{"id":34602,"date":"2010-09-28T00:00:00","date_gmt":"2010-09-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-administrator-vs-alka-b-bramhe-anr-on-28-september-2010"},"modified":"2018-08-01T14:55:09","modified_gmt":"2018-08-01T09:25:09","slug":"the-administrator-vs-alka-b-bramhe-anr-on-28-september-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-administrator-vs-alka-b-bramhe-anr-on-28-september-2010","title":{"rendered":"The Administrator vs Alka B. Bramhe & Anr on 28 September, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
The Administrator vs Alka B. Bramhe & Anr on 28 September, 2010<\/div>\n
Bench: Nishita Mhatre<\/div>\n
                                                                                WP\/535\/1997\n                                           \uff11\n\n                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                               \n                        CIVIL APPELLATE JURISDICTION\n\n                           WRIT PETITION NO.535 OF 1997\n\n\n\n\n                                                    \n    The Administrator,\n    Kalyan Municipal Corporation, Kalyan                   ... Petitioner\n             V\/s.\n\n\n\n\n                                                   \n    Alka B. Bramhe & Anr.                                  ... Respondents\n\n    Mr. A.S. Rao for the Petitioner.\n    Mr. A.A. Garge for Respondent No.1.\n\n\n\n\n                                          \n                               igCORAM           :SMT. NISHITA MHATRE, J.\n                                 RESERVED ON     :7TH JULY, 2010.\n                                 PRONOUNCED ON:28TH SEPTEMBER, 2010.\n                             \n    JUDGMENT:\n<\/pre>\n
    1.   The Writ Petition has been filed against the order dated<\/p>\n
    30th October, 1993 passed by the Labour Court, Thane, in<\/p>\n
    Complaint (ULP) No.74 of 1992, granting reinstatement with<\/p>\n
    continuity of service and full back-wages to the respondent<\/p>\n
    No.1.   The    order    dated   29th   November,      1996       passed        by     the<\/p>\n
    Industrial Court, Thane, in Revision Application (ULP) No.86<\/p>\n
    of 1993 filed by the petitioner, has also been challenged in<\/p>\n
    the present Writ Petition.\n<\/p>\n
    2.   The Respondent No.1 was employed from 1st December, 1988<\/p>\n
    to 21st August, 1991 with the petitioner on a daily wage of<\/p>\n
    Rs.20\/-. She did not attend her duties for 15 days and,<\/p>\n
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\n                                                                                  WP\/535\/1997
\n                                          \uff12<\/p>\n
    therefore, the petitioner-Corporation terminated her services<\/p>\n
    on 21st August, 1991. The respondent No.1 filed a Complaint,<\/p>\n
    being Complaint (ULP) No.74 of 1992, under Item 1 of Schedule<\/p>\n
    IV    of   the   Maharashtra      Recognition       of     Trade        Unions         and<\/p>\n
    Prevention of Unfair Labour Practices Act, (for short “the<\/p>\n
    MRTU & PULP Act”), claiming reinstatement with continuity of<\/p>\n
    service    and    full   back-wages       from    21st    August,         1991.        The<\/p>\n
    petitioner-Corporation filed a written statement contesting<\/p>\n
    the   aforesaid     complaint.     The     contentions           raised         by     the<\/p>\n
    petitioner-Corporation       in    the     written       statement            were       as<\/p>\n
    follows :\n<\/p>\n
          (a). that the respondent No.1 was employed on a<\/p>\n
                daily wage;\n<\/p><\/blockquote>\n
          (b). that the respondent No.1 had abandoned her<\/p>\n
                duty from 6th September, 1991;\n<\/p><\/blockquote>\n
          (c). that    the    respondent       No.1    was       appointed
\n                temporarily on a daily wage and had not<\/p>\n
                joined duties after 6th September, 1991;\n<\/p><\/blockquote>\n
          (d). that no Award was applicable to a temporary
\n                workman.\n<\/p><\/blockquote>\n
    3.    Both the parties filed pursis before the Labour Court<\/p>\n
    contending that they did not wish to lead any evidence before<\/p>\n
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\n                                                                               WP\/535\/1997
\n                                        \uff13<\/p>\n
    the Court and stated that the Complaint (ULP) No.74 of 1992<\/p>\n
    should be decided on the basis of the pleadings and the<\/p>\n
    documents filed by them.\n<\/p>\n
    4.     The Labour Court concluded that the respondent No.1 had,<\/p>\n
    in fact, worked from 1st December, 1988 to 21st August, 1991<\/p>\n
    with artificial breaks for some periods. However, it was<\/p>\n
