1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.4702 OF 2005. with CIVIL APPLICATION NO.7899 OF 2007 with WRIT PETITION Nos.4700/05, 4701/05, 4703/05 AND 4705/2005. The Executive Engineer, Nashik Irrigation Division, Traymbak Road, Nashik. .... PETITIONER. [Original First party] VERSUS Shri Gulab Begubhai Shaikh, age major, r/o Rampurwadi, Post Ekrukha, Tal. Kopargaon, Dist. Ahmednagar. .... RESPONDENT. [Original Second party] ... Smt. V.A. Shinde, A.G.P. for petitioner. Shri P.B. Sirsath, Advocate for Respondent. ... with WRIT PETITION NO.4700 OF 2005. with CIVIL APPLICATION NO.7897 OF 2007 The Executive Engineer, Nashik Irrigation Division, Traymbak Road, Nashik. .... PETITIONER. [Original First party] 2 VERSUS Shri Shivaji Bacha Kudale, age major, r/o Rampurwadi, Post Ekrukha, Tal. Kopargaon, Dist. Ahmednagar. .... RESPONDENT. [Original Second party] ... Smt. V.A. Shinde, A.G.P. for petitioner. Shri P.B. Sirsath, Advocate for Respondent. ... with WRIT PETITION NO.4701 OF 2005. with CIVIL APPLICATION NO.7895 OF 2007 The Executive Engineer, Nashik Irrigation Division, Traymbak Road, Nashik. .... PETITIONER. [Original First party] VERSUS Shri Prabhakar Tukaram Jadhav, age major, at & Post: Jalgaon, Tal. Shrirampur, Dist. Ahmednagar. .... RESPONDENT. [Original Second party] ... Smt. V.A. Shinde, A.G.P. for petitioner. Shri P.B. Sirsath, Advocate for Respondent. ... with WRIT PETITION NO.4703 OF 2005. with CIVIL APPLICATION NO.7896 OF 2007 The Executive Engineer, 3 Nashik Irrigation Division, Traymbak Road, Nashik. .... PETITIONER. [Original First party] VERSUS Shri Balu Nana Thorat, age major, at & Post Gondegaon, Tal. Shrirampur, Dist. Ahmednagar. .... RESPONDENT. [Original Second party] ... Smt. V.A. Shinde, A.G.P. for petitioner. Shri P.B. Sirsath, Advocate for Respondent. ... with WRIT PETITION NO.4705 OF 2005. with CIVIL APPLICATION NO.7898 OF 2007 The Executive Engineer, Nashik Irrigation Division, Traymbak Road, Nashik. .... PETITIONER. [Original First party] VERSUS Shri Macchindra Sopan Mhais, age major, at & Post Gondegaon, Tal. Shrirampur, Dist. Ahmednagar. .... RESPONDENT. [Original Second party] ... Smt. V.A. Shinde, A.G.P. for petitioner. Shri P.B. Sirsath, Advocate for Respondent. ... 4 CORAM:S.S. SHINDE,J. RESERVED ON: 29.09.2009. PRONOUNCED ON: 06.10.2009. JUDGMENT: 1. These petitions are filed challenging the common judgment and award dated 13/14th July, 2004 passed by the Labour Court, Ahmednagar in Reference (IDA) Nos.296, 297, 298, 299, 374 AND 375 OF 1994. 2. The background facts of the case are as under: The Labour Court, Ahmednagar has decided the group of six references by taking into consideration the statements of claim filed by the parties whereby it is the contention of the respondents herein that right from 1st April, 1985 till 20th September, 1988 the work as Mazdoor was given to the respondents in all writ petitions. Their services came to be terminated orally on 20th September, 1988. It is the case of the respondents, who are original claimants, that 5 their services for the period from 1.4.1985 till 20th September, 1988 are clean and continuous in nature and the provisions of Kalelkar Award do apply to their cases and they are entitled for the benefits and wages accordingly. It is further case of the respondents that they were paid wages as daily wage earner but they were not paid for weekly offs and other holidays. Some juniors have been retained after their services were terminated. It is further case of the respondents that they have continuously worked for 240 days with the petitioner herein and instead of making them permanent, some juniors by name Vasant Jaybhai, Kadam, Sayyed, Gadabe and Gaikwad were retained in service by the petitioner employer. The services of respondents herein were terminated without compliance of provisions of Industrial Disputes Act, 1947 as well as without notice, not paying notice pay in lieu of notice and no retrenchment compensation was paid, no charge sheets were issued to them and thereby the services of respondents were illegally terminated. 6 The case of all the respondents in all writ petitions is similar one except the date of their appointments and alleged termination. It is further case of the respondents that their individual references may be allowed and they be reinstated with continuity of service with full back wages from their last date of termination. 3. The petitioner herein filed written statement below Exh.C-7 on 23rd March, 1996 and it was contended by the petitioner herein that the forum of Labour Court is not available to the respondents and they have to approach to the Administrative Tribunal and Labour Curt has no jurisdiction to entertain the references. It is further stated in the written statement that the respondents herein who are the original complainants, kept mum for years together and as per the provisions of the Industrial Disputes Act, 1947 the dispute is not in existence. Hence, references are barred by limitation. 