Bombay High Court
Shrirampur Muncipal ... vs Jamshedkhan Mulsherkhan Pathan on 6 July, 2017
Bench: R.V. Ghuge
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4559 OF 1998
Jamshid Khan Gulsher Khan Pathan,
R/o. Ward No. 2, Shrirampur,
Dist. Ahmednagar. ...Petitioner.
Versus
Shrirampur Municipal Council,
Shrirampur, Dist. Ahmednagar
Through its Chief Officer. ...Respondent.
WITH
WRIT PETITION NO. 4295 OF 1999
Shrirampur Municipal Council,
Shrirampur,
through its Chief Officer. ...Petitioner.
Versus
Jamshedkhan S/o. Mulsherkhan Pathan,
Age. 33 years, Occ. Nil,
R/o. Ward No. 2, Shrirampur,
Tq. Shrirampur,
Dist. Ahmednagar. ...Respondent.
Advocate for Petitioner : Shri V.N. Upadhye in WP No. 4559/98.
Advocate for Respondent : Shri V.S. Bedre in WP No. 4559/98.
Advocate for Petitioner : Shri V.S. Bedre in WP No. 4295/99.
Advocate for Respondent : Shri V.N.Upadhye in WP No.4295/99.
CORAM : RAVINDRA V. GHUGE, J.
Dated : 06th July, 2017
ORAL JUDGMENT :
1. The petitioner / workman is aggrieved by the judgment
and award dated dated 23/02/1998, delivered by the learned II
Labour Court, Ahmednagar, by which, Reference (IDA) No.
98/1992 has been allowed, but the petitioner is granted
reinstatement as a daily wager on the post from which he was
terminated on 16/07/1990.
2. Shri Upadhye, learned advocate for the petitioner in this
first petition submits that this petition was filed as the
petitioner wanted regular and continuous employment and he is
praying for continuity and full back wages.
3. Shri Upadhye, submits on instructions from the
workman, who is present in the Court, that his date of birth is
15/11/1958, and he is about 58 years and 8 months of age
today. He has, therefore, crossed the age of superannuation
which is 58 years with the respondent / Municipal Council.
4. The Municipal Council, Shrirampur has challenged the
same award to the extent of the grant of relief of reinstatement,
in the second writ petition.
5. The Municipal Council has filed the second petition on
15/09/1998, before the first petition was filed by the workman
on 21/09/1998. However, the second petition got its number in
1999. Both the learned advocates submit by consent that the
second petition should be heard along with the first petition as,
both the petitions impugn the same award from the same case
before the Labour Court. It would be in the interest of both the
sides that the second petition is heard together with the first
petition.
6. Shri Upadhye, submits that his petition deserves to be
allowed and the petitioner deserves to be granted continuity of
service with reinstatement and full back wages from
16/07/1990. He states that the petitioner is not in employment
for last 27 years.
7. The Hon'ble Apex Court has dealt with a somewhat
similar situation of an employee having put in a short spell of
employment and being out of employment for a long duration as
like 15 years, 20 years, 25 years or even 30 years. The Hon'ble
Apex Court concluded that in such cases, grant of
reinstatement would not be practicable and pragmatic and
grant of compensation in lieu of reinstatement at the rate of
about Rs. 30,000/- (Rupees Thirty Thousand only) per year of
service put in, would be the proper compensation. This view
has been taken by the Hon'ble Apex Court in the following four
cases :
1. Assistant Engineer, Rajasthan State Agriculture Marketing
Board, Sub-Division, Kota Versus Mohan Lal [2013 LLR 1009]
2. Assistant Engineer, Rajasthan Development Corporation and
another Versus Gitam Singh [(2013) 5 SCC 136]
3. BSNL Versus Man Singh [(2012) 1 SCC 558]
4. Jagbir Singh Versus Haryana State Agriculture Marketing
[(2009) 15 SCC 327]
8. It is trite law that in State instrumentalities like Municipal
Councils, Corporations, Zilla Parishads or of similar nature,
unless the posts are created and are available and vacant,
there is no question of directing continued employment or
permanency. Provisions like Standing Order 4 C and 4 D of the
Model Standing Orders framed under the Industrial
Employments (Standing Orders) Act, 1946, would not be
applicable. In such, situations, on taking into account that the
daily wagers are in continued employment and are still working,
this Court in the matter of Mukhyadhikari, Nagar Parishad,
Tuljapur Versus Vishal Vijay Amrutrao and others, [2015
Mh.L.J. 75] and in the matter of Municipal Council, Tuljapur
WP No. 1843/2015, has
Versus Baban Hussain Dhale in
concluded that the proposals of such daily wagers should be
considered for regularization based on their length of service,
their seniority and permanent vacant posts available.
