1998 Supreme(Bom) 39

IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
B.H. Marlapalle, J.
The State of Maharashtra ..... Petitioner.
Versus
Dnyaneshwar Rakmaji Aher another .... Respondents.
Writ Petition No. 2493 of 1995, decided on 20-1-1998.
Advocates appeared :
S.C. Chillarge, A.G.P., for petitioners.
S.T. Shelke, for the respondent No. 1.

Headnote:Article 227-See Industrial Dispute Act, 1947, Sections 2(a), 10, 12, 25 and 25-E

       Sections 2(a), 10, 12, 25 and 25F-Constitution of India- Termination of service-Reinstatement sought after 5 years reference allowed-Noncompliance of Sections. 25 & 25-F of Act-Held-When re-employment was sought then there was no dispute regarding earlier disengagement from service and the respondent requested for fresh employment due to some changed circumstances.-Before, the labour Court, the respondent contended that he had completed about six years of service in Kukadi Irrigation Project. Division No.2 Narayangaon, as Unskilled Labour on daily wages and he was illegally terminated on 31.5.1985. The respondent, therefore, claimed that the alleged termination was illegal as there was no notice, no notice was given and no compensation was paid to him, even though he had completed more than 240 days of service, during the preceding twelve months, before the date of alleged illegal termination. The petitioner opposed the demand by filing a written statement and stated that it was not a case of termination, but, the respondent himself did not turn at any time after 25.3.1985 for work and he kept mum for about five years. It was further submitted that as there was no case of termination, at the hands of petitioners, the question of illegal termination did not arise either with or without notice and payment of compensation. The petitioners seem to have also relied upon a chart of statement showing details of employment of respondent during the period from 22.3.1979 to 25.3.1985 and the petitioners finally had prayed that as there was no case of alleged termination, alone retrenchment, the reference was devoid of merits and same ought to be rejected on that ground alone. However, the Labour Court, Ahmednagar, on hearing both the parties and on perusal of the oral and documentary evidence, referred to hereinabove, directed to reinstate the respondent with continuity in service and full back wages w.e.f. 14.6.1990.

       This petition was admitted on 14.6.1990 and the impugned Award was stayed, as a result of which, the respondent has not been reinstated till this date, it is clear that the respondent was working as unskilled labour on daily wages under the Kukadi Irrigation Project, Division No.2, Narayangaon, during the period from 22.3.1979 to 25.3.1985. The application of the respondent dt. 14.6.1990, made for the first time after 25.3.1985, for the reemployment was replied to by the petitioner on 25.6.1990. It was clearly stated that this case for re- employment could not be considered because no work was available. It is evident from this letter dt. 25.6.1990 that the Kukadi Irrigation Project, Division No.2, Narayangaon, was closed. The Labour Court has allowed the reference on the ground that the petitioner did not comply with the requirement of Section 25F and 25-G of the Act. On the point of the objections regarding the delay in raising the demand, as contended by the petitioner, the Labour Court held that the concept of limitation is unknown to the proceedings under the Act. However, o~ the main issue, regarding the contention of the petitioners that it did not terminate the service of the respondent and that the he himself did not remain present for work on and after 25.3.1985 and this action of the respondent in itself went to prove that he was not interested in the service of the petitioners, no findings have been recorded. Even while framing the issues in the impugned order, the learned Judge of the Labour Court has proceeded on the presumption that there was termination of service of the respondent at the hands of the petitioners.

       The respondent submitted that possibility of review of the earlier two judgments of the Supreme Court viz., Executive Engineer State of Karnataka and Union of India v. Jaynarayan Singh, can not be ruled out though the respondent was not very sure whether there is any review pending before the apex Court on the said decisions. He urged that the issue whether the irrigation department is an industry or not has to be decided on the basis of the law laid down by the apex Court in the case of Bangalore Water Supply Board, AIR 1978 SC 548, as the present petition succeeds on the points raised before the Conciliation Officer as well as Labour Court viz., it is not necessary to record a finding on the issue raised for the first time by the petitioners before this Court, that the irrigation department is not an industry, as within the meaning of the Act.

       Sections 2-A, 10(1), 12(3), 25-F and 25- G-Reinstatement of respondent employee with continuity in service and backwages-Respondent being unskilled labour an daily wages in project-After serving for about 5 years left service on own and after next 5 years applied for re-employment-Reject as projected was closed-On reference labour Court allowed his claim for reinstatement and backwages- Validity-Held, not valid as his services were not terminated but instead employee himself remained absent for five years from service-Moreover project also closed-Hence award of labour Court quashed and petition of Department allowed.

       Section 10-Absent from duty since 9 years without any reason-Demand of reinstatement in service-Reference to adjudicate a demand which was stale and fabricated by officer-Reference by Conciliation Officer-Not proper-Granting relief ultra vires.-As there was no dispute regarding the alleged termination of service for a period of five years, as is clearly demonstrated by the behaviour of the respondent, there was no occasion for the Conciliation Officer or the competent authority to make a reference for adjudication of such a demand which was not only stale but also fabricated, by way of an afterthought and/or to make a back-door entry in Government service.

       The impugned award suffers from errors apparent on the face of the record. The order passed by the Labour Court is not only illegal but has also resulted into miscarriage of justice. The petitioners, have made out a case for interference with the impugned award by this Court.

