As per case facts, the Petitioner, Brihanmumbai Mahanagarpalika (BMC), filed a Writ Petition challenging an Award from the Labour Court. The deceased employee, Zamir Abdul Sattar Shaikh, had sought reinstatement ...
wp-9089 -2023.doc
Shabnoor
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.9089 OF 2023
Brihanmumbai Mahanagarpalika
R North Division, Jaywant Sawant Road,
Dahisar (West), Mumbai 400 068 … Petitioner
V/s.
1.Zamir Abdul Sattar Shaikh
(Since Deceased) Through LHR.
(a)Abdul Satttar Shaikh
(Since Deceased)
(a)(a)Munawwar Abdul Sattar Shaikh
(a)(b)Anjuman Abdul Ajaj Damanwal
(b)Chandbibi Abdul Sattar Shaikh
(Since Deceased)
(b)(a)Munawwar Abdul Sattar Shaikh
(b)(b)Anjuman Abdul Ajaj Damanwal
Room – 394/A Chawl 50,
M.H.B. Colony Gaikwad Nagar
Gate No.8 Malowani Malad (West)
Mumbai – 400 095. … Respondents
Mr. Prashant Kamble a/w Mr. Santosh Parad, for the
Petitioner – BMC.
Mr. Haresh A. Shivdasani, for Respondents.
Mr. Pandurang Borse, Superviser, from SWM Dept. is
present.
CORAM :AMIT BORKAR, J.
RESERVED ON :APRIL 9, 2026
PRONOUNCED ON:APRIL 16, 2026
1
SHABNOOR
AYUB
PATHAN
Digitally signed by
SHABNOOR AYUB
PATHAN
Date: 2026.04.16
13:23:00 +0530
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JUDGMENT:
1.By the present Petition instituted under Articles 226 and 227
of the Constitution of India, the Petitioner has assailed the Award
dated 11 April 2019 passed by the learned 2nd Labour Court at
Mumbai in Reference (IDA) No.181 of 2013.
2.The facts giving rise to the present Petition, in brief, are that
the deceased employee, namely Mr. Zamir Abdul Sattar Mohamed
Shaikh, sought reinstatement in service along with full back wages
with effect from 25 June 2003, contending that the cause of action
had arisen on the said date. It is the case of the Petitioner that
though the alleged cause of action is stated to have arisen on 25
June 2003, the industrial dispute came to be raised only in the
year 2013 after an inordinate and unexplained delay of nearly ten
years. According to the Petitioner, the claim for reinstatement with
full back wages was therefore hopelessly belated and was vitiated
by delay and laches, the dispute having not been raised within a
reasonable period. It is further contended that on the date when
the Reference was made, no industrial dispute either existed or
was apprehended, and consequently the Reference made under
Section 10 of the Industrial Disputes Act, 1947 was not
maintainable in law. It is the further case of the Petitioner that the
deceased workman was engaged only on ad hoc / Badli
(substitute) basis and was neither appointed against any
permanent post nor on any regular establishment. His
engagement, according to the Petitioner, was purely contingent
and need based, and he was called upon to work only as and when
his services were required. The Petitioner contends that a Badli or
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substitute workman has no vested or enforceable right to
employment or continuity in service and cannot claim parity with
an employee appointed on permanent basis or even on probation.
It is submitted that unlike a probationer, a Badli workman cannot
claim deemed confirmation merely upon completion of any
particular period of service, and no right accrues in his favour for
seeking regularisation or permanency.
3.On the aforesaid premise, the Petitioner contends that
having regard to the nature of the deceased workman’s
engagement, he was not entitled to invoke the provisions of the
Industrial Disputes Act, 1947 for the reliefs as claimed by him, and
consequently the Labour Court lacked jurisdiction to entertain and
adjudicate the Reference. It is further contended by the Petitioner
that the alleged dispute was not raised within a reasonable period
and that there was complete absence of diligence on the part of
the deceased workman in prosecuting the alleged claim. According
to the Petitioner, the Reference was therefore liable to be rejected
on the ground of delay and laches alone. It is additionally the case
of the Petitioner that the deceased workman had not completed
240 days of continuous service during the period of twelve months
immediately preceding the alleged date of termination, namely 25
June 2003. In the absence of fulfilment of the said statutory
requirement, the provisions of the Industrial Disputes Act, 1947
were, according to the Petitioner, not attracted, and no protection
or relief thereunder could have been granted to the deceased
workman.
