Bombay High Court
Rajkumar Devilal Thakare vs The Assistant Conservator Of Forest ... on 7 November, 2025
2025:BHC-NAG:11974
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 1455 OF 2019
Rajkumar Devilal Thakare
Aged about 40 years
R/o Mangejhari, Post Sukadi Dakaram .. Petitioner
Tah. Tiroda, District Gondia
Versus
1. The Assistant Conservator of Forest
Wildlife, Sakoli, Tah. Sakoli,
District Bhandara
2. The Range Forest Officer,
Wildlife, Sakoli, Tah. Sakoli, .. Respondents
District Bhandara
3. The Conservator of Forest
Wildlife, Gondia,
Tah. & District Gondia
WITH
WRIT PETITION NO. 1447 OF 2019
Likhiram S/o Puranlal Maraskolhe
Aged about 45 years
R/o Mangejhari, Post Sukadi Dakaram .. Petitioner
Tah. Tiroda, District Gondia
Versus
1. The Assistant Conservator of Forest
Wildlife, Sakoli, Tah. Sakoli,
District Bhandara
2. The Range Forest Officer,
Wildlife, Sakoli, Tah. Sakoli, .. Respondents
District Bhandara
3. The Conservator of Forest
Wildlife, Gondia,
Tah. & District Gondia
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Mr. R.S.Bhure, Advocate for petitioner.
Mr. H.R.Dhumale, AGP for respondents.
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CORAM : SIDDHESHWAR S. THOMBARE, J.
DATED : NOVEMBER 07, 2025
ORAL JUDGMENT
(1) Heard. Rule. Rule made returnable forthwith. Heard finally with
the consent of learned counsel for the petitioners and learned Assistant
Government Pleader for respondents.
(2) These petitions are directed against the orders dated 12/05/2017
and 09/05/2017 respectively passed by the learned Presiding Officer, Labour
Court, Bhandara, whereby both references were answered in the negative.
(3) It is the case of the petitioners before the Labour Court that the
References were referred by the Additional Commissioner of Labour for
adjudication under Section 10(1) read with 12(5) of the Industrial Disputes Act,
1947 to determine whether the petitioners should be reinstated in services by
party No.1/respondent No.1 with full back wages and continuity of service. It is
the case of the petitioners that they were employed as Chowkidar/Watchman by
oral order on 01/01/2004 and in the month of March, 2003 respectively and they
used to receive monthly salary of Rs.2100/- and in the course of their
employment, their duties were to protect the forest trees from illegal felling, illegal
cattle grazing and poaching. For carrying out said duty they used to stay in
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camps in the forest. They performed all the incidental jobs assigned to them by
their superiors in the Forest Department. Therefore, their specific contention is
that their work was perennial in nature.
(4) Learned counsel for the petitioners submits that the petitioners
had continuously worked with the department for about 5 years, but despite of
completing more than 240 days in every calendar year of service, the department
did not accord them the status of permanent employees. It is their contention that
the Forest Department is an "industry" within the meaning of Section 2(j) of the
Industrial Disputes Act, 1947. The petitioners were terminated w.e.f. 26/09/2006
and 01/04/2007 without following due process of law. The petitioners submitted
their reply to legal notice through his counsel on 12/04/2012, but the said reply
was not answered back and therefore, they challenged their termination before
the learned Assistant Labour Commissioner, Bhandara on 16/05/2012, by
contending that their oral termination dated 26/09/2006 and 01/04/2007 is totally
in disregard to the principles of natural justice and is in blatant violations of the
provisions of law. Before termination of the services of the petitioners, the
respondents neither issued notice of termination nor paid them notice pay in lieu
of notice. They had not been paid retrenchment compensation and therefore, it
violated the provisions under Section 25-F of the Industrial Disputes Act, 1947.
Before terminating their services, the respondents failed to publish the seniority
list, much less, have not maintained the seniority list of the employees properly.
(5) The petitioners further submitted that their termination is in total
contravention of the Model Standing Order, 1946, thereby violating the provisions
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of Section 25-G and 25-H of the Industrial Disputes Act, 1947 and therefore, they
seek relief of reinstatement with full back wages and continuity of service.
(6) Learned counsel for the petitioners would submit that the findings
recorded by the learned Labour Court are not proper. There were specific
applications moved by the present petitioners before the learned Labour Court
asking the respondents to place on record the documents pertaining to the
employment of the petitioners. He would further submit that despite specific
applications, no such record was produced before the learned Labour Court by
respondents. He would further submit that there was non-compliance of Section
25-G of the Industrial Disputes Act, 1947 and seniority was not followed. The
principle of "last come fist go" was also not followed. On that count he submit that
the Labour Court committed an error while answering the reference in the
negative.
(7) Per contra, learned Assistant Government Pleader submits that
the petitioners failed to prove their case that they had worked with the department
during that period. He invited my attention to the observations made by the
learned Labour Court that after submission of applications by the petitioners
before the learned Labour Court, they were permitted to inspect the record.
Despite of granting such order, the petitioners never turned up to inspect the
record, therefore, he submitted that learned Labour Court has rightly considered
the matter that the petitioners failed to prove that they had worked for 240 days in
the preceding year and therefore, he supports the order.
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(8) Learned counsel for the petitioners vehemently submitted that
specific applications were filed and it was the department who had withheld the
record. He would further submit that once it was accepted that the petitioners
were in employment, deviation is not permissible for not to following provision of
Section 25-G of the Industrial Disputes Act.
