1 Writ Petition No. 149 of 1992 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 149 OF 1992 1. The State of Maharashtra 2. The Sub- Divisional Forest Officer, Beed. ...Petitioners Versus 1. Rama Rangnath Tambe, C/o Trade Union Centre, Beed. 2. The Presiding Officer, Labour Court, Aurangabad. ...Respondents ..... Mrs. V.A. Shinde, A.G.P. for petitioners. Mr. Pradeep Shahane, Advocate for respondent No. 1 ..... CORAM: S. S. SHINDE, J. DATED: 30th NOVEMBER, 2010 JUDGMENT:- 1 This Writ Petition is filed, challenging the validity and legality of the Award passed in Reference (IDA) No. 25 of 1986 dated 20th November, 1990. The brief facts of the case are as under :- 2 Writ Petition No. 149 of 1992 2 The respondent No. 1 herein filed Reference (IDA) No. 25 of 1986 before the Labour Court, praying therein to reinstatement, back- wages and for continuation of service in the employment of petitioner as a watchman. It is the case of respondent No. 1 that he was appointed as a watchman at Rajuri to look after plantation of the trees and to protect said plants. He was appointed on 11th August, 1980 and he was removed from service on 1st May, 1983. It is the contention of the respondent No. 1 that when he was removed from service he was getting Rs. 150/- monthly salary. It is further contended that while removing the respondent No. 1 from the employment of the petitioners, no one month notice or compensation in lieu of notice was given, and therefore, the said action of the petitioners to remove the respondent No. 1 from the service without giving one month notice, or compensation in lieu of one months notice is illegal and incorrect. It is further case of the respondent No. 1 that when he was removed from the service no charge-sheet was issued, no departmental enquiry officer was appointed, no departmental enquiry was conducted, and by violating principles of natural justice, out of malafide intentions by adopting illegal meanse and unlawfully he was removed from service by the petitioner No. 2. Therefore, it was prayed in the said Reference that the removal of the respondent No. 1 from the services of the petitioner is illegal, and therefore, petitioners should be reinstated in the service, and his service should be treated as continuous and he should be 3 Writ Petition No. 149 of 1992 given back-wages for the period for which he was removed from the services. It was also prayed that it should be declared that the respondent No. 1 is in continuous service of the petitioner and accordingly all benefits should be extended to the respondent No. 1. The costs towards filing the Reference may be awarded to the complainant. It was also prayed that the complainant reserves his right to add, amend, the pleadings or delete the pleadings, if it is necessary . 3 The petitioners filed affidavit in reply before the Labour court through its Officer namely Madhukar Bhanudas Doke, working as Deputy Conservator of forests, Beed on 27th August, 1987. It was specifically stated in the said reply that the respondent No. 1 was offered work from 11th August, 1980, on daily wages for protecting the plants at plantation centre, at Tamba-Rajuri. It is further stated that since work at said place had been over, the services of respondent No. 1 were not required. It is further stated that under the control of Deputy Conservator of Forests, at other places work was going on and the petitioners never refused work to the respondent No. 1. The respondent No. 1 was asked by the petitioners by letter bearing outward No. 12/Estt./1229, dated 4th August, 1984 to join the work at other places. However, the respondent No. 1 never made any attempts to join the work at Pangari & Maje. It is further stated that since the respondent No. 1 was offered work at other places, there 4 Writ Petition No. 149 of 1992 was no question of either paying back-wages or any other reliefs to the respondent No. 1, since respondent No. 1 himself has declined to join at other places i.e. Pangari and Mauje. It is specifically stated in the written statement that the respondent No. 1 was not appointed on regular establishment. He was offered work purely on daily-wages. Since the project/work which was undertaken, in which the respondent No. 1 was working came to an end, the respondent No. 1’s services were no more required. However, taking sympathetic view, the petitioners offered work to the respondent No. 1 at other places. However, respondent No. 1 did not turn-up at Village Pangri or Maje to work. It is further stated that since the respondent No. 1 was appointed on daily-wages, there was no question of issuing notice, charge-sheet, or conducting departmental enquiry. The respondent No. 1 was offered work on daily wages and he was paid Rs. 5/- per day. It is further stated that the said work was under Employment Guarantee Scheme, under the said scheme the projects undertaken was for limited period and limited funds were given by the Government. It was further stated that there was no any malafide intention on the part of the petitioners to deprive the respondent No. 1 from the work. However, since the respondent No. 1 was appointed purely on daily-wages, the relief claimed by him in the statement of claim cannot be given to him. Therefore, it was prayed that the said Reference may be rejected. 5 Writ Petition No. 149 of 1992 4 The Presiding Officer, Labour Court, on the basis of averments in the statement of claim prayers therein and reply filed by the petitioners herein passed the final Award on 21st November, 1990. The Labour Court, framed two issues for its determination which are as follows :- “1] Whether the order of termination is legal and proper? 