R.V. Ghuge, J.
1. The appellant, being aggrieved by order dated 22.11.2012, passed by learned Single Judge in Writ Petition No.2946/2012, has preferred this intra Court appeal for challenging the said order of the learned Single Judge.
2. Being a Letters Patent Appeal, we were not required to look into the matter threadbare, and reappreciate the entire evidence recorded before the Labour Court and the details as they emerge from the judgment of the Labour Court, Latur, as well as the Industrial Court, Latur. However, being conscious of the fact that this appeal gave an opportunity to the appellant to make an attempt to point out perversities and illegalities, if any, from the two judgments of the lower Courts and draw our attention to any perversity in the order of the learned Single Judge, we decided to look into the concurrent findings of the lower Courts. It is with this object that we have turned our attention to the first judgment that was delivered by the Labour Court, Latur, and then to the judgment of the Industrial Court, at Latur.
3. Brief facts of the case are as follows:
The First respondent is the original complainant in Complaint (ULP) No.39/1999, filed by him before Labour Court, Latur, for challenging his oral termination from service with effect from 14.6.1998. The appellant in this Letters Patent Appeal was original respondent in the said complaint. First Respondent workman in this appeal, for the sake of brevity, is being referred to as a workman, hereinafter.
It was contended by the workman that he was taken into employment by the Integrated Child Development Project, Nilanga, as a Watchman. The said project is floated by the Central Government and is implemented through the Zilla Parishad. Thus, he claimed to be a watchman in the service of the Zilla Parishad w.e.f. 6.9.1990. He further contended that he was given written appointment orders by the appellant with a tenure of few months mentioned in each of such orders. For clarity, the period of his service as a Watchman is from 6.9.1990 to 5.12.1990, 7.12.1990 to 31.3.1991, 3.4.1991 to 31.7.1991, 2.8.1991 to 31.10.1991, 2.11.1991 to 30.1.1992, 1.2.1992 to 30.4.1992. It was his contention that he continued as such till his oral termination from employment.
4. The appellant herein filed its written statement before the Labour Court, Latur, and resisted the claim of the workman. The appellant admitted the above mentioned tenure of employment till April 1994, and denied any further engagement of the workman. As regards the claim of the workman that he was terminated from employment without compliance of Section 25F of the Industrial Disputes Act, 1947, the appellant boldly claimed that since he was temporarily engaged for short periods, and was a Daily Wage workman, compliance of provisions of the Industrial Disputes Act, 1947, was not an obligation cast upon the appellant. Nowhere in the written statement has the appellant taken a plea that the workman was required to be recruited by following the due procedure of law or, that he was engaged on a Project work which had come to an end.
5. Both the parties led oral and documentary evidence before the Labour Court. A Court Commissioner was appointed at the request of the workman who submitted his report before the Court along with documents. Finally, the Labour Court, Latur, delivered its judgment and order dated 20.1.2011, thereby allowing the complaint filed by the workman with reinstatement, continuity and full backwages.
6. It is seen from the said judgment that the Chief Executive Officer of the Latur Zilla Parishad had sent a letter to the Divisional Commissioner, Aurangabad, regarding arrears of wages payable to the workman. The workman also succeeded in bringing on record the orders of other similarly situated employees having been made permanent in service along with extract of Muster Roll. So also, it has come on record that the Scheme Integrated Child Development Project on which the workman was appointed as a Watchman, was still continued by the Central Government. It has also come on record that a similarly situated employee, namely, Mr.Gupta was confirmed in service. The correspondence, which was filed along with the Commissioner's report, indicated that the workman was in employment till 1996. In these circumstances, the Labour Court, Latur, had allowed the complaint of the said workman.
