
make the payment to the respondent. Besides the oral statement of the
respondent, there was no evidence before the Labour Court to conclude
that he had worked from 4.7.1979 till June 1985.
WP/552/1995
11. I find that the petitioners themselves have admitted that the
respondent was working as a Watchman to guard the construction site of
Walwade Percolation Tank. He was engaged on EGS, which has been lost
sight of by the Labour Court. In any situation, Section 2(oo)(bb) of the
Industrial Disputes Act, 1947 would be applicable to the case of the
respondent. As the project work has come to an end, the respondent was
disengaged. The exception to retrenchment under Section 2(oo)(bb)
squarely applies in this situation.
12.
Notwithstanding the above, this Court in the case of Bhausaheb
Nathu Falke (supra) has observed in paragraph Nos.20 and 21 as follows:-
"20. The records, in the cases in hand, apparently disclose that the
recruitment of the respondents was under Employment Guarantee
Scheme, the Collector was the controlling authority of the said
scheme and providing funds for the salary and wages of the
employees engaged under the said scheme and the employment of
such employees was for the period during which the work under the
scheme was available. As rightly submitted by the learned Assistant
Government Pleader, in this regard, such employment automatically
stands terminated on the expiry of the work undertaken under a
particular scheme in relation to which the respondents were
employed, as has been observed and ruled by the Apex Court in the
above referred decision.
21. Ruling of the Apex Court in the cases of Madhyamik Siksha
Parishad, U.P. Vs. Anil Kumar Mishra and others, is clear to the
effect that the employees engaged for specified work and for
specific period of time, merely because such period of time
WP/552/1995
completed 240 days in a year, cannot create right in favour of such
employees to claim the status of a "workman" on par with those
define under Section 2(s) of the Industrial Disputes Act, 1947."
13. In the light of the above, I find that the conclusion of the Labour
Court as well as the Industrial Court is rendered erroneous. Despite noting
the specific stand of the petitioners and Exhibit C/16, indicating the work
performed by the respondent as a Watchman on EGS and in the absence of
any evidence putforth by the respondent besides his oral statement, both
the impugned judgments are rendered unsustainable.
14. In the light of the above, the impugned judgments dated 31.10.1992
and 24.6.1994 are quashed and set aside. Complaint (ULP) No.10 of 1999,
therefore, stands dismissed. Consequentially, the Revision Petition does not
survive.
15. Rule is made absolute in the above terms.
16. Pending Civil Applications stand disposed off, in the light of the
above.
( RAVINDRA V. GHUGE, J. )
...
akl/d
