Partly allowed

Chairman M.S.E.B.Bombay and Anr. v. Shaikh Abdul Alim Shaikh Amir

Bombay HC21 Aug 2014CA/6480/2001

Case brief

AI extract

What is this about?

This Letters Patent Appeal quashed orders granting reinstatement to a daily wager employee. The High Court held that reinstatement was unjustified due to the nature of employment and awarded damages in lieu.

What did the court decide?

Damages of Rs.1,00,000/- awarded to the complainant; no order as to costs; lower orders quashed.

Chairman M.S.E.B.Bombay and Anr. Vs Shaikh… — Pension and Retirement Benefits | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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LETTER PATENT APPEAL NO. 173 OF 2002

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WITH

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CIVIL APPLICATION NO. 6480 OF 2001

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The Chairman, Maharashtra State Electricity Board, Prakash Gad Bombay 2. The Executive Engineer, U/R. Division, Nanded, Maharashtra State Electricity Board, Nanded 3. The Assistant Engineer, Sub Division, Bhokar ...Appellants Tq. Bhokar, District Nanded (Ori. Respondents) versus Shaikh Abdul Alim s/o Shaikh Amir Aged adult, Occ. Service Residing at Silal Nagar, Tq. Bhokar ...Respondent District Nanded (Ori. Complainant) ….. Mr. Avishkar S. Shelke, advocate for appellants Mr. M.B. Sandanshiv, advocate for Respondent ..... CORAM : R. M. BORDE AND V. K. JADHAV, JJ. DATED: 21^st AUGUST, 2014

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JUDGMENT (PER V.K. JADHAV, J.) :-

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Heard learned counsel for the appellant-original complainant

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and learned counsel for the respondents-employer.

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Being aggrieved by the judgment and order passed by learned Single Judge of this Court dated 18.7.2001, in writ petition No. 644 of 2000, the appellant prefers this Letters Patent Appeal. Hereinafter for the sake of convenience, the parties are referred to as per their original status before the Member, Industrial Court.

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Brief facts giving rise to the present Letters Patent Appeal are as follows.

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The complainant had filed a complaint under Section 28 r.w. Item 5, 6 and 9 of Schedule IV of Maharashtra Recognition and Trade Unions and Prevention of Unfair Labour Practice Act 1971.

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The complainant Shaikh Abdul Alim claims as an employee of

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the respondent. According to him, he was appointed as a junior clerk on daily wages of Rs.15/- per day in the month of August, 1993 and respondent No.2 had given approval for his appointment. It was oral appointment given to him by respondent No.3 with approval of respondent No.2. The complainant had discharged his duties/services continuously for more than 240 days in each calender year. As such, the complainant had acquired the status of

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permanency. The post on which he was working is vacant and sanctioned post by respondent No.1. However, respondents had intentionally avoided to give him status of permanency with a view to deprive him the benefits of permanent employee. In view of filing of complaint before the Industrial Court and even after passing of interim order, the services of the complainant have been illegally stopped and terminated by respondents w.e.f. 20.9.1995.

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The respondents employer have denied that the complainant was serving as junior clerk since August 1993. It has contended that the complainant was given work on contract basis and he has actually worked periodically as and when the work was available. Thus, according to the respondents, the complainant was and is not the employee of the respondents. It has denied that the complainant has completed 240 days of continuous service with the respondents. It has further admitted that the complainant was paid payment on docket voucher for the purpose of amount notified for contract work for which no muster was maintained. It has contended that the work that was entrusted with the complainant was and is not a permanent job. Finally, it has submitted that the complainant is not entitled for regularization in service.

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The learned Member of the Industrial Court, Jalna by its order

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dated 20.10.1999 partly allowed the complaint and declared that the respondents had engaged in unfair labour practice against the complainant by not treating the services of the complainant as regular employee on clerical post and not continued him, as such on the said post. The learned Member of the Industrial Court, has further declared that the respondents had illegally terminated the services of the complainant on 20.9.1995 and further directed the respondents to reinstate the complainant in service on regular pay scale without any back wages.

