Dy. Director Sociral Forestry ... vs Smt. Nagarbai Madhav Gaikwad
2017 Latest Caselaw 3396 Bom

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                                                              902.WP.801-02.doc


            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CIVIL APPELLATE JURISDICTION

                         Writ Petition NO. 801 OF 2002

Deputy  Director of Social Forestry Division, 
Raigad  at Alibag                                           ...Petitioner
          Versus
Smt. Nagarbai Madhav Gaikwad 
since deceased through L.Rs.
Shri Madhav Jaywant Gaikwad & Ors.                          ..Respondents

                                      ....
Ms. M.S. Bane, B Panel Counsel for the Petitioner.
Ms.Sujata Ghaisas i/b. I.R. Kulkarni, Advocate for the Respondents.
                                      ....

                                      CORAM :   R. G. KETKAR, J.

                                      DATE     :  21st JUNE, 2017             
JUDGMENT:

1. Heard Ms.M.S. Bane, learned A.G.P. for the petitioner

and Ms.Sujata Ghaisas, learned counsel for the respondents, at

length.

2. By this Petition under Articles 226 and 227 of the

Constitution of India, the petitioner, hereinafter referred to as the

'first party' has challenged the judgment and award dated

13.10.2000 passed by the learned Judge, 4th Labour Court, Thane

in Reference (I.D.A.) No.21/1998. By that order, the Labour Court

answered the Reference partly in affirmative and set aside oral

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termination of Negarbai Madhav Gaikwad (since deceased),

hereinafter referred to as 'second party' w.e.f. 1.6.1991. First party

was directed to reinstate the second party in its employment with

continuity of service and to pay back-wages from 12.7.1997 till she

is reinstated in service.

3. In support of this Petition, Ms. Bane submitted that the

second party was working only daily wages basis since 1982 in

Social Forestry Department. She submitted that the casual

labourers are engaged for contirution land for sowing plants in

nursery and distribute free for replantation at Government vacant

land such as Gayran which are reserved around the villages or

private lands covered by the private owners. First party engages

such labourers on daily wages and on purely temporary basis when

need is required to do such work. She submitted that the work is

covered by by Government Rozgar Hami Yojna, Jawahar Rojgar

Yojna. The workers under such schemes cannot claim

regularization. In the present case, merely because second party

had put in more than 240 days service in a year, she cannot claim

regularization.

4. Ms. Bane further submitted that said schemes cannot be

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treated as Industry within the meaning of Section 2(j) of the

Industrial Disputes Act, 1947 (for short, 'Act'). She also submitted

that the first party did not terminate the services of the second

party. On the other hand, the second party on her volition stopped

reporting on duty from 1.6.1991. Ms. Bane relied upon following

decisions:

(i) Municipal Council, Tirora and another v. Tulsidas Baliram Bindhade, 2016(6) Mh.L.J. 867, to contend that mere completion of 240 days of service by itself will not enable the second party to claim permanency.

(ii) Executive Engineer ZP, Engg. Divn. v. Digambara Rao Etc., 2004(8) SCC 262, to contend that the second party was not appointed in accordance with the Service Rules, merely because of completion of 240 days in a year by itself is no ground for directing regularization of her services.

(iii) Delhi Dev. Hort. Employees Union v. Delhi Adm., AIR 1992 SC 789, to contend that the persons employed under the scheme cannot claim regularization merely because they have put in more than 240 days service.

(iv) Maharashtra State Co-operative Growers Marketing Federation Ltd. and another v. Maharashtra State, AIR 1994 SC 1046, to contend that the seasonal employees putting more than 240 days of service not entitled to be

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regularized.

(v) State of Rajasthan and others v. Rameswar Lal Gahlot, AIR 1996 SC 1001 to contend that appointment for a fixed period is covered by Section 2(oo)(bb) of the Act and termination is not retrenchment and not illegal unless it is malafide.

(vi) State of Himachal Pradesh v. Suresh Kumar Verma and others, AIR 1996 SC 1565 to contend that the appointment on daily wages basis is not an appointment to the post according to the service rules. Termination of daily wage employees due to coming end of project employing them, the Court cannot give directions to engage them in any other work or appoint them against existing vacancies.

(vii) State of U.P. And others v. Ajay Kumar, (1997) 4 SCC 88 to contend that High Court committed error in directing to regularize the services of daily wage workers when any vacancy arises.

