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2006 Supreme(Bom) 902
IN THE HIGH COURT OF BOMBAY
(R. M. S. Khandeparkar and S. R. Sathe, JJ.)
BHARAT SANCHAR NIGAM LTD., PUNE - Appellant.
vs.
BALASAHEB MARUTI POOJARI and another - Respondents.
Advocates Appeared
For appellants: Smt. Neeta Masurkar instructed by V. S. Masurkar
For respondent No.1: K. S. Bapat
Headnote:Industrial Disputes Act, 1947 - Sections 25-F and 10(1) - Termination - Casual labour alleged termination orally even after 240 days of work - Case contended to be of abandonment of job by worker himself - Labour Court rejected reference - Allowed by single Judge with backwages are grounds that termination was not valid - Worker himself said he did not protest instantly but after six years it clearly said to be a job abandonment by labour himself. - An attempt was made on behalf of the respondent worker to show that one Mr. ’R ’ who was working with him was subsequently absolved and made permanent. However, admittedly, the respondent has failed to adduce any cogent evidence in this behalf to show that though ’R ’ name was not in the list of workers appointed by the company he has been absolved in the company. The company has produced letter showing details of the grand of temporary status and regularisation scheme meant for the workers. From the said scheme it appears that if casual labourer are designated as temporary mazdoor they are not taken on permanent establishment unless they are selected during the regular selection process for grade D post. However, in the instant case there is absolutely no material on record to show that the respondent worker had acquired the status of temporary worker. So, under such circumstances merely because respondent worked continuously for 240 days, it can not be said that it was necessary for the employer to issue notice and follow the provisions under I.D. Act. In fact, in a case M.P. Housing Board and another v. Manoj Shrivastava, AIR 2006 SCW 1235, the Apex Court has observed : -
"Where the employee was appointed as daily wager but not against a vacant post which was duly sanctioned by the statutory authority nor his appointment was made upon following the statutory law operating in the field, has can not be made permanent employee. A daily wager does not hold a post unless he is appointed in terms of the Act and the rules framed thereunder. He does not derive any legal right in relation thereto. Further, only because a person had been working for more than 240 days, he does not derive any legal right to be regularised in service."
Similar view is taken by their Lordships of the Apex Court in a case Branch Manager, M.P. State Agro Industrial Development Corporation v. S.C. Pande, 2006 (1) CLR 1066.
Thus, having regard to the above mentioned recent decisions of the Apex Court and considering the facts and circumstances of the present case, the present appellant Bharat Sanchar Nigam was not under statutory obligation in this case to issue notice of termination to respondent worker and follow the procedure as laid down under Section 25-F of the I.D. Act. The present respondent worker has in fact abandoned his service. He made no grievance about the alleged termination for a period of about 8-9 years and as such he is certainly not entitled for reinstatement.
S. R. SA THE, J. :~ This Letters Patent Appeal is directed against the judgment and order passed by the learned single judge of this Court in Writ Petition No. 4974 of 2001, whereby the order of rejecting Reference passed by the Presiding Officer, First Labour Court, Pune was set aside and the petitioner workman was directed to be reinstated with continuity of service and backwages from date of reference till reinstatement of service.
2. Brief facts giving rise to this Appeal are as under : -
One Balasaheb Maruti Poojari, respondent No. 1 in the present appeal, was working with Bharat Sanchar Nigam Ltd. as a Casual Mazdoor since 22 -51984. According to him, he continuously served there upto 28 -2 -1985, on which day his services were orally terminated. As he had served continuously for more than 240 days and was terminated without any notice or payment of wages of one month in lieu of notice, he raised Industrial Dispute and prayed for reinstatement in service and backwages.
3. The Department of Telecommunication filed their written statement Exh -11 and contended that as there is inordinate delay of about 9 years in filing the Reference the same is not maintainable. They admitted that the present respondent was working as casual labourer from 22 -5 -1984 to 28 -2 - 1985 on which day he himself remained absent without intimating and thereby abandoned his service. According to them, respondents service was never terminated by them. As he was working purely on temporary basis as casual labourer and was paid on daily wages and his services were engaged as and when there was necessity of work, there was no question of issuing any notice or making payment in lieu of notice to him. Thus, it is their contention that provisions of section 25F of the Industrial Disputes Act, 1947 (hereinafter referred to as the said Act) were not applicable to the respondent -workman. Bharat Sanchar Nigam therefore prayed that Reference be dismissed.
4. In order to prove his case the worker examined himself at Exh -17 and produced the certificate issued by the Company wherein it was indicated that he worked continuously for 270 days (working days and weekly off.) As against this, on behalf of Bharat Sanchar Nigam, Sub Divisional Engineer, Narayan Patil was examined at Exh -39.
5. After considering the evidence adduced by both the parties, the learned Presiding Officer of First Labour Court, Pune came to the conclusion that the appellant Bharat Sanchar Nigam has failed to prove that respondent workman has abandoned the service. The learned Labour Judge however held that even if it is presumed that worker had worked for a period of 240 days continuously still he was a casual worker not taken on permanent establishment and was not terminated by any written order and as such the question as to whether his termination is legal or not does not arise. He therefore rejected the Reference.
6. Being aggrieved by the above mentioned order, the workman filed writ petition No. 4974/2001. After hearing both the learned Advocates, the learned single Judge of this Court came to the conclusion that once the Labour Court had held that there was no abandonment of service it was necessary for the Labour Court to consider whether the workers services were illegally terminated. According to the learned single Judge the Labour Court ought to have held that once a temporary workman has completed 240 days in service, it is necessary for the employer to issue a notice of termination or tender wages in lieu of notice and as this was not done by Bharat Sanchar Nigam the termination of present respondent workman was illegal. The learned single Judge therefore issued direction for reinstatement of the worker with continuity of service and back wages from the date of reference till the reinstatement of service.
7. In this Letters Patent Appeal, Mrs. Masurkar, learned Advocate for the appellant Bharat Sanchar Nigam Ltd. has urged 3 points. Firstly, she submitted
