ssp 1 LPA 296 of 2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.296 OF 2009 IN WRIT PETITION NO.528 OF 2002 WITH CIVIL APPLICATION NO.334 OF 2009 IN LETTERS PATENT APPEAL NO.296 OF 2009 IN WRIT PETITION NO.528 OF 2002 The State of Maharashtra through the Conservator of Forest and Anr. .....Appellants versus Shantaram Narayan Burse ..... Respondent WITH LETTERS PATENT APPEAL NO.158 OF 2007 IN WRIT PETITION NO.5677 OF 2001 The State of Maharashtra through the Conservator of Forest and Anr. .....Appellants versus Navnath Maruti Chavan ..... Respondent LETTERS PATENT APPEAL NO.297 OF 2009 IN WRIT PETITION NO.5673 OF 2001 WITH CIVIL APPLICATION NO.335 OF 2009 IN LETTERS PATENT APPEAL NO.297 OF 2009 IN WRIT PETITION NO.5673 OF 2001 The State of Maharashtra ssp 2 LPA 296 of 2009 through the Conservator of Forest and Anr. .....Appellants versus Dattu Damu Wadhane ..... Respondent Mr.N.P.Deshpande, AGP, for the appellants. Mr.U.B.Nighot, for the respondent in LPA No.158 of 2007 CORAM: P.B.MAJMUDAR & A.A.SAYED, JJ. DATE: 07th APRIL, 2011 ORAL JUDGMENT ( PER P.B.MAJMUDAR, J. ) : - 1. Admit. With the consent of both the sides, the above appeals are taken up for final disposal. 2. The above appeals are directed against the orders of the learned Single Judge dated 17-10-2005 passed in the three writ petitions. By the impugned orders, the learned Single Judge allowed the writ petitions filed by the present respondents, by holding that the present appellants have committed unfair labour practice under Items 6 and 9 of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. 3. The learned Single Judge while setting aside the order of the Industrial Court, granted benefit of permanency to the concerned workmen with effect from the date of filing of the respective complaint by them. It is required to be noted that the learned Single Judge passed the ssp 3 LPA 296 of 2009 impugned orders as back as in the year 2005 and the aforesaid appeals are filed in the year 2009, though of course, delay was condoned. The fact remains that appellants failed to comply with the directions given by the learned Single Judge in the judgment which was given in October 2005. Apart from the said fact, it is not in dispute that the concerned workmen in each of the appeal was appointed in the year 1996. Now till today, they have been continued only on temporary basis and by this time, more than 15 years have been passed. The learned Single Judge has relied upon a decision of a learned Single Judge of this Court by observing thus : - 6. In the case of Chimna Arjun Jadhav (Supra), the learned Single Judge of this Court, after considering Kondhare’s case (Supra) and a similar contention raised by the respondents that the work of the office of Comptroller of Accounts was not perennial in nature has observed thus : The fact that the respondents complainants have been continued for over 15/20 years by the petitioner corporation itself presupposes that the schemes are perennial and introduced on permanent basis. The Apex Court in the said decision has also observed that the environment pollution care work, whose need is on increase because of increase in pollution, permanency is thus writ large on the face of such types of work. It is relevant to note that it was seriously argued on behalf of the State Government before the Apex Court that the financial implications of absorbing all the workmen would be to the extent of Rs.300 crores, but the said argument did not find favour with the Court, as it evidence from the observations made in para 29 thereof. Instead the Apex Court observed that the argument relating to financial burden is one of the despair or in terrorem and that the court was neither ssp 4 LPA 296 of 2009 impressed by the first nor frightened by the second. The Court further clarified that the benefit of the said decision shall be extended to all the casual labourers of forest department or any other department of the Government. After this Judgment of the Apex Court, it is too late in the day for the petitioner corporation to contend that the respondents complainants are not entitled for the reliefs of regularisation and permanency even though they have continuously worked for more than 240 days in a year for the last 15/20 years. The inescapable conclusion is that the provisions of the Act of 1971 cannot be frustrated by taking pendantic approach suggested by the petitioner. 4. On the last occasion, at the request of the learned AGP, the matters were adjourned in order to enable him to take appropriate instruction as to whether there are any clear vacancy in order to absorb the concerned workmen. However, he has not received any instruction in this behalf. Though, it is pointed out that in view of the Government Resolution dated 31-01-1996, a person who has worked continuously for a period of five years and has served 240 days in each year, can be absorbed permanently. 5. In so far as respondent in LPA 296 of 2009 is concerned, the Industrial Court has found that the said respondent has continuously worked from 1996 to 1999 for more than 240 days. He has thereafter all throughout in the service. In so far as respondent in LPA No.158 of 2007 is concerned, the Industrial Court found that the said workman has ssp 5 LPA 296 of 2009 completed 240 days from 1996 to 1998 and thereafter, he has continued in service all throughout. In so far as respondent in LPA No.297 of 2009 is concerned, it was found that he has completed 240 days from 1996 to 1997 at the time when the complaint was filed. 6. In this connection, learned counsel for the respondent contended that in view of the Government Resolution dated 31-01-1996, on the basis of 240 days continuous service, at least on completion of five years, benefit of permanency should be given. Learned AGP states that such benefits are given to the workmen who have completed 240 days service in five consecutive years. Learned AGP is unable to point out as to whether from 1996 onwards the concerned workmen have completed consecutive five years. It is not in dispute that the concerned workmen are in service since long and from 1996, they have continuously worked in the department. Considering the fact that order of the learned Single Judge is passed in the year 2005, which is challenged after a considerable time, we deem it fit to modify the order of the learned Single Judge to the extent that permanency benefit should be given to the concerned workmen after completion of five years from 1996 with effect from 2001 and not from the date of filing complaint. The appeals are partly allowed to the aforesaid extent. The completion of five years period of each of the workman may be calculated by the Department commencing from 1996 ssp 6 LPA 296 of 2009 and after calculating the period of five years, the workmen may be given benefit of permanency from 2001. 7. Considering the aforesaid aspect, we would not like to interfere with the order of the learned Single Judge so far as the benefit of permanency is given to the concerned workmen, as the order of the learned Single Judge is challenged after considerable period by way of the above appeals, however, in view of the Government Resolution dated 31-01-1996, we modify the order of the learned Single Judge to the aforesaid extent by giving permanency benefit from 2001. 8. In view of the disposal of the appeals, the above civil applications are accordingly disposed of. ( A.A.SAYED, J. ) ( P.B.MAJMUDAR, J. )