ORAL JUDGMENT:
1. This writ petition takes exception to the order dated 25/07/2005 passed by the learned Member, Industrial Court, Chandrapur dismissing the Revision Application filed by the petitioner and affirming the order passed by the Labour Court dismissing both the complaints filed by the petitioner.
2. According to the petitioner, he was qualified to hold the post of Live Stock Supervisor. He was initially appointed by the respondent as Live Stock Supervisor on 28/01/1989. He was permitted to work at short intervals after giving technical breaks. His services came to be terminated on 23/11/1990 without assigning any reason. According to the petitioner, aforesaid act was in violation of Section 25F of the Industrial Disputes Act, 1947 (for short ‘Act of 1947). The petitioner therefore filed complaint U.L.C No. 48 of 1991 invoking Item No. 1 of Schedule-IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short ‘Act of 1971).
3. The respondent opposed aforesaid complaint by filing written statement. It was the stand of the respondent that the post in question was to be filled in by the candidates who were selected by the Regional Selection Board. On account of administrative convenience and exigencies of work, appointment for a period of six months were made on temporary basis. It was further stated that the services of the petitioner were of a contractual nature and hence there was no question of paying compensation.
4. During the pendency of said complaint, the petitioner had moved an application for grant of interim relief. By order dated 08/08/1991, the Labour Court allowed aforesaid application and directed reinstatement of the petitioner by way of interim relief.
5. According to the petitioner, though he was in employment on the basis of the interim order passed in Complaint No. 48 of 1991, his services came to be terminated again with effect from 02/11/1993. He therefore filed another complaint bearing Complaint No. 346 of 1993 invoking Item No. 1 of Schedule-IV of the Act of 1971. The respondent filed its written statement and took the stand that on 03/02/1993, the earlier complaint had been dismissed for non-appearance of the complainant-petitioner. Though aforesaid complaint was restored on 29/12/1993, as a candidate was received from the Regional Selection Board, said candidates was duly appointed.
6. The parties led evidence in complaint ULC No. 48 of 1991. The Labour Court while deciding complaint ULC No. 48 of 1991 recorded a finding that the appointment of the petitioner was on temporary basis. It further held that the appointment was of a stop-gap nature till a suitable candidate was received from the Regional Selection Board. It further held that no unfair labour practice had been engaged by the respondent and hence though the petitioner had completed 240 days service, the provisions of Section 25F of the Act of 1947 were not attracted as the case of the petitioner was covered by provisions of Section 2(oo)(bb) of the Act of 1947. Hence by order dated 26/06/2001, aforesaid complaint came to be dismissed.
7. As regards the subsequent complaint, the Labour Court held that petitioner was in temporary employment subject to availability of suitable candidate. It further held that no unfair labour practice had been committed by the respondent while terminating the services of the petitioner. Hence by order dated 27/06/2001 Complaint U.L.C No. 246 of 2013 was also dismissed.
8. The petitioner being aggrieved by the both the aforesaid orders, filed two revision applications before the Industrial Court. Both the applications were heard together and by common order dated 25/07/2005, the Industrial Court affirmed the findings recorded by the Labour Court and dismissed both the revision applications. This common order dated 25/07/2005 has been subjected to challenge in the present writ petition.
9. Ms. K.K Pathak, learned counsel appearing for the petitioner submitted that both the Courts erred in refusing to grant relief to the petitioner. She submitted that the petitioner had being discharging duties on a vacant post since 10/01/1989. By virtue of interim relief granted on 08/08/1991, the petitioner continued in employment. The petitioner having completed services of 240 days, he was entitled to protection under the provisions of Section 25F of the Act of 1947. She further urged that aforesaid provisions were mandatory in nature and the petitioner could not have been denied relief by relying upon provisions of Section 2(oo)(bb) of the Act of 1947. She submitted that the nature of employment of the petitioner indicated that there was need of work on the post of Live Stock Supervisor and that the post in question was also a sanctioned post. She submitted that the provisions of Section 2(oo)(bb) of the Act of 1947 were not attracted to the case in hand. As work was available and the post of Live Stock Supervisor was in existence, the petitioner was entitled to be reinstated on the post of Live Stock Supervisor.
10. In support of her contention that the petitioner was entitled for relief of reinstatement with backwages on account of violation of provisions of Section 25F of the Act of 1947 and that provisions of Section 2(oo)(bb) of the Act 1947 were not attracted, the learned Counsel for the petitioner relied upon the following judgments:
[a] Ramesh Kumar v. State Of Haryana. 2010 (3) Mh.L.J 537.
[b] Krishan Singh v. Executive Engineer (2010) 3 SCC 637.
[c] Harjinder Singh v. Punjab State Warehousing Corporation 2010 II LLJ 277.
[d] Anoop Sharma v. Executive Engineer 2010 II CLR 1.
[e] Devinder Singh v. Municipal Council, Sanaur, Sanaur (2011) 6 SCC 584 and
[f] BSNL v. Bhurumal (2014) 7 SCC 177.
As regards the relief of backwages is concerned, the decision in Deepali Gundu Surwase v. Kranti Junior Adhyapak Maha Vidyalaya (2013) 10 SCC 324 was relied.