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4.The record further indicates that the deceased workman
approached the office of the Labour Commissioner and raised an
industrial demand seeking reinstatement in service, conferment of
permanency, and payment of full back wages with effect from 25
June 2003. Upon failure of the conciliation proceedings, a failure
report came to be submitted, pursuant whereto the Appropriate
Government made a Reference under Section 10 of the Industrial
Disputes Act, 1947 to the Labour Court at Mumbai for
adjudication. Pursuant thereto, the deceased workman filed his
statement of claim before the Labour Court. The said claim was
opposed by the present Petitioner by filing its written statement,
whereby the allegations made in the statement of claim were
denied and the maintainability of the Reference itself was
specifically disputed. During the pendency of the Reference
proceedings, the deceased workman expired on 09 November
2014, whereupon his legal heirs were brought on record in
accordance with law and the proceedings thereafter came to be
continued by them. Upon hearing the parties and considering the
material placed on record, the learned Labour Court proceeded to
pass the impugned Award dated 11 April 2019, which was
thereafter published by the Government on 8 July 2019. Being
aggrieved and dissatisfied with the said Award dated 11 April
2019, the Petitioner has preferred the present Petition.
5.The learned Advocate appearing for the Petitioner submits
that the Labour Court has failed to properly appreciate the
pleadings and documentary material placed on record, including
the affidavit in lieu of examination in chief tendered by the father
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of the deceased workman, namely Mr. Abdul Sattar Shaikh, as also
the correspondence produced in the proceedings, which, according
to the Petitioner, clearly demonstrated that the deceased workman
was suffering from illness from 25 June 2003 and had not
thereafter reported for duty. It is submitted that the findings
recorded by the Labour Court on the said aspect are erroneous,
perverse, and contrary to the evidence available on record.
6.It is further submitted that the alleged industrial dispute
came to be raised after an inordinate and unexplained delay of
nearly ten years from the alleged date of termination, namely 25
June 2003, and as such the dispute had become stale, dead, and
non-existent in the eyes of law.
7.The learned Advocate for the Petitioner submits that the
Labour Court has failed to follow the settled principles of law laid
down by the Supreme Court in the decisions of
Nedungadi Bank
Ltd. v. K.P. Madhavankutty
, (2000) 2 SCC 455, wherein it has been
categorically held that stale disputes cannot be referred for
adjudication under Section 10 of the Industrial Disputes Act, 1947,
and that there must exist a live and subsisting industrial dispute on
the date of making of the Reference. It is contended that in the
present case, on the date of the Reference, namely, 12 July 2013,
no industrial dispute either existed or could reasonably be said to
have been apprehended. It is further submitted that despite
recording a finding regarding delay in raising the dispute, the
Labour Court has erroneously proceeded to grant full back wages
for the period from 25 June 2003 till 9 November 2014, which is
contrary to settled legal principles governing grant of back wages.
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Reliance is also placed on the judgment of the Supreme Court in
Krishi Utpadan Mandi Samiti v. Ved Ram, (2012) 4 SCC 496,
wherein it has been held that back wages ought not to be awarded
for the period attributable to delay in raising the industrial dispute.
According to the Petitioner, no reasons have been assigned by the
Labour Court for not following the said binding precedent. 8.It is further submitted that the impugned Award appears to
have been passed more on sympathetic considerations than upon
settled principles of law. According to the Petitioner, the law
declared by the Supreme Court is binding in nature and could not
have been ignored by the Labour Court in absence of cogent and
justifiable reasons. It is also contended that the Labour Court has
failed to examine whether the deceased workman had completed
240 days of continuous service in the twelve months immediately
preceding the alleged date of termination, namely 25 June 2003,
which constitutes a condition precedent for claiming statutory
protection under the Industrial Disputes Act, 1947. It is submitted
that the Labour Court has further failed to consider the judgment
of the Supreme Court in
Mohd. Ali v. State of H.P., (2018) 15 SCC
641, though the same was specifically cited before it, wherein it
has been held that completion of 240 days of continuous service is
essential for seeking relief under the provisions of the Industrial
Disputes Act, 1947.