4. It is further stated in the written statement that for urgent but temporary work so 7 available with the Godavari Right Bank Canal Sub Division, Rahata only up to 19.10.1988 and casual labour work on daily wages were provided to the second party along with others. The respondents have worked as casual labourer on daily wages and they were paid as per the rate prevailing at the relevant time, as and when work was available with the first party. It is further stated that after 20.12.1988 no work was available with petitioner and therefore, no work was provided to the respondents as well as other labourers. It is further denied that the juniors have been retained after termination of the services of the respondents. It is further stated that none of the respondents have completed more than 240 days service in preceding 12 months. Therefore, the provisions of Industrial Disputes Act, 1947 are not applicable. It is further stated that the petitioner is not an industry neither there was relationship of employer and employee between the first party and second party and therefore, the Labour Court had no jurisdiction to try and decide the references. 8 5. It is further stated that one Mr. Vasant Jaybhai and others are employed by the petitioner as per the interim orders passed by the High Court in Writ Petition No.1510 of 1993 and their cases are sub judice. It is further stated that the petitioner had never appointed the respondents as workmen and there is no relationship as employer and employee between the petitioner and respondents. 6. The Presiding Officer, Labour Court framed necessary issues for its consideration. The first issue was in respect of completion of 240 days service by the respondents and the Labour Court, on appreciation of the rival contentions and evidence, held that the respondents failed to prove that they have continuously worked for 240 days within the meaning of Section 25B of the Industrial Disputes Act, 1947. So far as issue No.2 i.e. whether the respondents prove that the oral termination of their services was illegal, in breach of Section 25-F, 25-G, 25-H of the Industrial Disputes Act, 1947 r/w Rule 80/81 of Industrial Disputes (Bombay) Rules, 1957. The 9 Labour Court has answered the said issue in affirmative. The third issue framed by the Labour Court was about the entitlement of respondents for the relief of reinstatement, continuity of service and full back wages and the same has been answered by the Labour Court directing the petitioner to grant re-employment with continuity of service but without back wages. Hence, these writ petitions are filed by the petitioner challenging the common judgment and award passed by the Labour Court in references filed by the respondents. 7. The learned A.G.P. appearing for the petitioner/s submitted that the Labour Court ought to have rejected the references merely on the ground that those are admittedly filed about after five years without offering any satisfactory explanation for the delayed filing. The learned A.G.P. submitted that in Reference No.298/94 the demand notice was issued after lapse of five years. In reference No.297/94 and 299/94 the respondents have raised dispute through their demand notice on 30.10.1993. In 10 Reference Nos.374/94 and 375/94 respondents have raised the dispute through their demand notices on 17.3.1994 against termination of 1.11.1988. The A.G.P. vehemently argued that the references should have been rejected merely on the ground of delay. In support of her contention, she placed reliance on the reported judgment of the Apex Court in the case of The Nedungadi Bank Ltd. v. K.P. Madhavankutty and others [2000 AIR SCW 397] and submitted that the law does not prescribe any limit for the appropriate Government to exercise its powers under Section 10 of the Act, the said power cannot be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner. The learned A.G.P. wold submit that since all the references were time barred, the same being filed after lapse of five years, the same should have been rejected on that ground alone. The A.G.P. relied on schedule table of the Limitation Act and submitted as per Item 7/18/55, the reference should have been filed within reasonable period of three years. In support of her contention, the A.G.P. relied 11 on various judgments. The A.G.P. further submitted that the Labour Curt itself had come to the conclusion that respondents have not completed 240 days service and, therefore, the provisions of Section 25-F of the Industrial Disputes Act, 1947 cannot be made applicable in the cases of the respondents. In support of her contention, the A.G.P. relied on some reported judgments of this Court as well as Supreme Court. 