Nathabai Bhikan Mokase vs The Deputy Director Social Forest ...
2017 Latest Caselaw 6559 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD

                             WRIT PETITION NO. 6249 OF 2017

Smt.Nathabai Bhikan Mokase,
Age : 54 years, Occupation : Nil,
R/o Pishor, Tq.Kannad,
District Aurangabad.
                                            ...PETITIONER

          -VERSUS-

The Deputy Director,
Social Forest Division,
New Osmanpura, Aurangabad,
District Aurangabad.
                                            ...RESPONDENT

                                            ...
                  Advocate for Petitioner : Shri Khandelwal Rajesh K. 
                       AGP for Respondent : Shri S.N.Kendre.
                                            ...

                                       CORAM:  RAVINDRA V. GHUGE, J.

DATE :- 28th August, 2017

Oral Judgment :

1 Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

2 The Petitioner is aggrieved by the judgment and award dated

27.11.2015 by which Reference (IDA) No.63/1994 filed by the Petitioner

has been answered in the negative.

3                  Learned Advocate for the Petitioner strenuously submits that 





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the Petitioner was engaged as a daily-wager in the Nursery at Pishor,

Taluka Kannad, District Aurangabad under the Social Forest Range,

Kannad from 01.09.1985 and was orally terminated on 23.09.1993. Her

last drawn daily wages were at the rate of Rs.12/-.

4 It is further submitted that the Petitioner has continuously

worked with the Respondents and has completed 240 days in continuous

and uninterrupted service. The oral termination would, therefore, amount

to illegal retrenchment and as such, non compliance of Sections 25-F and

25-G of the Industrial Disputes Act, 1947 would render the Petitioner

eligible for reinstatement with continuity and full backwages.

5 Learned counsel for the Petitioner has strenuously criticized

the impugned award. He has taken me through the record available and

the eleven grounds formulated by him in the memo of the petition.

6 Learned AGP points out that the Petitioner was working on

Employment Guarantee Scheme (EGS). Even when the Industrial Dispute

was raised by the Petitioner, the Respondent had appeared in the

conciliation proceedings and had pointed out that the Petitioner was

working on EGS. The appropriate Government should not have referred

the dispute to the Labour Court as the employees working on EGS can

neither claim continued service, nor can they seek regularization.

7 I have considered the submissions of the learned Advocates.

8               When the Petitioner had raised an industrial dispute alleging 





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unlawful termination w.e.f. 23.09.1993, the Plantation Officer of the

Respondent had appeared before the Conciliation Officer and submitted

that the Petitioner was working on EGS. The plantation nursery on the

land of the concerned Gram Panchayat was being developed. As there was

shortage of water, the possession of the land was taken back by the Gram

Panchayat and the work ended. After closing of the nursery, as no work

was available, the Petitioner did not turn up and instead approached the

Conciliation Officer under the Industrial Disputes Act, 1947.

9 After the industrial dispute was referred to the Labour Court,

the Respondent filed it's Written Statement and had produced the records

before the Labour Court which were marked as Exhibits C-10 and C-11.

10 It appears from the records before the Labour Court that the

documents at Exhibits C-10 and C-11 were maintained by the EGS

Authorities. The Petitioner was being allotted the work on EGS. The initial

onus and burden to prove completion of 240 days in continuous

employment and that the Petitioner was not working on EGS, but was in

regular employment of the Respondent, lies on the Petitioner. It is not in

dispute that the Petitioner has not produced any document before the

Labour Court, except her statement by way of an affidavit in lieu of her

Examination-in-Chief. A notice for production of documents was also not

filed.

11              Two   persons,   namely,   Pandurang   Mokase   and   Nemichand 





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Tarachand Chavhan, who are alleged to have been regularized in service,

were not working on EGS as like the Petitioner. They were working on the

Regular Muster Roll on daily wages. Gradually, after their turn came, they

were regularized in employment. In these circumstances, the Petitioner

cannot be equated with these two persons.

12 This Court, in the matter of Arvind G. Chaudhari and another

vs. Dhanraj Nathu Patil, 2008(6) Mh.L.J. 746, has concluded that the

workers working on EGS cannot put forth the claims under the Industrial

Disputes Act, 1947 or the MRTU & PULP Act, 1971 for claiming service

benefits or continued employment.

13 In the fact situation as above, I do not find that the impugned

judgment and award could be termed as being perverse or erroneous. This

Writ Petition being devoid of merit is, therefore, dismissed. Rule is

discharged.

14 Shri Khandelwal, learned Advocate, submits on instructions

that the Petitioner is willing to work even today on EGS if the work is

available. Considering this statement, the learned AGP on behalf of the

Respondent/ Department may consider the availability of work on EGS

and if possible, may allot the work to the Petitioner on EGS.

kps                                                        (RAVINDRA V. GHUGE, J.)