2] Whether the second party is entitled to reinstatement, continuity of service and back wages?” These are only issues framed by the Labour Court and issue No. 1 was answered in negative and issue No. 2 was answered in affirmative. It is further appears that the Labour Court allowed the second party i.e. complainant Rama Rangnath Tambe to examine himself. However, it is further observed by that the Labour Court that on the date of hearing the petitioners herein remained absent. Therefore, evidence of second party goes un-challenged. The Presiding Officer, Labour Court, by cryptic observations allowed the Reference filed by the respondent No. 1 and directed the petitioners to reinstate the second party in service with continuity and back-wages with effect from 1st May, 1983. The copy of award directed to be sent to Dy. Commissioner of Labour, Aurangabad for publication. Being aggrieved by the Award passed by the Labour Court, this Writ Petition is filed by the petitioners herein. 6 Writ Petition No. 149 of 1992 This Writ Petition was heard for admission before this Court and it appears that by order dated 4th March, 1997, the petitioners were directed to deposit the amount of Rs. 23,593/- in this Court, and accordingly, the said amount was kept in fixed deposits. It further appears that by order dated 19th November, 1999, the respondent No. 1 was allowed to withdraw Rs. 10,000/-. It is not in dispute that, in the year 1992, the respondent No. 1 was again taken in the employment of the petitioners and he is working on daily wages, since then till this matter is taken for final hearing. 5 The learned A.G.P. appearing for the State submitted that the Labour Court has framed only two issues and had not framed the other necessary issues for its adjudication. It is further submitted that relying on the statement of the respondent No. 1, that he was worked for 362 to 365 days in each year, the Presiding Officer, Labour Court concluded that respondent No. 1 is entitled for continuity in the service, back-wages and also for reinstatement. It is further argued that no opportunity to cross-examine the respondent No. 1 was given to the petitioners and merely relying on the testimony of respondent No. 1, the Labour Court allowed the Reference. It is further submitted that the respondent No. 1 was not appointed on any vacant regular post. He was appointed as Mazdoor, and his appointment was not made after following the due procedure. Hence, he cannot claim 7 Writ Petition No. 149 of 1992 reinstatement and continuity in the service. He was taken as Mazdoor under the scheme, whenever the work is available. It is further submitted that the provisions of Section 25-f of the Industrial Dispute Act are not attracted, and therefore, there was no question of compliance of provisions of said sections. The learned A.G.P. invited my attention to the reported Judgment in the case of “Anil Bapurao Kanse V/s. Krishna Sahakari Sakhar Karkhana Ltd., and another, reported in AIR 1997 S.C. 2698” and submitted that, the Apex Court has taken a view in the said matter that the termination of persons on seasonal basis cannot be termed as a retrenchment within the meaning of Section 2(oo), and they are not entitled for continuity of services. The learned A.G.P. further placed reliance on reported Judgment of this Court in the case of “The Divisional Controller, M.S.R.T.C., Osmanabad V/s. Maruti Bapurao Lokhande, reported in 2009(5) ALL MR 242” and submitted that in the said case this Court held principles enunciated in cases of “Secretary, State of Karnataka V/s. Umadevi (3), (2006), 4 SCC 1 and Mahboob Deepak V/s. Nagar Panchayat, Gajrula, (2008) 1 SCC 575” could be utilised as guiding principles in respect of matters wherein orders of reinstatement or permanency are sought in view of the claim that the complainant had worked for more than 240 days in a year with a public body or corporation or instrumentality. The learned A.G.P. further placed reliance on the reported Judgment of this Court in a case “ Pune Municipal Corporation and others V/s. Dhannanjay 8 Writ Petition No. 149 of 1992 Prabhakar Gokhale, reported in 2000(4) Mh.L.J. 66” and submitted that merely because an employee continued to render service for 240 days in a year, that by itself will not be sufficient for him to claim permanency in the post, unless he is able to establish that such a permanent post duly approved by the competent authority is vacant and the claimant is duly eligible for being appointed in such post. The learned A.G.P. further placed reliance on the reported Judgment of the Hon’ble Supreme Court in a case “Surendra Prasad Tewari V/s. U.P. Rajya Krishi Utpadan Mandi Parishad & others, reported in 2007(1) ALL MR 461” and submitted that the persons employed on contractual basis though worked for years together, are not entitled to any right to be absorbed or made permanent in service. Relying on various Judgments and also on the basis of grounds taken in the petition, the learned A.G.P. would submit that this Writ Petition deserves to be allowed. 6 On the other hand, the learned Counsel appearing for the respondent No. 1 submitted that the Labour Court, after taking into consideration the statement of claim and also evidence brought on record by the respondent No. 1, framed the necessary issues and held that the respondent No. 1 is entitled for the reinstatement with continuity and back-wages. Therefore, no interference is warranted in writ jurisdiction. Therefore, learned Counsel would submit that this Writ Petition deserves to be allowed. 