( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4169 OF 1996 WITH WRIT PETITION NO. 3746 OF 1998 * * * * * WRIT PETITION NO. 4169 OF 1996 Suresh s/o. Ramrao Patil .. Petitioner Age. 40 years, Occ. Nil, R/o. Fagane, Tq. & Dist. Dhule. Versus 1) The State of Maharashtra .. Respondents 2) The Divisional Forest Officer Panlot Vyawasthapan Niyojan, Division Dhule. WITH WRIT PETITION NO. 3746 OF 1998 Tukaram s/o. Santosh Bhadane .. Petitioner Age. 40 years, Occ. Nil., R/o. Anjan, Tq. & Dist. Dhule. Versus 1) The State of Maharashtra .. Respondents 2) The Divisional Forest Officer Panlot Vyawasthapan Niyojan, Division Dhule. ( 2 ) Mrs. Bharati Nalawade, Advocate for the petitioners. Mrs. R.K. Ladda, Advocate for the respondent/State. CORAM : P.R. BORKAR,J. DATED : 09.09.2009 ORAL JUDGMENT :- 1. These two writ petitions are filed by the workmen, who got order of reinstatement with continuity of service and back wages from the Labour Court in their complaint U.L.P., which judgments and orders came to be reversed in the revision petitions, by the Industrial Court. The petitioner in Writ Petition No. 4169 of 1996 had filed Complaint U.L.P. No. 90 of 1991 and the petitioner in Writ Petition No. 3746 of 1998 had filed Complaint U.L.P. No. 93 of 1991, which came to be decided by the learned Judge, Labour Court at Dhule on 09.09.1992. Said judgments and decrees came to be reversed by the Industrial Court, Nasik, by a common judgment in Revision Application U.L.P. No. 290 of 1992 and 28 to 62 of 1993, decided on 30.12.1993. 2. It is no more disputed that the petitioners in both ( 3 ) the writ petitions were serving as Forest Protection Labour with the respondents from 1987 and 1989 onwards respectively. They continued to serve with the respondents until identical notices were issued on 31.01.1991, informing that their services would be terminated w.e.f. 02.03.1991. In the notice it was mentioned that five years period was lapsed for plantation of trees and the trees no more require services of 109 persons. It is case of the petitioners that termination order is illegal and false. In all 228 persons were employed and termination order was given to 109 persons and it is colourable exercise of misuse of powers. No seniority list was published. The principle of “last come, first go” was not followed. The amount determined under Section 25-F of the Industrial Disputes Act was not paid and therefore the termination is illegal. 3. On the other hand the respondents appeared and filed written statement at Exh. C-3 and stated that the scheme was started in 1981. The plantation became more than five years old. It required no more protection. After lapse of five years, subsidy for protection was not available to them. The services of the complainants were temporary. They ( 4 ) followed due procedure while terminating services of the complainants. The scheme depends upon availability of subsidy. After five years the trees were entrusted to Local Forest Officer for supervision purpose. After sanctioning the subsidy, new schemes are undertaken by them. The plantation having period of more than five years, measuring 4424 hecatre 7 R, it was decided to be transferred to Regional Forest Department. Remaining area requires services of only 119 Watchmen. For another 109 Watchmen, subsidy was not available. They had prepared seniority list of all 228 watchmen which was also published at Office of Forest Department. Nobody had taken objection to said list. The principle of “last come, first go” was followed. Compensation was paid under Section 25-F of the Industrial Disputes Act. In the circumstances, the complaints be dismissed. 4. The learned Judge, Labour Court, has taken a view that the only error committed by the respondents is not calculating compensation properly. The daily wages ought to have been multiplied by 30 days and not 26 days and then 15 days average should have been worked out and since there was ( 5 ) short payment of compensation, it is held that there is no proper termination and therefore the Learned Judge, Labour Court has passed order of reinstatement with back wages and continuity of service. 5. The Industrial Court approached the problem in an entirely differently way. It came to a conclusion that since the period of the project was over, termination comes under clause (bb) of Section 2 (oo) of the Industrial Disputes Act, 1947. No compensation was required to be paid, as Section 25(F) of the Industrial Disputes Act is not applicable. Whatever paid was gratuitous act on the part of the employer. So, it allowed the revision petitions and set aside the orders of the Labour Court. 6. In this case the parties have led evidence. On behalf of the petitioner the complainants are examined and on behalf of the respondents, Assistant Conservator of Forest Shri Pratapsingh Shinde is examined. The plaintiff produced the termination order at Exh. U-9 dated 31.01.1991, which is common in both the matters. The respondents produced seniority list of employees at Exh. C-9. Copies of Government circulars are also produced. The calculations ( 6 ) made by them regarding compensation was also provided. 