1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1283 OF 2002 WITH WRIT PETITION NO. 361 OF 2003 1. The State of Maharashtra } Through Govt. Pleader, } High Court, Bench at Aurangabad. } 2. Plantation Officer, } Social Forestry Division, } Nawapur, Dist. Dhule. } 3. Dy. Director, } Social Forestry Division, Dhule. } 4. Director of Social Forestry } .... PETITIONERS/ Department (MS), Pune. } (ORI.RESPONDENTS) V E R S U S Shri. Rambhau Bansi Bagul } Age : 36 Years, } R/o : Thanpada, Dist. : } Nandurbar. } .... RESPONDENT Mr. K.G.Ghute Patil , A.G.P. for Petitioner- State. Mr.M.V.Dhongade, Advocate holding for Mr. R.R.Patil, Advocate for Respondent. [ CORAM : S.S.SHINDE, J. ] JUDGMENT RESERVED ON : 25/08/2009 JUDGMENT PRONOUNCED ON : 14/09/2009 2 JUDGMENT : 1. This Writ Petition is filed challenging the Judgment and Order dated 5/2/1999 passed by the Labour Court, Dhule in Complaint (ULP) No. 20 of 1993 and the Judgment and Order dated 29/11/2001 passed by the Industrial Court, Jalgaon in Revision Application (ULP) No. 717 of 1999 and 849 of 1999. 2. The back-ground facts of the case are as under : It is the case of the petitioners that the respondent was appointed under the scheme known as ‘ Jalawu Sarpan Yojana ’. The said scheme was being implemented through petitioner nos. 2 to 4. That the services of the respondent were terminated after paying him amount equal to 3 month’s salary w.e.f. 28/2/1991. The respondent herein being aggrieved by the termination, approached to the Labour Court Dhule and filed Complaint (ULP) No. 20 of 1992 alleging unfair labour practice against the petitioners under Item (1) of Schedule IV of M.R.T.U. and P.U.L.P. Act, 1971 (for short ‘ the Act ’ ). The respondent further prayed for retrenchment with continuity of service and back wages. 3. It is alleged in the Complaint by the respondent that the petitioners have terminated his service without following mandatory provisions of Section 25-F and 25-G of the Industrial Disputes Act, 1947 3 (for short ‘ I.D. Act ’ ). The grievance was also made that the junior persons to the respondent have been retained in the service. It is further stated in the complaint that the respondent has completed 240 days continuous service in a calender year and, therefore, he has attained the status of permanent employee. 4. The petitioners herein appeared before the Labour Court and filed Written Statement resisting the claim of the respondent. It is specific contention of the petitioners that the respondent was engaged on purely temporary basis under the Scheme sponsored by the Central Govt. The appointment order also specifically makes a reference that his services are taken on temporary basis and he will be liable to be terminated without assigning any reasons. It is further stated in the Written Statement that there was no work available as the scheme did not continue further and, therefore, there was no alternative but to effect termination of the respondent. It is further stated in the Written Statement that the petitioners have given 3 month’s salary to the respondent in lieu of notice of termination and, therefore, termination is perfectly legal. 5. The Labour Court after hearing both the parties and going through the evidence adduced by the parties, it came to the conclusion that the petitioners have committed unfair practice by effecting termination of the respondent. The Presiding Officer, Labour Court, 4 Dhule allowed the Complaint of the respondent and directed the petitioners to reinstate the respondent with continuity in service and 30 % back wages. 6. The petitioners herein filed Revision Application (ULP) No. 717 of 1999 before the Industrial Court, Jalgaon challenging the Order passed by the Labour Court, Dhule. The respondent herein also filed Revision Application (ULP) No. 848 of 1999, being aggrieved by the Judgment and Order passed by the Labour Court, Dhule granting back wages to the extent of 30 % and not 100 %. 7. The Member, Industrial Court, Jalgaon heard both sides and after appreciating the contentions of the respective parties, by common Judgment dated 29/11/2001, dismissed the Revision filed by the petitioners and allowed the Revision filed by the respondent, granting 100 % back wages to the respondent herein. Hence, this Writ Petition. 