The Sub Divsnl Engineer, Minor ... vs Ajay S/O Keshavrao Kawale
2017 Latest Caselaw 2222 Bom

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   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             NAGPUR BENCH, NAGPUR


                   Writ Petition No.4192 of 2009


  1. The Sub Divisional Engineer,
     Minor Irrigation (Local Sector),
     Sub Division, Manora, Tq. Manora,
     Dist- Akola.

  2. Executive Engineer,
     Minor Irrigation (Local Sector),
     Division, Akola, Dist- Akola.

  3. Superintending Engineer,
     Minor Irrigation (Local Sector),
     Circle Amravati, Parisar Camp,
     Amravati, Dist- Amravati.                     ... Petitioners

       Versus

  1. Ajay s/o Keshavrao Kawale,
     Age about 31 years,
     Occ- Nil.                                     ... Respondent



  Shri S.B. Bissa, Assistant Government Pleader for Petitioners.


               Coram : R.K. Deshpande, J.

Dated : 2nd May, 2017

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Oral Judgment :

1. The challenge in this petition is to the judgment and

order dated 11-7-2005 passed by the Labour Court, Akola, in

Complaint (ULP) No.79 of 1998. The order of termination of the

respondent from service passed on 12-1-1998 has been quashed

and set aside on the ground of violation of Section 25F of the

Industrial Disputes Act, 1947. The respondent-complainant was

accordingly reinstated with continuity in service and back wages.

The petitioners preferred Revision (ULP) No.12 of 2005 before

the Industrial Court, Akola, which was dismissed on 28-4-2009.

Hence, this petition by the employers.

2. On 2-12-2009, this Court passed an order as under :

" Heard Shri Khubalkar, learned AGP for the petitioners.

Rule. Hearing expedited.

Shri Khubalkar, learned AGP has attempted to show that because of judgment of learned Single Judge of this Court in the case of Lagwad Adhikari vs. Yasin Hamid,

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reported at 2008 (2) Mh.L.J. 338, the finding of completion of 240 days is incorrect.

Shri Wathore, learned counsel for the respondent states that the respondent was being paid minimum wages and hence the employer and employee relationship subsists even on holiday and weekly off.

However, after hearing both sides, I find that period claimed in service by present respondent is from 02.01.1995 till 21.12.1997. The Courts have awarded him back wages from 12.01.1998 till date of reinstatement. Hence, stay of payment of back wages.

Shri Wathore, learned counsel waives notice for the respondents."

3. When the matter was listed on the last occasion, this

Court asked the learned Assistant Government Pleader to obtain

the instructions from the petitioners as to the status of the

respondent-complainant. The learned Assistant Government

Pleader has placed on record the communication

dated 20-7-2016, marked as 'X' for identification. It is stated in

this communication that the respondent-complainant is

continuously working as a skilled labourer with effect from

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17-5-2010 and he is being paid the wages as per the

recommendations of the Sixth Pay Commission in the scale of

Rs.5200-20200 Grade Pay Rs.1900. It is also stated that a

proposal for regularization of his service in Class-III post of Clerk

has been forwarded to the State Government for approval and it

is pending there.

4. In view of the aforesaid position, it would not be proper

to set aside the order of reinstatement of the

respondent-complainant in service, passed by the Labour Court

and confirmed by the Industrial Court. The

respondent-complainant had worked from 2-1-1995 to

12-9-1998, and hence the question of payment of back wages

does not at all arise. The order to that extent can be quashed

and set aside.

5. In the result, the petition is partly allowed. The order of

payment of back wages passed by the Labour Court on 11-7-1998

in Complaint (ULP) No.79 of 1998, and the order

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dated 28-4-2009 passed by the Industrial Court in Revision (ULP)

No.12 of 2005 confirming the order passed by the Labour Court,

are hereby quashed and set aside. The respondent-complainant

would not be entitled to back wages. However, the service

rendered by him with continuity can be taken into consideration

for regularization. The service of the respondent-complainant

shall not be terminated till the decision of the State Government

on the question of his regularization in service. If the

regularization is granted, the respondent-complainant shall be

continued in service accordingly. However, if the regularization

is refused, the respondent-complainant shall be at liberty to

challenge such refusal in the Court of law in accordance with

law.

6. Rule is made absolute in aforesaid terms. No order as to

costs.

JUDGE.

Lanjewar