7. In para 12 of the judgment the Industrial Court has observed that the Labour Court has found that Rule 81 of the Industrial Disputes Rules was not violated. The Industrial Court observed that the principle of "last come, first go" was properly followed. According to the Industrial Court, the reason given is genuine and cannot be said to be unfair labour practice within meaning of item 1 (f) of Schedule IV of M.R.T.P. and P.U.L.P. Act. There was no undue haste in as much as sufficient notice was given of termination. The learned Judge has also come to a conclusion that Section 25(F) of Industrial Disputes Act is not applicable. The appointment of the complainant was on plantation scheme, which required no further guarding beyond period of five years. It was Water Shed Management Project, implemented by the State Government and for which funds were made available by the Central Government. As five years were over, the area of the plantation was being transferred to the Forest Department. In the written statement, it was also made clear that since five years were over, subsidy for guarding was not going to be made available. So, it is very clear from the ( 7 ) termination order, so also the evidence led by the respondents, that since project was over, and it was a time to transfer the forest area to Regional Forest Department, there was necessity of termination. 8. In the termination order dated 31.01.1991, it is specifically mentioned that more than five years were over after plantation and it is no more required protection and therefore 109 plantation protection workers have become surplus and therefore it was necessary to terminate their services. It was also made clear that as per seniority list. Senior persons from Sr. No. 1 to 119 were to be continued in service and remaining were to be terminated. The serial numbers of the petitioners were mentioned. So, it is not that some new reason was put forth at the time of hearing of the matter. The documents produced on record along with oral evidence clearly indicates that it was a Central Government scheme, which was being implemented by the State Government. So, in my opinion, the Industrial Court has rightly come to a conclusion that project has come to an end and the period for which appointment was made was also over. ( 8 ) 9. The learned advocate for the petitioner has cited case of U.P. State Electricity Board V/s. Pooran Chandra Pandey & Others, 2007 (5) Supreme 374. In the said case the writ petitioners only wished that they should not be discriminated against vis-a-vis the original employees of the Electricity Board, since they have been taken over by the Electricity Board “in the same manner and position”. Thus, the writ petitioners have to be deemed to have been appointed in the service of the Electricity Board from the date of their original appointment in the Society. Since they were all appointed in the Society before 4.5.1990, they could not be denied the benefit of the decision of the Electricity Board dated 28.11.1996 permitting regularization of the employees of the Electricity Board, who were working before 04.05.1990. 10. A.G.P. Mrs. Ladda relied upon case of C. Balachandran & Ors., V/s.State of Kerala & Ors., 2009 AIR SCW 847. In that case the Court has considered various rulings regarding regularization of service. 11. In the case of Guru Jambheshwar University V/s. ( 9 ) Dharam Pal, (2007) 2 S.C.C. 265 while considering Section 25F (b) and Section 2 (aaa) of the Industrial Disputes Act, 1947, the Supreme Court has held that the principle of 26 working days is not applicable while calculating compensation for retrenchment and 15 days average pay has to be determined strictly in accordance with Section 2 (aaa) and not on the basis of some hypothetical calculations. Thus, view taken by Labour Court was not correct. 12. In the case of Lal Mohammad & Ors., V/s. Indian Railway Construction Co. Ltd., & Ors., AIR 2007 S.C.2230, in para 14 following observations are made :- “14. ............................... They were appointed being the local hand as workmen were required for completion of the project and therefore they were appointed for the project and as soon as the project was over they cannot claim as a matter of right to be permanent employees or to be regularized in the company. A distinction has to be borne in mind who is employee of the company and who is employee of the Project. The services of project employees come to an end as soon as the project is over and they cannot be given permanent status. Since they were employees of the project their services have to be terminated after completion of the project. .....................” ( 10 ) . Considering facts of the present case, in my considered opinion, the view taken by the Industrial Court is right. 13. In the facts and circumstances of the case, in my opinion, the writ petitions cannot be allowed. They deserve to be dismissed. In the circumstances, the writ petitions are dismissed. Rule discharged. [P.R. BORKAR,J.] snk/2009/SEP09/wp4169.96