Bombay High Court

The State Of Maharashtra vs Bhausaheb Dattatray Pawde on 26 July, 2016

Bench: R.V. Ghuge

                                         1




                                                                          
             IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                         BENCH AT AURANGABAD




                                                  
                      WRIT PETITION NO.2952 OF 2016

    The State of Maharashtra,
    Through
    Deputy Conservator of Forest,




                                                 
    Ahmednagar Division, Ahmednagar                    --       PETITIONER 

    VERSUS




                                        
    Baban Magan Ghodke,
    Age-Major, Occu-NIL,
    R/o Ghospuri, Tq.Nagar,   
    Dist.Ahmednagar                                    --       RESPONDENT

WITH

WRIT PETITION NO.2957 OF 2016

The State of Maharashtra, Through Deputy Conservator of Forest,

Ahmednagar Division, Ahmednagar -- PETITIONER

VERSUS

Baban Dhondiba Barve, Age-Major, Occu-NIL,

R/o Vasunde, Tq.Parner, Dist.Ahmednagar -- RESPONDENT

WITH WRIT PETITION NO.2953 OF 2016

The State of Maharashtra, Through Deputy Conservator of Forest, Ahmednagar Division, Ahmednagar -- PETITIONER

VERSUS

Kachru Kiwsan Bhapkar, Age-Major, Occu-NIL,

khs/JULY 2016/2952-d

R/o Gundegaon, Tq.Nagar, Dist.Ahmednagar -- RESPONDENT

WITH WRIT PETITION NO.2954 OF 2016

The State of Maharashtra,

Through Deputy Conservator of Forest, Ahmednagar Division, Ahmednagar -- PETITIONER

VERSUS

Bhausaheb Dattatraya Pawde,ig Age-Major, Occu-NIL, R/o Vankuta, Tq.Parner, Dist.Ahmednagar -- RESPONDENT

WITH WRIT PETITION NO.2955 OF 2016

The State of Maharashtra,

Through Deputy Conservator of Forest,

Ahmednagar Division, Ahmednagar -- PETITIONER

VERSUS

Bansi Kisan Kadam, Age-Major, Occu-NIL, R/o Kalkup, Tq.Parner, Dist.Ahmednagar. -- RESPONDENT

WITH WRIT PETITION NO.2956 OF 2016

The State of Maharashtra, Through Deputy Conservator of Forest, Ahmednagar Division, Ahmednagar -- PETITIONER

VERSUS

khs/JULY 2016/2952-d

Bhausaheb Shivram Jagdale, Age-Major, Occu-NIL,

R/o Vasunde, Tq.Parner, Dist.Ahmednagar -- RESPONDENT

WITH WRIT PETITION NO.2958 OF 2016

The State of Maharashtra, Through Deputy Conservator of Forest,

Ahmednagar Division, Ahmednagar -- PETITIONER

VERSUS Annasaheb Karbhari Darekar, R/o At Post - Pokharikanher,

Tq.Partner, Dist.Ahmednagar -- RESPONDENT

WITH WRIT PETITION NO.2959 OF 2016

The State of Maharashtra, Through

Deputy Conservator of Forest, Ahmednagar Division, Ahmednagar -- PETITIONER

VERSUS

Khandu Dashrath Pawar, R/o At Gajipur, Post - Vasunde, Tq.Parner, Dist.Ahmednagar -- RESPONDENT

WITH WRIT PETITION NO.2960 OF 2016

The State of Maharashtra, Through Deputy Conservator of Forest, Ahmednagar Division, Ahmednagar -- PETITIONER

