Writ Petition No.3819 of 2003

4th June, 2007

Petitioner Counsel: Mrs. A. P. SHINDE
Respondent Counsel: Mr. S. C. MEHADIA

Cases Cited:
Lakhansingh Vs. Presiding Officer, Labour Court, Chandigarh, 1989 (Volume-2) CLR 801 [Para 4,18]
R. M. Yellatti Vs. Asstt. Executive Engineer, (2006)1 SCC 107 [Para 6]
Manjunatha Rao K.V. Vs. Karnataka Vidyuth Karkhane Ltd., 1999(1) I.L.L.J. 116 [Para 6]
The Secretary, State of Karnataka Vs. Umadevi, (2006)4 SCC 1 [Para 7,8,23]
National Fertilizer, 2006(5) SCC 493 [Para 7]
Reserve Bank of India Vs. Gopinath Sharma, 2006(6) SCC 221 [Para 7,25]
Madhu Kishwar Vs. State of Bihar, (1996)5 SCC 125 [Para 10]
Surendra Kumar Verma Vs. Central Government Industrial Tribunal-cum-Labour Court, New Delhi, (1980)4 SCC 443 [Para 11]
U.P. Drugs & Pharmaceuticals Co. Ltd. Vs. Ramanuj Yadav, (2003)8 SCC 334 [Para 11]
Silver Jubilee Tailoring House Vs. Chief Inspector of Shops and Establishments, AIR 1974 SC 37 [Para 12,13]
M/s. Shining Tailors Vs. Industrial Tribunal II, UP, Lucknow, AIR 1984 SC 23 [Para 13]
Govindbhai Kanabhai Maru Vs. N. K. Desai, 1988 Lab.I.C. 505 [Para 14]
MSEB Workers Federation, Pune Vs. MSEB, 1995(II) CLR 588 [Para 17]
Rangamannar Chetti (G) Vs. Industrial Court, Hydrabad, AIR 1960 AP 371 [Para 18]
Gujarat Electricity Board, Thermal Power Station, Ukasi Vs. Hind Mazdoor Sabha, AIR 1995 SC 1893 [Para 19]
General Manager, Haryana Roadways Vs. Rudhan Singh, (2005)5 SCC 591 [Para 20]
S. M. Nilajkar Vs. Telecom District Manager, Karnataka, (2003)4 SCC 27 [Para 21]
Shankar Chakravarti Vs. Britannia Biscuit Co. Ltd.,, AIR 1979 SC 1652 [Para 24]

JUDGMENT

JUDGMENT :- The petitioner herein is an unfortunate widow belonging to backward class whose bread has been snatched by the respondent, the Maharashtra State Road Transport Corporation, Chandrapur Division, Chandrapur (for short, the "MSRTC") putting her and her two small children to starvation. What would have been the plight of a woman when her coolie husband suddenly became blind and became a liability on her along with her two children. What would have been the plight of a woman who was suddenly deprived of the income even of Rs.550/- per month with which she supported her two children and her husband who then expired and she bacame widow during the pendency of the lis. It is further unfortunate that the respondent has, on the basis of the Constitution Bench judgment of the Supreme Court in The Secretary of State of Karnataka Vs. Umadevi & ors. and other judgments, sought to unjustifiably dodge the petitioner from getting any relief to which she is otherwise entitled to in accordance with law. Though the pronouncement of law by the Constitution Bench of the Apex Court in Umadevi's case (supra) related to regularization of employees, taking a few sentences from the said judgment, it is being vehemently argued that the judgment prohibits issuance of any directions for reinstatement even if the Labour/Industrial Court or this Court finds the termination illegal. In my opinion, the Government Department, Public Corporations and Undertakings and Municipal Councils are attempting to misuse the judgment in Umadevi's case as has been experienced by me in this case, and some other cases decided by me recently i.e. W. P. No.391/2006 and W. P. No.3021/2001.

2. By the present petition, the petitioner has challenged the validity of the revisional judgment and order dated 01-07-2003 passed by the Industrial Court, Nagpur in Revision (ULPA) No.339 of 2002 by which the learned Industrial Court set aside the judgment and order dated 20th June, 2002 made by the Labour Court, Chandrapur in Complaint (ULPA) No.135 of 1994. Looking to the nature of the impugned judgment and order, the present petition is treated as the one under Article 227 of the Constitution of India.

