1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5029 OF 1997 Mr.Motiram Lorya Patil At Golavli, Post. Dombivli MIDC, Kalyan Shil Road, Taluka Kalyan, Dist: Thane ...Petitioner vs. 1. Tata Electric Companies Transmission Division Kalyan-Shil Road, Kalyan Dist. Thane 2. Smt.S.V. Suvarma. 4th Labour Court, Thane. ...Respondents Mr.V.A. Pai for the Petitioner. Mr.K.M. Naik alongwith Mr.S.P. Salkar and Mr.Agnel Carneira i/b. M/s.Mulla & Mulla & Craigie Blunt & Caroe for Respondent No.1. CORAM : V.M. KANADE, J. DATED : JUNE 12, 2009 ORAL JUDGMENT :- 2 1 By this petition which is filed under Articles 226 and 227 of the Constitution of India, the petitioner is challenging judgment and order passed by the Labour Court under Section 33-2(c) of the Industrial Disputes Act in Application (IDA) No. 34/1995. By the said judgment and order dated 26th May, 1997, the Labour Court was pleased to reject the said application on the ground that there was a dispute about the status of the workman and therefore, the Labour Court did not have the jurisdiction to adjudicate the said dispute and as such there was no existing right in favour of the workman. The said application, therefore, was dismissed. Being aggrieved by the said order, the petitioner has filed this petition in this Court. Brief facts are as under :- 2 Petitioner Motiram Lorya Patil hereinafter referred to as the workman or an employee and the respondent Tata Electric Companies Transmission 3 Division hereinafter referred to as the employer . It is the case of the workman that he was employed by his employer as a Cleaner-cum-Conductor and he was working in the said company since 1964. His services, however, terminated on 12.8.73. According to the workman, he was employed as a Mazdoor and he was given artificial breaks and his services were terminated from time to time in order to ensure that he does not become permanent though he was working continuously from 21.6.64. The respondent no.1 is engaged in the business of generation, transmission and distribution of electricity in the city of Greater Bombay. After the services of the workman were terminated on 12.8.73, he made an application for redressal of his grievance under the provisions of the Industrial Disputes Act and his demand was referred to the Presiding Officer, 1st Labour Court, Thane, by Reference (IDA) No.859/1976. This reference was allowed by the Labour Court by Award dated 9th July, 1984 directing the company to reinstate the petitioner workman with continuity of 4 service and 25% back wages from the date of termination till the date of reinstatement. Against the said order, the petitioner workman filed writ petition vide Writ Petition No.740/1985 which was partly allowed and the following order was passed :- The petitioner shall be entitled to full back-wages from 12th August, 1973 to the date of his reinstatement minus a sum of Rs. 33,600/- which he had earned while in the service of M/s.Carvatex Pvt.Ltd. Rule is made absolute accordingly. The first respondent shall pay the costs of this writ petition quantified at Rs.500/- 3 It is the case of the workman that in spite of the order passed by this court, he was not reinstated by the respondent company though repeated requests were made by him from time to time. There was some correspondence between the petitioner and the respondent company regarding reinstatement. The grievance of the petitioner workman was that 5 pursuant to the order passed by the Labour Court, it was the duty of the company to reinstate him as permanent employee and not as a temporary employee and secondly, it was alleged that the company ought to have reinstated him in the post of Cleaner-cum- Conductor and not as a Mazdoor. His grievance was that he should have been reinstated at Kalyan and not at Bhivpuri which was the offer given by the respondent company in reinstating him. The petitioner workman thereafter filed a recovery application under Section 33-C(2) of the Industrial Disputes Act, 1947 which was numbered as Application (IDA) No.34/1995 and this application, however, was rejected by the Labour Court by its judgment and order dated 26.5.97. Being aggrieved by the aforesaid order, the petitioner has filed this petition in this Court. While granting Rule, this Court was pleased to pass the following Order :- Rule. 6 Learned Counsel for respondent No.1 states that without prejudice to their rights and contentions, the respondent no.1 are ready to allow the petitioner to join in the post of Cleaner at their Kalyan Division on temporary basis. The Learned Counsel has also stated that though the petitioner would be reinstated at the Kalyan Division, he may be required to work at Bhivpuri lines or any other lines. He further states that if the petitioner reports for work on 3rd of November, 1997, he will be allowed to join. Statement accepted. In view of this, no orders on interim relief are necessary Thereafter, further order was passed by this Court on 21.1.98 :- Heard the learned counsel for both the sides. Put up this writ petition for final hearing in the third week of February 1998. The learned counsel for the petitioner states that though, by the appointment order dt. 29th October 1997 a copy is which is placed on record and marked  X for identification, the petitioner has been appointed for a period of three months. The appointment will be 7 continued during the pendency of this petition. The learned counsel for the petitioner had made it clear that even if the petitioner completes 240 days pursuant to appointment by the order at  X dt. 29 th October 1997, the petitioner shall not claim any benefits as a result of completing 240 days under standing orders. Statement accepted. 