Bombay High Court
Executive Engineer, Akola ... vs Nandkishor Harishchandra Lande on 5 October, 2017
Bench: B.P. Dharmadhikari
1 lpa 81.10.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
Letters Patent Appeal No.
81
of 201
0
in
Writ Petition No. 2256 of 2008(D)
1. Executive Engineer,
Akola Irrigation Department,
Akola.
2. Sub Divisional Officer,
Sinchan Sub Division, Borgaon Manju,
District Akola.
3. Branch Officer,
Sinchan Branch No.2,
Palaso Badhe, Akola. .... APPELLANTS
Vs.
Nandkishor Harischandra Lande,
R/o Post Palaso Badhe,
Tq.& District Akola. ..... RESPONDENT
Shri Dharmadhikari, AGP for appellants.
CORAM : B. P. DHARMADHIKARI AND
MRS. SWAPANA S.
JOSHI, JJ
DATED : OCTOBER 5, 2017
JUDGMENT (Per B.P. Dharmadhikari, J.)
Heard learned AGP for the appellants. Nobody appears
for respondent though he has been served. This Court admitted
the matter in his absence and then granted interim stay on 21st
April 2010 with the result directions to reinstatement him as
seasonal worker 'Patkari', to work in December, 2007 to February
2008 season and thereafter in further seasons without back wages
has been stayed.
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2. Heard submissions of learned AGP Adv. Mr.
Dharmadhikari. Bare perusal of Award itself shows that work
being done by respondent was seasonal and he did not complete
240 days of continuous service in a year. Right from day one,
workmen was aware of the seasonal nature of his employment and
therefore of his termination at the end thereof. According to him,
in this situation, when the workmen was discontinued, Section
2(oo) of the Industrial Disputes Act, 1947 could not have been
pressed into service and in any case because of Section 2(oo)(bb)
the termination was exempt and could not have been viewed as
retrenchment. Lastly, he submits that there could not have been
direction to reinstate such worker. He has taken us to the relevant
discussion in the impugned Award and also through the Judgment
of the learned Single Judge upholding it. To substantiate his
contentions, he relied upon the judgment dated 13th April, 2016 in
Writ Petition No. 3132/1997 and other connected matters
delivered at Aurangabad.
3. We have perused the judgment delivered by the
learned Single Judge and also by the Labour Court. The learned
Single Judge has disposed of the Writ Petition in motion hearing
observing that the petitioner / employer could not bring on record
any material showing why work was not given to other workmen
in following season.
4. In its Award, the Labour Court at Akola has considered
the entire material. In paragraph No.20 of the Award, it has
considered the extracts of attendance register to conclude that the
period was of about 7 months in a year. Extract looked into are
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from 1st December, 1985 onwards and, therefore, could not have
completed 240 days. Looking at admission given by workmen it
found that work was not available all the year around and he was
only a seasonal worker who used to release water in ruby season
i.e. from November to June. In paragraph No.23, at the end,
conclusion recorded that workmen work for a period of only 7
months in a year and as such he was not entitled to the protection
under Section 25(F) of the Industrial Disputes Act, 1947.
5. Award in paragraph No.24 looks into contention of
workmen and in paragraph No.25 it has taken note of change in
system. It finds that as per circular dated 6th February,1989
employee department could not provide work to workmen or
other similarly situated person. It has also taken note of the fact
that though department called him for work on 2 to 3 occasions,
workmen did not report. It has concluded that work was therefore
available with the department but it was not initially extended to
workmen. At the end of paragraph No.27, it draws support from
letters at Exhs.41,42 and evidence of employer's witness Shri
Subhash and finds that though work was available, workmen was
terminated.
6. Because of mandate in above mentioned circular that
work should be given to the contract labour, department could not
provide work to workmen. Because of this change in system of
work allotment, the learned Labour Court has also pointed out the
provisions of Section 9(A) of the Industrial Disputes Act, 1947.
7. We need not go in the further niceties of this matter. In
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the operative part, no relief of continuity or back-wages has been
given. Only direction is to provide him work in the season
commencing from December, 2007 and in future seasons.
8. In the Judgment delivered at Aurangabad in Writ
Petition No. 3132/1997 (supra), the learned Single Bench has
noted the submission of employer in paragraph No.8. Those
submissions show that earlier the management had closed down
the factory on 31/12/1987 & permanent, seasonal permanent and
seasonal employees were granted compensation. In 1991, when
the factory was again started, work was provided to the workers as
fresh employees. Consideration on recourse to Section 2(oo)(bb)
in such facts is reflected in paragraph Nos.35 and 36 of this
Judgment. The learned Single Judge has accepted that later work
provided to the workers was having no relation with the earlier
work and contract. It then noticed that standing orders treated
contractual engagements of such workers as 'not seasonal
permanent'. Paragraph No.36 takes note of the fact that the
termination was at the end of second crush season. Hence, the
termination was with end of work and specific requirement of
relevant standing order to qualify as 'seasonal permanent' has also
weighed with the Court in the said judgment.
9. Hence, no such standing order classifying the seasonal
employees in particular manner has been relied upon. Not only
this finding of fact recorded in Award and accepted by the learned
Single Bench shows that work continued though respondent was
terminated. This finding is obviously neither erroneous nor
perverse.
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10. We therefore find nothing wrong with refusal on the
part of learned Single Bench to interfere in the matter.
11. Both appeals are dismissed. No costs.
JUDGE JUDGE
MP Deshpande
