1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY , BENCH AT AURANGABAD WRIT PETITION NO. 1509 OF 1993 1. The State of Maharashtra, through the Executive Engineer P.W.D.E.G.S.Division, Latur, Dist.Latur. 2. The Assistant Engineer (Grade-I) (P.W.),E.G.S.Sub-Division, Ahmedpur, Tq.Ahmedpur. Petitioners Versus 1. Mangesh Ramchandra Tandale Age:26 Yrs.Occu: Nil, R/o Udgir Tq.Udgir, Dist. Latur. 2. The Presiding Officer Labour Court,Latur. Respondents WITH WRIT PETITION NO. 1738 OF 1993 The State of Maharashtra through the Sub Divisional Engineer Sub Division, Rahata Rahata, Dist.Ahmednagar. Petitioner Versus 2 1. Shrikant Sudam Tupe R/o Rahata Tq.Kopergaon, Dist.Ahmednagar. 2. The Learned Judge, Labour Court,Ahmednagar. Respondents. WITH WRIT PETITION NO.3439 OF 1993 The State of Maharashtra Through Executive Engineer, Irrigation Division, Ahmednagar, Aurangabad Road, Ahmednagar. Petitioner Versus 1) Madhukar Abaji Thokal Age:Major, Occu:Nil, R/o At Post-Parner, Jalgaon road, Ahemadnagar, 2) The learned Presiding Officer, IInd Labour Court, Ahemadnagar. Respondents. WITH WRIT PETITION NO. 3440 OF 1993 The Executive Engineer (Minor Irrigation) Irrigation Department(L.S.) Division No.2, Ahemadnagar Petitioner 3 Versus 1. Bhaskar Raoji More At Post-Vadzire Tq.Parner, Dist.Ahmednagar. 2. The Presiding Officer 2nd Labour Court, Ahmednagar. 3. Industrial Court, Ahmednagar. Respondents. WITH WRIT PETITION NO.5153 OF 1995 The State of Maharashtra through Executive Engineer Public Works Division Fakirwada, Aurangabad Road, Petitioner. Ahmednagar. Versus 1. Shri.Santaram Nathu Borade at Prabhupimpri Post Pagori Pimpalgaon Tq.Pathardi, District Ahmednagar. 2. The Learned Presiding Officer, First Labour Court, Respondednts. Ahmednagar WITH WRIT PETITION NO.589 OF 1997 4 The State of Maharashtra through Dy.Engineer (EGS) Sub-Division Taloda,Dist. Dhule. Petitioner Versus Ashokrao Bhikanrao Deshmukh At Post: Betawad Tq.Shindkheda Dist.Dhule. Respondent WITH WRIT PETITION NO.2924 OF 1997 1. The State of Maharashtra 2. The Executive Engineer National Highway Division No.11, Dhule. Petitioners. Versus 1. Pravin Yadav Desai R/o Zodaga. 2. The Judge, Labour Court, Dhule. Respondents. Dismissed in default against Respondent No.2 as per Addl. R's order dt.13.4.1998. WITH WRIT PETITION NO.123 OF 1998 1. The State of Maharashtra 5 2. The Executive Engineer Public Works Division, Neelanga, Latur. Petitioners. Versus 1. Ram Pradhan Sangave Age:28 Yrs.Occu:Service, R/o Daithan Tq.Udgir, District Latur. 2. Member, Industrial Court, Solapur. Respondents. WITH WRIT PETITION NO.124 OF 1998 1. The State of Maharashtra 2. The Executive Engineer, Public Works Division, Neelanga, Latur. Petitioners. Versus 1. Dynoba Gangaram Panchal Age:34 Yrs.Occu:Service, R/o Neelanga Dist.Latur. 2. Member, Industrial Court, Solapur. Respondents WITH Writ Petition No.134 of 1998 6 1. The State of Maharashtra 2. The Executive Engineer Public Works Division Neelanga, Latur. Petitioners. Versus 1. Narsing Keshavrao Suryawanshi Age:28 Yrs. Occu: Service, R/o Neelanga, Latur. 2. Member, Industrial Court,Solapur. Respondents WITH WRIT PETITION No. 135 OF 1998 1. The State of Maharashtra 2. The Executive Engineer Public Works Division, Neelanga, Latur Petitioners Versus 1. Namdeo Manikrao Birajdar Age:22 Yrs.Occu:Service, R/o Kini, Yellati. 