The Chief Executive Officer, Zilla Parishad, Nashik v. Balu Baburao Dhanwate; The Chief Executive Officer, Zilla Parishad, Nashik v. Dadasaheb Gangadhar Shete

4.1. After receipt of notice, Respondent No.1 (in both Petitions) filed Civil Application No. 1324 of 2004 and Civil Application NO. 1323 of 2004 under provisions of section 17-B of the said Act claiming wages from Petitioners. By order dated 14.07.2004, this Court disposed of both Applications rejecting their claims.

4.2. Thereafter, in the year 2014, Respondent No.1 (in both Petitions) filed Civil Application No. 2246 of 2014 and Civil Application No. 2247 of 2014 seeking expeditious hearing of the Petitions, however both these Applications were disposed of by this Court by order dated 28.10.2014 with directions for placing these Petitions on final hearing board as per chronology.

4.3. By order dated 16.07.2015, both Petitions were dismissed for default by this Court as none appeared for Petitioners. Subsequently, Petitioners filed Civil Application No. 2463 of 2015 and Civil Application No. 2464 of 2015 seeking restoration of both Petitions and by order dated 07.10.2015, this Court allowed both Applications and the Petitions were accordingly restored to the file of this Court.

5. I have heard Mr. Rane, learned Advocate for Petitioner, Mr. Deore, learned Advocate for Respondent No.1 and Mr. Vanarase, learned AGP for Respondent Nos. 2 and 3 – State and with their able assistance perused the pleadings and record of the case. 5 of 16

6. Mr. Rane would argue that Respondent No.1 (in both Petitions) were appointed for a temporary period for completion of specific work under EGS formulated by the State Government and no employer – employee relationship existed between Petitioners and both Respondents. He argued that EGS was formulated by State Government to provide work to rural and unskilled people for a specific period and hence Petitioners were not liable to absorb such workers employed under EGS or regularize their services on permanent basis. He further argued that appointment of Respondent No.1 (in both Petitions) was purely on temporary basis with due breaks and issuance of fresh appointment letters for specific periods of six months. Hence he would submit that there was no question of issuing termination notice or giving any compensation in lieu of their termination. He argued that Respondent No.1 (in both Petitions) failed to produce any proof of completion of 240 days of continuous service in any year of their service tenure. He would submit that Government Resolution dated 01.12.1995 passed by the State Government for absorption of Muster Assistants in permanent services cannot be applied retrospectively in the present case as both of them were not employed beyond 11.10.1986.

6.1. In support of his above submissions, Mr. Rane has placed reliance on the decision dated 02.02.2017 in the case of Shri Asaram 6 of 16

7. PER-CONTRA, Mr. Deore, learned Advocate appearing for the contesting Respondent in both Writ Petitions has drawn my attention to the judgment and order passed by the learned Labour 7 of 16 Court which is upheld by the learned Industrial Court and would submit that the Labour Court has rightly held that the original complainant i.e. Respondent No.1 was employed for more than 3 years and certificate to that effect had been issued by the Petitioners’ Officer which indicated that the Respondent / employee were never engaged under EGS as their work was of a permanent nature i.e. clerical.

7.1. He has argued that the Labour Court rightly held that the Petitioner adduced no evidence to demonstrate that the Respondent No.1 was employed under EGS and to demonstrate that at the time of termination of Respondent No.1, work under EGS was finished or completed permanently.

7.2. He has next argued that stand taken by Petitioners that they were an implementing agency and there was no employer-employee relationship is well answered by the decision in the case of Divisional Manager, Division Wanprakalpa Office (W) Forest Development Corporation Nashik Versus Chimna Arjun Jadhav[1] wherein in paragraph No.10 of judgment and order dated 13.06.2001 it is held that merely because the Petitioner was an implementing agency for the State Government Scheme, that would not alter the jural relationship between the Petitioner Corporation and the workman engaged by them and in such circumstances the respondent 1 2001 (4) Mh.L.J. 97 8 of 16 complainants / workmen are engaged by Petitioner - Corporation and there exists employer-employee relationship between them.

7.3. He would submit that thus Respondent No.1 was not employed under EGS which was rightly held by Labour Court in paragraph No.15 of its judgment and order dated 05.08.2000; that it was specifically held by Labour Court that Respondent No.1 was not an unskilled manual worker which is the nucleus of EGS; that Respondent No.1 was appointed to perform clerical work like preparation and maintenance of muster rolls and assignment of work which is of permanent nature and not seasonal work; that EGS nowhere contemplated about appointment of Muster Assistant. Thus according to him the Labour Court rightly held that Muster Assistant was not part of EGS on the backdrop of the material placed on record and the decision passed by the Apex Court and this Court which were relied upon by the answering Respondents.

8. I have heard submissions made by both learned Advocates and considered the judgments passed by the learned Labour Court and the learned Industrial Court which are impugned before me. In the first instance, it needs to be emphasized that in the decision of the learned Labour Court dated 05.08.2000, there is a categorical findings returned in respect of the fact that the Respondent No. 1 was a workman within the meaning of Section 2(s) of the said Act in the 9 of 16 affirmative and that he has proved that the work of the Respondent is an industry within the meaning of Section 2(j) of the said Act.

