( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 7691 OF 2008 1. Ashok Mahadu Pawar, R/o Puntamba Taluka Rahta, Dist. Ahmednagar. 2. Arun Shivram Khandagale, R/o Puntamba, Taluka Rahta, Dist. Ahmednagar. 3. Tulsabai Bapu Jadhav, R/o Puntamba, Taluka Rahta, Dist. Ahmednagar. PETITIONERS VERSUS 1. Community Development Trust, Asha Kendra, Puntamba, Tq. Rahta, Dist. Ahmednagar. 2. Jeevanasha Charitable Trust, Puntamba, Taluka Rahta, District Ahmednagar 3. Bhausaheb Eknath Gaikwad (Petition is dismissed as against this respondent, as per Court’s order dt. 7-8-2009) 4. Sarva Shramik Sangh, Ahmednagar, “Shramik”, Tilak Road, Ahmednagar, through its General Secretary. RESPONDENTS ..... Mr. P.V. Barde, advocate for the petitioners. Mr. Ashok Patil and Mrs. Renuka Ghule, advocates for the respondent No.1. Mr. P.B. Shirsath, advocate for respondent No. 2. ..... ( 2 ) [CORAM : V.R. KINGAONKAR, J.] [DATE : 18th January, 2010] ORAL JUDGEMENT : 1. This petition is filed by original complainants (workers) being aggrieved by judgement and order dated 08-09-2008 rendered by the learned Member of Industrial Court, Jalna whereby revision application (ULP) No. 68/2004 filed by the employer was allowed whereas their revision application (ULP) No. 81/2004 filed through the Union of workers came to be rejected. As a sequel to such order, further order was rendered whereby the Complaint (ULP) No. 32/1988 came to be dismissed. 2. In short, the Complaint (ULP) No. 32/1988 was filed by the Labour Union styled as “Sarva Shramik Sangh” alleging that the employers who are Charitable Trust had committed unfair labour practices by terminating services of the petitioners. The petitioners were employed with the respondents. They asserted that they were members of the Labour Union and had completed 240 days working as workmen. They contended that they ( 3 ) could not have been terminated without grant of retrenchment compensation in their favour. They submitted that the retrenchment was bad in law in as much as it was against provisions of section 25-F and section 25-H of the Industrial Disputes Act, 1947 (for short, “the ID Act”). According to them, the Management had subsequently employed some other workers and, therefore, though work was available, yet, they were deprived of the employment. Consequently, they sought reinstatement in service. The Management denied all the material averments including locus standi of the Labour Union to file the complaint. It was denied that the petitioners had completed 240 days continuous service. It was denied that they were the workmen and were retrenched without following due procedure under section 25-F and section 25-H of the ID Act. 3. The learned Judge of the Labour Court came to the conclusion that the petitioners had not completed 240 days continuous service on establishment of the respondents. The learned Judge of the Labour Court further held that the complaint was maintainable in as ( 4 ) much as the petitioners were members of the Labour Union and, therefore, the complaint could be filed under section 28 of the ID Act. The Labour Court reached conclusion that though the petitioners were not deemed permanent workers, yet, they could not have been terminated without payment of due compensation and, therefore, the termination was held bad in law in view of section 25-F of the ID Act. The Labour Court, however, declined to grant any backwages to them. Thus, the complaint application was partly allowed. The petitioners challenged part of the order of the Labour Court by filing revision (ULP) No. 81/2004 in respect of denial of the backwages to them whereas the respondents (employer) preferred revision (ULP) No. 68/2004, being aggrieved by the order of reinstatement of the petitioners. Both the revision applications were heard together. By the impugned order, the revision application preferred by the respondents came to be allowed whereas that of the petitioners was dismissed. 4. Heard learned counsel. ( 5 ) 5. At the outset, it is pertinent to notice that both the Courts concurrently held that the petitioners had not completed 240 days continuous service on establishment of the respondents. Obviously, they could not be termed as deemed permanent workers. The only material issue was whether they had been retrenched illegally and thereby the respondents had committed breach of section 25-F and section 25-H of the ID Act. The finding of the Labour Court that the complaint could be filed through the Union of workers is also upsetted by the Industrial Court for the reason that there was no tangible evidence to show that the petitioners were members of the registered Trade Union. The learned Judge of the Labour Court also came to the conclusion that the complaint was not maintainable in view of the fact that the petitioners failed to prove existence of the Trade Union and no documentary evidence was produced in respect of its registration. Faced with this difficulty, Mr. Barde would submit that such a finding was improper in view of the earlier decision of the Industrial Court in complaint (ULP) No. 241/1987. In the earlier case, the Trade Union represented nine (9) workers including ( 6 ) the petitioners. However, only four (4) of them were granted relief. The Industrial Court had noticed, in the earlier complaint case, that the present petitioners had not completed 240 days continuous service and could not have claimed benefit of permanency. The Industrial Court had, however, held that the petitioners were employed as casual workers, but were not made permanent for years together. 6. Be that may as it is, assuming that the Trade Union is having locus standi to ventilate the grievances of the petitioners and the findings of the Industrial Court, in this context, are incorrect and improper, yet, the basic question is whether the petitioners had been retrenched without following due procedure under section 25-F or Section 25-H of the ID Act. The petitioners were not paid any retrenchment compensation is an admitted fact. However, it has come on record that the petitioners did not produce any documentary evidence to show that subsequently, two workmen were employed without following the seniority list. The petitioners did not bring on surface of the record as to how they ( 7 ) were superseded by appointing two workmen. The seniority list of casual workers was not placed on record. For the purpose of illegal retrenchment, it ought to be proved that the workmen had been purposefully marched over by the juniors and the rule of “last come first go” was not followed. The Rules envisaged under the ID Act will not be applicable in case of termination of a workman from a particular category when some other appointments are in respect of different categories. The law does not contemplate application of the provisions of the relevant sections 25-F and 25-H where the recruitment and termination is of uncertain nature and when the workmen are not required to be recruited in a category-wise service i.e. skilled, semi-skilled or unskilled, etc. The petitioners were not appointed in accordance with the recruitment rules nor they were holding any particular post in a particular category. 7. In “Jaipur Development Authority v. Ram Sahai and another” (2007 I CLR 221), the Apex Court held as follows : ( 8 ) “It is one thing to say that the workman is retrenched from his services, but, a daily wager who keeps on coming and going and even has not taken or been given any work on any day on each month, it was not necessary, as had been opined by the Labour Court, to initiate a departmental proceedings against him for his absence from duty. It would have been proper in the aforementioned circumstances for the Labour Court to delve deep into the said question as to whether Appellant deliberately and intentionally did not allow him to join in his duties or Respondent himself did not continue to work since 1.7.1987.” “We would, therefore, proceed on the basis that there had been a violation of Sections 25-G and 25-H of the Act, but, the same by itself, in our opinion, would not mean that the Labour Court should have passed an Award of re-instatement with entire back wages. This Court time and again has held that the jurisdiction under Section 11-A must be exercised judiciously. The workman must be employed by a State within the meaning of Article 12 of the Constitution of India, ( 9 ) having regard to the doctrine of public employment. It is also required to recruit employees in terms of the provisions of the rules for recruitment framed by it. Respondent had not regularly served Appellant. The job was not of perennial nature. There was nothing to show that he, when his services were terminated any person who was junior to him in the same category, had been retained. His services were dispensed with as early as in 1987. It would not be proper to direct his reinstatement with back wages.” 8. The law laid down by the Apex Court would make it amply clear that the petitioners are not entitled to seek any protection. So, there appears no case made out by them for any relief in the present petition. Hence, the petition is dismissed. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/wp7691-08