Writ Petition No.7325 of 2010

20th April, 2011

Petitioner Counsel: Mr. RAJENDRA DESHMUKH
Respondent Counsel: Mrs. V. A. SHINDE

Cases Cited:
Bhartiya Sanchar Nigam Limited, Pune Vs. Balasaheb Maruti Pujari, 2006(5) Mh.L.J. 314 [Para 1]
Himanshu Kumar Vidyarthi Vs. State of Bihar, 1977(II) CLR 15 [Para 1]
Director, Fisheries Terminal Division Vs. Bhikubhai Meghajibhai Chavda, AIR 2010 SC 1236 [Para 2,4]
Divisional Secretary, Maharashtra State Board of Secondary and Higher Secondary Education Vs. Mohd. Naik Abdul Rahim, 2009 (Supp.) Bom.C.R. 405 [Para 4]
Devinder Singh Vs. Municipal Council, Sanaur, MANU/SC/0426/2011 [Para 5]
Harjinder Singh Vs. Punjab State Warehousing Corporation, 2010 ALL SCR 593 : (2010)3 SCC 192 [Para 5]
Anoop Sharma Vs. Public Health Division, Haryana, (2010)5 SCC 497 [Para 5]

JUDGMENT

JUDGMENT :- The employee has filed present writ petition challenging the judgment dated 29th July, 2010 delivered by Industrial Court, Aurangabad in Revision (ULP) No.29 of 2008 thereby reversing the judgment dated 2nd February, 2008 passed by Labour Court, Aurangabad in Complaint (ULP) No.399 of 1994. The Labour Court found termination of petitioner from 31st October, 1994 an unfair labour practice and, therefore, granted him relief of reinstatement with continuity. There is no mention about back-wages in that judgment. This judgment was questioned by Respondent/employer by filing revision under section 44 of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practice Act and Industrial Court has after considering various judgments cited before it, more particularly the judgment in the case of "Bhartiya Sanchar Nigam Limited, Pune Vs. Balasaheb Maruti Pujari & another" reported in 2006(5) Mh.L.J. 314 and the judgment of Honourable Apex Court in the case of "Himanshu Kumar Vidyarthi & others Vs. State of Bhihar & others" reported in 1977(II) CLR 15, found that termination of a daily wager did not constitute retrenchment and in any case no relief of reinstatement could have been given to him. The judgments cited on behalf of petitioner/employee were found not applicable.

2. Shri. Deshmukh has contended that when continuous service of more than 240 days and the employee has proved his entitle to relief of reinstatement and burden to show such continuous service is not on such workman but it is on employer. He is placing reliance on judgment of Honourable Apex Court in the case of "Director, Fisheries Terminal Division Vs. Bhikubhai Meghajibhai Chavda" reported in AIR 2010 SC 1236 for said purpose.

3. Learned A.G.P. has supported the view of Industrial Court. According to her, being daily-wager there is no question of such workman holding any post and hence he is not entitled to relief of reinstatement or back-wages. The provisions of section 25-F or 25-G and violation thereof is not material when employment with Respondent is public employment.

4. After hearing respective parties I am satisfied that the Industrial Court has not correctly applied the law on the point. The subsequent judgments of Honourable Apex Court holding that violation of section 25-F itself entitles workman to appropriate relief could not be pointed out and have not been looked into in judgment in the case of "Divisional Secretary, Maharashtra State Board of Secondary and Higher Secondary Education & anr. Vs. Mohd. Naik Abdul Rahim" reported in 2009 (Supp.) Bom.C.R. 405. I had also no occasion to look into those judgments. The judgment in the case of "Director, Fisheries Terminal Division Vs. Bhikubhai Meghajibhai Chvada (supra) considers the question of burden of proof and notices that it would be difficult for a workman to have access to all official documents and to show completion of 240 days. But, then, Honourable Apex Court has also noted that if basic burden in this respect is discharged by workman it shifts to employer. The facts therein show that the workman before Labour Court claimed employment on daily wages as a Watchman from 1st December, 1985 and he continued till 1988. The Labour Court had drawn adverse inference against the employer and recorded a finding of completion of 240 days by him. It, therefore, granted him relief of reinstatement with 20% back-wages. This was then questioned by employer before High Court and High Court accepted the Award of Labour Court. Said judgment of High Court was then questioned before Honourable Apex Court. Honourable Apex Court has dismissed the appeal and upheld the order of Labour Court.