2. Member, Industrial Court, Sholapur. ... Respondents. WITH WRIT PETITION NO.136 OF 1998 1. The State of Maharashtra 7 2. The Executive Engineer Public Works Division, Neelanga, Latur. Petitioners Versus 1. Dyanoba Dhondiram Bagdure Age:27 Yrs.Occu: Service, R/o Hosur, Tq.Nilanga, Dist.Latur. 2. Member, Industrial Court,Solapur. Respondents WITH WRIT PETITION NO.790 OF 1998 1. The State of Maharashtra 2. The Executive Engineer, Public Works Division, Neelanga, Latur. Petitioners Versus 1. Haridas Govindrao Bhande Age:29 Yrs.Occu: Service, R/o Dawangaon Tq.Udgir, Dist.Latur. 2. Member, Industrial Court, Solapur. Respondents WITH WRIT PETITION NO.792 OF 1998 8 1. The State of Maharashtra 2. The Executive Engineer, Public Works Division, Neelanga, Latur. Petitioners Versus 1. Balaji Venkatrao Honale Age:25 Yrs.Occu:Service, R/o Ausa Dist.Latur. 2. Member, Industrial Court, Latur. Respondents WITH WRIT PETITION NO. 793 OF 1998 1. The State of Maharashtra 2. The Executive Engineer, Public Works Division, Neelanga, Latur. Petitioners. Versus 1. Ramkishan Lingaram Wagmare Age:28 Yrs.Occu:Service, R/o Navand Tq.Udgir,District Latur. 2. Member, Industrial Court, Solapur. Respondents WITH WRIT PETITION NO.794 OF 1998 9 1. The State of Maharashtra 2. The Executive Engineer, Public Works Division, Neelanga,Latur. Petitioners Versus 1. Vikas Sarangdhar Maridikar Age:31 Yrs.Occu:Service, R/o Ausa District Latur. 2. Member,Industrial Court, Latur. Respondents. WITH WRIT PETITION NO.329 OF 1999 1. The State of Maharashtra 2. The Superintending Engineer, Public Works Department, Ahmednagar. Petitioners Versus Ankush Laxman Kulhal Age:30 Yrs.Occu:Nil, R/o Ruikhel Shrigonda, Dist.Ahmednagar. Respondent. WITH WRIT PETITION NO.580 OF 1999 Dy.Engineer Minor Irrigation(EGS) 10 Sub Division Pathardi Dist.Ahmednagar. Petitioner Versus Ashok Nana Karad, At Post Yeli,Tq.Pathardi, Dist.Ahmednagar. Respondent. WITH WRIT PETITION NO.3754 OF 1997 Dasarath Nagnath More Age:35 Yrs.Occu: Service, At PO: Dongarkni, Tq.Patoda,Dist.Beed. Petitioner Versus The State of Maharashtra through Executive Engineer, Ahmednagar Irrigation Division, Nagar-Aurangabad Road, Dist.Ahmednagar. Respondent WITH WRIT PETITION NO.2577 OF 1998 Vasant Baburao Ingale Age:40 Yrs.Occu:Now Employed R/o Develgaon Sidhi Tq/Dist.Ahmednagar. Petitioner Versus The State of Maharashtra Through Executive Engineer Ahmednagar Irrigation Division 11 Aurangabad-Nagar Road, Dist.Ahmednagar. Respondent WITH WRIT PETITION NO.2053 OF 1992 1. The Superintending Engineer, Ahmednagar Irrigation Mandal, Ahemdnagar. 2. The Executive Engineer, Urdhwa-Pravara Prakalp Vibhag, Sangamner,Dist.Ahmednagar. 3. The Deputy Engineer, Irrigation Sub-Division (EGS), Shrirampur, Dist. Ahmednagar. ... Petitioners Versus 1. Anil Yeshwantrao Bhagwat Vadala Mahadeo, Tq.Shrirampur, Dist.Ahmednagar. 2. Prakash Pandurang Parkhe R/o Pimpri Nirmal, Tq.Shrirampur, Dist.Ahmednagar. 3. The Judge IInd Labour Court, Ahmednagar. 4. The Member, Industrial Court, Ahmednagar. Respondents WITH WRIT PETITION NO.308 OF 1993 12 1. The State of Maharashtra through Executive Engineer, Maharashtra Jalwapar Prakalpa Sub-Divn.No.2, Mukindpur Tq.Newasa Dist.Ahmednagar. 