(9) In support of his contention he relied upon the judgment of the
Hon'ble Apex Court in the case of Samishta Dube vs. City Board, Etawah and
another reported in (1993) 3 Supreme Court Cases 14, particularly to paras 7, 8,
9, 11 and would submit that law laid down by the Hon'ble Apex Court was not
followed. Therefore, learned Labour Court ought not to have answered the
reference in the negative. Paras 7, 8, 9 and 11 of the above cited judgment reads
as under :-
"7. We shall next deal with the point whether, in case
employees junior to the appellant were retained, the directions
issued by the Labour Court could be treated as valid. Section 6P
of the U.P. Act (which corresponds to Section 25G of the Central
Act of 1947) states that where any workman in an industrial
establishment is to be retrenched and he belongs to a particular
category of workmen in that establishment, - in the absence of
any agreement between the employer and the workmen in this
behalf - the employer shall ordinarily retrench the workmen who
was the last person to be employed in that category, unless for
reasons to be recorded, the employer retrenches any other
person. Now this provision is not controlled by conditions as to
length of service contained in Section 6-N (which corresponds to
Section 25-F of the Industrial Disputes Act, 1947). Section 6-P
does not require any particular period of continuous service as
required by Section 6-N. In Kamlesh Singh v. Presiding Officer
1986 Supp SCC 679 in a matter which arose under this very
Section 6-P of the U.P. Act, it was so held. Hence the High Court
was wrong in relying on the fact that the appellant had put in only
three and a half months of service and in denying relief. (See also
in this connection Central Bank of India v. S.Satyam (1996) 5 SSC
419 )
8. Nor was the High Court correct in stating that no rule of
seniority was applicable to daily-wagers. There is no such
restriction in Section 6-P of the U.P.Act read with Section 2(z) of
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the U.P. Act which defines ''workman''.
9. It is true that the rule of ''first come, last go'' in Section 6-P
could be deviated from by an employer because the section uses
the word ''ordinarily''. It is, therefore, permissible for the employer
to deviate from the rule in cases of lack of efficiency or loss of
confidence etc., as held in Swadesamitran Ltd. v. Workmen AIR
1960 SC 762. But the burden will then be on the employer to
justify the deviation. No such attempt has been made in the
present case. Hence, it is clear that there is clear violation of
Section 6-P of the U.P. Act.
10. .................
11. In the result, the High Court was wrong in setting aside the
orders of the Labour Court. We accordingly set aside the
judgment of the High Court and restore the order of the Labour
Court. The said order of the Labour Court will be complied with by
respondent within 15 days of the receipt of this order. As the re-
appointment was denied from the date of the award, namely,
28.1.1993, the appellant will be entitled to re-appointment and all
consequential benefits w.e.f. 28.1.1993 including back-wages
inasmuch as no attempt has been made by the respondent to
contend that the appellant was otherwise gainfully employed.
Appeal is allowed as stated above. There will be no order as to
costs."
(10) After going through the record, I find that there were applications
each Exh.U-5 filed on 11/08/2014 calling upon respondent No.1 to file payment
voucher, payment receipt from 01/01/2004 to 01/04/2007 and March, 2003 to
26/09/2006, muster roll of the said period, seniority list of 2004-2006 and one
G.R. dated 02/07/2003. On those applications petitioners were directed to first
state the beat in which they had worked from 01/01/2004 to 01/04/2007 and
March, 2003 to 26/09/2006 respectively, so that respondents would be directed to
produce those documents. The petitioners failed to state the beats in which they
had worked for the said period. Therefore, their request to produce the
documents was rejected and said order attained the finality, as the petitioners had
not challenged the same. However, an order was passed by the learned Labour
Court that the petitioners were having right to inspect the said document, but the
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petitioners neither visited the office, nor verified the documents and therefore, the
petitioners failed to bring on record, the material documents to prove that they
have continuously worked for more than 240 days in any preceding year of their
service, more particularly, in the preceding year of their termination.
(11) Learned Labour Court had observed that though the witness of
the respondents Shri Naresh Khandate (D.W.No.1) had admitted in cross-
examination that the petitioners were engaged and they were terminated on
01/04/2007 and on 26/09/2006, respectively, however, they denied that the
petitioners had worked for more than 240 days in all these years of 2003 to 2007.
But the burden to prove that they had worked in the department for more than 240
days in the preceding year cannot be shifted upon the respondent department
and the petitioners have to at least prove primarily, by placing on record some
documents which reflects that they had worked there, but they failed to produce
such document and therefore, learned Labour Court has rightly observed that the
petitioners have failed to prove their case.
(12) After going through the impugned orders and documents which
are placed on record, I find that the petitioners failed to prove that they had
worked with the department for more than 240 days in the preceding year and to
that effect, no record was produced by them before the learned Labour Court.
(13) The Hon'ble Apex Court in para 9 itself has observed that the rule
of "last come first go" in Section 6-P could be deviated from by an employer
because the section uses the word "ordinarily". It is therefore, permissible for the
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employer to deviate from the rule in case of lack of efficiency or loss of
confidence, etc.
(14) In these petitions, the petitioners failed to prove that they had
worked with the department for 240 days in the preceding year, therefore, learned
Labour Court has rightly considered the matter. Hence, I do not find any reason
to interfere in the orders passed by the learned Labour Court. Accordingly, the
writ petitions are dismissed. No order as to costs.
( SIDDHESHWAR S. THOMBRE, J. )
KOLHE
Signed by: Mr. Ravikant Kolhe PAGE 8 OF 8
Designation: PA To Honourable Judge
Date: 13/11/2025 18:19:55
