1 IN HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 1568 OF 2004 The Chief Executive Officer Zilla Parishad, Beed ...Petitioner Versus 1. Azeem Ahmed Khan Nazir Mohammadkhan, Watchman C/o. Trade Union Center, Bashirganj, Beed, District Beed 2. The State of Maharashtra ...Respondents ..... None for the petitioner Mr. Parag Shahane h/f Pradeep Shahane, advocate for respondent No. 1 Mr. K.J. Ghute Patil, Advocate for respondent No.2 ..... CORAM: S. S. SHINDE, J. DATED: 13TH AUGUST, 2009 JUDGMENT :- 1 This Court by order dated 7.8.2009 had fixed this matter for final hearing. 2 This petition takes exception to the judgment and award passed by the Judge, Labour Court in Reference IDA No. 104 of 1992 dated 6.4.2002. 3 It is the case of the respondent No.1 that he was appointed on daily wages as watchman and he continuously worked for 240 days 2 and his services were terminated on 1.9.1991 without following due procedure of law, as contemplated under the provisions of Industrial Dispute Act, 1947. 4 Respondent No.1 herein filed dispute before the Deputy Commissioner of Labour Court, Aurangabad. The said dispute was referred by the said authority under clause C of sub section 10 r.w. Section 12 of the Industrial Dispute Act 1947 for its adjudication. The respondent No.1 herein filed a statement of claim before the Labour Court. The said reference was registered as Reference IDA No. 104 of 1992. In the said reference, respondents herein claimed that he was engaged in the services of the petitioner as a Watchman from 15.10.1990 on daily wages and services have been terminated from 1.9.1991. It was his further claim that he was receiving 12 Rs. per day towards wages. It was further case of the respondent No.1 that prior to termination of his services, one months notice was not given to him or in lieu of notice nor he was paid one months salary, hence, the termination is in violation of the provisions of Industrial Dispute Act, 1947. 5 The present petitioner resisted the claim of the respondent herein by filing reply. It was the case of the present petitioner that the 3 respondent herein was engaged as labourer on daily wages from 1.1.1991 to 31.8.1991 and after completion of the work in the Sub Division i.e. on 31.8.1991 the work was not provided to the respondent. It was further contended that as per the Government Resolution, the Industrial Dispute Act is not applicable to the labourers engaged under the Employment Guarantee Scheme, therefore, there was no question of any notice or wages of one months at the time of termination. 6 The Labour Court had framed necessary issues for its determination and held that the reference is tenable. The alleged termination is retrenchment. The termination is in violation of the provisions of Industrial Dispute Act and the respondent is entitled for the relief as prayed for. 7 The present petition is filed challenging the final judgment and award dated 6.4.2002 passed by the Labour Court, Aurangabad. Today, this matter is taken up for final hearing. None appears for the petitioner. With the assistance of the learned counsel appearing for the contesting respondent, I have perused the pleadings in the writ petition, annexures thereto and the judgment and award passed by the Labour Court and I have also heard learned counsel appearing for the respondent No.1 at great length. The petition is filed on the ground that the respondent No.1 has never completed 240 days in a calender 4 year without any break. It is further pleaded in the petition that though respondent No.1 was appointed under EGS scheme, sponsored by the Central Government and is being implemented through the Zilla Parishads and respondent No.1 is not an employee of the Zilla Parishad. It is further pleaded that the burden to prove the case of respondent No.1 upon him and therefore, the adverse inference drawn by the Labour Court is in contravention of certain documents was erroneous. It is further pleaded that as per the Government Resolution dated 2.9.1987 the Industrial Dispute Act is not made applicable to the Employment Guarantee Scheme. There are other grounds taken in the writ petition, however, it is not necessary to deal with the same. 8 Learned counsel appearing for the respondent supported the judgment and award passed by the Labour Court. He submitted that respondent No.1 was in continuous service. He worked for more than 240 days and he was entitled for the relief under Section 25-F of the Industrial Dispute Act 1947. It is further submitted that if no documents were supplied by the petitioners, therefore, Labour Court has rightly drawn adverse inference. It is further submitted that there is no express denial by the petitioner herein before the Labour Court that respondent No.1 has not completed 240 days continuous service. The learned counsel further placed reliance on the chief examination of respondent No.1 dated 4.4.2001 before the Labour Court and submitted that some junior persons have been appointed, however, 5 the petitioner is denied the reinstatement and continuity in service. He invited my attention to the other part of the chief examination. Learned counsel further submitted that authorities have issued certificate stating therein that present respondent No.1 was working as watchman for the period stated in that certificate. Therefore, learned counsel would submit that no interference is called by this Court in writ jurisdiction, in the judgment and award dated 6.4.2002 passed by the Labour Court, Aurangabad. 9 I have heard learned counsel appearing for the contesting respondent. I have perused the pleading in the writ petition and impugned judgment and award passed by the Labour Court. On careful perusal of the judgment and award passed by the Labour Court, it is not clear that against which post the present respondent was appointed. It is also not found in the said judgment that whether the post on which the respondent No.1 was appointed was available and whether the post of watchman was available with the petitioner Zilla Parishad and it was sanctioned by the Government. On plain reading of the pleading in the petition and contentions of the petitioner herein, before the Labour Court, it appears that the respondent herein was given work on daily wages and under EGS scheme which was sponsored by the Central Government and implemented by the Zilla Parishad, Beed. 6 On careful perusal of the reasoning given by the Labour Court, it appears that the court has rejected the contention of the petitioner that the respondent No.1 was working under EGS scheme. In fact the said findings are not certainly recorded on the basis of certain documents. Even if, it is assumed that the present respondent No.1 was working as watchman on daily wages, it is not clear from the judgment of the Labour Court that whether such post was available with the Zilla Parishad, Beed and the said post was sanctioned. 