1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3445 OF 1991 1) The State of Maharashtra through Executive Engineer, Jayakwadi Land Drainage Nathnagar, South Paithan, Dist. Aurangabad. 2) The Deputy Engineer, Sub-Divisional Officer, Jayakwadi Land Drainage Sub Division No. 4 at Ashti, Tq. Partur, Dist. Jalna ... Petitioners. Versus Naryan S/o Gulab Bhavsar age 31 years, Occu. Nil, r/o C/o Y.G. Bhavsar, Jayakwadi Project Division No. 1 Tq. Partur, Dist. Jalna. ... Respondent. -------- Shri V.H. Dighe ,Assistant Government Pleader, for Petitioners. Shri. K.B. Bhise, Advocate for the Respondent. 1. -------- CORAM: S.S. SHINDE, J. DATE: 06th JANUARY, 2010 ORAL JUDGMENT : 2 1) This Writ Petition is filed challenging the validity of the Award dated 04-02-1991 passed by the Presiding Officer, Labour Court, Aurangabad in Reference (IDA) No. 2 of 1989. Brief facts of the case are as under :- 2) The present petitioners were first party to the Reference (IDA) No. 2 of 1989 before the Labour Court, Aurangbad. The respondent herein was second party working with the respondent authorities at Ashti under the supervision and control of petitioner No. 2 herein. The Presiding Officer, Labour Court, Aurangabad received reference Under Section 10 & 12 of the Industrial Disute Act, 1947 from the Deputy Commissioner of Labour, Aurangabad relating to the dispute between the petitioners and respondent herein. 3) In answer to the notice, the second party i.e. present respondent filed his statement of claim at Exhibit U-1. It is contended that, 3 he was serving with the first party as a driver on daily wags from 07-04-1987. He perform his duties continuously without any break. On 07-09-1988, the first party without any reason or ground terminated his services with effect from 06-09-1988 with retrospective effect. The service record of the second party is good and unblemished. He had completed more than 240 days services continuously with the first party. He was not served one month’s notice of termination, nor was paid notice pay and retrenchment compensation as required Under Section 25(f) of the Industrial Dispute Act, 1947. It was prayed that, he should be reinstated in service with continuity and back wages. 4) The present petitoiner i.e. first party before the Labour Court, resisted the statement of claim by filing written statement at Exhibit C-A-4 and C-B-4. It is contended in the written statement that, second party was working on daily wages with the first party No. 2 with effect from 4 08-04-1987. He was engaged on daily wages as and when work is available. The second party had not completed 240 days of service during the calender year from 1987-1988 and therefore, he is not protected work men. The service of the second party were not required according to the work load and hence, instructions were issued by the first party No. 1 to the First Party No. 2 for retrenching services of the second party. The second party had performed his duty from 08-04-1987 to 31-08-1988 as per actual requirement of first party No. 2, and the second party has not worked continuously. As the second party had not completed 240 days service in a calender year 1987- 1988, and he is not protected work man, and therefore, one month’s notice of termination was not required. There is no breach of provisions of the Industrial Dispute Act, 1947. It was further contended that, second party had actually worked for only 105 days in the year 1987 and worked for 95 days in the year 1988. As per the provisions of the Industrial 5 Dispute Act, 1947, more particularly provisions of Section 25(g), the worker, which has been engaged on nominal muster roll completed 240 days service in a calender year, is defined as protected labour. The second party was temporarily engaged as a driver on daily wages and he does not fulfill these conditions. Though, second party was paid on hand receipt, his attendance on muster roll was not maintained as required. In fact, persons engaged temporarily for casual work are considered as daily labour and their wages are to be drawn on nominal muster roll only. As the second party is not a protected labourer, the compliance of Section 25(f) of the Industrial Dispute Act, 1947 was not necessary. Therefore, the first party prayed before the Labour Court that, the reference may be rejected. 5) The Labour Court framed necessary issues for its determination / consideration and held that, order of termination was not legal and 6 proper and the second party i.e. present respondent is entitled to reinstatement, with continuity of service with back wages. Being aggrieved by the judgment and order passed by the Labour Court dated 04-02-1991, this Writ Petition is filed by the State of Maharashtra, through Executive Engineer, Jayakwadi Land Drainage Nathnagar, South Paithan, Dist. Aurangabad. The learned AGP appearing for the State submitted that, the wages are paid to the respondent as per Public Works Department manual. The details were given and from the details it is clear that the respondent has worked up to 31-08-1988. It is further submitted that, documentary evidence submitted on behalf of the petitioner has not taken into consideration by the Labour Court. It is further submiteed that the respondent was appointed on daily wages and as per availability of the work. The respondent has not completed 240 days service in a preceding year of his termination. It is further submitted that, the services of the respondent was on daily 7 wages, and