7. Being aggrieved by the said judgment and order of the Labour Court, Latur, the appellant herein preferred Revision (ULP) No.9/2011 before the Industrial Court at Latur. The said revision petition came to be dismissed with reasons vide judgment and order of the revisional Court dated 29.11.2011. Even before the Industrial Court, Latur, the appellant herein did not raise any ground pertaining to the said workman having been, allegedly, illegally appointed, or a specific procedure for recruitment having not been followed, or that the Project on which he was engaged as a Watchman has come to an end. The record and proceedings from the Court below were called for and considered by the revisional Court.
8. The appellant raised an issue that the judgment in the case of Secretary, State of Karnataka and Others v Umadevi and Others [(2006) 4 SCC 1], precludes the Labour Court from considering claims of regularization or permanency against an employer falling within the definition of "State" under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The revisional Court considered the said judgment and, based on the view of the Hon'ble Supreme Court expressed in MSRTC Vs. Casteribe Rajya P.Karmachari Sanghatana (2009 III) CLR 262, concluded that the powers of the Industrial Court and Labour Courts are not denuded by the Umadevi's judgment. It is equally noteworthy that the claim of the workman was not for regularization or permanency, but was a challenge to his oral termination from employment in violation of the provisions of the Industrial Disputes Act, 1947.
9. The appellant herein preferred Writ Petition No.2946/2012 before the learned Single Judge of this Court for challenging the judgment and order dated 20.1.2011 delivered by the Labour Court, Latur, and the judgment and order of the Industrial Court, Latur, dated 29.11.2011. Even in the writ petition, the appellant did not raise an issue as to whether the workman was illegally appointed, or was engaged without following the due procedure of law, or that the Project work had come to an end. Nevertheless, it had been proved before the Labour Court, Latur, through the cross examination of the appellant's witness, that the said Project is continued through the Zilla Parishad, and it has not come to an end. The learned Single Judge vide an order dated 22.11.2012, dismissed the writ petition after hearing the parties. It is this order passed by the learned Single Judge that has been assailed in this Letters Patent Appeal.
10. We have heard the learned counsel for the petitioner. To a specific query put to him as to whether the appellant had, at any point of time, raised an issue as regards the engagement of the workman in violation of a specific procedure to be followed for appointing a Watchman, the learned Counsel, upon going through the appellant's written statement filed in the Labour Court, Latur, failed to point out a single sentence of pleading on this issue. Another query was put to him as to whether the appellant had taken a plea that the Project on which the workman was engaged as a Watchman had come to an end, so as to attract Section 2(oo)(bb) of the Industrial Disputes Act, 1947, the learned Counsel, once again, went through the said written statement, and failed to point out any pleading touching this issue.
11. We are conscious of the fact that the Scheme, on which the workman was engaged as a Watchman was proved to have been in continuation by the Central Government through the Zilla Parishad. So also, the learned Counsel did not contend before us that the said Scheme has ended. In fact, it is not the case of the Appellant that the Scheme has come to an end. As such, we are unable to invoke Section 2(oo)(bb) of the Industrial Disputes Act, 1947 since the said exception to the definition of retrenchment would be applicable only if the project work comes to an end and the services of the workman are no longer required.
12. It has been one of the grounds in the appeal raised by the appellant that there was delay in filing the complaint, which ground was neither pleaded nor proved before the Labour Court and Industrial Court. We also put a specific query to the learned Counsel for the appellant as to how would he explain the minor / artificial breaks of one day or two days created by the appellant in each termination and subsequent appointment of the workman. We found that the learned Counsel merely harped on the fact of a break in service by a day or two; but, could not establish as to whether it was a justifiable break. Needless to state, we find such breaks to have been introduced by the appellant in order to truncate the rights of the said workman and prevent him from completing 240 days in the continuous employment of the employer. We, therefore, have no hesitation in disregarding these artificial breaks created by the appellant. The learned Counsel for the appellant failed to point out any perversity in the order of the learned Single Judge so as to convince us to cause an interference with the said order of the learned Single Judge.
