Bombay High Court
Duryodhan S/O Kashiram Raghorte vs State Of Mah. Dept Of Irrigation, ... on 13 April, 2017
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 2422 OF 2009
Waman Vithobaji Bhadade,
aged about 38 years, Occ. Presently
unemployed, R/o. Chichghat (Navegaon),
Tah. Kuhi, Distt. Nagpur. ...... PETITIONER
...VERSUS...
1. State of Maharashtra,
Department of Irrigation,
Through its Secretary, Mantralaya,
Mumbai-32
2. Superintending Engineer,
Irrigation Circle, Gosikhurd Project Circle,
Sinchan Bhavan, Civil Lines, Nagpur...
3. Executive Engineer,
Gosikhurd Right Bank Canal,
Division No.1, WAHI (Pavani),
Tah. Pavani, Distt. Bhandara.
4. Sub Divisional Officer,
Gosikhurd Right Bank Canal,
Sub Division No.9, Bramhpuri Sub Division,
Tah. Bramhpuri, Distt. Chandrapur.
5. Vidarbha Pat Bandhare Vikas Mahamandal,
Sinchan Bhavan, Civil Lines, Nagpur,
through its Chairman.. RESPONDENTS
AND
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WRIT PETITION NO. 2428 OF 2009
Duryodhan Kashiram Raghorte
aged about 46 years, Occ. Presently
unemployed, R/o. Plot No.64, Shikshak
Colony, Bharat Nagar, Kalumna Road,
Nagpur . ...... PETITIONER
...VERSUS...
1. State of Maharashtra,
Department of Irrigation,
Through its Secretary, Mantralaya,
Mumbai-32
2. Superintending Engineer,
Irrigation Circle, Gosikhurd Project Circle,
Sinchan Bhavan, Civil Lines, Nagpur...
3. Executive Engineer,
Gosikhurd Right Bank Canal,
Division No.1, WAHI (Pavani),
Tah. Pavani, Distt. Bhandara.
4. Sub Divisional Officer,
Gosikhurd Right Bank Canal,
Sub Division No.9, Bramhpuri Sub Division,
Tah. Bramhpuri, Distt. Chandrapur.
5. Vidarbha Pat Bandhare Vikas Mahamandal,
Sinchan Bhavan, Civil Lines, Nagpur,
through its Chairman.. RESPONDENTS
-------------------------------------------------------------------------------------------
Shri A.R.Patil, counsel for Petitioner.
Shri S.B.Bissa, AGP for Respondent No.1
Shri P.B.Patil, counsel for Respondent nos. 2, 3 and 4
-------------------------------------------------------------------------------------------
CORAM: R. K. DESHPANDE, J.
th
DATE : 13 APRIL, 2017 .
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ORAL JUDGMENT
1] The Labour Court at Bhandara has dismissed on
24.01.2008, two separate Complaint ULPA Nos. 158 of 1997
and 159 of 1997, filed by the petitioners, challenging their
termination from service by an order dated 21.01.1997. The
Industrial Court by its common judgment and order dated
09.01.2009, dismissed the separate revisions preferred by
the petitioners, confirming the decisions by the Labour Court.
Hence, both these petitions are by the employees.
2] The factual position can be stated as under;
The lands belonging to the family of the
petitioners were acquired for the irrigation project of the
Vidarbha Irrigation Development Corporation (in short VIDC)
and the petitioners were appointed by an order dated
02.07.1996 for a period of six months as project affected
persons on temporary basis on the posts of junior clerk by
the respondent VIDC. The petitioners were terminated by an
order dated 21.01.1997 for the reason that their tenure of
appointment has come to an end. The petitioners invoked
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the provisions of Items (a) (b) and (c) of Schedule IV of the
Maharashtra Recognition of Trade Union and Prevention of
Unfair Labour Practices Act (in short MRTU and PULP Act),
by filing separate complaints before the Labour Court.
3] The case of the respondents was that the
petitioners were terminated from service in terms of the
orders of appointments issued to them. It was the specific
stand taken that the petitioners failed to produce a certificate
of project affected persons from the competent Authority i.e.
the District Collector/ District Rehabilitation Officer and
therefore, they were not entitled to be continued in service.
4] Both the Courts below accepted the stand of the
respondents that the petitioners have failed to produce such
certificate of project affected persons from the competent
authority i.e. District Collector/ District Rehabilitation Officer
to establish their claim. The finding is recorded that it was not
a case of retrenchment under Section 2(oo) of the Industrial
Disputes Act and the terminations were effected in terms of
the orders of appointment after the expiry of the specific
period of appointments. The dismissal of complaints is
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maintained in Revision by the Industrial Court.
