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1 This Writ Petition is filed, challenging the validity and legality of the Award passed in Reference (IDA) No. 26 of 1986 dated 20th November, 1990.
The brief facts of the case are as under :-
2 The respondent No. 1 herein filed Reference (IDA) No. 26 of 1986 before the Labour Court, praying therein to reinstatement, back- wages and for continuation of service in the employment of petitioner as a watchman. It is the case of respondent No. 1 that he was appointed as a watchman at Vedkinhi to look after plantation of the trees and to protect said plaints. He was appointed on 19th July, 1980, and he was removed from service on 1st April, 1983. It is the contention of the respondent No. 1 that when he was removed from service he was getting Rs. 150/- monthly salary. It is further submitted that while removing the respondent No. 1 from the employment of the petitioners, no one month notice or compensation in lieu of notice was not given, and therefore, the said action of the petitioners to remove the respondent No. 1 from the service without giving one month notice, or compensation in lieu of one months notice is illegal and incorrect. It is further case of the respondent No. 1 that when he was removed from the service no charge-sheet was issued, no departmental enquiry officer was appointed, no departmental enquiry was conducted, and by violating principles of natural justice, out of malafide intentions by adopting illegal meanse and unlawfully he was removed from service by the petitione1st April, 1983. Therefore, it was prayed in the said Reference that the removal of the respondent No. 1 from the services of the petitioner is illegal, and therefore, petitioners should be reinstated in the service, and his service should be treated as continuous and he should be given back-wages for the period on which he was removed from the services. It was also prayed that it should be declared that the respondent No. 1 is in continuous service of the petitioner and accordingly all benefits should be extended to the respondent No. 1. The costs towards filing the Reference may be awarded to the complainant. It was also prayed that the complainant reserves his right to add, amend, the pleadings or delete the pleadings, if it is necessary etc.
3 The petitioners filed affidavit in reply before the Labour court through its Officer namely Madhukar Bhanudas Toke, working as Deputy Conservator of forests, Beed on 27th August, 1987. It was specifically stated in the said reply that the respondent No. 1 was offered work from 19th July, 1980, on daily wages for protecting the plants at plantation centre, at Vedkinhi It is further stated that since work at said place had been over, the services of respondent No. 1 were not required. Therefore, automatically on 1st April, 1983, the respondent No. 1 was left the service, as there is no work available to him. It is further submitted that under the control of Deputy Conservator of Forests, at other places work was going on and the petitioners never refuse work for the respondent No. 1. The respondent No. 1 was asked by the petitioners by letter bearing outward No. 12/Estt./1229, dated 4th August, 1984. However, the respondent No. 1 never made any attempts to join the work at Pangari & Mauje. It is further stated that since the respondent No. 1 was offered work at other places, there was no question of either paying back-wages or any other reliefs to the respondent No. 1, since respondent No. 1 himself has declined to join at other places i.e. Pangari and Mauje.
It is specifically stated in the written statement that the respondent No. 1 was not appointed on regular establishment. He was offered work purely on daily-wages. Since the project/work which was under taken in which the respondent No. 1 was working came to an end, the respondent No. 1's services were no more required. However, taking into sympathetic view, the petitioners offered work to the respondent No. 1 at other places. However, respondent No. 1 had not joined the services of the petitioners. It is further stated that since the respondent No. 1 was appointed on daily-wages, there was no question of issuing notice, charge-sheet, departmental enquiry. The respondent No. 1 was offered work on daily wages and he was paid Rs. 5/- per day. It is further stated that the said work was under Employment Guarantee Scheme, under the said scheme the projects undertaken for limited funds and grants were given by the Government. It was further stated that there was no any malafide intention on the part of the petitioners to deprive the respondent No. 1 from the work. However, since the respondent No. 1 was appointed purely on daily-wages, the relief claimed by him in the statement of claim cannot be given to him. Therefore, it was prayed that the said Reference may be rejected.
4 The Presiding Officer, Labour Court, on the basis of averments in the statement of claim prayers therein and reply filed by the petitioners herein passed the final Award on 21st November, 1990. The Labour Court, framed two issues for its determination which are as follows :-
"1] Whether the order of termination is legal and proper? 2] Whether the second party is entitled to reinstatement, continuity of service and back wages?"
