1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD WRIT PETITION NO. 4648 OF 1996 1. The District Manager, Maharashtra State Seeds Corporation Ltd., District Office, Market Yard, Ahmednagar ...Petitioner VERSUS 1. Shri Nandu Jyotiba Jadhav, age major, occ. Nil., r/o Pansare Chawl, Malhar Chowk, Station Road, Ahmednagar, 2. The State of Maharashtra. ...Respondents ..... Shri C.K.Shinde, advocate for the petitioner Shri V.S.Bedre, advocate for the respondent no.1 Shri K.S.Patil, A.G.P. for respondent no.2. ..... CORAM : SHRIHARI P. DAVARE, J. DATE OF RESERVING THE JUDGMENT : 18.6.2009 DATE OF PRONOUNCING THE JUDGMENT : 01.7.2009 2 J U D G M E N T : 1. Perused. 2. By the present Writ Petition, the petitioner has assailed the order passed by the learned Judge, Ist Labour Court, Ahmednagar, in Complaint (ULP) No. 60 of 1989 on23.1.1996 and prayed that same be quashed and set aside. 3. The factual matrix, in brief, are that the petitioner is the Maharashtra State seeds Corporation Limited, a company registered under the Companies Act, having Head office at Akola, which is established to produce and supply the quality agricultural seeds from the agriculturists having no commercial object. Respondent no.1 was Peon in the employment of the petitioner since 15.6.1985 and was getting daily wages of Rs.16/- per day. Respondent no.1 (original complainant) had filed Complaint (ULP) No. 125 of 1989 before the Industrial Court, Ahmednagar on23.1.1989 alleging unfair labour practice under Items 5, 6 and 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (M.R.T.U. & P.U.L.P. Act, 1971). Interim order was passed on 3 28.3.1989 directing the respondents therein i.e. the petitioners herein not to terminate the services of the said complainant without following due procedure of law. However, thereafter respondent no.1 was removed from services on 31.3.1989. 4. Hence, respondent no.1 filed Complaint (ULP) No. 60 of 1989 before the Labour Court and alleged that he was removed from services illegally without following due procedure of law as directed by way of interim order dated 28.3.1989 in Complaint (ULP) No. 125 of 1989 by the Industrial Court, Ahmednagar and also without following due procedure of law of retrenchment under the Industrial Disputes Act. 5. The petitioner herein filed the written statement in the said complaint and contested the said complaint. After recording the evidence, the learned Judge, Ist Labour Court, Ahmednagar held that the petitioner herein followed unfair labour practice under Item No.1 of Schedule IV of the M.R.T.U. & P.U.L.P. Act, 1971 and directed the petitioner herein to desist from it and also directed to reinstate respondent no.1 herein in his original post with continuity of service and further directed to pay the back wages to respondent no.1 from the date of his termination till the date of said order at the rate of Rs.16/- per day vide judgment 4 and order dated 23.1.1996. 6. Being aggrieved by the said judgment and order, the petitioner herein preferred Revision (ULP) No. 17 of 1996 before the Member, Industrial Court, Ahmednagar. Respondent no.1 herein challenged his retrenchment mainly on three grounds as follows : (1)Seniority List was not published before the retrenchment of respondent no.1 herein; (2)Seniority List was not published by the respondent as per Rule 81 of the Industrial Disputes Act which was obligatory on the part of the employer; and (3)Adequate retrenchment compensation was not paid to the employee i.e. Respondent no.1 herein. 7. However, the learned Member, Industrial Court, Ahmednagar while passing the judgment and while dismissing the said Revision on 27.8.1996 negatived the first two grounds observing that Rule 81 of the Industrial Disputes Act, 1947 is not mandatory and it is directory provision incorporated in the Act and, therefore, the seniority list which was prepared by the petitioner herein, though it could be defective seniority list it 5 would not affect retrenchment order. However, the learned Member, Industrial Court, Ahmednagar while delivering the said judgment answered the third ground in the affirmative holding that adequate retrenchment compensation was not paid to the employee and concurred with the view of the learned Judge, Ist Labour Court, Ahmednagar and thereby dismissed the said Revision filed by the petitioner herein on 27.8.1996 as afore said. 8. Hence, the question involved in the present Writ Petition is having very narrow compass that whether the petitioner herein complied with the provisions of Section 25F of the Industrial Disputes Act before terminating the services of respondent no.1 ? In the said context, the learned counsel for the petitioner pointed out that respondent no.1 himself stated in his deposition para 1 on 19.11.1994 that he joined the services of the respondent (petitioner herein) on 16.6.1985 as a Peon and his last drawn wages were Rs.16/- per day. He also stated that he was working in Ahmednagar office as a Peon since 15.3.1985. Admittedly, respondent no.1 herein was working with the petitioner since 15.3.1985 as a Peon and not from 16.6.1985 and there is no dispute about the same. He further stated in para 2 of his deposition that he was terminated thereafter on 31.3.1989. He stated his grievance in para 3 of the deposition that the 6 respondent has not paid him the retrenchment compensation, notice pay or one month’s salary in lieu of notice nor he was given pre-intimation before termination. He further stated in para 9 of his deposition that he was getting Rs.10/- per day initially and thereafter it was increased up to Rs.16/- per day. There was no deduction towards Provident Fund from his wages. He also admitted that at the time of his termination he was paid one month’s wages in lieu of notice, but denied that he was paid adequate retrenchment compensation. He further stated that according to him his last drawn monthly wages were Rs.480/- in accordance with daily wages which he was getting. 