1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.1169 OF 1993 The Divisional Controller Maharashtra State Road Transport Corporation, Ahmednagar ..PETITIONER -VERSUS- Shaikh Mohammad Abbas H.No.1559, Nagar Road, Near Petrol Pump, Tq.Shevgaon, Dist.Ahmednagar. ..RESPONDENT ..... Mr.M.K. Goyanka, advocate for petitioner. ..... (CORAM : V.R.KINGAONKAR,J.) DATE : 11 st August, 2010. ORAL JUDGMENT : 1. By this petition, the petitioner-M.S.R.T.C. seeks to challenge the judgment and order rendered by the Presiding Officer of 2nd Labour Court, Ahmednagar in Reference (IDA) No. 24/1985. By that judgment and order, the Reference was allowed and the respondent was directed to be reinstated on the establishment of the petitioner w.e.f. 26th April, 1984 with continuity of service and full back wages. 2. The case of the respondent in the Labour Court was that he was initially employed by the petitioner at Shevgaon depot 2 as daily wager in or about the year 1976. He was subsequently transferred to Pathardi depot as the Security Guard. He had served up till 25th April, 1984. Still, however, on 26th April, 1984, the depot Manager of Pathardi depot orally terminated his services without any tangible reason. Though he urged for reinstatement yet his request was not heeded to. He alleged that the petitioner did not comply with the provisions of Section 25-F of the Industrial Disputes Act, 1947 and the retrenchment was bad on account of non-payment of compensation in lieu of notice period of one month. The petitioner alleged that the respondent was employed only temporarily as Off-reliever to the watchman. He was not at all a selected candidate for the post of security guard and was not appointed as such. He was required to work only on locum tenens basis. He was, therefore, entitled to seek regularisation of the services. It was denied that he had rendered the continuous service of 240 days and was illegally retrenched without compliance of Section 25-F of the Industrial Disputes Act. 3. The parties went to trial till the issue settled below Exhibit-`O-4'. They adduced oral as well as documentary evidence in support of their rival contentions. The learned Judge of the Labour Court held that the respondent was in continuous service of the petitioner for not less than one year and was illegally 3 terminated. Hence, the reference application was allowed as stated at the outset. 4. Heard learned counsel for petitioner. None appears for the respondent when the matter was called out. With the help of learned counsel Mr.Goyanka, appearing for the petitioner, I have gone through the impugned judgment and the findings of the Labour Court. 5. The record shows that the respondent examined two employees, namely, C.W.1-Arvind Mandale, who was working as Depot Accountant and C.W.-2 Premchand Jadhav, who was working as Junior Assistant (Stores Department). Though the respondent produced pay slips (Exh.`U-19 to U-33') yet it has been brought on record that the said documents did not bear the signature of Depot Manager of Pathardi depot and seal of that depot. Needless to say, the said documents were not proved to be authentic and genuine one. There is also no documentary evidence to hold that the respondent was duly employed by following the selection process. What appears from the record is that he was initially appointed on daily wages and was subsequently appointed only as Reliever to the Watchman. In other words, as and when no other employee was available to work as 4 night watchman in S.T. depot, Pathardi, the petitioner was being called upon to work as a Reliever. Nature of his employment could not be treated as regular work. The person appointed dehors the rules, can not claim any right of appointment to the post. In "Secretary, State of Karnataka and ors V/s Umadevi(3) and Ors." {(2006) 4 SCC 1} and "Satya Prakash and others V/s State of Bihar and others" (2010 AIR SCW 2112), the Apex Court has held that such temporary employee can not claim right of appointment on the post. Needless to say, even though the employee who worked for more than one year, he will not be entitled to claim right for employment on the post. The learned Judge of the Labour Court failed to appreciate that the attendance cards (Exhibit-`U-6' and `U-18') were not corroborated by any official record. Nor they were signed by any responsible officer of the petitioner. Having regard to the nature of the appointment and the fact that the respondent was only temporary employee and was working on locum tenens basis, the Reference could not have been allowed. The observations of the learned Presiding Officer of 2nd Labour Court are improper when he says that the record did not show that very appointment of the respondent was illegal. Indeed, the respondent failed to place on record any tangible material to show that he was lawfully appointed by following the due procedure. There is absolutely nothing on record to show that 5 the post of watchman was advertised by the petitioner and the respondent had applied for the post. In view of the settled legal position, and the foregoing discussion, the impugned judgment is improper and unsustainable. 6. In the result, the Petition is allowed. The impugned judgment is set aside. The Rule is made absolute accordingly. Interim relief, if any, be deemed as vacated. No costs. (V.R.KINGAONKAR) JUDGE gas/wp1169.93