1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 562 OF 2002. The Deputy Directory, Social Forestry,Aurangabad. .... PETITIONERS. VERSUS Janardan s/o Pandurang Bankar. .... RESPONDENTS. ... Smt. Kalpalata Patil Bharaswadkar, Advocate for Petitioner. Shri A.D. Sugdare, Advocate for Respondent. ... CORAM : S.S. SHINDE, J. DATE : 22nd SEPTEMBER, 2009. PER COURT: 1. This petition is directed against final judgment and award dated 30th June, 2001 in Reference (IDA) No.138 of 1990 passed by the Judge, Labour Court, Aurangabad. By the impugned award, reference was partly answered in affirmative. The petitioner herein was directed to reinstate the respondent with continuity of service with 50% back wages for unemployment period or to pay Rs.40,000/- in lieu of reinstatement with continuity of service with 2 back wages within a period of one month from the date of publication of award. 2. The background facts of the case are as under: The petitioner herein is the Deputy Director of Social Forestry Department. The petitioner department has undertaken various schemes i.e. Jawahar Rojgar Yojana, Employment Guarantee Scheme, Drought Prone Area Progamme etc. It is the case of the petitioner that the activities undertaken by the petitioner department are on temporary and seasonal basis under the various schemes. The funds provided by the social forestry department of the Government of Maharashtra are also limited. The Social Forestry works are on `no profit no loss’ basis. The Social Forestry Department is not an industry. The respondent herein was engaged as a labourer in the year, 1988. After giving him an understanding that the work undertaken by the petitioner department is purely of temporary nature and respondent will be given work only as 3 per its availability. It is further case of the petitioner that the main source of finance is allotted tot he department by the Government of Maharashtra. It is not in the hands of the department to make provision for the funds to regularize the services of the daily rated employees and taking into consideration this aspect of the matter, the Government of Maharashtra was necessary party to the reference which was adjudicated by the Labour Court. 3. By way of amendment, the petitioner has added paragraph 7A to the petition, which reads thus: “7A) That, the respondent himself did not turn up and made false allegations in 1992, he again joined and since then he is continuously working under different schemes. His name is included in the list of labourers who have completed five years of service. In spite of this, all these facts were suppressed from the Labour Court consequently the Labour Court passed award 4 on 30.06.2001. The Labour Court directed reinstatement with back wages of Rs.40,000/- as compensation in the alternative the respondent is already in the service, therefore, no question of reinstatement. As far as back wages are concerned, he himself did not turn up. Taking into consideration the principle `no work no pay’, he is not entitled to the relief of back wages.” 4. It appears that the Labour Court formulated as many as four points for its determination and came to the conclusion that respondent herein was in continuous service of the petitioner and the termination of respondent is in violation of the relevant provisions of Industrial Disputes Act and the respondent, who is original complainant, is entitled for the reliefs claimed by him. 5. In the present petition, Rule was granted by order dated 11th February, 2002 and ad interim relief was granted in terms of prayer clause (C). 6. The learned Counsel for the petitioner, 5 relying on the paragraph 7A, submitted that when the respondent is in continuous employment of the petitioner, there was no question of any direction by the Labour Court for reinstatement of the respondent. Therefore, direction by the Labour Court to reinstate the respondent is not sustainable. The learned Counsel further invited my attention to the grounds taken in the petition and submitted that the petition deserves to be allowed. 7. The learned Counsel for the respondent invited my attention to the amended paragraph 7A and submitted that even according to the petitioner herein the respondent is already working and he is in the employment of the petitioner. The learned Counsel appearing for respondent, on instructions from his client who is present in the Court, submits that respondent is ready to forgo 50% back wages as ordered to be paid by the Labour Court and so far first part of the relief of reinstatement granted by the Labour Court is concerned, even according to the petitioner, the respondent is already working 6 with the petitioner department and, therefore, first direction of reinstatement is already implemented. He would, therefore, submit that this petition is devoid of any merits and the same may be dismissed. 8. On perusal of the averments in the writ petition more particularly, paragraph 7A, it clearly appears that respondent is already working with the petitioner department. On careful perusal of paragraph 7A it clearly emerges that though the petitioner was given option by the Labour Court that in case petitioner is not interested to reinstate the respondent, then in that case in lieu of reinstatement and continuity of service, it should pay to the respondent Rs.40,000/- as compensation. However, the petitioner has not exercised that option. 9. The Judge, Labour Court, Aurangabad, after framing necessary points for his determination and consideration, has recorded findings that respondent herein is in the employment of the 7 petitioner till 9.11.1989. The Court further observed that there is no denial to the contention of the party no.2 by party no.1 on affidavit and, therefore, there is no hesitation to accept that party no.2 i.e. respondent herein was in continuous service of the petitioner. The Court has further observed that the petitioner should have given one month notice or to pay in lieu of notice and retrenchment compensation at the time of termination. The Court has recorded findings that the termination of the respondent herein was in violation of section 25 of the Industrial Disputes Act. The Court has also recorded findings that the junior employees were retained in service when the service of the respondent were terminated. Therefore, the Labour Court directed the petitioner herein to reinstate the respondent with continuity of service with 50% of back wages. 10. Therefore, on careful perusal of the pleadings in the petition, more particularly paragraph 7A, grounds therein and the award passed by the Labour Court and in view of the 8 fact that the Counsel for the respondent has made a statement that respondent is ready to forgo 50% of back wages, the direction of the Labour Court to pay 50% back wages is quashed and set aside. 11. In the result, writ petition is partly allowed Rule is made absolute partly in the above terms. [ S.S. SHINDE, J ] ...