*1* wp.3208.3213.11.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3208 OF 2011 The Divisional Forest Manager, Forest Development Corporation of Maharashtra Limited, a Company registered under the Companies Act, 1956. (Govt. of Maharashtra Enterprise), Forest Project Division, Vanvikas Bhavan, Kopri Colony, Thane (East). ..Petitioner -Versus- Shri Vinayak Kurne, C/o Divisional Manager, Vanprakalp Vibhag, Forest Development Corporation of Maharashtra Limited, Dahanu, Dist.Thane. ..Respondent WITH WRIT PETITION NO.3213 OF 2011 The Divisional Manager, FDCM Ltd., Thane Pradesh, Thane, Kopari Colony, Forest Vikas Bhavan, Thane (E)-3. ..Petitioner -Versus- 1 Shri Vinayak Kurne, C/o Divisional Manager, Vanprakalp Vibhag, Forest Development Corporation of Maharashtra Limited, Dahanu, Dist. Thane. *2* wp.3208.3213.11.sxw 2 Deputy Division Manager, Pune Greening Unit, FDCM Ltd., Pune, Akurdi, Pune. 3 Forest Range Officer, Pimpri Chinchwad, Pune Greening Unit, Forest Project Dept., FDCM Ltd., Pune, Akurdi, Pune. 4 Secretary, Revenue & Forest Department, Mantralaya, Mumbai-32. 5 Administrative Director, FDCM Ltd., Ravel Plaza, Plot No.12, Kadvi Chowk, Kamathi Rd., Nagpur-4. 6 Project Range Officer, Jawhar, Dahanu Forest Project Dept., Forest Colony, Jawhar, Thane (E)-3. ..Respondents .......... Mr.K.K.Malpathak, for the Petitioners in both petitions. Mr.V.H.Shekdar, for the Respondent No.1 in both petitions. .......... CORAM : S.C.DHARMADHIKARI, J. Reserved on : 23rd August, 2011. Pronounced on : 27th September, 2011. JUDGMENT: 1 Rule. Respondents waive service in both petitions. By consent, Rule made returnable forthwith. As both Writ Petitions involve common *3* wp.3208.3213.11.sxw questions of facts and law, they are being disposed of by this common judgment. 2 By Writ Petition No.3208/2011 under Articles 226 and 227 of the Constitution of India, the Petitioner challenges the orders passed by the Industrial Court and the Labour Court on 2nd February, 2011 and 25th October, 2007 respectively. 3 The Labour Court by the order dated 25th October, 2007 passed in Complaint (ULP) No.317 of 2002 has directed the Petitioners before this Court to reinstate the Respondent/Complainant in service on the original post and place him anywhere where work is available. However, he should be given continuity of service and full back wages from the date of his termination till the date of the order of the Labour Court by adjusting monthly wages and other benefits given to the Respondent/Complainant during the pendency of the complaint. 4 A Revision Application (ULP) No.23 of 2008 filed by the Petitioners has been dismissed by the Member, Industrial Court at Pune on 2nd February, 2011, thereby, upholding the order of the Labour Court. 5 The Petitioner is the Divisional Manager, Forest Development Corporation of Maharashtra Limited. It is a Company registered under the Companies Act, 1956. It is a Government of Maharashtra Enterprise. The Respondent filed the above mentioned complaint alleging unfair labour practices enlisted in Schedule IV Item No.1(a), (b), (d), (f) and (g) of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 (in short, MRTU & PULP Act, 1971). The Respondent *4* wp.3208.3213.11.sxw alleged in the complaint that he is working in the office of the Petitioners as Office Attendant/Assistant. The Respondent further states that he is a permanent workman. It is stated that he has been working as such from February, 1991 at the office of the Petitioners at Satara. However, the Petitioner appointed him on daily wage basis. It has been alleged specifically that although the Respondent is appointed as Office Attendant/Assistant, yet he has been working as a Class-IV employee. The Respondent has educational qualification of XIth Standard pass and, therefore, he is carrying out all routine jobs. Thereafter, in 1997 the Satara Division Project was transferred to the Pune Greenery Zone, Pune Division and, therefore, from June, 1997 the Respondent has been working at Pune Division. He was working as such till 1st December, 2002. The Respondent has completed 240 days of service in every year. It is stated that from 1st December, 2002 the Respondent was terminated orally by the Petitioners. This is contrary to and in violation of law. This act of the Petitioner amounts to an unfair labour practice and the unfair labour practices are mentioned from Paragraph 4 onwards. It is alleged that there are 1,000 permanent workmen employed at various projects all over Maharashtra by the Petitioners. They have been given benefits of all Labour Laws and legislations by the Petitioners. However, from the date the Respondent was appointed he was paid Rs.65/- per day only. The Respondent has worked throughout and he has applied by several representations in writing from December, 1997 till 31st October, 2008 that he should be confirmed in service and given all benefits. However, the Petitioners did not extend the benefits arising out of Labour Laws and instead orally terminated the services of the Respondent. All this amounts to an unfair labour practice in terms of the aforestated and aforementioned items of Schedule-IV of the MRTU & PULP Act. *5* wp.3208.3213.11.sxw Therefore, it was prayed that the complaint be allowed and directions to give permanency benefits to the Respondent be issued after setting aside the termination of services. It was prayed that the Petitioners must stop the unfair labour practices and reinstate the Respondent in service with full backwages and continuity of service. This complaint was filed on 16th December, 2002. 