1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CIVIL JURISDICTION WRIT PETITION NO.: 2420 OF 2010 *** Babasaheb Ramkrushna Khadke, Age: 41 years, Occu.: Labour, R/o Chinchodi-Patil, Taluka: Nagar, District: Ahmednagar. ... PETITIONER. Versus 1. The State of Maharashtra, Through the Executive Engineer, Public Works Division, Nagar-Aurangabad Road, Ahmednagar. 2. The Sub Divisional Engineer, Public Works Sub Division, Nagar-Aurangabad Road, Ahmednagar. (For both Respondents copy served on Government Pleader, High Court of Bombay, Bench at Aurangabad). ... RESPONDENTS *** Mr. P. V. Barde, Advocate for the Petitioner. Mr. K. S. Patil, A.G.P. for Respondent Nos.1 and 2. *** CORAM: B. P. DHARMADHIKARI, J. DATED:- 9th FEBRUARY, 2011. ORAL JUDGMENT: 1. Heard finally with consent of parties. 2. Petitioner before this Court worked for a period of about one year as an employee on daily wages and was then terminated from service. The period of employment is from 1st 2 July, 1990 to 10th September, 1991. He approached Labour Court at Ahmednagar in Complaint (ULP) No.268 of 1992 with a grievance that after 10th September, 1991 till 8th July, 1992 he was deliberately kept away from work and on 8th July, 1992 he was served with a notice alleging that his work was not satisfactory and he remained absent from 10th September, 1991. His services were, therefore, terminated. 3. Labour Court framed issues and recorded a finding that by so terminating his services, the employer has indulged in unfair labour practice falling under Item I of Schedule IV of Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practice Act. It noticed that there was violation of section 25F of Industrial Disputes Act. It also considered evidence adduced by petitioner/ complainant about efforts made by him to secure alternate work and then was pleased to award him 25% back wages. This judgment of Labour Court dated 17th November, 2007, granting him reinstatement with continuity and 25% back wages, was then questioned by both 3 the parties viz. employer and employee before Industrial Court under section 44 of M.R.T.U. & P.U.L.P. Act. Said revision NO.13 of 2008 filed by employee and No.18 of 2008 filed by employer have been decided by common judgment dated 24th February, 2010. Learned Member found entry in employment of petitioner was not legal and valid, he had no right to post. Hence, he could not have been given relief of reinstatement. It also relied upon judgment in the case of "Dena Bank V/s Ashraf Yunus Shaikh" reported in 2009-III-CLR 426. It, therefore, dismissed the revision filed by employee and allowed the revision filed by the employer. 4. Advocate Barde relied on judgment of Honourable Apex Court in the case of "Anoop Sharma V/s Executive Engineer, Public Health Division No.1, Panipat (Haryana)" reported in (2005) 5 S.C.C. 497 to urge that moment finding of violation of section 25F is reached the employee/ workman is entitled to relief of reinstatement and there is no question of legality or otherwise of his recruitment being looked into at this stage. Learned counsel 4 states that though Labour Court has used the word "reinstatement", it has ordered reinstatement on daily wages as before. He, therefore, states that petitioner does not get any right to post and he only becomes eligible for work as daily wager as before. He further pointed out that during pendency of U.L.P. complaint interim relief was given by Labour Court on 8th January, 1996 and that interim relief was never obeyed and petitioner was not permitted to join during pendency of complaint. He states that petitioner filed Criminal U.L.P. under section 48 of M.R.T.U. & P.U.L.P. Act for contempt and violation but unfortunately those proceedings remained pending. 5. Learned A.G.P. on the other hand states that considering the period of service of only one year, view taken by the Industrial Court is neither erroneous nor perverse. He expressly relies upon judgment in the case of "Secretary, State of Karnataka and others V/s Umadevi and others" reported in AIR 2006 SC 1806 to urge that as initial entry of petitioner in service is bad, his 5 reinstatement cannot be ordered. He further states that Industrial Court has directed employer to pay him retrenchment compensation and notice pay and that is more than sufficient. 6. Perusal of recent judgment of Honourable Apex Court in the case of Anoop Sharma V/s Executive Engineer (supra) reveals that there, after noticing violation of section 25F of Industrial Disputes Act, the Labour Court had awarded reinstatement with back wages to the appellant before Honourable Apex Court. That award was interfered by High Court and Honourable Apex Court has restored the Award of Labour Court after holding that once the violation of section 25F is established, the grant of award of reinstatement with back wages by Labour Court was within its jurisdiction. 7. Here, completion of 240 days is already established and the Industrial Court has found it necessary to interfere because of its finding that petitioner did not enter service in accordance with mandate of Article 14 of Constitution of India. This consideration is 6 because of the appreciation of the regularisation aspect by Honourable Apex Court in the case of Secretary, State of Karnataka V/s Umadevi and others (supra). This judgment is considered by Honourable Apex Court in the case of "Maharashtra State Road Transport Corporation and another V/s Casteribe Rajya Parivahan Karmachari Sanghatana" reported in (2009) 8 S.C.C. 556 where the Honourable Apex Court has held that the powers available to Labour Court or Industrial Court under M.R.T.U. & P.U.L.P. Act are not over-ridden by the said constitution Bench Judgment. 8. In present situation, after noticing violation of section 25F of Industrial Disputes Act, Labour Court has ordered his reinstatement i. e. restoration to same position on which he was working prior to his termination and 25% back wages. It is not in dispute that he was given interim relief on 8th September, 1996 and that interim order continued to operate till adjudication of complaint. Considering the fact that employee was terminated allegedly since 10th September, 7 1991 or then as per the notice dated 13th February, 1992 or 8th July, 1992, I find that the interest of justice can be met with by restoring the judgment of Labour Court with slight modification. 9. The respondent Nos.1 and 2 are directed to provide work to petitioner as employee on daily wages as per his standing in seniority looking to his date of entry i.e. 1st July, 1990. Continuity granted to him is only for the purpose of ascertaining his seniority and for working out his claim to grant of such work. The grant of 25% back wages by Labour Court to him is modified and the same is restricted to the period from 8th January, 1996 till the Respondents start providing work to him. 10. Writ petition is thus partly allowed with above modification. The impugned common judgment of Industrial Court dated 24th February, 2010 is quashed and set aside. Rule is made absolute accordingly. No costs. [B.P.DHARMADHIKARI, J.] Dated:-09/02/2011. ans/2420 8 WRIT PETITION NO.: 2420 OF 2010 Date of decision: 9th FEBRUARY, 2011. For approval and signature THE HONOURABLE SHRI JUSTICE B. P. DHARMADHIKARI. Whether Reporters of local papers ... Yes may be allowed to see the judgment? To be referred to the Reporter or not? ... No Whether Their Lordships wish to see ... No fair copy of the judgment? Whether this case involves a substantial ... No question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder? Whether it is to be circulated to the ... No Civil Judges? Whether the case involves an important ... No question of law and whether a copy of the judgment should be sent to Nagpur, Goa and Bombay offices? [G. F. ANSARI] PRIVATE SECRETARY TO THE HONOURABLE JUDGE