These are only issues framed by the Labour Court and issue No. 1 was answered in negative and issue No. 2 was answered in affirmative. It is further submitted that the Labour Court allowed the second party i.e. complainant Sadashiv Maroti Toke to examine himself. However, it is further submitted that the Labour Court has observed on the date of hearing the petitioners herein remain absent. Therefore, evidence of second party goes un-challenged. The Presiding Officer, Labour Court, by cryptic observations allowed the Reference filed by the respondent No. 1 and directed the petitioners to reinstate the second party in service with continuity, back-wages with effect from 1st March, 1983. The copy of this award directed to be sent to Dy. Commissioner of Labour, Aurangabad for publication. Being aggrieved by the Award passed by the Labour Court, this Writ Petition is filed by the petitioners herein. This Writ Petition was heard for admission before this Court and it appears that by order dated 23rd March, 1992. It is further appears that it is not in dispute, in the year 1992, the respondent No. 1 was again taken in the employment of the petitioners and he is working on daily wages, since then till this matter is taken for final hearing. 5 The learned A.G.P. appearing for the State submitted that the Labour Court has framed only two issues and had not framed the other necessary issues for its adjudication. It is further submitted that relying on the statement of the respondent No. 1, that he was worked for 362 to 365 days in each year, the Presiding Officer, Labour Court concluded that respondent No. 1 is entitled for continuity in the service, back-wages and also for reinstatement. It is further argued that no opportunity to cross-examine the respondent No. 1 was given to the petitioners and merely relying on the testimony of respondent No. 1, the Labour Court allowed the Reference. It is further submitted that the respondent No. 1 was not appointed on any vacant regular post. He was appointed as Mazdoor, and his appointment was not made after following the due procedure. Hence, he cannot claim reinstatement and continuity in the service. He was taken as Mazdoor under the scheme, whenever the work is available. It is further submitted that the provisions of Section 25-f of the Industrial Dispute Act are not attracted, and therefore, there was no question of compliance of provisions of said sections. The learned A.G.P. invited my attention to the reported Judgment in the case of "Anil Bapurao Kanse V/s. Krishna Sahakari Sakhar Karkhana Ltd., and another, reported in AIR 1997 S.C. 2698" and submitted that, the Apex Court has taken a view in the said matter that the termination of persons on seasonal basis cannot be termed as a retrenchment within the meaning of Section 2(oo), and they are not entitled for continuity of services. The learned A.G.P. further placed reliance on reported Judgment of this Court in the case of "The Divisional Controller, M.S.R.T.C., Osmanabad V/s. Maruti Bapurao Lokhande, reported in 2009(5) ALL MR 242" and submitted that in the said case this Court held principles enunciated in cases of "Secretary, State of Karnataka V/s. Umadevi (3), (2006), 4 SCC 1 and Mahboob Deepak V/s. Nagar Panchayat, Gajrula, (2008) 1 SCC 575" could be utilised as guiding principles in respect of matters wherein orders of reinstatement or permanency are sought in view of the claim that the complainant had worked for more than 240 days in a year with a public body or corporation or instrumentality. The learned A.G.P. further placed reliance on the reported Judgment of this Court in a case " Pune Municipal Corporation and others V/s. Dhannanjay Prabhakar Gokhale, reported in 2000(4) Mh.L.J. 66" and submitted that merely because an employee continued to render service for 240 days in a year, that by itself will not be sufficient for him to claim permanency in the post, unless he is able to establish that such a permanent post duly approved by the competent authority is vacant and the claimant is duly eligible for being appointed in such post. The learned A.G.P. further placed reliance on the reported Judgment of the Hon'ble Supreme Court in a case "Surendra Prasad Tewari V/s. U.P. Rajya Krishi Utpadan Mandi Parishad & others, reported in 2007(1) ALL MR 461" and submitted that the persons employed on contractual basis though worked for years together, are not entitled to any right to be absorbed or made permanent in service. Relying on various Judgments and also on the basis of grounds taken in the petition, the learned A.G.P. would submit that this Writ Petition deserves to be allowed.
6 On the other hand, the learned Counsel appearing for the respondent No. 1 submitted that the Labour Court, after taking into consideration the statement of claim and also evidence brought on record by the respondent No. 1, framed the necessary issues and held that the respondent No. 1 is entitled for the reinstatement with continuity and back-wages. Therefore, no interference is warranted in writ jurisdiction. Therefore, learned Counsel would submit that this Writ Petition deserves to be allowed.