9 Writ Petition No. 149 of 1992 7 I have given due consideration to the rival submissions, carefully perused pleading in the petition and annexures thereto, statement of claim and also reply filed by the petitioners before the Labour Court and findings recorded by the Labour Court, and I am of the considered opinion that the impugned Judgment and Award of the Labour Court, not only suffers from non application of mind but does not taking into consideration the various pronouncements of Hon’ble Supreme Court and also of this Court. On perusal of the Impugned Judgment and Award, it clearly appears that no opportunity of hearing was given by the Labour Court to the petitioners herein. The Labour Court has only observed that the petitioners herein are absent on the date of hearing, and therefore, the evidence of the second party goes unchallenged. In fact, Judgment does not refer on which date the matter was fixed for cross- examination of the respondent No. 1, The Judgment also does not refer to any particulars on which the matter was fixed for recording the evidence of the petitioners herein. Therefore, on careful perusal of the impugned Judgment, it clearly emerges that the Labour Court was in haste and without affording proper opportunity to the petitioners proceeded to dispose of the Reference hurriedly, and by cryptic reasons concluded that the respondent No. 1 herein is entitled for reinstatement, continuity and back-wages, such order is impressible. 10 Writ Petition No. 149 of 1992 8 At this juncture, it would be relevant to reproduce the entire findings / reasons recorded by the Labour Court in para No. 6 of its impugned Judgment. “ On perusal of the statement of working days of the IInd party as produced in the Reference papers by the Ist party, it is clear that, the IInd party had worked for more than 240 days in presceding year of his termination and therefore, he is protected u/s 25-F of the I.D. Act. Admittedly, no notice of termination of one month was issued to the IInd party, nor was paid the notice pay and retrenchment compensation and therefore, his in violation of the mandatory provisions of Sect. 25-F, of the I.D. Act. I therefore find that, the termination is illegal and improper. I therefore answer the issue No. 1 in the negative. In view of my finding to issue No. 1, I find that, the Iind Party is entitled for reinstatement in service with continuity and back wages. I therefore answere the issue No. 2 accordingly and hence, the following order :-” 9 In my considered opinion, the Labour Court utterly failed in its duties to advert to the contentions in the written statement filed by the petitioners. There is no reference to the written statement of the petitioners in the Judgment. It is not in dispute that the written statement was filed by the petitioners herein. Even it is assumed for a moment that the petitioners remained absent on the date scheduled for the hearing, even then the Labour Court was bound to refer to the 11 Writ Petition No. 149 of 1992 written statement filed on behalf of the petitioners. The Presiding Officer, Labour Court, has not discussed how the provisions of Section 25-F of the Industrial Dispute Act are applicable in the present case. It is admitted position that the petitioners is a Government Department. Secondly, the Labour court has not taken into consideration that the respondent No. 1 was appointed purely on temporary basis under Employment Guarantee Scheme, for a particular period on daily wages. The Labour Court has also not taken into consideration that though the work was offered to the respondent No. 1 at other places, the respondent No. 1 did not join the said work, and therefore, the petitioners cannot be held responsible for refusal of work by the respondent No. 1. There is no discussion how the respondent No. 1 has completed 240 days in a calender year. There is no discussion how the Labour Court arrived at conclusion that the respondent No. 1 has completed 240 days service. In my considered opinion that, the impugned Judgment and Award deserves to be set aside. It is not necessary to burden this Judgment by referring pronouncements of this Court, as well as Hon’ble Supreme Court on the point involved in this matter that the daily wager has no any right to claim either continuity, reinstatement or back-wages. Since the respondent No. 1 was offered work on daily-wages, there was no question of giving any notice, notice or in lieu of notice one months pay as held by the Labour Court. Therefore, in my opinion, the impugned Judgment and order deserves to be set aside. However, in order to balance equities and 12 Writ Petition No. 149 of 1992 keeping in mind the age of the respondent No. 1, and if he is thrown out of service, his family may be ultimate sufferer. Therefore, it would be in the interest of justice that the respondent No. 1 should be continued on daily wages till the age of his superannuation. It will be also in the interest of justice that, whatever amount is paid to the respondent No.1 during the pendency of this Writ Petition or whatever benefits he is already given should not be recovered from him. It is not in dispute that the respondent No. 1 has worked from 11th August, 1980 till 1st May, 1983,and thereafter from 1992 till today on daily wages. Therefore, in order to balance equities and in the interest of justice, I feel it appropriate that the respondent No. 1 should be continued on daily wages till he attains age of superannuation, and further no any recovery should be effected from him. Therefore, this Writ petition is partly allowed. The impugned Judgment and Order passed by the Presiding Officer, Labour Court, Aurangabad is set aside, However, since respondent No. 1 is taken back in service on daily wages from 1992 and he is working till today, he should be continued on daily wages till he attains age of superannuation. So far the direction of the Labour Court to consider the services of respondent No. 1 herein with continuity and back wages are set aside. The amount which is laying in the fixed deposits should be returned to the petitioner No. 1. Rule is made absolute in above terms and the Writ Petition stands disposed of. 13 Writ Petition No. 149 of 1992 In view of the disposal of the Writ Petition, the Civil Application if any is disposed of accordingly. ( S. S. SHINDE. J.) SDM* /WP/0112010