9. The learned Division Bench of this Court at Nagpur had
taken up a reference matter considering the conflict of view
between two learned Single Judges and has delivered a
judgment in the matter of Municipal Council, Tirora and others
. It is
Verus Tulsidas Baliram Bindhade [2016 (6) Mh.L.J. 867]
held that completion of 240 days in continued employment
before the date of reference will not entitle any litigant to
continued employment or permanency or regularization.
10. Shri Upadhye, has strenuously submitted that after the
termination of the petitioner, who had worked in between
December, 1987 up to his oral termination in July, 1990,
several other temporaries were granted regularization. This
aspect does not find place in the oral and documentary evidence
recorded before the Labour Court and hence it does not find any
mention in the impugned award.
11. The contention of the petitioner that after completion of
240 days, the petitioner automatically becomes permanent in
the light of the award delivered by the Industrial Tribunal,
Ahmednagar, in Reference (IDA) No. 6/1984, cannot be
accepted since the issue before the Labour Court was only as
regards whether the service of the petitioner was illegally
terminated. Issue of permanency was not before the Labour
Court and hence I am not required to deal with that aspect.
12. The Hon'ble Apex Court has concluded in Chief
Conservator of Forest Versus Jagannath Maruti Kondhare, [AIR
1996 SC 2898), has held that when there is no post available, a
litigant cannot insist for his absorption. However, if he is
working and is performing the same work as is done by the
regular employees, he would, at best be entitled to the same
wages on the principle of "equal wages for equal work."
13. The Municipal Council, Shrirampur has filed Writ Petition
No. 4295/1999, challenging the same award. Grievance is that
the temporary workman at issue namely Jamshid Khan Gulsher
Khan Pathan has not worked for 240 days in the continued
employment of the council and yet the Labour Court has
directed the Council to take him on daily wages on the post
from which he was terminated.
14. It is apparent from the impugned award that the Labour
Court has concluded that the workman has completed 240 days
on the basis of the original muster rolls and pay sheet produced
by the witness of the Octroi Department of the Municipal
Council and who deposed that the workman was working on
daily wages from 04/12/1887 to 16/07/1990. This
documentary evidence proves that the temporary was working
for about three years with the Municipal Council.
15. Considering the above, I do not find that the impugned
award could be termed as being perverse or erroneous to the
extent of it's conclusion that the workman had worked
continuously for about 3 years.
16. In so far as the petition filed by the temporary workman is
concerned, he has proved that he worked for about 3 years and
is out of employment for the last about 27 years. He is still
litigating in the Court. In this backdrop, I deem it proper to
modify the award and grant compensation to the temporary
namely Jamshid Khan Gulsher Khan Pathan, an amount of Rs.
1,00,000/- (Rupees One Lakh only), in the light of the ratio laid
down by the Hon'ble Supreme Court.
17. Both the petitions are, therefore, partly allowed and by
applying the law laid down by the Hon'ble Apex Court, the
impugned award is modified. The Municipal Council,
Shrirampur is, therefore, directed to pay an amount of Rs.
1,00,000/- (Rupees One Lakh only) to the said worker within a
period of 12 weeks from today, failing which the said amount
shall carry interest at the rate of 6 % per annum from the date
of the impugned award.
18. Rule is made partly absolute in the said terms.
( RAVINDRA V. GHUGE, J. )
S.P.C.