8. Learned A.G.P. appearing for the petitioner – Sate submitted that, the petitioners are the authority under the Social Forestry Department, Govt. of Maharashtra. The learned A.G.P. submitted that the respondent- employee was appointed as Lagwad Kotwal under the Social Forestry Department vide Order dated 2/2/1985. He joined duties on 6/2/1985. It is further submitted that 5 the appointment of the respondent herein was on a post under the scheme of fire wood establishment vide Govt. Resolution dated 1/12/1990 and the Govt. has granted extension to the said scheme till 28/2/1991. It is further submitted that on 6/2/1991, the Director of Social Forestry i.e. petitioner no. 3 informed petitioner no. 2 that the Govt. has not granted further extension to the scheme, therefore, the post under the said scheme can not be continued and ultimately issued direction to terminate the services of the employees appointed under the fire wood scheme. The petitioner no. 2, Dy. Director of Social Forestry, Nasik issued communication dated 26/2/1991 to relieve the respondent – employee w.e.f. 28/2/1991. It is further submitted that the respondent – employee is removed from service by giving 3 month’s retrenchment compensation on 4/3/1991. The learned A.G.P. further submitted that the present petitioners are the authorities under Social Forestry Department. The object of scheme undertaken by the Social Forestry Department is cultivation, preservation and maintenance of forest and it is not an Industry or commercial business. Therefore, according to the learned A.G.P., the activities undertaken by the petitioner/department, can not be termed as part of sovereign function and, therefore, the provisions of Industrial Disputes Act are not applicable. It is further argued that, since the respondent – employee has not proved that, the petitioners have taken any commercial or industrial activity and, therefore, the complaint filed by the respondent was not maintainable. 6 It is further submitted that on closure of scheme after 28/2/1991, the posts created under the scheme does not survived and in absence of substantive sanction of post, regularization of service even after completion of 240 days work, may not create right of regularization to the respondent-employee. It is further submitted that, some of the similarly situated employees, whose services were terminated after the issuance of direction by the Hon’ble Supreme Court, necessary scheme is framed by the Government vide Govt. Resolution dated 18/10/1996 and thereby absorption is being done in respect of those employees. It is further submitted that the respondent was appointed for a fix period and, therefore, he is covered under Section 2 (00) of the Industrial Disputes Act and, therefore, the termination is not the retrenchment. It is further submitted that the respondent was working on adhoc assignment and, therefore, no right exists in favour of respondent for continuity in service and back wages on his termination. It is further submitted that merely because employee has completed 240 days service in a calender year, he does not acquire the status of workman as defined under the provisions of Industrial Disputes Act. It is further submitted that the services of the respondent has been terminated in lieu of 3 months salary and, therefore, termination is in accordance with the provisions of law. It is further submitted that the social forestry department is not covered under the definition of Industry under Section 2-J of the Industrial Disputes Act and, therefore, the provisions of Industrial Disputes Act under Section 25-F and 25-G are 7 not attracted in the present case. It is further submitted that the respondent had given undertaking that the services of the respondent were liable to be terminated without issuing show cause notice. Therefore, now the respondent can not go beyond the undertaking, which was filed on his behalf. 9. Learned A.G.P. in support of his contention that the petitioner is not covered under the definition of Industry and burden lies on respondent – employee to assert and prove that the petitioner – department is covered under the definition of Industry, the learned A.G.P. invited my attention to the reported Judgment of the Hon’ble Supreme Court in case of State of Gujarat & Ors. V/s Pratamsingh Narsinh Parmar reported in 2001 I CLR 968, the reported Judgment of Delhi High Court in case of Bhagwan Hosiery V/s Presiding Officer, Labour Court & Ors. Reported in 2001 I CLR 971, Judgment of Division Bench of this High Court in Haribhau Gaman Waghchaure V/s State of Maharashtra & Others reported in 2002 (1) CLR 383 and reported Judgment of this High Court in case of Marathwada Sarvashramik V/s Department of Social Forestry reported in 2002 (5) Bom. C.R. 650 . On the basis of the aforesaid pronouncement by this Court as well as other High Courts and Hon’ble Supreme Court, learned A.G.P. vehemently submitted that the respondent – employee did not plead and specifically asserted in his complaint that the work assigned 8 to him or the activities carried out by the petitioner/department, is not part of its sovereign function. Learned A.G.P. further submitted that the Govt. Department discharging sovereign function, can not come under the definition of Industry as defined under Section 2-J of the Industrial Disputes Act. Therefore, the learned A.P.P. would submit that when the appointment of the respondent herein was under the scheme or for specific period and on temporary basis, the Labour Court and Industrial Court have failed to appreciate the contentions of the petitioner and arrived at wrong conclusion that the respondent is entitled for regularization and back wages. Therefore, the learned A.G.P. would submit that this Writ Petition deserves to be allowed. 