VERSUS

khs/JULY 2016/2952-d

Popat Tukaram Alhat, R/o Indira Colony,

Takali Dhokeshwar, Tq.Parner, Dist.Ahmednagar -- RESPONDENT

WITH WRIT PETITION NO.2961 OF 2016

The State of Maharashtra, Through Deputy Conservator of Forest,

Ahmednagar Division, Ahmednagar -- PETITIONER

VERSUS Ramchandra Gopinath Mali, R/o at Post - Vankuta

Tq.Partner, Dist.Ahmednagar -- RESPONDENT WITH WRIT PETITION NO.2962 OF 2016

The State of Maharashtra,

Through Deputy Conservator of Forest,

Ahmednagar Division, Ahmednagar -- PETITIONER

VERSUS

Kundalik Dagadu Shivale, R/o At Post : Pokharikanher, Tq. Partner, Dist.Ahmednagar -- RESPONDENT

WITH

WRIT PETITION NO.2964 OF 2016

The State of Maharashtra, Through Deputy Conservator of Forest, Ahmednagar Division, Ahmednagar -- PETITIONER

VERSUS

khs/JULY 2016/2952-d

Subhash Harku Dhalpe, Age-Major, Occu-NIL,

R/o Bhatodi, Tq.Nagar, Dist.Ahmednagar -- RESPONDENT

Mr.V.V.Bhavthankar, Mr.A.N.Gaddime, Spl.Counsel with Mr.U.H.Bhogle, AGP for the petitioner.

Mr.P.V.Barde, Advocate for the respondents. Mr.R.K.Temkar, Advocate for the respondent in WP No.2962/2016.

( CORAM : RAVINDRA V. GHUGE, J.)

DATE : 26/07/2016

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

2. The petitioner/State and the Department concerned have

challenged the judgment and award delivered by the Labour Court,

which are as under :-

                     Ref.(IDA) No.            Date of Judgment
                     27/2012                  25/08/2014
                     7/2012                   29/10/2014





                     19/2012                  25/08/2014
                     11/2012                  29/10/2014
                     9/2012                   29/10/2014
                     18/2012                  29/10/2014
                     8/2012                   06/05/2014
                     16/2012                  07/05/2014
                     2/2012                   05/05/2014


    khs/JULY 2016/2952-d










                                                                                  
                     6/2012                   05/05/2014
                     10/2012                  06/05/2014




                                                          
                     13/2012                  25/08/2014

3. The respondents/workmen in these cases are the second

parties in the above stated reference cases. The petitioner/

Department is the first party in all these matters.

4. Learned Advocates for the respective sides have extensively put

forth their submissions. Having considered the said submissions,

the following issues, which need to be dealt with and for which

purpose, there had been minimal co-operation from the

petitioner/Department before the Labour Court, are as under :-

[A] Whether the second party workmen have been working on the

schemes or projects of the petitioner/Department which are funded by the allocation of funds ? [B] Whether the second party/workmen can be said to be working on the Employment Guarantee Scheme ?

[C] Whether the second party/workmen can be said to be working on the Mahatma Gandhi National Rural Employment Guarantee Scheme which has replaced the E.G.S., on being discontinued in 2008 ?

5. In all these matters, after considering the record and

khs/JULY 2016/2952-d

proceedings available, I have no hesitation to observe that the

petitioner/Department has in fact shown least interest in the

reference proceedings before the Labour Court. Voluminous

documents in the form of "Maharashtra Gramin Rozgar Hami Yojana

Rokha Lekha Nond Wahi" have been tendered before this Court across

the bar by the petitioner contending that these documents would

indicate the amount of payments made to the respondents/

employees herein towards the work performed by them on EGS.

There is no dispute that these documents were never produced before

the Labour Court.

6. There is no dispute that the petitioner had produced a list of

such daily wagers who were purportedly working on EGS at various

locations, before the Labour Court. Their dates of first joining have

also been mentioned and in some cases it is indicated that such

workmen have been working from 1973 onwards. Similar charts were

also produced before the Labour Court indicating the complete

names of the employees, their dates of birth, their educational

qualifications and the dates on which they joined work purportedly

on EGS. The Labour Court has disbelieved these charts/lists on the

ground that in none of these 12 cases, has the Department produced

such evidence so as to establish that each of these individuals were

khs/JULY 2016/2952-d

working on EGS. In this backdrop, the Labour Court has concluded

that the Reference cases deserve to be allowed.

