1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 5184 OF 2008 1. Executive Engineer, Kukadi Project Land Development, Division No. 1, Ahmednagar. 2. Executive Engineer, Kukadi Command Area, Development Division, Sinchan Bhavan, Nagar - Aurangabad Road, Ahmednagar. ....Petitioners. Versus Balu s/o. Prabhu Bhosale, Age 45 yrs., Occu. Nil, R/o. At Post : Shirapur, Tq. Parner, Dist. Ahmednagar. ....Respondent. Shri. G.B. Rajale, Advocate for petitioners. Shri. P.L. Shahane, Advocate for respondent. WITH WRIT PETITION NO. 5185 OF 2008 1. Executive Engineer, Kukadi Project Land Development, Division No. 1, Ahmednagar. 2. Executive Engineer, Kukadi Command Area, Development Division, Sinchan Bhavan, Nagar - Aurangabad Road, Ahmednagar. ....Petitioners. Versus Bhaga s/o. Prabhu Bhosale, Age 45 yrs., Occu. Nil, R/o. At Post : Shirapur, Tq. Parner, Dist. Ahmednagar. ....Respondent. 2 Shri. G.B. Rajale, Advocate for petitioners. Shri. P.L. Shahane, Advocate for respondent. CORAM : R.K. DESHPANDE, J. DATE : 7th June, 2010 ORAL JUDGMET : 1. These petitions preferred under Articles 226 and 227 of the Constitution of India challenge the judgments and orders dated 29th February 2008 passed by the learned Judge of the Labour Court, Ahmednagar, answering references i.e. Ref.I.D.A.No. 9/1996 and Ref.I.D.A.No. 3/1996 in favour of the employees/second party by setting aside the order of termination and granting reinstatement and continuity in service with effect from 25.11.1983 and 28.10.1983 in respective references without giving backwages. 2. Notices were issued in these matters on 19th of September 2008. In these petitions, which are preferred by the employer, an ad-interim relief of stay to the impugned order dated 29.2.2008 was also granted. Parties are served and Shri. Shahane, the learned counsel appears for the respondents/employees. 3. Rule. The parties agree that the matters can be finally disposed of at the stage of admission. Hence, the matters are heard finally. 3 4. Such of the facts that are necessary to decide the matter are stated below :- The respondent/employee in a Ref. I.D.A.No. 9/1996 made under section 10 of the Industrial Disputes Act, 1947 has urged that he was in the employment of the petitioner/employer from 9.2.1982 to 24.11.1983 and he has completed 240 days continuous service in the employment. However, after 24.11.1983 he was not allowed to sign the muster roll and thus, there was oral termination of his service. The respondent/employee in a Ref. I.D.A.No. 3/1996 made under section 10 of the Industrial Disputes Act, 1947 has urged that he was in the employment of the petitioner/employer from 26.5.1981 to 27.10.1983 and he has completed 240 days continuous service in the employment. However, after 27.10.1983 he was not allowed to sign the muster roll and thus, there was oral termination of his service. They urged that they had completed 240 days continuous service and the petitioner/employer without complying the provisions of section 25-F of the Industrial Dispute Act, 1947 terminated their services. It is further urged by the employees that there was also violation of section 25-G of the Industrial Disputes Act, 1947 in the sense that no seniority list of employees was maintained by the employer and the services of the respective complainants were terminated by retaining the juniors in service. 4 5. The employer, on the other, hand denied that the employees have completed 240 days of continuous service. It further denied that the names of juniors to the complainants were retained and the seniority list of employees was not maintained. It is submitted by the employer that there was no case made out for violation of section 25-F of the Industrial Disputes Act, 1947 as the complainants were daily wager. It is further case of the employer that no particulars about violation of section 25-G were specified and hence, complaints were required to be dismissed. It was further urged that there was inordinate delay in making the references. The alleged termination was of 1983 whereas the reference was made in the year 1996. Hence, references were liable to be rejected on this sole ground. 6. The learned Labour Judge of the Labour Court answered the references in favour of the employees by granting reinstatement and continuity of service with effect from 25.11.1983 and 28.10.1983 respectively. However, the backwages are denied to the complainants. The labour Court has held that the reference cannot be rejected on the ground of delay in view of the decision of the Apex Court reported in 2007 (7) Supreme 629 in the case of Karan Singh Vs. M/s. Executive Engineer Haryana State Marketing Board. The Labour Court has held that the employee has not shown that he has been completed 240 days in 12 months prior to the date of termination. It is further held that the question whether the common holidays and weekly Sundays are required to be included in counting 240 days continuous service, is 5 disputed question of fact. However, no finding is recorded as to whether the common holidays and Sundays are to be included in counting 240 days continuous service. Although the Labour Court has recorded finding that there was violation of section 25-G of the Industrial Disputes Act, 1947, it has taken into consideration the appointments which were made in the year 1984 i.e. after termination of services of the complainants/ employees. 7. Shri. Rajale, the learned counsel appearing for the petitioner/employer has urged that there is no finding recorded by the learned Judge of the Labour Court that in counting 240 days continuous service whether the common holidays and Sundays are required to be included. Similarly he has also urged that there is no basis for recording finding in respect of violation of section 25-G of the Industrial Disputes Act, 1947, as the particulars of employees who were junior to the petitioner and were retained in the services have not been mentioned. 8. It is not disputed by both the learned counsel appearing for the parties that the Labour Court has not recorded clear-cut finding as to whether common holidays and Sundays are required to be included in counting 240 days continuous service. In the absence of such finding, no finding in respect of violation of section 25-F of the Industrial Disputes Act, 1947 can be recorded. Similarly, it is also not disputed by the learned counsel appearing for the parties regarding the violation of section 25-G of the Industrial Disputes Act as the Labour Court has failed to record 6 the finding that the employer has either failed to maintain the seniority list or has retained the juniors to the complainants/employees in service while terminating their services. The Labour Court could not have taken into consideration the appointments made after termination of services of complainant. Only those persons who were junior to petitioner while in service can be considered for violation of section 25-G of Industrial Disputes Act. In view of such undisputed factual position, the judgments and orders passed by the learned Judge of the Labour Court, Ahmednagar cannot be sustained, as it is a case of exercise of jurisdiction with material irregularity resulting in manifest injustice. 9. In the result, the instant writ petitions succeed. The judgments and orders dated 29.2.2008 passed by the learned Judge of the IInd Labour Court, Ahmednagar deciding the Ref. I.D. Nos. 9/1996 and 3/1996 in favour of the respective complainant/employee are hereby quashed and set aside. The matters are remitted to the Labour Court, Ahmednagar for deciding it afresh for recording the findings on all the relevant aspects particularly in the light of the observations made by this Court. It is further made clear that Labour Court shall decide the references within a period of 3 months from the date of receipt of writ of this Court. There shall be no order as to costs. [ R.K. DESHPANDE, J. ] ssc/wp5184.08