Bombay High Court
Municipal Council Hinganghat Thr ... vs Smt Sunita Ramesh Sayankar on 22 June, 2016
Bench: Z.A. Haq
1 wp3128.08
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.3128 OF 2008
Municipal Council Hinganghat,
through its Chief Officer, Tahsil-
Hinganghat, District - Wardha. .... PETITIONER
VERSUS
Smt. Sunita Ramesh Sayankar,
R/o Sant Kabir Ward, Hinganghat,
District - Wardha. .... RESPONDENT
______________________________________________________________
Shri Girish Kandhari, Advocate h/f. Shri Anjan De, Advocate for the
petitioner,
None for the respondent.
______________________________________________________________
CORAM : Z.A. HAQ, J.
DATED : 22
nd JUNE, 2016.
ORAL JUDGMENT :
1. Heard Shri Girish Kandhari, Advocate holding for Shri
Anjan De, Advocate for the petitioner. None appears for the
respondent.
2. The petitioner-employer has challenged the order passed
by the Labour Court allowing the complaint filed by the employee and
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directing the employer to reinstate the employee with continuity of
service. The Labour Court has dismissed the claim of the employee
regarding back wages.
The employee had filed complaint before the Labour Court
under Section 28 read with Item I of Schedule IV of the Maharashtra
Recognition of Trade Unions and Prevention of Unfair Labour Practices
Act, 1971 contending that though she was engaged on daily wages, she
had been continuously working for more than 240 days in the years
preceding her termination and the employer instead of regularizing her
services had illegally terminated her services. The employee contended
that the employer indulged in unfair labour practice and pleaded that
the employer be directed to reinstate the employee with continuity of
service.
The employer opposed the claim of the employee. The
employer pleaded that the employee was engaged on daily wages for
Wruksharopan Yojna which scheme came to an end in 1992 and,
therefore, the employee was not engaged after the completion of the
said scheme. The employer pleaded that the complaint filed by the
employee be dismissed.
The Labour Court, after conducting the trial recorded that
the employee had proved that her services were terminated illegally
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without complying with the mandatory provisions of Section 25F and
Section 25G of the Industrial Disputes Act, 1947, that the employer
indulged in unfair labour practice as contemplated by Item 1 of
Schedule IV of the Maharashtra Recognition of Trade Unions and
Prevention of Unfair Labour Practices Act, 1971 and directed the
employer to reinstate the employee with continuity of service,
however, the claim of the employee for back wages was rejected.
3. The employer had challenged the order passed by the
Labour Court in revision application which is dismissed by the
Industrial Court by the impugned order. The employer being aggrieved
in the matter, has filed this writ petition.
4. Shri Girish Kandhari, Advocate for the petitioner has
submitted that the subordinate Courts have committed an error in
allowing the complaint, overlooking the case of the petitioner that the
employee was engaged for doing the work in Wruksharopan Yojna
and she was discontinued on completion of the scheme. It is further
submitted that the subordinate Courts have committed an error by
directing the reinstatement of the employee without recording any
finding that the sanctioned post is available with the employer and
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without recording that the employee had worked for more than 240
days in the year preceding her termination. It is prayed that the
impugned orders be set aside and the complaint filed by the employee
be dismissed.
5. I have examined the documents placed on the record of
the writ petition with the assistance of the learned Advocate for the
petitioner.
Though the legality of the impugned orders has been
challenged by the petitioner on various grounds, the petitioner has not
been able to show that the findings recorded by the subordinate Courts
that there is violation of Section 25F of the Industrial Disputes Act,
1947 are unsustainable. The subordinate Courts have recorded that
the employer had not published seniority list as required by Rule 81 of
the Industrial Disputes (Bombay) Rules, 1957. The petitioner has not
been able to show that this finding is incorrect.
6. In view of the above, it has to be held that the termination
of services of the employee was illegal and has been rightly set aside by
the subordinate Courts. However, the submission made on behalf of
the petitioner that the subordinate Courts have not recorded any
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finding about availability of sanctioned post is worth consideration
specially in view of the fact that the employee is not in the employment
of the petitioner since last more than 20 years. In my view, the
subordinate Courts have committed an error in overlooking these
relevant aspects and, therefore, the impugned orders passed by them
are required to be modified.
7. Hence, the following order:
(i) Clauses (1), (2) and (3) of the order passed by the Labour
Court and maintained by the Industrial Court are
maintained.
(ii) Clause (4) of the order passed by the Labour Court and
maintained by the Industrial Court is modified and it is
held that in lieu of reinstatement the employee is entitled
for compensation of Rs.60,000/- (Rs. Sixty Thousand
Only).
(iii) The petitioner shall pay Rs.60,000/- (Rs. Sixty Thousand
Only) to the employee within six months.
(iv) If the amount is not paid in six months, the petitioner shall
be liable to pay interest on the amount of Rs.60,000/- (Rs.
Sixty Thousand Only) at the rate of 9% per annum, the
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interest being chargeable from the date of the order
passed by the Labour Court i.e. 12th June, 2006.
(v) The writ petition is partly allowed in the above terms. In
the circumstances, the parties to bear their own costs.
JUDGE
adgokar
