Bombay High Court
Chandrakant Govinda Rajurkar vs The Chandrapur,Dist.Coop.Bank ... on 10 June, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.5661 OF 2005
PETITIONER: Chandrakant S/o Govinda Rajurkar,
Aged about 43 years, occ. Nil,
resident of Kothari, Tah. Ballarpur,
Distt. Chandrapur.
-VERSUS-
RESPONDENT: The Chandrapur District Co-operative
Bank Limited, Chandrapur, through
its Chairman/Manager.
Shri V. P. Marpakwar, Advocate for the petitioner.
Shri R. J. Kankale, Advocate for the respondent.
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CORAM: A.S. CHANDURKAR, J.
DATED: 10
th JUNE, 2016.
ORAL JUDGMENT :
1. The petitioner is the original complainant who had
filed a complaint under Section 28 of the Maharashtra Recognition
of Trade Union and Prevention of Unfair Labour Practices Act,
1971 (for short, the said Act). In this complaint, it was the case of
the petitioner that he was appointed on the post of clerk at the
respondent - Bank in a clear vacancy. This appointment was after
following the due procedure. After rendering continuous service of
more than 240 days, his services came to be dispensed with. He
therefore filed the aforesaid complaint under Item I of Schedule IV
to the said Act seeking reinstatement with continuity in service and
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full back wages.
In the reply filed on behalf of the respondent, a stand
was taken that the appointment of the petitioner was for doing
periodical work. The appointment was of a temporary nature on
daily wages. The petitioner's appointment was without the
approval of the Board of Directors who had the authority to make
the appointment.
2. Before the Labour Court the petitioner examined
himself and stated that he had worked since 2-11-1985 to
30-9-1986. After his services were terminated an advertisement
for the same post was again issued. The Labour Court after
considering this evidence as well as the evidence of the witness
examined on behalf of the respondent - Bank allowed the
complaint on the ground that the provisions of Section 25F of the
Industrial Dispute Act, 1948 (for short, the Act of 1948) had not
been duly followed. The seniority list as required was also not
prepared resulting in breach of provisions of Section 25B of the
Act of 1948. The Labour Court therefore directed reinstatement
with continuity of service and full back wages.
The respondent filed a revision application under
Section 44 of the said Act. The Industrial Court came to the
conclusion that the appointment of the petitioner was for a limited
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period and therefore there was no question of regularizing the
services of the petitioner. It held that the services of the petitioner
had been discontinued in terms of his appointment and hence it
proceeded to dismiss the complaint. Being aggrieved the
complainant has filed this writ petition.
3. Shri V. P. Marpakwar, learned Counsel for the
petitioner submitted that the Industrial Court was not justified in
dismissing the complaint. Though the work done by the petitioner
was pursuant to the orders dated 2-11-1985 and 27-6-1986, the
said work was always available. He submitted that even thereafter
an advertisement was issued on 17-11-1986 for recruiting clerks to
do the same work that was done by the petitioner. He submitted
that the Labour Court rightly considered the entire matter and
granted relief to the petitioner. However, the Industrial Court by
proceeding on the basis that the petitioner was seeking
regularization in the services exceeded its jurisdiction and
dismissed the complaint. He submitted that such course was not
permissible in exercise of the revisional jurisdiction and in that
regard relied upon the judgment in APMC Arjuni Moregaon VS.
Ashok Danaji Hatzode 2015(4) Mh.L.J 79. He therefore submitted
that the impugned order deserves to be set aside and the order
passed by the Labour Court deserves to be restored.
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4. Shri R. J. Kankale, learned Counsel for the respondent
on the other hand supported the impugned judgment. According
to him, the orders dated 2-11-1985 and 27-6-1986 pursuant to
which the petitioner was appointed clearly indicated the nature of
his engagement. The same was for a limited period and
contractual in nature. He submitted that the Labour Court without
considering the orders of appointment recorded a finding that as
there was continuous service for 240 days, the petitioner was
entitled for relief. Relying upon the judgment of Division Bench in
Nagpur District Central Co-operative Bank Ltd. Vs. Prashant
Ashokrao Salunke and another 2016(1) Mh.L.J. 706, he urged that
in the facts of the present case the provisions of Sections 25F and
25G of the Act of 1948 were not applicable. According to him, the
Industrial Court was justified in allowing the revision application
and that it had not exceeded its jurisdiction while doing so. He
further stated that presently no work was available with the
respondent - Bank on the basis of which the claim of the petitioner
could be considered.
5. I have heard the respective Counsel for the parties at
length and I have perused the material on record. The orders
dated 2-11-1985 and 27-6-1986 indicate that the appointment of
the petitioner was on temporary basis till the end of the season
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which was till 31-6-1986. The second order extends this period of
engagement till 30-9-1986. The remuneration to be paid was
Rs.17/- per day. It is in this background that the Industrial Court
has observed that the appointment in question was for a particular
period and for effecting recoveries of the Bank. It was then
observed that the extension of this period by few months would
not clothe the employee with a right to claim permanency.
In Nagpur District Central Cooperative Bank Ltd.
(supra), the Division Bench of this Court observed that if the
appointment is contractual in nature and for a specific period, the
provisions of Sections 25F and 25G of the Act of 1948 would not
apply. It has further observed that in such circumstances a
complaint under Item I of Schedule IV of the said Act would be
tenable only if the ingredients of Item I are satisfied.
6. The Labour Court while considering the case of the
petitioner has observed that during the period the petitioner
discharged his duties, no objection was raised by the Bank that his
appointment was illegal. However, the nature of the orders on the
basis of which the petitioner was appointed has not been taken
into consideration. The Industrial Court after considering this
aspect of the matter allowed the revision application preferred by
the respondent. If the order passed by the Labour Court was set
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aside by the Industrial Court after considering the appointment
orders in the proper perspective, it cannot be said that this exercise
was beyond the scope of Section 44 of the said Act. On that basis,
the observations in para 16 of the judgment in Agricultural Produce
Market Committee (supra) cannot be made applicable.
7. Thus, in view of law as laid down in Nagpur District
Central Co-operative Bank Ltd. (supra), it cannot be said that the
Industrial Court exceeded its jurisdiction when it dismissed the
complaint. On that count, I do not find that any case has been
made out to interfere in writ jurisdiction. The writ petition is,
therefore, dismissed. No costs.
JUDGE
//MULEY//
