RAJARAM DHAKATU GAIKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BY this petition, the petitioner challenges the Award dated 27. 9. 1995 passed by the Presiding Officer, Labour Court, Kolhapur in Reference (IDA) No. 43 of 1988. The question that fell for consideration before the Court was whether the termination of the temporary services of the petitioner was legal or illegal and whether he will be entitled to reinstatement with full back wages. The Labour Court has found against the petitioner and has held that the petitioner is not entitled to reinstatement, continuity of service and back wages.

(2.) IT is the case of the petitioner that he was initially appointed as watchman/chowkidar on temporary basis on 2. 2. 1984 and he worked till 31. 3. 1985. He was paid but no order of appointment was issued. He was again appointed by order No. 118 dated 14. 5. 1985 for the period from 1. 4. 1985 to 30. 6. 1985. Thereafter by order No. 208 dated 6. 9. 1985, he was appointed for the period from 3. 7. 1985 to 30. 9. 1985; by order No. 267 dated 20. 11. 1985 he was appointed for the period of 3. 10. 1985 to 30. 11. 1985, and by order No. 288 dated 11. 12. 1985 he was appointed for the period from 2. 12. 1985 to 31. 12. 1985. According to the petitioner he also worked for the period from January 1986 to April 1986 and he was paid for that work, but no appointment order was issued. It was his further case that again after 1. 5. 1986, the appointment orders were given to him from time to time pursuant to which he worked till 16. 12. 1986. It was the case of the petitioner that he was a temporary employee and that he has completed more than one year's continuous service and therefore, in terms of provisions of Section 25-F of the Industrial Disputes Act, he was entitled to be given one month's notice in writing or wages for the period of one month before the termination of his service. It is further claimed that the petitioner was also entitled to retrenchment compensation as per the provisions of Section 25-F of the Act. As neither a notice was issued nor retrenchment compensation was paid, according to the petitioner, termination of his services is illegal and therefore, he is entitled to reinstatement with full back wages. The order passed by the Labour Court, however, shows that the Labour Court has found that before 1. 5. 1986 the petitioner was appointed as watchman by the orders issued by the Executive Engineer, Ratnagiri (Environmental Engineering Construction Division, Ratnagiri ). However, the petitioner has not joined the Executive Engineer, Ratnagiri (Environmental Engineering Works Division, Ratnagiri) as a party and therefore, the services rendered by him pursuant to the appointment orders issued by the Executive Engineer, Ratnagiri, cannot be taken into consideration for finding out whether the petitioner had worked for 240 days in a year. The Court had stated that because the Executive Engineer, Chiplun Sub Division, was the only party joined by the petitioner as a party respondent, the services rendered by the petitioner workman pursuant to the orders issued by the Chiplun Sub Division, namely, the orders from 1. 5. 1986 and so on are taken into consideration, the petitioner does not complete service of 240 days in a year and therefore, the provisions of Section 25-F are not attracted. The second reason that appears to have been weighed with the labour court is that the name of the petitioner was not recommended for appointment by the employment exchange.

(3.) AFTER having heard the learned counsels for both the sides, I find that it has come on the record that there is a Divisional Office of the Environmental Engineering Division at Ratnagiri and the Chiplun Sub Division is part and parcel of that Division. There was no separate Sub Divisional Office at Chiplun till 1. 5. 1986. Therefore, obviously orders of appointments even for the staff working under the Chiplun Sub Division, were also issued by the Executive Engineer, Environmental Engineering Works Division, Ratnagiri and after formation of the Sub Division at Chiplun, the orders were issued by the Executive Engineer of the Sub Division, Chiplun. It is also evident from the record that after creation of the sub-division at Chiplun, it continued to be a part of the Division at Ratnagiri and therefore, in my opinion, merely because the Executive Engineer of the Ratnagiri Division is not joined as party respondent, the services rendered by the petitioner as a watchman under the Chiplun Sub Division pursuant to the orders issued by the Divisional Officer at Ratnagiri, cannot be taken into consideration. Perusal of the averments made in paragraph 2 of the petition by the petitioner, which are made on oath and which have not been controverted by the respondent, despite rule has been issued in this petition, shows that there was regular appointment order were issued in favour of the petitioner from 1. 4. 1985 till 16. 12. 1986. Only from January 1986 to April 1986 there was no appointment order issued. If the services rendered by the petitioner pursuant to the regular appointment orders issued by the Divisional Office at Ratnagiri and Sub Divisional Office at Chiplun, are taken into consideration then one cannot escape from the conclusion that the petitioner has worked more than 240 days in a year. It is pertinent to note here that it is the case of the petitioner himself that he was appointed on temporary basis and it was never his claim that he has become a permanent employee. He was claiming his reinstatement also as a temporary employee. The learned counsel appearing for the respondent No. 1 did not dispute before me that for making an appointment against the temporary post or making an appointment on temporary basis, it is not necessary to call the candidates from the employment exchange and therefore, the second reason that has been given by the labour court that because the name of the petitioner has not been recommended by the employment exchange, he cannot be granted reinstatement, fails to the ground. The petitioner all along was claiming a temporary employment and he was also claiming his next employment as a temporary employee. It is the case of the petitioner that as temporary employee, he has completed 240 days service in a year and therefore, he becomes entitled to get the benefits of the provisions of Section 5-F of the Act. In so far as termination of his services is concerned, the petitioner does not seek that completing 240 days confers any permanency in service. Therefore, in my opinion, there was no justification for the labour court to refer to the provisions regarding reference to the employment exchange.