Bombay High Court
The Exe. Engineer, Akol ... vs Mah. Rajya Kamgar Kalyan ... on 11 May, 2016
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 4052 OF 2009
PETITIONERS :- 1. The Executive Engineer, Akola Irrigation
Division, Akola.
2. The Superintending Engineer, Akola
Irrigation Division, Akola.
3. The Sub-Divisional Officer, Akola Irrigation
Sub Division, Akola.
ig 4. State of Maharashtra, 32 through its
Secretary, Irrigation Department,
Mantralaya, Mumbai-32.
...VERSUS...
RESPONDENTS :- 1. Maharashtra Rajya Kamgar Kalyan
Sanghatana Registration No.2702, through
General Secretary, Yunus Shaikh, Office
Behind Manik Talkies, Pusad, District
Yavatmal.
2. Mohan Digambar Pangarkar, R/o Kapshi,
Tq. & District Akola.
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Mrs.Rashi Deshpande, Asstt. Govt. Pleader for the petitioners.
None for the respondents.
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CORAM : SMT. VASANTI A. NAIK, J.
DATED : 11.05.2016
O R A L J U D G M E N T
By this writ petition, the petitioners challenge the
judgment of the Industrial Court, Yavatmal, dated 15/10/2008 allowing
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the revision filed by the respondents and directing the petitioners to
appoint the respondent No.2 on compassionate ground as a Class-IV
employee. By the impugned judgment, the Industrial Court also directed
the petitioners to pay 25% salary to the respondent No.2 for the period
from 19/07/2003 to 15/10/2008.
2. This Court had admitted the writ petition on 02/02/2010
and had directed the parties to maintain status quo, during the
pendency of the writ petition, with the result, the petitioners have not
appointed the respondent No.2 on compassionate ground and have also
not paid 25% of the salary to him.
3. The father of the respondent No.2, namely Shri Digambar
Pangarkar was serving as a labourer on daily wages with the Irrigation
Department in Akola Irrigation Circle. Shri Digambar Pangarkar was
appointed from time to time on daily wages from 01/01/1986 till his
services were terminated in the year 1993. Shri Digambar Pangarkar
approached the Industrial Court with a complaint under Section 28 of
Maharashtra Recognition of Trade Unions & Prevention of Unfair
Labour Practices Act, 1971 alleging therein that the petitioners had
indulged in unfair labour practice by not bringing him on Converted
Regular Temporary Establishment, though he had worked continuously
for a period of five years. The complaint filed by Shri Digambar
Pangarkar was dismissed by the Industrial Court by the judgment, dated
28/01/2009. Before the dismissal of the complaint by the Industrial
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Court, Shri Digambar Pangarkar had expired and, therefore, his widow
and his son, the respondent No.2, Shri Mohan Pangarkar were brought
on record as his legal representatives. Before the dismissal of the said
complaint by the Industrial Court, the complaint filed by the
respondents, seeking the appointment of the respondent No.2 on
compassionate ground was allowed by the impugned judgment dated
15/10/2008. By the impugned judgment dated 15/10/2008, the
Industrial Court directed the petitioners to grant compassionate
appointment to the respondent No.2. The said order is impugned by
the petitioners in the instant petition.
4. Mrs. Rashi Deshpande, the learned Assistant Government
Pleader appearing for the petitioners, submitted that the Industrial
Court was not justified in allowing the complaint filed by the
respondents and directing the petitioners to grant compassionate
appointment to the respondent No.2. It is submitted that the complaint
filed by Shri Digambar Pangarkar seeking the regularization of his
services was dismissed by the Industrial Court on 28/01/2009, after
recording a finding that the complainant had failed to prove that he had
continuously worked with the petitioners for a period of five years. It is
stated that since it is held by the Industrial Court in the judgment in
the complaint filed by Shri Digambar Pangarkar that Shri Digambar
Pangarkar had failed to prove that he was eligible to be brought on
Converted Regular Temporary Establishment, the Industrial Court could
not have allowed the complaint filed by the respondents seeking
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compassionate appointment for the respondent No.2. It is submitted
that the Industrial Court placed a negative burden on the petitioners to
prove that Shri Digambar Pangarkar had not worked continuously for a
period of five years with the petitioners. It is stated that it was necessary
for the respondent No.2-the son of Shri Digambar Pangarkar to prove
that Shri Digambar Pangarkar had worked for a period of five years to
seek the benefits of 'Kalelkar Award'. It is submitted that in the
circumstances of the case, the judgment passed by the Industrial Court,
dated 15/10/2008 is liable to be set aside.
5. None appears on behalf of the respondent Nos.1 and 2,
though served. Despite service on the respondents for hearing of the
writ petition on merits in March, 2010, the respondents have not
engaged a counsel to defend the impugned judgment of the Industrial
Court.
6. On hearing the learned Assistant Government Pleader and
on a perusal of the impugned judgment of the Industrial Court as also
the judgment of the Industrial Court, dated 28/01/2009 in the
complaint filed by Shri Digambar Pangarkar along with others, it
appears that the Industrial Court was not justified in directing the
petitioners to appoint the respondent No.2 on compassionate ground
and also pay the arrears of salary in part, to the respondent No.2.
Admittedly, the services of Shri Digambar Pangarkar, who was working
on daily wages with the petitioners were not regularized and he was not
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brought on Converted Regular Temporary Establishment. The complaint
filed by Shri Digambar Pangarkar along with others for bringing them
on Converted Regular Temporary Establishment was dismissed by the
Industrial Court by the judgment, dated 28/01/2009 after holding that
Shri Digambar Pangarkar had failed to prove that he had continuously
worked with the petitioners for a period of five years. It is observed by
the Industrial Court in the judgment in the complaint filed by Shri
Digambar Pangarkar that since Shri Digambar Pangarkar was not
continuously employed with the petitioners for a period of five years,
the benefits of 'Kalelkar Award' could not have been granted to him and
he was not eligible to be brought on Converted Regular Temporary
Establishment. In the instant case also, the respondent No.2 had
admitted that his father was employed on daily wages and that he had
no knowledge whether his father was brought on Converted Regular
Temporary Establishment. The respondent No.2 admitted that he was
not aware whether his father had completed 240 days of continuous
service in any of the years during which he was in service. The
Industrial Court erroneously placed the burden on the petitioners to
prove that Shri Digambar Pangarkar had not worked continuously for a
period of five years with the petitioners. The initial burden was
required to be placed on the respondent No.2 to prove that his father
had worked for a period of five years with the petitioners. In the instant
case, as this Court finds from the judgment of the Industrial Court in the
complaint filed by Shri Digambar Pangarkar and others that Shri
Digambar Pangarkar had failed to prove that he was continuously in
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employment for a period of five years, the benefit of the resolution
providing for compassionate appointment, cannot be granted in favour
of the respondent No.2. Since Shri Digambar Pangarkar was working on
daily wages and was never brought on Converted Regular Temporary
Establishment, the respondent No.2 could not have claimed
appointment on compassionate ground after the death of Shri Digambar
Pangarkar. It is pointed out on the basis of the record that the other
employees/daily wagers that were brought on Converted Regular
Temporary Establishment had completed five years of continuous
service with the petitioners, whereas Shri Digambar Pangarkar had not
completed the required service. In the circumstances of the case, the
Industrial Court committed an error in directing the petitioners to
appoint the respondent No.2 on compassionate ground and pay him
25% of salary for the specified period.
7. Hence, for the reasons aforesaid, the writ petition is
allowed. The impugned judgment of the Industrial Court is quashed
and set aside. Rule is made absolute in the aforesaid terms with no
order as to costs.
JUDGE
KHUNTE