9. Learned counsel for the petitioner herein pointed out that amount of Rs.1665/- was paid to respondent no.1 herein towards the notice pay and retrenchment compensation. However, the learned Judge, Ist Labour Court, Ahmednagar did not exhibit the vital documents annexed herewith at page nos. 16, 17, 18 and 20 though produced at the belated stage in that respect and, therefore, submitted that the said inaction resulted into miscarriage of justice. 10. Learned counsel for the petitioner also pointed out that as admitted by respondent no.1 herein and as mentioned herein 7 above, his initial wages were Rs.10/- per day which was increased subsequently as Rs.16/- per day and even assuming for the sake of assumption he worked for 30 days in a month, his monthly wages would be Rs.480/- and amount of Rs.480/- can be construed as one month’s notice pay as per Section 25F(a) of the Industrial Disputes Act, 1947. As regards the retrenchment compensation in accordance with Section 25F(b) of the Industrial Disputes Act, 1947, which shall be equivalent of 15 days average pay for every completed year of continuous service or part thereof in excess of six months can be computed as 240x4=960/-, since admittedly respondent no.1 herein has completed 4 years service i.e. From 15.3.1985 to 31.3.1989. One month’s notice pay as per Sec.25F(a) of the Industrial Disputes Act; Rs. 480.00 Retrenchment compensation/15 days average pay for for 4 years as per Sec.25F(b) of the Industrial Disputes Act Rs.240 x 4 = Rs.960/- Rs. 960.00 ---------------------- Total ...... .... Rs.1,440.00 ---------------------- 11. Learned counsel for the petitioner pointed out that the 8 petitioner herein has paid the amount of Rs.1,665/- to respondent no.1 herein and, therefore, the learned counsel for the petitioner canvassed that the petitioner has complied with the provisions of Section 25F(a) and 25F(b) of the Industrial Disputes Act, 1947. 12. As regards compliance of Section 25F(c) of the Industrial Disputes Act, 1947, the learned counsel for the petitioner pointed out that the notice dated 31.3.1989 in the prescribed Form No. V was served upon the appropriate Government Authority by the petitioner herein and copy thereof is produced at Exh. ’B’ along with present Writ Petition and the same was produced before the learned Judge, Ist Labour Court, Ahmednagar, although at the belated stage,but same was not exhibited by him. 13. Keeping in mind the said submissions made by the learned counsel for the petitioners and turning to the impugned judgment and order passed by the learned Judge, Ist Labour Court, Ahmednagar on 23.1.1996, the learned Judge while computing the payment of notice pay and retrenchment compensation considered 30 days wages of respondent no.1 herein as 555/- and retrenchment compensation as Rs.1,110/-, which is 2 months pay i.e. 15 days average pay for 4 years tenure 9 of service and even if the said calculation is assumed, the notice pay would be Rs.555/- and 15 days average pay for the four completed years would be Rs.1,110/-, totaling Rs.1,665/- and amount of Rs.1,665/- was paid by the petitioner to respondent no.1 on 31.3.1989 under his receipt and copy thereof is produced at page no.20 of the present compilation which was also produced before the learned Judge, Ist Labour Court, Aurangabad, though at the belated stage, but the said court did not exhibit the same. 14. Hence, in view of the said position, even after considering both the angles and both the calculations as mentioned herein above in respect of payment of one month’s notice pay, as per Section 25F(a) of the Industrial Disputes Act, 1947; and retrenchment compensation of 15 days average pay towards the service of respondent no.1 for four years as per Section 25F(b) of the Industrial Disputes Act, 1947, it is apparently clear that the petitioner herein has complied with the provisions of Section 25F(a) and 25F(b) of the Industrial Disputes Act, 1947; as well as complied with the provisions of Section 25F(c) of the Industrial Disputes Act, 1947 since the notice in the prescribed manner was served on the appropriate authority on 31.3.1989 itself as mentioned herein above and hence, it is amply clear that the finding given by the learned Judge, Ist Labour Court, 10 Ahmednagar, that the mandatory provisions, while retrenching the employee, have not been strictly followed and thus illegality occurred in the termination of the complainant, bears no substance and the same is required to be quashed and set aside. Once the said finding is faulted with, consequential reliefs given by the learned Judge, Ist Labour Court, Ahmednagar to respondent no.1 herein in respect of reinstatement and continuity of service with back wages from the date of termination till the said order i.e. 23.1.1996 also will not sustain and same are also required to be quashed and set aside. 