1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 3289 OF 2002 WITH CIVIL APPLICATION NO. 4641 OF 2005 WITH CIVIL APPLICATION NO. 710 OF 2009 Godawari Marathwada Patbandhare Vikas Mahamandal, Thorugh the Sub Divisional Officer, Minor Irrigation Survey, Sub Division Shrirampur, ...Petitioner District Ahmednagar (first party) Versus Devidas s/o Ganpat Pawar, Age 50 years, Occ. Nil, R/o. Ghogargaon, Tal. Newasa, ...Respondent District Ahmednagar (second party) ..... Mr. T.B. Bhosale, advocate for the petitioner Mr. M.G. Kolshe Patil, advocate for respondent ..... CORAM : S. S. SHINDE, J. DATE OF RESERVATION : 23 .09.2009 OF JUDGMENT DATE OF PRONOUCNEMENT : 07.10.2009 OF JUDGMENT ORAL JUDGMENT:- 1 This writ petition is filed challenging the judgment and award dated 11.7.2001 passed in Reference IDA No. 11 of 1993 by the 2 learned Judge, Labour Court, Ahmednagar. 2 The background facts of the case are as under:- The office of Deputy Commissioner of Labour Nashik submitted the said Reference under sub section 1 of Section 10 r.w. Sub section 5 of Section 12 of the Industrial Dispute Act 1947 to the Labour Court. A demand notice was issued on 4.9.1991 alleging that second party i.e. respondent herein was engaged since last about six years in the employment of the petitioner, prior to his termination from the service. His services were terminated w.e.f. 26.7.1991 without pre intimation and illegally. It is further stated that the justification of claim was also submitted, however, due to failure of counsel, the reference was submitted. As per the contention of the first party i.e. the present petitioner, second party i.e. present respondent has not served for 240 days in a calender year. The statement of claim is filed by the respondent, which was at Exh.U-3 before the Labour Court. It was specifically pleaded by the respondent that he was engaged on daily wages w.e.f. 21.5.1985. He was continued till 26.7.1991. His services were terminated w.e.f. 26.7.1991 without compliance of section 25-F of the Industrial Dispute Act. It is the case of the respondent that actually he has worked for more than 240 days in each calender year. 3 According to the respondent, his termination was illegal. The persons, who are juniors to the respondent, are also made permanent. New candidates were also appointed after termination of service of the respondent. The petitioner herein filed written statement before the Labour Court contending that the respondent herein was engaged since 21.5.1986. It is denied that the respondent has worked continuously for more than 240 days in a calender year. It is denied that no juniors were continued and no new candidates were appointed. As per the contention of the petitioner, the second party i.e. respondent was appointed as Choukidar on daily-wages for temporary work during the period from 1.4.1986 to 26.7.1991. After completion of the said work the services of the second party were terminated w.e.f. 26.7.1991. The respondent was provided work whenever his services were required. No any written order of appointment or termination was issued in favour of the respondent. He was discontinued as and when the work was completed. No any Choukidar was appointed. It is further contended that reference is not filed within prescribed time of limitation. It appears that the lower court framed as many as nine issues for its consideration and determination. While answering issue Nos. 1 to 5, the labour court has recorded the findings that it is not disputed 4 that the second party is workman and first party is an industry. It is further recorded that the counsel for the first party could not satisfy the court as to on what ground the present reference is not maintainable as well as how the Labour Court has no jurisdiction to entertain the reference. It is further recorded that when there is dispute between the workman and the employer, then the labour court is certainly has jurisdiction to entertain the reference. While answering issue No.4, the court held that on perusal of the chart submitted by the Conciliation Officer the engagement of the second party was for the period from 1.4.1986 till 25.7.1991. While answering issue No.5, the court held that the respondent was continuously in service till 25.7.1991 in the employment of the petitioner. While answering the said issue, this court has discussed the proof of service put in by the respondent and came to the conclusion that the respondent has completed 240 days service before his alleged termination. While answering issue No.7 the court has come to the conclusion that there is no any record to show by the first party that the juniors were not made permanent. While answering issue No.8, the trial court held that the second party i.e. respondent herein is entitled for continuity of service and back wages with reinstatement. By answering issue No.9 the court allowed the reference and the petitioner herein was directed to reinstate the respondent within eight months from the date of passing of award with continuity of service with full back wages w.e.f. 26.7.1991. It was further declared that the termination of services of the second party 5 w.e.f. 26.7.1991 is illegal and contrary to the provisions of law and therefore, the same is set aside. Being aggrieved by the judgment and order passed by the Labour Court, the petitioner has filed the instant writ petition. 