    found from the documents on record that she was in continuous<\/p>\n
    service from 20th November, 1990 to 17th August, 1991 without<\/p>\n
    a break. The Labour Court, therefore, concluded that she had<\/p>\n
    been    in   continuous   service    for   240      days        and      that       the<\/p>\n
    provisions of Section 25F of the Industrial Disputes Act were<\/p>\n
    required to be followed by the petitioner-Corporation for<\/p>\n
    terminating     her   services.     Admittedly        the      provisions             of<\/p>\n
    Section 25F of the Industrial Disputes Act have not been<\/p>\n
    complied with and hence the Labour Court ruled that the<\/p>\n
    respondent No.1 was entitled to reinstatement with continuity<\/p>\n
    of service and full back-wages. A finding is recorded by the<\/p>\n
    Labour Court that there was no dispute that the job, which<\/p>\n
    was performed by the respondent No.1, was in existence when<\/p>\n
    the order was being passed.\n<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 16:29:23 :::<\/span><\/p>\n
                                                                                    WP\/535\/1997
\n                                             \uff14<\/p>\n
    5.   The Industrial Court in Revision Application (ULP) No.86<\/p>\n
    of 1993 has confirmed the aforesaid order of the Labour<\/p>\n
    Court. The Industrial Court has also noticed that after the<\/p>\n
    Award of the Labour Court, the petitioner had, in fact,<\/p>\n
    reemployed and not reinstated the respondent No.1.\n<\/p>\n
    6.   The contentions raised by Mr. Rao for setting aside the<\/p>\n
    impugned orders are:\n<\/p>\n
         (i).         that\n                              \n                             the   workman       was    being    paid       at     a\n                             \n                      daily rate;\n\n         (ii).        that   the    appointment          had     been        made\n                      contrary to the rules for employment;\n           \n\n\n<\/pre>\n
         (iii). that there were no sanctioned posts;\n<\/p>\n
         (iv).        that there were no vacancies.\n<\/p>\n
    7.   Mr. Rao submitted that since the respondent No.1 was<\/p>\n
    employed on a daily rated basis, she is not entitled to any<\/p>\n
    relief in the complaint. He submitted that in view of the<\/p>\n
    judgment     of    the   Supreme   Court       in    the    case       of     State        of<\/p>\n
    Karnataka vs. Umadevi, reported in (2006) 4 SCC 1, and the<\/p>\n
    judgment of a learned Single Judge of this Court in the case<\/p>\n
    of Ramesh Vitthal Patil & Ors. vs. Kalyan Dombivali Municipal<\/p>\n
    Corporation & Ors. in Writ Petition No.443 of 2010 with other<\/p>\n
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\n                                                                                         WP\/535\/1997
\n                                                 \uff15<\/p>\n
    connected matters, delivered on 7th June, 2010, the respondent<\/p>\n
    No.1 is not entitled to reinstatement with continuity of<\/p>\n
    service and full back-wages. He further submitted that there<\/p>\n
    is no need to comply with the provisions of Section 25F of<\/p>\n
    the Industrial Disputes Act in the case of a daily rated<\/p>\n
    workman since the provisions of Section 25F of the Industrial<\/p>\n
    Disputes Act would be applicable only if the workman had<\/p>\n
    completed    240     days    igin    service.       According          to     the      learned<\/p>\n
    Advocate,     even    assuming         the       petitioner        had      violated          the<\/p>\n
    provisions of Section 25F of the Industrial Disputes Act, the<\/p>\n
    Labour Court could not have granted reinstatement of a daily<\/p>\n
    rated workman since she was recruited without following the<\/p>\n
    procedure and norms for recruitment.\n<\/p>\n
    8.    Mr.    Garge,       the        learned        Advocate            appearing             for<\/p>\n
    respondent        No.1,   on    the     other       hand      submitted            that       the<\/p>\n
    contentions of Mr. Rao cannot be accepted in view of the<\/p>\n
    judgment of the Supreme Court in the case of Maharashtra<\/p>\n
    State   Road      Transport         Corporation      and       Anr.       Vs.      Casteribe<\/p>\n
    Rajya Parivahan Karmachari Sanghatana, reported in (2009) 8<\/p>\n
    SCC   556.   He     submitted        that    there       is    a     finding         of      fact<\/p>\n
    recorded     by    both   the       Courts       below   that        the      workman         had<\/p>\n
    completed 240 days in service and that the petitioner had not<\/p>\n