8. The learned A.G.P. further submitted that to make provisions of Kalelkar Award applicable, there should be appointment letter. However, in case of respondents, there was no appointment letter issued. They were offered work for fixed period as casual labourers when work was available. It is further submitted that the Mazdoors are not regarded as regular workmen and their status is not higher than that of temporary workmen or probationers. It is further submitted that so far as argument of the respondents that the principle of `last come first go’ has not 12 been followed by the petitioner and further contention that the juniors to them are appointed and continued in service is concerned, the A.G.P. placed reliance on the cross-examination of the respondents and submitted that the respondents themselves have admitted in their cross- examination that only those workmen who have completed more than 240 days and worked for five years continuously, have been taken on C.R.T. And no juniors have been retained nor any new recruitment has taken place at all. In support of her contention, the A.G.P. relied on certain judgments, which are part of written submissions placed on record. It is further submitted that the respondents were appointed on daily wages and they have not completed continuous service of 240 days and, therefore, termination of services of respondents does not fall within the purview of “retrenchment” as defined in Section 2(OO) of the Industrial Disputes Act and hence, provisions of Section 25F and 25G of the said Act are not applicable. Therefore, the learned A.G.P. prayed that the petitions may be allowed. 13 9. The learned Counsel for respondents submitted that the Labour took into consideration the provisions of Sections 25F, 25G, 25H, 25(OO) (BB) and 25B of the Industrial Disputes Act, 1947 and has come to the definite conclusion that the respondents are entitled for re-employment with continuity in service. The learned Counsel further submitted that though respondents have not completed 240 days continuous service, even then they are entitled under Section 25G and 25H of the Industrial Disputes Act, 1947 for re- employment. According to the learned Counsel the respondents have worked for about five years and they have rendered their services continuously. Therefore, there was no any valid reason for the Labour Court to come to the conclusion that the respondents have not worked continuously for 240 days in the preceding year prior to their termination. It is further submitted that the provisions of Sections 25F, 25G and 25H do not contemplate length of service and, therefore, the Labour Court has rightly invoked the said provisions and granted relief in favour of respondents. According to the learned Counsel, 14 even in case of daily wagers, it is necessary to maintain seniority list of the workmen and the principle of `last come, first go’ has to be followed and while giving re-appointment, the seniority rule should be followed. In support of his contention, the learned Counsel placed reliance on the reported judgment of the Supreme Court in the case of Samishta Dube v. City Board, Etawah and another [AIR 1999 SC 1056]. The learned Counsel invited my attention to the findings recorded by the Labour Court and submitted that when the witness who deposed on behalf of the petitioner himself stated before the Court below that the juniors to the respondents have been retained in service, the petitioner should have followed the provisions of Sections 25G and 25H. Therefore, according to the learned Counsel when the juniors are retained in service and the respondents are not offered re-employment, there is breach of seniority rule and, therefore,the Labour Court has rightly invoked the provisions of Section 25G and 25H and, therefore, no interference is warranted in writ jurisdiction. The learned Counsel furthher 15 invited my attention to the provisions of section 25G and submitted that the provisions of said section are not followed by the petitioner and irrespective of the fact that whether the workman has completed 240 days service or not, category- wise seniority list should have been produced on record and since it is not produced on record, the Labour Court has drawn adverse inference. The learned Counsel further submitted that the very reason that the work is not available and, therefore, services of the respondents cannot be continued is falsified by the evidence led on behalf of the respondents. Therefore, according to the learned Counsel, when the breaks are given in service on account of non availability of work and if it is proved that work was available then in that case, the Labour Court should have held that the respondents are in