6 The Petitioners, after the notice was served filed their Written Statement and pointed out that the Respondent was working as a Daily Wage Employee. He was not working as Office Attendant/Assistant. He was appointed purely on Temporary Basis in the year 1991 in Satara Division which was closed in the month of June, 1997. The new Division was opened in the year 1997 at Pune for Plantation and Development at Pimpri Chinchwad on Contract Basis. There also the Respondent came on his own and on his request he was appointed again on Temporary Basis on Daily Wages for contract period which came to an end in December, 1997. As the contract work was over the Respondent was told that from 1st December, 2002 there is no work available for him. In these circumstances, there is no question of any illegal termination leave alone any unfair labour practices. For all these reasons and when the Respondent was appointed purely on Temporary Basis and for contractual work, his services have been rightly terminated. Once there is no work available for him the Respondent cannot be continued. Therefore, the complaint be dismissed. 7 Thus, it was contended that once the projects at Satara and Pune had come to an end, the work allotted to all workers in the said project came to an end. Once it has so come to an end, there cannot be *6* wp.3208.3213.11.sxw any question of unfair labour practice and therefore, the complaint be dismissed, particularly because the Respondent-Complainant was appointed on purely temporary basis on daily wages for a particular period which came to an end. On these pleadings, the issues came to be framed and the Labour Court recorded the evidence of the Respondent who in addition to his statements, produced certain documents. As far as the Petitioners are concerned, they examined two witnesses. 8 The Labour Court on appreciation and appraisal of oral and documentary evidence came to the conclusion that the Petitioners illegally terminated the Respondent on 01.12.2002 and that they have failed to prove that he was appointed on purely temporary basis. Consistent with these findings, it was held that the Petitioners have committed an unfair labour practice and that complaint deserves to be allowed. It is this order of the Labour Court which was confirmed by the Industrial Court. 9 Mr.Malpathak, learned counsel appearing for the Petitioners, submitted that the Courts below have failed to appreciate that this is not a case of any unfair labour practice. A case of unfair labour practice could have been made out provided the Petitioners can be held guilty of terminating the services of the Respondent contrary to the mandate flowing from the Industrial and Labour Laws. This is a case where the protection guaranteed by the Industrial and Labour Laws against termination were not applicable. The appointment of the Respondent was for particular projects and in particular divisions. If the Petitioners were assigned the work of a forestation or preservation of trees as a part of an ongoing scheme and for some determined period, then, calling for work such employees, would not mean that there was appointment made on a *7* wp.3208.3213.11.sxw sanctioned or vacant post in the establishment. It was availing of services for the project work. Once such is the nature of the engagement, then, the Respondent could not have alleged that any unfair labour practice has been committed. Once the contract came to an end because of project work having been concluded, there was no right which could have been claimed by the Respondent on the basis of which the services can be continued. These are contractual arrangements and all workers working in the project on temporary basis came to be terminated after Satara Unit was closed down in 1997. Further, termination of services in Pune Division w.e.f. 30.11.2002 was on account of that project coming to an end. The Petitioners appointed the Respondent as daily wage Majdoor. This was always a fresh temporary engagement. Merely because he had allegedly worked for 15 continuous years, does not mean that he was entitled to urge that there is any unfair labour practice and particularly under the items complained of. Both orders are vitiated by an error apparent on the face of record. The Courts below have erred in holding that the Respondent is still in service of the Petitioners on daily wages at some other place wherever work is available. It was also erroneous to hold that the Respondent was appointed as Office Attendant/Assistant and the assumption that he has completed 240 days every year in a span of 15 years is inconsistent with and not borne out from the record. For all these reasons, the Writ Petitions be allowed. 