2023:BHC-AS:39506 R.M. A MBERKAR (Private Secretary)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1012 OF 2009 The Administrative Officer (School) Municipal Mahanagar Palika .. Petitioner Versus Bhujgonda K. Kamble .. Respondent ....................

 Ms. Dhruti Kapadia a/w Mr. R.Y. Sirsikar and Mr. Sagar Patel for Petitioner – Corporation  Mr. Sanjiv A. Sawant a/w Ms. Samiksha S. Mane i/by Mr. Samir M.

Suryawanshi for Respondent ...................

CORAM : MILIND N. JADHAV, J.

DATE : DECEMBER 22, 2023 JUDGEMENT :

1. This Writ Petition is filed under Articles 226 and 227 of the Constitution of India by the Petitioner (for short “the Corporation” i.e. employer) to challenge the judgement and order dated 10.03.2008 passed by the 3^rd Labour Court, Mumbai in Reference (IDA) No. 397/2003. On 20.03.2009 Rule was granted and interim relief in terms of prayer clause (c) was granted and Petitioner Corporation was directed to reinstate the Respondent worker within the period of one month from the said date. Petitioner has been reinstated and working since then.

2. Briefly stated the facts which are relevant for the purpose or adjudication of the present Writ Petition are as follows:-

2.1. Respondent Worker was employed by the Petitioner Corporation as a Caretaker cum Gardener (Mali) on daily wage basis from 06.04.1995. Admittedly he worked for the period from 06.04.1995 to 31.10.1998 with intermittent artificial breaks given by the Corporation to him on at least 13 occasions during the said period. It is Respondent's case that he worked on all Saturdays and Sundays and on public holidays but was not paid wages for those days nor he was paid any overtime wages for working for more than 12 hours during the aforementioned employment period. According to Respondent he has worked for more than 240 days in a year but the Corporation denied him permanency and in fact granted permanency to 14 similarly placed workers who had worked alongside him.

2.2. Respondent's services were terminated orally without giving any notice or legal dues which amounted to retrenchment and also in violation of provisions of Section 25-F of the Industrial Disputes Act, 1947 (for short "the said Act").

2.3. In the Reference tried before the learned Labour Court Petitioner in its written statement below Exhibit C-6 contended that Respondent worker was employed as Mali cum Caretaker on daily wage basis from 07.04.1995 onwards on Rs. 70/- per day at Chunabhatti Municipal Marathi School No. 2 and he worked upto 31.10.1998 with intermittent breaks. It was stated by Petitioner Corporation that Respondent did not work on Sundays and public holidays nor did he work for more than 8 hours in a day and he worked for 230 days in the year 1998.

2.4. Learned Reference Court framed the following issues for determination of the trial:-

1) Whether the reference is maintainable?

2) Does the second party workman prove that he has put in 240 days continuous service and he was the permanent employee of the first party?

3) Does the second party workman prove that the first party employer has illegally terminated his services by violating the statutory provisions of law?

4) Does the second party workman prove that he is entitled to the relief of reinstatement with full back wages and continuity of service?

5) What order?

2.5. The aforesaid issues were answered in favour of Respondent worker by giving detailed reasons on the basis of evidence led by the parties and final award was declared directing the Petitioner Corporation to reinstate the Respondent worker with continuity of service and pay him full back wages.

2.6. Ms. Kapadia, learned Advocate appearing for the Petitioner Corporation would submit that Respondent worker has not put in 240 days of continuous service in one calendar year and therefore not entitled to benefit of permanency. She would submit that he was given artificial breaks between 1995 and 1998 when he was employed by the Corporation and th