1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3450 OF 1991 The Executive Engineer, Krushi Bandhkam Vibhag No. 4, Kranti chowk, Aurangabad ... Petitioner. Versus 1) Shri Eknath Ishwar Lohar, c/o Trade Union Centre, Mahavir Nagar, Nanded. 2) The Presiding Officer, Labour Court, Aurangabad ... Respondents. -------- Smt. A.V. Gondhalekar,Assistant Government Pleader, for Petitioner. Shri. D.A. More, Advocate for the Respondent No. 1. -------- CORAM: S.S. SHINDE, J. DATE: 05th JANUARY, 2010 ORAL JUDGMENT : 1) This Writ Petition directed against the judgment and order passed by the Presiding Officer, Labour Court, Aurangabad in Reference 2 (IDA) No. 83 of 1988. 2) Brief facts of the case are as under :- There was reference to the Presiding Officer, Labour Court, Aurangabad being reference (IDA) No. 83 of 1988 under the Industrial Dispute Act, 1947, by the Deputy Commissioner of Labour relating dispute to employee Eknath Ishwar Lohar and employer The Executive Engineer, Agriculture Construction Division No. 4, Aurangbad. In pursuant to the notice issued by the Presiding Officer, Labour Court, Aurangabad, the second party employee filed his statement of claim at Exhibit U-3. It was contended by the respondent herein in the statement of claim that he joined the service with the first party as a labour from 01-06-1980 to 08-09-1987 without any break. He terminated from the service by the Dy. Engineer, Sub Division No. 4 by the termination order dated 07-09-1987. The Deputy Engineer had no authority to terminate the service of the second party. The services of the second party are terminated without compliance of Section 3 25(f) of the Industrial Dispute Act, 1947. The services of the second party are terminated without maintaining seniority list and without following the principle of “ last come first go”, and therefore, it was further pleaded in the statement of claim that there is non compliance of Section 25(G) of the Industrial Dispute Act, 1947. It is further stated that, the first party has appointed fresh employee which is contrary to the provisions of Section 25((H) of the Industrial Dispute Act, 1947, which amounts to unfair labour practice. It is further stated in the statement of claim that, demand notice Under Section 2(a) of the Industrial Dispute Act, 1947 was issued and matter could not settled in the conciliation, and therefore, the matter was referred for adjudication by way of reference to the Labour Court. The statement of claim further prayed for declaration that, the termination order is illegal and he should be reinstated in service with continuity and back wages. The petitioner herein resisted the 4 statement of claim by filing written statement at Exhibit C-9. It was the case of the petitioner herein that the respondent herein employed as a labourer from 01-06-1986 and he was continued in service till 13-01-1987. During this period he has completed 190 days of service. Due to non availability of work, the Deputy Engineer had terminated his services, as he had not completed 240 days continuous service. It is further stated that, there was no necessity to issue any notice of termination of one month, nor there was necessity to pay him retrenchment compensation. The first party had prepared seniority list. The first party also followed the principle of “last come first go” while terminating the services of the second party. Therefore, the petitioner herein prayed before the Labour court that the reference should be rejected. 3) The presiding Officer, Labour Court, framed necessary issues for its determination and held that the termination order is not legal and 5 proper and the second party i.e. respondent herein is entitled to reinstatement with continuity of service and back wages. Being aggrieved by the judgment and order dated 23-04-1991 passed by the Presiding Officer, Labour Court, Aurangabad, this Writ Petition is filed by the petitioner. Learned Assistant Government Pleader, appearing for the petitioner submitted that the Labour Court erred in holding that the respondent has completed 240 days service in a preceding year of the termination. According to the learned Assistant Government Pleader, the respondent had never completed 240 days continuous service in a preceding year of the termination, and therefore, the Labour Court should have rejected the reference on this ground alone. It is further submitted that it was not necessary to follow the procedure Under Section 25(F) of the Industrial Dispute Act, 1949, while terminating the services of the respondent. The learned Assistant Government Pleader took me through the pleadings 6 and grounds in the petition submitted that, the very appointment of the respondent was not on any sanctioned post, and therefore, the Labour Court should not have directed the petitioner to reinstate the respondent with continuity of service and back wages. The learned counsel appearing for the respondent adopted arguments which were advanced before the Labour Court and supported the judgment and order passed by the Presiding Officer, Labour Court, Aurangabad. 4) I have heard the learned Assistant Government Pleader appearing for the State at length. This Writ Petition was heard by this Court on 29-10-1991 when this Court issued Rule in the matter. However, interim relief was refused, since the interim relief was refused the respondent herein continued in the employment of the petitioner. By this time from the date of issuance of Rule in this Writ Petition, the respondent has completed about 19 years service. 7 The learned AGP appearing for the state has tendered a copy of the Government Resolution dated 31-08-2001 issued by the Public Works Department, Government of Maharashtra along with schedule appended to it. On perusal of the said document it clearly appears that, the respondent herein i.e. Eknath Ishwar Lohar is taken on CRT by extending benefit of Government Resolution dated 31-08-2001. It is also admitted position that the respondent herein is subsequently absorbed as permanent employee of the petitioner and he was placed in pay scale of Rs. 750-940 by giving benefit 4th Pay Commission to him. It also appears on perusal of the annexures to the Government Resolution referred above that, even the benefit of 5th Pay Commission has been extended to the respondent and he was placed in the pay scale of Rs. 2550-3200. Therefore, after filing the Writ Petition, it appears that the respondent is permanently absorbed in the employment of the petitioner. The learned AGP has tendered another document singed by the Competent 8 Authority, in which it is stated that, by extending the benefits available in Government Resolution dated 31-08-2001 the respondent herein was taken on CRT and after-words he was given regular pay scale. Two documents which are tendered by the AGP while arguing the matter are taken on record and after perusal of the same, it would clearly demonstrated that, the petitioner’s date of birth is 23-04-1956, the petitioner was taken initially on CRT and subsequently permanently absorbed in the employment of the petitioner by giving him regular pay scale. The perusal of the impugned judgment passed by the Labour Court would clearly show that, the respondent herein has completed 240 days continuous service in a preceding year prior to his termination. The Labour Court has also recorded that, the petitioner herein has submitted complete record for the period 13-01-1980 till 07-09-1987. Though the respondent has served from 10-06-1980 to 14-05-1987, the record about his service was not 9 produced by the petitioner before the Labour Court, and therefore, Labour Court drawn adverse inference against the petitioner. 5) On careful perusal of the impugned judgment, the Labour court has recorded a finding after appreciation of documents brought on record that, the respondent herein has completed 240 days continuous service in preceding year prior to his termination. This finding cannot be disturbed by this Court under Writ Jurisdiction while exercising powers under Article 227 of the Constitution of India. Therefore, in my considered view, viewed from any angle no case is made out to interfere in the impugned judgment and order passed by the Presiding Officer, Labour Court, Aurangabad. Matter in hand stands on different footing for the reason that, while granting Rule in the Writ Petition, interim relief was refused in favour of the petitioner. After filing this petition, as stated in foregoing paragraphs the 10 respondent is absorbed as a permanent employee of the petitioner. Therefore, Writ Petition fails, rule is discharged. 6) Writ Petition stands dismissed. (S.S.SHINDE, J.) sdm/wp3450.91 11