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1988 DIGILAW 143 (BOM)

VISHWAS BHIMRAO DHUMAL v. KOPARGAON NAGARPALIKA

1988-04-22

PENDSE, SUGLA

body1988
JUDGMENT : Pendse, J.—By this petition filed under Articles 226 and 227 of the Constitution of India, the petitioner is challenging the order dated July 27, 1985, passed by the Labour Court, Ahmednagar, setting aside the order of termination served on the petitioner but declining re-instatement and directing payment of compensation of Rs. 3,000/-. The few facts which are not in dispute and gave rise to this petition are as follows: 2. Kopargaon Nagarpalika appointed the petitioner as Pump Operator in February 21, 1979, for a duration of six months. The appointment Idler clearly recited that the petitioner should apply to the State Selection Board as and when the post would be advertised by the Board and in case he is not selected his services were liable to be terminated even before the expiry of period of six months. At the expiry of six months, the petitioner was continued by another appointment letter and with the same terms and conditions. The service of the petitioner came to an end on March 31, 1981, and thereafter the petitioner was not given a fresh appointment. The petitioner complained that his services were terminated by adopting unfair labour practice and amounts to victimisation. The petitioner claimed that he was appointed in a permanent vacancy and having worked for about 340 days during the period of 12 calendar months, he should be deemed to have been in continuous service, and if so, the petitioner could not have been discontinued without adopting the prescribed procedure. It was also claimed that discontinuation amounts to retrenchment and that requirements of Section 25(F) of the Industrial Disputes Act, 1947 (hereinafter referred to as the "Act") were not complied with. The Municipal Council declined to accept the claim and thereupon the Deputy Commissioner of Labour, Pune, made a reference u/s 10(1)(d) and Section 12(5) of the Act to the Labour Court at Ahmednagar. 3. The petitioner sought reinstatement with full back wages and continuity of service. The Municipal Council resisted the proceedings before the Labour Court claiming that the petitioner was appointed for a temporary period as the candidate nominated by the State Selection Board was not available. The Municipal Council claimed that the post of Pump Operator is a technical post and the qualification is Second Class Wireman Course (I.T.I.). The Municipal Council resisted the proceedings before the Labour Court claiming that the petitioner was appointed for a temporary period as the candidate nominated by the State Selection Board was not available. The Municipal Council claimed that the post of Pump Operator is a technical post and the qualification is Second Class Wireman Course (I.T.I.). The Municipal Council pointed out that the post of Pump Operator was sanctioned by the Collector and appointment to the post could be made only of a candidate selected by the State Selection Board. The Municipal Council, therefore, claimed that the petitioner though specifically informed to apply to the State Selection Board, failed to do so and, therefore, could not be continued in employment. 4. The Labour Court, after recording evidence, came to the conclusion that the petitioner did not apply to the State Selection Board in spite of the fact that the Council specifically advised the petitioner to do so. The Labour Court did not accept the claim that the termination of the service was mala fide and was an act of victimisation. The Labour Court also did not accept the claim that the discontinuation of service was punitive even though the Municipal Council claimed that the work of the petitioner was not satisfactory. The Labour Court then held that as the petitioner rendered service for about 340 days, during the period of 12 calendar months preceding the date of termination, it shall be deemed that he was in continuous service for one year u/s 25(b) of the Act. As a corollary to this finding, the Labour Court held that the requirement of Section 25(F) of the Act was not complied with as the retrenchment compensation was not paid or tendered to the petitioner. After recording this finding, the Labour Court declined reinstatement of the petitioner in employment as the petitioner could not have continued in employment without clearance from the State Selection Board. The Labour Court, in lieu of reinstatement, awarded compensation of Rs. 3,000/-. The petitioner has challenged the Award and claims reinstatement, while the Municipal Council accepted the Award. 5. Mr. Kulkarni, learned Counsel appearing on behalf of the petitioner, submitted that the Labour Court was in error in not directing reinstatement with full back wages and continuity of service. The Labour Court, in lieu of reinstatement, awarded compensation of Rs. 3,000/-. The petitioner has challenged the Award and claims reinstatement, while the Municipal Council accepted the Award. 5. Mr. Kulkarni, learned Counsel appearing on behalf of the petitioner, submitted that the Labour Court was in error in not directing reinstatement with full back wages and continuity of service. The learned Counsel urged that the finding of the Labour Court clearly indicates that along with the petitioner one Repale was appointed to the post of Pump Operator. The qualifications of the petitioner as well as Repale were identical, both holding a certificate. It is not clear whether the certificate held by Repale and the petitioner satisfies the requirement of qualification for the post which is Second Class Wireman Course (I.T.I.). Mr. Kulkarni urged that Repale was junior to the petitioner and the employer could not have retained services of Repale while terminating that of the petitioner. According to the learned Counsel this clearly violates the principle of last come first go and, therefore, the provisions of Section 25(F) and Section 25(G) of the Act are violated. The learned Counsel submitted that the Labour Court under the circumstances was duty-bound to direct reinstatement of the petitioner. We are unable to accept the submission of the learned Counsel. It is undoubtedly true that the Labour Court has recorded a finding that retrenchment compensation was not paid and the provisions of Section 25(F) of the Act are violated. We will not examine the correctness of this finding because the Municipal Council has not challenged the same. It is equally true that from the contents of the order of the Labour Court that Repale was junior to the petitioner and at the time when the services of the petitioner were discontinued, the services of Repale were retained. From these circumstances, Mr. Kulkarni submits that the provisions of Section 25(G) of the Act are breached. We will proceed on the basis that the submission is correct but that would not automatically give relief to the petitioner. 6. The Labour Court was required to examine whether the order of reinstatement should be granted because of breach of Section 25(F) and Section 25(G) of the Act. There is no mandatory rule that as soon as there is a breach of the requirement, the Court shall direct reinstatement. 6. The Labour Court was required to examine whether the order of reinstatement should be granted because of breach of Section 25(F) and Section 25(G) of the Act. There is no mandatory rule that as soon as there is a breach of the requirement, the Court shall direct reinstatement. The Court can decline to grant that relief, in case, it is found that the employee is unable to carry out or discharge the duties of the post. In the present case, the post could be occupied only by the person who is duly qualified, that is holding a certificate of Second Class Wireman Course (I.T.I.) and duly selected by the State Selection Board. The Labour Court noticed that it is not clear that the certificate held by the petitioner satisfies the required qualification. Apart from that aspect, the Labour Court was impressed by the fact that the petitioner was not selected by the State Selection Board and indeed the petitioner never applied to the State Selection Board for selection. Mr. Kulkarni urged that the petitioner did not apply because the State Selection Board never issued an advertisement inviting applications. The learned counsel invited our attention to letter dated October 12, 1979, issued by the Superintendent of the State Selection Board advising that the candidates appointed for a duration of six months in absence of selected candidates may be continued till the selection takes place. From this letter dated October 12, 1979, Mr. Kulkarni wants us to infer that the State Selection Board never met from 1979 onwards. Mr. Kulkarni, therefore, submits that the petitioner is entitled to be reinstated even though not selected by the State Selection Board. We are afraid we cannot grant such a relief and we cannot direct the Municipal Council to act contrary to the specific directions of the Collector that the post is available only to qualified person duly selected by the State Selection Board. In these circumstances, in our judgment, the conclusion of the Labour Court that the petitioner is not entitled to reinstatement, but in lieu thereof compensation, cannot be faulted with. 7. Accordingly, petition fails and the rule is discharged but without any order as to costs.