(1) WP.128.1993 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 128 OF 1993 AND CIVIL APPLICATION NO. 8021 OF 2004 IN W.P. 128 OF 1993 Shabbir S/o Maulamiya Shaikh, aged – 35 years, Occu.: Nil, R/o Kallamb, Taluka Kallamb, District Osmanabad .. Petitioner VERSUS The Executive Engineer (O & M), Maharashtra State Electricity Board Division Office, Osmanabad .. Respondent Mr. S.S. Choudhari, Advocate for the Petitioner Mr. A.S. Shelke, Advocate for the respondent ... CORAM : V.R. KINGAONKAR, J. DATED : 2ND JULY, 2010 ORAL JUDGMENT:- 1] Challenge in this Petition is to judgment and order passed by learned Member of the Industrial Court, Solapur in Revision application (ULP) no. 30 of 1988 and Revision application (ULP) no. 6 of 1989. 2] The petitioner was working on daily wages on work provided by the respondent. He was appointed in the year about 1982. He worked with the respondent for about 3-1/2 years without any break in service. His contention before the Labour Court was that he (2) WP.128.1993 had worked for more than 240 days in each year. He alleged that by order dated 12.6.1985 the respondent removed him from the service wef. 26.2.1985. He contended that though he was removed on 26.2.1985 yet the removal order was served on him at belated stage. He received the order on 24.8.1985. According to him, he was not paid any retrenchment compensation as required under section 25-F of the Industrial Disputes Act, 1947 (For short, “I.D. Act”). He contended that his removal from service was an unfair labour practice under clause (f) of Item I of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (For short, “M.R.T.U. and P.U.L.P. Act”). He therefore filed complaint application (ULP) no. 111 of 1985 seeking reinstatement with back wages and continuity of service. The application was resisted by the respondent. The respondent denied all the material averments. It was case of the respondent that the daily rated employees were on nominal muster roll of various establishments and it was noticed that they were far in excess of the required number of such employees. It was contended that by circular dated 20.10.1982 the Board of the respondent directed removal of such N.M.R. Employees. It was further contended that the services of the petitioner had been terminated in accordance with the circular issued by the Board and that compliance of section 25-F and section 25-G was made while effecting the (3) WP.128.1993 termination. According to the respondent, the termination order had been sent to petitioner by registered post on 12.6.1985. The postal envelope was returned with an endorsement that the petitioner was not available. The retrenchment compensation was sent by Money Order. It was also contended that the petitioner was a casual worker and as such was not entitled to reinstatement. 3] The Labour Court held that the petitioner was removed from service without following due procedure as envisaged under section 25-F of the I.D. Act. The Labour Court came to the conclusion that the petitioner was entitled to reinstatement and continuity in service from the date of termination. The judgment and order of the Labour Court was challenged before the Industrial Court by way of revision. The Revision Petition preferred by the respondent was allowed whereas Revision Petition (ULP) no.6 of 1989 preferred by the petitioner was dismissed. 4] Heard learned counsel for the parties. 5] The petitioner was admittedly a daily rated worker. He was not on permanent pay roll of the respondent. It is an admitted fact that his name was included in nominal muster roll which was maintained for recording attendance of only casual workers. The (4) WP.128.1993 petitioner was not holding any post. The Labour Court held that the retrenchment was effected on 26.2.1985 without compliance of section 25-F of the I.D. Act and, therefore, it was unfair labour practice. The record shows that the Board of the respondent directed removal of casual workers because of non-availability of work. It was found that excessive daily rated workers were being employed though sufficient work was not available. The record shows that work could not be provided to the daily rated workers wef. 26.2.1985. Section 2(oo) of the I.D. Act, 1947 reads as follows:- “2(oo) "Retrenchment" means termination by the employer of service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but does not include - (a) voluntary retirement of the workman; or (b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as result of non-renewal of the contract of employment between the employer and the workman concerned on it’s expiry or of such contract being terminated under a stipulation in that behalf contained therein or (5) WP.128.1993 (c) termination of the service of a workman on the ground of continuous ill health." 6] There cannot be two opinion about the fact that termination of the petitioner was not by way of punishment inflicted on him. The correspondence shows that the retrenchment of the petitioner was made effective since 13.6.1985. It is therefore clear that the petitioner was not removed from employment on 26.2.1985. There was a time gap available between 26.2.1985 to 12.6.1985. In other words, notice of more than 3 months period was given to the petitioner. The notice issued to the petitioner indicated that the termination would be effective from 13.6.1985. Obviously, the inference drawn by the Labour Court that it was hasty action on the part of the respondent is rather mis-conceived and un-acceptable. The notice and money order were separately sent by Post. The petitioner was not found at the address and therefore, the envelope was returned to the respondent. The petitioner stated that though he was removed on 26.2.1985 yet the order dated 12.6.1985 was given to him on 24.8.1985. This factual aspect was found to be untrue when the revisional Court evaluated the material placed on record. 7] Reliance is placed on observations in “Raigad Zilla Parishad Vs. Gajanan H. Patil and (6) WP.128.1993 others 2009(1) Mh.L.J. 792” and Mohan Lal V. The Management of M/s. Bharat Electronics Ltd. AIR 1981 S.C. 1253. In case of "Raigad Zilla Parishad", the removal was of a Sanitary Inspector attached to the Zilla Parishad. The Sanitary Inspector was terminated without following due procedure. What the learned Hon’ble Judge of this Court found is that the work of the Sanitary Inspector is of perennial nature and therefore the question of his services being terminated under section 2(oo) (bb) of the I.D. Act could not arise. In the present case however, the work of the petitioner could not be regarded as of permanent nature. He was being employed as the daily wager as and when the work was available with the respondent. In case of “Mohanlal” (supra), the case was in respect of a probationer. It has been held that retrenchment without compliance of section 25-F is ab-initio void. The fact situation in the given case stands of different footing. In “Parry’s (Cal.) Employees Union and another Vs. IIIrd Industrial Tribunal, West Bengal and others 2001(89) FLR 192”, a Single Bench of Calcutta High Court held that sending of the account payee cheque by registered post is sufficient compliance of provisions of section 25-F. It has been observed that the fact that actual amount has been received subsequently would not give rise to inference that there was no compliance of section 25-F. Similarly, in “Janata Mazdoor Union V. Tas Engineering Pvt. Ltd. and others 2002(95) FLR 739”, a (7) WP.128.1993 Single Bench of this Court held that where payment was sent by pay order, it was sufficient compliance of section 25-F. 8] The Respondent has placed on record a copy of letter dated 12.6.1985 which purports to show that it was not possible to provide work to the petitioner since 26.2.1985 and therefore his services were terminated wef. 30.6.1985. His legal dues were worked out and were separately sent by the Money Order. Considering the peculiar fact situation, it will have to be stated that the impugned judgment does not suffer from any perversity or arbitrariness. 9] In the result, the Petition is dismissed. No costs. Rule stands discharged. Civil Application no. 8021 of 2004 also stands dismissed. Sd/- [V.R. KINGAONKAR, J.] arp