:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9279 OF 2007 Shri Shyam Gangadhar Londhe ..Petitioner Vs. The Divisional Manager, New India Assurance Co. ..Respondent Mr. R.N. Gite for petitioner. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. Date : January 15, 2008. Date : January 15, 2008. Date : January 15, 2008. P.C.: P.C.: P.C.: 1. Heard Mr. Gite the learned counsel for the petitioner who is aggrieved by the award passed by the learned Presiding Officer of the Central Government Industrial Tribunal at Mumbai on 6/5/2003 thereby dismissing Reference No.CGIT-2/64 of 2000. The demand referred for adjudication under Section 10(2A) of the Industrial Disputes Act was as under:- :2: "Whether the action of the management of New India Assurance Co.Ltd., Sinnar Branch, Nashik in terminating the services of Mr.Shyam Gangadhar Londhe, ex-part time Sweeper with effect from 1/3/1999 is legal and justified? If not, what relief the workman concerned is entitled to? . By the impugned award the Industrial Tribunal held that there was no illegal termination of service of the petitioner was legal and justified. Consequently, the reference came to be dismissed. 2. Mr. Gite the learned counsel for the petitioner submitted that the petitioner had put in about four years of service and in every year he had completed 240 days of work, when the petitioner was discontinued there was no compliance of Section 25F of the I.D. Act and, therefore, it was an illegal retrenchment with effect from 1/3/1999. The petitioner ought to have been reinstated in service and more so when some others who were junior to the petitioner were retained or reinstated. It was :3: further contended that when the petitioner requested for regularisation of the service, he was discontinued as a Sweeper and was not paid any retrenchment compensation, notice pay and other benefits so as to comply with the mandatory requirements of Section 25F of the ID Act. Mr.Gite has placed reliance on the decision of this court in the case of Kalawati Pandurang Fulzele vs. Divisional Controller [2007(5) Bom. C.R. 177]. 3. In the case of Kalawati Fulzele (Supra) none had stepped in the witness box on behalf of the employer, the employer claimed that the workman was not engaged by the Corporation and, in fact, she was unemployed and employee employer relationship was denied. This court relied upon the observations made by the Labour Court regarding the work being performed by the employee and also noted the finding that there was no evidence placed before the court regarding the alleged employment through a contract labour. The decision of this court in the case of Kalawati Fulzele, therefore, is not applicable to the instant case. :4: 4. In the instant case, the workman in his statement of claim clearly admitted that he was a part- time worker, unlike in the case of Kalawati Fulzele and he also admitted that he was engaged by the Sinnar Branch of the Company as a part time sweeper. But before the court in his cross-examination he made a statement that he was a full time worker. Mr.Gunjal, Divisional Manager of the respondent-corporation admitted before the court that the petitioner was engaged sometimes in the year 1996 and was discontinued from 1/3/1999, he was not a regular employee nor was he engaged on full time basis and while on duty he was being paid on voucher as and when he was engaged for doing a sweeper’s job. He disclosed that in the year 1996, the petitioner was engaged on 159 days as a part time worker and in the similar fashion in the year 1997 he was engaged on 245 days, whereas in the year 1998 he was engaged on 229 days. In the written statement filed by the Assurance Company it was admitted that till 1/3/1999 when the petitioner was discontinued, he was engaged on 39 days. Mr.Gunjal further disclosed before the court :5: that the petitioner was disengaged as a regularly selected employee had joined. 5. The Industrial Tribunal referred to the following decisions of the Supreme Court:- (a) Himanshu Kumar Vidyarthi vs. State of Bihar [AIR 1997 SC 3657]. (b) Ahmednagar Zilla Seth Mazdoor Union vs. Dinkar Rao Kalyan Rao Jagdale (decided on 24/7/2001 in Cont.Pet.(Civil) 253-263/1998). (c) Mahatma Phule University vs. Nashik Zilla Sheth Kamgar Union [2001 SCC (L & S) 1180]. . It also referred to the decision in the case of Delhi Development Horticulture Employees Union vs. Delhi Administration, Delhi and ors. [(1992) 4 SCC 9] and based on these decisions, the Tribunal held that by virtue of continuing for 240 days or more a daily rated workman would not acquire the status of :6: permanency and to be absorbed as a regular employee. When the services of daily wage worker are only on the basis of the need, the discontinuation of such daily rated employee cannot be construed to be retrenchment and in the public sector undertaking or in the Government department, for the claim of regular absorption in employment, the existence of posts is mandatory coupled with the recruitment having been done in keeping with the service Rules prescribed. 6. On the issue of some others being retained on service to the exclusion of petitioner, the Tribunal referred to the admissions made by the petitioner himself and to the effect that the eight named persons in the affidavit, thought not sponsored by the Employment Exchange, admittedly, were engaged by the Company prior to the petitioner and, therefore, there was no junior retained in service by the Assurance Company. The Tribunal further held that the petitioner being a part time labour engaged on need basis and that he was discontinued on reporting of regular employee, provisions of Section 25F of the ID Act would not come into play. :7: 7. On the face of the evidence adduced by the petitioner-workman and by the Assurance Company through its employee, it cannot be said that the Tribunal committed an error apparent on the face of the record so as to call for interference in the impugned order under the supervisory powers of this court under Article 227 of the Constitution. 8. Hence, the petition is rejected summarily. (B.H. Marlapalle,J.) (B.H. Marlapalle,J.) (B.H. Marlapalle,J.)