Bombay High Court
The Dy.Conservator Of Forest, ... vs Anwar Ali Khan on 8 October, 2015
Bench: Ravi K. Deshpande
1 wp1366.09.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 1366 OF 2009
1] The Deputy Conservator of Forest,
Wild Life, Gondia, District Gondia.
2] The Assistant Conservator of Forest,
Wild Life, Navegaon Bandh,
Tah. Morgaon (Arjuni), Distt. Gondia.
3]
The Range Forest Officer,
Navegaon Bandh,
Tah. Morgaon (Arjuni), Distt. Gondia ... PETITIONERS
...VERSUS...
Anwar Ali Khan,
aged about 43 years,
R/o. Jamnalal Bajaj Ward,
Bhandara, Tah. And Distt. Bhandara...... RESPONDENT
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Shri P.A.Gode, counsel for Petitioners-employer.
Shri V.P.Marpakwar, counsel for Respondent-employee
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CORAM: R. K. DESHPANDE, J.
th
DATE : 8 OCTOBER, 2015 .
ORAL JUDGMENT
1] Complaint (ULPA) No. 16 of 1999 filed before
the Labour Court at Gondia under Section 28 read with Item
1 of Schedule IV of M.R.T.U and P.U.L.P Act challenging the
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oral termination by respondent No.1 with effect from
23.08.1999 was allowed on 10.10.2005. It was held that the
petitioner-employer is engaged in an unfair labour practice as
covered by Item 1(a) and (b) of Schedule IV of the said Act
and the direction was issued to reinstate the complainant to
his former post of driver with continuity in service with effect
from 23.08.1999. The Labour Court also directed the
payment of full backwages to the complainant.
2] In Revision (ULPA) No. 106 of 2005, the
Industrial Court at Bhandara vide its judgment and order
dated 14.11.2005 set aside the order of payment of
backwages, but maintained the order of reinstatement with
continuity in service on the post of driver and directed the
employer to provide the complainant an alternate job on par
with the job of driver by protecting his salary or wages as
driver. This writ petition was preferred after lapse of period of
five years on 15.01.2009. This Court granted interim relief of
stay on 08.04.2009 to the judgment delivered by the
Industrial Court. The interim relief so granted is continued
pending the decision of this writ petition.
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3] The respondent-employee claimed that he was
appointed initially on 21.01.1983 as driver and he was
terminated on 21.12.1984, which was the subject matter of
challenge in Complaint filed before the Labour Court.
Ultimately, by virtue of final order passed on 15.04.1998 by
the Industrial Court in Revision ULPA No. 83 of 1986, the
complainant was directed to be reinstated in service.
Accordingly, the complainant was reinstated on 18.05.1998.
The complainant continued to work on the post of driver till
24.04.1999.
4] The complainant proceeded on leave from
25.04.1999 and thereafter he was not permitted to join the
duties. Hence, treating it as oral termination with effect from
24.04.1999, Complaint ULP No. 79 of 1999 was preferred
before the Labour Court. On 21.10.1999, the petitioners
filed the pursis in the said complaint, the contents of which
are reproduced below.
In the Court of Labour Judge, Bhabndara
Complaint (ULPA) No. 79/99
Anwar Ali Khan
vs
RFO Navegaon & Dy. C.F.
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PURSIS
The respondents did never terminate services
of complainant & are still ready to provide works to
complainant. Hence this pursis is filed.
Bhandara sd/- R.F.O Navegaon
Dt. 21.10.99 21.10.99
Respondent
sd/-
Counsel for respondents
The complainant was accordingly permitted to work with
effect from 21.10.1999. The complaint was pending.
5] During the pendency of the aforesaid complaint,
the petitioner came to be terminated on 15.01.2001 from
service as driver on the ground that the work of driver did not
exist. By virtue of interim order dated 06.02.2002 the
petitioner-employer was directed to allow the complainant to
work on his former post of driver or to provide him any
alternate job till the vehicle gets repaired. It is the stand
taken by the petitioner that the complainant was provided the
job of Van-majoor and not of a driver. The Labour Court
allowed the complaint on 10.10.2005 and directed
reinstatement of the complainant to his former post of driver.
