1 wp5291-11.doc ttm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5291 OF 2011 Shri Popat Nivrutti Chormale .. Petitioner Vs. The Deputy Director, Health Services, Government of Maharashtra .. Respondent Mr.M.S.Karnik for the petitioner None for the respondent CORAM: K.K. TATED, J. DATE: 9th AUGUST, 2011 PC: 1. Heard the learned counsel for the petitioner. 2. By this petition under Articles 226 and 227 of the Constitution of India, petitioner original complainant challenges the orders dated 21.7.2010 passed by learned Member, Industrial Court, Pune in Revision Application (ULP) No.40 of 2009 and the judgment dated 28.8.2008 passed by learned Judge, 2nd Labour Court, Pune in complaint (ULP) No.152 of 2002 dismissing the same. 2 wp5291-11.doc 3. Initially the petitioner was appointed on 22.7.1997 as a Peon with respondent for a period of three months. Second appointment of the petitioner was on 28.10.1997 for a period of three months. The third appointment of the petitioner was on 4.4.98 as a Safaigar for a period of three months and finally, after three years by order dt.9.2.2001, the petitioner was appointed as a Safaigar for the period of twelve months. After completion of twelve months, respondent discontinued the petitioner’s services. 4. Being aggrieved by the said act of respondent, petitioner preferred complaint under section 28 r/w item 1 (a)(b)(d) and (f) of Schedule IV of the MRTU and PULP Act, 1971, alleging that the respondent is engaged in unfair labour practices and with prayer of reinstatement and full back wages. The said complaint was dismissed by the learned Member of Labour Court and the Revision against the said order was also dismissed by the Industrial Court. Hence, the present petition. 5. The learned counsel for the petitioner submits that both the courts below erred in coming to the conclusion that the petitioner was appointed temporarily for a fixed period. He submits that petitioner was appointed as Safaigar and he 3 wp5291-11.doc worked for more than 240 days preceding the year filing the complaint. He submits that once the employee has worked for more than 240 days then it is the duty of the employer to follow the procedure as prescribed under section 25-F of the Industrial Disputes Act before terminating his services. He submits that these facts are not considered by both the courts below. He further submits that the witnesses examined by the respondent also stated in cross examination that the work of Safaidar is of permanent nature. He submits that the petitioner was appointed on a post which was available with the respondent and therefore, without following due process of law respondent should not have terminated petitioner’s services. On the basis of these submissions,the learned counsel for the petitioner submits that the impugned orders passed by Labour Court as well as Industrial Court are liable to be set aside and the complaint filed by petitioner be allowed. 6. Admittedly, in the present case, petitioner was appointed for fixed period initially for three months and thereafter by order dt.9.2.2001, he was appointed as Safaidar for a period of twelve months. After completion of twelve months, respondent has not continued the petitioner in service. Once the worker is 4 wp5291-11.doc appointed for a fixed period and if that period is over, then there is no question of following due process of law as prescribed under section 25-F of the Industrial Disputes Act. 7. In support of this contention, this court can safely rely on the judgment in the matter of Prakash Pandurang Sawant Vs. Punjab and Sind Bank and Others reported in 2007(3) Mah.L.J. 882 of Bombay High court wherein the court held that the workmen engaged from time to time for a fixed period and even if he worked for more than 240 days in the immediately preceding calendar year, in that case also, section 25-F of the Industrial Disputes Act, 1947 does not attract. Head note (a) of the said judgment reads thus: (a) Industrial Disputes Act (14 of 1947), SS.2(oo)(bb) and 25-F – Workmen engaged from time to time for fixed periods as the exigencies of work required – Disengagement of an employee upon the expiry of the period of contractual appointment would not amount to retrenchment even if the employee had worked for 240 days in the immediately preceding calender year – Section 25-F not attracted in such case. 2006(12)Scale 133, Rel.(Paras 12 and 13) 8. Even the Apex Court in the matter of Union of India and Ors. Vs. Vartak Labour Union reported in (2011) 4 SCC 200 held that casual employment terminates when the same is discontinued, and merely because a temporary or casual 5 wp5291-11.doc worker has been engaged beyond the period of his employment, he would not be entitled to be absorbed in regular service or made permanent, if the original appointment was not in terms of the process envisaged by the relevant rules. Para 16 of the said judgment reads as under: “16. We are of the opinion that the respondent Union's claim for regularization of its members merely because they have been working for BRO for a considerable period of time cannot be granted in light of several decisions of this Court, wherein it has been consistently held that casual employment terminates when the same is discontinued, and merely because a temporary or casual worker has been engaged beyond the period of his employment, he would not be entitled to be absorbed in regular service or made permanent, if the original appointment was not in terms of the process envisaged by the relevant rules. (See: State of Karnataka Vs. Umadevi (3)6; Official Liquidator Vs. Dayanand7; State of Karnataka Vs. Ganapathi Chaya Nayak8; Union of India Vs. Kartick Chandra Mondal9; Satya Prakash Vs. State of Bihar10; and Rameshwar Dayal Vs. Indian Railway Construction Company Limited11 .) 9. On the above mentioned, facts and the law declared by our High Court as well as Apex Court, I do not find any substance in the present petition and the same is dismissed. (K.K.TATED,J.)