{"id":63919,"date":"2009-07-29T00:00:00","date_gmt":"2009-07-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-state-of-maharashtra-vs-shri-kishor-shivdas-chaudhari-on-29-july-2009"},"modified":"2017-04-10T11:05:43","modified_gmt":"2017-04-10T05:35:43","slug":"the-state-of-maharashtra-vs-shri-kishor-shivdas-chaudhari-on-29-july-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-state-of-maharashtra-vs-shri-kishor-shivdas-chaudhari-on-29-july-2009","title":{"rendered":"The State Of Maharashtra vs Shri Kishor Shivdas Chaudhari on 29 July, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
The State Of Maharashtra vs Shri Kishor Shivdas Chaudhari on 29 July, 2009<\/div>\n
Bench: P. R. Borkar<\/div>\n
                                     1\n\n\n\n            IN THE HIGH COURT OF JUDICATURE AT BOMBAY \n\n\n\n\n                                                                     \n                          BENCH AT AURANGABAD\n\n\n\n\n                                             \n                  WRIT PETITION NO. 132 OF 1997 \n\n\n\n\n                                            \n     1.    The State of Maharashtra\n     2.    District Maleria Officer,                   Petitioners\/\n           District Dhule.                             ori.Resps.\n\n\n\n\n                                  \n                 versus\n\n\n           r\/of Dhule.\n                     \n           Shri Kishor Shivdas Chaudhari              Respondent\/ori\n                                                      complainant\n                    \n              -------\n     Shri D.V. Tele, A.G.P. for the Petitioners.\n     Shri S.P.Shah, Advocate, holding for  Shri \n     P.M. Shah, Senior Counsel, for  Respondent.\n      \n   \n\n\n\n                       Coram: P.R. Borkar J.\n                       Judgment  reserved  on : 24.07.2009\n                       Judgment pronounced on : 29.07.2009 \n\n\n\n\n\n     JUDGMENT \n<\/pre>\n
     01.         This   writ   petition   is   filed   by   the   State
\n     Government   and   the   District   Malaria   Officer,   Dhule,
\n     being   aggrieved   by   the   judgment   and  order   passed   by
\n     learned Labour Judge, Dhule in ULP complaint No.366 of
\n     1992 decided on 24.2.1994.\n<\/p>\n
     2.          Brief facts giving rise to this petition may
\n     be stated as below;\n<\/p>\n
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\n                                         2<\/span><\/p>\n
                 The   Respondent-complainant   approached   the <\/p>\n
     Labour Court with a complaint that from June 1987 he <\/p>\n
     was   serving   as   a   driver   in   the   office   of   present
\n     appellant   No.   2   District   Malaria   Officer,   and   orally
\n     his   services   were   terminated   on   4.7.1989.     It   is
\n     stated   that   every   time     appellant   No.2-District <\/p>\n
     Malaria Officer used to issue appointment order for 29
\n     days   and   giving   1   or   2   days   break   in   service       and
\n     again used to appoint him for next 29 days.  According <\/p>\n
     to the Respondent-complainant, during the  period June <\/p>\n
     1987   to   3.7.1989   various   appointment   orders   were
\n     issued to him and thus he completed more than 240 days
\n     service in the year preceding the date of termination.\n<\/p>\n
     There   was   no   complaint   against   him.   His   work   was
\n     unblemished.   At the time termination the respondent-
\n     complainant was not paid any retrenchment compensation <\/p>\n
     nor   any   notice   was   issued   to   him   as   required   by <\/p>\n
     Section   25-F   of   the   Industrial   Disputes   Act,   1957
\n     (“The   ID   Act”   for   short).     Thus,   according   to   the
\n     complainant,   there   is   violation   of   Section   25(C),(G) <\/p>\n
     and (N) of the I.D. Act and Rule 81 of the Industrial
\n     Disputes   Rules   1957   (“I.D.   Rules”   for   short).\n<\/p>\n
                 It   is   also   stated   that   work   was   available <\/p>\n
     with   appellant   No.2-District   Malaria   Officer   and   he
\n     was   also   in   need   of   services   of   driver.   The
\n     termination was   in colourable exercise of employer’s
\n     right, in undue haste and in violation of principles
\n     of   natural   justice   and   hence,     complaint   of   unfair
\n     labour   practice   was   filed   under   items   (a),   (b),   (c)
\n     and   (f)     of   The   Maharashtra   Recognition   of   Trade
\n     Unions   &   Prevention   of   Unfair   Labour   Practices   Act, <\/p>\n
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\n                                        3<\/span><\/p>\n
