Bombay High Court
Padmabhushan Vasantdada Patil ... vs Prashant Ankush Borkar on 30 July, 2025
Author: Milind N. Jadhav
Bench: Milind N. Jadhav
2025:BHC-AS:32031
WP.11232.2024+WP.2456.2024.doc
HARSHADA H. SAWANT
(P.A.)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION / O.O.C.J.
CIVIL WRIT PETITION NO.11232 OF 2024
M/s. Padmabhushan Vasantdada Patil
Pratishthan's College Of Engineering .. Petitioner
Versus
Prashant Ankush Borkar .. Respondent
WITH
O.S. WRIT PETITION NO.2456 OF 2024
Prashant Ankush Borkar .. Petitioner
Versus
Padmabhushan Vasantdada Patil Pratishthan's
College Of Engineering .. Respondent
....................
Mr. Shailesh S. Pathak, Advocate for Petitioner in Writ Petition
No.11232 of 2024 and for Respondent in Writ Petition No.2456 of
2024.
Ms. Nivedita Deshpande, Advocate for Respondent in Writ Petition
No.11232 of 2024 and for Petitioner in Writ Petition No.2456 of
2024.
...................
CORAM : MILIND N. JADHAV, J.
DATE : JULY 30, 2025
P.C.:
1. This is a group of two cross Petitions, one filed by M/s.
Padmabhushan Vasantdada Patil Pratishthan's College Of Engineering
- the College and the other filed by Prashant Ankush Borkar -
workman challenging the same Award dated 15.09.2023 passed by the
Labour Court, Mumbai in Reference (IDA) No.124 of 2019. By the said
Award termination of workman by the College was held to be illegal
and unjustified and he was granted reinstatement with continuity of
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service and 25% backwages.
2. Writ Petition No.11232 of 2024 is filed by College seeking
quashing and setting aside of the Award dated 15.09.2023 and Writ
Petition No.2456 of 2024 is filed by the workman seeking
enhancement in backwages granted vide the same Award under
challenge to 100% i.e. full backwages instead of 25%.
3. Briefly stated facts germane for adjudication of the lis
between the parties are as follows:-
3.1. The workman joined the services of the College as a
'wireman' in October 2014 for which he was issued appointment letter
on 26.10.2014. According to the workman, every year he was issued a
fresh appointment letter / order by showing artificial break in service
despite he having worked continuously during the said artificial
breaks, however in July 2018 he was orally terminated from service
w.e.f. 01.06.2018.
3.2. In view of the aforesaid the workman raised grievance before
the Labour Commissioner after which Reference (IDA) No.124 of 2019
was referred by the appropriate Government. On 15.07.2017 the
workman filed his statement of claim and on 18.02.2020 the College
filed its written statement. Both parties led their respective evidence
before the learned Labour Court and on 15.09.2023 the learned
Labour Court passed the Award dated 15.09.2023 which is under
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challenge in both the Writ Petitions before me.
4. Mr. Pathak, learned Advocate for the College would at the
outset submit that the Conciliation Officer should not have referred the
matter to the Labour Court as it was clearly brought to his notice that
the workman was appointed for a fixed term basis for specific period to
complete the electrical work in the College building however the
Conciliation Officer failed to exercise his powers under Section 12 of
the ID Act.
4.1. He would submit that the Labour Court ought to have
considered that the case of the workman in the present case would not
fall under illegal termination or retrenchment as the same falls under
Section 2(oo)(bb) of the Industrial Disputes Act, 1947 (for short "ID
Act") which explicitly excludes termination of service of a workman
which is result of non-renewal of his contract from the umbrella of
'retrenchment'. He would submit that admittedly the workman was
bound by the terms of his appointment orders issued to him from time
to time viz. 26.12.2014, 01.06.2015, 01.07.2016, 05.06.2017 which
categorically mention that his appointment as wireman shall be purely
on temporary basis for 11 month period at a time. He would submit
that his last appointment letter dated 05.06.2017 mentions his tenure
from 06.06.2017 to 31.05.2018 and thereafter he was not issued
further appointment order as his services were not required by the
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College. He would submit that under such circumstances wherein there
is no termination but sheer non-renewal of services / contract of the
workman, the Labour Court ought to have considered that the same is
covered by the exclusion provided under Section 2(oo)(bb) of the ID
Act.
