Judgment:
V.R. Kingaonkar, J.
1. By this petition, petitioner impugns award rendered by Labour Court, Aurangabad, in reference case bearing No. 1. D.A. No. 78/1984.
2. There is no dispute about the fact that in the State of Maharashtra, raw cotton purchase was being made through the Maharashtra State Co-operative Federation, Bombay. Respondent No. 1, likewise other Taluka Co-operative Marketing Societies, was appointed as subagent to purchase cotton under the monopoly scheme for and on behalf of the State Federation. The petitioner was appointed as purchase assistant on daily wages basis at a cotton procurement center by the respondent No. 1. The initial amount of daily wages was Rs. 5/- and was increased from time to time up to Rs. 13/- till the date of his alleged termination.
3. Briefly stated, the petitioners case is that he was appointed by order dated 17.12.1979 as helper and was continuously engaged in service of the respondent No. 1 till his termination vide order dated 30th July, 1983. He was required to work at different cotton centers situated at Sillod, Wadod Bazar and Ajantha. In the off season period, he was required to work in the fertilizer section. He worked continuously for more than 240 days and as such was entitled to regularisation of the services. The respondent No. 1 had fined him and one Shri Jadhav on allegations of their involvement in an incident of quarrel at the working place. The respondent No. 1 terminated his services along with service of other 11 employees by an order dated 30th July, 1983. The respondent No. 1 did not follow due procedure while terminating his services. His name was at serial No. 9 in the list of Workmen who were retrenched/terminated. He gave a demand notice dated 19.01.1984 and urged for reemployment. He was not considered for regularisation or reemployment. A reference was made to the Labour Court for adjudication of the dispute. The Labour Court rejected the reference after recording findings to the effect that the petitioners employment was temporary and on daily wages and he had not worked continuously for more than 240 days during the relevant period. The Labour Court further held that termination of the petitioner was quite legal and he had no right to claim employment. The Labour Court rendered the award against the petitioner. Hence, this petition.
4. Clinching question is whether the petitioner could be regarded as workman and did prove that he worked continuously for more than 240 days in the year preceding the termination in question. Incidentally, it will have to be seen as to whether the nature of his employment is such that he could acquire right for continuation in the employment.
5. Since the petitioner claims protection under Section 25(F) of the Industrial Disputes Act, 1947, he must prove that he is a workman under Section 2(S)-(iii) on establishment in which he is employed and the respondent No. 3 is an 'industry' within the meaning of the Act and moreover he has put in not less than one year of continuous service, as defined in Section 25(B), under the Employer. It is well settled that burden of proof is on the person who claims to be workman and seeks continuation of the employment. The Apex Court in case of 'Surendranagar District Panchayat v. Dahyabhai Amarsingh' : (2006)ILLJ424SC ) held that the relevant facts must be proved by workman so as to claim protection under Section 25(F). The Apex Court held that in the absence of the regular employment of the workman, it was not expected of the employer to maintain seniority list of the employees engaged on daily wages.
6. The record would make it manifest that the petitioner was appointed as a temporary helper/assistant on daily wages. The employment was not at all governed by any service conditions. The learned Counsel for the petitioner has placed on record the service rules of the respondent No. 1. There is no post of 'cotton purchase assistant/helper' on the regular establishment of the respondent No. 1. The record reveals that the petitioner was not employed on any particular pay scale. There is no dispute about the fact that he was not being paid any amount for period of absence. He was not entitled to receive any incidental benefits like medical re-imbursement, leave etc. Admittedly, the cotton purchase scheme was operated only during harvesting season. No regular employment was available through out the year. The petitioner unequivocally admitted, in his deposition before the Labour Court, that he was required to submit joining reports at different centers of the respondent No. 1 as and when he was engaged on daily wages to work at such Centers. There is no documentary evidence to show that he was engaged to work at fertilizer centers during the off season period. The petitioner was provided seasonal work as per the availability of work load at the cotton purchase centers. He was being given fresh appointments at centers in accordance with availability of the works.
7. Learned Counsel Shri S.K. Shelke, appearing for the petitioner would submit that the petitioner is singled out when re-employment was available. He would point out that some of the other employees were given further employment but the petitioner was not considered when his turn came for such reemployment. According to learned Counsel Shri S.K.Shelke, the petitioner has proved his claim since the chart of attendance (Exh.F) purports to show that he had worked for more than 240 days in the year preceding the termination. The learned Counsel would further submit that the petitioner is denied the employment for the reason that there was some disciplinary action taken against him. The learned Counsel Shri S.K.Shelke would submit that once the fine of Rs. 5/-was imposed for the alleged misconduct, then it was not open to consider such previous misconduct as a ground for denial of continuity in the service. It would amount to double jeopardy. Shri Shelke urged, therefore, to set aside the impugned order of termination and the award in question.