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\n                                                                                     WP\/535\/1997
\n                                                \uff16<\/p>\n
    tendered retrenchment compensation and\/or notice wages, as<\/p>\n
    required under Section 25F of the Industrial Disputes Act. He<\/p>\n
    relied on the judgment of the Division Bench of this Court<\/p>\n
    sitting at Nagpur in the case of Dattatraya Shankarrao Kharde<\/p>\n
    & Ors. vs. Executive Engineer, Chief Gate Erection Unit No.2,<\/p>\n
    Nagpur & Anr.,<\/a> reported in 1994 1 CLR 1022, in which it has<\/p>\n
    been held that non compliance of section 25F or section 25G<\/p>\n
    of the Industrial Disputes Act amounts to a breach of an<\/p>\n
    agreement and, therefore, is an unfair labour practice under<\/p>\n
    Item 9 Schedule IV of the MRTU & PULP Act.\n<\/p>\n
    9.   The contentions raised by Mr. Rao, the learned Advocate<\/p>\n
    for the petitioner, that because the workman is being paid<\/p>\n
    wages     at    a     daily      rate,      she   is   not     entitled           to      the<\/p>\n
    reinstatement, cannot be accepted. The parties had agreed to<\/p>\n
    proceed    on       the    basis       of   the   pleadings       and      documentary<\/p>\n
    evidence placed before the Court. No oral evidence was led by<\/p>\n
    either of the parties. From the documents on record, which<\/p>\n
    included orders issued to the respondent No.1-workman by the<\/p>\n
    petitioner,         which       were    placed    along      with      the       list       at<\/p>\n
    Exhibit-10, the Labour Court found that the respondent No.1-\n<\/p>\n
    workman had completed 21 months of service. It was also<\/p>\n
    apparent       that       the    respondent       No.1-workman         had       been       in<\/p>\n
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\n                                                                                        WP\/535\/1997
\n                                                 \uff17<\/p>\n
    continuous service for more than 240 days during the period<\/p>\n
    from 20th November, 1990 to 17th August, 1991. The Court found<\/p>\n
    that   there    were       no    artificial        breaks       given        during        this<\/p>\n
    period. Admittedly, no retrenchment compensation was paid or<\/p>\n
    offered to the respondent No.1-workman, nor was any notice or<\/p>\n
    wages in lieu of notice were furnished to the respondent No.<\/p>\n
    1-workman. In these circumstances, in my opinion, the Labour<\/p>\n
    Court has rightly concluded that the petitioner-Corporation<\/p>\n
    had violated the provisions of Section 25F of the Industrial<\/p>\n
    Disputes Act while terminating the services of the respondent<\/p>\n
    No.1-workman.\n<\/p>\n
    10. Mr. Rao has submitted that a workman who is paid wages<\/p>\n
    on a daily rate cannot be made permanent if there are no<\/p>\n
    sanctioned     posts       and    if   the       appointment        is     not      made       in<\/p>\n
    accordance with the rules in that regard. This submission of<\/p>\n
    Mr. Rao is based on the judgment of the Supreme Court in the<\/p>\n
    case of State of Karnataka vs. Umadevi (supra), and of a<\/p>\n
    learned Single Judge of this Court in the case of Ramesh<\/p>\n
    Vitthal   Patil        &    Ors.       vs.       Kalyan     Dombivali             Municipal<\/p>\n
    Corporation     &   Ors.         (supra).        However,      the       submission            of<\/p>\n
    Mr. Rao is fallacious. Firstly, the respondent No.1-workman<\/p>\n
    has not sought permanency in the present matter. Secondly,<\/p>\n
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\n                                                                              WP\/535\/1997
\n                                       \uff18<\/p>\n
    the Reference is only made for reinstatement in service.\n<\/p>\n
    Obviously such reinstatement would be in the position that<\/p>\n
    she held prior to her services being terminated. The judgment<\/p>\n
    in the case of State of Karnataka vs. Umadevi (supra) was<\/p>\n
    delivered by the Supreme Court where a Writ Petition was<\/p>\n
    filed for regularization \/ permanency of workers who were<\/p>\n
    being   paid   wages   at   a   daily   rate.     Similarly,            the      Writ<\/p>\n
    Petition No.443 of 2010 in the case of Ramesh Vitthal Patil &<\/p>\n
    Ors. vs. Kalyan Dombivali Municipal Corporation & Ors. with<\/p>\n
    other connected matters arose from an order in a complaint<\/p>\n
    filed under Items 5, 6, 9 and 10 of Schedule IV of the MRTU &<\/p>\n
    PULP Act, where the workers had sought a declaration that the<\/p>\n
    Kalyan Dombivli Municipal Corporation had committed unfair<\/p>\n
