Bombay High Court
Horticulture Officer,Bhandra ... vs Sanjay Dadusao Chawan on 10 June, 2016
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.2254/2008
1. Horticulture Officer,
Taluka Fruit Nursery Andhalgaon,
Tq. Mohadi, Distt. Bhandara.
2. District Deputy Director,
Horticulture Department,
Takkiya Ward, Takiya Road,
3.
Bhandara.
Superintendent of Horticulture,
Fruits Research & Nursery Department,
Nagpur Region, Nagpur. ..Petitioners.
..Versus..
Sanjay S/o Dadusao Chawan,
R/o Ambedkar Ward,
Andhalgaon, Tq. Mohadi,
Distt. Bhandara. ..Respondent.
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Ms. H.N. Prabhu, A.G.P. for the petitioners.
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CORAM : Z.A. HAQ, J.
DATE : 10.6.2016
ORAL JUDGMENT
1. None appeared for the respondent - employee on 9 th June, 2016. The
matter was adjourned for 10 th June, 2016. Today again none appeared for the
respondent.
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2. Heard Ms. H.N. Prabhu, A.G.P. for the petitioners - employer.
The employer has challenged the order passed by the subordinate Courts
upholding the claim of the employee and directing his reinstatement in service in the
months of April to November every year and also directing the employer to pay 25%
of the back wages for the period from April to November every year from the date of
his termination till reinstatement.
3.
The employee filed complaint under Section 28 of the Maharashtra
Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971
contending that he was engaged from 7 th March, 1989 on daily wages in fruit garden
nursery and continued in the employment till 1 st October, 1993 when he was
informed that his services were terminated. The employee contended that he again
reported on duty on 4th October, 1993 but he was not permitted to work. Treating it
to be termination of service, the complaint came to be filed. The employee pleaded
that he worked for more than 240 days in every year and, therefore, his services
should have been regularized.
The employer opposed the claim of the employee and pleaded that the
employee was engaged as casual worker in nursery and the work was available
during specific period (season) and at the end of season the employee was
discontinued. The employer pleaded that the work of nursery was completed on 1 st
October, 1993 and, therefore, the employee and other workers were given the work
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of weeding grass of nursery, however, the employee and other workers refused to
do the work. The employer pleaded that after discontinuing the employee, any
other worker has not been engaged by it.
4. After completing the trial, the Labour Court concluded that the employee
proved that the employer indulged in unfair labour practice and directed the
employer to reinstate the employee in the months from April to November, every
year and to pay 25% of the back wages for the period from April to November every
year.
The revision filed by the employer challenging the above order came to be
dismissed. The employer filed review application which is also dismissed by the
Industrial Court.
5. After examining the documents filed on the record of the writ petition and the
orders passed by the subordinate Courts, I find that the subordinate Courts have
committed an error of jurisdiction by directing reinstatement of the employee and
granting him 25% of the back wages. The Labour Court has recorded that the work
available with the employer was not of perennial nature and it was seasonal and on
the basis of this evidence, the Labour Court directed that the work be provided to
the employee during the months of April to November every year. The findings
recorded by the Labour Court and maintained by the Industrial Court show that the
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employee has not been able to establish that he was working in a post available with
the employer. The Labour Court and the Industrial Court have in effect accepted
the claim of the employer that the work was available with the employer only during
the specific period (season).
In my view, the Labour Court has committed an error in allowing the
complaint filed by the employee and directing reinstatement and payment of 25%
back wages. The Industrial Court has also committed an error in maintaining the
order passed by the Labour Court.
The order passed by this Court on 10 th September, 2009 records that the
learned A.G.P. had stated that the petitioners were ready to provide work to the
respondent on contract basis, however, the respondent - employee had expressed
his unwillingness to work. The learned A.G.P., on instructions, has stated that
though this Court had stayed the directions given by the subordinate Courts
regarding payment of back wages only, the employee has not reported on duty and
is not working with the petitioners.
Hence, the following order:
(i) The impugned orders are set aside.
(ii) The complaint filed by the respondent - employee is dismissed.
(iii) Rule made absolute in the above terms.
In the circumstances, the parties to bear their own costs.
JUDGE
Tambaskar.