5. Recently, in MANU/SC/0426/2011 - Devinder Singh Vs. Municipal Council, Sanaur, Honourable Apex Court has occasion to consider its later two judgments referred to by me above. Those judgments are - "Harjinder Singh Vs. Punjab State Warehousing Corporation" reported in (2010)3 SCC 192 : [2010 ALL SCR 593] and "Anoop Sharma Vs. Public Health Division, Haryana" reported in (2010)5 SCC 497.

I find it appropriate to reproduce the words of Honourable Court itself.

"7. Shri. R. L. Batta, learned senior counsel for the Appellant argued that the impugned order is liable to be set aside because while interfering with the award of the Labour Court, the Division Bench of the High Court ignored the judicially recognised parameters for the exercise of power under Article 226 of the Constitution. Learned senior counsel further argued that the High Court was not justified in upsetting the award of reinstatement simply because there was some time gap between reference of the dispute by the State Government and adjudication thereof by the Labour Court. Learned senior counsel then relied upon the judgments of this Court in Harjinder Singh Vs. Punjab State Warehousing Corporation - (2010)3 SCC 192 and Anoop Sharma Vs. Public Health Division, Haryana - (2010)5 SCC 497 and argued that the Labour Court did not commit any illegality by ordering reinstatement of the Appellant because his service was terminated in clear violation of Sections 25-F and 25-G of the Act.

10. The definition of the term "retrenchment" is quite comprehensive. It covers every type of termination of the service of a workman by the employer for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action. The cases of voluntary retirement of the workman, retirement on reaching the age of superannuation, termination of service as a result of non-renewal of the contract of employment or of such contract being terminated under a stipulation contained therein or termination of the service of a workman on the ground of continued ill-health also do not fall within the ambit of retrenchment.

13. The source of employment, the method of recruitment, the terms and conditions of employment/contract of service, the quantum of wages/pay and the mode of payment are not at all relevant for deciding whether or not a person is a workman within the meaning of Section 2(s) of the Act.

21. In Anoop Sharma Vs. Executive Engineer, Public Health Division, Haryana (supra), the Court considered the effect of violation of Section 25-F, referred to various precedents on the subject and held the termination of service of a workman without complying with the mandatory provisions contained in Section 25-F(a) and (b) should ordinarily result in his reinstatement.

28. In the result, the appeal is allowed. The impugned order is set aside and the award passed by the Labour Court for reinstatement of the Appellant is restored. If the Respondent shall reinstate the Appellant within a period of four weeks from today, the Appellant shall also be entitled to wages for the period between the date of award and the date of actual reinstatement. The Respondent shall pay the arrears to the Appellant within a period of three months from the date of receipt/production of the copy of this order."

6. In this view of the matter, I do not find it necessary to go into more details, at this stage. Neither Labour Court nor Industrial Court has looked into the relevant evidence in the light of the law as laid down. The petitioner, though a daily wagers, can be reinstated in same capacity as a daily wager or then can be compensated in accordance with law. It cannot be ignored here that petitioner claims to have worked continuously from 1989 to 1994. In this situation, I find it proper to place the matter back before Labour Court. For that purpose, the judgment dated 29th July, 2010 delivered by Industrial Court in Revision No.29 of 2008 and judgment dated 2nd February, 2008 by Labour Court in Complaint (ULP) No.399 of 1994 is quashed and set aside.

7. Parties are directed to appear before the Labour Court on 12th May, 2011. Labour Court shall, after giving parties opportunity to amend their pleadings and lead additional evidence, if they are so advised, attempt to decide the complaint as early as possible and in any case by 30th September, 2011.

8. Mr. Deshmukh states that because of interim orders continued by this Court, the petitioner is in service. Hence, during pendency of the complaint, respondents shall continue to provide him work on daily wages, as before.

9. Rule is made absolute. No costs.

Petition allowed.