FACTS 3. The petitioner filed a complaint under Section 28 read with item (1) of Schedule IV of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 (for short, the "MRTU & PULP Act") before the Labour Court, Chandrapur against the respondent MSRTC. In the said complaint, she pleaded that she was appointed by the respondent firstly by written order of appointment dated 08-06-1989 (Exhibit-18) and by another order dated 01-04-1991 (Exhibit-19) to work as sweeper on consolidated honorarium of Rs.500/- per month. In Exhibit-18, it was stated that she would be required to clean the Divisional Office, Establishment Section, Accounts Section as well as toilets and latrines. She was being appointed until further orders in accordance with the contract and she would have no right whatsoever, her work being on contract basis. The order of appointment (Exhibit-19) is on similar lines, but there is an increase of Rs.50/- per month in her consolidated salary. In this order, the word "honorarium" is not used but word "salary" is used. After this order, she continuously worked as sweeper till she was lastly terminated on 01-08-1994. It appears that her husband was working as a coolie in MSRTC, Chandrapur Depot and suddenly he became blind and his family thus abruptly went in a state of penury. It appears with a view to feed her husband and her children, she became prepared to work even as a sweeper with M.S.R.T.C. and was accordingly employed. It appears from her affidavit dated 1st March, 2004 to Civil Application No.2821/2004 in this Writ Petition that her husband expired during pendency of the litigation and now she has to support herself and her two small children. She then averred in her complaint that she worked without any break and while terminating her services she was neither paid any retrenchment compensation nor notice of one month or wages in lieu thereof were given to her. No seniority list was either prepared or published and there was thus violation of Section 25-G and Rule 81 of the Industrial Disputes Act (Bombay) Rules, 1957. The reasons for termination of her services are patently false. The work is still available where she can be reinstated.

The respondent-The Maharashtra State Road Transport Corporation filed its written statement and denied the averments in the complaint. In nutshell, the respondent contended that the petitioner had accepted the agreement on 29-12-1992 and accordingly the respondent availed her services on contract basis with the result the petitioner is not the employee of the respondent nor she is a workman. The work that was allotted to her was not a regular work and at the end of her contract her services were dispensed with. The case was, therefore, squarely covered under the provisions of Section 2(oo)(bb) of the Industrial Disputes Act. The parties thereafter went on trial. The petitioner alone entered the witness box and deposed in accordance with the pleadings in her complaint. However, the respondent did not examine any witnesses and thus did not rebut the evidence led by the petitioner. The learned Labour Court thereafter heard parties and allowed the complaint directing the respondent to reinstate her with continuity of service and full back wages. The respondent did not file any documentary evidence in support of its case before the Labour Court.

4. The respondent Corporation challenged the Judgment of the Labour Court by filing Revision under Section 44 of MRTU and PULP Act, 1971 before the Industrial Court, Nagpur Bench, Nagpur vide Revision (ULPA) No.339/2002. The learned Industrial Court reversed the Judgment and order of the Labour Court. It held that the petitioner was a part time sweeper till the date of her termination and part time workman is not entitled to the benefits of Section 25-F or 25-G of the Industrial Disputes Act relying on a decision rendered by the Division Bench of Punjab and Haryana High Court in the case of Lakhansingh Vs. Presiding Officer, Labour Court, Chandigarh reported in 1989 (Volume-2) CLR 801. The Industrial Court further found that the case in hand fell within the meaning of Section 2(oo)(bb) of the Industrial Disputes Act and, therefore, there was no retrenchment as the petitioner was specifically made aware that her appointment was on contract basis. It is on this premise the learned Industrial Court set aside the Judgment of the Labour Court. This Revisional order is under challenge in the present writ petition.

5. At the outset, at the beginning of the hearing of the writ petition, I asked the counsel for the respondent as to whether the petitioner can be accommodated and allowed to work in the same manner as she was working, looking to the fact that she was performing the work of sweeping the premises of the Corporation and the Corporation must not have stopped the work of seeping the premises and cleaning the toilets and further looking at the dire need of a widow and her two children. The learned counsel, however, expressed his inability to do so and vehemently argued that the recent decisions of the Supreme Court do not permit in law such type of indulgence. I, therefore, put it to the counsel for the parties that hearing of the Civil Application No.2821/2004 for directions and Civil Application No.1209/2006 for final hearing of the writ petition which were actually listed for necessary orders would consume the same time as would be for final hearing. The counsel for both the parties agreed and consented before me for final hearing of the writ petition and accordingly I have taken this writ petition for final disposal. Under my earlier order dated 06-04-2007, a notice for final disposal was also given.

