WP/535/1997
１
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.535 OF 1997
The Administrator,
Kalyan Municipal Corporation, Kalyan ... Petitioner
V/s.
Alka B. Bramhe & Anr. ... Respondents
Mr. A.S. Rao for the Petitioner.
Mr. A.A. Garge for Respondent No.1.
igCORAM :SMT. NISHITA MHATRE, J.
RESERVED ON :7TH JULY, 2010.
PRONOUNCED ON:28TH SEPTEMBER, 2010.
JUDGMENT:
1. The Writ Petition has been filed against the order dated
30th October, 1993 passed by the Labour Court, Thane, in
Complaint (ULP) No.74 of 1992, granting reinstatement with
continuity of service and full back-wages to the respondent
No.1. The order dated 29th November, 1996 passed by the
Industrial Court, Thane, in Revision Application (ULP) No.86
of 1993 filed by the petitioner, has also been challenged in
the present Writ Petition.
2. The Respondent No.1 was employed from 1st December, 1988
to 21st August, 1991 with the petitioner on a daily wage of
Rs.20/-. She did not attend her duties for 15 days and,
::: Downloaded on – 09/06/2013 16:29:23 :::
WP/535/1997
２
therefore, the petitioner-Corporation terminated her services
on 21st August, 1991. The respondent No.1 filed a Complaint,
being Complaint (ULP) No.74 of 1992, under Item 1 of Schedule
IV of the Maharashtra Recognition of Trade Unions and
Prevention of Unfair Labour Practices Act, (for short “the
MRTU & PULP Act”), claiming reinstatement with continuity of
service and full back-wages from 21st August, 1991. The
petitioner-Corporation filed a written statement contesting
the aforesaid complaint. The contentions raised by the
petitioner-Corporation in the written statement were as
follows :
(a). that the respondent No.1 was employed on a
daily wage;
(b). that the respondent No.1 had abandoned her
duty from 6th September, 1991;
(c). that the respondent No.1 was appointed
temporarily on a daily wage and had notjoined duties after 6th September, 1991;
(d). that no Award was applicable to a temporary
workman.
3. Both the parties filed pursis before the Labour Court
contending that they did not wish to lead any evidence before
::: Downloaded on – 09/06/2013 16:29:23 :::
WP/535/1997
３
the Court and stated that the Complaint (ULP) No.74 of 1992
should be decided on the basis of the pleadings and the
documents filed by them.
4. The Labour Court concluded that the respondent No.1 had,
in fact, worked from 1st December, 1988 to 21st August, 1991
with artificial breaks for some periods. However, it was
found from the documents on record that she was in continuous
service from 20th November, 1990 to 17th August, 1991 without
a break. The Labour Court, therefore, concluded that she had
been in continuous service for 240 days and that the
provisions of Section 25F of the Industrial Disputes Act were
required to be followed by the petitioner-Corporation for
terminating her services. Admittedly the provisions of
Section 25F of the Industrial Disputes Act have not been
complied with and hence the Labour Court ruled that the
respondent No.1 was entitled to reinstatement with continuity
of service and full back-wages. A finding is recorded by the
Labour Court that there was no dispute that the job, which
was performed by the respondent No.1, was in existence when
the order was being passed.
::: Downloaded on – 09/06/2013 16:29:23 :::
WP/535/1997
４
5. The Industrial Court in Revision Application (ULP) No.86
of 1993 has confirmed the aforesaid order of the Labour
Court. The Industrial Court has also noticed that after the
Award of the Labour Court, the petitioner had, in fact,
reemployed and not reinstated the respondent No.1.
6. The contentions raised by Mr. Rao for setting aside the
impugned orders are:
(i). that
the workman was being paid at a
daily rate;
(ii). that the appointment had been made
contrary to the rules for employment;
(iii). that there were no sanctioned posts;
(iv). that there were no vacancies.
7. Mr. Rao submitted that since the respondent No.1 was
employed on a daily rated basis, she is not entitled to any
relief in the complaint. He submitted that in view of the
judgment of the Supreme Court in the case of State of
Karnataka vs. Umadevi, reported in (2006) 4 SCC 1, and the
judgment of a learned Single Judge of this Court in the case
of Ramesh Vitthal Patil & Ors. vs. Kalyan Dombivali Municipal
Corporation & Ors. in Writ Petition No.443 of 2010 with other
::: Downloaded on – 09/06/2013 16:29:23 :::
WP/535/1997
５
connected matters, delivered on 7th June, 2010, the respondent
No.1 is not entitled to reinstatement with continuity of
service and full back-wages. He further submitted that there
is no need to comply with the provisions of Section 25F of
the Industrial Disputes Act in the case of a daily rated
workman since the provisions of Section 25F of the Industrial
Disputes Act would be applicable only if the workman had
completed 240 days igin service. According to the learned
Advocate, even assuming the petitioner had violated the
provisions of Section 25F of the Industrial Disputes Act, the
Labour Court could not have granted reinstatement of a daily
rated workman since she was recruited without following the
procedure and norms for recruitment.