3 Learned counsel appearing for the petitioner submitted that the petitioner herein is a statutory body and legal entity which is established by virtue of the provisions of the Maharashtra Godavari Marathwada Irrigation Development Act No. 23 of 1998 and has came into existence w.e.f. 1.10.1998. By virtue of the Section 15 of the said Act all the development works, property rights and liabilities of Government concerning development works are transferred to the petitioner Corporation including the wages and salary of the servants, who are taken on deputation from the Government. The petitioner Corporation is liable to pay the past and future liabilities in respect of the lands which are acquired by the Government for the project which are transferred to Corporation from Minor Irrigation Division II, Sangamner, which is nucleus of the subject matter of the present writ petition is also one of the project which is transferred to this Corporation. Learned counsel submitted that the respondent herein was engaged for one of the project which came to be transferred by the 6 Government of Maharashtra to the petitioner Corporation. Learned counsel submitted that the respondent was engaged on temporary basis to work as watchman at Pachegaon project on daily wages on 1.4.1986 and from 25.7.1991 in Minor irrigation Survey Sub-Division at Shrirampur. It is further argued that the respondent has never completed 240 days continuous service with the Corporation in one calender year. The respondent was appointed as daily wages worker for a specific period purely on temporary basis. After completion of the said work, there was no work available with the petitioner Corporation and therefore, the services of the respondent have been terminated orally in the year 1991. Since 1991 till this date, the respondent is not in the service of the petitioner Corporation. Neither appointment order nor termination order issued by petitioner Corporation in writing to the respondent. According to learned counsel, the petitioner Corporation does not fall within the definition of Industry. Learned counsel further submitted that the Labour Court failed to appreciate that the respondent was not appointed as permanent employee, as he has not completed continuous service of 240 days in one year, at any point of time. Hence, he is out of service from the year 1991 and there is no question of his reinstatement and continuity of service. The complaint is not at all tenable under Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practice Act, 1971 (hereinafter for the sake of brevity referred to the “MRTU and PULP Act”). According to the learned counsel, the findings recorded by the court below is not 7 according to the facts of the case and evidence on record as well as the provisions of law does not support the case of the respondent, therefore, the judgment and award passed by the Labour Court deserves to be set aside. It is further submitted that since 1991 till date the respondent is out of service. His services have been orally terminated and therefore, there is no question of payment of full back wages and continuity of service as directed by the Labour Court. According to the learned counsel for about 18 years the respondent is not in service of the petitioner and therefore, there is no question of continuity and full back wages as directed by the Labour Court. Learned counsel invited my attention to the fact that the Corporation, as per Section 17-B of the Industrial Dispute Act, has deposited 50% of the amount as per the interim order passed by this Court the same has been withdrawn by the respondent. According to the learned counsel in fact the respondent is not entitled to withdraw single pai from the amount deposited by the petitioner. According to the learned counsel, termination of the respondent is oral one. The chart submitted at page 19 in the writ petition, clearly shows that the working days of the respondent with Executive Engineer, Shrirampur and from its perusal it reveals that the respondent never completed 240 days continuous service in one calender year. The work alloted to him during the said period is not by any written order. Learned counsel