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2009 DIGILAW 734 (BOM)

Central Bank of India v. Sanjay E. Dolaskar

2009-06-23

V.R.KINGAONKAR

body2009
JUDGMENT : V.R. Kingaonkar, J. By this petition, the petitioner challenges judgment and order rendered by the learned Presiding Officer, Labour Court, Pune in reference application bearing IDA No. 97/1995 whereby and where under reinstatement of the respondent along with back wages to the extent of 25% from date of termination until the passing of the impugned order has been granted. 2. The respondent was appointed by the petitioner Bank as a casual sweeper w.e.f. April 10, 1990. He worked as such upto February 8, 1992. He was being paid daily wages @ Rs. 10/- per day. His services were terminated by the petitioner. 3. The respondent filed an application seeking reinstatement with continuity of service and full back wages which was referred to the Labour Court, Pune vide reference (IDA) No. 97/1995. The Reference so made involved question as to whether the termination of the services of the respondent was an illegal act of the petitioner and whether the petitioner indulged in unfair labour practices. It was required to be determined whether the termination of the respondent could be termed as retrenchment u/s 2(OO) of the Industrial Disputes Act, 1947. The services of the worker could not be terminated without complying with the provisions of Section 25(F) of the Industrial Disputes Act and that being the chief bone of contention raised by the respondent, the reference was made. 4. The petitioner - Bank denied all the adverse contentions raised by the respondent. It was denied that the respondent had continuously worked for more than 240 days in the preceding year. It was asserted that he was part time casual worker on daily wages and had worked intermittently from April, 1990 to February, 1992 at Kolgaon branch of the petitioner. It was contended that he was not appointed to any particular post as such and his employment was only temporary. 5. The learned Presiding Officer of the Labour Court accepted contentions of the respondent and held that he was worker within the meaning of the Industrial Disputes Act and was entitled to continuity of service. The learned Presiding Officer of the Labour Court came to the conclusion that the termination of the services of the respondent would tantamount to retrenchment u/s 2(OO) of the Industrial Disputes Act and that it was not in keeping with provisions of Section 25(F) thereof. The Reference was accordingly allowed as described hereinbefore. 6. The learned Presiding Officer of the Labour Court came to the conclusion that the termination of the services of the respondent would tantamount to retrenchment u/s 2(OO) of the Industrial Disputes Act and that it was not in keeping with provisions of Section 25(F) thereof. The Reference was accordingly allowed as described hereinbefore. 6. Heard Mr. Upadhye, learned Counsel for the petitioner - Bank. Though served, the respondent did not appear. I am at loss to hear the arguments on behalf of the respondent due to his apathy to come forward. 7. Clinching question involved in this petition is as to whether termination of the services of the respondent could be regarded as illegal and violative of Section 25(F) of the Industrial Disputes Act, 1947. The parties adduced evidence before the Labour Court. The version of the respondent was that he was working as a sweeper. It appears from the record that payments were made to the respondent as per vouchers. The respondent was not on regular pay roll of the petitioner. Nor his appointment was on any particular post. It has come on record that the post was not advertised nor was filled in by following the recruitment rules. What appears from the record is that the respondent was working in the morning session of the day. He was assigned work to fill the water pot in the small branch of the petitioner Bank at village Kolgaon and was required to do some sweeping work. It is explicit that there was no full-time work available at the said branch of the petitioner. The payments made to the respondent were on the basis of the working days for which such" chores work was being done by him. 8. The information furnished by the petitioner before the learned Presiding Officer of the Labour Court reveals that the number of days for which the respondent had worked would not exceed more than 108 in the period of 12 months preceding the date of termination. The information is given in tabular form which is indicated in the impugned judgment. The legal status of the respondent was not of workman as such, but he was appointed as "casual labour" and was required to do part time work as a sweeper-cum-waterman. 9. In Tapi Irrigation Development Corporation Vs. The information is given in tabular form which is indicated in the impugned judgment. The legal status of the respondent was not of workman as such, but he was appointed as "casual labour" and was required to do part time work as a sweeper-cum-waterman. 9. In Tapi Irrigation Development Corporation Vs. Bhanudas Nathu Patil, (2008) 5 ALLMR 177 , a coordinate Bench of this Court held that where the division of the Irrigation Department had been closed down, the termination could not be regarded as violative of Section 25(F) of the Industrial Disputes Act. The Apex Court in Rajasthan Tourism Development Corporation Ltd. and Another Vs. Intejam Ali Zafri, (2006) 6 SCC 275 , held that when the appointment of a workman itself was void, provisions of Section 25(F) could not be applicable. The Apex Court noticed that the workman was a casual house assistant who had not worked continuously for 240 days in one calendar year. In Himanshu Kumar Vidyarthi and Others Vs. State of Bihar and Others, : (1997) 4 SCC 391 : 1998-II-LLJ-15, the Apex Court dealt with the case of daily wage employees who were working in Cooperative Training Institute. Their services were terminated without complying with Section 25(F) of the Industrial Disputes Act. The Apex Court held that they were daily wage employees and were not appointed to the post in accordance with the rules and, therefore, their disengagement from service could not be construed as retrenchment nor can the same be arbitrary. 10. In the fact situation of the present case, the respondent could not demonstrate that there was a post of sweeper-cum-waterman on the establishment of the small branch of the petitioner - Bank at village Kolgaon. Unless there was post and that he was appointed in regular manner, no right had accrued to him to claim continuity in the service. A casual worker will not be entitled to claim continuity of service and reinstatement along with back wages. The learned Presiding Officer of the Labour Court did not properly appreciate the settled legal position in this behalf. 11. Considering the foregoing reasons, the impugned judgment and order is quite unsustainable in the eye of law. Hence, the petition is allowed. The impugned judgment and order is quashed. The Rule is made absolute accordingly. No costs.