1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4885 OF 1996 Manik s/o Ramchandra Waghmode age 44 years, occupation Nil r/of Latur. Petitioner versus 1. The State of Maharashtra, 2. Civil Surgeon, Civil Hospital, Latur. Respondents ------- Shri C.R.Deshpande, Advocate, for the petitioner. Shri D.V.Tele, A.G.P. Pleader for the Respondent. Coram: P.R. Borkar, J. Reserved on : 25.08.2009. Pronounced on : 28.08.2009. ORAL JUDGMENT. 01. In this writ petition, the order of dismissal passed by the learned Judge, Labour Court, Latur in complaint (ULP) No.39 of 1987 decided on 23.2.1993 as confirmed in Revision (ULP) No. 33 of 1993 by the learned Member, Industrial Court, Solapur, by his judgment and order dated 8.4.1996, is challenged. 02. Briefly stated, the present petitioner had filed complaint under Section 28 of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 ("MRTU & PULP Act" for the sake of brevity.) 2 alleging that the Respondent appointed him as ward boy on 2.8.1985 for the period of 29 days and thereafter as many as 13 orders of appointment each for 29 days were issued with technical breaks. Though the petitioner was working, he was not paid for the break periods. Thus, between 2.8.1985 to 17.3.1987, by 14 appointment orders of 29 days each, the petitioner worked on various posts and thereafter he was not given any fresh appointment and thus his services were terminated illegally. He has put in the work of more than 240 days prior to termination which was with effect from 17.3.1987. There was no compliance of Section 25-F of the Industrial Disputes Act, 1947 ("ID Act" for short) and, therefore, there was indulgence into unfair labour practice by the respondent and hence complaint was filed seeking relief of reinstatement with continuity of service and back wages. 03. The respondents filed written statement at Exhibit C-19 and stated that all the appointments were made on leave vacancies on temporary basis. The provisions of MRTU & PULP are not applicable. According to Respondents, there was no termination of service, but period of appointment came to an end and, therefore, there was no retrenchment. The appointments, according to Respondents, were on adhoc and temporary basis and so the complaint deserves to be dismissed. 3 04. Both the trial court and the first appellate court have come to the conclusion that the Respondents had not indulged into unfair labour practice;there was no retrenchment as contemplated by law and the petitioner is not entitled to the reliefs claimed. It is this order which is challenged before this court. 05. Heard Adv.Shri C.R.Deshpande for the petitioner and Shri D.V.Tele, A.G.P. for the Respondents. Advocate Shri C.R.Deshpande pointed out the appointment letters, as per following details and which are produced before the Labour Court with list Exhibit U-6. -------------------------------------------------- Date of the Period of the Post appointment appointment held -------------------------------------------------- 01.08.1985 29 days from 02.08.85 Ward Servant 03.09.1985 29 days from 04.09.85 Kamathi 14.10.1985 29 days from 04.10.85 Kamathi 06.11.1985 29 days from 04.11.85 Kamathi 18.12.1985 29 days from 03.12.85 Ward Servant 08.01.1986 29 days from 03.01.86 Ward Servant 04.04.1986 29 days from 02.04.86 Watchman 30.04.1986 29 days from 03.05.86 Ward Servant 27.06.1986 29 days from 01.02.86 Ward Servant 06.08.1986 29 days from 01.08.86 W/S 12.09.1986 29 days from 12.09.86 Lab Assistant 15.10.1986 29 days from 16.10.86 Lab Assistant -- -- 1998 29 days from 16.12.86 X-ray Attendant 4 06. Learned A.G.P. Shri D.V.Tele, pointed out to me paragraphs 1, 3 and 5 of the appointment letters which are identical in nature in all the appointment letters. Paragraphs 1,3 and 5 read: "1. His appointment is on purely temporary basis for a period of (29) days only or liable for termination at any time without any notice which ever is earlier. 3. No further continuation beyond (29) days can be consideration. 5. He will have to give undertaking in the following form to the Officer-in- charge of the institution. "I understand that my appointment as (.........) is purely temporary for (29) days and that my be dismissed with any time without notice and without any assigning any reason and I accept the appointment on this basis." It may be noted that the post for which appointment was given is mentioned in blank space of paragraph 5 quoted above. It is not disputed that undertaking in terms of said paragraph 5 was 5 furnished by the petitioner at the time of joining the post as per the appointment letter. 07. Learned Advocate for the petitioner Shri C.R.Deshpande argued that the petitioner being a needy person he had to give undertaking asked from him and, therefore, asking for such undertaking itself was victimization. He also submitted that the details in the appointment letters clearly indicate that there was continuous service within the meaning of Section 25-B of the I.D.Act and, therefore, the procedure as per section 25-F of the said Act ought to have been followed and notice with compensation ought to have been given to him as required by Section 25-F of the I.D. Act. Section 25-F Reads:- "25-F. Condition precedent to retrenchment of workmen.- No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until- (a). the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice. 6 (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay [for every completed year of continuous service] or any part thereof in excess of six months; and (c) notice in the prescribed manner is served on the appropriate Government [or such authority as may be specified by the appropriate Government by notification in the Official Gazette]." 