:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 414 OF 2007 1. The State of Maharashtra Through the Superintendent Engineer, Sangli Patbandhare Mandal, Varnali, Vishrambag, Sangli. 2. The Executive Engineer Laghu Patbandhare Vibhag, Sangambagar, Satara ..Petitioners Vs. Shri Anil Eknath Kharat Motichandnagar, Satara Road, Tal. Koregaon, Dist. Satara ..Respondent Mr. S.K. Chinchalikar, AGP for petitioners. Mr. M.S. Topkar for respondent no.1. CORAM: CORAM: CORAM: B.H. B.H. B.H. MARLAPALLE, J. MARLAPALLE, J. MARLAPALLE, J. Date Date Date : : : February 12, 2008. February 12, 2008. February 12, 2008. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: 1. This petition filed under Article 227 of the Constitution impugns the Award passed by the Labour Court at Satara on 27/1/2005, thereby allowing Reference (IDA) No. 1 of 1996 partly. The petitioner-department has been directed to reinstate the respondent-workman on his previous post as labour on daily wages, with continuity of service w.e.f. 1/9/1985 but without any backwages. :2: 2. At the threshold Mr. Topkar, the learned counsel for the respondent pointed out that the petition has been filed on 19/12/2006 against the Award dated 27/1/2005 i.e. almost after one year and 11 months and, therefore, it suffers from delays and latches. 3. In the petition memo itself it has been pointed out that after the impugned Award was published, the petitioner-department had approached the State Government seeking sanction to file Writ Petition and the sanction order was issued on 30/11/2006. Hence, in my considered opinion the delay, if any, caused in filing this petition deserves to be condoned and it cannot be said that petition requires to be dismissed on the ground of delay and latches. 4. As per the respondent he was employed as a mazdoor (labour) from 10/2/1984 on daily wages at Urmodi Medium Project and he worked continuously till 31/8/1985, however, he was terminated on 1/9/1985. He had approached the State Government and he was issued :3: an order dated 2/7/1986 calling upon him to report for duty but when he went to report for duty, one officer by name Pawar avoided to take him on duty and thus he could not be reinstated. On 29/4/1992 he submitted a representation to the Superintendent Engineer and prayed for his reinstatement. As there was no response, he approached the Government Labour Officer at Satara on 12/8/1992 and during the discussion it was agreed to reinstate the workman but subsequently there was no order issued. Consequently, he issued an Advocate’s notice on 28/1/1995 and approached the Assistant Labour Commissioner on 10/4/1995. The Assistant Commissioner submitted a failure report on 1/9/1985 and thereafter his demand for reinstatement was referred to the Labour Court for adjudication [Reference (IDA) No.01 of 1996]. . He further submitted that from 22/2/1984 to 31/8/1985 he had completed more than 240 days of work and, therefore, the termination of service amounted to retrenchment and as there was no notice or notice pay given, the department had committed breach of mandatory requirements of Section 25F of the Industrial Disputes Act, 1947. He also submitted that :4: he belongs to the Scheduled Caste and is a physically disabled person. He also claimed that other persons who were working with him in the year 1984-85 were retained and subsequently made permanent. 5. Written Statement was filed by the Executive Engineer, Minor Irrigation Department at Satara. It was admitted that from 10/2/1984 the workman was appointed as a daily wager under the Urmodi Medium Project and he was continued till 31/8/1985 with breaks, however, the Urmodi project could not take off and was subsequently closed and, therefore, from 1/9/1985 the workman was not continued. It was further stated that on his representation he was issued a letter dated 2/7/1986 and called upon to join the Urmodi Project at Mhaswad within 10 days. Inspite of the receipt of this letter he did not resume and, therefore, he was paid the legal dues on 24/2/1987 (Rs.200.40 paise). The demand for reinstatement was opposed on the ground that there was no case of retrenchment as the Project was closed and no appointment order was ever issued to the workman. 6. The workman himself stepped in the witness box :5: in support of his claim for reinstatement whereas Mr.Pandurang Shelar was examined on behalf of the Superintendent Engineer. The learned Judge of the Labour Court considered the evidence both oral as well as documentary, the arguments advanced by both the parties and held that the workman was illegally terminated from service and, therefore, he was entitled to reinstatement with continuity of service but without backwages. 7. Mr. Chinchalikar, the learned AGP in addition to the grounds already raised before the Labour Court submitted that the reference was made belatedly and till February or April 1992, the workman did not raise any demand for reinstatement and, therefore, his claim was stale and that itself could have been the reason for dismissing the reference. It was also pointed out that having received the letter dated 2/7/1986, the workman did not report for duty and, therefore, there was a clear indication that he was not interested in re-employment. In any case the workman was a daily wager engaged without any appointment order for a specific project and as the said project could not take off, he was not continued from 1/9/1985 and, :6: therefore, there is no case of retrenchment as defined under Section 2(oo) of the I.D. Act. 8. On the first issue of