Full Text
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5674 OF 2022
JUDGMENT
1. The State of Maharashtra through, } Range Forest Officer, Yeola Range, } Taluka, Yeola, Dist. Nashik 423 401 }
2. The Conservator of Forest } Nashik Circle, East Region, } Trimbak Road, Nashik 422 001 }.. Petitioners (Orig.Revision Applicants/Orig. Opponents)
VERSUS
Shri Machindra Hariman Thakare } R/o Yeola, Taluka Yeola, } Dist. Nashik 423 401 }.. Respondent [Orig. Applicant]... Mr. K.S. Thorat, AGP for the Petitioners. Ms. Seema Sarnaik, Advocate for Respondent in WP/5674/2022 & WP/5675/2022.... CORAM: SANDEEP V. MARNE, J. RESERVED ON: 27 OCTOBER 2023 PRONOUNCED ON: 04 NOVEMBER 2023 2023:BHC-AS:33909
JUDGMENT
1. These four petitions are filed by the State Government through the Conservator of Forest challenging the Judgment and Order dated 19 November 2015 passed by the Judge, First Labour Court, Nashik allowing the Complaints filed by the Respondents and directing their reinstatement on original posts as daily wagers with continuity of service and full back wages with effect from 01 January 2006. Petitioners unsuccessfully tested the decisions of Labour Court before the Industrial Court. However, Petitioners’ Revision Applications have been rejected by the Industrial Court by Judgments and Orders dated 27 September 2017, which are also subject matter of challenge in the present petitions.
2. Facts of the case, in brief, are that Respondents came to be engaged as labourers on daily wage basis during various years ranging between 1994 to 1997 by the Forest Department. They performed various duties and responsibilities as per the directions of Range Forest Officer, Forest Guard, Ranger, etc. It is the case of Respondents that their services were orally terminated from 01 January 2006 onwards on account of Complaints filed by them seeking regularisation of their services. Respondents therefore, approached Labour Court, Nashik by filing Complaints under provisions of Section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (‘MRTU and PULP Act’). The Labour Court passed the Judgment and Order dated 19 November 2011 allowing the Complaints directing the Petitioners to reinstate the Respondents on their original posts as daily wagers with continuity of service with full backwages with effect from 01 January 2006. Petitioners challenged the Judgment and Order dated 19 November 2015 of the Labour Court by filing Revision Applications before the Industrial Court, Nashik. However, by Judgment and Order dated 27 September 2017, the Industrial Court rejected the Revisions preferred by the Petitioners. Accordingly, Petitioners have filed the present petitions challenging the decisions of the Labour Court and Industrial Court.
3. Mr. Thorat, the learned AGP appearing for Petitioner-State would assail the orders passed by the Labour Court and Industrial Court by submitting that Respondents were engaged under the Employment Guarantee Scheme (EGS) and that, therefore, there was no employer-employee relationship between the State Government and the Respondents. That, the work allotted under EGS is towards fulfillment of State’s obligations under the provisions of the Maharashtra Employment Guarantee Act, 1977 (EG Act, 1977) and that such engagement does not create employeremployee relationship. He would further submit that Forest Department is not an industry and therefore, the Labour Court did not have jurisdiction to entertain the complaints filed by the Respondents. In support of his contentions, he would rely upon the Judgment of the Apex Court in State of Gujrat Vs. Pratamsingh Narshinh Parmar[1]. He would also rely upon the Judgment of the Single Judge of this Court in Chief Conservator of Forests (Territorial), Nagpur Vs. Ashikque s/o Jabbar Sheikh.[2] He would also submit that the Plantation department is otherwise not an ‘industry’.
4. Mr. Thorat would then invite my attention to the letters dated 16 October 2015 issued by the Range Forest Officer, Yeola (EGS) to demonstrate that the engagements of Respondents were always under EGS. Mr. Thorat would further submit that Respondents did not have any right to seek work from Petitioners even if it is to be assumed that
2 WP 3967 of 2006, decided on 9th March 2012. their employments were not part of EGS. That, their engagements were never continuous and was always subject to availability of work. That, in such circumstances, the Labour Court erred in directing the reinstatement in the absence of any right to seek continuous employment with the forest department.
