1 8 wp 2267.11.doc srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2267 OF 2011 The Divisional Secretary ....Petitioner vs. Shri Manik Gaman Baviskar & Anr. ....Respondents Mr. P.P. Chavan a/w Ms.Shyamali Gadre i/b Little & Co. for the Petitioner. Mr. G.M. Savagave for the Respondent no.1. CORAM : K.K.TATED,J DATE : 11/07/2011 PC: 1 Heard the learned counsel for the Parties. 2 Rule. 3 Rule made returnable forthwith. By consent matter is taken for final hearing at the stage of admission itself. 4 By this Petition under Articles 226 and 227 of the Constitution of India, Petitioner – Employer original first 2 8 wp 2267.11.doc party challenges the interim order passed by the learned Presiding Officer, Labour Court, Nashik dated 7th February, 2011 below Exhibit U-3 directing the Petitioner to take Respondent no.1-workman in employment till the final decision of the Reference and pay him minimum wages applicable to class IV category during the pendency of the Reference. 5 A few facts of the matter are as under: The Respondent no.1 was working with the Petitioner as a Peon through the contractor on daily wages from 20th March, 1993. They discontinued him from 20th July, 2001. 6 Being aggrieved by the said action, Respondent no.1 by his notice dated 24th May, 2007 issued demand notice to the Petitioner stating that they terminated his services without following due process of law as prescribed under section 25 F, G, H and N of the Industrial Disputes Act, 1947. Thereafter, the Reference came to be registered being Reference (I.D.A.) No. 36 of 2008. In the said Reference, the Petitioner filed their written statement on 3 8 wp 2267.11.doc 27th September, 2009 and disputed that Respondent no.1 worked with them for more than 240 days in the year preceding his termination. They further stated in their written statement that Respondent no.1 was employed temporarily on daily wages through their contractor and he had never put 240 days continuous service during any calendar year with them. In the said complaint, initially, Respondent no.1 preferred Interim Application below Exhibit U-8 for direction to the Petitioner to issue Hall Ticket to the Respondent no.1-workman and to allow him to appear in the written/oral examination which was being held on 20th December, 2009 and call him for interview if he is found eligible as per the requirement for the post reserved for O.B.C. category. The said interim application was allowed by the learned Presiding Officer, Labour Court, Nashik by an order dated 17th December, 2009. Pursuant to the said order Petitioner issued Hall Ticket to the Respondent no.1. He was also allowed to appear in the written examination and he passed in it, but he was unsuccessful in the interview. Thereafter, Respondent no.1 preferred the present Application. 4 8 wp 2267.11.doc 7 The learned counsel appearing on behalf of Petitioner submits that though the Respondent no.1 failed to produce any cogent evidence on record to show that he worked with them for 240 days in any year, the Labour Court passed an order directing to reinstate the Respondent no.1 during the pendency of the workman’s Complaint. He submits that indirectly the Labour Court allowed the original Complaint filed by the Respondent no.1. He further submits that the Labour Court erred in holding that Petitioner failed to file reply to the Respondent no.1’s interim application being Exhibit U-3. He submits that they filed their written statement on 27th September, 2009 in which they raised all the issues about maintainability of the Complaint as well as whether the Respondent no.1 completed 240 days work with the Petitioner at any time. He submits that the Labour Court, as stated in paragraph 8 of his judgment, mainly relied on the fact that the Respondent no.1 completed 240 days of work with the Petitioner during the period from September, 1993 to July, 2001 and he stated so in his affidavit and therefore, the lower Court held that the Respondent No.1 was entitled to the interim relief of 5 8 wp 2267.11.doc reinstatement, but it is against well settled law and as such the impugned order was liable to be set aside. 8 On the other hand, learned counsel appearing on behalf of the Respondent vehemently opposed the present Petition. He submits that after considering the documentary evidence on record and affidavit filed by the Respondent no. 1, the Labour Court rightly allowed their interim application directing the Petitioner to reinstate the Respondent no.1 till the hearing and final disposal of the original Complaint. He also submitted that in similar circumstances, the Labour Court in previous Complaint (ULP) No. 221 of 1991 between Shri Kailash Dattatraya Tile vs. The Divisional Secretary, Maharashtra State Board of Secondary & Higher Education, Pune and another, directed the Petitioner to reinstate the Complainant in that Complaint. The said decision was accepted by the Petitioner and reinstated the Complainant in that Complaint, therefore, the Petitioner cannot discriminate the Respondent no.1. 