1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 3847 OF 1994 M/s. Parner Taluka Sahakari Sakhar Karkhana Ltd., Devibhoyare, Tq. Parner, Dist. Ahmednagar - 414 306 through its Managing Director ....Petitioner. Versus Mr. Bapusaheb s/o. Rambhaji Khemnar, At and Post Sakur, Tq. Sangamber, Dist. Ahmednagar ....Respondent. WITH WRIT PETITION NO. 3851 OF 1994 M/s. Parner Taluka Sahakari Sakhar Karkhana Ltd., Devibhoyare, Tq. Parner, Dist. Ahmednagar - 414 306 through its Managing Director ....Petitioner. Versus Mr. Dnyandeo Namdeo Shelar, Age 26 yrs., Occu. R/o. Belwandi, Tq. Shrigonda, Dist. Ahmednagar ....Respondent. WITH WRIT PETITION NO. 3860 OF 1994 M/s. Parner Taluka Sahakari Sakhar Karkhana Ltd., Devibhoyare, Tq. Parner, Dist. Ahmednagar - 414 306 through its Managing Director ....Petitioner. Versus 2 Mr. Rohidas Yashwant Jadhav, Kanhobachi Wadi, Post Shirur, Tq. Patoda, Dist. Beed. ....Respondent. Shri. V.N. Upadhye, Advocate for petitioner in all petitions. Shri. U.S. Sawaji Advocate h/f. Shri. T.K. Prabhakaran, Advocate for respondent in all petitions. CORAM : R.K. DESHPANDE, J. DATE : 9th July, 2010. ORAL JUDGMENT : 1. The petitioner in all the three writ petitions is the employer, whereas the respondents in all the three writ petitions are the seasonal employees. 2. The respondent Bapusaheb Rambhaji Khemnar in Writ Petition No. 3847/1994 filed complaint (ULP) No. 4/1991, the respondent Rohidas Yashwant Jadhav in Writ Petition No. 3860 filed complaint (ULP) No. 5/1991 and the respondent Dyandeo Namdeo Shelar in Writ Petition No. 3851/1994 filed complaint (ULP) No. 6/1991 (respondents in all the three writ petitions shall hereinafter referred to as "the complainants") before the Labour Court at Ahmednagar, invoking the jurisdiction under section 28 (1) read with Item No. 1 (a), (b), (d), (f) of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair 3 Labour Practices Act, 1971 (MRTU and PULP Act, 1971), challenging their discontinuation from services with effect from 20.10.1990. The complainants Bapusaheb and Dyandeo alleged in their separate complaints that they were working as temporary seasonal centrifugal vehicle operators during the season 1989-90 i.e. from 26.11.1989. Both of them alleged that their names were enrolled in the time-office as per the Rules for the season 1990-91, which commenced from 20.10.1990. It was alleged that when both of them approached the petitioner/employer for providing seasonal work, they were not allowed to join the duties. Hence, it was their termination with effect from 20.10.1990 as temporary seasonal centrifugal vehicle operators from service. 3. The complainant Rohidas Yashwant Jadhav alleged in his complaint that he worked as temporary seasonal centrifugal vehicle operator during the season 1986-87 to 1989-90. He alleged that his name was enrolled in the time-office as per the Rules for the season 1990-91, which commenced from 20.10.1990. He alleged that when he went to join the duties on 20.10.1990, the petitioner did not permit him to join the duties and therefore, this amounted to his termination from services. 4. The petitioner/employer filed written statement in all the complaints. It was the stand that the complainants were working as a temporary workers. The petitioner/employer took the stand that the Courts below ought to have seen the seasonal character of the 4 complainants and they were employed, as and when the post and work are available during the season. It was also the stand taken that the complainants did not offer themselves for work in spite of enrollment. According to the petitioner/employer, the complainants had not completed 240 days continuous service, preceding to the date of their termination and hence, they were not entitled to be reinstated in the service and compliance of section 25-F and G of the Industrial Disputes Act was not required. It was the further stand taken by the employer that the complainants were appointed on their request applications in the season of 1989-90 and at the end of the said season, their services were terminated. It was further stated that the petitioner decided to reduce the strength of worker and as per the policy, the strength of the workers were reduced. 5. The Labour Court recorded a finding that seniority list, Exh. C-11, was maintained by the management and the workers, who were at Sr. Nos. 25 to 38, were juniors to the complainants, were provided with the work during the season 1990-91. The contention raised by the management/petitioner/employer that the complainants did not turn up on duties during the season 1990-91, was rejected. It was held that the petitioner/employer was engaged in an unfair labour practice in terminating the services of the complainants with effect from 20.10.1990 and further, the order of reinstatement with full backwages and continuity in service as temporary operators was passed. 5 6. Being aggrieved by the common judgment and order dated 31.3.1992 passed by the Labour Court, Ahmednagar in all the three aforesaid complaints filed by the complainants, the petitioner/employer preferred three separate revisions before the Industrial Court being numbers as Revision (ULP) Nos. 19/1992, 20/1992 and 21/1992. All these revision petitions were partly allowed by the Industrial Court by its judgment and order dated 10.6.1994. The Industrial Court confirmed the order of the Labour Court, to the extent it granted reinstatement to the complainants in service. However, the Industrial Court directed that the petitioner/employer shall pay backwages for crushing season 1990-91 and 1991-92. It was further directed that the petitioner/employer shall pay backwages and discontinuation allowance for the crushing season 1992-93 till reinstatement. The Revisional Court confirmed the findings recorded by the Labour Court, on the question of reinstatement in service. It was further held that the seniority list at Exh. C-11, C-14 and C-24 were not maintained in accordance with the procedure prescribed under the Standing Orders applicable. It was held that the Labour Court was right in relying upon the seniority list, Exh. C-11. The order of the Labour Court was, however, modified by maintaining the order of reinstatement with continuity in service. But the order of payment of backwages was modified and backwages were made payable only for the crushing season 1990-92 and 1991-92 along with backwages and discontinuation allowance for the crushing season 1992-93 till 6 realization. 