5] Both the Courts below have held that one person
from the family of project affected persons is entitled to get
an employment on permanent basis. Undisputedly, for
employment as project affected person, the applicability of
the regular recruitment rules is exempted as per Government
Resolutions dated 21.01.1980 and 18.06.1990 at Exh.65 and
44 respectively. In order to get such employment, a
certificate as a project affected person issued by the
competent authority i.e. District Collector/ District
Rehabilitation Officer is required to be produced as per Exh.
44. Upon production of such certificate, a person is entitled
to get the employment in a suitable post in a permanent
vacancy. As per the letter dated 24.06.1996 at Exh.54,
issued by the Superintending Engineer of the project, the
condition of production of certificate from the competent
Authority was relaxed and the appointees were permitted to
join the post upon production of certificate dated 28.02.1996
at Exh. 46 as a project affected persons, issued by the
Executive Engineer of the project of the respondent VIDC, for
which the acquisition is made.
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6] The petitioners were appointed by an order
dated 02.07.1996 at Exh. 47 on the post of Junior Clerks in
the services of the respondent VIDC in the permanent
vacancies. This appointment was for a period of six months
in regular scale of Rs.950-10-1150-E.B-25-1500 per month.
The order specifically state in clause (1), that as per
Government Resolution dated 18.06.1990, the appointments
are exempted from applicability of regular recruitment rules.
The procedure under clause 5(a) in the order of appointment
states that while joining the duties, the petitioners will have
to produce original certificate of project affected person
issued by the District Collector/District Rehabilitation Officer.
The petitioners were permitted to join the duties as per letter
of the Superintending Engineer, dated 24.06.1996 at Exh.54
upon production of certificate as project affected person
issued by the Executive Engineer of the project of
respondent VIDC, for which the lands of the petitioners were
acquired. The petitioners have actually worked on the post
from 02.07.1996 to 21.01.1997. The petitioners have in fact
produced the certificate dated 01.12.1998 at Exh.42 and
dated 09.02.1999 issued by the competent Authority i.e.
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District Collector / District Rehabilitation Officer clearly
evidencing that they are the project affected persons. But in
spite of representation, they were neither permitted to join the
duties nor granted reinstatement in service by the
respondents. The termination of the petitioners by an order
dated 21.01.1997 was with retrospective effect from
03.01.1996 and 10.01.1996.
7] The witness Rahul Meshram, working as Sub
Divisional Officer examined by the respondents has admitted
that if the petitioners had produced the certificates from the
competent authority i.e. District Collector / District
Rehabilitation Officer at the time of initial appointment, then
their appointments could have been made on permanent
basis. He has stated that in order to get an appointment on
permanent basis, the only requirement was to produce the
certificate of project affected person from the competent
authority. He admits that the petitioners have in fact
produced such certificates from the competent authority
issued on 09.02.1999 evidencing that they are the project
affected persons. This witness also admits that four other
persons namely (1) Chopkar, (2) Kamdi (3) Fating and (4)
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Mangar, working as Junior Clerk/Peon were also appointed
vide orders dated 01.01.1996 and 02.01.1996 at Exh. Nos.
50 and 49 respectively on the same terms for a period of six
months as project affected persons, they were terminated
vide Exh. 42 from service for non production of certificates
from the competent authority. But by an order dated
27.08.2009 issued by the respondents, they were reinstated
in service upon production of the certificate from the
competent authority. This witness admits that no such
opportunity was given to the petitioners. This order dated
27.08.2009 was also placed on the record of the Labour
Court. The witnesses Chopkar examined at Exh.59A and
Digambar Barapatre at Exh. 59B, the employees similarly
situated have supported the version of witness Rahul
examined by the petitioner employer.
8] In the backdrop of the aforestated undisputed
factual position, the question is whether the termination of the
petitioners on 21.01.1997 was illegal, attracting the
provisions of Items (a), (b) and (c) of Schedule IV of MRTU
and PULP Act.
