Bombay High Court
Ashok Bhikanrao Deshmukh vs The State Of Maharashtra And Ors on 28 November, 2023
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
2023:BHC-AUG:25279-DB
40-WP-2149-2011-judgment.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2149 OF 2011
Ashok Bhikanrao Deshmukh
Age: 47 years, Occ. Nil,
R/o Betawad Tq. Sindkheda, Dist. Dhule ... PETITIONER
VERSUS
1. The State of Maharashtra
Through Secretary, Public Works
Dept. Mantralaya, Mumbai
2. The Executive Engineer
Public Works Division,
Division Officer Dist. Nandurbar
3. The Deputy Engineer
Public Works Dept. Taloda,
Tq. Taloda, Dist. Nandurbar
4. The Divisional Commissioner,
Nashik Region, Nashik
5. District Collector, Dhule
Dist. Dhule
6. The District Collector, Nandurbar,
Dist. Nandurbar ... RESPONDENTS
....
Mr. B. R. Warma, Advocate for Petitioner
Mr. P. S. Patil, AGP for Respondent - State
....
1 of 9
::: Uploaded on - 05/12/2023 ::: Downloaded on - 28/02/2024 04:02:59 :::
(( 2 )) 40-WP-2149-2011-judgment
CORAM : RAVINDRA V. GHUGE AND
Y. G. KHOBRAGADE, JJ.
DATE : 28.11.2023
ORAL JUDGMENT (Per:- Ravindra V. Ghuge, J.) :-
1. By an order dated 26.09.2011, this Petition was admitted.
No interim relief was granted.
2. The Petitioner has put forth prayer clauses (B), (C) and
(D) as under:-
"(B) By issuing Writ of Certiorari or any other Writ, Order or
Direction in the like nature, impugned intimation at Exh. G
may please be quashed and set aside as illegal, untenable and
unjustified;
(C) By issuing Writ of Mandamus or any other appropriate
Writ, order or directions in the like nature, the respondents
may pleased be directed to extend the benefit of Government
Resolution dated 01.12.1995 by absorbing the petitioner in
service with all consequential benefits within stipulated period;
(D) Pending hearing and final disposal of this Writ Petition
the respondent No.1 may please be directed to provide work to
the petitioner."
3. The Petitioner is around 60 years of age today.
4. The admitted events are as under:-
2 of 9
(( 3 )) 40-WP-2149-2011-judgment
(a) The Petitioner was appointed on the Employment
Guarantee Scheme (EGS).
(b) He claimed that he was taken on the EGS on daily wages
w.e.f. 01.11.1985 as a Mustering Assistant.
(c) He was orally terminated from his daily wages service on
EGS w.e.f. 11.02.1987.
(d) He raised an Industrial Dispute in 1994 and the reference
to the Labour Court at Jalgaon was recorded as Reference
(IDA) No.01/1994.
(e) By an award dated 29.03.1996, the Labour Court partly
answered the Reference in the affirmative and by quashing the
termination order dated 11.02.1987, granted reinstatement in
service with continuity w.e.f. 11.02.1987.
(f) The State of Maharashtra, through the Deputy Engineer
(Employment Guarantee Scheme) preferred Writ Petition
No.589 of 1997, challenging the award of the Labour Court.
(g) By judgment dated 16.07.2009, the learned Single Judge
Bench of this Court allowed the Writ Petition and quashed and
set aside the impugned award of the Labour Court. It was,
however, recorded that the case of the Petitioner may be
considered in terms of the Government Resolution dated
01.12.1995, if found eligible. The Petitioner was permitted to
make a representation and if found eligible, his case for
absorption was directed to be considered.
(h) By the impugned communication dated 27.10.2010, the
State concluded that the Petitioner was not eligible for
absorption since he was not in employment on 31.05.1993.
5. The learned Advocate for the Petitioner strenuously
canvassed that there were certain juniors who were absorbed in
3 of 9
(( 4 )) 40-WP-2149-2011-judgment
service under the Government Resolution dated 01.12.1995. He
specifically points out candidates namely D. M. More, Bhagwant
Shamrao Ahirrao, Rajendra Arjun Shinde and Subhash Sudam Patil.
According to the learned Advocate for the Petitioner, these are
candidates who were not in employment as on 31.05.1996 and yet
they were absorbed in service.
6. The learned AGP relies upon the affidavit-in-reply dated
01.07.2011, filed by Shri Arvind Popatrao Anturlikar, who was
working as Deputy Collector (EGS), Dhule. He points out that the
names of the candidates referred to by the Petitioner were those who
had Court orders in their favour and which have not been set aside.
So also, he refers to paragraph 4 of the affidavit in reply and submits
that the Petitioner was a temporary worker as a Muster Assistant on
EGS from 30.10.1985 to 31.12.1985, 02.01.1986 to 31.03.1986,
01.04.1986 to 30.06.1986, 02.07.1986 to 30.09.1986 and lastly from
03.10.1986 to 31.12.1986.