7. Being aggrieved by the decisions given by the Courts below, the employer has preferred all these three writ petitions before this Court. Shri. Upadhye, the learned counsel for the petitioner, has heavily relied upon the decision of the Apex Court reported in 2006 AIR SCW 6084 in the case of Bhogpur Co-op. Sugar Mills Ltd. Vs. Harmesh Kumar. He urged that the provisions of section 25-F of the Industrial Disputes Act were not at all attracted and the question of reinstatement and backwages in service to the complainants does not arise. Shri. U.S. Sawaji holding for Shri. Prabhakaran, the learned counsel for the respondents/complainants supported the orders passed by the Courts below and submits that the Courts below have recorded the findings of facts and no perversity is pointed out in recording such findings. He argued that the employment of the complainants is on permanent basis as seasonal centrifugal operators, to be employed during every season. 8. The question of employment of seasonal workers is concluded by the decision of the Apex Court reported in 2006 AIR SCW 6084 which is cited supra. In the said judgment, it has been held that the employment being seasonal, the question of seasonal workers completing 240 days continuous service, would not arise and consequently, the question of violation of section 25-F of the Industrial Disputes Act also does not arise. It has been held that though the provisions of section 25-F read 7 with section 2 (oo) (bb) are not attracted, still the applicability of section 25-G of the Industrial Disputes Act cannot be disputed. It has been held that even if the employee fail to establish that he has completed 240 days continuous service, preceding to the date of his termination, still he can claim the protection available under section 25-G of the Industrial Disputes Act. Both the Courts below have held that the conditions of service of seasonal employees are governed by Standing Orders certified under the Bombay Industrial Dispute Regulation Act, 1946. Both the Courts below have considered the provisions of clauses 4-A, 4-C and 4-D of the Standing Orders. It has been held that the employer is bound to follow the said provisions, while terminating the services of the employees and the principle of 'last come first go' is also required to be observed. It has been held that the employer is required to maintain common seniority list. It is further a finding recorded by the Courts below that the juniors of the complainants were retained and the complainants were not provided the work from 20.10.1990. Shri. Upadhye, the learned counsel for the petitioner, could not point out any infirmity in the findings recorded by the Courts below. 9. Shri. Upadhye, the learned counsel, urged that it was the case of abandonment of service by the complainants, although they were called during the season 1990-91, they did not approach the employer and refused to perform the work. However, this aspect has also been dealt with by the Labour Court in para 18 and it has been held that in the 8 absence of offer for alternate employment on the part of the employer to the complainants, it is difficult to believe that the complainants have abandoned the work or that, they were not in the need of employment. There is no perversity pointed out in recording such finding. At any rate, it is a possible view and hence, no interference is called for in the said findings of facts recorded by the Courts below. 10. The question now, which remains is regarding the relief which is to be granted to the complainants. The Labour Court has granted reinstatement and such order is confirmed by the Revisional Court. The Revisional Court has modified the order of backwages. However, the rights of seasonal employees are decided by the Apex Court in the judgment cited supra and the relevant portion of the same is contained in para 12, which is reproduced below :- "The question is whether such a cessation would amount to retrenchment. Since it is only a seasonal work, the respondents cannot be said to have been retrenched in view of what is stated in clause (bb) of Section 2(oo) of the Act. Under these circumstances, we are of the opinion that the view taken by the Labour Court and the High Court is illegal. However, the appellant is directed to maintain a register for all workmen engaged during the seasons enumerated hereinbefore and when the new season starts the appellant should make a publication in neighbouring places in which the respondents normally live and if they would report for duty, the appellant would engage them in accordance with seniority and exigency of work." 9 11. In view of the aforesaid law laid down by the Apex Court, the orders passed by the Courts below are required to be modified, as under :- a) The order of reinstatement in service is maintained. However, the petitioner/employer is directed to maintain the register for all the workmen engaged during the seasons and when the new season starts, the petitioner/employer shall make publication in the neighbouring places, in which the complainants normally live and if they would report for duty, the petitioner/employer would engage them in accordance with seniority and exigency of work. b) In view of the fact that the complainants were wrongfully denied the employment in the next season of 1990-91 and 1991-92, the order of payment of backwages passed by the Industrial Court is maintained. c) The petitions are partly allowed. Rule is made absolute in the above terms. No costs. [ R.K. DESHPANDE, J. ] ssc/wp3847.94