2. The Administrator and Superintending Engineer, Mula Kakadi Labhkshetra Vikas Vibhag, Aurangabad Road, Ahmednagar. Petitioners Versus Bhagwat Sayaji Kharpude At & Post Nagar Deole Tq. & Dist.Ahmednagar Respondent WITH WRIT PETITION NO.930 OF 1994 The State of Maharashtra Through- Executive Engineer, Irrigation Division,Ahmednagar. Petitioner Versus 1. Ashok S/o Narayan Paimode Age:28 Yrs. Occu:Labour, R/o At & post Manchur, Tq.Kopergaon, Dist.Ahemadnagar 2. The learned Presiding Officer Labour Court, Ahmednagar. Respondents WITH 13 WRIT PETITION NO. 4170 OF 1994 The State of Maharashtra through Executive Engineer, Mula Irrigation Division, Ahmednagar. Petitioner Versus 1. Sarjerao Yadav Khade At & Post: Ghodegaon Tq.Newasa, Dist.Ahmednagar, 2. Presiding Officer, Labour Court, Ahmednagar. Respondents WITH WRIT PETITION NO.3254 OF 1995 The State of Maharashtra through Executive Engineer, Irrigation Department Aurangabad Road,Fakirwada Ahmednagar. Petitioner -14- Versus 1. Shri.Bharat Mahadeo Datal At-Bal Gavhan PO Kharda Tq.Jamkhed Dist.Ahmednagar. 2. The Learned Judge IInd Labour Court, Ahmednagar. Respondents. WITH 14 WRIT PETITION NO. 3276 OF 1995 The State of Maharashtra through Sub Divisional Engineer, Godavari Right Side, Canal,Sub Division, Rahata, Tal.Kopergaon District Ahmednagar. Petitioner Versus 1. Narayan Kisan Chavan At & Post Wakadi Tq. Shrirampur,Dist.Ahemadnagar 2. The Learned Presiding Officer, IInd Labour Court, Ahmednagar. Respondents WITH WRIT PETITION NO.4037 OF 1995 The Deputy Engineer, Pravara Left Cananl Sub Division Shrirampur Petitioner Versus Nana Genu Bansode At and Post Khirdi Tq.Shrirampur, Dist.Ahmednagar. Respondent. WITH WRIT PETITION NO.5495 OF 1995 15 1. The State of Maharashtra through the Administrator Command Area Development Fakirwada, Ahmednagar. 2. The Executive Engineer Mula Irrigation Project Fakirwada , Ahmednagar. Petitioner Versus 1. Bhanudas Ambadas Kalhapure Tal.Rahuri Dist.Ahmednagar. 2. Haribhan Abaji Kudale Tal.Rahuri Dist.Ahmednagar. Respondents WITH WRIT PETITION NO.598 OF 1997 The State of Maharashtra through Sub-Divisional Engineer Godavari Right Side Canal Sub-Division, Rahata, Tq.Kopergaon,Dist.Ahmednagar. Petitioner Versus 1. Shri.Avij Dagu Wagh C/o Murlidhar Kashinath Desai R/o Rahata Tq.Kopergaon, Dist.Ahemadnagar. 2. The Ist Labour Court, Ahmednagar Respondents 16 WITH WRIT PETITION NO.651 OF 1997 1. The Administrator & Superintending Engineer, Command Area Development Authority, Fakirwada, Ahmednagar. 2. The Executive Engineer Mula Irrigation Division, Ahmednagar. Petitioners Versus Shri.Subhash Pandurang Gaikwad R/o Wakdi Tq.Newasa, Dist.Ahmednagar. Respondent Versus WRIT PETITION NO.2419 OF 1997 1. The State of Maharashtra 2. The Executive Engineer, Irrigation Division, Ahmednagar. Petitioners Versus Bajirao Tatyaba Ingle Age:Major Occu:Nil, R/o Devalgaon Siddhi, Tq.& Dist.Ahmednagar. Respondent WITH 17 WRIT PETITION NO.2422 OF 1997 1. The State of Maharashtra 2. The Executive Engineer, Ahmednagar,Irrigation Division, Aurangabad Road,Ahmednagar. 3. Maharashtra Krishna Valley Development Corporation Through its Executive Engineer. Petitioners Versus 1. Dagadu Dada Shriram, At post Ajnuj, Tal.Shrigonda, Dist.Ahmednagar. 