4.2. He would submit that an employee cannot claim absorption
in services in employment unless there is specific averment to that
effect in the appointment letter / order. He would submit that the
Labour Court ought to have considered the fact that the College
already had a permanent wireman namely Mr. Nitin Pawar working
with the College since 2014 and therefore it did not require 2
wireman. He would submit that the Labour Court had not taken into
account various relieving letters issued to the workman from time to
time when his 11 month tenure was completed intermittently. He
would submit that there is no evidence led by the workman either to
show that the work performed by him was of a permanent nature or
that he was appointed on permanent basis. On the contrary he has
accepted and acknowledged the appointment and relieving letters
issued to him by the College which proves that he was never in
continuous service with the College. He would submit that the
workman has in his affidavit of evidence admitted that he was not
required to sign the muster roll in the College which itself proves that
he was a temporary employee.
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4.3. In support of his submissions, Mr. Pathak has referred to and
relied upon the following decisions of the Supreme Court and this
Court:-
(i) Escorts Limited Vs. Presiding Officer and Anr.1;
(ii) Prakash Pandurang Sawant Vs. Punjab and Sind Bank
and Ors.2;
(iii) Managing Director, Karnataka Handloom Development
Corporation, Ltd. Vs. Mahadeva Laxman Raval3;
(iv) Municipal Council, Samrala Vs. Raj Kumar4;
(v) Kanga and Company Vs. State of Maharashtra and
Ors.5;
(vi) Nilesh M. Mahadeshwar Vs. Presiding Officer CGIT
No.1, Mumbai6 and
(vii) Executive Engineer, O & M Division, MSEDCL and Ors.
Vs. Pranay Pramod Bansod7.
4.4. In view of his above submissions, he would urge the Court to
quash and set aside the Award dated 15.09.2023 passed by the Labour
Court.
5. PER CONTRA, Ms. Deshpande, learned Advocate for the
workman would at the outset submit that Section 2(oo)(bb) of the ID
Act would not be applicable to the facts of the workman in the present
case as the services rendered by him were of a permanent and
continuous nature. She would submit the the College's stance that the
1 (1997) 11 SCC 521
2 2007 (114) FLR 675
3 2006 (4) LLN 749
4 2006 (1) LLN 59
5 Writ Petition No.2451 of 2006 decided on 13.10.2006
6 2009 (2) Mh.L.J. 828
7 2025 SCC OnLine Bom 1165
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workman was appointed only because AICTE had withdrawn approval
due to which they had to carry out certain structural changes for
getting the approval cannot be countenanced as a measure to employ
the services of the workman temporarily since the College received
approval from the AICTE in 2016-17 despite which services of the
workman were continued and availed and renewed by the College
upto May 2018. She would submit that the Labour Court has
considered the same and in paragraph Nos.19 and 24 of the Award
returned a categorical finding on the above issue. In support of her
submissions she has referred to and relied upon the decision of this
Court in the case of Sunil Pralhad Khomane and Ors. Vs. M/s. Bajaj
Auto Ltd.8
5.1. She would submit that the workman has placed on record
before the Labour Court his bank statements which clearly
demonstrate that he was paid his salary even for the artificial breaks
given by the College. She would submit that hence continuity in service
of the workman from October 2014 to May 2018 is proved by him by
leading positive evidence which has remained unchallenged before the
Labour Court and the College has not led any evidence in rebuttal to
disprove the above case.
5.2. In so far as challenge to the Award dated 15.09.2023 by the
workman for increase in the grant of backwages to 100% is concerned
8 2021 (5) Mh.L.J. 166
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she would submit that the workman being a wireman has led
uncontroverted evidence before the Labour Court which proves that he
was not gainfully employed after his illegal termination by the College.