further submitted that there are catena of decisions, on the subject matter involved in the writ petition. This Court as well as the Hon’ble 8 Supreme Court, in number of cases held that the person, who was not appointed on sanctioned post, has no right to continue in the service and any directions of continuation of his services and daily wages, is not sustainable in law. In support of his contention learned counsel placed reliance on the following judgments;- i) Dnyandeo s/o Ganpati Sonvane Vs. Executive Engineer, Sarvajanik Bandhkam Vibhag (P.W.D. Latur & Anr. Reported in 2009 (2) Mh.L.J. 132 ii) NRK House Mumbai Vs. P.V. Tommy and Anr. Reported in 2009 (2) Mh.L.J. 358 iii) General Secretary, Van Shramik Sangh, Sangli Vs. Director Social Forestry, M.S. Pune & Ors. Reported in 2009 (2) Mh.L.J. 956 iv) ONGC Ltd. And Anr. Vs. Shyamlal Chandra Bhowmik, reported in 2006 (1) SCC 337 v) State of Orissa Vs. Balaram Sahu reported in 2002 AIR SCW 4421 vi) Range Forest Officer Vs. S.T. Hadimant reported in 2002 AIR SC 1147 vii) M/s. Haryana State F.C.C. W. Store Ltd. Vs. Ram Niwas reported in 2002 AIR SCW 2804 9 viii) M/s. National Aluminum Co. Ltd. Vs. Deepak Kumar Panda reported in 2002 AIR SCW 2808 ix) R. Ganeshan Vs. Union of India and others reported in1993 Mh.L.J. 506 x) Madhyamik Shiksha Parishad U.P. Vs. Anilkumar Mishra and others reported in AIR 1994 SC 1638 xi) W.P. No. 3368 of 1993 The Executive Engineer, Nandur Madmeshwar Canal Division Vaijapur Vs. Sk. Abdul Sk. Babu and Ors. Therefore, learned counsel would submit that impugned judgment and award passed by the Labour Court is not sustainable in law. Learned counsel further invited my attention to the interim order passed by this Court and submitted that this Court by interim order has already protected the interest of the petitioner, therefore, the learned counsel would submit that person who has no work from 1991 till date cannot be reinstated and no daily wager can be paid or no continuity of any service can be granted to such person as directed by the Labour Court and therefore, he prayed that this writ petition deserves to be allowed. 10 4 Learned counsel appearing for the respondent invited my attention to the affidavit in reply filed by the respondent in the writ petition and submitted that the petitioner has not approached this Court with clean hands and not given detailed particulars regarding his authorization to file the instant writ petition. According to the learned counsel, the petitioner has not complied procedure under Order 1 Rule 2 of C.P.C. to file the writ petition in representative capacity on behalf of the irrigation department. Learned counsel further submitted that the petitioner has not followed seniority list while allowing the claim of the workmen, who were juniors to the respondent, as per the Kalelkar award. The petitioners have not followed the rules and regulations and the provisions of Industrial Dispute Act, which are applicable to the case of the respondent. According to the learned counsel the respondent has completed 240 days service in a calender year since the date of appointment and upto the date of retrenchment as per the muster roll maintained by the petitioner. The petitioner has suppressed material fact regarding permanent appointment of the employees who are juniors to the respondent those are i) Dattatraya Suryabhan Shelar, ii) Dattatraya Ambadas Kanse, iii) Balasaheb Bhairavnath Narode and iv) Mahadeo Tolaji Datir. Therefore, the labour Court has given findings on this point that the petitioner department has failed to produce material evidence on record before the Labour Court. Learned counsel further submitted that it is admitted position that junior employee to the respondent are made permanent by the petitioner as 11 per the findings given by the labour court, therefore, the petitioner has clearly violated the provisions of Industrial Dispute Act which are applicable to the irrigation department and more particularly in the case of the respondent. Learned counsel further submitted that since the date of retrenchment, the respondent is jobless and inspite of the several steps taken by the respondent, the office of the petitioner declined to accept the request. According to the learned counsel the petitioner have violated the provisions of Industrial Dispute Act under Section 25-F. The petitioner have also not produced any kind of evidence before the labour court. The nature of work which was given to the respondent was of permanent nature. According to the learned counsel, the labour court has given finding on all aspects and therefore, the in view of pronouncements of the Hon'ble Apex Court in the case of Deep Chandra Vs. State of U.P. reported in 2001 AIR SCW 4862 (2), writ petition deserves to be dismissed. It