1 wp 72.99.doc K IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 72 OF 1999 Ramdas Kashinath Pandit r/o 133 Raghunath Pura, Karanje Peth, Satara. ..Petitioner. Versus 1 The Executive Engineer, Kanher, Canal D.No.2, Karvadi, Taluka Karad, District Satara. 2 The Executive Engineer, Dhom Canal Division No.2, Krishna Nagar, Satara. 3 Shri S.N.Karyakarte, Judge, Labour Court, Satara. 4 Shri V.G.Kirad, Member, Industrial Court, Kolhapur. ..Respondents. 2 wp 72.99.doc Mr. K.S.Bapat for petitioner. Mr. Vijay Patil for respondent nos.1 and 2. CORAM : K.K.TATED, J. Reserved on : 28.03.2011. Pronounced on : 30.03.2011. JUDGMENT: 1 Heard learned counsel for parties. 2 This petition filed by worker under Article 226 of the Constitution of India challenging the judgment and order dated 2nd March, 1998 passed by learned Member, Industrial Court, Kolhapur in Revision Application (ULP) No.237 of 1997 reversing the judgment and order passed by Labour Court in Complaint (ULP) No.287 of 1990 dated 30th June, 1997 by which Labour Court partly allowed Petitioner’s Complaint under section 28 read with Item No.1 (a), (b), (d), (e), (f) and (g) of Schedule IV of Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practice Act, 1971 (MRTU & PULP Act) directing the respondents to reinstate the Petitioner with continuity of service without any back wages of any idle period. 3 wp 72.99.doc 3 A few facts of the matter are as under: The Petitioner was serving with the respondent from 23rd January, 1981 to 30th June, 1983 and 9th July, 1983 to 31st July, 1984 on daily wages of Rs.13/- per day. From 31st July, 1984 the respondent restrained Petitioner from working on daily wages with them. In this case, the respondent orally terminated/ restrained Petitioner from 31st July, 1984 to work on daily wages with them. Therefore, the Petitioner filed Complaint under section 28 and 30 read with Schedule IV, Item No.1 (a), (b), (d), (e), (f) and (g) in the Hon’ble Labour Court, Sangli being Complaint (ULP) No.524 of 1990 on 12th October, 1990 for declaration that the Petitioner is engaged in unfair labour practices and for direction to reinstate the Petitioner immediately with back wages since 31st July, 1984 on the same post and the same pay with such increments which would have received had he not been orally dismissed. 4 As there was delay in preferring the Complaint, the Petitioner filed Application for condonation of delay on the ground that after oral termination from 31st July, 1984 he was taking treatment at Yerwada Mental Hospital during the period from 15th September, 1984 to 6th October, 1990. He also pleaded 4 wp 72.99.doc that Petitioner’s brother met with an accident in the year 1986 and therefore, there was delay in preferring Complaint under section 28 and 30 of the MRTU and PULP Act. In his Complaint, he stated that the complaint is well within limitation as the period of treatment deserves to be excluded from the limitation. 5 The Labour Court after considering the submissions made by both the parties, by judgment and order dated 30th June, 1987 partly allowed Petitioner’s complaint directing respondents to reinstate the Petitioner with continuity of service without any back wages for idle period. The Labour Court also held that Petitioner made out sufficient ground to condone the delay in filing the complaint. 6 Being aggrieved by the judgment and order dated 30th June, 1997 passed by Labour Court, Satara, the respondent preferred Revision Application (ULP) No.237 of 1997 before the Industrial Court at Kolhapur, under section 44 of the MRTU and PULP Act, 1971 on the ground that Labour Cour erred in coming to the conclusion that Petitioner made out sufficient ground for condonation of delay and also he is entitled for reinstatement without any back wages. The Industrial Court by its judgment and order dated 2nd March, 1998, allowed Revision Application 5 wp 72.99.doc preferred by Respondent under section 44 of the MRTU and PULP Act, 1971, setting aside the judgment and order dated 30th June, 1997 passed by Labour Court in Complaint (ULP) No. 287 of 1990. 7 Being aggrieved by the judgment and order dated 2nd March, 1998 passed by learned Member, Industrial Court, Kolhapur, Petitioner preferred present Writ Petition under section 226 of the Constitution of India on several grounds. 8 The learned counsel appearing on behalf of Petitioner submits that the Industrial Court has totally lost site of the fact that the period of limitation starts from expiry of 90 days from the occurrence of the unfair labour practice and therefore, there was no reason for the Industrial Court to interfere with the period of three months which was available to the Petitioner. He further submits that the Industrial Court has not given any reason as to why the order of Labour Court is illegal or otherwise it would call for interference by the Industrial Court in its limited jurisdiction under section 44 of the MRTU and PULP Act, 1971. He further submits that the Industrial Court has lost site of the fact that under original proceedings under 6 wp 72.99.doc section 44 of the MRTU and PULP Act, 1971, the Industrial Court has no power to re-appreciate the evidence and therefore, the approach of the Industrial Court is contrary to the law laid down by higher courts. He further submits that the Industrial Court has lost site of the fact that the Petitioner has completed 240 days of continuous service and therefore, he was deemed to be a permanent employee and therefore, condition precedent for a valid retrenchment was not followed and thus, the termination is illegal and amount to unfair labour practice. 