employment, there is no dispute that the workman was engaged as a daily wager from 10/2/1984 under the Urmodi Project. In his cross-examination he admitted that he was appointed as a labour for Urmodi Project. He also admitted that he had received a letter dated 2/7/1986 informing him to resume duty at another alternative site at Mhaswad but he did not report. On the issue of number of working days, the witness of the petitioner-department Shri Pandurang Shelar admitted that the petitioner worked continuously from 10/2/1984 to 20/12/1984, from 21/12/1984 to 21/1/1985 he was given break and from 21/1/1985 he continued till 31/8/1985. The said witness in his cross-examination admitted that in the first phase from 10/2/1984 to 21/12/1984 the workman had put in more that 240 days of work. He also admitted that no notice pay was given nor was any notice issued to the workman, when he was given break from 21/12/1984 or 1/9/1985. No seniority list was displayed and as per him because the workman was a temporary hand. He also admitted that the workman was :7: employed at the Satara office of Urmodi Project. 9. The record before the Conciliation Officer is available with the R & P received from the Labour Court and it is clear that from 2/7/1986 when the workman received the letter asking him to report for duty, till February 1992 there was no demand made by the workman for reinstatement or claiming that he was illegally removed from service and discontinued from service. Similarly from 1/9/1985 he had not approached the department with a demand for reinstatement till 2/7/1986. Almost for 6 years he kept quite and thereafter again after about 3 years he raised the dispute in April 1995. As per the Labour Court the mandatory provisions of Section 25F of the I.D. Act were not complied with and, therefore, the workman was entitled for reinstatement. The Labour Court denied the benefit of backwages as the Reference was made after 10 years and it could not be accepted that the workman was totally unemployed during the intervening period. On these obtaining circumstances the issues which fall for consideration before this Court are:- :8: (a) Whether the reference was required to be dismissed on the ground that the demand of reinstatement was stale? and (b) Whether the findings of the Labour Court that the mandatory requirements of Section 25F of the I.D. Act were not complied with, is supported with reasons and the said finding is legal? 10. So far as the first issue is concerned, it stands answered in terms of the law laid down by the Supreme Court in the case of the Nedungadi Bank Ltd. vs. K.P. Madhavankutty and ors. [JT 2000 (1) SC [JT 2000 (1) SC [JT 2000 (1) SC 388] 388] 388]. In the said case the employee was dismissed from service by way of punishment by an order dated 30/1/1973 and for the first time he approached the Competent Authority under Section 10 of the Industrial Disputes Act, 1947 on 24/5/1979 and by a notice to the Bank through his lawyer on 17/1/1980. Thus he had raised the dispute after about 6 to 7 years from the date of dismissal and the Central Government had refused to make a reference under Section 10 of the :9: said Act. However, the High Court, while entertaining a writ petition filed by the employee, directed the Assistant Labour Commissioner to send his report to the Central Government for consideration. The Central Government declined to make any reference under Section 10 of the Act by order dated 1/1/1983. The employee again filed a writ petition in the High court which was disposed off by order dated 14/11/1983 with a direction to Central Government to re-examine the matter. In the second round Bank was aggrieved by the order passed by the Division Bench and, therefore, it approached the Supreme Court. In para 7 of the said judgment, their Lordships held as under:- "...Whenever a workman raises some dispute it does not become industrial dispute and appropriate government cannot in a mechanical fashion make the reference of the alleged dispute terming as industrial dispute. Central Government lacked power to make reference both on the ground of delay in invoking the power under Section 10 of the Act and there being no industrial dispute existing or even apprehended. The purpose of reference :10: is to keep industrial peace in an establishment. The present reference is destructive to the industrial peace and defeats the very object and purpose of the Act. Bank was justified in thus moving the High Court seeking an order to quash the reference in question." 11. In the instant case, as noted earlier, the alleged discontinuation from employment was with effect from 1/9/1985 and the first representation was presented on 29/4/1992 and in between by an order dated 2/7/1986 the workman was called upon to report for duty which he did not do and, therefore, by following the law laid down in the Nedungadi Bank’s case (Supra), it must be safely held that there was no industrial dispute to refer for adjudication. 