Chairman, Nashik District Rural ... vs Shri. Sunil Babanrao Datte
2021 Latest Caselaw 5647 Bom

sg                                                                    6. rpwst2693-20.doc



                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                               CIVIL APPELLATE JURISDICTION

               REVIEW PETITION (STAMP) NO.2693 OF 2020
                                  IN
                    WRIT PETITION NO.5752 OF 2001
                             ALONG WITH
                 INTERIM APPLICATION NO.1862 OF 2020
                                  IN
               REVIEW PETITION (STAMP) NO.2693 OF 2020

Chairman, Nashik Dist. Rural Development Dept. ...Petitioner/Applicant
               vs
Sunil Babanrao Datte                             ...Respondent
                                  .....
Mr. A.R. Kapadnis, a/w. Mr. Vivek Rane, for the Petitioner.

Mr. Nikhil Wadikar, i/b. Mr. Nandu Pawar, for the Respondent.
                                 ......

                                    CORAM : S.C. GUPTE, J.

DATED: 25 MARCH, 2021 P.C. :

. Heard learned Counsel for the Review Petitioner and learned Counsel for the Respondent. The petition seeks review of an order passed by this Court on 10 December 2019 in the Review Petitioner's original writ petition. There is a delay of 32 days in filing the review petition. The interim application seeks condonation of that delay. For the reasons stated, the delay is condoned and the review petition is heard for admission. Office to register the review petition.

2. The subject matter of the original writ petition concerned

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the order of reinstatement of the respondent, who was the second party workman before the Labour Court at Nasik in a reference made to it under Section 10(1)(a) of the Industrial Disputes Act, 1947 ("I.D. Act"). The respondent had originally challenged his termination, which was said to be without any notice or notice pay, and thus, amounted to retrenchment in breach of Section 25F of the I.D. Act. The respondent succeeded before the Labour Court, who ordered his reinstatement. The petition, which challenged the order of the Labour Court, was heard by this Court in the absence of the petitioner in the circumstances noted in the order dated 10 December 2019, which is presently under review.

3. The issues considered by the Labour Court included the status of the petitioner employer as an `industry'. The conclusion of the Labour Court that the petitioner employer did fall within the definition of `industry' was not found fault with by this Court. This Court noted that there was no obvious reason why the petitioner would not fall within the definition of `industry' under Section 2(j) of the I.D. Act, considering that there was an organized and systematized form of activity carried out by the petitioner department, which would amount to nothing but an undertaking or calling. This Court noted that if it was the petitioner's case that the department deserved to be excluded from definition of `industry' under Section 2(j) by reason of its activity being a sovereign activity or for any reason, it was for the petitioner to prove such case before the Labour Court and in the case on hand, as the Labour Court noted, no such case was either pleaded or made out by the petitioner.

4. As regards the status of the respondent as a "workman", this

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Court came to a conclusion that the respondent, who was in a continuous service with the petitioner as a peon from of 24 September 1985 to 16 October 1986, and having, thus, completed more than 240 days in a year in a perennial post, which was vacant and it not being the employer's case that the workman was not properly selected or appointed, the findings of the Labour Court that the impugned termination of the respondent amounted to retrenchment, and since such retrenchment was made without notice or notice pay in breach of Section 25F of the I.D. Act, was illegal and void ab initio, did not deserve to be interfered with by this Court. This Court did not find any perversity in the conclusion.

5. The submission of learned Counsel on behalf of the Review Petitioner that the petitioner was appointed under a special scheme and, going by the judgment of this Court in case of Arvind G. Chaudhari vs. Dhanraj Nathu Patil1, such special appointment did not amount to appointment in an industry, was neither before the Labour Court nor before this Court in the original writ petition. The judgment of Arvind G. Chaudhari was in respect of employment under Employment Guarantee Scheme. Our Court held that persons working under Employment Guarantee Scheme were not governed by the provisions of MRTU & PULP Act or the I.D. Act. It is difficult to see how the Review Petitioner seeks to compare the appointment in the present case, which is said to be under a particular scheme, to appointment under the Employment Guarantee Scheme, without producing the scheme itself for the consideration of the Court. Anyway, this is an additional argument in support of the original petition and can't be advanced for seeking a review of the order.

1 2008(6) Mh.L.J. 746

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6. The Review Petitioner, accordingly, has not made out a case of discovery of any new or important matter of evidence which, after exercise of due diligence, was not within its knowledge or could not be produced by it when the order under review was passed or any mistake or error apparent on the face of the record, or any other sufficient reason, which enables the Review Petitioner to seek a review of the order.

7. The review petition is, accordingly, dismissed.

( S.C. GUPTE, J. )

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