is further submitted that the findings recorded by the Labour Court are based on the action of the petitioner thereby violating the provisions of Industrial Dispute Act. According to the learned counsel the Labour Court has correctly came to the conclusion that the respondent has completed 240 days service in a calender year and therefore, he is entitled for continuity in service. It is submitted that the provisions of Industrial Dispute Act are squarely applicable in the present case. Learned counsel invited my attention to the reported judgment of the Supreme Court in the case of Des Raj etc. Vs. State of Punjab and others, reported in AIR 12 1988 SC 1182 to contend that the department of irrigation can be termed as an Industry. Learned counsel further placed reliance on the reported judgment of the Hon'ble Supreme court in the case of Banglore Water Supply & Sewerage Board Vs. a. Rajappa and others, reported in (1978) 2 SCC 213 to contend that the petitioner department is an industry. It is further submitted that the Executive Engineer of Irrigation department had orally appointed the respondent as Choukidar in the year 1985 on daily-wages, without issuing any written order. The respondent subsequently worked, he was continued on same post from 1.4.1986 by taking his name in muster roll and continued till 26.7.1991 without any break in the service for about six years. According to the learned counsel the respondent issued legal notice to the petitioner due to oral retrenchment on 26.7.1991 stating therein that the services of the respondent are not terminated by following due procedure prescribed under Section 25-F of the Industrial Dispute Act. He has completed 240 days service in a calender year in last six years. It is further submitted that the Labour Court after framing necessary issues has came to the conclusion that the respondent is entitled for continuity in service and accordingly it was directed to the petitioner to pay back wages to the respondent. Learned counsel further submitted that the petitioner was not party to the proceeding before the learned Labour Court. The Corporation has filed this petition before this Court without taking leave from this Court under 13 Order 1 Rule 8 of C.P.C. as per the law laid down in the case of Ramchander Sunda and another Vs. Union of India and others, reported (1999) 9 SCC 105. It is further submitted that there is clear breach in maintaining seniority list by the petitioner and the candidates who are juniors to the respondent have been appointed. It is further submitted that the seniority list produced on record clearly shows that there are four workmen appointed on same post as Choukidar, who are juniors to the respondent, are continued in service. All persons who are mentioned in the list are juniors to the respondent and they have taken CRT on 25.10.2004. Learned counsel invited my attention to the list of the candidates placed on record and submitted that all 43 workmen are juniors to the respondent, who are given appointment as Choukidar. Learned counsel further submitted that the department has passed resolution and made all these 43 workmen referred above permanent on CRT on the post of Choukidar and they are made permanent in the service. Learned counsel further submitted that the Labour Court has rightly observed that the working days of the respondent are rendered by the petitioner employer on the basis of the financial year and not on the basis of calender year and same calculation is made by excluding weekly off and public holidays and therefore, the Labour Court came to the conclusion that the respondent has completed 240 days service in one calender year including the weekly off and public holidays. Learned counsel further submitted that the Labour Court has rightly found that the petitioner 14 has not produced any evidence on record to hold that the respondent was not in continuous service of the petitioner. It is further submitted that the respondent was continued on the post of Choukidar till his services were orally terminated. Learned counsel submitted that while terminating the services of the respondent, the provisions of Sections 25-F and 25-G of the Industrial Dispute Act are not followed by the petitioner. Learned counsel in support of his contention has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Deep Chandra (supra) and in the case of M.C.D. Vs. Pravinkumar Jain, reported in 1998 (9) SCC 468. According to the learned counsel, the irrigation department is an industry as per the settled principle in the case as held by the Supreme court in reported judgment in the case of Des Raj etc. (supra) and in the case of Sham Vs. State of Maharashtra, reported in 2007 1 All M.R. 810 as well as in the case of Bangalore Water supply (supra). Learned