12. In the case of State of Maharashtra vs. Dnyaneshwar Rakmaji Aher and anr. [1998 (2) Mh.L.J. [1998 (2) Mh.L.J. [1998 (2) Mh.L.J. 135] 135] 135] the workman was appointed on daily wages as unskilled labour with effect from 22/5/1979 and he had continued as such till 24/3/1985, but thereafter he did not report for duty. In the year 1990 he :11: approached the Conciliation Officer with a demand for reinstatement with continuity in service and on reference for adjudication the Labour Court granted reinstatement with continuity of service and full backwages solely on the ground that the workman had completed 240 days of service in one year. This court held that to accept the award passed by the Labour Court would lead to back door entry in Government service when millions are waiting in queue after having registered their names in the Employment Exchanges for appointments in Government service. This court further held that the demand made was stale and, in fact, there was no cause of action for the workman to raise the dispute because the industrial dispute calling for adjudication was nonexistent. The Labour Court was required to frame an issue as to whether there was termination of service of the respondent at the hands of the department and when a request was made for re-employment in service by letter dated 14/6/1990, the same was replied on 25/6/1990 informing him that there was no scope for re-employment and, therefore, it was not a case of termination of service. In the case of R. Ganesh vs. Union of India [1993 (1) Mh.L.J. 506] [1993 (1) Mh.L.J. 506] [1993 (1) Mh.L.J. 506] a Single Bench :12: of this court on the point of referring a stale industrial dispute for adjudication has observed thus, "It is true that the Act does not lay down a period of limitation. This, however, does not mean that dispute can be raised at any time, even after an inordinate delay and the Government is bound to make a reference. If there is an inordinate delay that can be a legitimate ground for holding that there does not exist in presenti an industrial dispute." 13. On the second issue, though it is the case of the petitioner-department that in the first phase the workman was engaged from 10/2/1984 to 21/12/1984 and thereafter he was discontinued for some time or there was a break given to him, Shri Pandurang Shelar in his cross-examination before the Labour Court admitted that in the said span of 10/2/1984 to 21/12/1984 the workman had completed 240 days of service. However, the said admission by itself would not be a reason to record a finding that the termination of service of :13: the workman amounted to retrenchment as defined under Section 2(oo) of the I.D. Act. The petitioner’s case has been that in the first span the workman was engaged from 10/2/1984 to 22/12/1984 and in the second span he worked from 21/1/1985 to 31/8/1985 on a specific project i.e. Urmodi Medium Project. The project work was stopped due to the protest by the project affected persons and by letter dated 2/7/1986 the employee was called upon to report for work at the Urmodi Medium Project, Sub Division No.2 at Mhaswad and pursuant to this order issued by the Executive Engineer, Minor Irrigation Division, Satara the workman refused to join or he did not join. In such a situation, whether it was permissible for the Labour Court to hold that the petitioners had retrenched the workman from service, when, on the other hand, the letter dated 2/7/1986 is admitted to have been received by the workman. He further admitted that he did not report for duty pursuant to the said letter. In my considered opinion, there was no case of retrenchment within the meaning of Section 2(oo) of the I.D. Act in the instant case and it is apparent that the Labour Court fell in manifest errors in appreciating the facts brought out on record through :14: the evidence of both the parties and more particularly the facts leading to the alleged discontinuation. 14. The Sub Divisional Engineer, Minor Irrigation Division No.2, Satara has filed an affidavit and in reply thereto the workman has filed rejoinder today. The Sub Divisional Engineer has pointed out that the entire Urmodi Medium Project at Sub Division No.2 was closed in March, 1998 and it was shifted to Satara as Minor Irrigation Sub Division No.2, Stara. It is further stated that as the project is closed, for which the employee was engaged as a temporary mazdoor, he is not entitled to be reinstated. It has been further pointed out that neither at Urmodi nor at Mhaswad any work is available for casual or daily rated workers and once the project was closed, the workers on daily wages would not be entitled for any relief, much less, the relief claimed in the instant petition. . In the rejoinder filed by the workman it has been stated that the other workers who were engaged :15: along with him at Mhaswad have been subsequently absorbed as permanent employees and he has pointed out that Shri Vijay Baburao Kadam, Pandurang Gulab Pawar, Yeshwant Chimaji Lokhande, Ganpat Dharmaji Lokhande and Manohar Jiva Wala are some of the employees who have been given a benefit of Kalelkar award and regularised as CRT employees after rendering five years service. He has further stated that recently many employees from Class IV have retired and, therefore, their posts are vacant. It will be made clear that a daily rated worker, even if he is directed to be reinstated, his claim for reinstatement has to be considered only for such work in which he was engaged prior to the alleged termination of service and the permanent posts under the Government are required to be filled in by following the prescribed Rules and not by the backdoor entries. In any case the issue of reinstatement looses its relevance if the issues as framed hereinabove are answered in favour of the petitioner and they have been so answered. 15. Hence, this petition succeeds and the same is :16: hereby allowed. The impugned award is quashed and set aside and Reference (IDA) No. 1 of 1996 stands dismissed. Rule is made absolute accordingly with no order as to costs. (B.H. (B.H. (B.H. Marlapalle,J.) Marlapalle,J.) Marlapalle,J.)