4 The learned Counsel submitted that the Labour Court had erred in law which is apparent on the face of record by holding that the Labour Court in its award dated 9th July, 1984 had reinstated the workman not as a permanent but as temporary employee. He invited my attention to clause .. of the Standing Orders. It was submitted that only a permanent employee could be reinstated with full back wages and with continuity of service. In support of the said submission, he relied on judgment of the Apex Court in the case of Bajaj Auto Ltd. vs. Bhojane Gopinath D., reported in 2004 I LLJ Page 821 SC, Full Bench Judgment of the Court in the case of Gangadhar Balgopal Nair vs. M/s.Voltas Limited and another, reported in 2007(1) Mh.L.J. 8 Page 754 and judgment of this court in the case of Vittal Venkatesh & Ors. vs. Patheja Forging & Auto Parts Manufacturers Pvt.Ltd. & Ors, reported in 1993 I CLR 110, judgment of the learned Single Judge of this Court in the case of Pravin Krishna Jadhav & others vs. Rashtriya Chemicals and Fertilizers Limited, reported in 2001(1) Bom.C.R. Page 18, judgment of the Apex Court in the case of Vikramaditya Pandey vs. Industrial Tribunal, Lucknow, and another, reported in 2001(98) FJR 337 SC. He submitted that therefore, it was not open for the respondent company to show that the petitioner workman was reinstated on temporary basis in view of the provisions of Section 4-C. It was submitted that the Full Bench of this Court had held that after the amendment of the standing orders Act, the said provision was deemed to be incorporated ipso facto and it was not necessary to incorporate it in the certified standing orders. He submitted therefore that the petitioner workman was deemed to be a permanent workman in view of the said provision. He 9 submitted that this was a legal submission and it was the duty of the Labour Court to consider the said submission. It was further submitted that the Labour Court had erred in coming to the conclusion that there was no existing right in favour of the petitioner since the Labour Court in the earlier award dated 9.7.84 had not accepted his contention that he was a permanent employee. It was submitted that in view of the said provision under the Standing Orders Act, a workman who had completed 240 days during the period of 12 months was deemed to be a permanent employee. It was then submitted that the petitioner was doing the work of Cleaner-cum- Conductor on the date on which his services were terminated. He invited my attention to correspondence between the parties and the various previous orders passed in support of the said submission. He invited my attention to the correspondence between the parties and submitted that in spite of the award being partly allowed by the High Court in the earlier writ petition, the 10 company had failed to reinstate the petitioner workman till 1997 when the second writ petition was filed in this Court and it was submitted that though the award was passed by the Labour Court on 9th July, 1984, he was reinstated in November 1997. It was submitted that the Labour Court had not taken into consideration this aspect and had not granted back wages for the said period as demanded by him. It was submitted that in any case, at the time of his termination, the petitioner had put in 319 days of continuous service and as such, he was permanent employee of the respondent company and as a result of the order of reinstatement and continuity of service, the petitioner ought to have been paid back wages as a permanent employee and not as a temporary employee. It was submitted that the company had calculated his back wages by treating him as temporary employee and not as permanent employee. He submitted that this aspect was not taken into consideration by the Labour Court in the impugned order. He invited my attention to the letter issued 11 by the company dated 29.10.84. He submitted that in the said letter, the company had informed him that he was reinstated as temporary workman and he was asked to report for work to the Superintendent, Transmission Division, Kalyan. It was further stated that he would then issue a letter regarding the terms of his appointment. Shri Pai, learned Counsel submitted that therefore, the said letter was not a letter of reinstatement as permanent employee and secondly, by the said was order, only offer was made for reinstatement and he was informed that the Superintendent, Transmission Division would issue a further letter regarding his appointment. It was submitted that the petitioner workman thereafter was asked to work as temporary workman and award was not implemented by the company. Shri Pai , learned Counsel invited my attention to the impugned order and submitted that the finding recorded by the Enquiry Officer, therefore, was patently perverse. The learned Counsel submitted that the said impugned order be 12 set aside and his application under Section 33-C(2) be allowed. 