5. Per contra, Ms. Sarnaik the learned counsel appearing for the Respondents would oppose the petitions and support the orders passed by the Labour Court and Industrial Court. She would contest the claim of Mr. Thorat that the engagements of Respondents were against EGS. She would submit that for securing the job under the EGS, registration with Tehsildar is a mandatory condition under the provisions of EG Act, 1977. That, Respondents never registered themselves with any authority for procurement of any job under the EGS. That, therefore, Petitioners cannot now seek to contend that the engagements of Respondents were under the EGS. She would submit that the letters dated 16 October 2015 were not part of record before the Labour Court or Industrial Court. That, the evidence produced by the Respondents before the Labour Court was sufficient to draw conclusion that their engagement was not against EGS. That, Petitioners produced only a muster roll at Exhibit-C-10, which is a different document than the one now sought to be produced. She would, therefore, submit that the Industrial Court or Labour Court have not committed any jurisdictional error for this Court to interfere with their findings in exercise of jurisdiction under Article 227 of the Constitution.
6. Ms. Sarnaik would further submit that towards implementation of the direction issued by the Labour Court, Respondents have been reinstated in service by order dated 31 October 2016 and therefore, nothing would survive in the present petitions. However, in pursuance of such reinstatement, Petitioners are not paying due wages to Respondents on regular basis but lumpsum amounts are transferred in the accounts of the Respondents without any particulars. That, Respondents are deliberately discriminated because they showed the audacity to approach Labour Court. She would pray for dismissal of the petitions with costs.
7. Rival contentions of the parties now fall for my consideration.
8. The first contention raised by the Petitioners-State Government is that Forest Department is not an ‘industry’ and that therefore, Labour Court did not have jurisdiction to entertain the Complaints filed by Respondents. Reliance is placed on Judgment of the Apex Court in Pratamsingh Narshinh Parmar (supra). However, perusal of that judgment would indicate that the Respondent therein was aggrieved by his non-appointment on the post of Clerk in the Forest Department of State of Gujarat despite his selection. He had grievance about the manner in which selection process was conducted for filling of post of clerk-cum-typist. It was his grievance that he was erroneously terminated from service despite his selection in the selection process. It is in the light of the above factual position that the Apex Court has held in paras 5 and 6 as under:-
5. If a dispute arises as to whether a particular establishment or part of it wherein an appointment has been made is an industry or not, it would be for the person concerned who claims the same to be an industry, to give positive facts for coming to the conclusion that it constitutes "an industry". Ordinarily, a Department of the Government cannot be held to be an industry and rather it is a part of the sovereign function. To find out whether the respondent in the writ petition had made any assertion that with regard to the duty which he was discharging and with regard to the activities of the organisation.where he had been recruited, we find that there has not been an iota of assertion to that effect though, no doubt, it has been contended that the order of dismissal is vitiated for non-compliance of Section 25F of the Act. The State in its counter affidavit, on the other hand, refuted the assertion of the respondent in the writ petition and took the positive stand that the Forest Department cannot be held to be an industry so that the provisions of Section 25F of the Act cannot have any application. In the absence of any assertion by the petitioner in the writ petition indicating the nature of duty discharged by the petitioner as well as the job of the establishment where he had been recruited, the High Court wholly erred in law in applying the principles enunciated in the judgment of this Court in Jagannath Maruti Kondhare (supra) to hold that the Forest Department could be held to be "an industry".
6. The learned single Judge as well as the Division Bench of the High Court have failed to carefully examine the ratio of this Court's judgment in the Jagannath Maruti Kondhare's case (supra), in as much as in para 15 of the said judgment, the Court has quoted the assertions made in the affidavit of the Chief Conservator of Forests and then in para 17, the Court held that the scheme undertaken cannot be regarded as a part of the sovereign function of the State. We are afraid that the aforesaid decision cannot have any application to the facts of the present case where there has not been any assertion of fact by the petitioner in establishing that the establishment to which he had been appointed is "an industry". In this view of the matter, we have no hesitation to come to the conclusion that the learned single Judge as well as the Division Bench committed serious error of law in holding that to the appointment in question, the provisions of the Act apply. We would accordingly set aside the judgment of the Division Bench as well as that of the learned single Judge and hold that the writ petition would stand dismissed.
