Bombay High Court
Arun Rambhau Phatak vs Mahatma Phule Krushi Vidyapeeth, ... on 12 October, 2015
Bench: R.V. Ghuge
*1* 9.wp.4344.4565.14.con
kps
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4344 OF 2014
Arun Rambhau Phatak,
Age : 49 years, Occ : Labour,
R/o Sade, Taluka Rahuri,
District Ahmednagar.
...PETITIONER
-VERSUS-
Mahatma Phule Krushi Vidyapeeth,
Rahuri, Taluka Rahuri,
District Ahmednagar.
Through its Registrar.
...RESPONDENT
WITH
WRIT PETITION NO.4565 OF 2014
Sarjirao Mahadeo Bhalerao,
Age : 56 years, Occ : Labour,
R/o Digras, Taluka Rahuri,
District Ahmednagar.
...PETITIONER
-VERSUS-
Mahatma Phule Krushi Vidyapeeth,
Rahuri, Taluka Rahuri,
District Ahmednagar.
Through its Registrar.
...RESPONDENT
...
Advocate for Petitioner : Shri Barde Parag Vijay.
Advocate for Respondents : Shri Shahane Pradeep L. and Shri Shahane
Parag.
...
CORAM: RAVINDRA V. GHUGE, J.
*2* 9.wp.4344.4565.14.con
DATE :- 12th October, 2015
Oral Judgment:
1 Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2 In the light of the order that I propose to pass, I am not
required to refer to the extensive submissions of the learned Advocates in
their entirety since it is likely to lead to certain observations which would
affect the respective rights of the litigating sides.
3 The facts relevant for deciding these two petitions are as
under:-
(a) Both the Petitioners were working as Helpers to the Cooks on
daily-wage basis from 1984 to 2001.
(b) In 2001, the Agricultural Universities in the State of
Maharashtra resorted to mass retrenchment.
(c) Several of such employees are litigating against such
Agricultural Universities.
(d) By an advertisement dated 21.07.2004 issued under the
signature of the Registrar of the Respondent/ University, all
the retrenched daily-wagers were informed about the
recruitment of four posts as Cooks.
*3* 9.wp.4344.4565.14.con
(e) The advertisement was locally circulated in the University and
the intention of the University appears to be that the
retrenched daily-wagers be given preference while causing
such recruitment.
(f) The advertisement dated 21.07.2004 is self explanatory.
(g) A specimen copy of the interview call letter is placed on
record dated 07.08.2004.
(h) Neither in the advertisement, nor in the interview call letter,
has the University indicated, in any manner whatsoever, that
these four posts of Cooks are being sought to be filled up
purely on temporary basis and in an emergent situation.
(i) Both these Petitioners were issued 11 months' appointments
on two occasions in the year 2004-2005 and 2005-2006.
(j) Since the Petitioners were orally terminated, they preferred
industrial disputes which were referred to the Labour Court
and registered as Reference (IDA) Nos.30 and 32 of 2009.
(k) The Respondent/ University filed it's Written Statement and
took a stand that though the Petitioners have completed 240
days in continuous and uninterrupted service of the
University, Section 2(oo)(bb) of the Industrial Disputes Act,
1947, which carves out an exception to retrenchment, is
squarely applicable in this case.
*4* 9.wp.4344.4565.14.con
(l) By the impugned judgments and awards dated 06.08.2013,
though the Labour Court concluded that the Petitioners have
completed 240 days, both the reference cases have been
answered in the negative concluding that Section 2(oo)(bb)
applies to these cases.
4 The grievance of the Petitioners in a nutshell is that they were
neither claiming regularization with the Respondent/ University, nor were
they appointed on any project. They were made to believe that the
recruitment is being undertaken strictly in accordance with the procedure
prescribed and in pursuance to the four vacant posts of Cooks.
5 Shri Shahane, learned Advocate for the Respondent/
University, has strenuously supported the impugned awards. He submits
that 11 months appointment orders were issued on two occasions to these
Petitioners. There were breaks in between the first termination and the
second appointment.
6 Shri Shahane submits that the appointment order has been
reproduced in the impugned judgment by the Labour Court and which
clearly indicates that these Petitioners were appointed as per Statute
No.84 of the Maharashtra Agricultural Universities Statute, 1990. The said
*5* 9.wp.4344.4565.14.con
Statute enables the University to appoint persons on adhoc basis
considering an emergent situation (Apatkaleen Vyavastha). Neither have
the Petitioners been recruited by following the due procedure of law, nor
can their appointment be said to be regular appointment as against
permanent vacant posts.
