Sadashiv Bhaurao Rashinkar vs Ex Engineer P W D Ahmednagar
2018 Latest Caselaw 863 Bom

                                         1                LPA 133 of 2007

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                  Letters Patent Appeal No. 133 of 2007
                                    With
                    Civil Application No.3568 of 2007
                                    With
                    Civil Application No.13518 of 2016
                                     In
                      Writ Petition No.4685 of 1995

     Sadashiv S/o. Bhaurao Rashinkar,
     Age 47 years,
     Occupation : Nil,
     R/o At Dhangarwadi, Post Wakdi,
     Taluka Rahata,
     District Ahmednagar.             ..              Appellant.

             Versus

     Executive Engineer,
     Public Works Division,
     Sangamner, Taluka Sangamner,
     District Ahmednagar.                       .. Respondent.

                               ----
     Shri. Pradeep Shahane, Advocate, for appellant.

     Shri. R.V. Dasalkar, Assistant Government Pleader, for
     respondent.
                                  ----

                                 Coram:      T.V. NALAWADE &
                                             SUNIL K. KOTWAL, JJ.

                                 Date:       24 January 2018

     JUDGMENT (Per T.V. Nalawade, J.):

1) The appeal is filed to challenge the decision of

this Court delivered in Writ Petition No.4685/1995. The

2 LPA 133 of 2007

writ petition was filed by the respondent, Department of

the Government to challenge the award delivered by the

Labour Court Ahmednagar in Reference (IDA) No.22/1990

dated 26-4-1995. The learned Judge of the Labour Court

had given direction to reinstate the appellant with full

back wages and continuity in service with effect from 3-5-

1986. This decision is set aside by the learned Single

judge of this Court. Both the sides are heard.

2) On the basis of the grievance of the appellant, a

reference was made by the Deputy Commissioner of

Labour Nashik Division under section 10(1) read with

12(5) of the Industrial Disputes act (hereinafter referred

to as "the Act") as under :

"Whether Shri. Sadashiv Bhaurao Rashinkar should be reinstated with full back wages and continuity of service with effect from 3-5-1986 ?"

3) It is the case of the appellant that he was

engaged in construction activity of the respondent,

Department of State Government, and the respondent had

employed several thousands of workers on different posts

and for that standing orders were issued. It is his case

3 LPA 133 of 2007

that he was firstly appointed as daily rated Mazdoor in the

year 1979 and he worked continuously till 2-5-1986. It is

his contention that he is illegally terminated from service

with effect from 3-9-1986. It is his contention that persons

who were junior to him were retained in employment and

during his service, technical breaks were given. It is his

contention that he is entitled to be made permanent but

without giving notice of retrenchment and without

following the procedure he is terminated, retrenched. It is

his contention that there are several posts available with

the Department and he is entitled to get one such post on

permanent basis.

4) The respondent-Department has denied the

aforesaid contentions of the appellant. It is denied that the

appellant had worked for 240 days during any calendar

year, 12 months prior to the last day of the work. It is

contended that as the work was given to him whenever

the work was available there was no question of giving

notice of termination or retrenchment to him. It is

contended that the work was of temporary nature and to

the workers like the appellant the work was given at

4 LPA 133 of 2007

various places. It is further contended by the Department

that the appellant did not turn up to get work after 8-6-

1986, he abandoned the work and so he is not entitled to

get the relief claimed.

5) To discharge the liability mentioned in section

25-D of the Act, the Department produced various muster

rolls. The appellant did not examine any independent

witness and he did not produce any record. The learned

Judge of the Labour Court has considered different

periods like the period from 21-8-1979 to 20-8-1980 and

during that period the appellant had worked only for 117

days. During the period from 21-8-1980 to 14-6-1981 he

had worked only for 76 days and he had worked only for

14 days during the period from 12-4-1982 to 20-5-1982.

The muster rolls for the period 1985-86 were produced

but in these muster rolls there is no name of the appellant

shown as workman.

6) The burden to plead and prove the case is

always on the workman. When the muster rolls were

produced it was necessary for the workman, the appellant

herein, to substantiate his case but there was no specific

5 LPA 133 of 2007

pleading and there was no record with him to prove his

case. In spite of that the learned Judge of the Labour

Court had drawn some inference against the respondent,

Department and that is serious error committed by the

learned Judge of the Labour Court. The circumstances like

the gaps even in the aforesaid periods of work is also not

considered by the learned Judge of the Labour Court and

these gaps which were not short, show that whenever the

work was available it was given to him and those gaps and

absence of the name of the appellant in many muster rolls

support the case of the Department that the appellant

abandoned the work and he did not turn up to get the

work.