5 On the other hand, Shri Naik, learned Counsel appearing on behalf of the respondent company submitted that the petitioner workman was estopped from claiming permanency since the initial reference which was made only for his reinstatement as a temporary employee. He submitted that the Labour Court in the award dated 9th July, 1984 had not accepted the contention of the petitioner workman that he was permanent employee. He submitted that in fact, in the writ petition which was filed by the workman in the High Court, a specific averment was made that the Labour Court ought to have reinstated the workman as a permanent employee. He submitted that therefore, the workman was very well aware that the Labour Court in its award dated 9.7.84 had not accepted his contention that he was permanent employee and therefore, a specific plea was raised in the writ petition and specific relief was sought 13 in the said writ petition. The learned Counsel submitted that even the High Court did not accept this plea of the workman and the petition was partly allowed. It was submitted that therefore, the plea raised by the petitioner about his permanency was not accepted by this Court and the said order had become final since the workman had not challenged this order either by filing Letters Patent Appeal or by filing Special Leave Petition in the Apex Court. Secondly, it was submitted that the Industrial Employment (Standing Orders) Act, 1946 were amended for the first time in 1978 and Sections 4B and 4C were incorporated with effect from 1978. He submitted that the services of the petitioner were terminated in 1973 on which date the said Section 4C was not amended. It was submitted therefore, that the petitioner was not entitled to seek benefit of the said provision. The learned Counsel then invited my attention to the correspondence between the parties and it was submitted that the respondent company had acted fairly and had promptly offered 14 him reinstatement in 1984, however, the said order was not accepted by the petitioner workman because he was gainfully employed in some other company and on one pretext or the other, the offer of reinstatement was not accepted by the workman. He submitted that in fact that he was working in another company viz. M/s.Carvatex Private Limited had been accepted by him in the cross-examination. The learned Counsel then invited my attention to the impugned order which is passed by the Labour Court and submitted that the Labour Court had given cogent reasons for rejecting the application which was filed by the petitioner under Section 33-C(2) and therefore, no case was made out for interfering with the said judgment and order passed by the Labour Court. He submitted that all the judgments on which reliance is placed by the Counsel appearing on behalf of the petitioner will not apply to the facts of the present case. He submitted that the said judgments are in respect of employees who had applied for reinstatement as a permanent employee 15 and in the said cases, their request had been accepted by the Labour Court. He submitted that the facts of the present case, therefore, are different and as a result, ratio of these judgments will not apply to the facts of the present case. 6 I have heard both the learned Counsel at length. I have given my anxious consideration to the submissions made by both the learned Counsel. Perusal of the award passed by the Labour Court dated 9.7.84 clearly discloses that the contention of the petitioner workman that he was permanent employee was not accepted by the Labour Court. The Labour Court in para 22 has observed as under:- The first question, therefore, to be decided is whether the reference is for deciding or declaring the permanent nature of the workman s services or the question of permanency cannot be agitated in this reference. The Labour Court then referred to the Schedule of the reference which reads as under :- 16 SCHEDULE : The company shall immediately reinstate Mr.Motiram l. Patil, whose services it has illegally and improperly terminated on 12th August, 1973. The company shall pay to the above mentioned workman wages for the entire period he is kept out of employment. The Labour Court then came to the conclusion no averments had been made regarding permanency by the workman in his statement of claim and the union had called upon the company to treat the termination dated 12.8.73 as illegal and improper. In para 24, the Labour Court, therefore, gave a finding as under :- I am, therefore, of the view that the learned representative for the company was right in urging that the question of permanency is outside the scope of the present reference. The Labour Court, therefore, in its award dated 9.7.84 has specifically held that the question of permanency of the workman could not be gone into the 17 said reference and thereafter proceeded to consider whether the termination was legal and proper or not. In Para 25 in the said order, the Labour Court has further observed as under :- I have held above that the Workman satisfactorily answered the definition of a temporary workman under the certified Standing Orders of the company. It will have now to be seen whether the termination is illegal or inoperative for any reason and thereafter, the Labour Court came to the conclusion that the company had admittedly not complied with the provisions of Section 25-F and held that the termination of his services was illegal and finally the following operative order was passed :- In the result, the demand of the workman is granted by directing the party no.1 company to reinstate him with continuity of service and pay him 25% back wages from the date of his termination till his reinstatement. While calculating amount of back wages the company shall take into account other 18 monetary benefits which the Workman could have been entitled to had he remained in its service. 