9. Apart from different facts, where the Respondent therein was vying for the post of Clerk in an office of the Forest Department, deeper reading of observations of the Apex Court in para 6 of the Judgment would indicate that the Apex Court has held that ‘there has not been any assertion of facts by the Petitioners in establishing that the establishment to which he had been appointed is an industry’. Thus, there was no assertion by the Respondent before the Apex Court that the establishment to which he was seeking appointment was an industry. Thus, the decision of the Apex Court in Pratamsingh Narshinh Parmar (supra) essentially turns on facts of that case and the Judgment, in my view, cannot be cited in support of an absolute proposition that none of the activities of the Forest Department can be treated as an ‘industry’ in every case.
10. Reliance is placed on Judgment of a Single Judge of this Court in Chief Conservator of Forests (supra) in which the view is taken that employment under EGS is not an employment in an industry. This Court held in paras 8 and 16 as under:-
8. This Court has taken a view that the employment under the EGS is not an employment in any industry. In the light of this view, the Industrial Court has recorded the finding that by transferring the services of the respondents/ complainants under the EGS, the petitioners/ employers have committed an unfair labour practice under Item 9 of Schedule IV of the MRTU & PULP Act. This finding cannot be sustained. To transfer the employees to work under the EGS to deprive them the work in the industry, is not an unfair labour practice under Item 9 of Schedule IV of the MRTU & PULP Act. There is neither any award, settlement, agreement or statutory provision, which either confers any right upon the respondents/complainants to get the job other than one under the EGS, nor there is any prohibition to the petitioners/employers to provide the work to the respondents/complainants under the EGS. The Industrial Court has, therefore, committed an error in holding that the work performed by the respondents/complainants under the EGS has to be treated as a normal work performed in the industry. The provision of Item 9 of Schedule IV of the MRTU & PULP Act is not at all attracted in the present case.
16. In view of the aforesaid position, the decisions in Mahatma Phule Agricultural University's case, M.P. Agro Industries Development Corpn. Ltd.'s case, Hindustan Aeronautics Ltd.'s case and Casteribe Rajya Parivahan karmchari Sanghatana's case delivered by the Apex Court, and the decision in Pandurang Sitaram Jadhav's case delivered by the Division Bench of this Court, will have to be preferred as against the decision of the learned Single Judge of this Court in Chimna Arjun Jadhav's case. There is neither any pleading nor any material placed on record to show that permanent sanctioned posts/vacancies are available to grant the status and privileges of permanent employees to the respondents/ complainants. The finding of the Industrial Court that the respondents/ complainants were working from the year 1992 continuously and in each year they have completed 240 days' continuous service, will not by itself confer upon the respondents/ complainants any right to get the status and privileges of permanent employees in the absence of permanent sanctioned posts. The Industrial Court has, therefore, committed an error in granting status and privileges of permanent employees to the respondents/complainants.
11. Perusal of findings recorded in para 16 of the Judgment would indicate that the relief granted by the Industrial Court in that case was of permanency, which is not the case in the petitions before me. In my view, therefore, the judgment in Chief Conservator of Forest (supra) would have no application in the facts of the present case.
