1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Writ Petition Nos. 1265/2010 & 5246/2009 The State of Mah. and another Vs. Sayyad Anwar Sayyad Ikbal Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. Fulzele, A. G P. for the petitioners. Mr. P. D. Meghe, Adv. for respondent (In WP NO. 5246/2009) Mr. R. J. Mirza, Adv. for respondent no.4 (In WP No. 1265/2010) CORAM: B.P.DHARMADHIKARI, J. DATE : 23rd SEPTMBER, 2010. 1] All counsel are heard finally by issuing Rule and making it returnable forthwith. 2] AGP Fulzele in Writ Petition No. 1265/2010 points out that in reference which was made more than 12 years after the alleged termination, the Labour Court has found violation of Section 25-G of the Industrial Disputes Act and because of that violation by impugned award dated 27.4.2009 granted relief of reinstatement with continuity but without back wages. His contention is as continuous service 240 days has not been established, there is no violation of Section 25-F of the Industrial Disputes Act and else provisions of Section 25-G thereof are not applicable. He is relying upon the judgment reported at 2006 (6) SCC 221 ( Reserve Bank of India Vs. Gopinath sharma and another). His further contention is 2 that employee had worked only on daily wages and from 5.3.1984 to 30th June 1986. 3] In Writ Petition No. 5246/2009 learned AGP has placed reliance upon the same judgment of the Apex Court to urge that finding of the Labour Court in ULP complaint and of the Industrial Court in revision about violation of Section 25-G is mis-conceived. Attention has been invited to pleadings and evidence to show that no junior as such has been specifically named and there is no evidence in that respect. It is further pointed out that on earlier occasion adjournment was obtained by the respondents to produce some information about retention of juniors in service. 4] Advocate Mirza for workman in Writ Petition No.1265/2010 and Advocate Meghe in other writ petition have supported the order. They point out that it was never in dispute that the respective employee was provided work on daily wages and other employees recruited later on continued even after their termination. According to them, there is no question of delay in the matter as back wages are declined in I.D. Reference. Advocate Meghe points out that in ULP complaint back wages are given w.e.f.31.10.1991 as the employee worked from 1985 till that date on daily wages and came to be terminated. 3 5] With the assistance of all counsel, I have perused papers. Insofar as the judgment dated 15/3/2002 in ULP Complaint NO.316/1991 is concerned, it appears that back wages have been granted only because termination is found to be erroneous because of violation of Section 25-G of Industrial Disputes Act read with Section 81 of Bombay Rules framed thereunder. It is apparent that in view of the judgment of Hon'ble Apex Court in U. P. State Brassware Corporation Ltd. Vs. Uday Narain Pandey (2006) 1 SCC 479 this finding cannot be accepted. Retention of any particular person as junior has not been pleaded in ULP complaint and there is no such evidence about any individual. 6] However, in both the matters the fact that the employees were continuing on daily wages and their services were terminated is not in dispute. Hence, because of provisions of Industrial Employment Standing Orders Act read with provisions of Clause 4-D and 4-E of Model Standing Orders, it is apparent that as and when work is available, looking to the seniority of respective employee, the petitioner is duty bound to provide work to them. A direction in both matters therefore, to provide work to employees cannot be stated to be without jurisdiction. As respondents were on daily wages, there cannot be any direction to reinstate. The said direction needs to be construed as a direction to employer to provide 4 work to the respondents as and when the work is available looking to the seniority of the respective respondent-employee. The continuity ordered is only for the purpose of finding out entitlement of the respondents to grant of such work as per the Standing Orders. 7] Writ petitions are partly allowed. Direction to pay back wages issued by the Labour Court dated 15.3.2002 in ULP Complaint No.316/1992 impugned in Writ Petition 5246/2009 is quashed and set aside. The petitioners are directed to provide work to the respondents as per their seniority as and when work becomes available. 8] Rule is made absolute accordingly. No costs. JUDGE Ambulkar.