8. Mr. Garge, the learned Advocate appearing for
respondent No.1, on the other hand submitted that the
contentions of Mr. Rao cannot be accepted in view of the
judgment of the Supreme Court in the case of Maharashtra
State Road Transport Corporation and Anr. Vs. Casteribe
Rajya Parivahan Karmachari Sanghatana, reported in (2009) 8
SCC 556. He submitted that there is a finding of fact
recorded by both the Courts below that the workman had
completed 240 days in service and that the petitioner had not
::: Downloaded on – 09/06/2013 16:29:23 :::
WP/535/1997
６
tendered retrenchment compensation and/or notice wages, as
required under Section 25F of the Industrial Disputes Act. He
relied on the judgment of the Division Bench of this Court
sitting at Nagpur in the case of Dattatraya Shankarrao Kharde
& Ors. vs. Executive Engineer, Chief Gate Erection Unit No.2,
Nagpur & Anr., reported in 1994 1 CLR 1022, in which it has
been held that non compliance of section 25F or section 25G
of the Industrial Disputes Act amounts to a breach of an
agreement and, therefore, is an unfair labour practice under
Item 9 Schedule IV of the MRTU & PULP Act.
9. The contentions raised by Mr. Rao, the learned Advocate
for the petitioner, that because the workman is being paid
wages at a daily rate, she is not entitled to the
reinstatement, cannot be accepted. The parties had agreed to
proceed on the basis of the pleadings and documentary
evidence placed before the Court. No oral evidence was led by
either of the parties. From the documents on record, which
included orders issued to the respondent No.1-workman by the
petitioner, which were placed along with the list at
Exhibit-10, the Labour Court found that the respondent No.1-
workman had completed 21 months of service. It was also
apparent that the respondent No.1-workman had been in
::: Downloaded on – 09/06/2013 16:29:23 :::
WP/535/1997
７
continuous service for more than 240 days during the period
from 20th November, 1990 to 17th August, 1991. The Court found
that there were no artificial breaks given during this
period. Admittedly, no retrenchment compensation was paid or
offered to the respondent No.1-workman, nor was any notice or
wages in lieu of notice were furnished to the respondent No.
1-workman. In these circumstances, in my opinion, the Labour
Court has rightly concluded that the petitioner-Corporation
had violated the provisions of Section 25F of the Industrial
Disputes Act while terminating the services of the respondent
No.1-workman.
10. Mr. Rao has submitted that a workman who is paid wages
on a daily rate cannot be made permanent if there are no
sanctioned posts and if the appointment is not made in
accordance with the rules in that regard. This submission of
Mr. Rao is based on the judgment of the Supreme Court in the
case of State of Karnataka vs. Umadevi (supra), and of a
learned Single Judge of this Court in the case of Ramesh
Vitthal Patil & Ors. vs. Kalyan Dombivali Municipal
Corporation & Ors. (supra). However, the submission of
Mr. Rao is fallacious. Firstly, the respondent No.1-workman
has not sought permanency in the present matter. Secondly,
::: Downloaded on – 09/06/2013 16:29:23 :::
WP/535/1997
８
the Reference is only made for reinstatement in service.
Obviously such reinstatement would be in the position that
she held prior to her services being terminated. The judgment
in the case of State of Karnataka vs. Umadevi (supra) was
delivered by the Supreme Court where a Writ Petition was
filed for regularization / permanency of workers who were
being paid wages at a daily rate. Similarly, the Writ
Petition No.443 of 2010 in the case of Ramesh Vitthal Patil &
Ors. vs. Kalyan Dombivali Municipal Corporation & Ors. with
other connected matters arose from an order in a complaint
filed under Items 5, 6, 9 and 10 of Schedule IV of the MRTU &
PULP Act, where the workers had sought a declaration that the
Kalyan Dombivli Municipal Corporation had committed unfair
labour practices by not extending to them the benefits of
permanent workmen although they had worked as temporary or
daily rated workers for years together. These judgments, in
my opinion, are not applicable at all to the facts in the
present matter as the respondent No.1-workman has not sought
permanency. It is well settled that in a complaint filed
under Item 1 of Schedule IV of the MRTU & PULP Act all that
the Labour Court is required to consider is whether the
services of the workman have been terminated by an employer
::: Downloaded on – 09/06/2013 16:29:23 :::
WP/535/1997
９
by indulging in unfair labour practices mentioned therein.
11. Furthermore, the contentions raised by Mr. Rao were not
pleaded before the Labour Court by the petitioner, nor were
these issues raised as grounds in the Revision Application
(ULP) No.86 of 1993 filed before the Industrial Court by the
petitioner. In fact, these points have not been raised in the
present Writ Petition also. Therefore, in my opinion, the
contentions raised by Mr. Rao are without any foundation and
have been urged only with a view to fall within the ambit of
the judgment in the case of State of Karnataka vs. Umadevi
(supra).