    labour practices by not extending to them the benefits of<\/p>\n
    permanent workmen although they had worked as temporary or<\/p>\n
    daily rated workers for years together. These judgments, in<\/p>\n
    my opinion, are not applicable at all to the facts in the<\/p>\n
    present matter as the respondent No.1-workman has not sought<\/p>\n
    permanency. It is well settled that in a complaint filed<\/p>\n
    under Item 1 of Schedule IV of the MRTU & PULP Act all that<\/p>\n
    the Labour Court is required to consider is whether the<\/p>\n
    services of the workman have been terminated by an employer<\/p>\n
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\n                                                                                   WP\/535\/1997
\n                                             \uff19<\/p>\n
    by indulging in unfair labour practices mentioned therein.\n<\/p>\n
    11. Furthermore, the contentions raised by Mr. Rao were not<\/p>\n
    pleaded before the Labour Court by the petitioner, nor were<\/p>\n
    these issues raised as grounds in the Revision Application<\/p>\n
    (ULP) No.86 of 1993 filed before the Industrial Court by the<\/p>\n
    petitioner. In fact, these points have not been raised in the<\/p>\n
    present Writ Petition also. Therefore, in my opinion, the<\/p>\n
    contentions raised by Mr. Rao are without any foundation and<\/p>\n
    have been urged only with a view to fall within the ambit of<\/p>\n
    the judgment in the case of State of Karnataka vs. Umadevi<\/p>\n
    (supra).\n<\/p>\n
    12. In     the       case    of    Maharashtra       State       Road        Transport<\/p>\n
    Corporation       and       Anr.   Vs.    Casteribe            Rajya         Parivahan<\/p>\n
    Karmachari       Sanghatana        (supra),    the    Supreme          Court         while<\/p>\n
    considering the judgment the case of State of Karnataka vs.<\/p>\n
    Umadevi (supra) has held that the powers of the Labour Court<\/p>\n
    and the Industrial Court are not denuded by the Judgment of<\/p>\n
    the Supreme Court in the case of State of Karnataka vs.<\/p>\n
    Umadevi (supra). In fact, these observations have been made<\/p>\n
    by the Supreme Court while dealing with a complaint filed<\/p>\n
    under    Item    6    of    Schedule     IV   of   the     MRTU       &    PULP        Act.\n<\/p>\n
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                                                                                 WP\/535\/1997
\n                                            \uff11\uff10<\/p>\n
    Therefore, in my opinion, in a complaint filed under Item 1<\/p>\n
    of Schedule IV of the MRTU & PULP Act, the issue which the<\/p>\n
    Labour Court is expected to consider is only whether the<\/p>\n
    employer   has     indulged       in     the    unfair     labour          practices<\/p>\n
    contained therein and whether the consequential relief which<\/p>\n
    the Labour Court can grant will include reinstatement with<\/p>\n
    continuity of services and back-wages and\/or compensation.\n<\/p>\n
    The Judgment in the case of State of Karnataka vs. Umadevi<\/p>\n
    (supra) does not preclude the Labour Court from deciding<\/p>\n
    complaints under Item 1 of Schedule IV of the MRTU & PULP Act<\/p>\n
    even in the case of a workmen who are paid wages at a daily<\/p>\n
    rate.\n<\/p>\n
    13. In the case of Krishan Singh vs. Executive Engineer,<\/p>\n
    Haryana State Agricultural Marketing Board, Rohtak (Haryana),<\/a><\/p>\n
    reported   in    (2010)    3      SCC    637,    the     Supreme         Court        was<\/p>\n
    considering a case where the Labour Court has passed an Award<\/p>\n
    directing that the workman should be reinstated in services<\/p>\n
    in his previous post with continuity of service and 50% back-\n<\/p>\n
    wages.   The    Labour    Court    had    found    that      the      workman         had<\/p>\n
    completed 267 days in service and that his services were<\/p>\n
    terminated without notice or notice pay and without payment<\/p>\n
    of retrenchment compensation and, therefore, his termination<\/p>\n
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\n                                                                                      WP\/535\/1997
\n                                           \uff11\uff11<\/p>\n
    is in violation of Section 25F of the Industrial Disputes<\/p>\n
    Act. This case also dealt with a workman who was being paid<\/p>\n
    wages at a daily rate. The Supreme Court distinguished the<\/p>\n
    judgment   in    the    case    of    State       of    Karnataka          vs.      Umadevi<\/p>\n
    (supra) and observed that the employer had urged that the<\/p>\n
    engagement of the workman was not against the post which was<\/p>\n