9 I have gone through the order passed by the Labour Court and the Labour Court in para 8 of this judgment 6 8 wp 2267.11.doc solely relied on the fact that as the Respondent no.1 worked for 240 days in each year, he is entitled to interim relief of reinstatement. It is to be noted that admittedly the Respondent no.1 was working with the Petitioner on daily wages through the contractor. His services were terminated from 20th July, 2001. After six years he issued demand notice dated 24th May, 2007. Just because he worked for more than 240 days in each year, he cannot get right to claim permanency in the services. Our High Court in the matter of Prakash Pandurang Sawant vs. Punjab and Sind Bank and others reported in 2007 (3) Mh.L.J. 882 held that disengagement of an employer upon the expiry of the period of contractual appointment would not amount to retrenchment even if the employee had worked for 240 days in the immediately preceding calender year- Section 25-F of the Industrial Disputes, Act, 1947 is not attracted in such case. Paragraph 12 of the said judgment reads thus: “12. Insofar as the first ground of challenge is concerned, it is an undisputed position that the engagement of the Petitioners was temporary in nature. Each of the Petitioners was engaged for 7 8 wp 2267.11.doc a specified term. Upon the expiry of the period of engagement, the tenure during which the Petitioners came to be engaged stood concluded as a result of the non renewal of the contract of employment. There is merit in the submission that was urged on behalf of the First Respondent therefore that the termination resulting from a non-renewal of a contract of employment will not fall within the definition of the expression “retrenchment” for the purposes of Section 2(oo) of the Industrial Disputes Act, 1947. Section 2(oo) defines retrenchment to mean the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action. The definition, however, specifically excludes certain categories of termination and one of them, in Clause (bb) is the termination of the service of a workman as a result of a non- renewal of the contract of employment between the employer and the workman concerned on its expiry or when a contract is terminated under a stipulation in that behalf contained therein. This position is amplified in several judgments of the Supreme Court and at this stage, it would be perhaps appropriate to advert to two of the recent judgments on the subject. In Managing Director, Karnataka Handloom Development Corporation Ltd. vs. 8 8 wp 2267.11.doc Mahadeva Laxman Raval, 2006 (12) Scale 133, the Supreme Court adverted to the earlier decisions inter alia in S.M. Nilajkar v. Telecom District Manager, Karnatka, (2003) 4 SCC 27, Morinda Co-op. Sugar Mills Ltd. vs. Ram Kishan, (1995) 5 SCC 653. Anil Bapurao Kanase vs. Krishna Sahakari Sakhar Karkhana Ltd., (1997) 10 SCC 599 and Kishore Chandra Samal vs. Orissa State Cashew Development Corporation Limited Dhenkanal, 2006 (1) SCC 253. The Supreme Court has clearly held in these judgments that the disengagement of an employee upon the expiry of the period of contractual appointment or on the completion of the work for which an employee was engaged would not amount to retrenchment even if the employee had completed work to the extent of 240 days in the immediately preceding calender year. Section 25-F of the Industrial Disputes Act, 1947 applies to a case of retrenchment. The termination of the services of a workman as a result of the non renewal of a contract of employment would not amount to retrenchment as defined in Section 2(oo) and consequently, Section 25-F will not be attracted. The same principle was reiterated in a judgment of two Learned Judges of the Supreme Court in Municipal Corporation, Ludhiana vs. Ram Pal 2006 II LLJ 235. Moreover, at this stage it would be also necessary to note that following 9 8 wp 2267.11.doc the decision in Indian Cable Co. Ltd. vs. Workmen (1962) I LLJ 409, the Supreme Court has held that when a casual employee is employed in different establishments even under the same employer (for example, the Railway Administration which has different administrative set ups, different requirements and different projects), the concept of continuous service cannot be applied. In such a case where the tenure of a workman has ended in one of the establishments and the workman has joined another, the same would not amount to his being in continuous service. Though the decision in Indian Cable Co. Ltd. was laid down in the context of Section 25-G, the Supreme Court has held that the law for the purpose of counting the days of work in different departments controlled by an apex corporation will be governed by the same principles. DGM Oil and Natural Gas Corporation Ltd. vs. Ilias Abdulrehman (2005) 2 SCC 183 and Union of India vs. Jummasha Diwan, (2006) 8 SCC 544.” 10 In the present case, admittedly, the Respondent no.1 was appointed on daily wages through the contractor. The Labour Court allowed the Respondent no.1’s Application only on the ground that Respondent no.1 filed an affidavit 10 8 wp 2267.11.doc stating that he worked for more than 240 days in each year from September, 1993 to July, 2001. Considering the authority of our High Court and after going through the pleadings in the present case, the impugned order passed by the learned Presiding Officer, Labour Court, Nashik dated 7th February, 2011 below Exhibit U-3, can not be sustained. 11 Writ Petition is allowed. 12 Impugned order dated 7th February, 2011 passed by the learned Presiding Officer, Labour Court, Nashik below Exhibit U-3 in Reference (I.D.A.) No.36 of 2008 is set aside. 13 No order as to costs. (K.K.TATED,J.)