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9] The terminations have been effected by an order
dated 21.01.1997 with retrospective effect i.e. 03.01.1996
and 10.01.1996 which by itself is illegal. Though the reason
mentioned in the order of termination is the expiry of six
months period of appointment as stipulated in the order of
appointment, the real reason was of non production of
certificate as project affected person from the District
Collector/District Rehabilitation Officer. The orders of
appointment no where mention that the petitioners will have
to produce a certificate from the competent authority as
project affected persons within a stipulated period for
continuing in service beyond the period of six months. On
the contrary, the appointments of the petitioners were made
as per order of the Superintending Engineer, dated
24.06.1996 as project effected persons in permanent
vacancies as Junior Clerks on the basis of the certificates to
that effect issued by the Executive Engineer of VIDC. The
petitioners were denied the same treatment of reinstatement
in service upon the production of certificates dated
09.02.1999 from the competent authority, which was given to
three other similarly situated persons namely (1) Chopkar,
(2) Kamdi, (3) Fating and (4) Manger. The terminations
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attracted the provisions of clauses (a), (b) and (d) of Item of
of Schedule IV of MRTU and PULP Act. The termination was
not in good faith, but with undue haste and in colourable
exercise of powers for the false reasons. The termination was
discriminatory and resulted in victimization of the petitioners.
The Courts below have committed an error in holding that the
termination was in accordance with the terms of the order of
appointment.
10] Before this Court, it was urged at the time of
admission of this matter by the petitioners that the certificate
issued by the competent authorities were produced before
the labour Court and the proposal for their absorption was
under consideration of the respondents. This was also
supported by the respondent Nos. 2 to 5 and accordingly, on
9th October, 2010, this Court passed an order as under.
"Heard.
Learned Counsel for the petitioner states that
necessary Certificates are produced by the petitioner
and proposal for his absorption is now pending with
the State Government. Mr. P.B.Patil, Adv., for
respondent nos. 2 to 5 also states that the proposal is
pending with the State Government. Mr. J.B. Jaiswal,
Assistant Government Pleader states that he is
awaiting instructions in the matter and that he is not
aware of all these developments. In the circumstances,
the Writ Petition is admitted for final hearing.
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Hearing is expedited.
Mr. J.B.Jaiswal, Assistant Government Pleader waives
notice on behalf of respondent No.1. Mr. P.B.Patil,
Adv., waives notice on behalf of respondent nos. 2
to 5.
Liberty is granted to the parties to mention if the State
Government takes any decision. The State
Government shall consider the proposal, if any,
forwarded to it by the respondents in accordance with
law as early as possible and in any case by 30 th
November, 2010".
11] Now, the attention of this Court is invited to the
communication dated 02.08.2010 issued by the respondent
VIDC informing the Government Pleader that the
Government Pleader shall appear for and on behalf of the
respondent VIDC and its officers. Accordingly, a common
affidavit has been filed on record on 27th June, 2011, in which
a specific stand is taken that it was misled before this Court
that the proposal was forwarded to the State Government for
regularization of the petitioners in service and in fact, no such
proposal was forwarded to the State Government at any
point of time.
12] In fact, the order of regularization of similarly
situated employees was issued on 27.08.2009 by the
Superintending Engineer, working under VIDC and it was in
accordance with Government Resolution dated 23.11.2007.
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Nothing prevented the respondents to consider the case of
the petitioners for reinstatement as per the policy of the
Government contained in the said Government Resolution.
This is nothing but victimization of the petitioners. The
litigation is pending since 1997 without any efforts on the part
of the respondents to settle the dispute. The respondents,
therefore, will have to bear the financial burden of payment of
backwages to the petitioners.
13] In the result, the writ petitions are allowed. The
judgment and order dated 21.08.1998 in ULPA Complaint
No. 159/97 passed by the labour Court, as confirmed in
Revision No. 40/2008 on 09.01.2009 by the Industrial Court
are hereby quashed and set aside. The complaints filed by
the petitioners before the Labour Court are allowed and the
following order is passed.
[i] It is declared that the respondents were engaged in
an unfair labour practice under item 1(a), (b) and (d)
of Schedule IV of MRTU and PULP Act, in
terminating the services of the petitioners on
21.01.1997;
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[ii] The respondents are directed to reinstate the
petitioners forthwith in service on the posts from
which they were terminated.
[iii] The petitioners shall be entitled to all the benefits
including the backwages and all other consequential
benefits with effect from 03.01.1996 i.e. the date with
effect from which termination has been given effect
to.
[iv] Entire payments be made to the petitioners within a
period of two months from today.
Looking to the attitude of the respondents, this
Court is required to retain control over the matter. Hence, put
up this matter after a period of two months to see the
compliance of this order.
JUDGE
Rvjalit