08. It may be noted that Section 25-F of the I.D.Act applies only in case of retrenchment and retrenchment is defined in Section 2(oo) of the said Act which reads as follows; "2.Definitions.- In this Act, unless there is anything repugnant in the subject or context- (a) to (o) xxxxxxxxxxxxxxxxxxxxxxxxxxxxx (oo) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but does not include- 7 (a) voluntary retirement of the workman; or (b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein;or (c) termination of the service of a workman on the ground of continued ill- health. Clause (bb) of sub-section (00)of Section 2 clearly indicates that termination of service as a result of non-renewal of the contract between employer and workman concerned on its expiry, is not a "retrenchment".It is not the case of present petitioner that his services were terminated before completion of 29th day at any time and, therefore, non-renewal of contract, or not giving fresh appointment would not amount to retrenchment within the meaning of Section 2(oo) of the ID Act. 8 09. In the case of Secretary, State of Karnataka v. Umadevi (2006) 4 SCC 1, it is laid down that as per the scheme provided under the Constitution and laws made thereunder, adherence to the rule of equality in public employment is the basic feature of the Constitution and since the rule of law is the core of the Constitution, recruitment to services in the Union Government and State Governments and their instrumentalities is governed by Acts, Rules and Regulations made in that behalf. Equality of opportunity is a hallmark and under the circumstances any employment which is not according to the rules cannot be protected. The Apex Court has also considered in paragraphs 46 and 47 of the judgment that temporary, contractual, casual, daily wager or adhoc appointees dehors of the scheme of public employment have no right to be absorbed as regular appointees or granted permanency or continuance in public employment. There is no question of legitimate expectations. Long continuance of such employees in public employment cannot give them right of regularly recruited employees. The Supreme Court has held that such casual, temporary, contractual, daily wage workers or adhoc employees cannot get right of regularization or permanency. 9 10. Learned Advocate for the Petitioner drew my attention to the identity card issued by the Social Welfare Officer, Class I, Latur, which is produced with list Exhibit U-20 before trial court. He also pointed out to me the call letters produced on record which are at pages 89 and 91 of the record and proceedings received. By the first letter, the petitioner was called upon to appear for interviews for the post in Class IV category, including Ward boy/sweeper. He was called upon to appear on 25.11.1984 by Civil Surgeon, Latur. Other call letter is issued by the office of Medical Superintendent, Rural Hospital, Chakur, for interview for the post in Class IV category at Rural Hospital, Chakur, on 15.9.1985. But, there is nothing on record to show that in consequence of the interviews, the petitioner was actually selected and was enlisted in the select list. At page 77 of the record, one letter dated 2.5.1992 is produced with Exhibit U-18. This is also a call letter to appear for interview on 25.5.1992. This is subsequent to the alleged termination on 17.3.1987 regarding which complaint was filed. Although there are three call letters, there is nothing to show that the petitioner had appeared for interviews and was duly selected pursuant thereto. Moreover, the appointment letters which are referred to above clearly show that all the appointments of the petitioner were adhoc, 10 temporary and for a specific period of 29 days and as such, those letters do not give right of permanency or regularization in the light of observations by the Hon'ble Apex Court in Umadevi's case (supra). 11. It is also submitted by Shri C.R.Deshpande, learned Advocate for the petitioner that though ten appointments were on leave vacancies as substitute, the appointment letter dated 12.9.1986 for a post of Lab Attendant, the appointment letter dated 15.10.1986 for Lab Attendant and appointment letter for the period 16.12.1986 to 14.1.1987 for X-ray Attendant were in respect of newly created post. However, it may be noted that all these appointments were only for 29 days and purely on temporary and adhoc basis. There is nothing on record to show that the petitioner was, in fact, interviewed for the post of Lab Attendant or X-ray Attendant and was duly selected. 12. Learned A.G.P. Shri D.V. Tele for the Respondents pointed out that as stated in the written statement, the Respondent-Civil Surgeon was not authorised to appoint anybody permanently. He was authorised only to appoint persons on leave vacancies or temporary vacancies as per the circular issued. 11 13. In view of the circumstances stated above and considering the law settled by the Constitution Bench in the case of Umadevi (supra), in my considered opinion, the neither the Labour Court nor the Industrial Court committed any error in rejecting the complaint under MRTU & PULP Act and revision respectively. The petitioner is, therefore, not entitled to reliefs as claimed by him. 14. Under the circumstances, the petition being devoid of any merits deserves to be dismissed and the same is accordingly dismissed. Parties to bear their own costs. pnd/ wp4885.96 (P.R.BORKAR, J.)