AR MODHAVEVERSUSNAGAR PANCHAYAT PARNER THROUGH ITS CHIEF OFFICER AND OTHERSMr. P v. Barde
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD968 WRIT PETITION NO. 9697 OF 2023PRATIBHA DINKAR MODHAVEVERSUSNAGAR PANCHAYAT PARNER THROUGH ITS CHIEF OFFICER AND OTHERSMr. P. V. Barde, Advocate for the petitioner Mr. C. R. Thorat, Advocate for respondent nos.1 to 3.CORAM: R. M. JOSHI, J.DATE: 27th NOVEMBER, 2024PER COURT :-1.This petition takes exception to the judgment and orderdated 25/11/2019 passed by the Labour Court, Ahmednagar inComplaint (ULP) No. 10/2016, whereby the complaint came to bedismissed. Revision (ULP) No. 1/2020 filed against the said judgmentalso resulted into dismissal. Hence, this petition.2.Parties are referred to as ‘workman’ and ‘employer’ for thesake of brevity.3.Workman filed complaint under the provisions of theMaharashtra Recognition Of Trade Unions And Prevention Of UnfairLabour Practices Act, 1971 (for short ‘MRTU and PULP’) alleging theworkman was appointed as a Clerk with employer (erstwhileGrampanchayat with effect from 03/04/2015) she claims that she968.wp9697.23.odt1 of 7 continued to serve with the employer i.e. erstwhile Grampanchayat aswell as Nagar Panchayat subsequently, till the date of her termination i.e.on 07/01/2016. She has specifically averred in the complaint that shehas completed 240 days of service in a year and that her termination isillegal.4.Employer filed written statement contending that theappointment of the workman was not in accordance with the rules andtherefore, she has not acquired any right to become permanent in aservice. There is, however, no dispute about the fact that she wasappointed on 03/04/2015 but it is claimed in the written statement thatthe appointment of the workman is illegal. It is further contended in thewritten statement that in order to reduce the financial burden on theMunicipal Council, the termination of the temporary employee wasnecessary.5.While deciding Complaint (ULP) No. 10/2016, learned LabourCourt recorded findings that the workman has completed 240 days ofservice in a year. The Labour Court, however, refused to grant relief onreinstatement on the ground that her appointment is since not inaccordance with law, she is not entitled for any relief. This order isconfirmed by the Industrial Court in Revision (ULP) No.1/2020.968.wp9697.23.odt2 of 7 6.The employer has not challenged the findings recorded bythe Labour Court with regard to the workman having completed 240days of service in a year. The question arose before the Labour Court isas to whether the termination of the workman by general notice dated07/01/2016 displayed on the notice board of the Municipal Councilamounts to illegal termination and therefore unfair labour practices.7.There is no dispute with regard to the fact that the provisionsof Industrial Disputes Act (for short “the Act”) are applicable to theparties. Section 25F of the Act provides that there cannot be terminationof service of a workman who has completed 240 days service in a yearexcept giving one month notice to the workman or notice pay andworkman has been paid at that time retrenchment compensation whichis equivalent to fifteen days of average pay for every completed year ofcontinuous service.8. Retrenchment is defined under Section 2(oo) of the Actwhich reads thus:2(oo) “retrenchment” means the termination by theemployer of the service of a workman for any reasonwhatsoever, otherwise than as a punishment inflicted byway of disciplinary action, but does not include—(a) voluntary retirement of the workman; or (b) retirement of the workman on reaching the age ofsuperannuation if the contract of employment betweenthe employer and the workman concerned contains astipulation in that behalf; or968.wp9697.23.odt3 of 7 (bb) termination of the service of the workman asa result of the non-renewal of the contract ofemployment between the employer and the workmanconcerned on its expiry or of such contract beingterminated under a stipulation in that behalf containedtherein; or](c) termination of the service of a workman on theground of continued ill-health”9.The above provision clearly shows that the said definition isvoid enough to cover any termination effected by the employer of theservice of the workman but for the exception provided therein.Undisputedly exceptions carved out in clause Nos. (a) to (c) have noapplication to the present case.10.