     1971 (“MRTU & PULP Act” for brevity’s sake).\n<\/p>\n
     3.          Appellant   No.2-District   Malaria   Officer <\/p>\n
     filed written statement at Exhibit C-5 and denied the
\n     claim   of   the   respondent-complainant.   It   is   contended
\n     that   the   driver’s   post   should   be   filled   in   through
\n     Regional   Selection   Board   (“RS   Board”   for   short).   The <\/p>\n
     Civil Surgeon  had no authority to recruit the persons
\n     on   the   said   post.     The   complainant   was   appointed   on
\n     temporary   basis   for   29   days   till   availability   of <\/p>\n
     candidate   from   RSB.     In   the   circumstances,   appellant <\/p>\n
     No.2-District   Malaria   Officer   prayed   that   the
\n     complaint be dismissed.\n<\/p>\n
     4.          Learned   Labour   Judge     while   deciding   the
\n     complaint ULP No.366\/1994 came to the  conclusion that
\n     every   time   the   appointment   orders\/letters   each   of   29 <\/p>\n
     days   were   issued;   then   there   was   some   break   in <\/p>\n
     service; the provisions of Section 25(F) of the I.D.
\n     Act were not followed prior to termination. There was
\n     no   notice   of   one   month   or   payment   of   salary   for   one <\/p>\n
     month   in   lieu   of   notice.   According   to   the   learned
\n     Labour Judge,  the respondent-complainant has rendered
\n     continuous service and, therefore, it is held that the
\n     District   Malaria   Officer   has   engaged   into   unfair <\/p>\n
     labour   practice.   The   Learned   Judge,   therefore,
\n     directed   reinstatement   of   the   respondent-complainant
\n     with   immediate   effect.   Benefit   of   continuity   in
\n     service with full back wages was also granted.   It is
\n     this order which is challenged in this petition.\n<\/p>\n
     5.          Shri   D.V.Tele,   learned   A.G.P.   on   behalf   of
\n     the   appellants   submitted   that   it   is   nowhere   disputed <\/p>\n
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\n                                      4<\/span><\/p>\n
     by the respondent-complainant that the RS Board is the
\n     appropriate authority to appoint a peron on the post <\/p>\n
     of driver, permanently. According to him, it is also <\/p>\n
     not   disputed   that   the   Civil   Surgeon   or   the   District
\n     Malaria   Officer   has   no   authority   to   appoint   any
\n     permanent   employee.     It   is   not   the   case   of   the
\n     respondent-complainant   that   regular   procedure   for <\/p>\n
     appointment to the post as laid down in the rules was
\n     followed   in   his   case   and   so,   his   appointment   was
\n     necessarily   of   temporary   or   adhoc   nature.     Learned <\/p>\n
     A.G.P.   Shri   Tele   relied   upon   various   authorities   in <\/p>\n
     support of his submissions.\n<\/p>\n
     6.          In Secretary, State of Karnataka vs. Umadevi <\/p>\n
     (2006) 4 SCC 1 it is laid down that, as per the scheme
\n     provided   under   the   Constitution   and   laws   made
\n     thereunder,   adherence   to   the   rule   of   equality   in <\/p>\n
     public   employment   is   the   basic   feature   of   the <\/p>\n
     Constitution and since the rule of law is the core of
\n     the Constitution, recruitment to services in the Union
\n     Government   and   State   Governments   and                       their <\/p>\n
     instrumentalities     is   governed   by   Acts,   Rules   and
\n     Regulations   made   in   that   behalf.     Equality   of
\n     opportunity is a hallmark and under the circumstances
\n     any   employment   which   is   not   according   to   the   rules <\/p>\n
     cannot   be   protected.     The   Apex   Court   has   also
\n     considered   in   paragraphs   46   and   47   of   the   judgment
\n     that   temporary,   contractual,   casual,   daily   wager   or
\n     adhoc   appointees   dehors   of   the   schme   of   public
\n     employment,   have   no   right   to   be   absorbed   as   regular
\n     appointees   or   granted   permanency   or   continuance   in
\n     public employment.  There is no question of legitimate
\n     expectations.   Long   continuance   of   such   employees   in <\/p>\n
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\n                                       5<\/span><\/p>\n
     public employment cannot give them right of regularly
\n     recruited employees.\n<\/p>\n
                 The Supreme Court has held that such casual,
\n     temporary,   contractual,   daily   wage   workers   or   adhoc