    sanctioned and contrary to the statutory rules. The Court<\/p>\n
    observed   that    in    absence
\n                              ig          of    any        pleadings,          evidence          or<\/p>\n
    findings on these aspects including whether there was any<\/p>\n
    vacancy, the Award of the Tribunal granting reinstatement<\/p>\n
    with continuity of service and back-wages was correct. The<\/p>\n
    Court further observed that the decision in the case of State<\/p>\n
    of Karnataka vs. Umadevi (supra) relates to regularization in<\/p>\n
    public   employment      and    has    no     relevance         to     an      Award       for<\/p>\n
    reinstatement of a discharged workman passed by the Labour<\/p>\n
    Court    under   Section       11A    of    the    Industrial            Disputes          Act<\/p>\n
    without any direction for regularization of his service.\n<\/p>\n
    14. None of these contentions raised by the learned Advocate<\/p>\n
    for the petitioner have been either pleaded by the petitioner<\/p>\n
    or proved. In these circumstances, in my opinion, the order<\/p>\n
    of the Labour Court which was confirmed by the Industrial<\/p>\n
    Court must be upheld.\n<\/p>\n
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                                                                          WP\/535\/1997
\n                                  \uff11\uff12<\/p>\n
    15. The facts in the present case and in Krishan Singh’s<\/p>\n
    case are almost identical except that the workman has sought<\/p>\n
    to redress her grievance in the present case by filing a<\/p>\n
    complaint under the MRTU & PULP Act rather than by obtaining<\/p>\n
    a Reference under the Industrial Disputes Act. However, the<\/p>\n
    same principles which have been enunciated in the aforesaid<\/p>\n
    judgment in the Krishan Singh’s case will apply to the facts<\/p>\n
    in the present case. The direction of the Labour Court to<\/p>\n
    grant reinstatement and continuity of service and back-wages<\/p>\n
    to the respondent No.1 from 16th September, 1991 cannot be<\/p>\n
    faulted as admittedly no notice or wages in lieu of notice or<\/p>\n
    retrenchment compensation under Section 25F of the Industrial<\/p>\n
    Disputes Act were tendered to the respondent No.1-workman<\/p>\n
    prior to terminating her services.\n<\/p>\n
    16. The contention of Mr. Rao that there are no vacancies as<\/p>\n
    no work is available is also belied by the pleadings and the<\/p>\n
    findings of the Labour Court that there was no dispute that<\/p>\n
    the job performed by respondent No.1 was available when the<\/p>\n
    order was passed.\n<\/p>\n
    17. The   respondent   No.1-workman   has      been        reinstated            in<\/p>\n
    service and there is nothing on record to indicate that she<\/p>\n
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\n                                                                                  WP\/535\/1997
\n                                          \uff11\uff13<\/p>\n
    was reinstated subject to the result of the present Petition,<\/p>\n
    as suggested by Mr. Rao. Apart from this, the Court while<\/p>\n
    issuing    rule     has    observed   that    the     only       question           which<\/p>\n
    remained was related to the back-wages payable. The back-\n<\/p>\n
    wages were calculated and it was found that Rs.30,000\/- was<\/p>\n
    payable to the respondent No.1-workman as back-wages. Out of<\/p>\n
    this amount, the Court directed the petitioner to deposit Rs.\n<\/p>\n
    10,000\/-      and   permitted\n                                ig    the      respondent         No.1-workman               to\n\n<\/pre>\n
    withdraw Rs.5,000\/- without security and the balance with<\/p>\n
    security. It appears that the amount of Rs.5,000\/- has been<\/p>\n
    withdrawn     by    the    respondent      No.1-workman,            however,           the<\/p>\n
    balance has been invested in a Nationalized Bank. That amount<\/p>\n
    which has been invested in the Nationalized Bank shall be<\/p>\n
    paid   over    to    the    respondent     No.1-workman            together          with<\/p>\n
    accrued interest.\n<\/p>\n
    18. The Writ Petition is dismissed.\n<\/p>\n
    19. Rule discharged.\n<\/p>\n
    20. No order as to costs.\n<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 16:29:23 :::<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court The Administrator vs Alka B. Bramhe & Anr on 28 September, 2010 Bench: Nishita Mhatre WP\/535\/1997 \uff11 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-34602","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nThe Administrator vs Alka B. 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