Bombay High Court
Kadar Mohiuddin Shaikh vs The State Of Maharashtra And ... on 18 October, 2016
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 9650 OF 2015
Kadar Mohiuddin Shaikh,
Age : 48 years, Occupation : Labour,
R/o At Post Loni, Taluka Jamkhed,
District Ahmednagar.
...PETITIONER
-VERSUS-
1 The State of Maharashtra.
Through Secretary for
Grampanchayat and Water
Preservation Department,
Mantralaya, Mumbai-32.
2 Director of Social Forestry,
Social Forestry Department,
Maharashtra State,
Pune.
3 Deputy Director,
Social Forestry Department,
Ahmednagar Setu Office,
Ahmednagar.
...RESPONDENTS
...
Advocate for Petitioner : Shri Barde Parag Vijay
AGP for Respondent 1 : Shri S.B.Joshi.
Advocate for Respondents 2 and 3 : Shri Bhavthankar Vivek Vasantrao.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 18th October, 2016
Oral Judgment :
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1 Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2 I had heard the learned Advocate for the Petitioner and the
learned AGP on behalf of Respondent No.1 while issuing notice on
19.09.2016. The said order dated 19.09.2016 reads as under:-
"1. The petitioner has challenged the judgment of the
Industrial Court, dated 23.2.2015, by which, his
Complaint (ULP) No.76 of 2012 has been dismissed.
2. It is pointed out that after the petitioner joined service
as a Watchman on daily wages from 1.3.1987, he
was terminated on 5.6.1992. He preferred Complaint
(ULP) No.221 of 1992, which was partly allowed by
the Labour Court, granting reinstatement on his
previous post with continuity of service and
consequential benefits. He was deprived of the
backwages.
3. It is further pointed out that Revision (ULP) No.67 of
2005 was dismissed by the Industrial Court on
3.11.2007. Writ Petition No.3772 of 2008 filed by
the respondents was dismissed on 12.6.2009.
Thereafter, the petitioner has been reinstated in
service.
4. It is pointed out that Complaint (ULP) No.76 of 2012
was filed by the petitioner before the Industrial Court,
claiming regularization in service, in the light of the
Government Resolution dated 31.1.1996 and
16.8.2012. Grievance is that when the petitioner has
been granted continuity in service, it presupposes that
he has worked continuously. The conclusion of the
Labour Court that the petitioner could not prove
completion of 240 days in continuous employment
and dismissed the complaint, is apparently by
ignoring the earlier direction of the Labour Court,
which has merged in the judgment of the Industrial
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Court and this Court, that the petitioner had worked
continuously.
5. Issue notice before admission to the respondents,
returnable on 3.10.2016.
6. Learned AGP waives service for all the respondents.
7. Leave is granted to the petitioner to file the relevant
Government Resolutions on record."
3 Shri Bhavthankar, learned Advocate appearing on behalf of
Respondent Nos.2 and 3, has strenuously canvassed the following points
while supporting the impugned judgment:-
(a)
Respondent Nos.2 and 3/ Department of Forestry is not an
industry.
(b) The work performed by the Petitioner on Employment
Guarantee Scheme (EGS) cannot be taken into account while
calculating 240 days of continuous employment.
(c) Though the Petitioner was working on regular scheme also,
intermittently he was working on EGS as well.
(d) The chart placed on record today, which is marked as Exhibit
X for identification, indicates that though the Petitioner may
have worked for more than 240 days in 07 years in between
1987 to 1997, some of the days on which he had worked on
EGS, cannot be included while reckoning the total number of
days worked.
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4 It cannot be ignored that the Petitioner had filed Complaint
(ULP) No.221/1992 before the Labour Court challenging his illegal
termination dated 05.06.1992 after having worked from 01.03.1987. The
Labour Court had allowed the complaint and had granted reinstatement
with continuity of service and consequential benefits, although the
Petitioner was deprived of the back wages. The revision filed by the
Department of Social Forestry was dismissed by the Industrial Court on
03.11.2007 and their Writ Petition No.3772/2008 was dismissed by this
Court on 12.06.2009. In my view, the presumption, therefore, is that all
objections raised by the Respondent/ Department with regard to the
applicability of the MRTU & PULP Act, 1971 in the earlier round of
litigation 25 years ago, have been dealt with and put to rest. It is in this
backdrop that I am rejecting the submissions of Shri Bhavthankar.
5 It requires no debate that when the Labour Court has granted
continuity in service, the Petitioner is presumed to have worked on all
working days notwithstanding the fact that he has been deprived of back
wages. However, grant of consequential benefits by the Labour Court
accompanying reinstatement and continuity of service, therefore, puts the
issue of completion of 240 days to rest.
6 The Industrial Court, in my view, has committed a palpable
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error in reopening the whole issue to scrutinize as to whether, the
Petitioner was working in continuous service. The above recorded facts
pertaining to the earlier round of litigation were obviously ignored by the
Industrial Court. For the said reason, the impugned judgment of the
Industrial Court would not be sustainable.
7 The Government Resolutions dated 31.01.1996 and
16.10.2012 are placed on record. There is no dispute that the Petitioner is
still in employment. Consequentially, he has been working for the past 29
years.
8 In the light of the above, this Writ Petition is partly allowed.
The impugned judgment of the Industrial Court dated 23.02.2015 is
quashed and set aside and Complaint (ULP) No.76/2012 stands partly
allowed as under:-
(a) Respondent No.3/ Department shall forward the proposal of
the Petitioner to Respondent No.2/ Authority as provided for
under the Government Resolutions dated 31.01.1996 and
16.10.2012, within a period of TWELVE WEEKS from today.
(b) Respondent No.2 shall decide the said proposal in the light of
the Government Resolutions referred above within a period of
SIXTEEN WEEKS from the date of receipt of the proposal.
*6* 6.wp.9650.15
9 Though the Petitioner makes a statement that he is agreeable
to receive benefits from 01.11.1994 from which date the Government
Resolution dated 31.01.1996 is made effective, I leave it to Respondent
No.2 to take an appropriate decision in this regard and on parity with
similarly situated employees. Respondent No.2 shall decide the deemed
date for calculating the benefits incidental thereto.
Rule is made partly absolute in the above terms.
kps (RAVINDRA V. GHUGE, J.)
