Ajay Hiraman Patil vs The State Of Maharashtra,Thr. The ...
2021 Latest Caselaw 15824 Bom

                                                       1                                     LPA240.12(J)

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

                        LETTERS PATENT APPEAL NO.240/2012 IN
                            WRIT PETITION NO.334/2004(D)


Ajay Hiraman Patil,
Age 42 years,
R/o. Sonawadi, Ward No.16,
Wardha.
                                                                          ....... APPELLANT
                                ...V E R S U S...

1.     The State of Maharashtra,
       through the Joint Director of Health Services
       (Malaria and Filaria), Pune.

2.     The Deputy Director of Health Services,
       Nagpur Region, Mata Kacheri, Nagpur.

3.     The District Malaria Officer,
       Ramnagar, Chandrapur.
                                                                         ....... RESPONDENTS

--------------------------------------------------------------------------------------------------------------------
Shri P.N.Shende, Advocate for the appellant.
Mrs. Sangeeta Jachak, Assistant Government Pleader for the respondents.
-------------------------------------------------------------------------------------------------------------------

                                CORAM : A.S.CHANDURKAR and G.A.SANAP, JJ.

DATED : 16th November, 2021

ORAL JUDGMENT (PER A.S.CHANDURKAR, J.)

The challenge raised in this Letters Patent Appeal is to the judgment of

the learned Single Judge dated 28.11.2011 in Writ Petition No.334/2004. By the

said judgment the learned Single Judge was pleased to allow the said writ petition

preferred by the respondents herein in which the order passed by the Industrial 2 LPA240.12(J)

Court dated 15.04.2002 directing reinstatement of the appellant without back wages

was challenged and which order came to be set aside.

2. It is the case of the appellant that being duly qualified he was appointed

on the post of 'Laboratory Technician' on 05.10.1995. In the order of appointment it

was stated that the appointment was of temporary nature for a period of 175 days or

till a candidate selected by the Selection Board was available. Pursuant to the

aforesaid order, the appellant discharged duties for a period of 175 days. Similar

orders of appointment were issued to the appellant on 17.07.1996, 08.01.1997 and

29.09.1997. Period 175 days stipulated in the last order of temporary appointment

came to an end on 31.03.1998. Since the appellant was aggrieved by this order of

termination, he approached the Labour Court by filing a complaint under Section 28

of the Maharashtra Recognition of Trade Unions and Unfair Labour Practices Act,

1971. The respondents opposed the complaint by pleading that the appointment

was on temporary basis till a regularly selected candidate was made available for

appointment and hence there was no right in favour of the appellant.

3. The Labour Court by its judgment dated 22.05.2001 held that by issuing

such appointment orders on temporary basis for a period of 175 days, no unfair

practice was committed by the respondents. Since the termination was in terms of

the order of appointment, the appellant was not entitled for any relief. A finding

was recorded that the provisions of Section 2(oo)(bb) of the Industrial Disputes Act,

1947 (for short, 'the Act of 1947') were attracted and therefore compliance of

Section 25F of the Act of 1947 was not called for. The complaint was accordingly

dismissed.

3 LPA240.12(J)

The Industrial Court while considering the revision application preferred

by the appellant held that the appellant had completed 240 days of continuous

service and was entitled to the protection of Section 25F of the Act of 1947. Since

the said provision was not complied with, it was held that the retrenchment was

illegal. The complaint was accordingly allowed after setting aside the order of the

Labour Court. The relief of reinstatement with continuity in service but without any

back wages was granted to the appellant.

4. The respondents being aggrieved by the aforesaid judgment challenged

the same in Writ Petition No. 334/2004. The learned Single Judge after noticing

that the similar issue was decided in Writ Petition No.2781/2010 [Sunita Vitthalrao

Golher vs. The Joint Director of Health Services (Maleria and Filaria) and two ors.]

on 25.11.2010 held that there was no retrenchment of service for the reason that in

the order of appointment itself it was stated that the engagement was of temporary

nature till a candidate was available for selection from the Regional Selection Board.

The writ petition was accordingly allowed. Being aggrieved, the appellant has filed

the present Letters Patent Appeal.