therefore, provisions of Section 25(f) of the Industrial Dispute Act, 1947 were not required to be followed. The learned AGP invited my attention to the pleadings in the petition and grounds taken therein and submitted that the Writ Petition deserves to be allowed. On query by this Court to the learned AGP appearing for the State about the present status of the service of the respondent, the learned AGP has tendered copy of the official order issued in favour of the respondent. Said official order shows that, the respondent herein was taken on CRT by the said official order by giving benefit of Government Resolution dated 01-06-2001 issued by the Irrigation Department, Government of Maharashtara. On oral instructions from the concerned Department, it is also stated by the AGP that respondent is absorbed in the service of the petitioner as a regular employee. 6) The learned counsel appearing for the respondent submitted that, the respondent herein 8 has served with the petitioner for about 30 years and he is made permanent employee of the petitioner, and therefore, after lapse of 30 years this court may not interfere in the impugned judgment and order passed by the Labour Court. The counsel appearing for the respondent supported the impugned judgment and order passed by the Labour court. 7) I have heard learned AGP appearing for the State at length and also learned counsel appearing for the respondent. I have also perused the pleadings in the petition, annextures thereto and judgment and order passed by the Presiding Officer, Labour Court, Aurangabad in Reference (IDA) No. 2 of 1989. The Labour Court in para No. 5 of the judgment has recorded finding that, the second party had worked more than 240 days with the first party in a preceding year of his termination, and therefore, he was entitled for protection Under Section 25( f & g) of the 9 Industrial Dispute Act, 1947. It is further observed that, admittedly the second party is not paid the notice / pay or retrenchment compensation before the termination, nor he was given one month’s notice as required Under Section 25(f) of the Industrial Dispute Act, 1947. The notice of termination is dated 07-09-1988 whereas the service of the second party are terminated with effect from 06-09-1988 and this shows that the notice of termination was given retrospective effect, which was illegal. The second party, in his evidence, has stated that, after his termination from the service the first party employed fresh candidates. This evidence is not challenged by the first party in the cross-examination. Therefore, Labour Court has observed that, in the absence of rebuttal evidence on record it has to be held that, there is no compliance of Section 25 (f & g) of the Industrial Dispute Act, 1947, while terminating the services of the second party employee. Therefore, the Labour Court concluded that the 10 termination of the services of respondent was illegal. On careful perusal of the judgment and order of the Labour court it clearly emerges that the Labour court has fully appreciated the rival contentions and evidence brought on record and recorded finding that, the respondent herein has completed more than 240 days service in a preceding year of his termination. The said finding of fact after appreciation of evidence cannot be disturbed in Writ Jurisdiction unless it is demonstrated that the said finding is perverse. In the instant case, nothing has been demonstrated to take contrary view to hold that, the respondent herein has not completed more than 240 days service in a preceding year of his termination. Therefore, in my considered view, the judgment and order passed by the Presiding Officer, Labour Court, Aurangabad directing the petitioners to reinstate the respondent in service with continuity and back wages cannot be 11 faulted. The Labour Court has directed to reinstate the second party in service with continuity and back wages with effect from 06-09-1988. When this petition heard for admission by this Court on 29-10-1991, this Court issued Rule. However, interim relief was refused. Since the interim relief was refused, the respondent are continued in the employment of the petitioners. The copy of official order tendered by the learned AGP at the time of hearing, clearly shows that the respondent herein was given benefit of Government Resolution dated 01-06-2001 issued by the Irrigation Department, Government of Maharashtra and he was taken on CRT. It appears from the perusal of the said document that the respondent was placed in regular pay scale of Rs. 950-1500 and thereafter, from 3050-4590. On perusal of the averments in the statement of claim it appears that, the respondent served with the petitioner from 07-04-1987. By this time the respondent has 12 completed about 23 years service. During the pendency of this petition he is absorbed as permanent employee as a driver in the petitioners Department. 8) Therefore, taking over all view of the matter, I do not think this Court can interfere in the impugned judgment and order passed by the Presiding Officer, Labour Court, Aurangabad. Therefore, Rule is discharged and Writ Petition stands dismissed in view of the facts and circumstances of the case and in view of the subsequent events after filing of the Writ Petition that the respondent herein is taken on CRT and subsequently absorbed as a permanent employee in the petitioners Department. 9) Writ Petition stands dismissed. No order as to costs. (S.S.SHINDE, J.) sdm/wp3445.91 13 14