7 Shri Shahane relies upon the judgment of the Apex Court in
the case of Secretary, State of Karnataka v/s Umadevi reported at AIR 2006
SC 1806 : 2006(4) SCC 1, to contend that the appointments of the
Petitioners can be said to be back door entries.
8 He submits that as they were appointed for 11 months in one
stroke, their oral termination would not amount to an illegal retrenchment
merely because Section 25F of the Industrial Disputes Act, 1947 has not
been complied with. They would fall under Section 2(oo)(bb) and the said
disengagement was purely by efflux of time and therefore, did not require
an express order of termination.
9 He further submits that the Petitioners were made aware that
their appointments are for 11 months and they stand to gain no right for
continued engagement, much less a substantive right to seek
reinstatement only on account of violation of Section 25F. The moment
*6* 9.wp.4344.4565.14.con
Section 2(oo)(bb) applies to this case, the allegation of violation of
Section 25F falls to the ground as Section 2(oo)(bb) is an exception
carved out to retrenchment.
10 I have considered the submissions of the learned Advocates as
have been recorded herein above.
11 Though the Labour Court has taken pains to deliver the
judgment running into 52 pages, I find that the following judgments were
not cited before the Labour Court in relation to retrenchment:-
(a) 2015 II CLR 278, Rajasthan Housing Board & Ors. v/s Judge,
Industrial Disputes Tribunal.
(b) 2015 II CLR 285, Executive Officer, Nagarpalika Takatgarh v/s
Judge, Labour Court, Jodhpur.
(c) 2015 II CLR 497, Gauri Shanker v/s State of Rajasthan.
(d) 2015 II CLR 691, Om Prakash Tiwari v/s Judge, Labour
Court, Bhilwara.
(e) (2015) 2 SCC 317 Sudarshan Rajpoot V/s U P S R T Corp.
(f) (2015) 4 SCC 544 Mackinnon & Co.Ltd., V/s Mackinnon
Employees Union.
(g) (2015) 6 SCC 321 Ajaypal Singh V/s Haryana Warehousing
Corp.
12 I also find that the Labour Court has missed a vital issue
pertaining to an advertisement that was published. Shri Barde has raised
*7* 9.wp.4344.4565.14.con
the grievance that in the advertisement and in the interview call letters,
the Respondent/ University has made all the candidates to believe that the
University seeks to recruit four persons as four permanent posts of Cooks
are vacant and available. The Respondent/ University has also taken a
stand before this Court that now the University intends to cause
recruitment of four persons for the said posts on regular basis.
13 The Labour Court should have considered as to whether, the
Respondent/ University could be permitted to take a complete opposite
stand in relation to the advertisement and interview call letters and make
appointment for 11 months on temporary basis.
14 So also, the Labour Court should have considered whether,
such a situation would require quantification of compensation to meet the
ends of justice in the event there cannot be reinstatement considering the
ratio laid down by this Court in the case of Keru Kisan Rokade v/s Geoffery
Manners & Company Limited, 2011(7) All MR 590 (paras 14, 15, 17, 19
and 20). This Court in the case of Keru Kisan Rokade (supra) had
considered the contentions in relation to Section 2(oo)(bb) and had
remitted the matter to the Labour Court for quantifying compensation.
15 In the light of the above, I deem it proper to remit the matter
*8* 9.wp.4344.4565.14.con
back to the Labour Court so as to enable the parties to lead evidence on
the aspect of advertisement, interview call letters and whether, the
Respondent/ University could be permitted to appoint the Petitioners for
11 months despite the advertisement not indicating such a manner of
appointment.
16 As such, these petitions are partly allowed. The impugned
judgments and awards dated 06.08.2013 in both the reference cases are
quashed and set aside. Reference (IDA) Nos.30 and 32 of 2009 are
remitted to the Labour Court to enable it to frame issues in the light of the
above aspects and permit the litigating sides to lead additional oral and
documentary evidence.
17 The learned Advocates for the respective sides are agreeable
to appear before the Labour Court on 02.11.2015. Formal notices need not
be issued by the Labour Court.
18 Both the litigating sides fairly state that they would extend
cooperation to the Labour Court for the expeditious disposal of the
reference cases. In view of the same, the Labour Court shall endeavour to
decide these two reference cases as expeditiously as possible and
preferably on or before 31.03.2016.
*9* 9.wp.4344.4565.14.con
19 Needless to state, the contentions of both sides in relation to
the manner of recruitment are kept open. The Labour Court shall decide
the matters without being influenced by the observations made in this
judgment.
20 Rule is partly made absolute in the above terms.
21 No costs.
(RAVINDRA V. GHUGE, J.)