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Being aggrieved by the order passed by the learned Member, Industrial Court, the respondents-employer preferred writ petition No. 644 of 2000 before the learned Single Judge. The learned Single judge of this Court by order dated 18.7.2001 rejected the petition. Hence this Letters Patent Appeal preferred by the respondents employer.

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Learned counsel for the employer submits that the complainant was appointed on contract basis on daily wages. Besides it, the assignment was on ad-hoc and temporary basis. There is no post sanctioned and thus, there is no question of regularization for his so called appointment. It has also submitted that mere completion of 240 days service gives or create no right to ask for regularization.

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Learned counsel for the employee-complainant has supported the order passed by learned Single Judge in aforesaid writ petition.

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Undisputedly, the complainant had completed 240 days of continuous service in a year preceding the order of termination. The complainant had worked as daily wager for more than two years continuously. Further more, the learned Member of the Industrial Court has recorded the finding in negative so far the contention raised by the employer to the effect that complainant was given work on contract basis for specific period as and when the work was available. The complainant by amending the complaint brought to the notice of the Industrial Court that his services have been terminated on 20.9.1995 by the respondents, however, the same was not challenged by the respondents-employer. There is no evidence that provisions of Section 25F and 25G of Industrial Disputes Act, 1947 about termination notice and retrenchment compensation have been followed before terminating the services.

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In the case of Telecom District Manager vs. Keshab Deb reported in (2008) 8 SCC 402 , the Hon'ble Supreme Court in identical case held that termination of workman, who was daily wager was illegal on diverse ground including violation of provision of

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Section 25F. The Hon'ble Supreme Court has further observed that even in the case where the order of termination was illegal, automatic directions for reinstatement with full back wages was not contemplated. Thus, the Hon'ble Supreme court substituted the order of reinstatement by order of compensation of Rs.1,50,000/-. Similarly, in the case of Jagbir Singh vs. Haryana State Agriculture Marketing Board reported in (2009) 15 SCC 327 , the Hon'ble Supreme Court granted compensation of Rs.50,000/- to the workman in lieu of reinstatement with back wages, where the workman had worked from 1.9.1995 to 18.7.1996 as daily wager. In the case of Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub Division, Kota vs. Mohan Lal, reported in 2013 AIR SCW 4877, wherein similar issue was involved, the Hon'ble Supreme Court has taken a view that in such case in lieu of reinstatement, monetary compensation would be an appropriate relief.

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In the case in hand, as a matter of fact, the complainant had worked hardly for two years on daily wages and thereafter illegally retrenched. In view of all relevant facts, including the mode and manner of appointment of the complainant, his nature of employment, length of service, we are clearly of the view that relief of reinstatement in this case cannot be justified.

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13. In view of aforesaid discussion, we pass the following order:-

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I. Letters Patent Appeal is partly allowed.

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II. The order dated 18.7.2001 passed by learned Single Judge of this Court in writ petition No. 644 of 2000 as well as order dated 20.10.1999 passed by the Member, Industrial Court, Jalna in Complaint (ULP) No. 169 of 1995 are quashed and set aside.

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III. The complainant-appellant shall be entitled to receive damages to the tune of Rs.1,00,000/- (Rupees One lac only). The amount of damages shall be paid to the complainant-appellant as expeditiously as possible, preferably within three months from today.

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IV. There shall be no order as to costs.

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In view of disposal of Letters Patent Appeal, pending Civil application No. 6480 of 2001, accordingly stands disposed of.

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rlj/

Chairman M.S.E.B.Bombay and Anr. v. Shaikh Abdul Alim Shaikh Amir

Case brief

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What did the court decide?

Chairman M.S.E.B.Bombay and Anr. v. Shaikh Abdul Alim Shaikh Amir

Case brief

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What did the court decide?

What the court decided

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