9. It is seen that both complainants / employees / Respondent No. 1 led oral evidence on oath about their employment from 1983 to

1986. They produced certificates issued by Petitioners certifying their length of employment by leading evidence. It is pertinent to note that the learned Labour Court has recorded finding that the evidence indicated that the complainants / employees were never EGS labourers and that different project works were undertaken under EGS and employment was given to them on one project after the other. A further categorical finding has been given on the basis of oral as well as documentary evidence recorded by the learned Labour Court to the effect that such evidence sufficiently established that both complainants / employees / Respondent No. 1 were employed for more than 3 years and their services were continuous as contemplated under the provisions of Section 25(B) of the said Act. Perusal of the judgment of the learned Labour Court further reveals that Petitioners did not lead or adduce any evidence to show that at the time of termination of services of the complainants / employees / Respondent No. 1, EGS works had indeed finished or completed permanently. Hence, in the absence of any evidence led by Petitioners before the learned Labour Court, it was not possible for the learned Labour Court 10 of 16 to accept the case of the Petitioners. These findings of the learned Labour Court have been upheld by the Industrial Court. Further perusal of the judgment passed by the learned Labour Court reveals that after discussion on the case law relating to appointment of complainants / employees on EGS project and as to whether the EGS project is an industry or otherwise, a positive finding has been given to the effect that the evidence placed on record indicated that complainants / employees / Respondent No. 1 were not unskilled manual workers and that EGS contemplated appointment of Muster Assistant independent of the provisions of the said Act for carrying out incidental duties of preparation, maintenance of muster rolls and assignment of works etc. and their duties were essentially clerical in nature. The learned Labour Court has categorically held that merely because of complainants were appointed to work on EGS projects it would not be sufficient to hold that their employment was subject to the provisions of EGS. The learned Labour Court has held that having regard to the material and record and ratio of the decision of the Supreme Court in the case of Chief Conservator of Forest and Anr. Vs. Jagannath Maruti Kondhare etc.[2] and the decision of the Division Bench of this Court in the case of M.D. Khairnar and Ors. Vs. State of Maharashtra and Ors.3, the complainants / employees / Respondent No. 1 were independently appointed as Muster Assistants by giving 2 1996 CLR 680 SC 3 1985 CLR 649 (Bom. High Court) 11 of 16 them separate appointment orders and therefore concluded that they were doing mainly clerical work and were thus ‘workmen’ as defined under the said Act and therefore provisions of both the said Act and the MRTU & PULP Act were applicable to them.

10. The learned Labour Court has held that reference to Government Resolution dated 01.12.1995 could not be made applicable directly to the case of the complainants / employees / Respondents because it was concerned with examining whether their termination from service amounted to unfair labour practice or otherwise. In that view of the matter, the learned Labour Court concluded that their termination was an unfair labour practice and hence directed reinstatement.

11. In so far as determination of issue Nos.[3] and 4 by the learned Labour Court is concerned, it is seen that oral evidence of the complainants / employees / Respondent No. 1 was led before the learned Labour Court that they were employed in 1983 and served till 1986, when their services were finally terminated. The learned Labour Court has stated that after going through the oral evidence of both complainants / employees / Respondent No. 1, the fact of their continuous employment and abrupt termination has remained unshaken. Contrary thereto, the learned Labour Court observed that Petitioners herein did not lead or produce any evidence on record and 12 of 16 that they have at least produced their appointment orders and attendance register or pay register to show their status. However that was not done by Petitioners.

12. I have perused the judgment passed by the learned Labour Court which is a detailed reasoned judgment on all issues taking into account and appreciating the entire evidence produced by the complainants / employees / Respondent No. 1 before the learned Labour Court and I find that no reason as to why the said decision needs to be differed with.

13. The learned Industrial Court while passing its judgment and order has upheld the findings passed by the learned Labour Court on both the principal issues and given its reasoning in paragraph Nos.[7] and 8 of its decision in Revision proceedings.

13.1. For the purpose of reference, paragraph Nos.[7] and 8 are reproduced below:-

13.2. Identical reasons have been given in respect of both Respondent No. 1 and I find that no reason to interfere with the concurrent findings returned by the learned Labour Court and the learned Industrial Court.

14. Both the judgments are therefore sustained. 14 of 16

15. In the present case, it is seen that pursuant to termination, the learned Labour Court and the learned Industrial Court have held that the employees / Respondent No. 1 shall be entitled for reinstatement but without any back wages. It is argued on behalf of the contesting Respondents that the said finding in not granting back wages is a gross error on the part of the learned Labour Court as also the learned Industrial Court. However they have not independently challenged the said finding of the learned Labour Court and the Industrial Court for this Court to consider their grievance.

16. Record of the case does not indicate the details of the Respondent No. 1 in both Writ Petitions and their respective date of birth and date of superannuation and hence in that view of the matter, in the event if both Respondent No. 1 have retired, upholding the order of reinstatement shall entitle them to only for benefit of continuity of service w.e.f. the date of their termination and thus consequential pensionary benefits / retirement benefits as applicable in accordance with law.

17. In that view of the matter, both the judgments passed by the learned Labour Court dated 05.08.2000 and the learned Industrial Court dated 01.11.2001 are upheld. 15 of 16

18. With the above directions, both Writ Petitions i.e. Writ Petition Nos. 4103 of 2003 and 4110 of 2003 are dismissed. [ MILIND N. JADHAV, J. ] Ajay 16 of 16 MOHAN AMBERKAR