\n     employees   cannot   get   right   of   regularisation   or
\n     permanency which is granted by the Labour Court in the <\/p>\n
     present case.\n<\/p>\n
     7.          In the case of State of Himachal Pradesh vs. <\/p>\n
     Ravinder   Singh<\/a>   2009   AIR   SCW   452  the   Respondent   was <\/p>\n
     daily rated worker in the State Government. He worked
\n     for   ten   years.   His   name   was   neither   sponsored   by
\n     Employment Exchange nor appointment was as per proper <\/p>\n
     procedure for regular appointees. It is held that the
\n     respondent   cannot   claim   regularization   of   his
\n     services.     After   quoting   in     paragraph   7   of   its <\/p>\n
     judgment   paragraphs   22,   27,   36,   39,   42   and   43   from <\/p>\n
     Unmadevi’s   case   (supra),  ultimately   in   paragraphs   8
\n     and 9 the Supreme Court observed as follows;\n<\/p>\n
                       “8.         In addition it has to be noted
\n                 that the Labour Court had observed that the
\n                 name   of   the   respondent   claimant   was   not
\n                 sponsored   by   the   employment  exchange;   there <\/p>\n
                 was   no   appointment   order;   the   requirements
\n                 relating to procedure to be followed at the
\n                 time of recruitment were also not fulfilled.
\n                 There   was   a   mere   back-door   entry.     it   was
\n                 further noted that they were not selected in
\n                 the   manner   as   applicable   to   regular
\n                 employees   who   are   liable   to   be   transferred
\n                 and  are  subject  to   disciplinary  proceedings <\/p>\n
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\n                                       6<\/span><\/p>\n
                 to   which   daily-rated   workers   are   not
\n                 subjected to.\n<\/p><\/blockquote>\n
                       9.    In the background of what has been
\n                 stated   above   the   directions   given   for
\n                 regularization   in   the   post   of   clerk   being
\n                 indefensible are set aside. ………”\n<\/p><\/blockquote>\n
     8.          Further   case   relied   upon   by   learned   A.G.P.
\n     Shri D.V. Tele for the appellants is  Rajasthan  Lalit <\/p>\n
     Kala   Academy   vs   Radhey   Shyam     (2008)   13   SCC   248.  In <\/p>\n
     that case, there was no compliance  of Section 25-F of
\n     the ID Act as in the present case. It is observed in
\n     paragraph 19 thus;\n<\/p>\n
                       “19. Once the termination of service of <\/p>\n
                 an   employee   is   held   to   be   illegal,   the <\/p>\n
                 relief   of   reinstatement   is   ordinarily
\n                 available to the employee. But the relief of
\n                 reinstatement with full back wages need not <\/p>\n
                 be granted automatically in every case where
\n                 the Labour Court\/Industrial Tribunal records
\n                 the finding that the termination of services
\n                 of   a   workman   was   in   violation   of   the <\/p>\n
                 provisions   of   the   Act.     For   this   purpose,
\n                 several factors, like the manner and method
\n                 of   selection;   nature   of   appointment-ad-hoc,
\n                 daily   wage,   temporary   or   permanent   etc.,
\n                 period for which the workman had worked and
\n                 the delay in raising industrial dispute, are
\n                 required to be taken into consideration.”\n<\/p><\/blockquote>\n
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\n                                       7<\/span><\/p>\n
     9.          In   the   present   case   appointment   of   the
\n     respondent-complainant   was   of   temporary   nature.     He <\/p>\n
     was   not   appointed   by   following   due   process   or <\/p>\n
     procedure of selection by the RSBoard.   Civil Surgeon
\n     or   the   District   Malaria   Officer   had   no   authority   or
\n     power   to   appoint   the   complainant   on   permanent   basis
\n     and the said aspect is not disputed even before this <\/p>\n
     court.     Under   the   circumstances,   merely   because   the
\n     respondent-complainant worked for two years by virtue
\n     of various orders each of 29 days at a time and thus <\/p>\n
     completed   240   days   service   in   the   year   preceding <\/p>\n
     termination by itself is not sufficient to hold that
\n     he is entitled to be reinstated with full back wages.