10 While applying provisions of Industrial Dispute Act, there is no discussion by the Judge, Labour Court that department, in which the respondent No.1 has worked, can be termed as industry. The Labour court should have undertaken exercise to see that whether the activities carried out by the petitioner in which the present respondent was working can be termed as functioning other than sovereign functions. On careful perusal of the pleading even it is not found that there is assertion by the present respondent No.1 that the work or duty which he was discharging is not sovereign function and therefore, the provisions of Industrial Dispute Act would apply. If the findings of the Labour Court are taken as it is that the respondent No.1 was not appointed under the EGS scheme, but he was given work on daily wages, in that case also, it cannot be said that the Zilla Parishad which is local authority and State within the meaning 7 of Article 12 was discharging the functioning other than sovereign functions. In absence of any availability of post i.e. sanctioned post in absence of any advertisement, the respondent No.1 was simply given work on daily wages and to that effect there was no any appointment order. It is not necessary to refer number of judgments of the Hon’ble Apex Court which unequivocally taken a view that in absence of any post or sanctioned post no appointment can be made. There is proper procedure as prescribed under relevant Rules about appointment of the person. Merely because somebody is appointed by giving back door entry would not entitle that person to claim continuity or regularization in the service. The person who is appointed on daily wages has no right to claim permanency. On careful perusal of the judgment and award passed by the Labour Court, I do not find that the Labour Court has arrived at definite conclusion after due discussion that the Industrial Dispute Act is applicable to the Zilla Parishad, Beed. In absence of said exercise it was unwarranted on the part of the Labour Court to hold that the provisions of Industrial Dispute Act are applicable in the instant case. 11 If person is appointed in a particular scheme sponsored by the Government and if the petitioner is merely implementing agency, there was no question of any continuity or permanency in the service and the appointment can be only up to completion of that scheme. There is separate Act called Employment Guarantee Act 1978. Therefore, 8 there was no question of applying the provisions of Industrial Dispute Act 1947. 12 At this juncture, it would be relevant to refer para 36 in the case of the Secretary, State of Karnataka and others Vs. Umadevi and others reported in 2006 (4) SCALE 197, which reads as under:- “While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain – not at arms length – since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on the ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the courts were to avoid a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment 9 temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interested in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of this Constitution of India.” 13 It is not in dispute that respondent No.1 was appointed on daily wages. It is also not in dispute that he has not worked for more than one year. It is also not in dispute that the learned Judge of the Labour Court has expressed anything in its judgment about availability of the 10 post and the sanctioned post of watchman. In absence of all these, merely because the respondent No.1 has worked for more than 240 days that too on daily wages, the Labour Court has come to the conclusion that the provisions of Section 25 F of the Industrial Dispute Act are applicable. As I have already discussed herein above, the Hon’ble Supreme Court in the case of State of Gujarat and others Vs. Pratamsingh Marsinh Parmar, reported in 2001 1 LCR 968 has held that the State department carrying out sovereign functions cannot be termed as industry. In the instant case, it was ascertained by the petitioner that the respondent No.1 was appointed under the Employment Guarantee Scheme. 14 In my considered view, the finding recorded by the Labour Court that the provisions of Section 25-F of the Industrial Dispute Act 1947 goes to the roots of the matter. There is no discussion by the Labour Court that there is assertion by the respondent No.1 that the department in which he was working is industry because of the certain activities carried out by the department which can be other than discharging sovereign function. Therefore, Industrial Dispute Act is not applicable in the instant case. In absence of such assertion by the respondent No.1 before the Labour Court, it was wholly unwarranted to come to the conclusion that the provisions of Industrial Dispute Act are applicable. Apart from this, if the judgment and order passed by the Labour Court, in the instant case, is allowed to operate, it would be 11 opening flood gate to undeserving and unqualified persons appointed on daily wages for daily work. The judgment and award passed by the Labour Court is in total disregard to the various judgment of the Apex Court as well as this Hon’ble Court and for the reasons already mentioned herein above, the judgment and award passed by the Labour Court deserves to be set aside and the same is set aside. 15 The writ petition is allowed in terms of prayer clause “B”. Rule made absolute in terms of prayer clause B, with no order as to costs. *****