10. The learned counsel appearing on behalf of the respondent invited my attention to the grounds taken in the Complaint before the Labour Court as well as before the Industrial Court and submitted that both the Courts below have properly appreciated the contentions of the parties and after appreciation of entire evidence on record, have allowed the Complaint filed by the respondent herein. It is further submitted that the respondent herein is in the employment of the petitioners from 6/2/1985. He was appointed vide Order dated 2/2/1985 by direct appointment on clear and vacant post of Lagwad Kotwal and worked up to 1/3/1991 and completed more than 240 days service in each calender year. The learned counsel further submitted that, in fact the petitioners have admitted in Written Statement that the 9 complainant/respondent herein was appointed w.e.f. 6/2/1985 vide Order dated 2/2/1985 which is at Exh. U-13 and worked up to 1/3/1991 and his services were terminated from 1/3/1991. The learned counsel further submitted that the appointment order of the complainant/respondent herein which is at Exh. U-13, wherein it is nowhere stated that the complainant was appointed under ‘ Jalawu Sarpan Yojana ’. It is further admitted by the witness of the petitioners that the services of the complainant was terminated by Office Order dated 1/3/1991. The said witness further admitted that, their office has remitted the retrenchment compensation on 4/3/1991. He further admitted that the complainant was continuously in service from 2/2/1985 to 28/2/1991. He further admitted that the date of publication of seniority list is not maintained by the office and it is also not signed by any Officer. He has further admitted that, the post of Lagwad Kotwal is of permanent nature. The learned counsel further submitted that the Hon’ble Supreme Court in Chief Conservator of Forests and another , etc. V/s Jagannath Maruti Kondhare, etc. reported in AIR 1996 SUPREME COURT 2898 has held that the work undertaken by the Social Forestry Department meant for preservation of forests and environment and can not be regarded as part of sovereign function of State Govt. and hence the respondent therein can invoke the jurisdiction of the Industrial Court. Learned counsel further invited my attention to the reported Judgment of this Court in case of State of Maharashtra & 10 another V/s Sarva Shramik Sangh & another reported in 2002 (Supp.) Bom.C.R. 270 in which, it is held that , “ Forest department answers all tests laid down by Supreme Court and hence is an industry ”. The learned counsel further submitted that the facts in the present case are identical to the above mentioned cases. The learned counsel further submitted that on the basis of Order passed by the Hon’ble Supreme Court in S.L.P. No. 638 of 1995, the Govt. of Maharashtra through its Rural Development and Water Conservation Department prepared a Scheme for absorption of Ropwan Kotwal vide Govt. Resolution dated 22/7/1997, the Ropwan Kotwal who are qualified to be absorbed in Govt. services, shall be given appointment as and when there shall be vacant post available. The learned counsel further submitted that it is further declared vide Govt. Resolution dated 22/7/1997 that such eligible Ropwan Kotwal shall be absorbed as per the seniority. Therefore, learned counsel would submit that being senior most employee and worked for more than 5 years on the post of Ropwan Kotwal as back as 1985 to 1991, respondent is entitled even in view of Govt. Resolution dated 22/7/1997 to continue in service. The learned counsel further submitted that there was assertion by the present respondent/complainant in the Complaint that the activities carried out 11 by the petitioners herein, can not be termed as a part of sovereign function. The learned counsel invited my attention to the work allotted to the respondent and submitted that nature of work which was given to the respondent, can not be termed as part of sovereign function of the State. Therefore, learned counsel would submit that both the Courts have taken a possible view and allowed the Complaint filed by the respondent herein. The learned counsel further submitted that this Court under Article 227 of the Constitution of India, can exercise the jurisdiction to correct an error of law i.e. manifest on the face of record. In the instant case, there is no any error of law i.e. manifest on the face of record or the Courts below have not exceeded their jurisdiction or orders passed by the Courts below are not without jurisdiction. Therefore, under Article 227 of the Constitution of India, this Court in extra ordinary jurisdiction, may not entertain the petition filed by the petitioners. In support of his contention, learned counsel invited my attention to the reported Judgment of this Court in case of Prabhudas Narayan Gedam and others V/s Municipal Council, Bhadrawati reported in 2003 (1) Mh.L.J. 275 and submitted that power under Article 227 of the Constitution of India can be exercised to correct an error of law i.e. manifest on the face of record. Therefore, the learned counsel submitted that the Writ Petition is devoid of any merits and the same deserves to be dismissed. 