Ku. Chhaya D/O Keshaorao Telang vs The Forest Development Of Mah. ...
2021 Latest Caselaw 15031 Bom

 LPA 17.12 judg.odt                                                                     1

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

                     LETTERS PATENT APPEAL NO.17 OF 2012
                                         In
                           Writ Petition No.5649/2009

 Ku. Chaya d/o Keshaorao Telang,
 aged about 45 years, Occ.-Nil,
 R/o.-Ballarpur Tq and Distt. Chandrapur.                      ...APPELLANT

                                         VERSUS

 1.       The Forest Development of Maharashtra
          Corporation Ltd Ballarpur through
          Regional Manager, (South) Chandrapur Zone,
          Chandrapur.

 2.    The Divisional Manager Depot Division, FDCM Ltd.
       Ballarpur Tq and Distt. Chandrapur.           ...RESPONDENTS
 ______________________________________________________________
                   Shri S. S. Loney, Advocate for appellant.
                  Ms. Tajwar Khan Advocate for respondents.
 _____________________________________________________________

                               CORAM : A.S. CHANDURKAR &
                                          PUSHPA V. GANEDIWALA, JJ.

Arguments Heard on : 21-09-2021.

Judgment Pronounced on : 14-10-2021.

JUDGMENT : (Per PUSHPA V. GANEDIWALA, J.)

The order passed by the Single Bench on 02.12.2011 in

Writ Petition No. 5649/2009 is the subject matter of challenge in this

Letters Patent Appeal filed under Clause-15 of the Letters Patent. The

learned Judge, while partly allowing the Writ Petition, held that the

appellant will be at the most entitled to the amount of shortfall in

retrenchment compensation i.e. of Rs.3691/- and in addition to this the

appellant would be entitled to compensation of Rs 15,000/-.

2. The facts in brief giving rise to the present proceedings

may be stated as under:

The appellant herein is a complainant before the Labour

Court, Chandrapur. The complaint was filed under Section 28 of the

Maharashtra Recognition of Trade Unions and Prevention of Unfair

Labour Practices Act, 1971 (hereinafter referred to as, 'the MRTU and

PULP Act') bearing Complaint (ULPA) No.78/2000, seeking declaration

against the respondent no.1-Forest Development of Maharashtra

Corporation Ltd, Ballarpur (for short, 'FDCM') that the respondents

have engaged in unfair labour practice against the complainant under

Item 1 Schedule IV of the MRTU and PULP Act by illegally terminating

her services vide order dated 30-06-2000. The appellant/complainant

further sought direction of her reinstatement with continuity in service

and full back wages.

3. It is the case of the appellant/complainant that the

appellant was appointed by the respondent no.2, on the post of

Telephone Operator, on daily wages, as per order dated 16-12-1985.

Since then she is working continuously without any break. The

appellant is having educational qualification as required for the post of

Telephone Operator. The appellant claimed to have completed 240

days' continuous service with the respondents. According to her the

respondent no.1 has failed to make category of the appellant as

Telephone Operator, as there is no other person appointed as Telephone

Operator since the year 1985. It is alleged that the appellant being the

only candidate working as a Telephone Operator though on daily

wages, the question of maintaining seniority list of the daily wages

employees and therein showing the name of the appellant at serial

no.68 is itself illegal and the said seniority list is not binding on the

appellant. The appellant condemned the act of the respondents

terminating her on the principle of last come first go on the basis of the

aforesaid seniority list which according to her is wrongly prepared. It is

her case that this principle is not applicable to her case as she is the

only candidate working on the post of Telephone Operator, on which

she was appointed. The appellant felt herself the victim of unfair labour

practice committed by the respondents.

4. Initially, the complaint was filed in contemplation of her

retrenchment. Subsequently, on her retrenchment, she added further

pleadings in her complaint relating to the inadequacy of retrenchment

compensation as calculated by the respondents under Section 25F of

the Industrial Disputes Act, 1947 (for short, 'the I.D. Act'). She further

states that considering the nature of her work i.e. of Telephone

Operator, since last 15 years, which is not at all closed, she ought to

have been treated as permanent employee irrespective of any absence

of sanction.