12. The next issue raised by the State Government is that the engagements of Respondents were against EGS. This assertion is denied by the Respondents. Two sets of enactments are produced before me. Under the EG Act, 1977, every person in rural areas in Maharashtra was conferred right to work i.e. right to guaranteed employment for doing unskilled manual work. For periodical review and supervision of the implementation of the Act, Maharashtra State Employment Guarantee Council was established and the Collector of the district was made responsible for implementation of the scheme in the district. The scheme so prepared provided for registration of names and addresses of persons who volunteer to work under the scheme and such registration is to be done with headquarters of Gram Sevak or Talathi. Upon registration of their names with the registering authority, the registered person gets a right to work under the act failing which they become entitled to payment of unemployment allowance. This is the broad scheme of the Maharashtra Employment Guarantee Act, 1997 which was in vogue when Respondents were initially appointed during the year 1994 to 1997. Therefore to prove that Respondents’ engagements were under EGS, it was incumbent for the Petitioners-State Government to produce some evidence that the Respondents had registered themselves with the registering authority or that work was provided to them by the registering authority. It was also incumbent for the Petitioners-State Government to prove that during such time when the work was not available Respondents were paid nonemployment allowance guaranteed under the Act. Admittedly, no such evidence is produced by the Petitioners before the Labour Court. It is therefore, difficult to believe that their engagements were under the provisions of Maharashtra Employment Guarantee Act, 1977.
13. Mr. Thorat has also placed reliance on the provisions of the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 which was not in vogue when Respondents were initially engaged during the year 1994 to 1997. Therefore, reliance on that Act would be of no avail.
14. Petitioners have placed strong reliance on letters dated 16 October 2015 by the Range Forest Officer, Yeoala (EGS) addressed to the Judge, Labour Court, Nashik giving details of number of days of work performed by each of the Respondents. In the chart annexed to the said letters, there is column under name ‘Scheme’ and under that column the word ‘EGS’ is mentioned. Relying on the word ‘EGS’ mentioned in that Chart Petitioners contend that the engagements of the Respondents were against EGS. However, there is nothing on record to indicate that these letters were proved by examining the Range Forest Officer, Yeoala EGS as a witness. On the contrary what was produced before the Labour Court at Exhibit-C-10 were muster rolls which did not prove engagement against EGS. Assuming that the letter dated 16 October 2015 can be read in evidence, it is difficult to draw any concrete inference, only on the basis of that letter, that engagement of Respondents were only against EGS in the absence of any proof being produced to demonstrate that Respondents had registered themselves with the registering authority under the Maharashtra Employment Guarantee Act, 1977 or that the registering authority allotted them any work or paid non-employment allowance during the gaps. The information contained in the chart would show that during certain periods, Respondents were not employed. However, there is no evidence to prove that they were paid nonemployment allowance during such gap period. I am, therefore, of the view that Petitioners failed to prove before the Labour Court that engagements of Respondents were only against EGS. I, therefore, do not find any error in Labour Court entertaining the Complaints filed by Respondents.
15. So far as merits of the termination is concerned, it is admitted position that the termination of Respondents was effected without following the provisions of Section 25F of the Industrial Disputes Act, 1947. The Labour Court has therefore rightly reinstated Respondents as daily wagers.
16. It must also be borne in mind that the Labour Court has not granted the relief of regularisation to Respondents. It has merely directed that the Respondents should be reinstated in service as daily wagers. Admittedly, Respondents have worked in the Forests for a considerable time and have performed arduous nature of duties, risking their lives on many occasions. In such circumstances, the order passed by the Labour Court and Industrial Court would only ensure that they would continue in employment of the Forest Department as daily wagers in future. It is also required to borne in mind that Respondents are already reinstated in service by issuing order dated 17 October 2016. This would show that the Petitioners are in need of daily wage labourers. In such circumstances, the order passed by the Labour Court and Industrial Court would only ensure that the Petitioners get steady supply of daily wages labourers on account of their of reinstatement. I, therefore, do not find any patent error committed by the Labour Court or Industrial Court in granting relief of reinstatement in favour of the Respondents.
17. So far as the aspect of backwages is concerned, the same would be during the period from 01 January 2006 till reinstatement vide order dated 17 October 2016. The backwages would be in the form of daily wages payable to them during the intervening period from 01 January 2006 to 17 October 2016. Though, Respondents were ready and willing to discharge duties, but they were prevented from doing so on account of their illegal discontinuation by the Forest Department. In such circumstances, the relief of grant of full backwages granted by the Labour Court and upheld by the Industrial Court does not suffer from any patent error.
18. I therefore do not find any error orders passed by the Labour Court and Industrial Court. Writ Petitions are devoid of merits. They are dismissed without any order as to costs.