Bombay High Court
Joint Director Of Health Services, ... vs Vilas Dattatraya Pingale on 31 August, 1995
Equivalent citations: (1996)IILLJ102BOM
Author: B.N. Srikrishna
Bench: B.N. Srikrishna
JUDGMENT B.N. Srikrishna, J.
1. This writ petition under Article 227 of the Constitution of India impugns an order dated 6th March, 1990 passed by the Industrial Court, Pune in Revision Application (ULP) No. 53 of 1989 confirming the order dated 18th March, 1989 made by the Labour Court, Pune, in Complaint (ULP) No. 32 of 1984, both under the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as 'the Act').
2. The Respondent was appointed as a Statistical Assistant (VS) in the health Service Department from 26th May, 1982. He was then transferred to the Office of the Deputy Director of Health Service with effect from 7.9.1982. He was once again transferred to the office of the Joint Director of Health Services from 21.9.1982 as a Computer Co-ordinator in the grade 335-680 in which he was drawing salary of Rs. 900/- per month as a permanent employee. On 7.1.1984 the Respondent was served with an order issued by the Joint Director or Health Services terminating his service with effect from 31.1.1984. The Respondent challenged the order of termination of his service before the Labour Court, Pune, by his Complaint (ULP) No. 32 of 1984 alleging unfair labour practice under Items 1 (a), (b), (f) and (g) of Schedule IV of the Act. The Labour Court tried the complaint and held that the complaint was tenable and within limitation and further recorded a finding that the termination of service of the Respondent amounted to unfair labour practices under Items 1(b) and (f) of Schedule IV of the Act. The Labour Court declared that the petitioner had engaged in unfair labour practices within the meaning of Items (a), (b) and (f) of Schedule IV of the Act and directed reinstatement with continuity of service and full back wages from 31.1.1984.
3. Being aggrieved by the order of the Labour Court, the petitioners moved Revision Application (ULP) No. 53 of 1989 before the Industrial Court under section 44 of the Act. By the order dated 6th March, 1990, the Revision Application was dismissed by the Industrial Court which confirmed the order of the Labour Court. Being aggrieved, the Petitioners are before this Court by the present writ petition.
4. Mr. Malvankar, learned Additional Government Pleader, highlighted Clauses 5, 7, 10, 11, and 13 of the letter of appointment dated 4.9.1982 which stipulate that the Respondent's appointment was purely temporary and liable to be dispensed with at any time without notice and without any reason being assigned and that he was accepting the employment on the said basis. By clause 11 of the letter of appointment it was clarified that the Respondent's appointment was subject to the approval of the Regional Selection Board and that he should apply when the said post as advertised. Finally, it was stated in the letter of appointment that the Respondents appointment was on purely temporary basis for a prior of 11 months, or till a candidate selected by the Regional Selection Board was available, whichever was earlier. In the face of these terms in the letter of appointment, there was no way the Respondent could have been declared a permanent employee, in the submission of the learned Additional Government Pleader. Appreciably, the learned Additional Government Pleader did not raise the other contentions which were urged before the Labour Court, namely, that the Petitioner was not an 'industry' within the meaning of section 2(i) of the Industrial Disputes Act, 1947 and that the Respondent was not a 'workman' within the meaning of section 2(s) of the said Act.
5. It is true that the letter of appointment dated 4.9.1982 is loaded with all the usual clauses which the Government expects a citizen applying for employment to be bound by. In the realm of industrial law, however, the efficacy and binding nature of these clauses is to be tested on the anvil of fairness, reasonableness and justice. Even a private employer is free to incorporate such clauses in every letter of appointment. But, if such terms were to be condoned and upheld by industrial adjudication, the long exercised ghost of hire and fire would be resurrected.
6. The Labour Court found that the Respondent had actually worked for 16 months continuously in the service of the Petitioners and that, during the said period, he had worked for more than 240 days in a span of 12 calendar months. From this, the Labour Court concluded that the Respondent had 'continuous service' of one year and more within the meaning of section 25-B of the Industrial Disputes Act. Consequently, it held that the Respondent was entitled to protection of section 25F of the Industrial Disputes Act. As admittedly the mandatory requirements of section 25F of the Industrial Disputes Act had not been complied with, the termination of service of the Respondent with effect from 31.1.1984 was held to be an illegal retrenchment. Additionally, the Labour Court found that though the letter of appointment incorporated a term that the Respondent had to be selected by the Regional Selection Board, the Regional Selection Boards were abolished and the Government of Maharashtra had issued a Circular dated 18.6.1983 in which vide Clause 3 a direction was given that all persons in employment on the date of the said Resolution had to be regularised in service by following due procedure. In fact, the Circular states that services of all those who have been appointed as per the Rules and Orders in force, though not recommended by the Selection Board, should be deemed to have been appointed in regular manner like candidates sent by the Selection Board. In the face of this Circular, there was no reason for the petitioners to jettison the Respondent. The Labour Court, therefore, had no difficulty in concluding that the termination of the Respondent amounted to unfair labour practices under Items 1(b) and (f) of the Act. The Industrial Court has affirmed the reasoning adopted by the Labour Court and approved the final order made by the Labour Court.
7. The concurrent reasoning of the two Courts below appears unexceptionable. At no point of time did the Petitioners demonstrate the over-riding consideration which led to discharge of the Respondent against the policy of the Government in the G. R. dated 18th June, 1983, which directed that the services of similarly placed persons be regularised by following due procedure, as if they had been appointed after selection by the Selection Board. I find no substance in the petition which deserves to be dismissed.
8. Writ petition dismissed. Rule discharged with no order as to costs.
9. It is hoped that the Respondent, who has been out of services from 1984, would, at least, be given justice now by immediately reinstating him and paying him the back wages payable under the orders of the Labour Court.
Certified copy expedited.