Bombay High Court
The State Of Maharashtra And ... vs Mah. Rajya Daghu Vetan Sarkari ... on 21 April, 2016
Bench: R.V. Ghuge
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.3443 OF 1996
1. The State of Maharashtra,
Through Executive Engineer,
Purna Irrigation Division,
Basmatnagar, Dist.Parbhani,
2. The Admnistrator,
Command Area and Development Authority, PETITIONERS
(CADA) Nanded.
VERSUS
Maharashtra Rajya Laghu Vetan
Sarkari Karmachari Sangh, Bombay,
Tq. Branch : Basmatnagar,
District Parbhani,
Through its President,
Shri Satyanarayan Bhurmal Verma RESPONDENT
Mr.A.P.Basarkar, AGP for the petitioners.
Mr.B.R.Warma, Advocate for the respondent.
( CORAM : RAVINDRA V. GHUGE, J.)
DATE : 21/04/2016
ORAL JUDGMENT :
1. This petition was admitted on 24/04/2000, but interim relief
was refused to the petitioner. Consequent to the same, the two
employees at issue represented by the respondent Union namely
Ashok Nagorao Deshmukh and Ramchandra Satyanarayan Warma
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have been reinstated in employment and are today continued in
service.
2. I have heard the learned Advocates for the respective sides. In
the light of the order that I intend to pass, I am not required to advert
to their entire submissions.
3.
The respondent/Union had filed Complaint (ULP) no.39/1994
before the Industrial Court, Jalna under Item Nos. 5, 6, 9 and 10 of
Schedule IV of the MRTU and PULP Act, 1971. The Union had come
before the Industrial Court with a categoric stand that both the
employees have been terminated from service on 31/08/1987 without
compliance of Section 25-F and 25-G of the I.D.Act, 1947. It was also
stated that both of them were working under the Employment
Guarantee Scheme (EGS).
4. The jurisdiction and powers of the Labour Court and the
Industrial Court are set out in Section 5 and 7 of the MRTU and
PULP Act, 1971. The cause of action pertaining to termination,
retrenchment, discharge or otherwise removal from service falls
under Item 1 of Schedule IV. The Labour Court is vested with the
jurisdiction to deal with the cause of action under Item 1 of Schedule
khs/April 2016/3443-d
IV.
5. It is trite law that the Industrial Court cannot go into the
legality of a termination under Item 1 of Schedule IV. It is trite law
that the Industrial Court cannot go into the legality of a termination
which falls under Item 1 of Schedule IV. This Court in the matter of
National General Mazdoor Union Vs. M/s Nitin Casting Ltd., and others
1990(61) FLR 315 = 1990(II) CLR 641 has concluded that the
jurisdiction to deal with the termination or removal from service is
with the Labour Court and the Industrial Court would have no
jurisdiction.
6. In the instant case, the Industrial Court has considered the
cause of action with regard to the termination of both the employees
on 31/08/1987 and has invoked Item 9 of Schedule IV to set aside
the termination and order the reinstatement with continuity and full
back wages of these 2 employees. The impugned judgment of the
Industrial Court is without any jurisdiction and is unsustainable.
The judgment dated 09/06/1995 is, therefore, quashed and set aside
and Complaint (ULP) No.39/1994 is dismissed for being untenable
before the Industrial Court under Items 5, 6, 9 and 10 of Schedule IV.
khs/April 2016/3443-d
7. So also, this Court in the matter of State of Maharashtra Vs.
Bhausaheb Nathu Phalke Etc. 2002(1) MLR 74 has concluded that
workers working on employment guarantee scheme cannot raise a
challenge to their termination and cannot seek regularization in
service.
8. Mr.Warma, learned Advocate for the respondent/Union submits
that both these employees are in employment for the last about 16
years. They may opt for a remedy if available for the redressal of their
cause of action as regards their termination w.e.f. 31/08/1987.
However, considering the fact that they have been working for the last
16 years, the petitioner establishment may consider regularizing their
services.
9. He further submits that a GR dated 07/06/2001 was issued
for regularizing the services of the employees as like these two
employees in this matter. However, by a corrigendum dated
29/09/2001, the name of these two employees, which was being
considered for regularization, has been subsequently removed from
the list of the employees who are under consideration.
10. Learned AGP, without expressing/offering any assurance,
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submits that if the petitioners make a representation to the
competent department and indicate that similarly situated employees
are being considered for regularization, their representation would be
considered on its own merits and in accordance with the policy
decision of the State.
11. Considering the above and the fact that the concerned two
employees are working for the last 16 years, their services shall stand
protected for a period of 6 months, provided both of them make a
representation to the concerned Department for considering their
absorption. In the event, if they tender such representation within
one month, the petitioners shall decide the same in accordance with
their rules and their policy within a period of 4 months.
12. If these employees are aggrieved by any decision of the
petitioners, they would be at liberty to seek remedy for the redressal
of their grievance.
13. Needless to state, they shall not be terminated solely for the
reason that they are temporaries. This protection shall, however, not
apply to a case of disciplinary action.
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14. This petition is, therefore, allowed. Rule is made absolute.
15. Pending civil application, does not survive, and is disposed of.
( RAVINDRA V. GHUGE, J.)
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