\n     If that is done, the same will amount to giving back-\n<\/p>\n
     door entry to such employees which is disapproved by
\n     the Supreme Court in the case of Umadevi (supra).\n<\/p>\n
     10.         In the  case of Rajasthan Lalit Kala Academy <\/p>\n
     referred to above the respondent employee continued in
\n     service for over 27 years. But, in stead of granting
\n     reinstatement or regularizing his services, following <\/p>\n
     directions were given.\n<\/p>\n
                       “22. In   the   light   of   the   observations
\n                 referred   to   supra   and   having   regard   to   the <\/p>\n
                 nature   and   the   period   of   services   rendered
\n                 by   the   respondent   and   the   fact   that   his
\n                 services   were   terminated   initially   on
\n                 4-4-1981   and   then   on   31-1-1985   and   the
\n                 vicissitudes   of   long-drawn   litigation   the
\n                 respondent has undergone for over 27 years,
\n                 interest of justice would be met if instead
\n                 and in place of directions for reinstatement <\/p>\n
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\n                                       8<\/span><\/p>\n
                 and   back   wages,   a   sum   of   Rs.3   lakhs   is
\n                 directed to be paid to the respondent by way <\/p>\n
                 of compensation. We direct accordingly.  The <\/p>\n
                 payment   shall   be   made   within   eight   weeks
\n                 from   today,   failing   which   it   shall   carry
\n                 interest   @   9%   per   annum   from   the   date   of
\n                 this   judgment   till   the   date   of   actual <\/p>\n
                 payment.”\n<\/p><\/blockquote>\n
     11.         The   last   case   cited   by   Shri   D.V.Tele, <\/p>\n
     learned AGP for the appellants, is  Mahboob Deepak vs. <\/p>\n
     Nagar   Panchayt,   Gajraula   (2008)   1   SCC   575.  In   that
\n     case,   the   appellant   was   a   casual   labour\/daily
\n     wager\/temporary employee who had completed 240 days of <\/p>\n
     continuous   service   in   a   year   was   terminated   without
\n     following without procedure as per Section 6-N of the
\n     U.P.   Industrial   Disputes   Act.     It   was   held   that   the <\/p>\n
     ends of justice would be sub served if payment of Rs.\n<\/p>\n
     50,000\/- is made to the appellant-employee by way of
\n     damages.\n<\/p>\n
      In paragraph 9 it is observed thus;\n<\/p>\n
                       “9.     Due   to   some   exigency   of   work,
\n                 although recruitment on daily wages or on an <\/p>\n
                 ad-hoc basis was permissible, but by reason
\n                 thereof   an   employee   cannot   claim   any   right
\n                 to   be   permanently   absorbed   in   service   or
\n                 made permanent in absence of any statute or
\n                 statutory   rules.   Merely  because  an   employee
\n                 has   completed   240   days   of   work   in   a   year
\n                 preceding the date of retrenchment, the same
\n                 would not mean that his services were liable <\/p>\n
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\n                                        9<\/span><\/p>\n
                 to be regularized. ”\n<\/p><\/blockquote>\n
     In paragraph 12, it is further observed;\n<\/p>\n
                        “12. It is now well settled by a catena
\n                 of   decisions   of   this   Court   that   in   a <\/p>\n
                 situation   of   this   nature   instead   and   in
\n                 place   of   directing   reinstatement   with   full
\n                 back   wages,   the   workmen   should   be   granted <\/p>\n
                 adequate monetary compensation.”\n<\/p><\/blockquote>\n
     12.<\/p>\n
                 Learned Counsel Shri S.P.Shah, on behalf of
