Nanda vs The Executive Engineer, Public Works Department and Others

Z.A. Haq, J.—Heard Mrs. G. Venkatraman, the learned Advocate for the petitioner and Shri A.K. Bangadkar, the learned Assistant Government Pleader for the respondents.

The petitioner/employee takes exception to the order passed by the Industrial Court, allowing the revision application filed by the respondents/employer and setting aside the order passed by the Labour Court and dismissing the complaint filed by the petitioner.

The petitioner had filed complaint before the Labour Court contending that she was appointed orally as Clerk-cum-Typist by the respondent No. 2, and she was in the employment from 01-08-1989 till 31-10-1991 when her services were orally terminated. The petitioner contended that she was in the employment continuously for two years and three months i.e. more than 240 days and her services were terminated illegally.

The respondents opposed the claim of the petitioner. The respondents pleaded that the petitioner was not appointed as claimed by her and payment was not made to her by the respondents. The respondents stated that as the petitioner was not appointed by them, there was no question of terminating her services.

The Labour Court, by the order dated 08-07-1999, concluded that the petitioner was appointed by the respondents and she had worked in the office of the respondents for more than 240 days in a year and her services were illegally terminated in violation of the provisions of Section 25-F and Section 25-H of the Industrial Disputes Act. The Labour Court directed the respondents to reinstate the petitioner in the post in which she was working, with continuity of service and granted 25% of the back wages.

The respondents being aggrieved by the order passed by the Labour Court had filed revision before the Industrial Court which came to be allowed by the impugned order.

The petitioner being aggrieved by the order passed by the Industrial Court has field this writ petition.

Mrs. G. Venkatraman, the learned Advocate for the petitioner has submitted that the petitioner was working as Clerk-cum-Typist in the office of the respondents and this has been established by her by bringing on the record the evidence which was accepted by the Labour Court and the complaint was allowed. The learned Advocate has pointed out from the order passed by the Labour Court the facts in support of her contention, which were accepted by the Labour Court. The Labour Court has recorded that the diaries maintained by the petitioner from 01-09-1989 till 21-12-1990 showing the details of the work done by her were at Exhibit No. 38 and Exhibit No. 39. The Labour Court has recorded that the inward register (Exhibit No. 40) showed that the petitioner had made entries in the inward register. The Labour Court recorded that the petitioner had made entries in the dak-book and Exhibit No. 156 to Exhibit No. 181 were such entries. The Labour Court has recorded that the petitioner had made entries in the stamp register which are at Exhibit No. 182 to Exhibit No. 189. The learned Advocate for the petitioner has submitted that the post of Clerk was available in the office of the respondents when she was appointed, as the services of Shri Unnatkar who was working in that post earlier, were terminated. The learned Advocate has submitted that Shri Unnatkar had filed complaint before the Labour Court in which the compromise was effected between Shri Unnatkar and the respondents, and Shri Unnatkar came to be reinstated in the post in which he was working. It is submitted that there is no justification on the part of the respondents in not treating the petitioner similarly and depriving her of the legitimate claim for which she is entitled. It is further submitted that the petitioner was not given notice or one month''s salary in lieu of notice and retrenchment compensation was also not given to the petitioner at the time of terminating her services. It is submitted that the Labour Court had properly appreciated the evidence on the record and had passed the order directing the respondents to reinstate the petitioner with continuity of service and to pay 25% of the back wages. It is submitted that the Industrial Court has committed an error in allowing the revision by re-appreciating the evidence which is not permissible in law. It is submitted that the Industrial Court while exercising the jurisdiction under Section 44 of the Industrial Disputes Act, cannot re-appreciate the evidence and come to a different conclusion without finding any illegality or perversity in the order passed by the Labour Court. In support of this submission, Mrs. G. Venkatraman, the learned Advocate has relied on the following judgments:

1) Judgment given in the case of Jayhind Vithoba Mahadik vs. General Manager, Maharashtra Scooters Ltd. reported in 2004 III CLR 166.

2) Judgment given in the case of Sciaky Wire Cut Pvt. Ltd. Co. and Others Vs. Sudhir Vishnu Dhotre and Others, (2008) 2 LLJ 41 : (2007) 6 MhLj 521 .

The learned Advocate for the petitioner has submitted that the Industrial Court has wrongly dismissed the claim of the petitioner on the ground that the petitioner has not been able to produce any appointment order though she is claiming to have been appointed in the employment of the Government of Maharashtra. It is submitted that the petitioner has established that she had been in continuous employment of the respondents for more than two years and three months i.e. more than 240 days and therefore, she was entitled for the relief claimed by her as the action of the respondents amounted to unfair labour practice under Item 5 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. It is submitted that the petitioner is a workman and she is entitled for the protection conferred by the labour laws. In support of her submission, the learned Advocate has relied on the following judgments:

1) Judgment given in the case of Anoop Sharma Vs. Executive Engineer, Public Health Division No. 1 Panipat (Haryana), (2010) 125 FLR 629 : (2010) 4 JT 229 : (2010) 4 SCALE 203 : (2010) 5 SCC 497 : (2010) 3 SLR 663 .

2) Judgment given in the case of Administrator, Kalyan Municipal Corporation, Kalyan vs. Alka B. Bramhe and Another reported in 2010 III CLR 727.

3) Judgment given in the case of Kolhapur District Bank Employees Union vs. Managing Director, Kolhapur District Central Co-op. Bank Ltd. reported in 2011 I CLR 339.

4) Judgment given in the case of Jasmer Singh Vs. State of Haryana(2015) 2 AD 215 : (2015) 144 FLR 837 : (2015) 1 SCALE 360 : (2015) 4 SCC 458 : (2015) 2 SCJ 391 : (2015) 2 SCT 91 : (2015) 1 SLJ 389 .