2. The Learned Presiding Officer, IInd Labour Court, Ahmednagar. ... Respondents. WRIT PETITION NO.2420 OF 1997 1. The State of Maharashtra 2. The Executive Engineer E.G.S.PWD Division, Ahmednagar. Petitioners Versus Rajendra Murlidhar Sadane Age:28 Yrs. Occu: Nil, R/o Parner, Shivaji Road, Ahmednagar. Respondent WITH 18 WRIT PETITION NO.2757 OF 1997 1. The State of Maharashtra through: The Superintending Engineer Ahmednagar Irrigation Circle, Nagar-Aurangabad Road, Ahmednagar. 2. The Executive Engineer Ahmednagar Irrigation Division, Nagar-Aurangabad Road, Ahmednagar. 3. The Sub-Divisional Engineer Ahmednagar Irrigation Division, Sub Division Wadala Mahadeo Tq.Shrirampur, Ahmednagar. Petitioners Versus Dattatraya Narayanrao Garje R/o Newasa Ward No.6, Shrirampur, Ahmednagar. Respondent. WITH WRIT PETITION NO.3358 OF 1997 Shri.Bhausaheb Varbhau Mehetra Aged:34 Yrs.Occu:Service, At/PO:Rahata, Tq.Kopergaon Dist.Ahmednagar. Petitioner Versus The State of Maharashtra through Executive Engineer, 19 Godavari Right Bank Canal, Sub-Division Rahata, Tq.Kopargaon, Dist.Ahmednagar. Respondent WITH WRIT PETITION NO.3650 OF 1997 1. The Superintending Engineer Ahmednagar Irrigation Circle Fakirwada Nagar-Aurangabad Road, Ahmednagar. 2. The Executive Engineer Ahmednagar Irrigation Division Nagar Aurangabad Road, Ahmednagar. 3. The Sub.Divisional Engineer Ahmednagar Irrigation Division Sub-Division, Deolali Pravara, Tq.Rahuri, Dist.Ahmednagar. Petitioners Versus Abdul Baksubhai Shaikh R/o Musalwadi Irrigation Bunglow, Tq.Rahuri Dist.Ahmednagar Respondent ... Mr.U.S.Sawaji, advocate holding for Mr.T.K.Prabhakaran, advocate for the petitioners in respective matters. Mr.D.V.Tele, A.G.P. for the State. ... 20 CORAM : V.R.KINGAONKAR,J. Date : 16.07.2009. ORAL JUDGMENT 1. Mentioned by Mr.U.S.Sawaji, learned advocate holding for Mr.T.K.Prabhakaran, advocate for the petitioners and are taken up for hearing by consent. 2. This bunch of petitions is being decided together in as much as identical questions of facts and law are involved therein. 3. The petitioners impugn judgement and order rendered by the Labour Courts, in Reference Cases bearing IDA Nos.16/1991, 4/1990, 50/1990, 55/1990, 45/1990, 1/1994, 7/1995, Complaint (ULP) Nos. 95/1990, 96/1990, 93/1990, 105/1990, 94/1990, 100/1990, 102/1990, 101/1990, 103/1990, Reference IDA Nos.161/1992, 78/1991, 113/1993, Complaint (ULP) Nos.41/1989, Reference IDA No.66/1987, Complaint (ULP) NO.125/1988, Reference IDA Nos.59/1988, 72/1991, 8/1990, 21 14/1989, Complaint (ULP) No.3/1988, Reference IDA Nos.6/1990, 83/1991, 120/1993, 42/1988, 73/1991, Complaint (ULP) No.555/1995, Reference IDA No. 61/1989, Complaint (ULP) No.734/1995. The learned Judge of the Labour Court allowed the Reference applications and directed to provide work to the Respondents as per seniority and eligibility. 4. The respondents – were working as Mustering Assistants. They were engaged as such to work on Employment Guarantee Scheme (for short, “E.G.S.”). They asserted that they were illegally terminated by the petitioners (Employer) and as such, the employer had committed unfair labour practices. The contention of the Executive Engineer before the Industrial Court was that the Scheme was being operated under special circumstances. The respondents were not regularly appointed on any post as such. They were temporarily provided with the work under the E.G.S., which was operated on account of contingency. It was 22 submitted that no right accrued to the respondents to claim reinstatement or the work as such. The learned Judge of the Labour Court held that the respondents were entitled to seek reinstatement as Mustering Assistants. The incidental benefits of back wages and continuity in service also have been granted to the respondents. 