8. Though, the petitioner admitted that he was required to work at different cotton procurement centers as per the availability of work, yet he did not produce such appointment orders issued from time to time. There is also nothing on record to show that he was being continuously employed through out the year. The relevant chart (Exh.F) would show that he was paid daily wages for the working days in each month. The petitioner was given daily wages at the rate of Rs. 5/-in the year 1979-80. He was paid Rs. 7/- per day from November, 1980 till September, 1981 for the working days on which work was available. He was paid Rs. 10/- per day from October, 1981 till August 1982. Thereafter, he was paid Rs. 13/- per day till the date of his termination. His duty was to assist the cotton incharge of the cotton procurement centre. The petitioner did not give details of his so called employment at fertilizers sections of the respondent No. 1 during the off season period. Thus, it is amply clear that he was employed as a casual worker and the nature of employment was only seasonal and in accordance with the availability of the work with the respondent No. 1. No service book was maintained by the respondent No. 1 in respect of the employment of the petitioner and other seasonal workers.
9. The Apex Court in 'State of Maharashtra and Anr. v. R.S. Bhonde and Ors.' : (2005)IIILLJ517SC held that status of permanency can not be granted when there is no post. The Apex Court further held that mere continuation every year of seasonal work during the period when work was available does not constitute a permanent status unless there exists a post and regularisation is done. The workers engaged for seasonal work can not have right of continuity in the works. Secondly, when the petitioner was engaged in different departments/centers of the respondent No. 1, as and when the work was available, then he can not claim protection under Section 25(F). The Apex Court in 'DGM Oil & Natural Gas Corporation Ltd. and Anr. v. Ilias Abdulrehman' (2005) 2 S Ct C 183 held that the number of days of work put in broken periods, cannot be taken as a continuous employment for the purpose of Section 25F of the Act. The Apex Court in 'Batala Coop.Sugar Mills Ltd. v. Sowarang Singh' (2005) 8 S C C 481 held that when a workman was engaged on casual basis on daily wages for specific work and for specific period then he would not be entitled to the protection under Section 25F.
10. The termination order (Exh.B) would show that in all 12 temporary workers, including the petitioner, were terminated, with effect from 01.08.1983. It appears that some of them were later on reemployed as and when the work was available. The petitioner was not, however, considered for such reemployment. It is difficult to say that he was penalised for the same misconduct on two occasions. The earlier misconduct was admitted by him and hence penalty of Rs. 5/-was imposed on him. The refusal to reemploy him can not be treated as 'double jeopardy'.
11. Learned Counsel Shri Shelke seeks to rely upon certain observations in case of 'Surendra Kumar Verma etc. v. The Central Government Industrial Tribunal-cum-Labour Court, New Delhi and Anr.' : (1981)ILLJ386SC . The Apex Court has held that the workman need not be in continuous service for one year and it would suffice if he had worked for at least 240 days in one year. The learned Counsel would further rely on 'Jairaj N. Shetty v. Union of India' : 2005(6)BomCR221 . A Division Bench of this Court held that the workman may not be in continuous service through out the year but if he has worked for 240 days of service during the period of one year prior to the termination then he would be entitled to the protection under Section 25(F) r/w Section 25(B). There can not be duality of opinion about such a legal position. The facts of the given case are, however, on different footings. The claim would depend upon nature of the employment. Here is a case in which the employment of the petitioner was purely temporary and seasonal. He can not be regarded as a workman within the meaning of Section 2(C) of the Industrial Disputes Act. It may be mentioned that learned Counsel Shri Shelke also placed reliance on 'Hindustan Tin Works Pvt. Ltd., v. The Employees of Hindustan Tin Works Pvt. Ltd., and Ors. ' : (1978)IILLJ474SC and 'Anoop Jaiswal v. Government of India and Anr.' : (1984)ILLJ337SC . The learned Counsel would submit that termination order in question is only a colourable exercise of the powers to discharge service of the workman. I do not agree. The authorities referred to above are not relevant to the core issue involved in the present case. I am of the opinion that the petitioner failed to prove his case before the Labour Court. The impugned award is well reasoned. There is no perversity noticed in the impugned order. In the exercise of powers under Article 227 of the Constitution, this Court can not reappreciate the facts. Needless to say, the impugned award and termination of the petitioner is quite legal and proper. There is no substance in the instant petition. In the result, the petition is dismissed. Rule discharged. No costs.