6. Mrs. A. P. Shinde, learned counsel for the petitioner submitted:

(i) That the Industrial Court under revisional power under Section 44 of the MRTU and PULP Act clearly committed an error in setting aside a well reasoned Judgment and Order of the Labour Court on a ground which was never pressed into service before the Labour Court as is clear from the reading of the Judgment of the Labour Court.

(ii) The Industrial Court's power under section 44 is merely supervisory and in this case it has exceeded its jurisdiction.

(iii) The second reason adopted by the Industrial Court that the case in hand was covered under section 2(oo)(bb) of the Industrial Disputes Act could not have been considered because the said point was never pressed into service before the Labour Court nor any issue to that effect was framed by the Labour Court.

(iv) The petitioner established her case by oral as well as documentary evidence and Labour Court also recorded a finding of fact based on evidence that the petitioner completed more than 240 days continuous service in each year and her termination was in violation of the provisions under section 25-F and 25-G of the Industrial Disputes Act, 1947. The respondent Corporation did not even adduce any evidence in rebuttal and, therefore, Industrial Court could not have interfered with the order of the Labour Court. She then submitted that the alleged employment of the petitioner on contract or honorarium or for a particular period is a camouflage and since regular nature of work of sweeping and cleaning was available, the petitioner was asked to work throughout till the date of her termination. Hence, it cannot be said that the work was not available.

(v) She then invited my attention to the averments in Civil Application No.1209/2006 that two persons viz. Anil Badalwar and Ramabai Shendre are working who were appointed after her termination. She also invited my attention to the averments in the affidavit dated 20th October, 2004 that one Balaji Kokawar was also appointed. However, I told the counsel for the parties that it was not possible for me look into the affidavits or the contents thereof which were never before the lower courts and hence the petition would be decided on the basis of the record and proceedings of the lower court. Mrs. Shinde, the learned counsel for the petitioner relied upon the following decisions.

(i) (2006)1 S.C.C. 107 (R. M. Yellatti Vs. Asstt. Executive Engineer);

(ii) 1999(1) I.L.L.J. 116 (Manjunatha Rao K.V. & Others Vs. Karnataka Vidyuth Karkhane Ltd. & Others).

(vi) Inviting my attention to the settlement filed with C.A. No.2821/04 she argued that petitioner has to be absorbed in time scale having completed 180 days in service.

7. Per contra, Mr. S. C. Mehadia, learned counsel for the respondent submitted:

(i) In the very first paragraph of her complaint, the petitioner has stated that she is a part time sweeper and she being a part time cannot complain of breach of Section 25-F and 25-G of the Industrial Disputes Act;

(ii) The petitioner was working admittedly as is clear from Exh.18 and 19 on contract basis on a fixed honorarium and, therefore, there was no contract of service between the petitioner and the respondent and no relationship of employer and employees;

(iii) Even otherwise contract worker has no legal right to claim the protection of Sections 25-F and 25-G of the Industrial Disputes Act;

(iv) Having agreed to accept the contract, it is not open to the petitioner to claim to be an employee of the respondent corporation and demand reinstatement in service;

(v) The respondent is a Public Sector Organization and no appointment is made without following selection procedure;

(vi) The petitioner was not appointed in accordance with the selection procedure and, therefore, her appointment being illegal she was not entitled to any relief either of reinstatement and regularization.

(vii) The respondent being a Public Sector Organization unless there are sanctioned posts and proper selection procedure is followed no relief of reinstatement of regularization can be claimed by the petitioner and this is what has been now held by the Hon'ble Supreme Court of India in the Constitution Bench Judgment in the case of The Secretary, State of Karnataka Vs. Umadevi and others, reported in (2006)4 S.C.C. 1 and followed by the Hon'ble Supreme Court in the case of National Fertilizer reported in 2006(5) SCC 493. Mr. Mehadia also cited several Judgments of the Supreme Court on the line of Umadevi's decision; all of which I need not quote but all of which are related to the issue regarding regularization. Mr. Mehadia also relied on the decision of the Supreme Court in the case of Reserve Bank of India Vs. Gopinath Sharma and another reported in 2006(6) SCC 221 and argued that a daily wager/workman not appointed to any regular post but engaged on the basis of need of work on day to day basis had no right to the post and hence disengagement of such a workman could not be treated as a wrongful dismissal.

