Raman Sriram Gore vs Pare Gangaram Bindewale And ...
2016 Latest Caselaw 3987 Bom

                                                                      WP/1678/1996
                                            1

                    IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD




                                                                              
                              WRIT PETITION NO. 1678 OF 1996




                                                      
     Raman Sriram Gore,
     Age 39 years, Occ. Service
     Deputy Director of Social
     Forestry Division, Jalna.                        ..Petitioner




                                                     
     Versus

     1. Parme Gangaram Bindewale,
     Age 23 years, Occupation Nil.




                                          
     r/o Jambwadi, Tq. & Dist. Jalna.


     Age 30 years, Occ. Nil,
                             
     2. Bansilal Mansing Phulzade,

     R/o Dharkalayan, Tq. & Dist. Jalna.
                            
     3. Natha Genu Nikalje,
     Age 50 years, Occ. Nil,
     r/o Jambwadi, Tq. & Dist. Jalna.
      

     4. Baban Sudam Borde,
     Age 25 years, Occ. Nil
     r/o Gondegaon, Tq. & Dist. Jalna.
   



     5. Kaduba Kishan Pandhav,
     Age 23 years, Occ. Nil
     r/o Gundewadi, Tq. & Dist. Jalna.





     6. Babanrao Shamrao Wakhre
     Age 20 years, Occ. Nil
     R/o Hankar Deolgaon,
     Tq. and Dist. Jalna.                             ..Respondents





                                          ...
                       Advocate for Petitioner : Shri S.V.Warad
                     Advocate for Respondents : Smt. M.B.Gangwal
                                          ...

                              CORAM : RAVINDRA V. GHUGE, J.

Dated: July 20, 2016 ...

WP/1678/1996

ORAL JUDGMENT:-

1. The petitioner / department has challenged the judgment of

the Industrial Court dated 8.6.1995, delivered in a group of cases

Complaint (ULP) Nos. 325, 334, 335, 346, 352 and 353 of 1994. By the

impugned judgment, the Industrial Court has set aside the

retrenchment of the complainants and has granted them

reinstatement in service with backwages and regularization in service

in any scheme if is available with the petitioner.

2. By order dated 17.6.1996 this Court admitted this petition and

granted interim relief in terms of prayer clause (E), which reads as

under:-

"(E) Pending hearing and final disposal of this Writ Petition, the execution and implementation of the order dated 8.6.1995 and 22.2.1996 kindly be stayed. "

3. The respondents had moved Civil Application No.4965 of 1995

praying for vacating the interim relief granted. The petitioner filed

its affidavit in reply and specifically contended in paragraph No.26

that "Whenever the work is available, the same will be provided to

them on job work basis under various schemes." By order dated

26.6.1997, this Court disposed off the civil application by refusing to

vacate the interim relief and by listing the Writ Petition for final

WP/1678/1996

hearing.

4. Though it is settled law that the petitioner should have filed

individual writ petitions and not a single petition, I am not

considering the said issue as this petition has been admitted in 1996.

5. Learned Advocate for the petitioner / department submits that

two objections were specifically raised before the Industrial Court

with regard to the maintainability of the complaint. Firstly, that all

the complainants were already retrenched from the employment

pursuant to the notice dated 23.3.1990. Each of these complaints

were filed on/or after 16.4.1990. Secondly, that the petitioner is a

Social Forestry Department and hence is not an "industry" under

Section 2(j) of the Industrial Disputes Act, 1947.

6. I find from the impugned order that the Industrial Court has

exercised its jurisdiction under item 9 of Schedule IV of the

Maharashtra Recognition of Trade Unions and Prevention of Unfair

Labour Practices Act, 1971 ("the said Act ") and assumed jurisdiction

to go into the legality of the retrenchment and has finally held the

retrenchment to be illegal and has granted reinstatement with

continuity of service to the complainants.

7. Sections 4 and 5 of the said Act define an "Industrial Court"

WP/1678/1996

and its powers". Sections 6 and 7 define the "Labour Court and its

powers". Section 5 read with Section 7 indicate that the Labour

Court shall have the jurisdiction to deal with cases of retrenchment,

termination, dismissal, discharge or otherwise removed from service.

The Honourable Supreme Court in the matter of Hindustan Lever Vs.

Ashok Vishnu Kate [AIR 1996 SC 285 = 1995 (6) SCC 326], has

concluded in paragraph Nos.53 and 54 of the judgment that the

Labour Court can exercise its jurisdiction even against the proposed

or apprehended termination and can interfere with the proposed

termination even at the penultimate stage. Section 7 of the said Act

indicates that the Industrial Court shall have the jurisdiction to

decide cases falling under Schedules II, III and items 2 to 10 of

Schedule IV of the said Act. As such, the complaints filed by the

respondents were not tenable before the Industrial Court.

8. Notwithstanding the above and the fact that this Court has

refused to vacate the interim relief granted to the petitioner, it

cannot be ignored that the petitioner had made a statement before

this Court that it would offer work to the respondents as may be

available on job work basis. A specific affidavit has been filed by the

petitioner on 5.3.2012 stating therein that the respondent Nos.1, 2

and 5 namely, Parme Gangaram Bindewale, Bansilal Mansing Phulzade

and Kaduba Kishan Pandhav have refused to accept work at any place

outside Jalna. They are, therefore, not in employment of the

WP/1678/1996

petitioner. Respondent Nos. 3 and 6 namely, Natha Genu Nikalje and

Babanrao Shamrao Wakhare have passed away during the pendency of

this petition, which therefore, abates. Respondent No.4 Baban

Sudam Borde is alone could be working with the petitioner.

9. Considering the above, though the complaints filed by the

respondents were untenable in law and this petition deserves to be

allowed to that extent, I deem it proper to rely on the statement

made by the petitioner in paragraph No.26 of its reply dated

24.4.1997 to Civil Application 4965 of 1995 that the petitioner would

continue to offer work as and when it is available to such

respondents who may be willing to work.

10. It also needs to be noted that all the respondents were

working on Employment Guarantee Scheme ("EGS") and it is settled

law that the workers working on EGS cannot file ULP complaints for

seeking regularization or continued employment.

11. In the light of the above, this petition is allowed. The

impugned judgment of the Industrial Court dated 8.6.1995 is set

aside and the Complaints preferred by the respondents numbered as

325, 334, 335, 346, 352 and 353 of 1994 stand dismissed.

12. Nevertheless, the petitioner shall abide by its statement made

WP/1678/1996

in its reply as recorded above and continue to offer work to

respondent No.4 namely, Baban Sudam Borde. In the event,

respondent Nos.1, 2 and 5 approach the petitioner for work, the

petitioner may consider them on any of it's scheme, if work is

available at any given place. Needless to state that the work offered

would be limited to the extent of 60 years of age of the workmen.

13. Rule is made absolute in the above terms.

( RAVINDRA V. GHUGE, J. )

...

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