       Sections 10(1), 25 and 25-F Limitation Act, 1963, Section 3-Reinstatement-Belated demand after 5 years-Reference-Allowed by Labour Court-Limitation Act not applicable to Industrial disputes-Held-Such claims not to be encouraged unless delay are satisfactorily explained-Merely because a worker had completed 240 days of service, cannot be the basis for reinstatement.- The learned Judge of the Labour Court has granted reinstatement with continuity in service with full back wages, solely on the ground that the respondent had completed 240 days service in one year. This reasoning given by the Labour Court cannot be accepted in support of the impugned award in view of the law laid down by the Supreme Court in the case of, Delhi Development Horticulture Employees Union v Delhi Administration, AIR 1992 SC 789. The relevant observations of the Supreme Court, outlining the disastrous consequence, of such reliefs being granted on the basis of 240 days of service in one years, have been echoed by the apex Court in the following words :

       " Apart from the fact that the petitioners cannot be directed to be regularised for the reasons given above we may take note of the pernicious consequence to which the direction for regularisation of workmen on the only ground that they have put in more than 240 days has been leading. Although, there is Employment Exchange Act which requires recruitment on the basis of registration in the Employment Exchange it has become a common practice to ignore the Employment Exchange and the persons registered in the Employment Exchange, and to employ and got employed directly those who are either not registered with the Employment Exchange or who though registered are lower in the long waiting list in the Employment register. The courts can take judicial notice of the fact that such employment is sought and given directly for various illegal consideration including money. The employment is given first for temporary periods with technical breaks to circumvent the relevant rules, and is continued for 240 days or more days with a view to give the benefit or regularisation knowing the judicial trend that those who have completed 240 days are directed to the automatically regularised. A good deal of illegal employment market has developed resulting in a new source of corruption and frustration of those who are waiting at the Employment Exchange for years. Not at all those who gain such back door entry in the employment are in need of particular jobs. Though, already employed elsewhere, they join the jobs for better and secured prospects. That is why most of the cases which comes to the courts are of employment in Government Department, Public Undertakings or Agencies. Ultimately, it is the people who bear the heavy burden of the surplus labour. The other equally injuries effect of indiscriminate regularisation has been that many of the agencies have stopped undertaking casual or temporary works though they are urgent and essential for fear that if those who are employed on such works are required to be continued for 240 days or more days have to be absorbed as regular employees although the works are time bond and there is no need of the workmen beyond the completion of the works undertaken. The public interests are thus, jeopardising on both counts."

       Section 11-Complaint-Delay-Where there was no dispute regarding alleged illegal termination of service till respondent received the reply from petitioners and demand for reinstatement made after five years by way of afterthought, then there was no occasion for competent authority to unable a reference for adjudication for such a fabricated demand.-In the instant case, there is not an iota of explanation coming forth from the respondent as to why he kept quiet for a long period of five years, if, his disengagement from service from 25.3.1985 was illegal or otherwise unjust. Even the Labour Court, did not call upon the respondent to justify his action of keeping quiet for such a long period so as to re-butt the contentions of the petitioner that there was no termination of his service. In these circumstances, a conclusion will have to be drawn that there was no dispute regarding alleged illegal termination of service till respondent received the reply dt. 25.6.1990 from the petitioner. The demand for reinstatement made on 3.9.1990 was certainly by way of an afterthought and the same applies to the demand before the Conciliation Officer submitted on or about 15/17.9.1990.

       Sections 11-A and 16-Daily wages-Award-When a request is made for re-employment in service, an inference is necessarily required to be drawn that there was no dispute regarding the earlier disengagement from service and when demanded reinstatement in service as such termination was either unjustified or illegal.-The learned Judge of the Labour Court in the impugned award did not any issue as to whether there was a termination of service of the respondent at the hands of the petitioners. The circular of the Maharashtra State, Irrigation Deptt. bearing No. LLB/l684 (674/841, dt. 10.5.1985) is regarding the discontinuation of the services of surplus labourers and the said circular is admittedly not applicable in the instant case. But, the fact remains that the letter dt. 14.6.1990 which was replied by the petitioners vide letter dt. 25.6.1990 was for reemployment and not for reinstatement in service. When a request is made for re- employment in service, an inference is necessarily required to be drawn that there was no dispute regarding the earlier disengagement from service and the respondent requested for a fresh employment in view of some changed circumstances. On the other hand, when there is a demand for reinstatement in service, such a demand presupposes termination of service for which the employee has a grievance. In as much as, such a termination was either unjustified, unreasonable or illegal.

       Sections 11-A and 25-B-Unskilled daily wages worker-Award-A temporary unskilled daily wages labour granted permanent Government service by Labour Court-Was against the public policy, as it leads to a back door entry in Government service, when millions are in queue.-In the instant case also, the relief granted by the Labour Court, in a case where the dispute did not exist for a period of the five years, has irreparable effects on public employment. A temporary unskilled daily wage labour, appointed on the sweet will of an officer, in effect has been granted permanent Government service, by the Labour Court in spite of the fact that this initial engagement in the Government service was purely on a temporary basis. There is a prescribed procedure to be followed for appointments on permanent basis in the Government service. To accept the impugned award of the Labour Court is not only against the law laid down by the apex Court, as stated hereinabove, but also against the public policy, as it leads to a back door entry in Government service, when millions are waiting in queue, after having registered their names in the Employment Exchanges, for appointments in Government service.

       Section 3-See Industrial Disputes Act, 1947, Sections 10(1)(1), 12, 25 and 25-F.