15. It was canvassed by the learned counsel for respondent no.1 that the petitioner did not prove by cogent evidence the monthly wages of respondent no.1 herein and, therefore, the calculations made by the petitioner in respect of compliance of Section 25F(a) and (b) of the Industrial Disputes Act, 1947 are based upon incorrect basis and foundation. However, it is the settled principle of law that the admitted facts need no be proved and as mentioned herein above, respondent no.1 himself has admitted in his examination-in-chief para 1 thereof on 19.11.1994 that his last drawn wages were Rs.16/-per day and he was working with the petitioner since 15.3.1985 to 31.3.1989 i.e. he completed 4 years and he also stated in para 9 11 in the cross-examination that he was getting Rs.10/- per day initially and thereafter it was increased up to Rs.16/- per day and there were no deductions towards provident fund from his wages. He also admitted that when he was terminated he was paid one month’s wages in lieu of notice pay, but he denied that he was paid adequate retrenchment compensation and hence, since respondent no.1 herein admitted his wages initially as Rs.10/- per day which were increased to Rs.16/- per day later on, there was no necessity to produce any cogent documentary evidence in that respect. Accordingly there is no substance in the arguments canvassed by the learned counsel for respondent no. 1 in that respect. 16. Moreover, the learned counsel for the petitioner also relied upon the case reported at AIR 1997 SC 3657 (K.Ramaswamy and D.P.Wadhwa, JJ.) in the case of Himanshu Kumar Vidyarthi and others vs State of Bihar and others, wherein it was held in para 3 thereof that : “3. The admitted position is that the petitioner No.1 came to be appointed as Assistant, Petitioner No.2 as Driver and Petitioner Nos. 3 to 5 as Peons on different dates, viz., on August 1, 1988, November 10, 1989, May 31, 1987 and April 22, 1992. They were appointed in the Co-operative Training Institute, Deoghar by its Principal. They are 12 admittedly daily wage employees. Their services came to be terminated by the Principal. Calling that termination in question, they filed a writ petition in the High Court. The main grievance of the petitioners before us is that termination of their services is in violation of Section 25-F of the Industrial Disputes Act, 1947. The question for consideration, therefore, is : whether the petitioners can be said to have been ‘retrenched’ within the meaning of Section 25-F of the Industrial Disputes Act ? Every Department of the Government cannot be treated to be “industry”. When the appointments are regulated by the statutory rules, the concept of ‘industry’ to that extent stands excluded. Admittedly, they were not appointed to the posts in accordance with the rules but were engaged on the basis of need of the work. They are temporary employees working on daily wages. Under these circumstances, their disengagement from service cannot be construed to be a retrenchment under the Industrial Disputes Act. The concept of “retrenchment”, therefore, cannot be stretched to such an extent as to cover these employees. The learned counsel for the petitioners seeks to contend that in the High Court, the petitioners did not contend that it is a case of retrenchment but termination of their services is arbitrary. Since they are only daily- wage employees and have no right to the posts, their disengagement is not arbitrary. “ 17. Applying the parameters of the afore said case in the instant case, facts and circumstances before Their Lordships and the facts and circumstances in the instant case appear to be similar, since the main grievance of the petitioners in the said case was that termination of his services was in violation of 13 Section 25F of the Industrial Disputes Act, 1947 and the said question was for consideration before Their Lordships in the said case that, “Whether the petitioners can be said to have been retrenched within the meaning of Section 25F of the Industrial Disputes Act, 1947 ?” Moreover in the said case, the employee was working as a temporary employee on daily wages and so is the same position in our case also. Accordingly, it was held in the said case that disengagement from services of the temporary employee who was engaged on the basis of need of the work cannot be construed to be retrenchment under the Industrial Disputes Act, 1947, which consequently applies in the case at hand also. 18. In the circumstances, it is a fit case to allow the present Writ Petition under Articles 226 and 227 of the Constitution of India in terms of prayer clause ‘B’ thereof by setting aside the impugned judgment and order dated 23.1.1996 passed by the learned Judge, Ist Labour Court, Ahmednagar. 19. In the result, present Writ Petition succeeds and same is allowed in terms of prayer clause ‘B’ thereof. The impugned judgment and order dated 23.1.1996 passed by the learned Judge, Ist Labour Court, Ahmednagar in Complaint (ULP) No. 60 of 14 1989 stands quashed and set aside. Rule is made absolute accordingly. In the facts and circumstances, there shall be no order as to costs. (SHRIHARI P. DAVARE, J.) dbm/wp4648.96