8. Even if, there was neither any pleading nor evidence oral or documentary before the Labour Court from the respondent that the appointment of the petitioner was made without following the due selection procedure and without there being any post, this Court should presume that the respondent being a Public Sector Undertaking there has to be Recruitment Rules and the burden of proof to show that the petitioner was appointed by following selection procedure as per the Rules was on her and, therefore, this Court should with full force apply the decision of the Supreme Court in the case of Umadevi (cited supra) and the other decisions of the Supreme Court which followed the decision of Umadevi and dismiss the writ petition accordingly.

9. A glance at the Constitutional provisions relating to women and children would be necessary. Article 39 of the Constitution reads thus:-

"39. Certain principles of policy to be followed by the State.- The State shall, in particular, direct its policy towards securing-

(a) that the citizens, men and women equally, have the right to an adequate means of livelihood;

(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;

(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;

(d) that there is equal pay for equal work for both men and women;

(e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessarily to enter avocations unsuited to their age or strength;

(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment." (Emphasis supplied)

Article 46 of the Constitution reads as under:-

"46. Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections.- The State shall promote with special care the educational and economic interests of the weaker sections of the people, and in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation."

Article 14 of the Constitution reads as under:-

"14. Equality before law.- The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."

10. Now, the Supreme Court in the case of Madhu Kishwar & ors. Vs. State of Bihar & ors., (1996)5 SCC 125 observed in paragraph 37 as under:-

"The public policy and constitutional philosophy envisaged under Articles 38, 39, 46 and 15(1) and (3) and 14 is to accord social and economic democracy to women as assured in the Preamble of the Constitution. They constitute the core foundation for economic empowerment and social justice to women for stability of political democracy. In other words, they drown upon gender discrimination and aim at elimination of obstacles to enjoy social, economic, political and cultural rights on equal footing. Law is a living organism and its utility depends on its vitality and ability to serve as sustaining pillar of society. Contours of law in an evolving society must constantly keep changing as citilization and culture advances. The customs and mores must undergo change with the march of time. Justice to individual is one of the highest interests of the democratic State. Judiciary cannot protect the interest of the common man unless it would redefine the protection of the Constitution and the common law. If law is to adapt itself to the needs of the changing society, it must be flexible and adaptable."

Keeping in mind the constitutional provisions and the above observations of the Hon'ble Apex Court, I feel, it is the duty of this Court to balance the interest of a poor woman and her small children as against a mighty Public Corporation and to achieve distributive justice.

11. In interpreting "Welfare Labour Legislations" the Supreme has held in Surendra Kumar Verma & ors. Vs. Central Government Industrial Tribunal-cum-Labour Court, New Delhi & anr. reported in (1980)4 SCC 443 as under:-

"6...... Semantic luxuries are misplaced in the interpretation of 'bread and butter' statutes. Welfare statutes must, of necessity, receive a broad interpretation. Where legislation is designed to give relief against certain kinds of mischief, the court is not to make inroads by making etymological excursions. 'Void ab initio', 'invalid and inoperative' or call it what you will, the workmen and the employer are primarily concerned with the consequence of striking down the order of termination of the services of the workmen. Plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen..."

Following the above decision, the Apex Court in U.P. Drugs & Pharmaceuticals Co. Ltd. Vs. Ramanuj Yadav & ors., (2003)8 SCC 334 held as under:-

"10. Under the aforesaid legislative background, the question involved is required to be reconsidered. Section 2(g) of the U.P. Act does not require a workman, to avail the benefit of the deeming provision of completion of one year of continuous service in the industry, to have worked for 240 days during the "preceding" period of twelve calendar months. The word "preceding" has been used in Section 25-B of the ID Act as incorporated in the year 1964. Section 2(g) does not use the word "preceding". The concept of "preceding" was introduced in the ID Act so as to give complete and meaningful benefit of the welfare legislation to the working class. The approach to be borne in mind while interpreting the welfare legislation is illustrated in Surendra Kumar Verma Vs. Central Govt. Industrial Tribunal-cum-Labour Court where this Court has observed that semantic luxuries are misplaced in the interpretation of "bread-and-butter" statutes. Welfare statutes must, of necessity, receive a broad interpretation. Where legislation is designed to give relief against certain kinds of mischief, the court is not to make inroads by making etymological excursions." (Emphasis supplied)