9 He submits that the Industrial Court ought to have seen that the Petitioner could not resume on duty only because of his mental illness which is duly proved by giving a certificate which was believed and accepted by the Labour Court and therefore, there was no reason for the Industrial Court to sit in Appeal over the judgment passed by the Labour Court. 10 He further submits that under section 28 of the Industrial Disputes Act, 1947, the limitation for filing Revision is 90 days. Therefore, there is no question of giving any explanation for the period from 31st July, 1984 that is the date of termination till 90 days are over. He submits that Petitioner can file Revision on the last date also. He submits that the Industrial Court erred in 7 wp 72.99.doc coming to the conclusion that the Petitioner failed to explain one and half months delay from the oral termination dated 31st July, 1984 and therefore, Petitioner is not entitled to condonation of delay in filing the complaint before Labour Court. 11 The learned counsel appearing on behalf of Petitioner relied on a judgment in the matter of Hiper Karmachari Sanghatana vs. Hiper and others, reported in 1990 II CLR 309. In that case, it is held that when applications are made by workers for condonation of delay, the delay is required to be condoned unless the workers had acted malafide or there is such gross negligence as a result of which the employer has changed his position and would be prejudiced. 12 He further submits that the Respondent failed to follow the procedure as prescribed under section 25-F of the Industrial Disputes Act, 1947 before terminating the Petitioner’s services. He submits that even if it is treated that Petitioner was appointed on daily basis then also he is entitled for due process of law before termination because he worked for more than 240 days in each year from the date of joining his services with effect from 23rd January, 1981 till the termination dated 31st July, 1984. 8 wp 72.99.doc 13 In support of his contention about the procedure to be followed by the respondent under section 25-F of the Industrial Disputes Act, 1947, he placed reliance on the judgment in the matter of Anoop Sharma vs. Executive Engineer, Public Health Division No.1, Panipat (Haryana) reported in 2010 II CLR 1. In that case, the Apex Court held that section 25-F (a) and (b) of the Industrial Disputes Act, 1947 is mandatory and non compliance thereof renders retrenchment of an employee nullity. He further held that one months’ notice pay and retrenchment compensation in terms of clauses (a) and (b) of section 25-F of the Industrial Disputes Act, 1947 must accompany the letter of termination of service by way of retrenchment. Head note of that judgment reads as under: “Industrial Disputes Act, 1947 – Ss. 10(1)(c), 25-B, 25-F, 25-N – Termination of service – In a reference, the Tribunal held the discontinuance from service of the appellant-Mali-cum-Chowkidar, as illegal retrenchment – Passed Award for reinstatement with back wages – Writ petition by respondent, allowed by the High Court, holding that reinstatement could not be granted to appellant, as his appointment was not against a sanctioned post 9 wp 72.99.doc and in accordance with Arts. 14 and 16 of the Constitution of India – Hence this appeal – Held that (i) it is very well settled that one month’s notice pay and compensation as per S.25-F(a) and (b) has to be given to the workman, before he is asked to go; (ii) finding recorded by Tribunal-cum- Labour Court on the non-compliance of S.25-F was based on correct appreciation of pleadings and evidence on record – High Court committed serious error by setting aside the award of reinstatement; (iii) No case pleaded by respondent before Labour Court that appellant was engaged/appointed without following statutory rules or Arts. 14 and 16 of Constitution of India – High Court not justified in coming to said finding.” 14 The learned counsel appearing on behalf of Petitioner submits that even if it is treated that the Petitioner abandoned his services in that case also respondents have to follow due process of law as prescribed under the Industrial Disputes Act, 1947. In support of this submission, he relies on Division Bench of this Court, in the matter of Gaurishanker Vishwakarma Vs. Eagle Spring Industries Pvt. Ltd. and others, reported in 10 wp 72.99.doc 1988 (1) CLR 38. In that case, the Division Bench of this Court held that in case of abandonment of service, employer has to give notice to workmen calling upon him to resume duty and also to hold enquiry before terminating his services on that ground. He relies on observations made by Division Bench in paragraph 3 which reads as under: “The learned Counsel appearing for the respondent No.1 company submitted to the orders of the court. Admittedly, the 1st respondent company has not given any notice to the workman either calling upon him to resume the duty or asking him to show cause as to why his services should not be terminated for his failure to resume his duties. No wonder, therefore, that there was no inquiry held before the termination of his service. In fact, according to respondent No.1 company, there was no termination of service. Their case is that the petitioner-workman had abandoned the service by refusing to come and to resume the work. It is difficult to accept this case. It is now well settled that even in the case of the abandonment of service, the employer has to give a notice to the 11 wp 72.99.doc workman calling upon him to resume his duty and also to hold an enquiry before terminating his service on that ground. In the present case the employer has done neither. It was for the employer to prove that the workman had abandoned the service.” 