The Bhandara District Central ... vs Member Industrial Court, ...
2015 Latest Caselaw 326 Bom

                                                      1              wp1532.09.odt

                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              NAGPUR BENCH, NAGPUR




                                                                                     
                                                             
                              WRIT PETITION NO. 1532 OF 2009 


                The Bhandara District Central Co-operative




                                                            
                Bank Ltd, Bhandara, a Co-operative Society,
                duty registered under provisions of 
                Maharashtra Co-operative Societies Act,
                through its Manager, Bhandara, 




                                              
                Tahsil and District Bhandara                                   PETITIONER
                              ig     ...VERSUS...
                            
     1]         Member, Industrial Court, Bhandara.

     2]         Shri Sayyad Ayub Haque, 
      

                aged adult, Zakir Hussain Ward,
                Bhandara......                                                 RESPONDENTS 
   



     -------------------------------------------------------------------------------------------
     Shri A.M.Ghare, Advocate, for petitioner
     Shri V.K.Paliwal, Advocate for Respondent No.2





     -------------------------------------------------------------------------------------------
                              CORAM: R. K. DESHPANDE, J.

th DATE : 11 SEPTEMBER, 2015 .

ORAL JUDGMENT

The labour Court allowed Complaint (ULP) No.

82 of 2001 filed under Section 28 of the Maharashtra

Recognition of Trade Union and Prevention of Unfair Labour

Practice Act (for short "MRTU and PULP Act") read with

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Item 1 of Schedule IV therein, by its judgment and order

dated 08.08.2007. The retrenchment of the respondent no. 2

from service by an order dated 19.07.2001 has been set

aside on the ground that the complainant has established

that preceding the date of his retrenchment, he had rendered

continuous 240 days service and there was violation of

Section 25F of the Industrial Disputes Act (in short "I.D Act").

The Labour Court set aside the termination and directed

reinstatement with continuity in service and full backwages.

The Industrial Court in Revision (ULPA) No. 81 of 2007 filed

under Section 44 of the MRTU and PULP Act reduced the

amount of backwages to 25% by its judgment and order

dated 31.03.2008. Hence, the employer is before this Court

in this writ petition.

2] This court while admitting the matter on

14.08.2009, refused to grant interim relief and directed the

petitioner to comply with the orders of the courts below within

a month from today. Shri Ghare, the learned counsel for the

petitioner submits that the respondent No. 2 has not turned

up for attending the duties, whereas Shri Paliwal, the learned

counsel for respondent no.2 has urged that the respondent

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No. 2 has been reinstated in service and is working on the

post. It is not necessary for this Court to enter into such

controversy as to whether the ultimate orders passed by the

Courts below have infact been implemented or not and the

matter can be decided on its own merits.

3] The question as to whether the employee has

completed 240 days continuous service preceding the date of

his retrenchment is necessarily a question of fact. Both the

Courts below have recorded the finding that the complainant

has worked continuously from 22.08.2000 to 19.07.2001 and

had thus completed 240 days continuous service preceding

the date of retrenchment. The findings are based upon the

vouchers of salary produced by the complainant at Exhs. 43

to 89 and the attendance register at Exh. 14. The finding of

fact is based upon the relevant and admissible evidence on

record and there is no perversity in recording such findings

brought to my notice by the petitioner. The further

undisputed factual position is that there was non compliance

of Section 25F of the I.D. Act. The view taken by the Courts

below to this extent does not call for any interference.

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              4]               Shri   Ghare,   the   learned   counsel   appearing   for




                                                                                          

the petitioner-employer has invited my attention to para 29 of

the decision of the Gangadhar Pillai vrs. Siemens Ltd

reported in 2007 (1) SCC 533, which is reproduced below.

"It is not the law that on completion of 240 days of continuous service in a year, the concerned employee becomes entitled to for regularization of his services and/or permanent status. The

concept of 240 days in a year was introduced in the industrial law for a definite purpose. Under

the Industrial Disputes Act, the concept of 240 days was introduced so as to fasten a statutory liabilities upon the employer to pay compensation to be computed in the manner specified in

Section 25F of the Industrial Disputes Act, 1947 before he is retrenched from services and not for any other purpose. In the event a violation of the said provision takes place, termination of services of the employee may be found to be

illegal, but only on that account, his services cannot be directed to be regularized. Direction to

reinstate the workman would mean that he gets back the same status."

The another decision of the Apex Court relied

upon by Shri Ghare, the learned counsel for the petitioner, is

in the case of the Chief Soil Conservator, Punjab vrs.

Gurmail Singh, reported in 2009 (8) SCALE 543, for the

proposition that at the most the employee would be entitled

to compensation and not the reinstatement and continuity in

service. It is also urged by him that merely because the

employee has completed 240 days continuous service, he is

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not entitled to regularization in service.

5] It is not the law laid down by the Apex Court that

in all and every situation, the only relief for violation of

Section 25F would be that of compensation only and not the

reinstatement with continuity in service. It depends upon the

facts and circumstances of each case. In a given case, the

Court may direct reinstatement with continuity in service with

or without backwages or part of backwages or in another

case, the Court may direct payment of compensation in lieu

of reinstatement and continuity in service. In view of this, the

proposition of law laid down by the Apex Court relied upon by

Shri Ghare cannot be disputed and the cases are

distinguishable on facts.

6] If the complainant has not joined the services

and has not worked on the post, he would not be entitled to

salary for such period. Merely because the Courts have

granted reinstatement and continuity in service after setting

aside the order of retrenchment on the ground of violation of

Section 25F of I.D. Act, it does not follow that the

complainant gets regularization in service. It is always open

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for the employer to retrench the services of a dailywager after

following the procedure prescribed by law. There is no

ground raised to challenge the award of 25% of the

backwages by the Industrial Court. In view of this, no

interference is called for in the orders impugned.

In the result, writ petition is dismissed.

                              ig                                   JUDGE
                            
     Rvjalit