9.It is further contended that the Labour Court has overlooked
material documentary evidence adduced by the Petitioner, which,
according to the Petitioner, clearly establishes that the deceased
workman had remained absent from duty from 25 June 2003
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onwards. It is submitted that in absence of any act of termination
on the part of the employer, the question of illegal termination
does not arise. According to the Petitioner, the records maintained
by the Corporation in the ordinary course of its business
sufficiently establish the absence of the deceased workman, and
the Labour Court ought to have given due evidentiary weight to
the said records. It is further submitted that in terms of the
applicable Circular for the period 2005 to 2006, a Khada Badli
employee remaining unauthorisedly absent for a period exceeding
90 days cannot be continued in service.
10.It is contended that in the present case the deceased
workman remained continuously absent for a period exceeding 90
days from 25 June 2003 onwards and, therefore, in view of the
aforesaid circular and applicable administrative instructions, he
lost his lien upon the employment by reason of his own conduct. It
is submitted that the said position was duly communicated to the
deceased workman by communication dated 14 February 2007,
which aspect has not been properly appreciated by the Labour
Court. On the aforesaid grounds, it is submitted that the impugned
Award is contrary to law and liable to be quashed and set aside.
11.Per contra, learned Advocate appearing for the Respondents
has placed reliance upon documentary evidence in the nature of
wage slips of the deceased workman for the period from May 1999
to February 2002, which, according to the Respondents, establish
continuity of service rendered by the deceased workman. Further
reliance has been placed upon the correspondence exchanged
between the deceased workman and the First Party Corporation,
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whereby the deceased workman had on several occasions
requested that he be permitted to resume duties. Attention has
also been invited to the identity card issued in favour of the
deceased workman, which reflects his date of appointment as 18
July 1997 and his last working date as 13 June 2003, in support of
the contention that the deceased workman was in continuous
employment. It is further contended that the name of the deceased
workman appeared in the list of employees proposed for
absorption as permanent employees, thereby indicating that he
had acquired entitlement to permanency.
12.Reliance has also been placed upon the correspondence
issued by the father of the deceased workman informing the
Corporation regarding the illness suffered by the deceased
workman. On the strength of the aforesaid material, it is
contended that the termination of the deceased workman was
illegal and unlawful, and that he was consequently entitled to
reinstatement with full back wages and consequential service
benefits. It is further submitted that after the alleged oral
termination dated 9 December 2003, the deceased workman
continuously approached the First Party Corporation by addressing
various letters requesting permission to resume duties. It is
submitted that the said correspondence was produced before the
Labour Court and was admitted by the witness examined on behalf
of the First Party. It is submitted that the correspondence dated 9
December 2003 indicates that the deceased workman had sought
permission to resume duties on the ground that he had become
medically fit, supported by a medical certificate dated 2 December
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2003. Reliance is also placed on further correspondence dated 11
July 2005 and 15 July 2005, along with subsequent
communications addressed to various authorities including the
Additional Municipal Commissioner, the Commissioner of the
Municipal Corporation, and the Chief Labour Officer, to
demonstrate that the deceased workman persistently sought
reinstatement in service. It is contended that despite the same, the
First Party neither permitted him to resume duties nor replied to
the communications addressed by him.
13.It is further submitted that a termination letter thereafter
came to be issued on 14 December 2007 alleging unauthorised
absence from 25 June 2003. Thereafter, the deceased workman
addressed further representations dated 17 January 2008 to
various authorities including the Commissioner and other officials
of the Municipal Corporation. It is submitted that the deceased
workman subsequently instituted Writ Petition No. 6279 of 2009
before the Bombay High Court, wherein directions came to be
issued directing the Corporation to consider his case
sympathetically for ad hoc appointment subject to availability of
vacancies. Pursuant thereto, applications came to be submitted by
the deceased workman on 08 December 2009, 4 January 2010,
and 19 January 2010, which were rejected by communication
dated 08 July 2010 on the ground of non-availability of vacancies.
