1 wp4970-99.doc ttm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4970 OF 1999 The Deputy Engineer, Public Works Department, Atpadi, Taluka: Atpadi, District: Sangli and Anr. .. Petitioners Vs. Shri Dharmu Mahadev Naik .. Respondent Mr.A.D.Kango, A.G.P. for the State Mr.K.S.Patil for the respondents CORAM: K.K. TATED, J. RESERVED ON: 13th JULY, 2011 PRONOUNCED ON: 20th JULY, 2011 JUDGMENT: 1. Heard the learned A.G.P. for the State and the learned counsel for the respondents. 2. The petitioner, Deputy Engineer, Public Works Department, Atpadi, Dist.Sangli and the State Government have filed this petition under Article 226 of the Constitution of India for setting aside the judgment and award passed by the learned Presiding Officer, Labour Court, Sangli in reference (I.D.A.) No.34 of 1994 dated 24.12.1999 whereby the termination of the services of the respondent by the petitioner no.1 was held illegal and he was 2 wp4970-99.doc directed to be reinstated in service with full back wages till reinstatement in service. 3. I have heard the learned counsel for the parties and went through the pleadings, evidence and the impugned order of the Labour Court. The facts giving rise to this petition are briefly stated as under: 4. The respondent was employed by the petitioner no.1 as Road Roller Driver according to the respondent from 20.2.1989 and according to the petitioners from 2.12.1991 as Road Roller Driver and his services were terminated from 24.12.1993 without any enquiry, without serving any notice and without following the provisions of section 25F of the Industrial Disputes Act, 1947. The case of the complainant/respondent before the Labour Court, Sangli to whom the reference was made by the Deputy Commissioner of labour, Pune under section 10(1)(c) r/w sections 12(5) and 39 of Industrial Disputes Act, 1947 was that he was in the employment of the petitioner no.1 as Road Roller Driver from 20.2.1989 and he had completed 240 days in each year of service. He alleged that the petitioner no.1 terminated his services by retaining his Junior Shri Kale in the service illegally without any enquiry, notice and without following the provisions provided in section 25F of the Industrial Disputes Act, 1947 and as such he claimed for setting aside the order terminating his service and for 3 wp4970-99.doc reinstatement and full back wages. 5. The petitioners by filing written statement dated 11.7.1996 submitted that the respondent was not in employment from 20.2.1989 but he was employed on 2.12.1991 on purely temporary basis and in none of the years respondent employee continuously worked for 240 days. According to them, the employee was given work whenever there was work for him as the Road Roller went out of order and it was disposed of as scrap. No work was available for the respondent and hence, his services were terminated. According to them, the respondent could not invoke the provisions of section 25F of the Industrial Disputes Act, 1947 as it was not applicable. Thus, they denied that the respondent was entitled to the relief of reinstatement as well as full back wages. 6. The learned Presiding Officer of the Labour Court found that the respondent had served for more than 240 days and his services were terminated without following the provisions of section 25F of the Industrial Disputes Act and while terminating his services his Junior Shri Kale was retained in service and, therefore, there was contravention also of section 25G of the Industrial Disputes Act. On this finding, the Presiding Officer held that the termination of the services of the respondent was illegal. Hence, he set aside the dismissal and directed reinstatement and payment of full back wages till reinstatement. 4 wp4970-99.doc 7. The respondent in support of his case examined himself at Exh. U­7 and the petitioner examined Mr.Ramhari Nivrutti Mane ’ ’ at Exh. C­9 Deputy Engineer. Both the parties produced ’ ’ documents. On considering the evidence adduced by the parties, the Labour Court reached the finding that the respondent had put in requisite 240 days of service in employment of petitioner no.1 and without enquiry, notice and without complying with the provisions of section 25F of the Industrial Disputes Act, the service of the respondent was terminated, while retaining Junior Kale in service. 8. When the above mentioned matter was on board for admission before this court on 13.10.99, this court (Coram: Mr.Justice P.S.Patankar) directed petitioner to comply with the order passed by the learned Presiding Officer, Labour Court, Sangli dt.24.2.1999. Pursuant to the said order, the petitioner reinstated the respondent on 28.9.1999. 