Madan Mahadeo Nagpure vs Zilla Parishad, Bhadara Thru. ...
2017 Latest Caselaw 1712 Bom

 Judgment                                             1                                wp1863.08.odt




                  
                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                               NAGPUR BENCH, NAGPUR.


                              WRIT PETITION NO. 1863 OF 2008



 Madan S/o. Mahadeo Nagpure,
 Aged about 45 years, Occupation: 
 Service, R/o. Mahalgaon, Po.Bafera,
 Tah. Tumsar, Dist. Bhandara.  
                                                                           .... PETITIONER
                                                                                         . 


                                       //  VERSUS //

 1.    Zilla Parishad, Bhandara
       Through its Chief Executive 
       Officer, Tah. & Distt. Bhandara.

 2.    Executive Engineer,
       Public Works Department, 
       Zilla Parishad, Bhandara. 
                                                                      ....  RESPONDENTS.

  ___________________________________________________________________
 Shri M.P.Jaiswal, Advocate for the Petitioner. 
 Shri Hitesh N. Verma, Advocate for Respondent Nos. 1 & 2.  
 ___________________________________________________________________

                              CORAM : Z.A.HAQ, J.

DATED : APRIL 13, 2017.

ORAL JUDGMENT :

1. Heard.

2. The petitioner/employee has challenged the order passed by the

Industrial Court by which the revision application filed by the respondents

Judgment 2 wp1863.08.odt

under Section 44 of the Maharashtra Recognition of Trade Unions and

Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as

"the Act of 1971") is allowed, the order passed by the Labour Court allowing

the complaint filed by the petitioner under Section 28 of the Act of 1971 is

set aside and the complaint filed by the petitioner is dismissed.

3. The petitioner/employee filed complaint under Section 28 of

the Act of 1971 contending that he was working with the respondent as

Mustering Assistant since 1st January, 1988 and his services were illegally

terminated on 25th January, 1989, then he was taken back in employment

on 1st June, 1990 and again his services were terminated on 30th June,

1990, that the termination of his services was by way of victimization and in

colourable exercise of the employer's authority. After trial, the Labour Court

recorded that the employee was appointed under the Employment Guarantee

Scheme and relying on the judgment given in the case of Chief Conservator of

Forest Vs. Jagannath Maruti Khandhare, reported in AIR 1996 SC 2898

concluded that the employment of the petitioner/employee was governed by

the provisions of the Industrial Disputes Act, 1947 and as his services were

terminated in violation of the provisions of Section 25-F and 25-G of the

Industrial Disputes Act, 1947, the termination order was illegal and the

petitioner/ employee was entitled for reinstatement with consequential

benefits.

Judgment 3 wp1863.08.odt

4. The Industrial Court, in revision, held that the employment of

the petitioner/employee was not governed by the provisions of the Industrial

Disputes Act, 1947, that the petitioner/employee was not a "workman"

within the meaning of Section 2(s) and the Employment Guarantee Scheme

was not an "industry" within the meaning of Section 2(j) of the Industrial

Disputes Act, 1947. With the above conclusions, the Industrial Court allowed

the revision application.

5. The learned advocate for the petitioner/employee has assailed

the order passed by the Industrial Court on the ground that the conclusions

of the Industrial Court that Employment Guarantee Scheme is not an

"industry" and the employment of the petitioner is not governed by the

provisions of the Industrial Disputes Act, 1947 are not sustainable. To

support the arguments reliance is placed on the following judgments:

i) The judgment given in the case of Manabhau Damu Khairnar & Ors Vs. S.O.M. & Ors., reported in 1996 I.L.L.J. 990;

ii) The judgment given in the case of S.N.Ahirrao Vs. Dy. Engineer, P.W.D., Dhule, reported in 1991 LAB. I.C. 1688;

In the judgment given in the case of Manabhau Damu Khairnar

(supra) it was not disputed that the employee was not paid the employment

allowance payable under the Maharashtra Employment Guarantee Act, 1977.

In the case of Subhash Narayan Ahirrao (supra) also it was not disputed that

Judgment 4 wp1863.08.odt

the employee was not paid weekly wages like workers under the

Employment Guarantee Scheme.

In the present case, the evidence on record establishes that the

petitioner/employee was paid under the Employment Guarantee Scheme and

though the Labour Court allowed the complaint of the petitioner/employee,

the Labour Court recorded that the employee worked under the Employment

Guarantee Scheme. In the facts of the present case, the petitioner/employee

having admitted that he was appointed under the Employment Guarantee

Scheme, that he was working under the Employment Guarantee Scheme and

he was paid from the funds of the Employment Guarantee Scheme, the

judgments relied upon by the learned advocate for the petitioner/employee

are not of any assistance to him.

6. The learned advocate for the respondents has submitted that the

petitioner/ employee has availed all the benefits under the Employment

Guarantee Scheme and is absorbed in employment in 1995 as per the policy

under the Employment Guarantee Scheme. The learned advocate for the

petitioner/employee submits that the employee is absorbed in 1993. Though

there is dispute about the date of absorption, it is not disputed that the

petitioner-employee is absorbed in employment.

Judgment 5 wp1863.08.odt

I find that the Industrial Court has properly dealt with the issue

and has rightly held that the petitioner/employee is not entitled for the relief

granted by the Labour Court. I see no reason to interfere with the impugned

order.

The petition is dismissed. In the circumstances, the parties to

bear their own costs.

JUDGE

RRaut..