1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 305 OF 2004 WRIT PETITION NO. 305 OF 2004 WRIT PETITION NO. 305 OF 2004 Shankar Harish Jagtap ...Petitioner Vs. Union of India & Ors. ...Respondents ----- Mr.Y.M.Pendse for Petitioner Mr.Suresh Kumar for Respondent Nos.1 to 4 Mr. J.D.Utangale for Respondent No.5 CORAM: H.L.GOKHALE & CORAM: H.L.GOKHALE & CORAM: H.L.GOKHALE & SMT.R.S.DALVI,JJ. SMT.R.S.DALVI,JJ. SMT.R.S.DALVI,JJ. DATED: 11TH AUGUST, 2005 DATED: 11TH AUGUST, 2005 DATED: 11TH AUGUST, 2005 P.C. P.C. P.C. 1. Heard Mr. Pendse in support of this Petition. 1. Heard Mr. Pendse in support of this Petition. 1. Heard Mr. Pendse in support of this Petition. Rule. Rule made returnable forthwith. Mr.Suresh Rule. Rule made returnable forthwith. Mr.Suresh Rule. Rule made returnable forthwith. Mr.Suresh Kumar appears for Respondents 1 to 4 and Mr.Utangale Kumar appears for Respondents 1 to 4 and Mr.Utangale Kumar appears for Respondents 1 to 4 and Mr.Utangale appears for Respondent No.5. The Petitioner was appears for Respondent No.5. The Petitioner was appears for Respondent No.5. The Petitioner was working for garbage collection under the Respondent working for garbage collection under the Respondent working for garbage collection under the Respondent No.5 Bank during service period in the years No.5 Bank during service period in the years No.5 Bank during service period in the years 1997-1998. It is his case that he did complete 240 1997-1998. It is his case that he did complete 240 1997-1998. It is his case that he did complete 240 days prior to discontinuation of his services and days prior to discontinuation of his services and days prior to discontinuation of his services and therefore was entitled to appropriate protection of therefore was entitled to appropriate protection of therefore was entitled to appropriate protection of the Labour laws. He sought a reference of his dispute the Labour laws. He sought a reference of his dispute the Labour laws. He sought a reference of his dispute arising out of his alleged illegal termination. The arising out of his alleged illegal termination. The arising out of his alleged illegal termination. The request for reference has been rejected by the order request for reference has been rejected by the order request for reference has been rejected by the order dated 21st November 2003 passed by the Ministry of dated 21st November 2003 passed by the Ministry of dated 21st November 2003 passed by the Ministry of Labour. The order reads as follows :- Labour. The order reads as follows :- Labour. The order reads as follows :- . ‘‘As the applicant has not worked for . ‘‘As the applicant has not worked for . ‘‘As the applicant has not worked for 240 days continuous service during a calendar 240 days continuous service during a calendar 240 days continuous service during a calendar 2 year, hence, dispute has no merit to refer.’’ year, hence, dispute has no merit to refer.’’ year, hence, dispute has no merit to refer.’’ 2. Mr Pendse learned Counsel appearing for the 2. Mr Pendse learned Counsel appearing for the 2. Mr Pendse learned Counsel appearing for the Petitioner submits that the Officer concerned was Petitioner submits that the Officer concerned was Petitioner submits that the Officer concerned was obviously in error in observing that the Petitioner obviously in error in observing that the Petitioner obviously in error in observing that the Petitioner has not completed 240 days during a calendar year. has not completed 240 days during a calendar year. has not completed 240 days during a calendar year. His submission is that what is expected is that one His submission is that what is expected is that one His submission is that what is expected is that one must complete 240 days within a period of preceding 12 must complete 240 days within a period of preceding 12 must complete 240 days within a period of preceding 12 calendar months to get the protection of the calendar months to get the protection of the calendar months to get the protection of the definition of continuous service under Section 25(b) definition of continuous service under Section 25(b) definition of continuous service under Section 25(b) of the Industrial Disputes Act, 1947. The Officer has of the Industrial Disputes Act, 1947. The Officer has of the Industrial Disputes Act, 1947. The Officer has positively missed the point. positively missed the point. positively missed the point. 3. Mr.Utangale appearing for Bank has filed an 3. Mr.Utangale appearing for Bank has filed an 3. Mr.Utangale appearing for Bank has filed an affidavit of the Assistant General Manager of the Bank affidavit of the Assistant General Manager of the Bank affidavit of the Assistant General Manager of the Bank and has placed on record the statement of the Bank, and has placed on record the statement of the Bank, and has placed on record the statement of the Bank, according to which the Petitioner did not complete 240 according to which the Petitioner did not complete 240 according to which the Petitioner did not complete 240 days. days. days. 4. In our view this is a matter which has got to 4. In our view this is a matter which has got to 4. In our view this is a matter which has got to be decided by the Adjudicating Authority. It is not be decided by the Adjudicating Authority. It is not be decided by the Adjudicating Authority. It is not for the Labour Commissioner to decide as to whether for the Labour Commissioner to decide as to whether for the Labour Commissioner to decide as to whether the person concerned has completed 240 days or not. the person concerned has completed 240 days or not. the person concerned has completed 240 days or not. That is a matter to be decided on presentation of the That is a matter to be decided on presentation of the That is a matter to be decided on presentation of the record and on evidence of either parties which is a record and on evidence of either parties which is a record and on evidence of either parties which is a jurisdiction of the Adjudicating Authority. The jurisdiction of the Adjudicating Authority. The jurisdiction of the Adjudicating Authority. The Referring Authority cannot resolve the dispute by not Referring Authority cannot resolve the dispute by not Referring Authority cannot resolve the dispute by not referring it for such unsustainable reasons. In the referring it for such unsustainable reasons. In the referring it for such unsustainable reasons. In the circumstances we set aside this order dated 21st circumstances we set aside this order dated 21st circumstances we set aside this order dated 21st 3 November 2003 and direct Respondents 1 to 4 to refer November 2003 and direct Respondents 1 to 4 to refer November 2003 and direct Respondents 1 to 4 to refer the demand raised by the Petitioner arising out of his the demand raised by the Petitioner arising out of his the demand raised by the Petitioner arising out of his discontinuance of service and seeking appropriate discontinuance of service and seeking appropriate discontinuance of service and seeking appropriate order. order. order. Reference to be made within three months from Reference to be made within three months from Reference to be made within three months from receiving the order. receiving the order. receiving the order. . Rule is made absolute as above without any . Rule is made absolute as above without any . Rule is made absolute as above without any order as to costs. order as to costs. order as to costs. (H.L.GOKHALE,J.) (H.L.GOKHALE,J.) (H.L.GOKHALE,J.) (SMT.R.S.DALVI,J.) (SMT.R.S.DALVI,J.) (SMT.R.S.DALVI,J.)