\n     the   Respondent,   submitted   that   in   the   present   case <\/p>\n
     complaint   is   not   under   the   I.D.   Act   and   the   case   of
\n     Umadevi (supra) is relating to the I.D. Act.  On both
\n     counts,   this   submission   is   wrong   and   thus   not <\/p>\n
     sustainable.   The principles laid down in the case of <\/p>\n
     Umadevi go to the root of the entire issue of public
\n     employment,   absorption,   regularization   or   permanent
\n     continuation   of   the   casual   or   temporary     or   daily <\/p>\n
     wagers   or   ad-hoc   appointees   or   recruits   and   their
\n     continuation   for   longer     period   in   the   public
\n     employment dehors the Constitutional scheme of public
\n     employment.   The Judgment does not refer only to the <\/p>\n
     cases under the I.D. Act but it deals with the issue
\n     as   a   whole   under   various   provisions   of   the
\n     Constitution and the constitutional scheme. Secondly,
\n     the judgment and order of the learned Labour Judge in
\n     the present case itself shows that it was the case of
\n     the respondent-complainant that   he had completed 240
\n     days in the year preceding to termination and as such
\n     was in continuous service within Section 25-B of the <\/p>\n
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\n                                      10<\/span><\/p>\n
     I.D.   Act   and   his   termination   was   in   violation   of
\n     Section   25F   of   the   Act.   It   is   also   also   contended <\/p>\n
     before   the   Labour   Court   that   there   was   violation   of <\/p>\n
     Section 25(C), (G) and (N) of the I.D. Act and Rule 81
\n     of   the   I.D.   Rules.     Merely   because   instead   of     the
\n     I.D.   Act,   the   Respondent   has   filed   complaint   under
\n     MRTU & PULP Act, he cannot disown the contents of his <\/p>\n
     own complaint as reproduced by the Labour Court.\n<\/p>\n
     13.         Learned   Counsel   Shri   S.P.   Shah   submitted <\/p>\n
     that   in   this   case,   there   is   a   complaint   of   unfair <\/p>\n
     labour practice as defined under Section 26   and the
\n     relief claimed was under Section 30 of the MRTU & PULP
\n     Act. Section 30 reads thus;\n<\/p>\n
                 “30. Powers of Industrial and Labour Courts.\n<\/p><\/blockquote>\n
                 (1)         Where   a   Court   decides   that   any <\/p>\n
                 person   named   in   the   complaint   has   engaged
\n                 in,   or   is   engaging   in,   any   unfair   labour
\n                 practice, it may in its order-\n<\/p><\/blockquote>\n
                 (a)   …………………..\n<\/p><\/blockquote>\n
                 (b)         direct   all   such   person   to   cease
\n                 and desist from such unfair labour practice, <\/p>\n
                 and  take   such   affirmative   action   (including
\n                 payment   of   reasonable   compensation   to   the
\n                 employee or employees affected by the unfair
\n                 labour   practice,   or   reinstatement   of   the
\n                 employee   or   employees   with   or   without   back
\n                 wages,   or   the   payment   of   reasonable
\n                 compensation), as may in the opinion of the
\n                 Court be necessary to effectuate the policy <\/p>\n
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\n                                       11<\/span><\/p>\n
                 of the Act.”\n<\/p><\/blockquote>\n
     So,   it   is   not   that   every   time   employer   engaged   into
\n     unfair   labour   in   respect   of     dismissal   or   otherwise
\n     there should be reinstatement with back wages.   There <\/p>\n
     could   be   even   payment   of   reasonable   compensation   as
\n     laid down in Section 30(1)(b) of the MRTU & PULP Act.\n<\/p>\n
     14.         Learned counsel Shri S.P.Shah also submitted <\/p>\n
     that the case falls under item 1(a), (b), (d) and (f) <\/p>\n