7. The learned AGP further points out that when the
Government Resolution dated 01.12.1995 was placed before the
Hon'ble Supreme Court by way of a scheme, the cut off date
prescribed was 31.05.1993 in the light of Clause 1.2. Vide Clause 3.1,
4 of 9
(( 5 )) 40-WP-2149-2011-judgment
those Mustering Assistants who were in continuous service as on
31.05.1993, and whose names were included in the seniority list,
were alone to be considered. The case of the Petitioner did not fall in
this category.
8. This Court has consistently held that workers working on
the EGS are not a part of the process of recruitment and they neither
have a right for continued employment, nor can they file ULP
complaints under the MRTU and PULP Act, 1971 for claiming
regularisation or permanency, nor can they raise an Industrial Dispute
on account of being discontinued from the EGS.
9. In Chief Executive Officer, Zilla Parishad, Ahmednagar vs.
Daulat Narsingrao Deshmukh and another, 2001(2) Mh.L.J. 543 , this
Court has held that the case of the Mustering Assistants can be
considered in the light of the Government Resolution dated
01.12.1995 and subsequent Government Resolutions. The impugned
award of the Labour Court dated 29.10.1996 was, therefore, quashed
and set aside.
10. In Arvind G. Chaudhari and another vs. Dhanraj Nathu
Patil and another, 2008(6) Mh.L.J. 746, this Court concluded that an
5 of 9
(( 6 )) 40-WP-2149-2011-judgment
employee working under the Maharashtra Employment Guarantee
Act, 1977 (Employment Guarantee Scheme) is not entitled to get any
relief by resorting to the MRTU & PULP Act, 1971 or the Industrial
Disputes Act, 1947. The persons working under the EGS are not
governed by the provisions of such enactments and the Labour Court
or the Industrial Court will have no jurisdiction to grant reliefs in the
nature of regularization in service.
11. It is undisputed that the Petitioner was working on EGS
for limited durations over two calendar years and had put in around
370 days. After 31.12.1986, he was not in employment. The award
delivered by the Labour Court was quashed and set aside by the
learned Single Judge vide judgment dated 16.07.2009. On the basis
of the observation of the Court in the said judgment, the case of the
Petitioner was to be considered as per the Government Resolution
dated 01.12.1995. Clauses 1.2 and 3.1 clearly dis-entitled the
Petitioner for seeking regularisation. In these circumstances, we do
not find that the impugned communication could be faulted or could
be termed as perverse or erroneous.
12. However, it cannot be ignored that the Petitioner was
working for about two years on daily wages as an EGS Mustering
6 of 9
(( 7 )) 40-WP-2149-2011-judgment
Assistant. After 31.12.1986, he has not been in employment for the
last 37 years.
13. The Hon'ble Supreme Court has held in (1) Assistant
Engineer, Rajasthan State Agriculture Marketing Board, Sub-Division,
Kota Vs. Mohanlal - [2013 LLR 1009], (2) Assistant Engineer,
Rajasthan Development Corporation and another Vs. Gitam Singh -
[(2013) 5 SCC 136], (3) BSNL Vs. Man Singh - [(2012) 1 SCC 558]
and (4) Jagbir Singh Vs. Haryana State Agriculture Marketing Board
- [(2009) 15 SCC 327], that if an employee is working for a very
short period and is out of employment for a long duration, granting
reinstatement in service or absorption would be impracticable.
Instead, he could be granted compensation for the number of years of
service that he has put in. The learned AGP vehemently opposes grant
of compensation on the ground that when an EGS worker is not
entitled for any benefits, merely because he is litigating, he should
not be granted any compensation.
14. The judgments referred to herein above, were delivered
in between 2009 and 2013 when the Hon'ble Supreme Court directed
compensation between Rs.40,000/- to Rs.50,000/- per year of service
put in by the employee. We are inclined to enhance the compensation
7 of 9
(( 8 )) 40-WP-2149-2011-judgment
amount since the Petitioner has worked for two years and is litigating
for the last about 37 years. He has reached the age of 60 years as on
date. It also cannot be ignored that, after his oral engagement on
daily wages on EGS, was concluded within two years in December
1986, he approached the Labour Court under the Industrial Disputes
Act in 1994.
15. In view of the above, notwithstanding that the Petitioner
has failed to make out a case, we are inclined to grant him
compensation at the rate of Rs.1,00,000/- per year of service that he
has put in, only in view of that fact he has been litigating all these
years.
16. This Writ Petition is, therefore, dismissed. Rule is
discharged.
17. We direct the Respondent Nos.1 and 2 to pay an amount
of Rs.2,00,000/- to the Petitioner by depositing the said amount in
this Court within sixty [60] days from today. The Petitioner would be
at liberty to withdraw the said amount without conditions, under
identification of the learned Advocate representing him in this matter.
A copy of his Aadhar card and Election Commission voter identity
8 of 9
(( 9 )) 40-WP-2149-2011-judgment
card, shall be tendered along with the application while seeking
withdrawal of the amount.
[ Y. G. KHOBRAGADE, J. ] [ RAVINDRA V. GHUGE, J. ]
SMS
9 of 9