12. In the case of Maharashtra State Road Transport
Corporation and Anr. Vs. Casteribe Rajya Parivahan
Karmachari Sanghatana (supra), the Supreme Court while
considering the judgment the case of State of Karnataka vs.
Umadevi (supra) has held that the powers of the Labour Court
and the Industrial Court are not denuded by the Judgment of
the Supreme Court in the case of State of Karnataka vs.
Umadevi (supra). In fact, these observations have been made
by the Supreme Court while dealing with a complaint filed
under Item 6 of Schedule IV of the MRTU & PULP Act.
::: Downloaded on – 09/06/2013 16:29:23 :::
WP/535/1997
１０
Therefore, in my opinion, in a complaint filed under Item 1
of Schedule IV of the MRTU & PULP Act, the issue which the
Labour Court is expected to consider is only whether the
employer has indulged in the unfair labour practices
contained therein and whether the consequential relief which
the Labour Court can grant will include reinstatement with
continuity of services and back-wages and/or compensation.
The Judgment in the case of State of Karnataka vs. Umadevi
(supra) does not preclude the Labour Court from deciding
complaints under Item 1 of Schedule IV of the MRTU & PULP Act
even in the case of a workmen who are paid wages at a daily
rate.
13. In the case of Krishan Singh vs. Executive Engineer,
Haryana State Agricultural Marketing Board, Rohtak (Haryana),
reported in (2010) 3 SCC 637, the Supreme Court was
considering a case where the Labour Court has passed an Award
directing that the workman should be reinstated in services
in his previous post with continuity of service and 50% back-
wages. The Labour Court had found that the workman had
completed 267 days in service and that his services were
terminated without notice or notice pay and without payment
of retrenchment compensation and, therefore, his termination
::: Downloaded on – 09/06/2013 16:29:23 :::
WP/535/1997
１１
is in violation of Section 25F of the Industrial Disputes
Act. This case also dealt with a workman who was being paid
wages at a daily rate. The Supreme Court distinguished the
judgment in the case of State of Karnataka vs. Umadevi
(supra) and observed that the employer had urged that the
engagement of the workman was not against the post which was
sanctioned and contrary to the statutory rules. The Court
observed that in absence
ig of any pleadings, evidence or
findings on these aspects including whether there was any
vacancy, the Award of the Tribunal granting reinstatement
with continuity of service and back-wages was correct. The
Court further observed that the decision in the case of State
of Karnataka vs. Umadevi (supra) relates to regularization in
public employment and has no relevance to an Award for
reinstatement of a discharged workman passed by the Labour
Court under Section 11A of the Industrial Disputes Act
without any direction for regularization of his service.
14. None of these contentions raised by the learned Advocate
for the petitioner have been either pleaded by the petitioner
or proved. In these circumstances, in my opinion, the order
of the Labour Court which was confirmed by the Industrial
Court must be upheld.
::: Downloaded on – 09/06/2013 16:29:23 :::
WP/535/1997
１２
15. The facts in the present case and in Krishan Singh’s
case are almost identical except that the workman has sought
to redress her grievance in the present case by filing a
complaint under the MRTU & PULP Act rather than by obtaining
a Reference under the Industrial Disputes Act. However, the
same principles which have been enunciated in the aforesaid
judgment in the Krishan Singh’s case will apply to the facts
in the present case. The direction of the Labour Court to
grant reinstatement and continuity of service and back-wages
to the respondent No.1 from 16th September, 1991 cannot be
faulted as admittedly no notice or wages in lieu of notice or
retrenchment compensation under Section 25F of the Industrial
Disputes Act were tendered to the respondent No.1-workman
prior to terminating her services.
16. The contention of Mr. Rao that there are no vacancies as
no work is available is also belied by the pleadings and the
findings of the Labour Court that there was no dispute that
the job performed by respondent No.1 was available when the
order was passed.
17. The respondent No.1-workman has been reinstated in
service and there is nothing on record to indicate that she
::: Downloaded on – 09/06/2013 16:29:23 :::
WP/535/1997
１３
was reinstated subject to the result of the present Petition,
as suggested by Mr. Rao. Apart from this, the Court while
issuing rule has observed that the only question which
remained was related to the back-wages payable. The back-
wages were calculated and it was found that Rs.30,000/- was
payable to the respondent No.1-workman as back-wages. Out of
this amount, the Court directed the petitioner to deposit Rs.
10,000/- and permitted
ig the respondent No.1-workman to
withdraw Rs.5,000/- without security and the balance with
security. It appears that the amount of Rs.5,000/- has been
withdrawn by the respondent No.1-workman, however, the
balance has been invested in a Nationalized Bank. That amount
which has been invested in the Nationalized Bank shall be
paid over to the respondent No.1-workman together with
accrued interest.
18. The Writ Petition is dismissed.
19. Rule discharged.
20. No order as to costs.
::: Downloaded on – 09/06/2013 16:29:23 :::