1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5769 OF 2009 Mr. Mohan Ragho Shigwan .. Petitioner Vs R.A. Podar Medical College and others .. Respondents Venkata Krisha i/b M/s. Kunduru & Kunduru for the petitioner Ms. S.S. Bhend for respondent nos, 1, 2 and 4 CORAM : Smt. V.K. TAHILRAMANI, J. DATE : 31st August, 2009 P.C.: 1. Heard learned counsel for the petitioner original complainant and the learned counsel for respondent nos. 1, 2 and 4. 2. Being aggrieved by the order dated 1st August, 2008 passed by the Labour Court at Mumbai in Reference (IDA) No. 663 of 2003 whereby reference came to be rejected, this petition has been preferred. RMA wp5769-09.sxw 2 3. The case of the petitioner is that from 12th February, 1998 to March 2001, he was appointed as "badli workman" from time to time in the institution run by respondent no. 1. Every time, he was appointed, an order of appointment was issued and every time, the appointment of 29 days was given, hence during the period of two years, he had completed continuous service of 240 days in the previous 12 months. It is further case of the petitioner that he came to be terminated on 13th March,2001. Being aggrieved thereby, he raised a dispute pursuant to which reference (IDA) No. 663 of 2003 came to be made to the Labour Court at Mumbai. 4. The case of the respondent institution is that the petitioner was appointed on leave vacancy as a badli worker. The government has issued Government Resolutions issued dated 1st March, 2000 and 29th March, 2000 stating therein that badli workers should not be appointed. Thus, there is a ban on appointment of badli workers and hence, pursuant to these government resolutions, the petitioner was not reappointed. RMA wp5769-09.sxw 3 5. The learned counsel for the petitioner submitted that each time, the appointment of the petitioner was made for a temporary period and thereafter after giving break, he was again reappointed. The learned counsel for the petitioner submitted that the period for which the petitioner has worked in two years, it is seen that in the preceding 12 months, he had worked for 240 days, hence the petitioner ought to have been made permanent. 6. In the statement of claim, the petitioner has provided 21 instances when he was appointed as a badli worker within a period of two years. The letters of appointment are on record from exhibit U-5 to exhibit U-29. Every appointment letter shows that the petitioner workman was appointed as badli for fixed period on the place of leave vacancy. The name of employee who was on leave for that period is also mentioned in that appointment letter. It was also made clear that the petitioner workman can be terminated at any time without giving any reason. All these appointment letters clearly show the fix term appointment of the petitioner, every time in respondent institution. RMA wp5769-09.sxw 4 7. It is submitted by the learned counsel for the petitioner that as the petitioner was in continuous service for more that 240 days, he ought not to have been terminated and he is entitled for permanency. I do not find much merit in submission because the definition of continuous service given in Section 25B of the Industrial Dispute Act means "an uninterrupted service, including service which may be interrupted on account of sickness or authorized leave or an accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman". Relevant portion of Clause (2) of Section 25B further provides that, where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer for a period of one year if the workman, during a period of twelve calender months preceding the date with reference to which calculation is to be made actually worked under the employer for not less than 240 days. So to get benefit of continuous service, it is necessary for workman to work continuously for 240 days in a calender year uninterruptedly. Only interruption on account of sickness leave, accident, strike and lock-out are excluded for RMA wp5769-09.sxw 5 such continuous service. In the present case, the petitioner workman has not come with any such case of interruption on account of sickness, leave or strike etc. The petitioner has come with a case of 29 days employment every time and tried to show that he was in continuous service and that it is a case of artificial break. 8. The learned counsel for the petitioner relied upon the decision in Zilla Parishad, Nagpur & Another Vs Moreshwar reported in 2004 LAR I.C. Page 2505 (Bom.H.C.) wherein it has held that, appointment for 29 days in each month continuously for a period of 1 and 1/2 years with break of one or two days at end of each month cannot be considered for fixed period so as to make clauses 2(bb) and (oo) applicable and in such case the workman shall be deemed to be continued in service. The case relied upon by the petitioner is different on facts. In that case, it was found that artificial breaks were given just to escape from clutches of law. The appointment given in that case shows that every time one or two days break was given at the end of the month, from this it can easily be inferred that temporary appointment was issued time to time just to give artificial RMA wp5769-09.sxw 6 break in service. 9. However, this is not the case of the present petitioner. In the present case, the appointment letters itself clarify that every time the petitioner was appointed on leave vacancy of the permanent employees of the institution who were temporarily absent. The appointment is also not starting from beginning of the month and ending on last date of month. The breaks were not given for one or two days, but sometime for four to five days, sometimes for more than 15 days and sometimes there has been break even for two months in service. In the year 2001, the last appointment was from 9th May, 2001 to 6th June, 2001, prior to that the appointment of the petitioner was from 12th February, 2001 to 12th March, 2001 that means from 12th March, 2001 to 9th May, 2001, there was a break of almost 2 months in service. All these breaks can not be considered to be artificial breaks. The petitioner was appointed as and exigency when occurred. The interruption in the service was not on account of any sickness or leave or strike of the institution. Every time, the petitioner was appointed as badli on leave vacancy of some permanent employee RMA wp5769-09.sxw 7 and therefore, he cannot be said to be in continuous service of the respondent institution for 240 days as claimed by him. 10. The learned counsel for the petitioner also relied on the case of Sonepat Co-operative Sugar Mills Ltd Vs Rakesh Kumar reported in 2006 1 CLR page 277 (SC) wherein the workman was appointed as helper in the computer department and he was found in continuous service and so his termination without retrenchment compensation was held to be illegal. However, in the present case, the petitioner workman was not in continuous service and he was merely a badli worker. So the case relied upon by the learned counsel for the petitioner can in no way benefit the petitioner 11. The learned counsel for the petitioner thereafter submitted that he was appointed by the respondent institution through employment exchange. He is senior to other employees who were appointed later on including one Mr. Mangesh Jadhav who was appointed as a peon and Mr. Sandeep Fondke who was appointed as sweeper in the year 2001 and at that time, the petitioner was a sweeper, yet he was not RMA wp5769-09.sxw 8 considered for appointment. The case of the respondent institution is that the name of the petitioner workman was not forwarded by the employment exchange when these persons were appointed. The government had renewed two lapsed posts and as per the sanction given by the government, their appointments were made. The name of the petitioner workman was forwarded to the institution in the year 1998 and on that basis he was appointed as Badli worker. The petitioner worked up to 2001. At that time, the petitioner was not on the roll of employment exchange and therefore, his name was not recommended. The appointment on the renewed posts was made from the candidates whose names were recommended by the employment exchange. Thus, the fact that these two persons were appointed would not in any way help the petitioner. 12. Looking to the above facts, no case is made our for interference. Writ petition is dismissed. (SMT. V.K. TAHILRAMANI, J) RMA wp5769-09.sxw 9 RMA wp5769-09.sxw