Bombay High Court
Ashok Sitaram Patil vs Muncipal Council,Parola on 28 June, 2016
Bench: P.R. Bora
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923 WRIT PETITIONS.4151 N 5716.1995.odt
THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
APPELLATE SIDE JURISDICTION
WRIT PETITION NO. 4151 OF 1995
The President,
Municipal Council,
Parola, Dist. Jalgaon. ... PETITIONER
(Ori. Party No.1)
V E R S U S
Ashok Sitaram Patil,
C/o : Khandesh General Kamgar Union,
Dist. Jalgaon.
Trade Union Centre, Amalner,
... RESPONDENT
(Ori. Party No.2 - Workman)
W I T H
WRIT PETITION NO. 5716 OF 1995
Ashok s/o. Sitaram Patil
(Died through Legal representatives)
1(a) Shrimati. Aprukbai w/o Ashok Patil,
Age:- 55, Occu:- Household,
1(b) Shri. Ganesh s/o Ashok Patil,
Age:- 27, Occu:- service,
1(c) Shri Nilesh s/o Ashok Patil,
Age:- 25, Occu:- Education,
1(d) Sou. Manisha w/o Pramod Patil,
Age:- 35, Occu:- Household,
1(e) Sou. Shital w/o Sonap Patil,
Age:- 33, Occu:- Household,
All Resident of 41-B, Parvati Sadan,
Vidyanagar, Swami Narayan Road,
Deopur, Dhule, Tq:- & District : Dhule. ... PETITIONERS
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923 WRIT PETITIONS.4151 N 5716.1995.odt
V E R S U S
1. The Municipal Council, Parola,
(through its Chief Officer),
Tq. Parola, District - Jalgaon.
2. The Labour Court, Jalgaon. ... RESPONDENTS
...
Mr. R. L. Kute, Advocate h/f Mr. R. N. Dhorde, Senior Counsel,
for Municipal Council (Employer)
Mr. A. S. Shelke, Advocate for the Employee.
...
CORAM : P. R. BORA, J.
DATE : 28th June, 2016.
ORAL JUDGMENT:
. Since in both these writ petitions the challenge is to the
order passed by the Labour Court, Jalgaon in reference (IDA) No.26
of 1994 on 18th April, 1995, I deem it appropriate to decide both these
writ petitions by a common reasoning.
2 Writ Petition No.4151 of 1995 is filed by the employer i.e.
original Respondent, whereas Writ Petition No.5716 of 1995 is filed by
the employee i.e. original Complainant.
3 In the petition filed by the employee, it is his contention
923 WRIT PETITIONS.4151 N 5716.1995.odt
that the learned Labour Judge ought to have allowed his reference in
toto and must have directed his reinstatement with continuity of
service and with full back-wages. Whereas in the petition filed by the
employer, the contention raised is that the reference was liable to be
dismissed and even no direction could have been passed by the
learned Labour Judge directing the employer to pay the compensation
amounting to Rs.27,000/- to the employee.
On a dispute raised by the employee in regard to his
alleged termination by the employer, a reference was made by the
Deputy Commissioner of Labour, Nasik and was forwarded to Labour
Court, Jalgaon for its adjudication.
5 It was the contention of the employee before the Labour
Court that though he has worked with the employer / Municipal
Council for continuous period of more than 240 days, his services
were abruptly terminated without giving him any notice or
retrenchment compensation. It was further contended by him that no
seniority list was published before terminating his services and the
employees junior to him, were retained and his services were
terminated. As against it, it was the contention of the employer /
923 WRIT PETITIONS.4151 N 5716.1995.odt
Municipal Council that the present employee was appointed on purely
temporary basis and he had never worked continuously for the period
of more than 240 days. Though it was admitted by the employer that
the employee worked with the Municipal Council with effect from 23 rd
May, 1977 to 25th November, 1978, it was the further contention that,
during the said period, three appointment orders were issued to him
and there were gaps in between the appointments. It was thus
contended that in none of the spell, the employee has worked
continuously for more than 240 days, and therefore, there was no
question of issuing a notice to the said employee or paying him
retrenchment compensation. It was further contended that a clear
understanding was given to the employee that his appointment will
continue till a duly selected candidate is recommended from the State
Selection Board, Aurangabad. It was also the contention of the
employer / Municipal Council that since the duly selected candidate
from the State Selection Board was made available and was
accordingly given appointment on the post of Naka Karkun, the
employee was relieved from the services.
6 The learned Labour Judge after having assessed the oral
as well as the documentary evidence brought before it, allowed the
923 WRIT PETITIONS.4151 N 5716.1995.odt
said reference in part. The Labour Court did not accept the request of
the employee for his reinstatement with continuity of service and
back-wages, but find it appropriate to grant him compensation of
Rs.27,000/- and directed the employer / Municipal Council to pay the
said amount of compensation to him. Against the order so passed, as
mentioned hereinabove, the first party and the second party in the
said reference, both have approached this Court by filing the
respective writ petitions.