14.It is further submitted that thereafter the deceased workman
instituted Writ Petition No. 6329 of 2011, wherein the High Court
held that the said Petition was not maintainable and granted
liberty to the deceased workman to raise an industrial dispute
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under the provisions of the Industrial Disputes Act, 1947.
Thereafter, the present industrial dispute came to be raised before
the Appropriate Government. On the aspect of completion of 240
days of continuous service, it is contended that the evidence
available on record clearly establishes that the deceased workman
had completed the requisite number of days and was therefore
entitled to statutory protection under the Industrial Disputes Act,
1947. It is further contended that the First Party had deliberately
given artificial breaks in service to the deceased workman with a
view to deprive him of the benefit of permanency. It is submitted
that the witness examined on behalf of the First Party has admitted
during cross-examination that such artificial breaks were in fact
given.
15.It is further contended that the documents produced by the
First Party, including the muster rolls, could not be treated as
reliable evidence inasmuch as the same were merely xerox copies
and had not been proved in accordance with law. According to the
Respondents, the identity card and other documentary material on
record sufficiently establish that the deceased workman had
continuously worked and had completed more than 240 days of
service. It is further contended that other similarly situated
employees whose names appeared in the same list were granted
permanency in service and, therefore, the deceased workman was
equally entitled to receive the same benefit. It is thus contended
that the services of the deceased workman were illegally
terminated by the First Party and that had such termination not
occurred, he would have been regularised and made permanent
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along with other similarly placed employees. In the circumstances,
it is submitted that notwithstanding the death of the deceased
workman, his legal heirs are entitled to all consequential monetary
and service benefits including back wages, as has rightly been
granted by the Labour Court.
REASONS AND ANALYSIS:
16.Having heard the learned Advocates for the parties and
having carefully gone through the pleadings, evidence and the
material placed on record, this Court is of the view that the
impugned Award does not call for interference in exercise of writ
jurisdiction. The scope of interference under Articles 226 and 227
is limited. This Court is not sitting in appeal over the findings
recorded by the Labour Court. Unless the findings are perverse,
without evidence, or in clear disregard of law, this Court will not
substitute its own view merely because another view may also be
possible. In the present matter, when the record is examined as a
whole, the Award passed by the Labour Court cannot be said to be
illegal or without jurisdiction.
17.The Petitioner argued that the wage slips show payment for
work done and cannot establish continuous service. This statement
is correct in law to a certain extent. Yet the question before the
Labour Court was not only whether the deceased workman was a
employee. The question was whether he had worked for sufficient
period, whether he had been denied continuity by artificial breaks,
and whether the termination pleaded by the employer was
justified. The wage slips, identity card and other correspondence,
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when read together, gave the Labour Court a basis to conclude that
the deceased workman had in fact put in service for a meaningful
period. Once such material was available, the Labour Court was
justified in drawing a reasonable inference in favour of the
workman.
18.This Court finds substance in the contention to the extent
that an identity card issued by the employer is a document
emanating from the establishment and therefore carries
evidentiary value. When an employer records in its own document
the date from which a workman was engaged and specifies the last
working date, such document cannot be lightly brushed aside. The
same does indicate that the deceased workman had been attached
with the establishment from the date reflected therein and had
remained associated till the last working date. Such recital in
official document does probabilise the case that the deceased
workman had rendered service over substantial time.
19.However, merely because the identity card contains a date of
appointment and last working date, the same does not establish
continuous employment for every day during the entire period.
The existence of an identity card may show association with the
employer and period of engagement, but by itself it may not be
treated as conclusive proof that the workman had worked without
break on each day throughout the period. Such document is
required to be read in conjunction with surrounding circumstances
and other evidence available on record. Nevertheless, the identity
card certainly constitutes corroborative material which supports
the stand of the Respondents that the deceased workman had
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remained in employment over long period and had not worked for
stray days.