5. Heard learned counsel for the parties. 6. Clinching question involved in these petitions is whether the respondents are entitled to claim reinstatement as Mustering Assistants. The absorption of the persons working as Mustering Assistants in the E.G.S. is a question which the Government has considered under Government Resolution dated 01-12-1995. There cannot be any two opinion about the legal status of respondents. The posts of Mustering Assistants were not filled up by regular process of recruitment. Nor such posts are created on Establishment of a particular Government 23 Department. The very purpose of E.G.S. is to provide work to the needy persons during period of scarcity, drought or like situation. The special scheme is floated in order to combat the situation arising due to non-availability of work which is the source of living for a class of manual workers. At a times, due to drought or famine like situation, the class of agriculturists and other members from rural area are likely to suffer and, therefore, the E.G.S. is operated to give financial support to such needy members of the said class. The temporary employees, who are assigned work under the E.G.S., cannot be regarded as “workman” within the meaning of section 2 (s) of the Industrial Disputes Act, 1947. The E.G.S. cannot be termed as an `industry’ as defined under section 2 (j) of the Industrial Disputes Act. Obviously, respondents are not entitled to claim any benefit of continuity of the service or reinstatement as such. 7. In a group of similar petitions (writ 24 petition Nos. 847/1996, 848/1996, 851/1996, etc.), a Single Bench of this Court held that the Mustering Assistants are not “workmen” and, therefore, cannot claim reinstatement or other benefits available to a workman under the provisions of the Industrial Disputes Act. Similar view is taken by another Single Bench vide judgment in Writ Petition No. 630/2008. There is no umbrella of protection available to the Mustering Assistants in view of the nature of the work. Consequently, the impugned judgements rendered by the Labour Courts are unsustainable. 8. In the result, all the above noted writ petitions are allowed and the impugned judgements and orders are quashed. It is, however, made clear that the respondents may be considered for absorption under the Scheme drawn as per Government Resolution dated 01-12-1995 if they are found eligible. They are granted liberty to make appropriate representations and if are found eligible, particularly, due to absorption of 25 their juniors, their cases may be considered by the competent authority. The Respondents, if they are found eligible, may be accommodated under the scheme drawn by the Government as per their seniority. Such appointments may be from the date of initial appointments. C.As. are also disposed of. (V.R.KINGAONKAR,J.) asp/office/wp1509.93