15 The learned counsel appearing on behalf of Petitioner submits that under section 44 of the Industrial Disputes Act, 1947 the Industrial Court cannot re-appreciate the evidence appreciated by the Labour Court unless and until finding is perverse and that in any event there is no reason to differ from the said finding of the Labour Court. In support of this submission, the learned counsel appearing on behalf of Petitioner relies on judgment in the matter of Jayhind Vithoba Mahadik vs. General Manager, Maharashtra Scooters Ltd. reported in 2004 III CLR 166. In this case, our High Court held that the Industrial Court under section 44 of Industrial Disputes Act, 1947 can interfere with the appreciation of evidence on record by the Labour Court, if there is an error of law apparent on the face of record or the Labour Court has came to the conclusion which was perverse. The paragraph 7 of that judgment reads thus: 12 wp 72.99.doc “7. There is no doubt that the jurisdiction vested in the Industrial Court under section 44 is circumscribed and can be exercised only if there is an error of law apparent on the face of record or the Labour Court has come to the conclusion which is perverse. In fact, the jurisdiction vested under section 44 is skin to the jurisdiction exercised by High Court under Article 227 of the Constitution of India. In the case of Ramchandra N. Rao (supra), a learned Single Judge of this Court has held that the jurisdiction of the Industrial Court under section 44 is to be exercised only when there is error apparent on the face of the record or if the order of the Labour Court is perverse or is of such a nature that no reasonable man would come to such a conclusion. In the present case, the Industrial Court has in fact after considering several judgments cited before it, observed that it cannot re-appreciate the evidence. However, I find that the Industrial Court has done precisely this by re- appreciating the evidence on record. The Labour Court had arrived at a possible conclusion. The Industrial Court could not sit in appeal over the 13 wp 72.99.doc judgment of the Labour Court. Merely because a different view was possible, the Industrial Court could not have set aside the order of the Labour Court. The Labour Court had exhaustively dealt with the judgments relied on by the parties as well as the evidence, both documentary and oral led and has come to a possible conclusion. The Industrial Court, therefore, could not have interfered with this finding since there is nothing to indicate that the finding was perverse. All that the Industrial Court has done is to re-appreciate the evidence on record and come to a different conclusion. In my view, this was not the proper approach adopted by the Industrial Court.” 16 On the basis of this submission and the authorities of Apex Court and our High Court, the learned counsel appearing on behalf of Petitioner submits that the Judgment and order passed by the Industrial Court are perverse and same are liable to be set aside. 17 On the other hand, the learned counsel appearing on behalf of respondent strongly supports the finding of the Industrial Court. He submits that admittedly the Petitioner failed 14 wp 72.99.doc to adduce any cogent evidence for condonation of delay in filing the complaint before the Labour Court. He submits that as per the Petitioner’s case, his services were terminated on 31st July, 1984 and thereafter, he filed complaint in the Labour Court on 12th October, 1990 i.e. after six years. He failed to explain the delay of more than six years by giving cogent reasons. Though he stated in his complaint that he was taking treatment in Yerwada Mental Hospital for the period from 15th September, 1984 to 6th October, 1990, no where he states that he was not allowed to go any where either leaving the hospital and/or his house. On the contrary in his complaint, he specifically stated that as and when he got chance he approached the respondents to request to reinstate him in service. This itself shows that he was not constrained by any unavoidable circumstances in approaching Labour Court within limitation. Therefore, the view taken by the Industrial Court is according to law. 18 The learned counsel appearing on behalf of respondents relies on judgment in the matter of Vasudeo Dharanidhar Joshi and others vs. Bombay Textile Research Association and others reported in 2005 (1) Bombay Case Reports 261. In that case, it is held that there is a gross delay that should not be condoned. 15 wp 72.99.doc 19 The learned counsel appearing on behalf of respondent further submits that the Petitioner was working with them on purely temporary and daily wages basis as casual worker, as and when work was available he was appointed to do the same. He submits that just because he worked for more than 240 days in a year, he cannot get any right to be reinstated for the same work. He further submits that the Petitioner was appointed for specific project on daily wages basis and the said project is over and therefore, it is not possible for them to reinstate the petitioner on the same position as he was in the year 1981 to 1984. He further submits that as the Petitioner was working on daily wages basis, there is no question of following any due process of law either under the Industrial Disputes Act and/or MRTP and PULP Act, 1971 before terminating his services. Therefore, there is no substance in the present Writ Petition and same to be dismissed with costs. 