9. The petitioner filed additional affidavit dt.20.9.2010 placing on record the subsequent development. The said affidavit was affirmed by Bhausaheb J. Patil, Deputy Engineer P.W.D. Sub Division, Atpadi, Dist. Sangli. In the said affidavit, petitioner stated that the Government of Maharashtra, P.W.D.Mantralaya, Mumbai had issued a notification dt.24.11.2000 in respect of the persons who were working on daily wages on temporary basis and as per the 5 wp4970-99.doc terms and conditions of Kalekar Award for converting them into CRT establishment. By the said notification, it was interalia stated that the employees who had completed the service for a period of 5 years and had complied with the terms and conditions of Kalekar Award establishment should be converted on regular CRT terms. 10. Pursuant to the said G.R. dated 24.11.2000, the respondent s services ’ were converted into CRT establishment. He submits that in view of the terms and conditions of G.R. dt.24.11.2000 and subsequent G.R. on the same issue dated 24.8.2011, the respondent submitted indemnity bond stating that if his services were converted into CRT as per G.R. he will not claim any back wages. He also stated in the said indemnity bond that he is withdrawing his complaint unconditionally. The learned A.G.P. submitted that in view of the subsequent development as stated in their affidavit dated 20.9.2010, the petitioners are not pressing the present petition against the order of Tribunal so far as reinstatement of respondent but in view of both the G.R. and indemnity bond executed by respondent, respondent is not entitled to back wages from the date of termination dt.24.12.1993 to 27.9.1999 i.e. the date of reinstatement. He submits that in any case during that period the respondent did not work with the petitioner and therefore, he was not entitled to any back wages. 6 wp4970-99.doc 11. On the other hand, the learned counsel for the respondent vehemently opposed the submission made by the learned A.G.P. in respect of payment of back wages. He submits that the petitioner had obtained from the respondent the said indemnity bond under coercion and by using undue influence under threat to deny the petitioner the benefit of Kalekar Settlement. He further submits that at the time of executing the said indemnity bond, the respondent had not read the contents of the same before putting his signature. These facts are stated by the respondent on affidavit dated 26.11.2010. He further submits that learned Presiding Officer of Labour Court categorically held that the petitioner illegally terminated the respondent s services. Once the ’ court comes to the conclusion that employer illegally terminated the services of employee, the employee is entitled to full back wages. Therefore, respondent is entitled to full back wages for the period from 24.12.1993 to 27.9.1999. 12. It is admitted fact that the respondent s services were terminated ’ on 24.12.1993 and he was reinstated on 28.9.1999 pursuant to the order passed by this court in the present Writ Petition on 13.10.1999. Admittedly, he had not worked for 5 years. It is also admitted fact that the petitioner as per Kalekar Award converted his services into CRT establishment. It is specifically stated in both the G.R. s dated 24.11.2000 and 24.8.2001 that employees ’ 7 wp4970-99.doc services can be converted into CRT only on the terms and conditions stated therein. Apart from that, the respondent executed the indemnity bond in favour of petitioner in which he specifically stated that he would not claim any back wages. For the first time, in the present Writ Petition, respondent filed affidavit dated 26.11.2010 and made a grievance that the petitioner obtained from him the said indemnity bond under coercion and by using undue influence under threat to deny him the benefit of settlement. Though the said indemnity bond was executed way back and submitted to the petitioner, he for the first time made grievance about the same in the year 2010. Therefore, it is not possible to accept the respondent s contention that the petitioner ’ obtained the said indemnity bond from him under coercion and by using undue influence under threat that he would be denied the benefit of Kalekar Settlement. After getting all the benefits as per Kalekar Settlement now the respondent is disputing the indemnity bond. The same cannot be allowed once he enjoyed all the benefits till today. Therefore, respondent is not entitled to back wages for the period from 24.12.1993 till 27.9.1999. 13. Writ Petition is partly allowed. 14. The judgment dt.24.2.1999 passed by learned Presiding Officer, Labour Court, Sangli in Reference (IDA) No. 34 of 1994 is modified to the extent that the respondent original second party is not 8 wp4970-99.doc entitled to back wages for the period from 24.12.1993 to 27.9.1999. 15. No order as to costs. 16. Rule discharged accordingly. (K.K.TATED,J.)