Bombay High Court
The Executive Engineer, Minor ... vs Ramdas Godruji Duphare on 9 March, 2018
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Writ Petition No.3295 of 2007
AND
Writ Petition No.3273 of 2007
A. Writ Petition No. 3295 of 2007 :
1. The Executive Engineer,
Minor Irrigation Division,
Vainganga Nagar, at & Post
Nagpur.
2. The Sub Divisional Engineer,
Minor Irrigation Sub-Division,
at & Post Katol,
Distt. Nagpur.
3. The Engineer,
Minor Irrigation,
Ranvadi Talav, Ranwadi
Section, Tq. Katol,
Distt. Nagpur. ..... Petitioners
Versus
Namdeo son of Kisan Sontakke,
aged about 60 years,
occupation - Labourer,
resident of Chikhali Maina,
Post - Yewda,
Tq. Katol, Distt. Nagpur. ..... Respondent
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*****
Ms. S. S. Jachak, Asstt. Govt. Pleader for the petitioners.
None for the respondent, though served.
*****
B. Writ Petition No. 3273 of 2007 :
1. The Executive Engineer,
Minor Irrigation Division,
Vainganga Nagar, at & Post
Nagpur.
2. The Sub Divisional Engineer,
Minor Irrigation Sub-Division,
at & Post Katol,
Distt. Nagpur.
3. The Engineer,
Minor Irrigation,
Ranvadi Talav, Ranwadi
Section, Tq. Katol,
Distt. Nagpur. ..... Petitioners
Versus
Ramdas son of Godruji Duphare,
aged about 46 years,
occupation - Labourer,
resident of Chikhali Maina,
Post - Yenwa,
Tq. Katol, Distt. Nagpur. ..... Respondent
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*****
Ms. S. S. Jachak, Asstt. Govt. Pleader for the petitioners.
None for the respondent, though served.
*****
CORAM : A.S. CHANDURKAR, J.
Date : 09th March, 2018
ORAL JUDGMENT :
01. Since both these Writ Petitions arise out an identical challenge raised by the petitioners and as they also arise from a common order passed by the Industrial Court, they are being decided by this common judgment.
02. In Writ Petition No. 3273 of 2007, it is the case of the respondent that he was engaged as a labourer and had worked on Chikhali Nullah Project. He was engaged from 27 th January, 1985 to 30th September, 1994 and thereafter from 1 st October, 1994 to 25th September, 1996. He was getting Rs. 23/- per day. His services were orally put to an end on 25 th September, 1996 and therefore, he filed a ::: Uploaded on - 21/03/2018 ::: Downloaded on - 22/03/2018 00:03:49 ::: wps3295.07&3273.07 4 Complaint under Section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 [for short, "the said Act"] invoking Item-I of Schedule-IV to the said Act. In the Written Statement, it was pleaded that the respondent was engaged as a labourer under the Employment Guarantee Scheme and said work was seasonal in nature. Work was provided according to exigency and the respondent was paid wages on that basis.
03. In Writ Petition No. 3295 of 2007, it is the case of the respondent that he was engaged as a labourer and had worked on Chikhali Nullah Project. He was engaged from 27 th January, 1985 to 30th September, 1994 and thereafter from 1 st October, 1994 to 25th September, 1996. He was getting Rs. 23/- per day. His services were orally put to an end on 25th September, 1996 and, therefore, he filed a Complaint under Section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 [for short, "the said Act"] invoking Item-I of Schedule-IV to the said Act. In the Written Statement, it was pleaded that the respondent was engaged as a labourer under the Employment Guarantee Scheme and said work was seasonal in nature. Work was provided according to exigency and the respondent was paid wages on that basis.
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04. Before the Labour Court, the parties led evidence after which it was found that though the complainants had duly signed the muster rolls as well as payment sheets maintained under the Employment Guarantee Scheme, it could not be said that they were working under the said Scheme. On that count, by holding that the complainants had rendered continuous service for more than 240 days, the complaints were allowed. A direction to reinstate with full back wages was issued.
05. In the Revision Applications filed by the petitioners herein, the Industrial Court by its common judgment dated 21 st November, 2006 maintained the direction of reinstatement, but directed fifty per cent back wages to be paid. Being aggrieved, the petitioners have filed the Writ Petitions.
06. While admitting the Writ Petitions, the orders directing reinstatement and payment of fifty per cent back wages came to be stayed. It was, however, directed that employment be provided to the complainants as and when the work was available. ::: Uploaded on - 21/03/2018 ::: Downloaded on - 22/03/2018 00:03:49 :::
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07. Ms. S. S. Jachak, learned Asstt. Govt. Pleader for the petitioners, submitted that there was substantial material on record to indicate the engagement of the respondents under the Employment Guarantee Scheme. The Muster Rolls indicating payment of wages which were counter-signed by the respondents clearly indicated that they were engaged under the Employment Guarantee Scheme as and when the work was available. They were provided work as per exigency. Merely because they were working as watchmen at the site would not mean that the engagement was not under the Employment Guarantee Scheme. It was further submitted that as per the interim orders work was provided to the respondents as and when available.
08. The respondents have been duly served. Despite grant of sufficient opportunity, there has been no appearance on their behalf on 6th, 8th and 9th March, 2018. With the assistance of learned counsel for the petitioners, I have perused the records of the cases and I have given due consideration to the submissions.
09. According to the respondents, they were engaged in the work undertaken at Chikhali Nullah Project. The petitioners had produced on record the muster rolls indicating attendance as well as ::: Uploaded on - 21/03/2018 ::: Downloaded on - 22/03/2018 00:03:49 ::: wps3295.07&3273.07 7 payment of wages to the respondents. The muster rolls indicate counter-signatures of the respondents in lieu of having received wages. The muster rolls further indicate the same being maintained under the Employment Guarantee Scheme. Both the Courts despite noting this evidence on record have held that as the respondents were discharging the work of watchman, it could not be said that they were employed under the Employment Guarantee Scheme. There is no basis, whatsoever, to arrive at this conclusion in the light of aforesaid documentary material. The muster rolls being duly maintained and produced by the petitioners, the same were required to be taken into consideration. They could not have been discarded merely by observing that since they described the engagement of the respondents as watchmen, their engagement was not under the Employment Guarantee Scheme. It is, therefore, clear that the respondents were engaged as per the exigency of work and were paid wages.
10. Having found that the engagement of the respondents was under the Employment Guarantee Scheme, the question of completion of 240 days' service and consequent direction of reinstatement cannot be sustained. Instead, it can be directed that the respondents be ::: Uploaded on - 21/03/2018 ::: Downloaded on - 22/03/2018 00:03:49 ::: wps3295.07&3273.07 8 provided work as per exigency under the very Scheme. To that extent, the impugned orders are liable to be modified.
11. Accordingly, it is held that both the Courts were not justified in directing reinstatement of the respondents. Instead, the petitioners, subject to fulfillment of other requirements, shall continue to provide employment to the respondents as and when the work is available. As the direction to reinstate the respondents has been set aside, there would be no question of payment of fifty per cent back wages.
12. Writ Petitions are accordingly partly allowed with no order as to costs.
Judge
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