11. Though the respondent has been duly served, there is no appearance on its behalf to contest the proceedings. With the assistance of the learned Counsel for the petitioner, I have gone through the relevant record as well as the impugned orders. The order of appointment of the petitioner on the post of Live Stock Supervisor dated 10-1-1989 indicates that said appointment is for temporary period till 30-6-1989. The petitioner was appointed on a vacant post with Panchayat Samiti, Gondpipri. It is to be noted that the petitioner was thereafter given breaks for one or two days and was reemployed thereafter. Such orders of appointment are dated 3-6-1989, 19-12-1989 and 21-6-1990. The services of the petitioner came to be terminated on 27-12-1990. The order of termination indicates that the post held by the petitioner was falling under the authority of the Chief Executive Officer who had made temporary appointment.
12. As stated above, by virtue of interim relief granted on 8-8-1991, the petitioner had been reinstated till the disposal of the main complaint or till the candidate from the Selection Board was available. During pendency of aforesaid complaint, the services of the petitioner were again terminated on the ground that a candidate from the Regional Selection Board was available. In the subsequent complaint preferred by the petitioner, his application for interim relief was again allowed due to which he continued on the said post till both the complaints were finally decided on 26-6-2001.
13. It is the case of the petitioner that he was appointed on a vacant post and had completed 240 days service and hence, it was necessary for the respondent to have complied with provisions of Section 25F of the Act of 1947 before his services could have been put to an end. On the other hand, it is the case of the respondent that the post Live Stock Supervisor was to be filled in by the candidates sent by the Regional Selection Board and till such candidate was duly sent, it was open for the respondent to make temporary arrangements. According to the respondent, it is in that background that the petitioner had been appointed. The respondent had relied upon Government Resolution dated 14-8-1990 to canvas that the stop gap arrangements could be made for the purposes of exigency of the work.
14. The Labour Court after considering evidence on record found that initial complaint filed by the petitioner had been dismissed for want of prosecution. Thereafter on 25-1-1994, a candidate who was selected by the Regional Selection Board had been made available due to which services of the petitioner were terminated. Admittedly, though the petitioner had completed service of 240 days, retrenchment compensation under Section 25F of the Act of 1947 had not been paid. The Labour Court came to the conclusion that the respondent did not commit any unfair labour practice when it terminated the services of the petitioner after considering the nature of his appointment and he not having been recommended by the Regional Selection Board.
The Industrial Court in the revision application found that though the petitioner was working on a vacant post, said post was required to be filled in by following the prescribed procedure. It was further held that provisions of Section 25F of the Act of 1947 were not attracted considering the nature of appointment which was till availability of candidates selected by the Selection Board.
15. The initial order of appointment of the petitioner itself indicates that the same was for specified period on a temporary basis. Considering Government Resolution dated 14-8-1990, it is clear that the post in question was required to be filled in through candidates selected by the Regional Selection Board. Hence, even if the petitioner had completed period of 240 days service, that would not give him any further right especially in view of provisions of Section 2(oo)(bb) of the Act of 1947. It is to be noted that both the Courts have found that no unfair labour practice had been proved to have been committed by the respondent. There was no evidence on record to hold that the petitioner had been discriminated against. Considering the nature of the petitioner's appointment being shown to be temporary coupled with the fact that the post was to be filled by a candidate selected by the Regional Selection Board, it cannot be said that any unfair labour practice was committed when services of the petitioner came to be terminated on account of availability of the selected candidate.
16. The decisions relied upon by the learned Counsel for the petitioner pertain to violation of provisions of Section 25F of the Act of 1947. It has been held in Ramesh Kumar, Krishan Singh, Harjinder Singh, BSNL and Anoop Sharma (supra) that termination of services on completion of 240 days without complying with the provisions of Section 25F of the Act of 1947 renders such termination illegal. In Devinder Singh (supra) the plea of the employer of justifying the order of termination by relying upon provisions of Section 2(oo)(bb) was not found to be satisfactorily proved.
In the case in hand, the finding of the Labour Court as regards temporary nature of appointment of the petitioner and the same being subject to availability of a regularly selected candidate has been confirmed by the Industrial Court in revisional jurisdiction. Hence, The decisions relied upon by the learned Counsel for the petitioner cannot be made applicable to the facts of the present case.
17. In GM, Tanda Thermal Power Project v. Jai Prakash Srivastava, (2007) 14 SCC 98, it was observed that in a case of contractual appointment, ordinarily, there cannot be an order of reinstatement and the agreement between the parties should be given due weight-age. Similar view has been taken in Bhavnagar Municipal Corporation v. Salimbhai Umarbhai Mansuri., (2013) 14 SCC 456, wherein it was observed that the workman would be governed by the terms of appointment which had been accepted by him. In Kishor Chandra Samal v. Orissa State Cashew Development Corporation Ltd., (2006) 1 SCC 253 while considering various orders of appointment for a specific period, it was held that the provisions of Section 2(oo)(bb) of the Act of 1947 stood clearly attracted.
18. Even otherwise, it is to be noted that the appointment of the petitioner was of a temporary nature till availability of the selected candidate. Even if the relief of reinstatement were to be granted, the same would be as a temporary employee on the same post as if the order of termination had not been passed. In said eventuality also, the services of the petitioner would be required to be discontinued on availability of a selected candidate. In the light of observations made in the Regional Manager v. Kamalkumar, (2007) 9 SCC 358, no larger relief can be granted to the petitioner ignoring the nature of his appointment.
19. Hence, from aforesaid, it is clear that there is no scope to interfere with the impugned order. Both the Courts have considered the nature of the petitioner's appointment and have thereafter proceeded to deny a relief to him. It is not a case of any perverse findings being recorded. In absence of any jurisdictional error, the challenge to the impugned orders cannot be accepted. Hence, the writ petition stands dismissed with no order as to costs. Rule stands discharged accordingly.