12. In Silver Jubilee Tailoring House & ors. Vs. Chief Inspector of Shops and Establishments and anr. (AIR 1974 SC 37), the Supreme Court in paragraphs 37 and 38 made the following observations :

"37. That some of the employees take up the work from other tailoring establishments and do that work also in the shop to which they generally attend for work, as spoken to by the proprietor in his evidence, would not in any way militate against their being employees of the proprietor of the shop where they attend for work. A person can be a servant of more than one employer. A servant need not be under the exclusive control of one master. He can be employed under more than one employer (See: "The G.H.L. Fridman P.18, and also Between Patwardhan Tailors, Poona and Their Workmen (1960)1 Lab LJ 722 at p.726."

38. That, the workers are not obliged to work for the whole day in the shop is not very material. There is of course no reason why a person who is only employed part time, should not be a servant and it is doubtful whether regular part time service can be considered even prima facie to suggest anything other than a contract of service. According to the definition in S.2(14) of the Act, even if a person is not wholly employed, if he is principally employed in connection with the business of the shop, he will be "person employed" within the meaning of the sub-section. Therefore, even if he accepts some work from other tailoring establishments or does not work whole time in a particular establishment, that would not in any way derogate from his being employed in the shop where he is principally employed."

13. In M/s. Shining Tailors Vs. Industrial Tribunal II, UP, Lucknow & ors. (AIR 1984 SC 23), after following the judgment in Silver Jubilee's case (supra), the Supreme Court observed thus -

"... The Tribunal ignored the well laid test in law and completely misdirected itself by showing that piece rate itself indicates a relationship of independent contractor and error apparent on the record disclosing a total lack of knowledge of the method of payment in various occupations in different industries. The right of rejection coupled with the right to refuse work would certainly establish master servant relationship and both these tests are amply satisfied in the facts of this case. Viewed from this angle, the respondents were the workmen of the employer and the preliminary objection therefore raised on behalf of the appellant-employer was untenable and ought to have been overruled and we hereby overrule it."

From the above judgments, it is clear that even piece-rated workers are "workmen".

14. In Govindbhai Kanabhai Maru Vs. N. K. Desai (1988 Lab.I.C. 505), the Gujarat High Court observed in paragraph 6 as under:-

".... Mr. Padival has urged that the term "workman" defined in S.2(s) of the Act, is very wide and includes all persons who are employed in industry, including even an apprentice. He has also urged that even a part time employee is covered by this definition of "workman". For this proposition, he relies on a Division Bench judgment of this court in Special Civil Appln. No.3063/86 (Coram: P. R. Gokulkrishnan CJ & R. A. Mehta, J.) (decided on 18th June, 1986. It has held as under:

"It is clear from the facts of the case that the doctor who was doing part time job for over 18 years can be easily considered as a "workman" under the Industrial Disputes Act. The honorarium paid, in our opinion, will squarely come under the definition of "wages" under S.2(rr) of the Industrial Disputes Act."

This court in respectful agreement with the said judgment of the Division Bench. The definition of "workman" in the Act is couched in sufficiently wide terms so as to include even the part time employees who have been in service over a long period. Therefore, it is held that the present petitioner falls within the definition and he should be treated as workman under the Act." (emphasis supplied)

15. Now, turning to the definitions. Section 2(s) of the Industrial Disputes Act defines "workman" as under :-

" "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under the Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of that dispute or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-

(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or

(ii) who is employed in the police service or as an officer or other employee of a prison, or

(iii) who is employed mainly in a managerial or administrative capacity, or

(iv) who being employed in a supervisory capacity, draws wages exceeding six thousand five hundred per mensem or exercises, either by the nature of the duties attached to the office or by reason of the power vested in him, functions mainly of a managerial nature."

