Writ Petition No. 1170 of 1997

21st September, 2000

Petitioner Counsel: Shri. S. T. SHELKE
Respondent Counsel: Shri. V. S. BEDRE

Cases Cited:
Delhi Development Horticulture Employees' Union Vs. Delhi Administration, AIR 1992 SC 789 [Para 5]
Subhash Narayan Ahirrao Vs. Deputy Engineer, PWD Sub Division Dhule, 1991 Lab. I. C. 1688 [Para 6]

JUDGMENT

JUDGMENT :- Rule. Rule made returnable forthwith and the matter is taken up for final hearing by consent. Learned counsel for the Respondents waive service.

2. The present proceedings arise out of an order dated 29th October 1996 passed by the Presiding Officer of the First Labour Court, Ahmednagar in Reference (IDA) No. 25 of 1992. The first respondent was engaged initially as a writing Mukadam on a work charged establishment under an order issued by the Deputy Engineer, Zilla Parishad, Minor Irrigation Sub Division, Shrigonda. In August 1976 he was engaged as a Mustering Assistant for the purpose of work which was to be executed under the Employment Guarantee Scheme. Subsequent orders were also issued thereafter from time to time and from the award of the Labour court it emerges that the first respondent continued to work as a Muster Assistant until 30th June, 1986. The first respondent, it appears, was not engaged between the period from 24th July 1984 until 31st December, 1985. Upon termination of the services of the first respondent, a reference was made under Section 10(1) of the Industrial Disputes Act 1947 for adjudication as to whether the first respondent should be reinstated in service with full back wages and continued in service with effect from 1st July, 1986. By its award dated 29th October, 1996, the Labour Court directed the petitioner to reinstate the first respondent in his original post as Mustering Assistant with continuity of service. Back wages quantified at one-third of the total back wages payable from first February 1992 until the date of the award on the basis of the last drawn wages were also directed to be paid to the first respondent. In the present proceedings the Chief Executive Officer, Zilla Parishad, Ahmednagar has sought to impugn the award of the Labour Court.

3. Apart from the contention that the Reference made in the year 1992 challenging the order of termination of 1986 was belated, it has been urged that the first respondent was engaged under the Employment Guarantee Scheme in accordance with the exigencies of work as and when work was available. It has been urged that the first respondent was appointed for specific period in order to perform specific work and the case would be squarely covered by the provisions of Section 2(oo) (bb) of the Industrial Disputes Act 1947.

4. The question of absorption of persons, such as the first respondent, who were appointed as Mustering Assistants, from time to time under the Employment Guarantee Scheme, has been a vexed issue not capable of ready solution. The Maharashtra Employment Guarantee Act 1977 was enacted to make effective provision for securing the right to work by guaranteeing employment to all adult persons who volunteer to do unskilled manual work in rural areas in the State of Maharashtra. Under Section 3 of the Act, an adult person is entitled to get employment for doing manual work and to receive wages therefor. Under the employment guarantee scheme productive work as defined by Section 2(h) is to be undertaken. Section 8 provides for the registration of every adult person who is residing in a rural area and who is willing to do any unskilled manual work. The Collector of the District is responsible, under Section 6, for the implementation of the scheme. Section 16 of the Act gives overriding effect to the provisions of the Act, the schemes, rules, notifications or orders made thereunder notwithstanding anything inconsistent in any other laws for the time being in force.

5. In Delhi Development Horticulture Employees' Union v. Delhi Administration (AIR 1992 SC 789) the Supreme Court considered the question as to whether persons who were employed under the Jawahar Rojgar Yozana who had put in more than 240 days of service could claim the benefit of regularisation. Holding that the object of the scheme was to provide income to persons below poverty line the Supreme Court held that if resources used for the scheme were utilized for providing full employment to a small percentage of the population, the object of the scheme itself would be defeated. Conferment of a right to regularisation would frustrate the scheme.

6. In Subhash Narayan Ahirrao v. Deputy Engineer, PWD Sub Division Dhule reported in 1991 Lab. I.C.1688 the question of Muster Assistants came up for consideration before a learned Single Judge of this Court. The order which was passed by the learned single Judge in Ahirrao's case (supra) ultimately was carried in appeal to the Supreme Court in Civil Appeal No. 5338 of 1991. By its order dated 2nd December, 1996 the Supreme Court directed that the question of absorption into regular services shall be governed by the scheme which has been framed by the State Government in its Resolution dated 1st December, 1995.

7. This position, it must be stated, was noted by a learned Single Judge of this Court (J. A. Patil, J.) in his order dated 15th October, 1999 delivered in a batch of writ petitions heard together with Writ petition No. 703 of 1997 in which the Chief Executive Officer, Zilla Parishad, Ahmednagar had moved this Court. The learned Single Judge noted that besides the Government Resolution dated 1st December, 1995, the State Government had also issued another Resolution dated 21st April, 1999 for absorption of Mustering Assistants. In that view of the matter, my learned brother (J. A. Patil, J.) held that the concerned respondents before this Court, engaged as Muster Assistants in the past may be considered for the grant of benefits in terms of the aforesaid Government Resolutions. In view of the matter, the awards passed by the Labour Court in the cases before the learned Single Judge were quashed and set aside and were substituted by a direction in the aforesaid terms.

8. Having regard to the fact, as noticed by the learned Single Judge in the earlier decision that a scheme has been formulated by the State Government on 1st December, 1995 and 21st April, 1999 for the purpose of regularisation of the services of Muster Assistants it would be proper if the case of the first respondent is considered in the light of the said Government Resolutions.

9. Consequently the impugned award of the Labour Court dated 29th October, 1996 is quashed and set aside. There shall, however, be a direction that the case of the first respondent shall be duly considered by the petitioner in accordance with the Government Resolution dated 1st December, 1995 and subsequent Government Resolutions which deal with the question of regularisation or absorption of Muster Assistants. It is made clear that the entitlement, if any for regularisation or absorption shall be considered and proceeded in accordance with the Government Resolutions.

10. The writ petition is accordingly allowed and the award of the Labour Court shall stand quashed and set aside and be substituted by the aforesaid directions.

11. Rule is made absolute in the above terms with no order as to costs.

Petition allowed.