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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NOS. 979/2011, 980/2011, 981/2011, 982/2011,
983/2011, 984/2011, 985/2011 & 986/2011
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WRIT PETITION NO.979/2011
PETITIONERS :- 1. Divisional Forest Officer,
Gondia Division, Gondia,
ig Tahsil & District : Gondia.
2. Range Forest Officer,
Gondia Range, Gondia,
Tahsil & District : Gondia.
…VERSUS…
RESPONDENT :- Shri Ganiram S/o Jyotiram Kewat,
R/o & Post-Mundipar,
Tahsil & District: Gondia.
WITH
WRIT PETITION NO.980/2011
PETITIONERS :- 1. Divisional Forest Officer,
Gondia Division, Gondia,
Tahsil & District : Gondia.
2. Range Forest Officer,
Gondia Range, Gondia,
Tahsil & District : Gondia.
…VERSUS…
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RESPONDENT :- Shri Munna Alias Vijay S/o Bhaiyalal
Shiwankar,
R/o Civil Lines, Gondia,
Tahsil & District: Gondia.
WITH
WRIT PETITION NO.981/2011
PETITIONERS :- 1. Divisional Forest Officer,
Gondia Division, Gondia,
Tahsil & District : Gondia.
ig 2. Range Forest Officer,
Gondia Range, Gondia,
Tahsil & District : Gondia.
…VERSUS…
RESPONDENT :- Shri Radheshyam S/o Dulichand Rahangdale,
R/o Suryatola,
Tahsil & District: Gondia.
WITH
WRIT PETITION NO.982/2011
PETITIONERS :- 1. Divisional Forest Officer,
Gondia Division, Gondia,
Tahsil & District : Gondia.
2. Range Forest Officer,
Gondia Range, Gondia,
Tahsil & District : Gondia.
…VERSUS…
RESPONDENT :- Shri Karu S/o Shyamlal Choudhary,
R/o Bhanpur, Post-Dongargaon,
Tahsil & District: Gondia.
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WITH
WRIT PETITION NO.983/2011
PETITIONERS :- 1. Divisional Forest Officer,
Gondia Division, Gondia,
Tahsil & District : Gondia.
2. Range Forest Officer,
Gondia Range, Gondia,
Tahsil & District : Gondia.
…VERSUS…
RESPONDENT :-
ig Shri Babulal S/o Keshorao Dhabale,
R/o Kudwa, Tahsil Gondia,
Tahsil & District: Gondia.
WITH
WRIT PETITION NO.984/2011
PETITIONERS :- 1. State of Maharashtra through,
Deputy Conservator of Forests,
Gondia Division, Gondia,
2. The Range Forest Officer,
Gondia Range, Gondia,
Tq. and Dist. Gondia.
…VERSUS…
RESPONDENT :- Shri Santosh S/o Puranlal Sahare,
Aged about 36 years,
R/o Laxmi Nagar, Gondia.
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WITH
WRIT PETITION NO.985/2011
PETITIONERS :- 1. Divisional Forest Officer,
Gondia Division, Gondia,
Tahsil & District : Gondia.
2. Range Forest Officer,
Gondia Range, Gondia,
Tahsil & District : Gondia.
…VERSUS…
RESPONDENT :-
ig Shri Zanaklal S/o Buddhu Banote,
R/o Bhanpur, Post-Dongargaon,
Tahsil & District: Gondia.
WITH
WRIT PETITION NO.986/2011
PETITIONERS :- 1. Divisional Forest Officer,
Gondia Division, Gondia,
Tahsil & District : Gondia.
2. Range Forest Officer,
Gondia Range, Gondia,
Tahsil & District : Gondia.
…VERSUS…
RESPONDENT :- Shri Gorelal S/o Fulichand Choudhary,
R/o Ramnagar, Gondia,
Tahsil & District: Gondia.
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—————————————————————————————————–
Shri A. D. Sonak & Ms T. Khan, learned A.G.Ps.for the petitioners.
Shri N. N. Mothghare, learned counsel for the respondents.
—————————————————————————————————–
CORAM : R. M. SAVANT J.
DATED : 21.07.2011
O R A L J U D G M E N T
1)
Rule with the consent of the parties made returnable forthwith and
heard.
2) The above Writ Petitions take exception to the judgments and
orders passed by the Industrial Court, Bhandara, by which the complaints
filed by the respondent in each of the above petitions came to be allowed
and the declaration came to be issued that the petitioners herein have
engaged in unfair labour practice covered under Items 5, 6 and 9 of
Schedule IV of the Maharashtra Recognition of Trade Unions and
Prevention of Unfair Labour Practices Act, 1971 (M.R.T.U. & P.U.L.P. Act,
1979). The Industrial Court has issued a direction to regularize the
services of the complainants by forwarding a proposal to that effect as per
Government Resolution dated 30/01/1996. A further direction was
issued to extend the benefit of permanency to the complainants.
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3) Shorn of unnecessary details, the factual matrix of the case can be
stated thus.