Section 3(5) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 defines "employee" as under :-

" "employee" in relation to an industry to which the Bombay Act for the time being applies, means an employee as defined in clause (13) of section 3 of the Bombay Act, and in any other case, means a workman as defined in clause (s) of section 2 of the Central Act and a sales promotion employee as defined in clause (d) of section 2 of the Sales Promotion Employees (Conditions of Service) Act, 1976."

16. Thus, if master and servant relationship is established, there is absolutely nothing in the above definitions which would indicate that 'part time' workers/employees are not included or that they are excluded from the above definition.

17. Honourable Mr. Justice B. N. Srikrishna (as he then was), an authority on Labour & Industrial Law, thwarted a similar attempt, when it was argued that workers on nominal muster roll are not entitled to protection of the provisions of the Industrial Disputes Act. He said in paragraph 10 in the case of MSEB Workers Federation, Pune Vs. MSEB & ors. reported in 1995(II) CLR 588 thus -

"Mr. Baxi, learned Advocate appearing for the first respondent-Board strenuously contended that the 8 retrenched workmen were N.M.R. employees, who had admittedly put in less than five years' continuous service and, therefore, they were not entitled to get several benefits like permanency and others flowing from permanency. Consequently, in her submission, section 25-G of the Industrial Disputes Act, 1947 itself would not apply to the case of the 8 retrenched workmen. It is not possible to accept this contention. The provisions of Section 25-G of the I.D. Act are attracted as soon as a "workman" is "retrenched" from service after completion of one year's continuous service. That the 8 workmen had completed one year's continuous service is not in dispute. That the situation was one of "retrenchment" is also not in dispute. If that be so, Section 25-G of the I.D. Act makes no distinction between permanent or non-permanent employees, but is only concerned with whether the person retrenched is a 'workman' and has completed one year's continuous service within the meaning of Section 25-B of the I.D. Act. Further, the expression "workman" defined in Section 2(s) of I.D. Act, does not make any distinction between a permanent or a non-permanent employee. The contention, therefore, is unsound and has to be rejected." (Emphasis supplied)

18. In the light of the various decisions quoted above and keeping in mind the manner of interpreting "Welfare Labour Legislations" I prefer to hold that even a part-time worker is a workman/employee and is entitled to the protection of the provisions of the Industrial Disputes Act. I do not prefer to follow the Division Bench judgment of the Punjab and Haryana High Court in Lakhansingh Vs. Presiding Officer, Labour Court, Chandigarh (supra) or of the Andhra Pradesh High Court in Rangamannar Chetti (G) Vs. Industrial Court, Hydrabad (AIR 1960 AP 371) but would like to fall in line with the judgment of the Gujarat High Court in the case of Govindbhai Kanabhai Maru Vs. N. K. Desai.

19. Now, coming to the next contention that petitioner was a contract-employee or was appointed on contract basis and that she had accepted that she would not claim any right, I must notice the finding of fact recorded by the Labour Court in para 7, which is as under :-

".... The respondent has not filed any agreement in respect of contract of work. There is no document filed on record by respondent to show that there was contract between complainant and respondent for sweeping. The nature of work of sweeping is of permanent nature. Even if there is contract that contract is sham and bogus. It was not genuine contract as per Contract Labour Act. The respondent has not filed any document to show that there was contract between complainant and respondent...."

Thus, it is clear that the respondent did not produce the alleged agreement or tender any oral evidence before the Labour Court in support of the said contention. In this writ petition, with return a photo copy of agreement dated 07-06-1989 (Annexure R-I) is filed. This document not being placed on record of the Labour Court nor proved, cannot be taken into consideration at all. Even then, having gone through the same, I find that it is not for any specific period. It then says that the petitioner will abide by the rules & regulations of the Corporation. If her work is not found to be satisfactory, Divisional Controller, MSRTC, Chandrapur will be competent to retrench her. Now, on the basis of this document appointment order dated 08-06-1989 (Exhibit-18) appears to have been issued, until further orders. Another order dated 01-04-1991 (Exhibit-19) does not at all refer to any agreement or even the said agreement which means the agreement dated 26-01-1989 came to an end before 01-04-1991. Hence, at least after 01-04-1991, there was no contract. In the case of Gujarat Electricity Board, Thermal Power Station, Ukasi Vs. Hind Mazdoor Sabha & ors. (AIR 1995 SC 1893). Para 27 of the said judgment reads thus -