7 Shri R. L. Kute, learned counsel holding for Shri R. N.
Dhorde, Senior Counsel, for the Municipal Council (employer)
submitted that despite ample evidence being brought on record
showing that the appointment of the employee was on purely
temporary basis and further that he had never worked continuously for
the period more than 240 days in one year, the Labour Court instead
of rejecting the reference, has cast burden on the Municipal Council of
paying compensation to the tune of Rs.27,000/- to the employee. The
learned counsel submitted that there was no vested right in the
employee so as to claim any relief invoking the provisions of the
Industrial Disputes Act. The learned counsel further submitted that
the employer has brought on record ample evidence showing that the
923 WRIT PETITIONS.4151 N 5716.1995.odt
Municipal Council was not empowered directly to recruit the post of
Naka clerk and was required to fill the said post by giving an
appointment to a person recommended from the State Selection
Board, Aurangabad. The learned counsel further submitted that the
evidence was brought on record showing that such candidate was
recommended by the State Selection Board and was accordingly
appointed by the Municipal Council on the post of Naka clerk. The
learned counsel further submitted that from the evidence on record, it
was quite clear that no unfair labour practice was committed by the
employer / Municipal Council, and as such, no relief could have been
granted by the Labour Judge against the Municipal Council. The
learned counsel, therefore, prayed for setting aside the impugned
order.
8 I have carefully considered the submissions advanced by
the learned counsel appearing for the respective parties. I have
perused the impugned judgment and the material on record. The
employee was admittedly appointed on temporary basis. Though it is
the contention of the employer that the employee did not continuously
work for more than 240 days in one calender year, the evidence on
record shows that the employee had worked with the Municipal
923 WRIT PETITIONS.4151 N 5716.1995.odt
Council from 23rd May, 1977 till 25th November, 1978 with two
technical breaks. It is further not in dispute that the Municipal Council
was not having right or authority to carry out recruitment for the
appointment to the post of Naka Karkun. The said post was required
to be filled in by inviting the names from the State Selection Board,
Aurangabad. The evidence on record shows that after the employee
in the present matter was terminated, the Municipal Council has
appointed a person by name Pawar, who was duly selected by the
State Selection Board, Aurangabad and was recommended to be
appointed on the post of Naka Karkun, in the Municipal Council,
Parola. In view of the fact that the post on which the employee claims
to have worked could not have been filled in by the Municipal Council
or Council could not have absorbed the disputant employee on the
said post, it is difficult to accept that by giving temporary appointment
to the employee, any unfair labour practice was committed by the
Municipal Council. The employee concerned in his cross-examination
before the Labour Court has admitted that he was appointed on
temporary basis and that two times technical breaks were given to
him. The employee concerned has further admitted that the person
who was appointed on the post of Naka Karkun was a selectee from
923 WRIT PETITIONS.4151 N 5716.1995.odt
the State Selection Board, Aurangabad. Considering the admitted
facts on record, it does not appear to me that the Labour Court has
committed any error in recording a finding that the employee
concerned was not entitled for the relief of his reinstatement. In view
of the fact that, the learned Labour Court has rightly struck the
balance by awarding compensation of Rs.27,000/- to the employee,
there appears no merit in the petition filed by the employee and the
same deserves to be dismissed.
9 The employer has challenged the order so far as it relates
to the award of compensation to the tune of Rs.27,000/- to the
employee. As has been noted hereinabove, it is the contention of the
employer that when no unfair labour practice is proved against the
employer, there was no reason for the Labour Court to award
compensation. The contention so raised cannot be accepted in view
of the reasons recorded by the Labour Court in the impugned
judgment. The Labour Court has observed that though it was the
case of the employer / Municipal Council that the appointments time
to time given were with a specific stipulation that the services of the
employee would come to an end on the appointment of a regularly
appointed candidate recommended by the State Selection Board,
923 WRIT PETITIONS.4151 N 5716.1995.odt
Aurangabad, no such appointment order was produced on record.
The Labour Court has further observed that the breaks given in
service to the employee were technical and the employee must be
held to be in continuous service of the employer / Municipal Council
during the period from 23rd May, 1977 to 25th November, 1978. It is
further observed by the learned Labour Judge that some junior
persons were retained in the services by the employer / Municipal
Council and the services of the employee came to be terminated.
In the circumstances, though the learned Labour Judge refused the
relief of reinstatement to the employee, find it just and appropriate to
award the compensation of the amount equivalent to three years pay
on the basis of last drawn wages by the employee. It does not appear
to me that in awarding the compensation, as such the learned Labour
Judge has committed any error. In the circumstances, the petition
filed by the employer / Municipal Council also deserves to be
dismissed.
10 During the course of arguments, it was brought to my
notice that at the time of admitting the petition filed by the employer,
the employer was directed to deposit a sum of Rs.25,000/- in this
Court. The record shows that accordingly the said amount was
923 WRIT PETITIONS.4151 N 5716.1995.odt
deposited and was permitted to be withdrawn by the employee. In
view of the fact that the petition filed by the Municipal Council has
been rejected, the legal heirs of the deceased are entitled to receive
the balance amount in terms of the impugned order. It would be in the
fairness of things if the employer / Municipal Council at its own makes
the payment in terms of the impugned order to the legal heirs of the
deceased employee. In the result, the following order -
ig O R D E R
I. Both the aforesaid writ petitions stand dismissed
without any order as to the costs. Rule
discharged.
II. Pending civil application stands disposed of.
[ P. R. BORA, J. ]
ndm