13. We find that the respondent workman has been tired out by the appellant in prolonged litigation from 1998 till this date. In the light of the fact situation, we find it appropriate to refer to the judgment delivered by the Hon'ble Apex Court in the case of HarjinderSingh Vs. Punjab State Warehousing Corporation ((2010) 3 SCC 192. The Apex Court has noted that the Court should make an effort to protect the rights of the weaker Sections of the society. It would be appropriate to refer to the view taken by the Apex Court in paragraph Nos. 43 and 47 of the said judgment which is as follows:
â43. In view of such clear enunciation of the legal principles, I am in clear agreement with Brother Singhvi, J. that this Court has a duty to interpret statutes with social welfare benefits in such a way as to further the statutory goal and not to frustrate it. In doing so this Court should make an effort to protect the rights of the weaker sections of the society in view of the clear constitutional mandate discussed above. Thus, social justice, the very signature tune of our Constitution and being deeply embedded in our constitutional ethos in a way is the arch of the Constitution which ensures rights of the common man to be interpreted in a meaningful way so that life can be lived with human dignity.
47. Krishna Iyer, J. speaking for the Court, made it very clear (S.Naganatha case, SCC page 467, para 1) that even though the Judges are "constitutional invigilators and statutory interpreters" they should also be responsive to Part IV of the Constitution being "one of the trinity of the nation's appointed instrumentalities in the transformation of the socio-economic order". The learned Judge made it very clear that when the Judges "decode social legislation", they "must be animated by a goaloriented approach" and the learned Judge opined, and if I may say so, unerringly, that in this country "the judiciary is not a mere umpire, as some assume, but an activist catalyst in the constitutional scheme" (SCC p.468, para 1)."
14. A similar view has again been taken by the Apex Court in the case of Anoop Sharma Vs. Executive Engineer, Public Health Division No.1, Panipat (Haryana) (2010) 5 SCC 497.
15. The Apex Court has repeatedly held that the conditions set out in Section 25(F) of the Industrial Disputes Act, 1947, are axiomatic. In the aforesaid judgment, the Apex Court has observed in paragraph No.17 as under:
"This Court has repeatedly held that Section 25-F(a) and (b) of the Act is mandatory and non-compliance therewith renders the retrenchment of an employee nullity State of Bombay v. Hospital Mazdoor Sabha AIR 1960 SC 610, Bombay Union of Journalists v. State of Bombay (1964) 6 SCR 22, SBI v. N. Sundara Money (1976) 1 SCC 822, Santosh Gupta v. State Bank of Patiala (1980) 3 SCC 340, Mohan Lal v. Bharat Electronics Ltd. (1981) 3 SCC 225, L.Robert D'Souza v. Southern Railway (1982) 1 SCC 645, Surendra Kumar Verma v. Central Govt. Industrial Tribunal-Cum Labour Court (1980) 4 SCC 443, Gammon India Ltd. v. Niranjan Das (1984) 1 SCC 509, Gurmail Singh v. State of Punjab (1991) 1 SCC 189 and Pramod Jha v. State of Bihar (2003) 4 SCC 619."
16. Learned Counsel for the appellant placed reliance upon the judgment delivered by three Hon'ble Judges of the Apex Court in Chief Executive Officer vs. K.Aroquia Radja and others (2013 ALL SCR 1409), to buttress his contention that a temporary watchman ought not to be granted the relief as has been granted by the Labour Court. We find that the facts of the case cited supra, are totally different and distinguishable. The facts before the Hon'ble Supreme Court in the said case pertain to the personal staff of the Chairman of the Board, having been appointed on co-terminous post, on a fixed scale of pay. Their services stood automatically terminated on expiry of the term of the Chairman. It was held, in the light of these facts that appointment of such persons ought not to be approved of. It is, thus, clear that the ratio laid down in the said judgment, based on the set of facts before the Apex court, is not applicable to this case. As such, we are convinced that the Letters Patent Appeal is devoid of merits and deserves to be rejected.
17. In the result, the Letters Patent Appeal stands rejected with no order as to costs.
18. Civil Application filed for seeking stay to the order of the learned Single Judge does not survive and stands disposed of.