counsel further submitted that the ratio laid down by the Hon'ble Supreme Court in the case of State of U.P. Vs. Ram Chandra Trivedi, reported in AIR 1976 SC 2547, and contented that para 22 is binding on this court. It is further submitted that the point involved in this petition has been adjudicated by the Division Bench of this Court in L.P.A. No. 53 of 2005 filed by the petitioners herein and by judgment and order dated 2.3.2005 the L.P.A. came to be rejected and the petitioners have not filed any proceeding before the Hon'ble Apex Court challenging the said decision rendered by the Division Bench of 15 this Court in the said L.P.A. Therefore, learned counsel would submit that this petition also deserves to be dismissed. Learned counsel further submitted that one Ashok Kondiram Ragh, who was also working with the petitioner employer, was junior to the petitioner, filed complaint before the Labour Court against the oral retrenchment. His complaint was allowed by the labour Court. The petitioner therein filed writ petition before this Court which also came to be rejected. Thereafter S.L.P. was filed before the Supreme Court the same was also rejected. Learned counsel submitted that the parties were directed to maintain status during pendency of the writ petition. This Court allowed the respondent to withdraw the amount deposited in this Court towards the compliance of Section 17-B of the Industrial Dispute Act. Learned counsel further submitted that respondent is now age barred and therefore, if his case is thrown out he will be face starvation and therefore, the learned counsel would submit that the judgment and award passed by the Labour Court needs no interference by this Court. Learned counsel placed reliance on the various judgments of the Supreme Court in support of his contention i.e. i) V.O. Corporation Ltd. Vs. Hindustan Veg. Oils Corporation Ltd. And others, reported in 2001 AIR SCW 2282, ii) Haryana Urban Development Authority Vs. Devi Dayal, reported in 2002 AIR SCW 1128, iii) M.C.D. Vs. Praveen Kumar Jain and Others reported in (1998) 9 SCC 468, iv) Ramchander Sunda and another Vs. Union of India and others, reported in (1999) 9 SCC 105, v) Des Raje etc. Vs. State of Punjab and others reported in 16 AIR 1988 SC 1182, vi) The Custodian of Evacuee Property Vs. Smt. Rabia Bai, reported in AIR 1976 2557, vii) Shashikant Govind Maigaonkar Vs. State of Maharashtra and Ors, reported in 2003 (1) ALL M.R. 810 and viii) Bangalore Water Supply & Sewerage Board Vs. A Rajappa and others, reported in (1978) 2 SCC 213. 5 I have heard learned counsel appearing for the petitioner and the learned counsel appearing for the respondent at great length. On perusal of the impugned judgment and award it would disclose certain facts, which are necessary to be taken a note at the beginning itself. In para 8 of the judgment, the Labour court has taken a notice of the evidence produced on behalf of the respondent herein which was at Exh.C-4 and also evidence of the petitioner herein was placed at Exh.C-5. The labour Court has recoded that it is not disputed that the second party is workman and the first party is an Industry. The court further recorded that the counsel for the petitioner herein appearing before the Labour Court could not satisfy the court as to on which ground the reference is not maintainable as well as the Labour Court has no jurisdiction to entertain the reference. The Court has further recorded that when there is an industrial dispute between the workman and the employer, then the Labour Court has jurisdiction to entertain the reference. The court has also held that the reference is not barred by limitation. 17 In para 9 of the judgment, the court has recorded that it is not seriously disputed by the petitioner herein that the respondent is working since 1985. The Labour Court has referred to the chart submitted by the Conciliation Officer of the first party alongwith the acknowledgment of the second party in which it is clearly mentioned that since 1.4.1986 till 25.7.1991 the respondent was engaged. The court has also taken a note that the Exh.C-5 which is extract filed by the first party at Exh. C-5/1. The chart filed alongwith Exh.C-5 is also similar to the chart submitted by the Conciliation Officer. Therefore, the Labour Court recorded the findings that the respondent herein was in service of the petitioner since 1.4.1986 till 25.7.1991. In para 10 the Labour Court has recorded that service chart shows that the certain breaks given to the second party and the respondent is serving with the certain breaks till 25.7.1991. In para 11 the court has observed that the Conciliation chart submitted by Conciliation Officer is not according to the calender year however, is according to financial year. The Labour Court