( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 5227 OF 2001 1. The State of Maharashtra 2. The Executive Engineer, Public Works Division, Ahmednagar. PETITIONERS VERSUS Yunus Fakirbhai Shaikh, R/o Newasa, Tal. Newasa, District Ahmednagar. RESPONDENTS WITH WRIT PETITION NO. 3150 OF 2003 Shri Yunus Fakirbhai Shaikh, R/o Newasa, Tal. Newasa, District Ahmednagar. PETITIONER VERSUS The Executive Engineer, Public Works Division, Ahmednagar, Dist. Ahmednagar. RESPONDENT ..... Mr. N.H. Borade, AGP for the petitioners in W.P. No. 5227/2001 and for the respondent in W.P. No. 3150/2003. Mr. V.N. Upadhye, advocate for the petitioner in W.P. No. 3150/2003 and for the respondent in W.P. No. 5227/2001. ..... ( 2 ) [CORAM : V.R. KINGAONKAR, J.] [DATE : 2nd March, 2010] ORAL JUDGEMENT : 1. Both the petitions are interlinked and are being disposed of together in as much as they arise out of same judgement rendered by the learned Labour Judge in Reference (IDA) No. 129/1992. 2. By the impugned judgement, the Reference was partly allowed, holding that the termination of services of the workman w.e.f. 15th August, 1991 was contrary to the provisions of the law and, therefore, he was entitled to reinstatement in the service alongwith benefit of continuity, but without backwages. The employer – State alongwith Executive Engineer of Public Works Division (P.W.D.) have filed writ petition No. 5227/2001, challenging the order of reinstatement of the workman. The workman – Yunus Fakirbhai Shaikh has filed writ petition No. 3150/2003, challenging denial of ( 3 ) backwages to him. For sake of convenience, the workman will be referred by his first name i.e. Yunus and the employer will be referred by the designation i.e. “Executive Engineer, P.W.D.”. 3. A Reference was made to the Labour Court, Ahmednagar, at instance of Yunus. His grievance was that he was employed as mazoor since 10th November, 1990 in the P.D.W. Division at Newasa. He was entitled to receive benefit of Kalelkar Settlement (Award). He had completed more than 240 days of work without any fault on his part. He was illegally terminated on 15th August, 1991 by the Deputy Engineer (Construction), Newasa without any legal authority. He was denied the daily wages. He was denied the work though it was so available with the P.W.D. He was not served with any notice of retrenchment under section 25-F of the Industrial Disputes Act, 1947 nor compensation was paid to him. Consequently, he sought declaration that the termination was illegal and, therefore, he was entitled to the reinstatement alongwith backwages. ( 4 ) 4. The employer – Executive Engineer (P.W.D.) refuted all the material averments made by Yunus. It was contended that Yunus was temporarily employed as a daily wager. It was contended that he had not completed 240 days of continuous service from the relevant year. It was further averred that there was no permanent post nor the work was available at P.W.D. Division, Newasa. The relationship between the parties as employer and employee was also categorically denied. The further contention of the Executive Engineer was that the Reference was barred by limitation. 5. On consideration of the evidence tendered by the parties and having regard to the record, the learned Judge of the Labour Court came to the conclusion that though work was available with the P.W.D. Division, yet, Yunus was denied the opportunity to work. It was held that though there was no appointment order as such, yet, Yunus was entitled to seek continuation of the employment. The Labour Court further held that Yunus could be accommodated in any of the Divisions of the P.W.D. in Ahmednagar district because there were five ( 5 ) (5) sub-divisions of the P.W.D. and work was available in one or another of such division though it may not be available in the sub-division at Newasa. Consequently, the Reference was partly allowed. However, the backwages were not directed to be paid because it was not proved that Yunus could not have been gainfully employed during the relevant period. 6. Heard learned A.G.P. for the petitioners of the first writ petition and learned counsel for the petitioner – Yunus in the second writ petition. 7. On going through the impugned judgement, it is amply clear that the learned Judge of the Labour Court utterly failed to consider the fact that Yunus was employed as a daily wager only when such work was available during the relevant period. The learned Judge of the Labour Court came across the material which indicated that Yunus worked only for 47 days in the year 1990 and 124 days in the year 1991 prior to his alleged dis-engagement from the casual employment. It is amply clear, therefore, that even if the holidays and weekly ( 6 ) offs are considered together, the total working days of Yunus could be only within range of 200 to 2005. In any case, there is no tangible material to infer that he had completed continuous 240 days working with the P.W.D. Division at Newasa. Admittedly, he was only a casual worker employed on daily wages as and when the work was available. He had not completed five (5) years’ period of working and, therefore, there was no question of granting benefit of Kalelkar Settlement (Award) to him. The learned Judge of the Labour Court utterly failed to see that the benefit of Kalelkar Settlement (Award) could be made available only to those workmen who had completed five (5) years’ continuous service. The learned Judge of the Labour Court erroneously construed the admissions of the official who was examined by the Executive Engineer, P.W.D. What was admitted by the concerned witness is that Kalelkar Settlement (Award) is applicable to the P.W.D. Such admission does not imply that benefit of such Award is available to Yunus though he did not qualify for such benefit. 8. The learned Judge of the Labour Court noticed ( 7 ) that work was available with another sub-division and, therefore, it could have been allotted to Yunus. As stated before, since Yunus had not completed 240 days’ continuous work and his name was not shown in seniority list of employees, there was no question of granting him continuity in the employment. The learned Judge of the Labour Court observed that as per entries in the extract of service tenure (Exh-U-8), Yunus had worked for 171 days. If this is so, at any rate, he could not be regarded as the workman to whom benefit under provisions of the Industrial Disputes Act were available. The entire approach of the learned Judge of the Labour Court is misconceived. 9. The Apex Court in “Secretary, State of Karnataka and others vs. Umadevi (3) and others” (2006) 4 S.C.C. 1, held that regularization of the employment cannot be granted unless the recruitment is in accordance with the relevant rules and norms. It is observed : ( 8 ) “.....The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as “litigious employment” in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really ( 9 ) not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.” 10. Considering the foregoing reasons, it will have to be said that the impugned judgement is unsustainable in the eye of law. Hence, writ petition No. 5227/2001 is allowed. The impugned judgement is set aside. The writ petition No. 3150/2003 is dismissed. Rule in writ petition No. 5227/2001 is made absolute whereas it is discharged in writ petition No. 3150/2003. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/wp5227-2001-3150-2003