5) Judgment given in the case of Sudarshan Rajpoot Vs. U.P. State Road Transport Corporation, (2015) 1 ESC 109 : (2015) 144 FLR 7 : (2015) 1 LLN 292 : (2015) 1 SCJ 74 : (2015) 1 SLJ 274 .

Per contra, Shri A.K. Bangadkar, the learned Assistant Government Pleader has submitted that the petitioner is claiming that she was appointed as Clerk-cum-Typist which post falls in Class-III cadre, and as per the rules, these posts are required to be fulfilled, by issuing advertisement and following the procedure which even according to the petitioner was not done. It is submitted that the claim as made by the petitioner that she was orally appointed by the respondent No. 2, cannot be accepted overlooking the mandate of law which requires that the posts in public employment should be filled according to the rules, after issuing advertisement.

It is submitted that the case of the respondents is that the petitioner was not appointed by the respondents and as there was too much work during the period from 01-06-1983 till 07-06-1990, some work was got done from private typing institute and payments were made to the institute for it. In support of his submission, the respondents produced the cash book (Exhibit No. 208). The respondents have examined Shri Ramchandra Ingle, who was working as Senior Clerk in the Daryapur Sub-Division Office from 1987 to 1990, who has stated that the cash book (Exhibit No. 208) was written by him. The respondents have examined Shri Shrikrishna Nandurkar, who was working as Deputy Engineer in the Sub-Division, Daryapur from May 1988 to May 1990, who has stated that he had not engaged the petitioner and that the petitioner was not made any payment by the office. The learned Assistant Government Pleader has submitted that the petitioner relied on the judgment given in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, AIR 2006 SC 1806 : (2006) 6 CompLJ 1 : (2006) 4 JT 420 : (2006) 2 LLJ 722 : (2006) 4 SCALE 197 : (2006) 4 SCC 1 : (2006) 3 SLJ 1 : (2006) AIRSCW 1991 : (2006) 3 Supreme 415 . It is submitted that the Industrial Court has properly allowed the revision and rejected the claim of the petitioner. It is prayed that the writ petition be dismissed.

After hearing the learned Advocates for the respective parties and examining the record of the writ petition, I find that undisputedly the petitioner is making claim for the post of Clerk/Typist. The petitioner claims that she was appointed orally by the respondent No. 2. It is undisputed that the post for which the petitioner is making claim, was not advertised. The issue which arises in the matter is squarely covered by the judgment given in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, AIR 2006 SC 1806 : (2006) 6 CompLJ 1 : (2006) 4 JT 420 : (2006) 2 LLJ 722 : (2006) 4 SCALE 197 : (2006) 4 SCC 1 : (2006) 3 SLJ 1 : (2006) AIRSCW 1991 : (2006) 3 Supreme 415 . Even if the findings recorded by the Labour Court that there is material on the record to show that the petitioner had worked in the office of the respondents are to be accepted, it would be inappropriate to grant reinstatement to the petitioner as prayed by her. It is submitted that the petitioner is not claiming regularisation or permanency and the petitioner is entitled to be reinstated in the post in the same capacity as she was working. However, this relief also cannot be granted to the petitioner as the grant of such relief to the petitioner would block the post of Clerk/Typist, if available with the respondents which, in my opinion, is required to be filled by following the prescribed procedure after issuing advertisement.

Thus, in the facts of the present case, the judgment relied upon by the learned Advocate for the petitioner given in the case of Anoop Sharma Vs. Executive Engineer, Public Health Division No. 1 Panipat (Haryana), (2010) 125 FLR 629 : (2010) 4 JT 229 : (2010) 4 SCALE 203 : (2010) 5 SCC 497 : (2010) 3 SLR 663 , judgment given in the case of Administrator, Kalyan Municipal Corporation, Kalyan vs. Alka B. Bramhe and another reported in 2010 III CLR 727, judgment given in the case of Kolhapur District Bank Employees Union vs. Managing Director, Kolhapur District Central Co-op. Bank Ltd. reported in 2011 I CLR 339 , judgment given in the case of Jasmer Singh Vs. State of Haryana(2015) 2 AD 215 : (2015) 144 FLR 837 : (2015) 1 SCALE 360 : (2015) 4 SCC 458 : (2015) 2 SCJ 391 : (2015) 2 SCT 91 : (2015) 1 SLJ 389 and judgment given in the case of Sudarshan Rajpoot Vs. U.P. State Road Transport Corporation, (2015) 1 ESC 109 : (2015) 144 FLR 7 : (2015) 1 LLN 292 : (2015) 1 SCJ 74 : (2015) 1 SLJ 274 do not assist the petitioner.

Similarly, it cannot be said that the Industrial Court has transgressed its jurisdiction by re-appreciating the evidence.

The Industrial Court has not re-appreciated the evidence but has appreciated the evidence in consonance with the facts on the record. In these circumstances, the judgments relied on by the learned Advocate for the petitioner in the case of Jayhind Vithoba Mahadik vs. General Manager, Maharashtra Scooters Ltd. reported in 2004 III CLR 166 and Judgment given in the case of Sciaky Wire Cut Pvt. Ltd. Co. and Others Vs. Sudhir Vishnu Dhotre and Others, (2008) 2 LLJ 41 : (2007) 6 MhLj 521 , do not assist the petitioner.

In view of the above, I do not find any illegality or irregularity in the impugned order which necessitates the interference by this Court in the extra ordinary jurisdiction. The writ petition is dismissed. In the circumstances, the parties to bear their own costs.

Civil Application (W) No. 785 of 2015.

As the writ petition has been listed for final hearing in normal course and it is decided, the Civil Application (W) No. 785 of 2015 is rendered infructuous and is disposed accordingly.