(viii) Gram Sevak Prashikshan Kendra v. The Workmen, Civil Appeal arising out of S.L.P. (c) No.4658/93 and 5717/93 to contend that the services of temporary employees cannot be regularized unless their exists sanctioned posts.

5. On the other hand, Ms.Ghaisas supported the impugned

order.

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6. I have considered the rival submissions advanced by

learned Counsel appearing for the parties. I have also perused the

material on record. The first party came with the case that the

schemes cannot be treated as an Industry within the meaning of

Section 2(j) of the Act. The Labour Court has considered this

aspect in paragraph-6. After considering the decisions in Chief

Conservator of Forests and another v. Jagannath Maruti Kondhare,

1996(I) CLR 680 as also State of Maharashtra, Forest Department and

Anr. v. Sarva Shramik Sangh & Anr, 2000 (III) CLR 122, the Labour

Court held that the Department of Social Forestry is an Industry

within the meaning of Section 2(j) of the Act. I, therefore, do not

find any merit in the submission of Ms. Bane that the Social

Forestry Department is not an Industry.

7. First party also contended that it has not terminated the

services of the second party and the second party on her own

volition did not report on duty after 1.6.1991. Labour Court has

considered this aspect in paragraphs-7 and 8. Labour Court held

that once the first party came with the case of voluntary

abandonment of service, it has to issue notice to the workman as

also hold departmental enquiry. In the present case, no notice was

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issued by the first party calling upon the second party to resume

duties. Equally, no enquiry was held in that regard. The Lobour

Court relied upon the decisions in (1) Gaurishankar Vishwakarma v.

Eagle Spring Industries Pvt. Ltd. & Ors., 1988 (1) CLR 38, (2)

Gangaram K. Medekar v. Zenith Safe Mfg. Co. & Ors., 1996(I) CLR 172,

and (3) Mahamadsha Ganishah Patel and another v. Mastanbaug

Consumers' Co.op. Wholesale & Retail Stores Ltd. and another, 1998(I)

CLR 1205 and held that the first party has terminated the services

of the second party in breach of the provisions of Section 25F &

25G of the Act and it is not a case of abandonment of service as

contended by the first party. After considering the material on

record, I do not find that the Labour Court committed any error in

that regard.

8. A perusal of the impugned order shows that before the

Labour Court following contentions were raised:

(i) Department of Social Forestry is not an industry.

(ii) The first party did not terminate the services of the

second party. The second party had voluntarily left the job on

1.6.1991 and thereafter never came for reporting for duty.

In other words, the first party came with the case that the

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second party had voluntarily abandoned the services and the first

party did not terminate her services. The first party did not agitate

the points which are sought to be raised for the first time in this

Petition. No data is produced by the first party showing the

sanctioned posts and availability of vacancy on the sanctioned

posts. Equally no contention was advanced before the Labour

Court to the effect that as the second party was working on daily

wages basis in the scheme and that contention was not dealt with

by the Labour Court. In view thereof, the reliance placed by Ms.

Bane on the decisions in the cases of Muncipal Council, Tirora

(supra), Executive Engineer ZP Engg.Div. (supra), Delhi Dev. Hort.

Employees Union (supra), Maharashtra State Co-operative Growers

Marketing Federation Ltd. (supra), State of Rajasthan (supra),

State of Himachal Pradesh (supra), State of U.P. (supra) and Gram

Sevak Prashikshan Kendra (supra) does not advance the case of

the first party. Quite apart, the learned A.G.P. has placed on record

the instructions received from the officers of Social Forestry

Department from time to time. A perusal of the instructions shows

that the second party died on 13.8.2009 and in pursuance of the

order dated 15.7.2003 passed in C.A. No.238/2003 in the above

Petition, the first party was depositing wages in the account of the

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second party maintained with Pen Co-operative Bank, Karjat.

9. As during pendency of the petition, the second party has

expired, the order of reinstatement passed by the Labour Court

requires to be modified and it is accordingly modified and the

direction to reinstatement of second party stands set aside. The

second party is entitled to other benefits, such as, continuity of

service and back-wages as per the impugned order. Subject to this

direction, the Petition fails and the same is dismissed. Rule is

discharged. In the facts and circumstances of the case, there shall

be no order as to costs.

(R. G. KETKAR, J.)

Deshmane (PS)