7) The learned counsel for the appellant took this

Court through various provisions of the Industrial

Disputes Act, 1947 (hereinafter referred to as "the Act")

and submitted in the present proceeding that the order of

the learned Judge of the Labour Court does not mean that

due to the order, the appellant was to get permanent job.

On one hand he made this submission and on the other,

he has produced a copy of Kalelkar Committee Settlement

6 LPA 133 of 2007

Report which was between the labourers and the

respondent, Department of the Government. It was

submitted in the year 1967. It can be said that in view of

nature of the order made by the learned Judge of the

Labour Court the appellant wants to use the said

Settlement.

8) The submissions made for the appellant show

that the appellant wants to use the order of the learned

Judge of the Labour Court to get reinstatement, to get

service continuity and for getting appointment on

permanent post in time scale. The order was made by the

learned Judge of the Labour Court on 26-4-1995 and if the

contention of the appellant that he started working from

the year 1979 is considered, it can be said that the

appellant would be able to use the Kalelkar Committee

Settlement which provided for giving permanent post to a

daily rated employee who had continuously worked for 10

years. If one completes such service of 5 years, due to this

Settlement, he can get job as regular temporary employee

in time scale. These circumstances cannot be ignored by

any Court including Labour Court but they are ignored.

                                                7                LPA 133 of 2007

     9)               Due to the aforesaid facts and circumstances,

the relevant facts of the present matter need to be first

ascertained and then the law needs to be applied to those

facts.

10) Even in the aforesaid Kalelkar Settlement

Report a daily rated employee was not entitled to get

wages in respect of the weekly holidays. When there is

record to show that the appellant started working as daily

rated employee from the year 1979 and the record shows

the last date when he worked was 2-5-1986, the learned

Judge of the Labour Court ought to have considered the

periods of calendar year in view of the provision of the

Act. That is not done by the learned Judge of the Labour

Court. There is specific case of the respondent-

Department that he was given work only when the work

was available and so there was no question of avoiding to

give work. Thus, in any case it was not possible to have

one continuous calendar year in the present matter. Thus,

on the basis of the data considered by the Labour Court

also it is not possible for the appellant to prove that he

had worked for 240 days in any calendar year. Thus, on

8 LPA 133 of 2007

facts and in applying the law the Labour Court has

committed serious error.

11) The case of the appellant that he had

approached the Department for getting work after 3-5-

1986 could not have been believed as there is no record in

that regard and further there is no independent

corroboration to this contention. When he approached the

authority with the grievance, the period of more than four

years had lapsed from the last day when he had worked

for the Department. These circumstances ought to have

been given due weight by the Labour Court but those

circumstances are ignored by the learned Judge of the

Labour Court.

12) It is true that the appellant falls under the

definition of "workman" given in section 2(s) of the Act.

The respondent, Department has produced the muster

rolls for discharging its liability shown in Section 25-D of

the Act. The relevant portions are quoted by this Court.

                                        9               LPA 133 of 2007

     13)              In section 2(oo) of the Act the meaning of

     'retrenchment' is given as under :

           "2. (oo)    "retrenchment" means the termination by

the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include-

(a) voluntary retirement of the workman; or

(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or

(bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or

(c) termination of the service of a workman on the ground of continued ill-health."

It is already observed that for proving termination or

retrenchment there is nothing with the appellant. He

could have examined at least one workman who was

working with him and who was shown on the muster roll

but that is not done.

14) In section 25-B of the Act, the definition of

"continuous service" is given and the relevant portion is as

under:

10 LPA 133 of 2007

"25-B, Definition of continuous service.- For the purposes of this Chapter,-

(1) a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lock- out or a cessation of work which is not due to any fault on the part of the workman;

(2) where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer-

(a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made has actually worked under the employer for not less than-

(i) one hundred and ninety days in the case of a workman employed below ground in a mine; and

(ii) two hundred and forty days,in any other case.

(b) . . . . .