10 Mr.Malpathak, in support of his contentions, has relied upon the following decisions:- (1) AIR 2001 SC 3228 (Mahatma Phule Agricultural University and others. v/s Nasik Zilla Sheth Kamgar Union and others.) *8* wp.3208.3213.11.sxw (2) 2008(5) ALL MR 497 (State of Maharashtra and another v/s Pandurang Sitaram Jadhav) (3) (2009) 8 SCC 556 (Maharashtra State Road Transport Corporation and another v/s Casteribe Rajya Parivahan Karmachari Sanghatana). 11 On the other hand, Mr.Shekdar, learned counsel appearing for the Respondent/Complainant, submitted that this is Writ Petition under Articles 226 and 227 of the Constitution of India. This Writ Petition is not a further appeal challenging the orders of the Courts below. In writ jurisdiction, it is not possible to disturb and alter the concurrent findings of fact unless they are demonstrated to be perverse. In the instant case, no perversity has been demonstrated. On the other hand, it is clear from the record that the Petitioners employed the Respondent on permanent post. In the year 1997, Satara Division of the Petitioners was converted into Pune Division and accordingly, the Respondent was transferred to Pune Division. Till the date of illegal termination, namely, 01.12.2002 the Respondent had worked with the Petitioners every year for more than 240 days on daily wages of Rs.65/- per day. When the Respondent requested that the Petitioners should make him permanent and give him benefit of permanency, that there was oral termination on 01.12.2002 without any reason. This is a clear case of an unfair labour practice because the Respondent was working as a regular employee. He was not given benefits of seniority, but the persons who were junior to him were made permanent. Once the witnesses examined by the Petitioners have admitted that the Respondent was working since 1991 at Satara and that the Respondent was appointed by the Petitioners as Office Attendant, then, having worked for more than 15 years, it is clear that the Petitioners *9* wp.3208.3213.11.sxw denied him all service benefits. This is only because the Petitioners were under an impression that the Respondent being temporary and employed for a particular period. Thus, it is clear case of unfair labour practice and when the Corporation established by the State is indulging in such acts, then, all the more this Court should not interfere in writ jurisdiction. Further, the Industrial Court has not granted complete reliefs and directed the Petitioners to regularize the services of the Respondent w.e.f. 01.01.2006 by giving notional increment without computing actual monthly benefits from 01.01.2006 to 31.10.2010. The Industrial Court further directed that the Petitioners should fix the Respondent in proper pay scale by giving notional benefits from the year 2006 and pay the corrected salary i.e. after re-verification of wages w.e.f. 01.11.2010 and the remaining prayers were rejected. This is because junior employees, namely, Mr.Pise, Mr.Lipare and Mr.Nanaware who are appointed after the Respondent have been made permanent. The Writ Petition be, therefore, dismissed. 12 With the assistance of the learned counsel appearing for the parties, I have perused the petitions and annexures thereto. The impugned order of the Labour Court proceeds on the basis that the Respondent alleged that he was working with the Petitioners since 1991 as Office Assistant on daily wages of Rs.65/- per day. Although the Respondent is from Pune, the work as instructed by the Petitioners was done by him at Satara. In June, 1997, he was transferred to Pune in the office of the Divisional Manager, Forest Development Corporation at Pune. Since 1997 to 2001, he requested the Petitioners to make him permanent, but that request was not accepted. Therefore, a notice was sent on 30.10.2002 requesting for permanency and because of that notice, his *10* wp.3208.3213.11.sxw services were illegally terminated orally w.e.f. 01.12.2002. 13 The Labour Court referred to the oral evidence of the Respondent and specifically his statements therein that he was working as a regular worker, but by avoiding seniority list, his juniors were made permanent. 