11. I have heard the learned A.G.P. appearing for the State 12 and learned counsel appearing for the respondent at length. 12. The Labour Court while entertaining the Complaint filed by the present respondent, has framed as many as 7 Issues. The first Issue was, “ Does the complainant prove that the respondents terminated him from service illegally ? ”. While dealing with this Issue, the labour Court has recorded the reasons/findings that the respondent herein is in continuous service from 6/2/1985 up to 1/3/1991 and completed more than 240 days service in each calender year. The Court has recorded that there is no averment in the Written Statement that the complainant was not in the employment from 6/2/1985. Court has further recorded that the present petitioners/original respondents have admitted in Written Statement that the complainant was appointed w.e.f. 6/2/1985 vide Order dated 2/2/1985 which is at Exh. U-13 and worked up to 1/3/1991 and his services were terminated from 1/3/1991. Therefore, the Labour Court held that, the respondent herein proved beyond doubt that he had been in the continuous employment of the present petitioners from 6/2/1985 up to 1/3/1991 and completed 240 days service in each calender year. Therefore, the Labour Court held that the complainant has continuously worked with the respondent for more than 240 days in a calender year. While dealing with Issue nos. 1,2 and 7 i.e. Whether petitioners herein have indulged in unfair labour practices to terminate the services of the respondent, Whether the petitioners terminated 13 services of the respondent herein illegally and whether the complainant has proved that the respondents violated Section 25-F and 25-G of the Industrial Disputes Act, the Labour Court has recorded the findings that the appointment order of the complainant is at Exh. U-13. On careful perusal of the appointment order at Exh. U-13, it is nowhere stated that the complainant was appointed under ‘ Jalawu Sarpan Yojana ’. On the contrary, the witness on behalf of the original respondents/petitioners herein has admitted in his cross examination that in the appointment order, it is not specifically mentioned that, the complainant was appointed under ‘ Jalawu Sarpan Yojana ’. It is further observed by the Labour Court that the witness on behalf of original respondents admitted that the services of the complainant were terminated by Order dated 1/3/1991 and their office has remitted the retrenchment compensation on 4/3/1991. It is further admitted by the said witness that the complainant was continuously in service from 2/2/1985 to 28/2/1991. The date of publication of seniority list is not mentioned on the list and it is also not signed by any Officer. He has further admitted that the post of Lagwad Kotwal is of permanent nature. Hence, it is proved beyond doubt that the complainant had continuously worked from 6/2/1985 to 28/2/1991 and completed 240 days in each calender year. The Court has also recorded the findings that the complainant was not appointed under ‘ Jalawu Sarpan Yojana ’ but he was appointed by direct appointment on post of permanent nature. The Court has further observed that no charge sheet was issued 14 nor enquiry was conducted against the complainant before terminating his services. The services of the respondent herein were terminated only on the ground that the ‘ Jalawu Sarpan Yojana ’ is discontinued and, therefore, services of the respondent was terminated w.e.f. 1/3/1991. The Labour Court has further taken note that the witness for the petitioners has admitted that it is not mentioned specifically in the appointment order Exh. U-13 that the complainant was appointed under the ‘ Jalawu Sarpan Yojana ’. It is also not disputed that though the services of the complainant were terminated from 1/3/1991 by Order dated 28/2/1991, but the amount of retrenchment compensation was remitted on 4/3/1991. The Labour Court further observed that on careful perusal of the termination order Exh. U-14, exact amount of retrenchment compensation has not been mentioned, but it is mentioned that 3 month’s salary will be paid to the respondent on approaching the office. As per the provisions of Section 25-F of the Industrial Disputes Act, 1947, the complainant was entitled for retrenchment