"While parting with these matters, we cannot help expressing our dismay over the fact that even the undertakings in the public sector have been indulging in unfair labour practice by engaging contract labours when workmen can be employed directly even according to the tests laid down by section 10(2) of the Act. The only ostensible purpose in engaging the contract labour instead of the direct employing is the monetary advantage by reducing the expenditure. Apart from the fact that it is an unfair labour practice, it is also an economically short sighted and unsound policy, both from the point of view of the undertakings concerned and the country as a whole. The economic growth is not to be measured only in terms of production and profits. It has to be gauged primarily in terms of employment and earnings of the people. Man has to be the focal point of development. The attitude adopted by the undertakings is inconsistent with the need to reduce unemployment and the Government policy declared from time to time to give jobs to the unemployed. This is apart from the mandate of the directive principles contained in Arts.38, 39, 41, 42, 43 and 47 of our Constitution."

Lifting the veil, I hold that mere mention of work on contract in Ex.18 and Ex.19 was a mere camouflage and hence master and servant relationship stands established.

20. Now, coming to the next contention about the applicability of Section 2(oo)(bb) of the Industrial Disputes Act, I find that no proper pleadings were at all set out in the Written Statement by the respondent nor a single documentary evidence to prove the same was produced. None entered the witness box for the respondent to tender oral evidence. There is no material on record to show that the appointment was short lived or was made for a specific period. There is nothing on record to show that the Corporation stopped the work of sweeping and cleaning toilets or that the officers and staff of the Corporation following Gandhian philosophy have started sweeping the offices and cleaning toilets. I, therefore, find that respondent terminated the services of the petitioner for patently false reasons. In case of General Manager, Haryana Roadways Vs. Rudhan Singh, (2005)5 SCC 591 the Apex Court observed as under:

"4. Learned counsel for the appellant has submitted that the respondent had been appointed for a fixed period and his appointment came to an automatic end after the expiry of the period and, therefore it was not a case of retrenchment in view of section 2(oo)(bb) of the Act. It is true that in view of the aforesaid provision, the termination of service of a workman as a result of non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein would not amount to retrenchment in view of section 2(oo)(bb) of the Act. However, such a plea that had been taken in the written statement does not appear to have been pressed before the Industrial Tribunal-cum-Labour Court nor the award shows that any evidence was led to substantiate such a plea that the respondent had been engaged on contract for a fixed period or his contractual employment had come to an end in accordance with any stipulation contained therein in that behalf." (emphasis supplied).

21. In the case of S. M. Nilajkar & ors. Vs. Telecom District Manager, Karnataka reported in (2003)4 SCC 27 the Supreme Court observed as under:-

"14....... To exclude the termination of a scheme or project employee from the definition of retrenchment it is for the employer to prove the abovesaid ingredient so as to attract the applicability of sub-clause (bb) above said. In the case at hand, the respondent employer has failed in alleging and proving the ingredient of sub-clause (bb), as stated hereinabove. All that has been proved is that the appellants were engaged as casual workers or daily-wagers in a project. For want of proof attracting applicability of sub-clause (bb), it has to be held that the termination of the services of the appellant amounted to retrenchment." (emphasis supplied)

22. In my opinion, there is an attempt to misuse the provisions of Section 2(oo)(bb) of the Industrial Disputes Act, 1947. The said provision was brought on the Statute Book with a specific object that fixed tenure appointment or short-lived appointments, or the appointment on fixed time projects or availability of work for a particular or specific period, should not fall within the concept of retrenchment. However, I find that the defence about applicability of Section 2(oo)(bb) of the Industrial Disputes Act is being freely taken. I, therefore, reject the said contention. The whole action is arbitrary to say the least.

23. Lastly, coming to the contentions based on the Constitutional Bench judgment of the Apex Court in the case of Umadevi (supra), I must mention that there is absolutely no pleading or proof to show that there are any recruitment rules for appointing a part-time sweeper to clean the offices and toilets, nor any particular prescribed selection procedure was shown to me. There is no pleading or evidence that petitioner was illegally appointed. No rules showing required qualification or experience for a sweeper have been shown to me. I do not believe that there are any recruitment rules of the Corporation for appointing a part-time sweeper on a paltry sum of Rs.550/- per month. No issue was framed. I do not feel that the terminology "public employment", "back-door entry", "illegal appointment", "financial implications on the State" as projected before me by Mr. Mehadia the learned counsel for respondent has any relevance in the present case of a poor and distressed widow who took the "job" having been caught in a typical situation. The public enterprise like the respondent must work keeping in mind the 'Human face'. I fail to understand the argument that even without any pleadings, the Apex Court judgment should be applied.