14 In his cross-examination, it is stated by him that Satara Unit started in 1988 and he was working on daily wages at Satara. In fact there was nothing in his cross-examination, save and except, some suggestions to falsify his case that he had worked for 240 days every year with the Petitioners. He denied all suggestions and particularly that he was appointed purely on temporary basis and his services came to an end with closure of Satara Unit. He also denied the case that he was again appointed on daily wages as purely temporary employee on his request for a contract period at Pune Unit. 15 As far as the Petitioners’ evidence is concerned, the witnesses stated that in the month of December, 1987 under the scheme of Social Forestry Satara, the Forest Division was opened at Satara and it was closed down in December, 1997. However, in June, 1997, Pune Greening Unit was opened for a particular contract work with the Pimpri Chinchwad Municipal Corporation (in short, PCMC). The Respondent was working at Satara on daily wages and after closure of that division at Satara, he himself came to Pune and on his request, he was again appointed on temporary basis under the contract for a contract period on daily wages of Rs.65/- per day. It is stated that a notice was displayed on 30.11.2002 by the Petitioners that no work would be available w.e.f. *11* wp.3208.3213.11.sxw 01.12.2002 and after completion of contract work, Pune Greening Unit was closed down on 30.04.2003. 16 However, in the cross-examination of these witnesses examined by the Petitioners, they admitted that the Respondent was working since 1991 at Satara till the date of closure and he had many times requested that he should be made permanent. The witnesses admitted the xerox copies of 10 pay slips (Exhibit C-23 collectively) issued by the Petitioners to the Respondent. Both of them have, thus, not falsified the case of the Respondent of having completed 240 days service every year. His designation as Office Attendant/Assistant was also admitted. 17 The Courts below have concluded that the Petitioners have appointed the Respondent as Office Attendant, but they gave him every type of work. Once the Petitioners do not deny that the Respondent has worked for 240 days in every year and that fact is evident by the pay slips, so also, designation and they are not sure as to whether, the Petitioners appointed the Respondent as temporary hand or daily wage worker, then, the inference drawn against the Petitioners cannot be said to be vitiated by an error apparent on the face of record or perversity. It may be that the Petitioners have established their Units and were undertaking some Social Forestry and Greenery work for public bodies under a contract, but for demonstrating and proving that the Respondent was engaged by them only for this work and no other work or regular work of their establishment, something more was necessary and by such statements, they cannot succeed in dislodging the Respondent’s case. The clear fact emerging from the record is that their Divisions at Satara and Pune have been made functional in the same year. Even from a reading of their *12* wp.3208.3213.11.sxw memo of revision application, it is apparent that they do not dispute that there was a division at Satara and that was established in December, 1970 and it was closed, according to them, in the year 1997. However, they admit that in the year 1997 itself they engaged the services of the Respondent for the contract with PCMC. However, when they state that he was appointed temporarily and was assigned the work under a contract job, then, they ought to have proved that the Respondent has performed the duties all throughout on this understanding with full knowledge that his status cannot be equated with permanent and regular employees of the Petitioner Corporation. However, while meeting his case of illegal oral termination, all this has been pleaded. If this was the pleading, it must be certainly based on some documents. However, it is apparent that they have not produced any documents which would reinforce this understanding and temporary arrangement as between them and the Respondent. On the other hand, in the same breath, they admit the contents of the pay slips that have been produced on record and do not falsify the claim of the Respondent that he has worked for 240 days in a year. 18 The Respondent’s case that he was transferred from Satara to Pune is also not satisfactorily dealt with leave alone fully falsified by the Petitioners. It has come on record that the Respondent is still in service on daily wages at some other place wherever work is available with the Petitioners. In these circumstances and when the Petitioners failed to prove their case that the Respondent was appointed on purely temporary basis for a particular period, then, the orders rendered by the Courts below do not require any interference in writ jurisdiction. The Courts below have rightly concluded that this is nothing but a case of denial of *13* wp.3208.3213.11.sxw benefits of permanency. In fact the Labour Court directed reinstatement with full back wages and posting at any place anywhere work is available, but the Respondent has filed an affidavit in this Writ Petition No. 3208/2011 in which he has stated that the learned