Ajay Vasantrao Deshpande vs The Asstt.Engineer, Class.I, ...
2017 Latest Caselaw 443 Bom

                                                       *1*                          902.wp.2226.98


          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD

                             WRIT PETITION NO. 2226 OF 1998

Ajay s/o Vasantrao Deshpande,
Age : 31 years, Occupation : Nil,
R/o Swami Vivekanand Nagar,
At Post & Taluka Sailu,
District Parbhani.
                                                        ...PETITIONER

          -VERSUS-

Assistant Engineer,
Class-I, Minor Irrigation 
Sub Division No.3, Zilla Parishad,
Jintur, At Post and Taluka Jintur,
District Parbhani.
                                                        ...RESPONDENT

                                           ...
                    Advocate for Petitioner : Shri Pradeep Shahane. 
                        AGP for Respondent : Shri S.P.Tiwari.
                                           ...

                                         CORAM:  RAVINDRA V. GHUGE, J.

DATE :- 03rd March, 2017

Oral Judgment :

1 The Petitioner is aggrieved by the award delivered by the

Labour Court dated 03.04.1997 by which Reference (IDA) No.22/1995

has been dismissed.

2                  I   have   heard   the   strenuous   submissions   of   Shri   Shahane, 





                                                     *2*                           902.wp.2226.98

learned Advocate appearing on behalf of the Petitioner and the learned

AGP on behalf of the Respondent.

3 The grievance of the Petitioner is that the rule of "last come,

first go" has not been complied with by the Respondent and hence, his

termination dated 01.11.1990 is unsustainable and is rendered illegal.

4 Shri Shahane submits that the Petitioner was working with

the Respondent from 01.12.1989 in the Minor Irrigation Sub Division

No.4. He worked in the said Sub Division upto 31.01.1990. From

February, 1990, he worked with the Minor Irrigation Sub Division No.3

and was terminated by order dated 01.11.1990 w.e.f. 07.11.1990 on the

ground that the work in the project has come to an end.

5 He, therefore, submits that having completed 240 days in

continuous employment with the Respondent, his termination is rendered

illegal. He had specifically averred in paragraph 8 of the affidavit that

juniors were retained in service. As such, since 25-G of the Industrial

Disputes Act, 1947 and Rule 81 of the Industrial Disputes (Bombay) Rules,

1956 have been violated, the Petitioner was entitled for reinstatement.

6               I find from the pleadings of the Petitioner that he has stated 





                                                   *3*                          902.wp.2226.98

the name of one Mr.K.D.Shobhane as being a junior employee, who has

been retained in service when the Petitioner has been terminated. From

the impugned award, it appears that neither has the Petitioner examined

Mr.Shobhane, nor has he brought on record the appointment order of Shri

Shobhane, the nature of his duties and the area in which he was

performing his duties. It cannot be ignored that continuation of Shri

Shobhane, who is mentioned by the Petitioner in his statement of claim as

being a junior employee who has been retained, is an incorrect statement.

The termination order dated 01.11.1990 issued to the Petitioner also

includes the name of Shri K.D.Shobhane, who has also been terminated

from service.

7 It is trite law that in order to invoke Section 25-G r/w Rule

81, the Complainant/ Claimant has to establish that the names of junior

persons are pleaded and the evidence is brought on record to such an

extent that it is established that these juniors are comparable with the

claimant, they were performing the same work and they were working in

the same department/ project. The retention of the junior employee

working elsewhere in another department, which cannot be compared

with the department of the claimant, cannot be a ground for invoking

Section 25-G. In the absence of evidence to this extent, the Labour Court,

in my view, has rightly rejected the claim of the Petitioner as regards the

*4* 902.wp.2226.98

violation of Section 25-G.

8 Insofar as the continued service is concerned, the record

reveals that the Petitioner joined duties by name Ajay Vasantrao

Deshpande in Sub Division No.4. Later, he was transferred to Sub Division

No.3. He worked in the other departments in the name of Ajay Vinayakrao

Deshpande. Notwithstanding this position, the record produced before the

Labour Court indicated that the Petitioner had completed 218 days in his

total employment from 01.12.1989 to 01.11.1990, which is a period of 11

months.

9 In the light of the above, I do not find that the impugned

award could be termed as being perverse or erroneous. This Writ Petition

being devoid of merit is, therefore, dismissed. Rule is discharged.

kps                                                          (RAVINDRA V. GHUGE, J.)