     of   Schedule   IV   to   the   MRTU   &   PULP   Act.   Those   items
\n     read as follows;\n<\/p>\n
                 “General Unfair Labour Practices on the part
\n                 of Employers.\n<\/p><\/blockquote>\n
                 1.    To discharge or dismiss employees-\n<\/p><\/blockquote>\n
                 (a)   by way of victimization;\n<\/p><\/blockquote>\n
                 (b) not   in   good   faith,   but   in   colourable
\n                 exercise of employer’s rights;\n<\/p><\/blockquote>\n
                 (d)   for patently false reasons;\n<\/p><\/blockquote>\n
                 (f) in utter disregard of the principles of
\n                 natural   justice   in   the   conduct   of   domestic
\n                 enquiry or with undue haste;\n<\/p><\/blockquote>\n
     15.         In my considered opinion, looking to the law
\n     laid   down   by   the   Supreme   Court   in   various   cases
\n     referred to above, in present case, the order passed
\n     by   learned   Labour   Court,   directing   reinstatement   of
\n     the respondent-complainant with back wages and benefit
\n     of   continuity   of   service     is   contrary   to   the <\/p>\n
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\n                                        12<\/span><\/p>\n
     principles laid down in the case of Umadevi and other
\n     cases   cited   above.     If   the   impugned   order   is <\/p>\n
     sustained,   that   would   amount   to   granting <\/p>\n
     regularisation   or   permanency   to   a   person   appointed
\n     temporarily   and   appointed   without   following   due
\n     process or procedure for selection.\n<\/p>\n
     16.         In   the   facts   and   circumstances   as   above,
\n     ends of justice would be served by awarding reasonable
\n     compensation   to   the   respondent-complainant   as   per <\/p>\n
     Section   30(1)(b)   of   the   MRTU   &   PULP   Act   and   as <\/p>\n
     observed in cases  referred to above.\n<\/p>\n
     16.         Writ   Petition   is   allowed.   The   judgment   and <\/p>\n
     order   dated   24.2.1994   passed   by   the   Labour   Court,
\n     Dhule in ULP  No.366\/1992 is hereby set aside.  It is
\n     directed   that   the   appellants   shall   pay   to   the <\/p>\n
     respondent-complainant   Rs.25,000\/=   as   compensation <\/p>\n
     under Section 30(1)(b) of the Maharashtra Recognition
\n     of   Trade   Unions   &   Prevention   of   Unfair   Labour
\n     Practices   Act,   1971,   towards   termination   within   a <\/p>\n
     period of three months from today. In case amount is
\n     not paid in time, the same shall carry interest at the
\n     rate   of   9   per   cent   per   annum   from   today   till   actual
\n     payment.\n<\/p>\n
     pnd\/wp132.97                                 (P.R.BORKAR,J.)\n\n\n\n\n                                                ::: Downloaded on - 09\/06\/2013 14:50:43 :::<\/span>\n            13<\/span>\n\n\n\n\n                                        \n                \n               \n          \n       \n      \n      \n   \n\n\n\n\n\n\n                ::: Downloaded on - 09\/06\/2013 14:50:43 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court The State Of Maharashtra vs Shri Kishor Shivdas Chaudhari on 29 July, 2009 Bench: P. R. Borkar 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 132 OF 1997 1. The State of Maharashtra 2. District Maleria Officer, Petitioners\/ District Dhule. ori.Resps. versus r\/of Dhule. Shri […]<\/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-63919","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nThe State Of Maharashtra vs Shri Kishor Shivdas Chaudhari on 29 July, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-state-of-maharashtra-vs-shri-kishor-shivdas-chaudhari-on-29-july-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The State Of Maharashtra vs Shri Kishor Shivdas Chaudhari on 29 July, 2009 - 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