1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.4668 OF 1998 Shridhar S/o Digambarrao Silwane, Age 32 years, Occ.Unemployed, R/o C/o Avinash Patil, Shivaji Housing Society, Opposite New Bus Stand, Udgir, Tq. Udgir, Dist. Latur. ... Petitioner. Versus 1. Executive Engineer, Sarvajanik Bandhkam Vibhag, Nilanga, Dist.Latur. 2. Deputy Engineer, Sarvajanik Bandhkam Up-Vibhag, Udgir, Dist. Latur. ... Respondents. ... Mr.P.C.Wagh, advocate for the petitioner. Mr.D.V.Tele, A.G.P. for the Respondents. ... CORAM : V.R.KINGAONKAR,J. Date : 16.07.2009. ORAL JUDGMENT 1. By this petition, the petitioner 2 challenges judgment and order rendered by the learned Presiding Officer, Labour Court at Latur in Reference proceedings bearing IDA No.2/1994. 2. Briefly, stated, the case of the petitioner before the Labour Court was that he was employed as Muster Assistant and was working as such on establishment of the Respondents w.e.f. 7.1.1983. He was served with order dated 20.1.1984, whereby his services were terminated on false allegation of his illness. The Respondents committed unfair labour practices. The termination is in breach of Section 25-F of the Industrial Disputes Act. He submitted an application dated 22.1.1986, seeking reinstatement and though it was recommended by the competent official, yet, he was not reinstated. The Respondents resisted the proceedings by filing written statement. They submitted that the reference was barred by limitation. The main contention of the Respondents was that the petitioner was employed under Employment Guarantee Scheme which was a temporary measure. It was submitted that the 3 petitioner was not entitled to seek continuation in the service and there was no unfair labour practice adopted. 3. The learned Judge of the Labour Court came to the conclusion that the reference was not barred by limitation and was maintainable. The learned Judge of the Labour Court held that the petitioner himself submitted an application alongwith a medical certificate to permit him to join the duties on 20.1.1986. It was noticed that during cross-examination, the petitioner admitted that he was posted under the Sub- Division of PWD (Bamni road) under the EGS in the month of January 1983. He admitted that his physical constitution is weak and he suffers from general weakness. He further admitted that he had submitted representation to the superior officers alongwith the medical fitness Certificate. The version of D.W.Somnath, Sub- Divisional Engineer, indicated that the petitioner was unable to attend the duty on account of ill-health. He use to remain absent. He narrated that due to continuous ill-health, 4 the services of the petitioner were terminated. 4. There is no denial to the fact that services of the petitioner came to be terminated without any inquiry as such. The question for consideration is whether the petitioner was retrenched within the meaning of Section 2(OO) of the Industrial Disputes Act, 1947. It is his own version that in the year 1986, he made a representation to allow him to join the duty and had then submitted medical fitness Certificate. Thus, from 21.1.1984 till 27.1.1986, the petitioner had not taken any action. He did not seriously controvert the allegation that he was suffering from illness and use to remain absent from duty. In such a case, it can not be said that he was retrenched. The definition of expression "Retrenchment" includes termination by the employer otherwise than by way of punishment inflicted vide disciplinary action. It does not, however, include termination of the service of a workman on the ground of continuous ill-health. This legal position is quite clear in view of sub-clause (c) of Section 2(OO) of the I.D. Act. 5 Needless to say that the petitioner was not retrenched and as such his case is not covered by Section 25-F of the I.D.Act. 5. Apart from the above legal position, it may be gathered that the petitioner was employed as Muster Assistant without any recruitment process. The post was not advertised nor it is a post created on the establishment of any Government Department as such. The EGS is a special scheme. The scheme is operated out of contingency as and when required. This Court in a group of Writ Petitions Nos.847/96, 848/96 etc. held that such an employee can not be regarded as a workman within the meaning of Section 2(s) of the Industrial Disputes Act. The same view is taken in "Chief Executive Officer, Zilla Parishad, Ahmednagar Vs. Daulat Narsingrao Deshmukh and another" 2001 (2) Mh.L.J.543. This Court held that regularisation of the services of Muster Assistants may be duly considered in accordance with the Government Resolution dated 1.12.1995. The petitioner is at liberty to make appropriate representation to the Competent 6 Authority seeking benefit of the Government Resolution and if he is found eligible, his representation may be duly considered. 6. In the result, the petition is dismissed. Rule discharged. The petitioner is, however, at liberty to make appropriate representation to avail benefit of the scheme stated vide Government Resolution dated 1.12.1995. No costs. (V.R.KINGAONKAR,J.) asp/office/wp466898