7 I have given due consideration to the rival submissions, carefully perused pleading in the petition and annexures thereto, statement of claim and also reply filed by the petitioners before the Labour Court and findings recorded by the Labour Court, and I am of the considered opinion that the impugned Judgment and Award of the Labour Court, not only suffers from non application of mind but does not taking into consideration the various pronouncements of Hon'ble Supreme Court and also of this Court. On perusal of the Impugned Judgment and Award, it clearly appears that no opportunity of hearing was given by the Labour Court to the petitioners herein. The Labour Court has only observed that the petitioners herein are absent on the date of hearing, and therefore, the evidence of the second party goes unchallenged. In fact, Judgment does not refer on which date the matter was fixed for cross- examination of the respondent No. 1, The Judgment also does not refer to any particulars on which the matter was fixed for recording the evidence of the petitioners herein. Therefore, on careful perusal of the impugned Judgment, it clearly emerges that the Labour Court was in haste and without affording proper opportunity to the petitioners proceeded to dispose of the Reference hurriedly, and by cryptic reasons concluded that the respondent No. 1 herein is entitled for reinstatement, continuity and back-wages, such order is impressible.
8 At this juncture, it would be relevant to reproduce the entire findings / reasons recorded by the Labour Court in para No. 6 of its impugned Judgment.
" On perusal of the statement of working days of the IInd party as produced in the Reference papers by the Ist party, it is clear that, the IInd party had worked for more than 240 days in presceding year of his termination and therefore, he is protected u/s 25-F of the I.D. Act. Admittedly, no notice of termination of one month was issued to the IInd party, nor was paid the notice pay and retrenchment compensation and therefore, his in violation of the mandatory provisions of Sect. 25-F, of the I.D. Act. I therefore find that, the termination is illegal and improper. I therefore answer the issue No. 1 in the negative.
In view of my finding to issue No. 1, I find that, the IInd Party is entitled for reinstatement in service with continuity and back wages. I therefore answere the issue No. 2 accordingly and hence, the following order :-" 9 In my considered opinion, the Labour Court utterly failed in its duties to advert to the contentions in the written statement filed by the petitioners. There is no reference to the written statement of the petitioners in the Judgment. It is not in dispute that the written statement was filed by the petitioners herein. Even if it is assumed for a moment that the petitioners remained absent on the date scheduled for the hearing, the Labour Court was bound to refer to the written statement filed on behalf of the petitioners. The Presiding Officer, Labour Court, has not discussed how the provisions of Section 25-F of the Industrial Dispute Act are applicable in the present case. It is admitted position that the petitioners is a Government Department. Secondly, the Labour court has not taken into consideration that the respondent No. 1 was appointed purely on temporary basis under Employment Guarantee Scheme, for a particular period on daily wages. The Labour Court has also not taken into consideration that though the work was offered to the respondent No. 1 at other places, the respondent No. 1 did not join the said work, and therefore, the petitioners cannot be held responsible for refusal of work by the respondent No. 1. There is no discussion how the respondent No. 1 has completed 240 days in a calender year. There is no discussion how the Labour Court arrived at the conclusion that the respondent No. 1 has completed 240 days service. In my considered opinion, the impugned Judgment and Award deserves to be set aside. It is not necessary to burden this Judgment by referring pronouncements of this Court, as well as Hon'ble Supreme Court on the point involved in this matter that the daily wager has no any right to claim either continuity, reinstatement or back-wages. Since the respondent No. 1 was offered work on daily-wages, there was no question of giving any notice, notice or one month's pay in lieu of notice as held by the Labour Court. Therefore, in my opinion, the impugned Judgment and order deserves to be set aside. However, in order to balance equities and keeping in mind the age of the respondent No. 1, and if he is thrown out of service, his family may be ultimate sufferer,itt would be in the interest of justice that the respondent No. 1 should be continued on daily wages till the age of his superannuation. It will be also in the interest of justice that, if any amount is paid to the respondent No.1 during the pendency of this Writ Petition or whatever benefits he is already given, should not be recovered from him. It is not in dispute that the respondent No. 1 has worked from 19th July, 1980 till 1st April, 1983,and thereafter from 1992 till today on daily wages. Therefore, in order to balance equities and in the interest of justice, I feel it appropriate that the respondent No. 1 should be continued on daily wages till he attains age of superannuation, and further no any recovery should be effected from him.
10. Therefore, this Writ petition is partly allowed. The impugned Judgment and Order passed by the Presiding Officer, Labour Court, Aurangabad is set aside, However, since respondent No. 1 is taken back in service on daily wages from 1992 and he is working till today, he should be continued on daily wages till he attains age of superannuation. So far the direction of the Labour Court to consider the services of respondent No. 1 herein with continuity and back wages are set aside. The amount if any, which is lying in the fixed deposits should be returned to the petitioner No. 1. Rule is made absolute in above terms and the Writ Petition stands disposed of.
In view of the disposal of the Writ Petition, the Civil Application if any is disposed of accordingly.