The respondent in each of the above petitions claimed to be
working with the Forest Department i.e. the petitioner above named from
the year 1990 on daily wage basis. It appears that the State Government
to ameliorate the conditions of the persons, who were working on daily
wages took a policy decision to regularize their services. Pursuant to
which the State Government issued a Government Resolution Dated
30/01/1996 inter alia governing the regularization of services of such
daily wagers. In terms of the said resolution, the cut off date fixed was 1 st
November, 1994 and the daily wagers, who had worked for a period of
240 days in the minimum every year in the preceding five years, were to
be given the benefit of regularization. The respondent in the above
petitions filed Complaint ULP 75/2007 (subject matter of Writ Petition
No.781/2011) invoking Items 5, 6 and 9 of Schedule IV of the M.R.T.U. &
P.U.L.P. Act, 1971. The substantive relief sought in the said Complaint was
that the respondent was seeking regularization of his services and to grant
him benefit of permanency with the back wages and continuity of service
in terms of the said Government Resolution dated 30/01/1996. Similar
complaints were filed by the respondents in the other petitions.
4) The parties went to trial. During the course of the trial, since the
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issue was as regards whether the respondent-workman had completed
240 days of service in each of the preceding five years, the respondent
was directed to take inspection of the muster rolls and prepare a chart in
respect of the number of days that he had worked in the preceding five
years. Accordingly, inspection was afforded to the respondent on the basis
which a Chart was prepared in respect of each of the respondents in the
above writ petitions, which was proved in evidence and came to be
marked as Exhibit-32.
5) The said chart was signed on behalf of the petitioners herein by
one Ashwinikumar Thakkar, who was then working as Range Forest
Officer. In so far as the petitioners are concerned, they also sought to
produce muster rolls in respect of each of the respondent-complainant in
support of their case that each of the respondent-complainant had not
worked for a period of 240 days in each of the preceding five years prior
to the cut off date. However, since the said muster rolls were not proved
by the petitioners in accordance with the provisions of the Evidence Act,
the same was not accepted.
6) The Industrial Court relying upon Exhibit-32 filed on behalf of the
respondent recorded a finding that each of the respondents in the above
petitions had worked for a period of 240 days in each of the preceding
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five years prior to the cut off date. In so far as the muster rolls produced
by the petitioners are concerned, the Industrial Court did not deem it fit
to take it into consideration on the ground that they did not cover the
entire period. The said finding of the Industrial Court finds place in
paragraph No.11 of the impugned judgment and order.
7) Having heard the learned counsel for the parties, in my view, the
impugned judgment and orders passed in each of the above petitions are
required to be quashed and set aside and the matters are required to be
remanded back to the Industrial Court for a de novo consideration.
8) The issue in the complaint was as regards the entitlement of the
respondent-workman to the benefits of the State Government Resolution
dated 30/01/1996 indubitably the said benefits can only be available to a
daily wager, who has worked for a period of 240 days every year in the
preceding five years prior to the cut off date i.e. 1st November, 1994. No
doubt, the statement at Exhibit-32 produced by the respondent has been
proved by the process known to law and was therefore exhibited as
Exhibit-32. However, the Industrial Court could not have brushed aside
the material produced on behalf of the petitioners by stating that the said
material does not relate to the entire period. The Industrial Court thereby
failed to appreciate the case of the petitioners that the respondents-
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workmen were not working for a period of five years preceding the cut off
date. Hence, it was incumbent on the Industrial Court to permit the
petitioners to lead evidence in that behalf, as the same went to the very
root of the matter in so far as the case of the respective parties were
concerned. In not doing so and merely relying upon Exhibit-32, the
Industrial Court has shut itself from material which could be said to be
relevant for the purposes of adjudication of the issue that was involved in
the said complaint. In that view of the matter, the judgment and orders
subject matter of the each of the above petitions as indicated above are
required to be quashed and set aside and accordingly are quashed and set
aside and the following directions are issued.
i) The petitioners would be entitled to produce the muster rolls and
such other material in their possession in support of their case that
the respondents-complainants in each of the above petitions have
not worked for a period of 240 days in a year for the preceding five
years.
ii) The petitioners would be entitled to prove the said documents by
the procedure prescribed under the Indian Evidence Act.
iii) The respondents-complainants would be entitled to cross-examine
the witness of the petitioners through whom the said documents
would be got proved by the petitioners.
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iv) The Industrial Court would thereupon consider the material on
record as also the pleadings and thereafter adjudicate upon the
complaint. The respondent would also at liberty to produce further
material, if they so be in fit.
v) The parties to appear before the Industrial Court on 17th August,
2011. The Industrial Court thereafter to dispose of each of the
complaints within a period of four months.
vi) The person, who has signed the said document at Exhibit-32, i.e.
Ashwinikumar Thakkar has filed an affidavit in the instant petition
stating the circumstances in which he has signed the said
document, in my view, therefore, the same would also be a relevant
document to be considered by the Industrial Court.
9) Rule is accordingly made absolute in the aforesaid terms with
parties to bear their respective costs.
JUDGE
KHUNTE
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