Explanation.- For the purposes of clause (2), the number of days on which a workman has actually worked under an employer shall include the days on which -

(i) he has been laid-ff under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under this Act or under any other law applicable to the industrial establishment;

(ii) he has been on leave with full wages, earned in the previous years;

(iii) he has been absent due to temporary disablement caused by accident arising out and in the

11 LPA 133 of 2007

course of his employment; and

(iv) in the case of a female, she has been on maternity leave, so however, that the total period of such maternity leave does not exceed twelve weeks."

15) Section 25-F runs as under :

"25-F. Conditions precedent to retrenchment of workmen,- No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-

(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice.

(b) the workman has been paid at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and

(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette."

16) It is already observed that there is no material

with the appellant to show that in any calender year he

had worked for 240 days. There is no material to explain

aforesaid gaps. In view of the provisions of the Act and

the facts of the present matter, it cannot be said that the

appellant was in "continuous service" as mentioned in

12 LPA 133 of 2007

Section 25-B of the Act.

17) The condition precedent for retrenchment of

workman which can be fund in section 25-F cannot apply

to present matter and also the procedure laid down in

section 25-G cannot apply in a case like present one.

18) The learned counsel for the appellant submitted

that the learned Single Judge of this Court has committed

error in observing that the principles laid down in the

case of Secretary, State of Karnataka & Others vs.

Umadevi & Others (2006 AIR SCW 1991) are applicable in

the present matter. He submitted that the observations

made by the Apex Court in the case reported as State of

Maharashtra v. R.S. Bhonde ((2005) 6 SCC 751) could not

have been used in the present matter. It is true that the

propositions made in those cases are in different context

and the provisions of the act which are quoted above need

to be considered in the present matter. However, that

circumstance cannot change the fate of the present

matter.

                                          13                LPA 133 of 2007

     19)              The learned counsel for the appellant placed

reliance on the following reported cases.

(i) 1984 LAB. I.C. 445 (Navbharat, Hindi Daily, Nagpur, v. Navbharat Shramik Sangha)

(ii) 1999 LAB. I.C. 1125 (Samishta Dube v. City Board, Etawah)

(iii) 2001 (89) FLR 375 (A.N.Z. Grindlays Bank v.

G.S. Grindlays Bank Employees Union)

(iv) 2003 III CLR 1016 (Gopal v. MDC & Anr.)

(v) 1996 I CLR 680 (Chief Conservator of Forests & Anr. v. J.M. Kondhare).

(vi) 2006 LAB. I.C. 893 (Navnath Maruti Chavan v.

Conservator of Forest, Pune)

(vii) 2000 III CLR 773 (P.K. Jadhav & Ors v. R.

Chemicals & Fertilizer Ltd.)

(viii) 1992 I CLR 327 (Pyarelal v. The Municipal Council, Ramtek & Anr.)

(ix) 1991 II CLR 4 (Chief Officer, Sangli Municipal Council, Sangli v. Daramsing Hiralal Nagarkar)

(x) 2000 II CLR 600 (Zilla Parishad, Ahmednagar & Ors. R.S. Dukre)

(xi) 1992 II LLJ 702 (Smt. Pratima Sarkar v. State of West Bengal & Ors.

(xii) 2000 III CLR 264 (Burroughs Welcome (I) Ltd. v. D.H. Ghosle & Ors)

(xiii) 1990 I CLR 88 (The Indian Tobacco Co. Ltd. v.

The Industrial Court & Ors)

(xiv) 1990 I CLR 220 (Ichalkaranji Co.op. Spg.

Mills Ltd. v. Deccan Co.op Soot & Ors)

14 LPA 133 of 2007

(xv) 1989 I CLR 89 (Laxman Mahadev Teli v.

Principal, Shri Pancham Khemraj Mahavidyalaya)

(xvi) 2000 III CLR 742 (Bijay K. Swain v.

Director, Institute of Physics)

(xvii) 2002 III CLR 743 (Saudi Arabian Air Lines v. Ashok Margovind Panchal & Anr.)

Facts of each and every case are always different. There

cannot be dispute over the propositions made in the

aforesaid cases. Relevant facts and circumstances of the

present matter and the law applicable to those facts are

considered. For the reasons given above this Court holds

that the learned Single Judge of this Court has not

committed any error in setting aside the decision given by

the learned Judge of the Labour Court in favour of the

appellant. In the result, the appeal stands dismissed.

Pending civil applications stand disposed of.

                    Sd/-                                 Sd/-
     (SUNIL K. KOTWAL, J.)                  (T.V. NALAWADE, J.)



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