She would place reliance on the decision of the Supreme Court in the
case of Deepali Gundu Surwase Vs. Kranti Junior Adhypak 9 to contend
that when cogent evidence is led by the employee that he was not
gainfully employed then in case of wrongful termination by the
employer, the employee has to be paid full backwages for his
suffering.
5.3. In view of her above submissions she would urge the Court
to allow Writ Petition No.2456 of 2024 and thereby modify the Award
dated 15.09.2023 to the extent of increasing the backwages awarded
to the workman from 25% to 100% i.e. full backwages.
6. I have heard Mr. Pathak, learned Advocate for the College
and Ms. Deshpande, learned Advocate for the workman and with their
able assistance perused the record and pleadings of the case.
Submissions made by the learned Advocates have received due
consideration of the Court.
7. In the present case, the principal grievance raised by the
College is that the case of workman is governed by the exception
provided in Section 2(oo)(bb) of the ID Act. From the facts and record
9 2013 (139) FLR 541
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of the case it is seen that the workman was initially appointed as
wireman from October 2014 till 29.05.2015. Perusal of the
appointment orders reveal that thereafter his services were renewed
and continued intermittently by giving artificial break. The workman
however has placed on record his bank statement for the period from
December 2014 to July 2018 which has been marked as Exhibit 'U-2/5'
and also his bank passbook marked as Exhibit 'U-9' which show that he
was paid salary by the College even during the alleged break period
which falsifies the stance of the College that he was appointed solely
on contractual and temporary basis. The said evidence has remained
uncontroverted and unchallenged.
8. In this regard it would be fruitful to refer to a decision of the
Gujarat High Court in the case of Junagadh Municipal Corporation Vs.
Dipakbhai Pratapbhai Karamata10 wherein the Court has referred to a
plethora of cases on interpretation of the definition of retrenchment
under Section 2(oo) of the ID Act and its exception under Section
2(oo)(bb) of the ID Act. The Court held that a plain reading of Section
2(oo)(bb) makes it clear that term based employment would fall
outside the scope of 'retrenchment' so long as the requirement of such
fixed period of employment was bona fide required by the employer. It
held that such excepted categories require a rigorous test rather than
accepting the plea of employer on its face value or otherwise it would
10 MANU/GJ/0945/2020
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cause serious prejudice to an employee, who can be taken for a ride by
unscrupulous employers by contending that the term of employment
was for specific period though as a matter of fact such period of
employment lasted quite for a long spell. It observed that though the
requirement of employment was perennial by adopting the
methodology of employing a person for a specific period as many a
times, an unscrupulous employer can always resort to abusing the
provision contained in Section 2(oo)(bb) to thwart the other statutory
protection available to an employee under Section 2(oo), namely, in
the case of a 'retrenchment' vis-a-vis the consequential benefits
contained under Section 25-F of the ID Act. It held that when such
extraordinary circumstances are brought out in the matter of
employment and termination is resorted to by taking umbrage under
Section 2(oo)(bb) of the ID Act, a close scrutiny of the real position
will have to be necessarily made to rule out the possibility of any
injustice being caused to an employee. It held that Section 2(oo)(bb)
is specifically meant to cover only such employment which would be
needed for an employer for a specific period alone and beyond which
the requirement will not be there and even on such occasions, the
employer should not be put into an unnecessary predicament of facing
the other consequences that would normally occur while resorting to
retrenchment and the benefit of the said exception will have to be
strictly restricted to such specific situations alone and the same cannot
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be allowed to be misused or abused by the employers even in regard to
cases where the nature and requirement of employment is perennial.
9. The observations made by the Gujarat High Court in the
above case are squarely applicable to the facts in the present case
moreover when the workman has led cogent evidence by way of his
bank statements and bank passbook to prove his continuous service for
more than 3 years and 7 months which has gone uncontroverted. In
view of the cogent evidence led by the workman it cannot lie in the
mouth of the employer i.e. College that he was appointed for a
specific period on temporary basis.
10. The Affidavit dated 02.07.2025 filed by the College states
that there is only one post of wireman in the college, on which one Mr.