continuous service as contemplated under Section 25B of the said Act. The learned Counsel would submit that the provisions of Sections 25F, 25G and 25H of the Industrial Disputes Act, 1947 are applicable in the instant case. Therefore, the Labour Court has rightly passed the award in favour of the 16 respondents. The learned Counsel, in support of his contentions, placed reliance on the reported judgment in the case of Gopal Krishnaji Ketkar v. Mohammed Haji Latif and others [AIR 1968 SC 1413] to contend that a party in possession of the best evidence which would throw light on the issue in controversy withholding it, court ought to draw an adverse inference against the said party notwithstanding that onus of proof does not lie on him. The learned Counsel further placed reliance on the reported judgment of this Court in the case of Kalawati Pandurang Fulzele v. Divisional Controller [2007(5) Bom.C.R. 177] wherein this Court has already interpreted provisions of section 25(oo)(bb) and Section 25-G of the Industrial Disputes Act, 1947 and also interpreted Rule 81 of the Maharashtra Recognition of of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short, hereinafter referred to as the MRTU & PULP Act, 1971) Schedule IV, Item (1) and relying on para 17 of the said judgment, the learned Counsel 17 would submit that this Court has properly interpreted the provisions of Section 25-B and 25-G of the Industrial Disputes Act, 1947. The learned Counsel for respondents submitted that this Court may not interfere in extraordinary jurisdiction under Article 227 of the Constitution of India. 10. At this juncture, it would be relevant to refer the judgment and common award passed by the Labour Court, Ahmednagar. In para 13 of the award, the Labour Court framed as many as four issues for its determination / consideration. So far Issue No.1 is concerned, the Labour Court held that the respondents herein have not completed one year continuous service in the preceding year of termination. For the purpose of Section 25-F of the Industrial Disputes Act, 1947, reliance can be placed on the provisions of Section 25-B under which the continuous service is defined for employees like respondents, as continuous uninterrupted service of 240 days in the preceding year prior to oral termination. The Labour Court held that none of the respondents 18 have completed 240 days uninterrupted and continuous service in a calender year preceding to their termination. Therefore, there is no question of adjudication on the said issue, since there is no any writ petition filed by the respondents aggrieved by the said finding. Therefore, it has to be presumed that none of the respondents have completed uninterrupted and continuous service in the previous year to their termination. The Labour Court framed Issue No.2 – Do each of the Second Party Workman individually prove, that his impugned termination as mentioned in Ann-`A’ so appended with this award, is illegal, through oral termination of their services in breach of Section 25-F, 25-G, 25-H of the I.D. Act, 1947 r/w rule 80/81 of I.D. (Bombay) Rules, 1957? 11. Before examining the findings given by the Labour Court and the aforesaid issue, it would be relevant to refer to some of the reported judgments of the Honourable Apex Court. 19 In the case of Surendranagar District Panchayat V. Dahyabhai Amarsinh [AIR 2006 SC 110], the Supreme Court had an occasion to interpret the provisions of Section 25F and in paragraph 8, held that as per Section 25F, no workman who is in continuous service for not less than one year under an employer shall be retrenched by that employer unless conditions laid therein are fulfilled. The retrenchment is defined in Clause (oo) of Section 2 of the Industrial Disputes Act 14 of 1947. Under the definition termination of the service of a workman by the employer by any reason whatsoever, otherwise than, as a punishment, by way of disciplinary action, would constitute retrenchment except in cases accepted in the Section itself. In paragraph 9 of the said judgment, the Supreme Court held that to attract the provisions of Section 25F, one of the conditions required is that the workman is employed in any industry for a continuous period which would not be not less than one year. Section 25B of the Act defines continuous service 20 for the purposes of Chapter V-A “Lay-off and Retrenchment”. The purport of this Section is that if a workman has put in an uninterrupted service of the establishment, including the service which may be interrupted on account of sickness, authorized leave, an accident, a strike which is not illegal, a lock-out or cessation of work, that is not due to any fault on the part of the workman, shall be said to be a continuous service, for that period and in paragraph 14 the Supreme Court relying