5. The respondents in their written statement resisted the

adverse pleadings in the complaint. The respondents specifically stated

that they have followed the mandatory provisions of Sections 25F and

25G and also Rule 81 of the I.D. Act. The respondents state that there

was no post of Telephone Operator in existence and therefore the

appellant is not entitled to claim any relief. In their specific pleadings

the respondents state that the respondent is a Government enterprise

and incorporated with a view to maintain and improve the quality and

quantity of forest throughout the State of Maharashtra. The appellant

was never appointed on a particular post. She was engaged on

Maharashtra Vainiki Prakalpa Yojana and the said project was

completed on 31-03-2000 due to paucity of funds and the workers

employed for the said project on daily wages were continued till

30-06-2000. However, the respondents have paid retrenchment

compensation in compliance with Sections 25F of the I.D. Act.

6. On the basis of pleadings of the parties, the learned

Presiding Officer of the Labour Court framed necessary issues and

recorded evidence as adduced by the parties. The appellant examined

herself at Exh.72, while respondent Corporation examined one of his

official by name Ghansham Premlal Thakur at Exh. 112. Both the

parties brought on record the relevant documents in support of their

contentions. The learned Presiding Officer of the Labour Court, on

appreciation of evidence, vide judgment dated 31-03-2006, recorded

the finding that the appellant could prove that she has been illegally

retrenched from services on 30-06-2000 and, therefore, she is entitled

for the reinstatement with 25% back wages.

7. This order of the Labour Court was carried further by the

respondents Corporation in Revision (ULP) No.12/2008, before the

Industrial Court, Chandrapur, under Section 44 of the MRTU and PULP

Act. The Industrial Court found the judgment and order of the Labour

Court as legal, proper and correct and accordingly the Revisional Court

dismissed the Revision Petition and thereby confirmed the judgment of

the learned Labour Court.

8. The respondents Corporation challenged the order passed

by the Industrial Court in Writ Petition No.5649/2009. The Single

Bench of this Court vide order dated 02-12-2011, while partly allowing

the Writ Petition, held that the appellant will be at the most entitled to

the difference in the short payment between 17,064/- and Rs.13,373/-

which is of Rs. 3691/- and in addition to this the appellant would be

entitled to compensation of Rs 15,000/-. This judgment of the learned

Single Judge of this Court is assailed before this Court in Letters Patent

Appeal by the appellant/original complainant.

9. We have heard Shri S. S. Loney, learned Advocate for the

appellant and Ms. T.H. Khan, learned Advocate for the respondents.

10. The learned Advocate Shri Loney for the appellant submits

that the respondents have failed to comply with the mandatory

provisions of Section 25G read with Rule 81 of the Industrial Disputes

(Bombay) Rules, 1957. The learned Counsel urged that the respondents

ought to have prepared a seniority list of all the workmen in the

particular category from which the retrenchment is contemplated and

cause a copy thereof to be posted on a notice board in the premises of

the respondents at least seven days before the actual date of

retrenchment. The learned Counsel states that the respondents have

failed to follow the procedure for retrenchment as contemplated under

Section 25G of the I.D. Act. The learned Counsel submitted that the

respondents have failed to comply with the mandatory provisions of

Section 25F of the I.D. Act and therefore the retrenchment must be

treated as non est as admittedly there was shortfall in payment of

retrenchment compensation to the appellant. It is stated that both the

learned Courts below have properly appreciated the material on record

and recorded the reasons accordingly. On the contrary, the learned

Single Judge has committed an error in holding that the employer has

established that there was no violation of Section 25F of the I.D. Act.

The learned Counsel lastly submitted that the learned Single Judge has

awarded inadequate compensation, ignoring the long tenure of service

of the appellant with the respondent no.1. Therefore, learned Counsel

urged to quash and set aside the judgment of the learned Single Judge

in Writ Petition No.5649/2009.

11. In support of his submission, the learned Counsel for the

appellant placed reliance on the following decisions.

(a) Bharat Forge Co. Ltd vs Uttam Manohar Nakate,

reported in (2005) 2 SCC 489.

(b) Mackinnon Mackenzie and Company Ltd vs Mackinnon

Employees Union, reported in (2015) 4 SCC 544.

12. Per contra, Ms T.H. Khan, learned Counsel appearing on

behalf of the respondents while supporting the judgment of the learned

Single Judge of this Court submitted that now it is well settled that

even non compliance of Section 25F of the I.D. Act would not entail

automatic reinstatement in service. She submits that admittedly the

appellant was joined on daily wages. There was no post of Telephone

Operator with the respondents and she was appointed for the

Maharashtra Vainiki Prakalpa Yojana and because of closure of the said

project, the daily wagers workmen employed for the said project were

retrenched. The daily wager worker cannot claim continuity in service

as of right. The learned Counsel for the respondents urged to dismiss

the appeal.