This order is confirmed in Revision on 14.11.2005 which is
the subject matter of challenge in this writ petition. The
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complainant performed the said job till 08.04.2009, when he
was again terminated for the reason that this Court has
stayed the order passed by the Industrial Court impugned in
this petition on 08.04.2009. Since then the complainant is out
of employment.
6] Before the Labour Court, the complainant has
entered the witness box and deposed his case. The
complainant was cross examined by the petitioner-employer.
The employer examined one Dnyaneshwar Natthuji
Meshram, working as Range Forest Officer at the same place
since 18.06.2005. In the cross-examination, this witness has
stated as under;
"I cannot tell whether the Jeep No. Mh-31-G-4121
was in running condition till October 2001, because
the relevant log-book is not available with me. During
the relevant period there were two vehicles Jipsy and
Jeep, were available with our Office. It is true to say
that on 15.01.2001 services of the complainant were
terminated orally. He again approached the Labour
Court challenging his termination, by this present
proceeding. By interim relief the Court directed
reinstatement of the complainant. While terminating
the services of the complainant, notice was not
issued to him nor payment in lieu of notice nor
compensation was paid to him. The complainant's
name was not included in the seniority list of drivers.
The two Jeep which are available with our Officer are
being driven by driver K.D.Thakare and Permanent
Van-majoor Shripat Jambhulkar. It is true to say that
post of a driver is vacant at our office, since 1998 till
today. It is not true to say deliberately complainant is
not posted on that post. I do not know that
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complainant was doing job of driver with our office
since 1983. I cannot tell since when he has been
working with our office as a driver. I have not gone
through that official record. It is not true to say I do
not know anything and I am deposing false".
7] Both the courts on relying upon the aforesaid
evidence led by the petitioner-employer held that the
employer has deliberately and unnecessarily kept the
complainant out of the post of driver and the work performed
by him was assigned to another dailywager Van-majoor, who
was regularized in service. It is apparent that till the decision
and the date of recording deposition of the witness i.e.
19.08.2005, the post of driver was lying vacant, but the said
job was not provided to the complainant. The Industrial Court
has found that thereafter the work of driver was not available
because the vehicles were sent for repairs. Hence, the
Industrial Court modified the order of Labour Court by adding
that the petitioner shall provided an alternate job to the
complainant on par with the job of driver by protecting his
salary/wages as driver.
8] From the undisputed factual position and the
findings recorded by the Courts below, it is apparent that the
respondent-employee has been performing the job of driver
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from 21.08.1983. His reinstatement by order of the revisional
Court passed on 15.04.1998 was on the post of a driver,
which has attained the finality. The complainant continued to
perform the said job but proceeded on leave with effect from
25.04.1999 and when he went to join the duties, he was not
provided the job of driver, though there was willingness on
the part of the petitioners to provide the complainant the job
of Van-majoor. The complainant claimed relief of
reinstatement on the post of driver. In response to the same,
the contents of the pursis at Exh. 11 filed by the petitioner
becomes significant. The pursis does not state that the
complainant is to be provided the work as Van-majoor and
not of a driver.
9] There is a clear admission given by the witness
examined by the petitioner that while terminating the services
of the complainant, he was neither given any notice nor pay
in lieu of notice. There was no contest on the factual aspect
that the complainant worked for 240 days preceding the date
of his termination from service on 24.04.1999. The
petitioners showed willingness to provide the complainant the
job of Van-majoor, but resisted the claim for continuation of
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the complainant on the post of driver. The courts have found
that the complainant has been working on the post of driver.
The finding of fact is based the evidence led by the
petitioner-employer. The evidence has also been brought on
record that till the decision by the Industrial Court, the work of
driver was available. The present writ petition has been
preferred on 16.01.2009 i.e. after lapse of period of 4 years
from the judgment and order passed by the Industrial Court
on 14.11.2005, which is impugned in the present petition.
Surprisingly, the complainant has been terminated from the
post of Van-majoor with effect from 08.04.2009 i.e. the date
on which this Court passed an interim order staying the order
passed by the Industrial Court. Thus, it is a clear case where
the employer was engaged in an unfair labour practice under
Item 1(a) of Schedule IV of the M.R.T.U and P.U.L.P Act.
No fault, therefore, can be found with the view taken by the
Courts below. The writ petition is dismissed.
JUDGE
Rvjalit