Industrial Court has allowed a separate complaint of unfair labour practices under Items 5, 6 and 9 of the Schedule-IV of the MRTU & PULP Act, 1971 wherein a request was made for regularization of his services and permanency benefits. In this context, in paragraph 5 of his affidavit in reply, this is what is stated:- “5. I say that besides above I was constrained to file the separate complaint of unfair labour practice under items 5, 6 & 9 before the Hon’ble Industrial Court for regularization of my services and permanency benefits. The junior employees Mr.Pise, Mr.Lipare, Mr.Nanaware who were appointed after me were made permanent. The learned Industrial Court was pleased to allow my complaint partly and directed the petitioner to regularize my services w.e.f. 01.01.2006 by giving notional increments without making actual monthly benefits from 01.01.2006 to 31.10.2010 and further directed the petitioner to fix me in proper pay scale by giving notional benefits from the year 2006 and pay my corrected salary i.e. after re-verification of wages w.e.f. 01.11.2010. The remaining prayers were rejected. Though I am entitled for larger relief of permanency from the year 1991 the learned Industrial Court passed the balancing order and safeguarded the interest of the petitioner that they should not be burdened, still they filed this writ petition without any basis, which deserves to be dismissed.” 19 The first complaint being Complaint (ULP) No.317/2002 only alleges unfair labour practices under items 1(a), (b), (d), (f) and (g) of Schedule-IV of the MRTU & PULP Act, 1971, but there is no rejoinder filed by the Petitioners controverting the above statements in paragraph 5 of *14* wp.3208.3213.11.sxw the affidavit in reply. 20 In the entire memo of the Writ Petition No.3208/2011, there is no reference to any other complaint and particularly the directions referred in paragraph 5 of the affidavit in reply. The reply is filed in this court and a copy thereof was duly served on the Petitioners. 21 Mr.Malpathak, however, urged that there is companion Writ Petition which is numbered as Writ Petition No.3213/2011 in which the order of the Industrial Court as far as the above directions are concerned, is challenged. On perusal of Writ Petition No.3213/2011 with the able assistance of the learned counsel appearing for the parties, leaves me in no manner of doubt that the reasoning, upon which the ultimate direction has been issued, is consistent with the pleadings of the Respondent in Complaint (ULP) No.416/2005. Therein after setting out the allegations which are common to both complaints and specifically stating that having worked continuously for 10 years and 11 months more, so also, seeking permanency benefits orally as well as in writing from 1997 till the date of oral termination, that the same have been denied and this is unfair labour practice. It was stated that because of the oral termination effected on 01.12.2002, the complaint of unfair labour practice which is subject matter of Writ Petition No.3208/2011 was filed. Therein the Respondent applied for interim reliefs. However, the application Exhibit U-2 for interim reliefs was dismissed on 24.01.2003. The Respondent being aggrieved and dissatisfied by the said order filed a revision application under section 44 of the MRTU & PULP Act, 1971 being Revision Application (ULP) No.33/2003, that revision application was decided on 16.06.2003 and the Industrial Court/ revisional court directed the *15* wp.3208.3213.11.sxw Petitioners herein to continue the Respondent’s services. The Petitioners did not continue him as Office Attendant/ Assistant, but posted him as Watchman and allowed him to report from 12.08.2003. They have not paid him the wages of Office Attendant/ Assistant which was at Rs.83/- per day in 1998-99 and thereafter, it was enhanced to Rs.87/- per day in 1999-2000. The Petitioners continued him on daily wage of Rs.65/- per day only. Thus, they continued to exploit him by denying him all benefits of permanency and deprived him of his monetary entitlement. Even when that complaint was being tried, it is apparent that the Respondent stepped into the witness box and reiterated all the allegations in relation to his service. The Petitioners now argue that the Respondent’s version throughout was that when Satara Division was closed and Pune Division became functional, the Respondent approached the Petitioners for giving him work of temporary nature on daily wages and that is how they employed him. This is the stand of the Petitioners in their Written Statement filed in Complaint (ULP) No.416/2005. However, this version in the Written Statement has not been proved. On the other hand, what the Member, Industrial Court has observed in his order dated 10.11.2010 in Complaint (ULP) No.416/2005 is as under:- “6. It appears that after filing the present complaint, the Ld. Labour Judge has decided the Comp. (ULP) No.317/2002 by judgment