upon earlier reported judgment of the Apex Court in case of Standard Motor Products of India Ltd. v. Parthasarthy, (1995 4 SCC 78), observed that in that judgment, this Court has said that the actual working for less than 240 days would include Sundays and other paid holidays if the workman is in employment of the employer although for less than a period of 12 months. In paragraph 19 of the said judgment, the Apex Court held that workman therein has not produced any evidence to prove the fact that he has worked for 240 days. No proof of receipt of salary or wages or any record or order in that regard was produced; no co- 21 worker was examined; muster roll produced by the employer has not been contradicted. Therefore, the Court held that the workman in that case was not entitled for the protection or compliance of Section 25F of the I.D. Act. As regards non compliance of Sections 25G and 25H, the Apex Court observed in paragraph 19 that no seniority list was maintained by the department of daily wagers. In the absence of regular employment of the workman, the appellant was not expected to maintain seniority list of the employees engaged on daily wages and in the absence of any proof by the the respondent regarding existence of the seniority list and his so called seniority no relief could be given to him for non-compliance of provisions of the Act. The Courts could have drawn adverse inference against the appellant only when seniority list was proved to be in existence and then not produced before the court. In order to entitle the Court to draw inference unfavourable to the party, the Court must be satisfied that evidence is in existence and could have been proved. 22 12. In case of Bhogpur Co-op. Sugar Mills Ltd. v. Harmesh Kumar [AIR 2007 SC 288], in paragraph 5 , the Supreme Court observed that the fact that the appellant operates a seasonal factory and the respondent had not been in continuous service for 240 days during twelve months preceding his termination is not in dispute. In paragraph 10 the Apex Court has examined the scope of Section 2(oo) (bb) of the said Act and in the facts of that case, the Court held that in case of seasonal workman not completing 240 days of service, there is termination of services not retrenchment in view of Section 2(oo)(bb). To such cases provisions of Sections 25-G, 25-H do not apply. The Court further observed in paragraph 9 of the judgment, thus: “We are not oblivious of the distinction in regard to the legality of the order of termination in a case where Section 25-F of the Act applies on the one hand, and a situation where Section 25-G thereof applies on the other. Whereas in a case where Section 25-F of the Act applies the workman is bound to prove that he had been in continuous service of 240 days during twelve months preceding the order of termination, in a case where he invokes the provisions of Sections 25-G and 25-H thereof he may not have to establish the said fact.” 23 13. In the case of Samishta Dube (supra), the Apex Court held that irrespective of length of service, Section 6-P of the U.P. Industrial Disputes Act, 1947 does not require any particular period of continuous service as required by Section 6-N of the said Act. In case of Central nk of India v. S. Satyam and others [(1996) SCC 419], the Honourable Supreme Court held thus: “The plain language of Section 25-H speaks only of re-employment of 'retrenched workmen'. The ordinary meaning of the expression 'retrenched workmen must relate to the wide meaning of 'retrenchment' given in Section 2(oo). Section 25-F also uses the word 'retrenchment' but qualifies it by use of the further words 'workman' who has been in continuous service for not less than one year'. Thus, Section 25-F does not restrict the meaning of retrenchment but qualifies the category of retrenched workmen covered therein by use of the further words workman. Who has been in continuous service for not less than one year. It is clear that Section 25-F applies to the retread a workman who has been in continuous service for not less: one year and not to any workman who has bean in continuous service for less than one year; and it does not restrict or curtail the meaning of retrenchment merely because the provision therein is made only for the retrenchment of a workman who has been in continuous service for not less the one year. Chapter V-A deals with all retrenchments while Section 25-F is confined 24 only to the mode of retrenchment of workmen in continuous service for not less than one year. Section 25-G prescribes the principle for retrenchment and applies ordinarily the principle of 'last come first so' which is not confined only to workmen who have been in continuous service for not less than one year, covered by Section 25-F. The next provision is Section 25-H