The State Of Maharashtra & Ors vs Ashok Pandurang Phalke
2016 Latest Caselaw 7536 Bom

                                         1




                                                                          
             IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                         BENCH AT AURANGABAD




                                                  
                            WRIT PETITION NO.3414 OF 1997

    Ashok Pandurang Phalake,
    Age-30 years, Occu-Nil,




                                                 
    R/o Phalkewadi, Tq.Shevgaon,
    Dist.Ahmednagar                                    -- PETITIONER

    VERSUS




                                        
    1. The Deputy Director 
        of Social Forestry Division
                              
        Sudakemala , Ahmednagar,

    2. The Plantation Officer,
                             
        Social Forestry Division,
        at Khedkar Nivas, 
        Manik Daundi Road, Tq.Pathardi,
        Dist.Ahemdnagar,
      


    3. State of Maharashtra,
        through Govt.Pleader
   



        High Court of Bombay,
        Bench at Aurangabad                            -- RESPONDENTS 

WITH

WRIT PETITION NO.3652 OF 1997

1. The State of Maharashtra,

2. The Dy.Director,

Social Forestry Division, Sudkemala, Ta. and Dist.Ahmednagar,

3. The Plantation Officer, Social Forestry Division, Khedkar Niwas, Manikdaundi Road, Tq.Pathardi, Dist.Ahmednagar -- PETITIONERS

khs/DEC.2016/3414-d

VERSUS

1. Ashok Pandurang Falke, Age-23 years, R/o At Post Falkewadi, Tq.Shevgaon, Dist.Ahmednagar,

2. Member,

Industrial Court, Ahmednagar. -- RESPONDENTS

Mr.C.K.Shinde, Advocate for the petitioner.

Mr.S.P.Sonpawale, AGP for respondent Nos. 1 to 3.

ig ( CORAM : RAVINDRA V. GHUGE, J.)

DATE : 21/12/2016

ORAL JUDGMENT :

1. The petitioner / workman in the first petition and the

petitioners/Establishments in the second petition have challenged

the judgment of the Industrial Court dated 20/03/1997. The

workman is aggrieved that he has been deprived of back wages from

27/04/1992 though he has been granted permanency from

01/01/1990. The Establishment is aggrieved by the said judgment

on the ground that the Industrial Court has granted permanency to

the workman on the ground that he has worked for 5 years with the

establishment.

2. The first petition was admitted on 06/10/1997. It is stated that

the employee is out of employment from 27/04/1992.

khs/DEC.2016/3414-d

3. I have considered the strenuous submissions of the learned

Advocates for the respective sides.

4. The workman had alleged that he was working from 1985

onwards. Complaint (ULP) No.89/1988 was filed for seeking

regularization and benefits incidental and consequential thereto.

Though the workman has strenuously contended that the Kalelkar

Settlement is applicable to the Establishment, I do not find in the

entire impugned judgment that the issue of applicability of Kalelkar

Settlement was ever put forth by the workman. His complaint was

based on the contention that he is not granted permanency and

artificial breaks in service are introduced. There is no dispute that

no specific procedure of recruitment and appointment, as is expected

in public employment, was followed by the establishment.

5. The establishment came forward with a stand taken in the

written statement that though the workman has worked

intermittently from 1988 till 1992, he himself stopped reporting for

duties considering the little work available. The Industrial Court was

expected to deal with the issue as to whether the workman had

completed 240 days in continuous service. It did consider the aspect

khs/DEC.2016/3414-d

that the workman was engaged on the plantation project on the land

belonging to Sultanpur Gram Panchayat and after the project was

completed, the land was handed over to the Gram Panchayat. I do

not find from the entire reasons assigned to the issue of permanency

that the Industrial Court concluded on the basis of any document

that the workman had completed 240 days in continuous

employment in the calendar year preceding the date of reference i.e.

the date on which the complaint was filed. Based on the contention

of the establishment, it concluded that he had worked continuously

from 1988 till 1992.

6. It also does not appear from the impugned judgment that the

Industrial Court has referred to any portion of oral or documentary

evidence while concluding that the workman had worked

continuously for 5 years.

7. In so far as the claim of being entitled for permanency on

completing particular number of years in service or under the

Industrial Employment Standing Orders, the learned Division Bench

of this Court in the matter of Municipal Council, Tirora and another

Vs.Tulsidas Baliram Bindhade, [2016(6) Mh.L.J. 867], has concluded

that Standing Orders do not apply to state instrumentalities

khs/DEC.2016/3414-d

especially in matters of claiming permanency since the availability of

permanent vacant posts is the decisive factor. Unless such a post is

available and is vacant, there cannot be regularization on a non-

existing post.

8. Learned Counsel for the workman has strenuously submitted

that this Court may quantify compensation to be paid to the

workman. I am unable to accept the said request for the reason that

the workman had approached the Industrial Court for permanency.

                             
    The   Hon'ble   Apex   Court   in   the   matters   of    1
                                                                .    Assistant   Engineer,  

Rajasthan State Agriculture Marketing Board, Sub-Division, Kota Vs.

Assistant Mohanlal [2013 LLR 1009], 2. Engineer, Rajasthan

Development Corporation and another Vs. Gitam Singh [(2013) 5 SCC

136], 3. BSNL Vs. man Singh [(2012) 1 SCC 558] and 4.

Jagbir

Singh Vs. Haryana State Agriculture Marketing Board [(2009) 15 SCC

327] has concluded that reinstatement in service with continuity and

back wages would not be appropriate relief when an employmee has

put in a short duration in employment followed by a long spell of

unemployment.

9. In the instant case, in paragraph No.12 of the impugned

khs/DEC.2016/3414-d

judgment, the Industrial Court has concluded that the workman was

deemed to be terminated from 27/04/1992 and therefore, as the law

of retrenchment was violated, he deserves to be reinstated in service

as the establishment has committed unfair labour practice under

Item 9 Schedule IV of the MRTU and PULP Act. In my view, the

Industrial Court could not have assumed jurisdiction considering the

fact that Section 5 of the Act of 1971 does not empower the Industrial

Court to exercise jurisdiction in matters of termination, discharge,

dismissal, retrenchment etc. Under Section 5(d), the jurisdiction

vests in the Labour Court which can decide the legality of

termination.

10. In the instant cases, the establishment claims that the

workman had abandoned employment and the workman has claimed

that he was not allotted work. Unless these disputed questions are

not considered by a Court having jurisdiction which is the Labour

Court, the Industrial Court, by making a passing reference, could not

have concluded that the act of the Management amounts to illegal

retrenchment.

11. In the light of the above, Writ Petition No.3652/1997 filed by

the establishment is allowed. Complaint (ULP) No.89/1988 therefore

khs/DEC.2016/3414-d

stands dismissed. Rule is made absolute accordingly.

Consequentially, WP No.3414/1997 filed by the workman stands

dismissed and Rule is discharged.

12. Nevertheless, since the Industrial Court has concluded that the

workman has been terminated from 27/04/1992 and as the said

termination has not been challenged by the workman, he would be at

liberty to raise an Industrial dispute u/s 2-A of the Industrial

Disputes Act for assailing the purported termination. In the event, he

initiates such proceedings, the contentions of the litigating sides as

well as the contention of the establishment that he has abandoned

service, coupled with the objection that the Social Forestry Division

is not an Industry, are left open for adjudication.

( RAVINDRA V. GHUGE, J.)

khs/DEC.2016/3414-d