Bombay High Court
Pradeep S/O. Hareshwar Ketkar vs Tatya Tope Nagar Nagrik Mandal ... on 5 July, 2017
Bench: I.K. Jain
wp.3479.16.jud 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.3479 OF 2016
Pradeep s/o Hareshwar Ketkar,
Aged about 57 years, Occu. Nil,
R/o Shri Ganesh Mandir Quarter,
Tatya Tope Nagar, Nagpur. .... Petitioner
-- Versus -
01] Tatya Tope Nagar Nagrik Mandal,
Through its Secretary,
Shri Ganesh Mandir, Tatya Tope Nagar,
Nagpur.
02] The Member,
Industrial Court,
Civil Lines, Nagpur.
03] The Presiding Officer,
Fourth Labour Court,
Civil Lines, Nagpur. .... Respondents
Shri V.P. Marpakwar, Advocate for the Petitioner.
Shri S.S. Ghate, Advocate for Respondent No.1.
Shri V.P. Gangane, A.G.P. for Respondent Nos.2 & 3.
CORAM : KUM. INDIRA JAIN, J.
DATE : JULY 5, 2017.
ORAL JUDGMENT :-
Rule. Rule made returnable forthwith. Heard finally
with the consent of the learned Counsel for the parties.
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02] This petition takes an exception to the order dated
14/09/2009 passed in Complaint (ULPA) No.43/2008 by the
Fourth Labour Court, Nagpur and order dated 15/07/2015 in
Revision (ULP) No.153/2009 decided by the Industrial Court,
Nagpur confirming the order of the Labour Court and dismissing
the complaint filed by petitioner.
03] The facts giving rise to the petition may be stated in
brief as under :
I. Petitioner was working as Pujari with respondent no.1
from 01/05/2004 to 30/04/2005. Services of petitioner
came to be terminated with effect from 01/05/2008.
Petitioner filed Complaint (ULP) No.43/2008 before the
Labour Court. Labour Court rejected the complaint.
The order was carried in revision. Industrial Court vide
order dated 15/07/2015 dismissed the revision and
upheld the order passed by the Labour Court. Being
aggrieved by the orders passed by the Courts below,
petitioner has invoked extraordinary jurisdiction of
this Court.
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04] Petitioner no where disputes in the complaint and in
evidence that his appointment was for a period from 01/05/2004
to 30/04/2005. The Division Bench of this Court in case of
Nagpur District Central Co-operative Bank Ltd. vs.
Prashant Ashokrao Salunke and another - [2016(1)
Mh.L.J. 706] held that appointment on contractual basis in the
nature of specified period would squarely fall under the ambit of
Section 2(oo)(bb) of the Industrial Disputes Act, 1947 and
provisions of Chapter V-A which includes Sections 25-F and 25-G
of the Maharashtra Recognition of Trade Unions and Prevention
of Unfair Labour Practices Act would not be applicable in such a
case.
05] In the case on hand, in view of an unequivocal
admission on the part of petitioner that his appointment was for
a fixed term from 01/05/2004 to 30/04/2005, controversy is
squarely covered by the above decision of the Division Bench of
this Court.
06] Another grievance of petitioner is that issue was not
framed by the Labour Court regarding status of petitioner as
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workman and of respondent as an industry. In this regard,
observations made by the Labour Court in paragraph 25 and by
the Revisional Court in paragraph 13 of the impugned judgments
would be relevant. Those observations are :
Paragraph 25 of Complaint (ULP) No.43 of 2008:
"If, we peruse the cross examination of the
complainant and the document Exh.26 it shows that
the complainant was appointed for one year period
i.e. from 01/05/2004 to 30/04/2005 and his payment
was Rs.1,200/- per month Exh.27. 28 and Exh.29
shows that the complainant had given all the charge,
material i.e. silver ornaments/goods and all the
accounts statement for the month April to the
respondent trust. It is also seen by Exh.30 that the
complainant handed over the Cheque of Rs.10,000/-
on account he had taken advance of Rs.10,000/- by
the respondent. The complainant has failed to prove
that he is a workman and the respondent is an
industry. In such circumstances, the complainant
failed to prove that the respondent is engaged in
unfair labour practices and orally terminated the
services of the complainant, as the complainant failed
to prove his case, he is not entitled for the
reinstatement as prayed."
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Paragraph 13 of Revision (ULP) No.153 of 2009:
"In the present case, there is no pleading and
evidence of complainant on record showing what
activities are carried on by the respondent. There is
no material on record to show that ho many
employees were working with the respondent to carry
out the work of respondent Trust. It appears that one
Peon was engaged by the respondent for the purpose
of sweeping and complainant was engaged as a
Pujari. There is no material on record to show that
the respondent trust is carrying out commercial
activities by engaging so many employees. It has
come on record that the respondent trust runs library
for which it has purchased the books. Other
programmes including Bal Sanskar etc. were held by
the respondent trust. On these basis, it cannot be
said that the activities carried out by the respondent
trust are covered under the definition of 'industry'.
Therefore, above decisions which are relied on by the
learned advocate for the complainant are not
applicable to the facts of the present case."
07] From the above, it is apparent that both the Courts
recorded concurrent findings that petitioner failed to establish
that he was workman and respondent was an industry as defined
under the Act. This Court on going through the impugned
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judgment and order does not find any jurisdictional error or error
of law on the part of courts below.
08] Even otherwise on merits, in view of the judgment of
Division Bench (supra), petition is devoid of substance and
merits. Hence, the following order :
ORDER
I. Writ Petition No.3479/2016 stands dismissed.
II. Rule is discharged with no order as to costs.
*sdw (Kum. Indira Jain, J.)
