Document Fragment View

Matching Fragments

5. Mr. Patil, on the other hand, submits that out of the 163 workmen on whose behalf the Writ Petition has been filed, 14 have expired. He submits that the Writ Petition filed by these workmen is not maintainable. The learned Advocate then submits that the findings of the Labour Court regarding payment of retrenchment compensation cannot be faulted as the Labour Court was of the view that this compensation was payable not as retrenchment compensation payable under Section 2(s) but compensation as if retrenchment in view of the provisions of Section 25FF. He submits that after the transfer of the Lift Irrigation Schemes to the Karkhana, the workmen had become surplus and their services had been terminated in view of the transfer of the undertaking in accordance with Section 25FF. He then submits that assuming the Award of the Labour Court is erroneous, no reinstatement should be granted to the workmen as all of them must be employed elsewhere. Furthermore, he urges that the compensation awarded by the Labour Court may at best be enhanced rather than directing the respondents to reinstate them.

8. The respondents cannot approbate and reprobate. They cannot now be permitted to consider the workmen as employees of the Corporation and not of the Irrigation Department. That being the position, the question of Section 25FF coming into play does not arise.

9. When faced with the fact that the respondents had not challenged the finding of the Labour Court that Section 2(s) had been breached, Mr. Patil for the respondents attempted to get over this hurdle by pressing into service the provisions of Order 41 Rule 22 of the Civil Procedure Code and judgment in the case of Anandrao Ganpatrao Sable vs. Madhavrao Ramrao Kanase and Anr., 1989(1) BCR 256. It has been held in this judgment that a successful party is not precluded from supporting a decree by showing that adverse finding against it has been wrongly recorded by the Court below, without filing cross objections. The submission of Mr. Patil cannot be accepted. The provisions of the Civil Procedure Code are not applicable to Writ Petitions. The finding on the issue of Section 2(s) having been breached is a finding of fact which cannot be interfered with at this belated stage. There is no dispute that the payment of retrenchment compensation and wages in lieu of notice was made only after cessation of employment. Therefore the Labour Court has correctly held that there was a breach of Section 2(s). The submission that the termination was effected on account of transfer of the undertaking by complying with Section 25FF and not by way of retrenchment under Section 2(s) cannot be raised at this stage. The issue as to whether the termination of service attracted the provisions of Section 2(s) or Section 25FF is a mixed question of law and fact. Such a contention cannot be raised at this stage without filing cross objections. The reliance placed by Mr. Dharap in the case of Bombay Metropolitan Transport Corporation Ltd. vs. Harishchandra Narayan Sutar and Ors. in Writ Petition No. 5070 of 1984 dated 11th January, 1985 of the Division Bench of this Court, is apt. The respondents cannot be permitted to raise this issue for the first time in this Court in reply to the Writ Petition. The judgments in the case of Suresh Baburao Bhandare vs. Administrator, Saswad Mali Sahakari Sakhar Karkhana Ltd., Malinagar and Anr., 1991 Mh.L.J. 1404 = 1992 (I) CLR 309 and Shri Govinddas Walchand Shah vs. The Administrator, Saswad Mali Sahakari Sakhar Karkhana Ltd. and Anr., 2001(2) Mh.LJ. 136 = 2001(1) BCR 415 relied on by Mr. Patil where the provisions of Section 25FF have been considered are not relevant for the facts involved in the present petition. Moreover when the respondents in the earlier Writ Petition had stated on oath that the workmen were not the employees of the Corporation, their services could not have been terminated because of the transfer of the Lift Irrigation Schemes to the Karkhana.