Nitin Pawar is engaged. It is contended by the workman that initially
the said Mr. Nitin Pawar was engaged by adopting similar modus
operandi of issuing him an appointment letter intermittently for period
of 11 months despite he working continuously and only pursuant to he
raising a dispute, he was absorbed in permanent service by the College.
Thus the modus operandi followed by the College i.e. employer in the
present case clearly stands exposed. Conduct of the College is prima
facie nethical and unfair and cannot be accepted. Neither the
submissions advanced by Mr. Pathak. Rule of law prevails and will
have to be scrupulously followed, otherwise it will amount to bondage
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and subjugation at the mercy of the College i.e. employer in this case.
11. In view of the facts and circumstances of the case and my
observations and findings thereon, the challenge maintained by the
College in Writ Petition No.11232 of 2024 fails.
12. In so far as the plea of the workman for enhancement of the
25% backwages granted in the Award to 100% backwages is
concerned, there is nothing placed on record which shows that he was
gainfully employed subsequent to his termination.
13. In this regard a useful reference can be made to the decision
of this Court (Coram: N.J. Jamadar, J.) in the case of M/s. S.K.
International and Anr. Vs. Ashok Tanaji Tambe and Anr. 11 wherein this
Court while referring to a series of judgments on the issue of grant of
backwages held that in case of wrongful termination of services,
reinstatement with continuity of service and backwages is a normal
measure of restitution, however, this is not an immutable rule of law
and departure from the said rule can be made upon consideration of
all the factors which influence the exercise of discretion like the length
of service rendered by the employee before the termination, nature of
the misconduct alleged and proved, the peculiar circumstances of the
employer bearing upon its capacity to bear the burden of payment of
backwages; whether the industrial establishment has been closed down
11 Writ Petition (L) No.809 of 2023 decided on 01.12.2023.
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or in financial doldrums, and whether in the intervening period the
employee has been gainfully employed. The Court further held that
nature of the termination also assumes salience as if the termination
appeared to be malafide or wholly unjustified without there being an
ounce of fault on the part of the employee and in that case, denial of
backwages would put premium on the illegality on the part of the
employer. It was further observed that the nature of the employment
i.e. permanent or casual also deserves to be taken into account and if
an employer could resort to again terminating the employee by
complying with the statutory requirements, the order of reinstatement
with full backwages may not suit the purpose.
14. Applying the above principles to the case it hand, it needs to
be considered that the workman herein has rendered his services to the
College continuously for more than 3 years and 7 months which has
been recorded by the Labour Court in its Award. He has placed his
bank statements and passbook on record to show his continuous
employment with College and also that he was not gainfully employed
elsewhere. There is neither any contention raised nor any evidence
placed on record by the College that he was gainfully employed after
his termination by College. In such circumstances considering the
length of service of workman with the College and the malafide modus
operandi on part of the College of employing him by giving artificial
break between each appointment, I am of the opinion that since the
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workman before me is an electrician, he may have had some difficulty
in surviving during the said period and hence grant of 25% backwages
is on the lower side and the workman herein deserves to be granted
atleast 50% backwages.
15. In view of the above and the observations and findings
arrived at by me which are delineated hereinabove, the Award dated
15.09.2023 is modified to the extent of granting 50% backwages to the
workman. Rest of the Award dated 15.09.2023 is upheld and
confirmed and shall remain as it is.
16. All parties are directed to act on a server copy of this order.
17. With the above directions, Writ Petition No.11232 of 2024 is
dismissed. Writ Petition No.2456 of 2024 is partly allowed and
disposed.
[ MILIND N. JADHAV, J. ]
18. After this order has been pronounced in Court Mr. Pathak,
learned Advocate appearing for Petitioner in Writ Petition No.11232 of
2024 requests this order to be kept in abeyance for a period of four (4)
weeks. At his request present order shall stand stayed for a period of
four (4) weeks from today to enable the College to approach the Superior
Court.
H. H. SAWANT [ MILIND N. JADHAV, J. ]
HARSHADA by HARSHADA
HANUMANT
HANUMANT SAWANT
SAWANT Date: 2025.07.30 13 of 13
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