20 From the pleadings it is crystal clear that the Petitioner was working with the respondent from 23rd January, 1981 on daily wages only. Though his service was terminated from 31st July, 1984, he filed complaint on 12th October, 1990 that is after six years. As per section 28 of the Industrial Disputes Act, 1947, the limitation prescribed is of 90 days from the date of cause of 16 wp 72.99.doc action. In the present case, as per petitioner’s submission, the cause of action arose on 31st July, 1984 when the respondent orally terminated his services. The reasons given by the Petitioner in his complaint for condonation of delay is that his brother met with an accident in the year 1986 and from 15th September, 1984 to 6th October, 1990 he was taking treatment in Yerwada Hospital and therefore, these facts prevented him from filing the complaint within time. It is pertinent to note that in his complaint, he specifically stated that he had applied to the Respondent as and when he got opportunity during the treatment and requested to reinstate him in service. Paragraph 3 (e) of the complaint reads thus: “(e) Due to mental trouble the complainant was under treatment in Yeravada Hospital during the period from 15-9-1984 to 6-10-90 (Doctor’s certificate appended). He had applied as and when he got opportunity during the treatment with a request to reinstate him in the services. However he was told that he will be taken back in the services only after the certificate from the concerned hospital is submitted.” 17 wp 72.99.doc 21 This shows that though the Petitioner was taking treatment in Yeravada Hospital during the period from 15th September, 1984 to 6th October, 1990, he was doing his other personal work as and when he was free from treatment. This means, he could have filed the complaint under section 28 and 30 of the MRTP and PULP Act, 1971, within stipulated period before the Labour Court but he neglected to file the complaint. Therefore, it cannot be said that the Industrial Court was wrong in holding that the complainant failed to prove satisfactorily that there was no sufficient cause to condone the delay. A copy of application for condonation of delay produced by the learned counsel appearing on behalf of Petitioner across the bar. The application for condonation of delay filed by Petitioner reads as under: “Herein an application on behalf of complainant is as under: That the complaint is filed after 6 years and 1 month & some days. The said delay is caused for the reasons which are beyond the control of only human being. The complainant was under the treatment at mental hospital. The certificate to that effect is annexed with application. The certificate 18 wp 72.99.doc clearly states the nature of mental illness and gradual recovery of the same. The total delay for the period under treatment if excluded, the case is well within Limitation. Hence application“ 22 Bare reading of this application shows that Petitioner failed to show any sufficient ground for condonation of six years and one month delay. The authority relied on by the learned counsel appearing on behalf of petitioner in the matter of Hiper Karmachari Sanghatana (supra) is not applicable in the facts and circumstances of the present case. In the present case, Petitioner failed to disclose sufficient reason for condonation of delay. 23 The submissions made by the learned counsel appearing on behalf of the Petitioner about non-compliance of procedure prescribed under section 25-F is not applicable in the present case at all. Admittedly, the Petitioner was employed on casual/daily wages basis on fixed wages of Rs.13/- per day. The Apex Court recently in the matter of Union of India and others vs. Vartak Labour Union in Civil Appeal No. 2129-2130 of 2004 by judgment dated 4th March, 2001 19 wp 72.99.doc (Coram: Hon’ble Justice D.K.Jain, and Hon’ble Justice H.L.Dattu) held that casual employment terminates when the same is discontinued, and merely because a temporary or casual worker has been engaged beyond the period of his employment, he would not be entitled to be absorbed in regular service or made permanent if original appointment was not in terms of the process envisaged by the relevant rules. Paragraph nos. 16, 17, 18 of the judgment read thus: “16. We are of the opinion that the respondent Union’s claim for regularization of its members merely because they have been working for BRO for a considerable period of time cannot be granted in light of several decisions of this Court, wherein it has been consistently held that casual employment terminates when the same is discontinued, and merely because a temporary or casual worker has been engaged beyond the period of his employment, he would not be entitled to be absorbed in regular service or made permanent, if the original appointment was not in terms of the process envisaged by the relevant rules. (See: Secretary, State of Karnataka & Ors. Vs. Umadevi (3) & Ors.; Official Liquidator Vs. 20 wp 72.99.doc Dayanand & Ors.; State of Karnataka & Ors. Vs. Ganapathi Chaya Nayak & Ors.; Union of India & Anr. Vs. Kartick Chandra Mondal & Anr.; Satya Prakash & Ors. Vs. State of Bihar & Ors. and Rameshwar Dayal Vs. Indian Railway Construction Company Limited & Ors.) 17. In Umadevi (3) (supra), a Constitution Bench of this Court had observed that: “It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the department concerned on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are 21 wp 72.99.doc discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has