5. Shri P.N.Shende, learned counsel for the appellant submits that the

Industrial Court rightly found that the appellant had completed continuous service of

more than 240 days and there was non-compliance with the provisions of Section

25F of the Act of 1947. The said order did not call for any interference at the hands

of the learned Single Judge. According to him, the appellant was in service from

October 1995 to March 1998 which indicated that there was a post available as well

as need of his services. Moreover appointment of three employees who came to be 4 LPA240.12(J)

appointed on temporary basis, after the appellant, were continued in service and the

Industrial Court rightly found that this amounted to commission of an unfair labour

practice. Placing reliance on the decisions in Devinder Singh Vs. Municipal Council,

Sanaur 2011(5) Mh. L J 503 and Ramesh Kumar Vs. State of Haryana AIR 2010 SC

683, it was submitted that the Industrial Court rightly granted the relief of

reinstatement with continuity in service. He urged that the facts in Writ Petition No.

2781/2010 were distinct and the order passed by the Industrial Court in the present

case was not liable to be set aside on that count.

6. Mrs. Sangeeta Jachak, learned Assistant Government Pleader for the

respondents supported the impugned judgment. According to her in the order of

appointment itself it was stipulated that the appointment was on temporary basis for

a fixed period and till a candidate from the Selection Board was made available. It

was rightly held by the Labour Court that there was no retrenchment and the order

passed by the Industrial Court holding otherwise was rightly set aside by the learned

Single Judge. The facts in Writ Petition No.2781/2010 were similar and the learned

Single Judge was justified in relying upon that adjudication. Hence no interference

with the impugned judgment was called for.

7. We have heard the learned counsel for the parties and we have perused

the records of the case. After giving due consideration to the rival submissions, we

find that there is no merit in the Letters Patent Appeal and the order passed by the

learned Single Judge deserves to be confirmed.

8. The orders of appointment issued to the appellant on three occasions 5 LPA240.12(J)

clearly specify that the appellant was on temporary basis for a period of 175 days or

till a candidate duly selected by the Selection Board was made available. The

services of the appellant thus came to an end on the expiry of the period of 175 days

on all these occasions. While upholding the view taken by the Labour Court that

such discontinuation did not amount to retrenchment, the learned Single Judge in

Writ Petition No.2781/2010 relied upon the decisions in Punjab State Electricity

Board Vs. Darbara Singh (2006) 1 SCC 121 and Kishore Chandra Samal Vs. Orrissa

State Cashew Development Corporation Ltd., Dhenkanal (2006) 1 SCC 253. Having

perused those decisions, it is clear that the same in clear terms hold that when the

appointment is for a fixed period or till a duly selected candidate is made available,

the same would not amount to retrenchment on completion of the period of

temporary service. We find that no other view is possible than the one taken by the

learned Single Judge.

9. As regards the contention that three other employees were retained in

service on temporary basis, the records indicate that at Exhibits 44 and 45 these

candidates were selected by the Secondary Selection Board and their names were

forwarded to the respondent no.2. The orders of appointment though temporary in

nature, indicate their selection by the Selection Board. Hence those appointments

though on temporary basis cannot be equated with the appointment of the appellant.

The Labour Court has rightly considered this aspect of the matter and the same has

been rightly upheld by the learned Single Judge.

10. In the light of the aforesaid two decisions of the Hon'ble Supreme Court, 6 LPA240.12(J)

it is clear that the provisions of Section 25F of the Act of 1947 are not attracted to

the case in hand. Hence the submission made on behalf of the appellant based on

the decisions in Devinder Singh and Ramesh Kumar (supra) cannot be accepted in

the facts of the present case. In those decisions on account of violation of the

provisions of Section 25F of the Act of 1947, monetary compensation was granted.

Since we have found that the provisions of Section 25F of the Act of 1947 are not

attracted, there is no question of any monetary compensation being granted to the

appellant.

11. Hence for the aforesaid reasons, the judgment of the learned Single

Judge stands affirmed. The Letters Patent Appeal stands dismissed with no orders as

to costs.

                              JUDGE                                        JUDGE




            Andurkar..




Digitally Signed byJAYANT S
ANDURKAR
Personal Assistant
Signing Date:
18.11.2021 10:40