7 Against this order, the petitioner workman had filed writ petition in this Court being Writ Petition No.740/1985. In the said writ petition, a specific plea has been raised by the petitioner and the averment had been made in para 5(a) which reads as under :- 5(a) The Labour Court committed an apparent error on the face of record in holding that the issue of permanency of the petitioner s services cannot be adjudicated in the said adjudication proceedings even though the whole burden of pleadings on both the parties as well as large number of documents filed by the parties and particularly by the respondent show that the said issue was the main bone of contention and that the issue whether the termination was bonafide or malafide cannot be decided without first deciding as to whether the Petitioner was doing duties of permanent nature or of a temporary nature. ..... Similar averments have been made in ground (b), 19 (c), (d), (e) and (f). Thereafter, in the prayer clause, following reliefs have been claimed by the petitioner in this petition :- (a) This Honourable Court be pleased to issue a Writ of certiorari or any other appropriate writ, direction or order under Articles 226 and 227 of the Constitution of India quashing and setting aside the Judgment and Award, dated 9.7.1984, passed by the Second Respondent to the extent of its denies the Petitioner the whole relief of permanency and 75% of the full back wages and other consequential benefits; (b) The First Respondent may be directed to reinstate the Petitioner as a permanent cleaner- cum-conductor and to pay him remaining 75% of full back wages and all other consequential benefits; (c)To pass any other orders as this Honourable Court deems fit from the facts of this case and justice may require. (d) To provide for costs. 8 A specific relief, therefore, was also claimed for setting aside the finding recorded by 20 the Labour Court in its award dated 9.7.84 to the extent it denied the petitioner the whole relief of permanency and 755 full back wages and other consequential reliefs and secondly, reinstatement of the petitioner as a permanent cleaner-cum-conductor. Both these reliefs though specifically prayed in the petition and urged before the court were not granted which is evident from the operative order passed by this Court which reads as under :- 5. In the result, the petition is partly allowed and the Rule made absolute by substituting the direction as to back-wages as under :- The petitioner shall be entitled to full back-wages from 12th August, 1973 to the date of his reinstatement minus a sum of Rs. 33,600/- which he had earned while in the service of M/s.Carvatex Pvt.Ltd. 9 It is evident from the aforesaid order that the plea of permanency which was specifically pleaded in the petition was not accepted by this court and the petition was, therefore, partly 21 allowed. It is an admitted position that this order was not challenged by the petitioner by filing an appeal or SLP in the Apex Court. It is further an admitted position that no further steps were taken to get the finding of permanency from an appropriate forum. Under these circumstances, therefore, it is not now open for the petitioner to seek reinstatement and back wages as a permanent employee or to seek reinstatement on the basis of cleaner- cum-conductor since both these reliefs were asked for by him before the Labour Court and before this Court and these reliefs were not granted. Under these circumstances, therefore, in my views, the Labour Court was justified while deciding the application which is filed by the petitioner herein under Section 33-C(2) in holding that the petitioner had not established that he was a permanent employee and could not, therefore, seek adjudication of this issue before the Labour Court in the application under Section 33-C(2). The position of law is quite well settled and it has been held by the Apex Court 22 and this Court that the proceedings under Section 33-C(2) are in the nature of execution proceedings and the rights between the parties cannot be adjudicated by the Labour Court while entertaining an application under Section 33-C(2). 10 The Labour Court in the impugned order has given cogent reasons and has taken into consideration all the facts and the evidence on record and in my view, the Labour Court was justified in rejecting the said application under Section 33-C(2). There is no infirmity, therefore, in the impugned order which is passed by the Labour Court. 11 The learned Counsel appearing on behalf of the petitioner has relied on number of judgments of the Apex Court and this Court. In my view, the ratio of these judgments will not apply to the facts of the present case. In the present case, a finding has been recorded by the Labour Court in its award dated 23 9.7.84 that the issue of permanency was not referred and the said issue could not be gone into. This finding has been confirmed by the High Court in the writ petition which was filed by the petitioner herein. In the judgments which are cited before me, the facts are entirely different. Moreover in the present case, Section 4C of the Standing Orders Act was not in existence when the services of the petitioner were terminated in 1973 since the said provision came into existence in 1978. Both the Labour Court as also the High Court did not accept the contention of the petitioner even in respect of the said amended provision 4C since the award was passed by the Labour Court on 9.7.1984 and the petition filed by the petitioner was disposed of by this Court on 3rd December, 1992. Therefore, there is no merit in the submission made by the Counsel for the petitioner. 12 Writ Petition, accordingly, is dismissed. Rule is discharged. 24 13 It is, however, clarified that it shall always be open for the petitioner to take out appropriate proceedings for the purpose of seeking a declaration that he is a permanent employee by filing appropriate application before the appropriate forum. Taking into consideration the peculiar facts and circumstances of the case, if such proceedings are taken out, it shall be considered on merits and in accordance with law. 14 Writ petition, accordingly, is disposed of. (V.M. KANADE, J.)