“Workman’ is defined by Section 2(s) of the Act, which readsthus;“(s) “workman” means any person (including anapprentice) employed in any industry to do any manual,unskilled, skilled, technical, operational, clerical orsupervisory work for hire or reward, whether the termsof employment be express or implied, and for thepurposes of any proceeding under this Act in relation toan industrial dispute, includes any such person who hasbeen dismissed, discharged or retrenched in connectionwith, or as a consequence of, that dispute, or whosedismissal, discharge or retrenchment has led to thatdispute, but does not include any such person— (i) who is subject to the Air Force Act, 1950 (45 of1950), or the Army Act, 1950 (46 of 1950), or the NavyAct, 1957 (62 of 1957); or(ii) who is employed in the police service or as an officeror other employee of a prison; or(iii) who is employed mainly in a managerial oradministrative capacity; or(iv) who, being employed in a supervisory capacity,968.wp9697.23.odt4 of 7 draws wages exceeding 3[ten thousand rupees] permensem or exercises, either by the nature of the dutiesattached to the office or by reason of the powers vestedin him, functions mainly of a managerial nature.]”.The above provisions shows that term workman even coversan apprentice. Thus, it is clear that no distinction is drawn by legislaturebetween temporary and permanent workman.11.Thus, even a temporary workman who is retrenched isentitled for receive the retrenchment compensation. Needless to say thatSection 25F of the Act is mandatory provision and in absence ofcompliance thereof the termination cannot sustain.12.Once the Labour Court has recorded findings that theworkman has completed 240 days of service, the compliance of Section25F of the Act becomes mandatory for the employer before terminationof her services. Admittedly no notice was given as contemplated byClause (a) of Section 25F of the Act to the workman nor retrenchmentcompensation was paid before effecting termination of her services13.The Labour Court has erroneously considered the case of thecomplainant for regularization/ permanency rather than challenge to thetermination of her services. Since the issue before the Labour Court wasrestricted to the validity of the termination of her services, the said Court968.wp9697.23.odt5 of 7
Legal Reasoning
ought to have taken into account provisions of Section 25F of theIndustrial Disputes Act and to ascertain compliance thereof. In absenceof compliance of the said provisions, the order of termination of servicesof workman cannot sustain and the same amounts to unfair labourpractices under item 1(a), (b), (d) of Schedule IV of the MRTU and PULPAct. This court therefore finds substance in the challenge to theimpugned judgments to this extent, as the learned Labour Court hasfailed to take into consideration this relevant aspect.14.The complaint is filed for reinstatement as well as with wagesat par with the regular employee. Learned counsel for the petitioner, oninstructions, makes statement that the petitioner does not wish to pressthe relief of back wages. He, however, contends that continuity of servicemay be granted, as unless continuity of service is granted, even afterreinstatement of workman, she will not be able to get wages as payableas of today or adequate compensation on her retrenchment, effected ifany.15.Learned counsel for the respondent opposed any suchconcession to be given to the workman.16.As discussed herein above since the termination of workmanis illegal and in non compliance of the provisions of Section 25F of the968.wp9697.23.odt6 of 7 Industrial Disputes Act, the same cannot sustain. As the employer hasengaged into unfair labour practices, a direction is required to be issuedfor cessation thereof. The impugned judgment, therefore, stands setaside. Petition is allowed in following terms:(i)It is held that the termination of workman is contrary toprovision of Section 25(F) of the Act and hence illegal and alsoamounts to unfair labour practices committed by Employer.(ii)Employer to directed to cease and desist from unfair labourpractice.(iii)The workman is directed to be reinstated in the service withcontinuity of service but without back wages in the same capacityat the time of her appointment.(iv)Though, continuity service is granted, it is clarified that thesame is granted only for the limited purpose that the workman onher reinstatement would be entitled for wages payable as of todayand not for regularization/permanency.(v)Order of reinstatement would not preclude the employer fromterminating her services by following due process of law.(vi)It is always open for the workman to substantiate her claimfor permanency if permissible in law.17.Petition is allowed in above terms.(R. M. JOSHI, J.)ssp968.wp9697.23.odt7 of 7