Narayan S/O Girjuba Gadhekar Vs. the Chairman, Sillod Taluka Co-operative Marketing Society Ltd. and Presiding Officer, Labour Court - Court Judgment

Excerpt:
- section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] admission to professional colleges - technical courses - publication of brochure on basis of which candidates seek admission to various institution keeping in mind their merit and preference of colleges held, for ensuring adherence to proper appreciation of an academic course, it is essential that the method of admission is just, fair and transparent. the first step in this direction would be publication of a brochure on the basis of which the applicants are supposed to aspire for admission to various institution keeping in mind their merit and preference of college. brochure, firstly has to be in conformity with law and the statutory scheme notified by the competent authority. it is a complete and composite document as it deals with the scheme for conducting their entrance examinations, declaration of results, general instructions and method of admission, etc. this brochure is binding on the applicants as well as the authorities. this brochure or admission notification issued by the state or other competent authority cannot be altered at a subsequent stage particularly once the process of admission has begun. there is hardly any exception to this accepted rule of law. section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre,jj] admission to professional colleges - technical courses - approval to additional seats or to start new course - cut off dates held, the settled principle of law is that merit of the applicant is the primary criteria which would determine his rank as well as the college where he would be entitled to admission. this rule should not be frustrated as it will tantamount to entirely upsetting the object of admissions based on merit oriented method and would cast cloud on the fairness and transparency of the method of admission. one of the ways in which merit can be defeated is allowing increase in the intake strength or commencement if new colleges beyond cut-off date and admissions beyond the last date specified in the notification/calendar issued by the concerned authorities. this can be illustrated by giving an example. college a which is running a professional course like engineering or mba etc. has an intake capacity of 60 seats which has duly been notified in the information brochure. however, after the cut-off date, approval is granted by the aicte and thereafter, the process is taken up by the state and the intake capacity of the college is increased by 30 more seats. these seats would obviously, not be notified in the information brochure and the candidate who are meritorious and for whom college a; be the college of reference could not get seats or give preference as the seats were limited. none had the proper knowledge about the increase in intake of seats though at a much subsequent stage and may be even after the last date of admission is over either by themselves or under the order of the court even it is put on the internet or given in the newspaper, the candidates of higher rank or meritorious candidates would not be able to avail of that benefit because they have already submitted the testimonial, have paid their fees and the courses have commenced. in that situation, for variety of reasons, they may not be able to take admission in the institution of their higher preference while the candidates of much lower merit will be admitted to that course. besides defeating the merit, it has been commonly noticed that the late admissions made by the colleges directly effect notified candidates who have questioned it more than often as their admission process is not so just, fair and transparent which has given rise to the litigation. it is also a kind of back door entry method. another serious consequence that result from such admissions is shortening of the academic courses in an undesirable manner. it is expected of other candidate selected to a professional course that he or she would complete the course in its entirety and not by missing more than a month or so in joining the said course. this results in lowering the excellence of education as well as harms the academic standard of professional education. admission to professional colleges: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] technical courses - held, in process of admission to professional colleges relating to technical courses, primarily three institutional bodies are involved. (i) all india technical council for technical education, (ii) state of maharashtra through director of technical education and (iii) university to which such institution is affiliated the role of all these institutions in distinct and different but for a common object. primary of the rule of all india council for technical education (aicte) is now well settled but that certainly does not mean that role of the state government and for that matter the university is without any purpose or of no importance. the council is the authority constituted under the central act with the responsibility of maintaining education standards and judging upon the infra-structure and facilities available for imparting such professional education. its opinion is of utmost importance and shall take precedence over views of the state as well as that of the university. the concerned department of the state and the affiliating university has a role to pay but it is limited in its application. they cannot lay down any guidelines or policies which would be in conflict with the central statute or the students laid down a by the central body. state can frame its policy for admission to such professional courses but such policy again has to be in conformity with the directives issued by the central body. while the state grants its approval and university its affiliation for increased intake of seats or commencement for a new course/college, its directions should not offend and be repugnant to what has been laid down in the condition of approval granted by the central authority or council. what is most important is that all these authorities have to work ad idem as they all have a common object to achieve i.e. of proper imparting of education an ensuring maintenance of proper standards of education, examination and ensuring proper infrastructure for betterment of educational system. only if all these authorities work in a co-ordinated manner and with co-operation they would be able to achieve the very object for which all these entities exist admission to professional courses: [swatanter kumar, c.j.,a.p. deshpande & smt. nishita mhatre, jj] admission schedule - interference by courts held, all the expert bodies viz. aicte as well as directorate of education in consultation with the departments of the state regulating the process of admission and maintenance of standards of education had notified a legal binding document specifying dates and schedule for various matters in relation to admission of students and commencement of courses. there has to be so compelling circumstances and grounds before the court to interfere with the prescribed schedule. it is neither so arbitrary nor so perverse, keeping in view the essential features relating to imparting education to professional courses that it should invite judicial chastisement to the extent of laying down entirely new schedule. merely because there has been some delay on the part of either of these authorities to timely grant of either of these authorities to timely grant or decline approval and permission to commence a course per se would not be sufficient ground for disturbing the notified schedule and timely commencement of courses. - it is well settled that burden of proof is on the person who claims to be workman and seeks continuation of the employment. he was not entitled to receive any incidental benefits like medical re-imbursement, leave etc. i am of the opinion that the petitioner failed to prove his case before the labour court. the impugned award is well reasoned.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.