24. In the case of Shankar Chakravarti Vs. Britannia Biscuit Co. Ltd. & anr. (AIR 1979 SC 1652), the Supreme Court observed as under :-

"31. If such be the duties and functions of the Industrial Tribunal or the Labour Court, any party appearing before it must make a claim or demur the claim of the other side and when there is a burden upon it to prove or establish the fact so as to invite a decision in its favour, it has to lead evidence. The quasi-judicial Tribunal is not required to advise the party either about its rights or what it should do or omit to do. Obligation to lead evidence to establish an allegation made by a party is on the party making the allegation. The test would be who would fail if no evidence is led. It must seek an opportunity to lead evidence and lead evidence. A contention to substantiate which evidence is necessity has to be pleaded. If there is no pleading raising a contention, there is no question of substantiating such a non-existing contention by evidence. It is well-settled that allegation which is not pleaded even if there is evidence in support of it cannot be examined because the other side has no notice of it and if entertained it would tantamount to granting an unfair advantage to the first mentioned party. We are not unmindful of the fact that pleadings before such bodies have not to be read strictly, but it is equally true that the pleadings must be such as to give sufficient notice to the other party of the case it is called upon to meet. This view expressed in Tin Printers (Pvt.) Ltd. Vs. Industrial Tribunal (1967)2 Lab.LJ 677 at p.680 (Punj), commends to us. The rules of fairplay demand that where a party seeks to establish a contention which if proved would be sufficient to deny relief to the opposite side, such a contention has to be specifically pleaded and then proved. But there is no pleading there is no question of proving something which is not pleaded. This is very elementary."

"32. Can it for a moment be suggested that this elementary principle does not inform industrial adjudication? The answer must be an emphatic no."

25. I, therefore, reject the argument that Umadevi's case should be straightway applied even in the absence of required pleadings and proof. The decision in the case of Reserve Bank of India Vs. Gopinath Sharma & anr. reported in (2006)6 SCC 221 has no application at all. In that case the workman had directly filed writ petition in the High Court against the order of his termination. The High Court had ignored the stand taken by the employer that the employee did not complete even 240 days (see para 10). The Apex Court then found in para 24 that the employee had completed only 58 days. The workman in that case was engaged on day-to-day basis and that the High Court had failed to consider that the system of engagement of tikka mazdoor was abolished in 1993 which fact was brought to the notice of the High Court by way of counter-affidavit, but was not considered by the High Court. The facts are, therefore, totally different and hence the said decision is not applicable in the present case.

26. Mr. Mehadia did not contest the findings of the Labour Court on the violation of Sections 25-F, 25-G and rule 81 and hence I confirm the said findings as they are even otherwise correct.

27. The contention of Mrs. Shinde on the basis of item 49 of Settlement dated 25-04-1956 for time scale, cannot be considered in this writ petition. The petitioner may have her appropriate remedy to make the said claim, which in the light of the recent Supreme Court decision dated 27-02-2007 may help her.

28. To conclude, the writ petition will have to be allowed. The impugned judgment and order of the Industrial Court dated 01-07-2003 is quashed and set aside and the judgment and order of the Labour Court dated 20-06-2002 is restored. Considering the fact that the amount of back-wages would be small, I do not interfere with the order of award of full back-wages in the light of the long sufferings of the petitioner. What about costs? Considering the entire episode and the complicity of the respondent, a public undertaking litigating against a weakest citizen depriving her and her children of bread for the last twelve years, I impose exemplary costs of Rs.10,000/- on the respondent payable to the petitioner within four weeks from today. The entire amount of back-wages and costs shall be paid to the petitioner by depositing the same by demand draft in her bank account which, if not opened, shall be opened with the assistance of the Labour Court, Chandrapur who shall oversee that the entire amount goes to the petitioner. The respondent Corporation is directed to reinstate and pay the petitioner the amount of back wages and the costs within four weeks from today in her post as part-time sweeper. Rule made absolute in terms of prayers (1) and (2) of the petition.

Petition allowed.