7. The oral evidence recorded in these cases indicates that the

second party/workmen claimed to be working as Watchmen on daily

wages for many years. They had also produced certain documents

which have been referred to by the Labour Court since they were

proved and exhibited.

8. After considering the conclusions arrived at by the Labour

Court, though the said conclusions are based on the oral and

documentary evidence, the documents shown to the Court by the

petitioners as mentioned above, also lead to a serious doubt as to

whether the respondents/ workmen were actually working with the

Department on their project/scheme or whether they were working

on EGS ?

9. It is not disputed that the State Government has introduced

two Resolutions dated 19/10/1996 and 31/10/2013 whereby

employees working with the Forest Department or in any schemes of

the Forest Department, are being considered for regularization and in

fact have been regularized. However, those workers working on the

khs/JULY 2016/2952-d

EGS have been excluded. The 1996 GR was challenged on the

ground of discrimination before the Nagpur Bench of this Court in

WP No.2910/1997. By its order dated 29.11.2001, this Court has

concluded that the exclusion of the employees working on EGS for

consideration for regularization is not discriminatory. As such, these

aspects need to be considered by the Labour Court, though the issue

of permanency is not addressed to the Court for the reason that the

claim for reinstatement on daily wages is at issue.

10. Learned Advocates appearing for the employees have

strenuously argued that the pendency of the litigation would cause

hardships to the said employees. The failure on the part of the

petitioners in not assisting the Labour Court by placing entire record

available with it and seeking a remand and seeking a remand would

further aggravate the hardships suffered by these employees. It is,

therefore, prayed that if this Court is inclined to remand the matters

to the Labour Court, those who are already in service, need to be

protected, costs for remitting the matters be imposed on the

petitioners and the reference cases should be made time bound.

11. Having considered the fact situation as above, this Court needs

to consider that on account of the laxity on the part of the petitioner,

khs/JULY 2016/2952-d

employees working on EGS should not get reinstatement under

fortuitous circumstances and at the same time those workers, who

are factually not working on EGS, should get the benefits to which

they are entitled to. It is in this situation that I am constrained to

remit the matters to the Labour Court for permitting the petitioner to

place on record whatever documentary evidence it may have to

indicate which workman was working on EGS and which of the said

workmen are working on the scheme/project of the

petitioner/Department.

12. In the light of the above, these petitions are partly allowed.

The impugned awards are quashed and set aside on the following

conditions :-

[a] The petitioner/Department shall deposit an amount of

Rs.15,000/- in each of these cases per worker, before the Labour Court within 6 (six) weeks from today as a pre-condition for adducing further oral and documentary evidence. [b] After the amounts are deposited, each of the respondents/

employees in these 12 cases shall withdraw the said amounts without conditions.

[c] The litigating sides shall appear before the 1 st Labour Court, Ahmednagar on 06/08/2016 and formal notices need not be issued.

[d] The petitioner shall place on record before the Labour Court

khs/JULY 2016/2952-d

their documents which they deem fit and proper on or before the 08/09/2016.

[e] Needless to state, extension of time shall not be sought by the petitioner for this purpose.

[f] The Labour Court shall not discard the oral and documentary

evidence already recorded and which shall be considered while deciding the reference cases afresh. [g] Both the litigating sides are at liberty to lead further oral and

documentary evidence.

[h] The Labour Court shall thereafter proceed to decide the said reference cases, as expeditiously as possible and preferably on or before 29/04/2017.

13. Needless to state those second party / workmen who were in

employment during the reference proceedings or after the impugned

awards were delivered, shall be continued in employment and this

judgment shall not create any liberty to the petitioner either to

dispense with their services or to shift them to the EGS if they are

not working on EGS.

14. Rule is made partly absolute in the above terms.

15. Record and proceedings be returned to the 1 st Labour Court,

Ahmednagar forthwith.

khs/JULY 2016/2952-d

16. The learned Advocates/AGP for the petitioner shall place a copy

of this judgment before the Principal Chief Conservator of Forests