13. We have considered the rival submissions. At the outset,

admittedly, the appointment of the appellant as a Telephone Operator

on 16.12.1985 was on daily wages. A perusal of her appointment letter

would reveal that she was notified that she is appointed on daily wages

on the post of Telephone Operator and her appointment is of temporary

nature and she would be removed from the services without issuing

any notice. A perusal of her termination order dated 30-06-2000,

which is at page 79 of the paper book, would reveal that as the

respondents were not able to engage her services due to paucity of

funds and lack of work load, she is being retrenched with compensation

of Rs.12,105/-. It is also stated that she is at serial no.68 in the

seniority list and the compensation is issued to her considering her

seniority and the date of her appointment. She is also given one

month's pay in lieu of notice. It is also ensured that there is no one

who is junior to the appellant in the employment of the respondents.

14. Long service put in by the appellant is not in dispute and

therefore the fact that the appellant has completed 240 days' in the

preceding year of retrenchment is not also in dispute. The learned

Single Judge placed reliance on the judgments of the Hon'ble Apex

Court in case of Incharge Officer and another vs Sankar Shetty ,

reported in (2010) 9 SCC 126 and Jagbir Singh vs Haryana State

Agriculture Marketing Board and another reported in (2009) 15 SCC

327 and observed that there is a change in the trend of the decisions

delivered by the Apex Court. It has been held that in case of daily

wagers, if the work is not available then the consequences of

reinstatement with back wages may not necessarily follow as a result of

non-compliance of Section 25F and the employee may be entitled for

payment of compensation. The learned Single Judge observed that

after these two judgments of the Hon'ble Apex Court, there is not a

single judgment pointed out taking contrary view of the matter either

of the Apex Court or of this Court. The learned Judge also observed

that the Labour Court has recorded the finding that the name of the

complainant was included in the list of daily wagers and there is

nothing on record to show that the juniors of the complainant are

retained in service and therefore there was no question of framing any

issue by the learned Labour Court as to whether a separate seniority

list of the Telephone Operator was required to be maintained. The

Presiding Officer of the Labour Court has recorded the findings that

the employer has established that there was no violation of Section 25G

of the I.D. Act and that the retrenchment was on account of non

availability of the post. It is further held that these findings have not

been touched by the Revisional Court except to say that the stand of

the employer that the complainant was employed as Telephone

Operator on purely temporary basis cannot be accepted.

15. We do not find any error in the observations made by the

learned Single Judge. These observations are in accordance with the

material on record and the findings recorded by the Courts below.

Reliance of the learned counsel Shri. Loney on a decision of Hon'ble

Supreme Court in Bharat Forge Co. Ltd. Vs. Uttam Manohar Nakate

(supra) is quite misplaced in as much as this judgment relates to the

question of misconduct and the quantum of the punishment, as such,

the same is wholly inapplicable to the factual situation of the present

case where misconduct is not the issue for determination. In the second

judgment relied on by the learned counsel Shri. Loney in the case of

Mackinnon Mackenzie and Company Ltd vs Mackinnon Employees

Union,(supra), the Hon'ble Apex Court held that the principle of 'last

come first go' should be strictly adhered to by the employer at the time

of issuing retrenchment notice served upon the concerned workmen as

provided under Section 25G of the I.D. Act read with Rule 81 of the

Bombay Rules. In the instant case, as discussed earlier and considering

the terms of the retrenchment order issued to the appellant, in our

considered view, the present case is not the case of non-compliance of

Section 25G of Act read with Rule 81 of the Bombay Rules.

16. In our considered view, the observations made by the

learned Single Judge are just, proper and in accordance with the

material on record and the changed trend of law, warranting any

interference. It is evident from the record that the appellant has been

given retrenchment compensation by the employer, however, evidently

there is some shortfall in the computation of the compensation. The

learned Judge has considered this aspect and enhanced the

compensation in terms of law and an additional compensation of

Rs.15,000/- is granted to her. In our view, considering her period of

service, interest of justice would be met if she gets total compensation

of Rs.50,000/- in addition to the compensation calculated in

accordance with law. In the circumstances, we partly allow the appeal

in the above terms. The balance amount of compensation of

Rs.35,000/- shall be paid to the appellant within a period of six weeks

failing which that amount would be payable with interest @ 6% per

annum till payment.

17. Letters Patent Appeal stands disposed of in aforesaid

terms. In the circumstances, there would be no order as to costs.

                   JUDGE                               JUDGE




 Deshmukh