as per Section 25- F of the Industrial Disputes Act, 1947. The Labour Court has also taken a note of the fact that the complainant has completed six years service and he was entitled for one month’s notice along with retrenchment compensation for three months salary. But, in fact he was paid 3 month’s salary which is against the provisions of Section 25 of the Industrial Disputes Act. Therefore, Labour Court came to the conclusion that the respondents did not comply the mandatory 15 provisions of Section 25-F and 25-G of the Industrial Disputes Act before terminating the services of the complainant and the services of the complainant have been terminated for false reason stating that ‘ Jalawu Sarpan Yojana ’ has been discontinued by the Govt. while he was appointed as a regular employee and not under the said scheme. Therefore, the Labour Court has answered Issue no. 1 and 7 in the affirmative. 13. The Labour Court further held that the complainant has been terminated by the respondents without following due process of law and patently on false reasons, the respondents have indulged in unfair labour practice under item 1 (b) (d) and (f) of Schedule IV of the Act i.e. not in good faith, but in colourable exercise of employer’s rights, for patently false reasons and with undue haste. Therefore, Labour Court has answered Issue no. 2 in the affirmative. 14. While dealing with Issue nos. 4 and 8 i.e. Whether the complainant is entitled for reinstatement with continuity in service and back wages and what order, the Labour Court has relied on the decision of this Court in case of Trade Wings Ltd. V/s Prabhakar Dattaram Phodkar of Bombay and ors. , in which it is held that , “ Industrial Disputes Act, 1947 – Sec. 25-F – Industrial Disputes (Bombay) Rules – Rule 81 – 16 Display of Seniority List category-wise before effecting, Retrenchment-Failure to display such list-effect. The said provision being mandatory, retrenchment will be quashed ”. The Labour Court further relied on the reported Judgment of the Patna High Court in case of Somu Kumar Chhatterjee and another V/s The District Signala Tele-Communication Engineer and others reported in 1970 LAB I.C. (Vol.3 C.N.147) and reported Judgment of the Rajasthan High Court in case of Rajasthan State Road Transport Corporation and another V/s The Judge, Industrial Tribunal, Rajasthan, Jaipur and another reported in 1985 LAB I.C. Page no. 480, in which it is held that, “ Section 25-F (a) and (b) Retrenchment – Dues payable under Section 25-F (a) and (b) not tendered at the time of retrenchment – Retrenchment Invalid ”. On the issue of back wages, the Judge has observed that the respondent has failed to prove that the complainant was in gainful employment from the date of termination till the date of evidence of respondents. Therefore, Labour Court directed to pay 30 % back wages from 1/5/1995 till the date of passing of the order. The Labour Court by Order dated 5/2/1999 partly allowed the complaint. It is held that the present petitioners/original 17 respondents have indulged in unfair labour practices under item 1 (b) (d) and (f) of Schedule IV of the Act and terminated the services of the complainant w.e.f. 1/3/1991. The Labour Court directed the original respondents/petitioners herein to cease and desist from such unfair labour practices immediately and take on affirmative action by reinstating the complainant in service with continuity and pay him 30 % back wages from 1/5/1995 till the date of order of the Labour Court. However, the Labour Court declined to grant back wages from the period from 1/3/1991 up to 30/4/1995. 15. The Industrial Court at Nasik while entertaining the Revision filed by the petitioners herein and respondent herein, in common Judgment and Order, framed necessary points for its determination and adjudication. The Industrial Court in paragraph 5 of the Judgment has referred to scope of Section 45 of the Act and observed that the provisions are analogous to Article 227 of the Constitution of India. Unless it is established that patent illegality/perversity has been committed while passing the impugned order, no interference is required in the said order in such limited jurisdiction. The Industrial Court has considered the submissions of the petitioners herein that the petitioner Social Forestery Department is not an Industry and, therefore, the provisions of Industrial Disputes Act are not applicable. The Industrial Court has referred to various Judgments cited by the petitioners as well as the respondent and in paragraph 7 18 held that, “ It is clear that the Ld. Labour Court has arrived at the conclusive findings of continuous service of the complainant employee from 6/2/1985 till his termination. Admittedly, neither any show cause notice, charge sheet has been given to him nor any domestic enquiry has been conducted. There is positive finding of the Ld. Labour