EXECUTIVE ENGINEER YAVATMAL Vs. ANANT YADAO MURATE

JUDGEMENT

(1.) Though the impugned orders are different, nevertheless both the petitions have been taken up for consideration together as common questions of law arise.

(2.) Writ Petition No. 1587 of 1996 has been filed by the Executive Engineer, Yavatmal Medium Project, Yavatmal Division and another. The Petitioners had engaged the services of the Respondent No. 1 for the purpose of construction of Medium Irrigation Project namely Gokhi, Waghadi, Deogaon, Antargaon and Sakhali-Nala Projects since 1st April, 1980. The respondent No. 1 was engaged on daily wages. On the project work being completed the services of the Respondent No. 1 were terminated after preparing a seniority list. A notice of termination was served on the Respondent No. 1, 90 days prior to the date of termination. The Respondent No. 1 filed a complaint on 8th October, 1985. It may be mentioned that the notice is dated 15th April, 1985. 3 months, therefore expired in July, 1985. The complaint was filed by six workers of which the Respondent No. 1 was one of the complainants. In the complaint it was- contended that the respondent No. 1 had worked continuously for 5 years without any break and he was liable for regularisation as C.R.T Mazdoor as per an Award which is known as Kalelkar Award . The said award was in respect of Building and Communication, Irrigation and Electricity Department of the State of Maharashtra. In terms of said Award employees, who have put in 5 years continuous service on the work charged or Daily Wages establishment, the posts held by them were to be converted into post of Regular Establishment. This establishment would be known as Converted Temporary Establishment. The Award also contemplated that if an employee from work charged establishment had put in 10 years continuous service as on 1st October, 1966, the post held by the employee was to be converted on the regular permanent establishment. The Award further sets out that the posts held by the employees on converted permanent/temporary establishment are to be treated as individual posts and if the persons so regularised and on relinquishment of the post by the person on account of retrenchment, retirement, resignation, transfer, promotion, etc., the said posts would be automatically abolished. It was made clear that regular establishment and converted regular establishment are totally separate establishments and certain procedure has been laid down therein. Provision is also made after following the procedure of making employees from the C.R.T establishment on the regular establishment. It was, therefore, contended that they were entitled to regularisation. It was further contended that there were 7 Sub-Divisions under the control and supervision of the petitioners herein and there has to be a common seniority list maintained on Divisional level and if retrenchment is to be done it had to be done by following the said seniority list. It was contended that this has been given a go-bye. The date of joining of the complainants was shown ranging from 1st August, 1977 to 1st July 1980. The respondent No. 1 herein had joined on 1st August, 1977. It was contended that the petitioners had taken up the work of Plantation and the Petitioners used to engage the respondent No. 1-therein also apart from other work. It was averred that instead of regularising the respondent No. 1 fresh employees were taken under the garb of Employment Guarantee Scheme. That there was still work available and even though the work was completed, for the purpose of maintaining and cleaning the gates of the canals and services of at least 600 employees were required. It was further pointed out that the provisions of section 25-N were applicable to the establishment. It is also pointed out that the permission of the appropriate Government was not taken for retrenchment and the same was in violation of section 25-N of the I.D. Act. It was further contended that the principle of first come last go or last come first go was violated. It was further contended in the alternative that the respondent No. 1 was a project affected person and he was entitled to be regularised. The petitioners herein filed their reply and contended that the project affected persons have to be given preference in terms of the Government Circulars and Policies. That, however, according to the petitioners does not mean that they have to be retained in service. It is further stated that petitioners have to follow the principles of last come first go. It was denied that this principle had been given a go-bye. It was clarified that the respondent No. 1 was working in Goki Canal Sub- Division No. 21. Rui and not in Goki Project Sub- Division No. 1, Yavatmal. It was further denied that they were in continuous services. It was clarified that about 226 workers were working on the project on Daily Rated Establishment and their seniority lists were published according to their categories. That the work on the project was completed and consequently the work force had to be reduced as no work was available. Notices were issued to about 100 workers at different sites, on 15th April, 1985, but were served actually on 21st April, 1985 and they came to be retrenched with effect from 20th July, 1985. The retrenchment compensation was also offered on 14th July, 1985. It was, however, refused. Section 25-N of the I.D. Act, according to the petitioners, was not available as their establishment was not a factory. Workers like the Respondent No. 1, who were unskilled workers had been retrenched as per the seniority list. It is pointed out that the respondent No. 1 and others were offered work under the E.G. Scheme, but they refused to work. It was specifically pleaded that the establishment is not industry and as such the provisions of section 2-J of the I.D. Act were not attracted.

(3.) The Labour Court, Amravati, by Judgment and Order dated 20th January, 1993 in the complaint filed under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the MRTU & PULP Act) has held that the petitioners had committed an act of unfair labour practice and that the respondent No. 1 and others were entitled to be reinstated. The Labour Court rejected the contention of the Respondent No. 1 that the provisions of section 25-N were attracted to his case, for the reason that the establishment was not a factory. The Labour Court held that the Respondent No. 1 along with other complainants had rendered services for more than 240 days and as such the provisions of section 25-F of the I.D. Act were complied with. The Labour Court then held that the services of the respondent No. 1 were terminated from 15th October, 1985 and offer of payment of retrenchment compensation was made on 20th July, 1985 i.e. 5 days after the alleged retrenchment and the same was not in due compliance with the provisions of section 25-F of the I.D. Act. The Court in order to satisfy itself that seniority had been complied with called on the petitioners to produce the Muster Rolls. The same were not produced and for that reason the Court held that the entries in the seniority list filed by the petitioners cannot be said to be beyond doubt. It, therefore, concluded that the petitioners had not complied with the principle of last come first go . The Labour Court held that rule 81 of the Bombay I.D. Rules, had not been complied with as the Seniority List was not published as required. The Court held that juniors had been retained. Presumption followed that the work was available and the contention of the petitioners that workmen s services were terminated for non-availability of work appears patently false. The petitioners have been directed to reinstate the Respondent No. 1 and other complainants with full back wages. A Revision was preferred by the petitioners before the Industrial Court at Amravati. By order dated 3rd April, 1996 the Revision was rejected. The Revisional Court affirmed the findings of the Labour Court. The contention of the petitioners that the work on the Project had come to an end and/or that the petitioner was not an Industry within the meaning of section 2-J of the I.D. Act does not find any reflection either in the order of the Labour Court or in the Industrial Court.