20.This Court finds that mere inclusion of a person’s name in a
proposed list for absorption may not create a legal right to claim
permanency as matter of entitlement, nevertheless such fact is
indeed relevant circumstance which cannot be ignored. The
appearance of the deceased workman’s name in such list prima
facie indicates that his case had been taken into consideration by
the employer while examining employees for possible
regularisation, and such inclusion lends support to the argument
that he was being treated similarly with other workmen whose
cases were under consideration for permanency. Had the deceased
workman been ineligible or disconnected from regular nature of
service, ordinarily there would have been no occasion for his name
to be reflected in such list. Therefore, this circumstance materially
weakens the Petitioner’s stand that the deceased workman being
occasional worker.
21.It is further contended on behalf of the Respondents that as
many as 15 other employees, who according to them were
standing on identical footing with the deceased workman and
whose names were also reflected in the same panel or list in which
the name of the deceased workman was included, were
subsequently granted permanency in service by the employer. On
the strength of such circumstance, the Respondents have argued
that once the employer itself had considered the deceased
workman together with those other employees as belonging to one
class for the purpose of consideration of permanency, there
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remained no lawful basis thereafter to deny to the deceased
workman the same treatment which came to be extended to the
others. It is their contention that when persons similarly
circumstanced, similarly appointed, similarly engaged, and
similarly It is further contended on behalf of the Respondents that
as many as 15 other employees, who according to them were
standing on identical footing with the deceased workman and
whose names were also reflected in the same panel or list in which
the name of the deceased workman was included, were
subsequently granted permanency in service by the employer. On
the strength of such circumstance, the Respondents have argued
that once the employer itself had considered the deceased
workman together with those other employees as belonging to one
class for the purpose of consideration of permanency, there
remained no lawful basis thereafter to deny to the deceased
workman the same treatment which came to be extended to the
others. It is their contention that when persons similarly
circumstanced, similarly appointed, similarly engaged and
similarly placed in the same administrative category have been
granted benefit of regularisation, exclusion of one amongst them
without any intelligible reason amounts to hostile discrimination
and arbitrary exercise of power. According to the Respondents,
therefore, the deceased workman equally became entitled to
receive the same benefit of permanency which was extended to the
other employees from the same category.
22.While considering the aforesaid submissions advanced on
behalf of the Respondents, particularly the argument that several
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other employees similarly placed had been granted permanency
and therefore the deceased workman also ought to have received
like treatment, it becomes necessary for this Court to carefully
examine the legal principles governing such issue as explained by
the Supreme Court in the case of
ONGC v. Krishan Gopal (2021)
18 SCC 707. The said decision assumes relevance because it deals
directly with the extent of powers of Labour and Industrial Courts
while considering claims of regularisation and permanency raised
by temporary, daily wage, casual or similar category workmen.In
the said judgment, the Supreme Court considered the earlier line
of authorities dealing with grant of regularisation to workers who
had remained in service for long duration on temporary, casual,
daily wage or non permanent basis. The Court noticed that there
existed certain observations in earlier decisions which appeared to
require harmonious understanding. In particular, reference was
made to the judgments in
U.P. Power Corpn. Ltd. v. Bijli Mazdoor
Sangh,
(2007) 5 SCC 755 and Maharashtra SRTC v. Casteribe
Rajya Parivahan Karmchari Sanghatana,
(2009) 8 SCC 556 :
(2009) 2 SCC (L&S) 513
was sought to be reconciled in a two-
Judge Bench decision of this Court in
Hari Nandan Prasad v. Food
Corpn. of India,
(2014) 7 SCC 190. Thus, the Supreme Court in
ONGC v. Krishan Gopal undertook exercise of reconciling and
restating the proper legal standard applicable in such matters.
23.The principle emerging from the aforesaid judgments is that
a Labour Court or Industrial Court cannot direct regularisation
merely because a worker has rendered service for long years on
temporary or daily wage basis. Mere length of service, by itself
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does not create legal entitlement in favour of the worker to
demand permanent status. Service for long period may create
expectation, but expectation alone cannot mature into enforceable
legal right unless foundational requirements prescribed in law are
satisfied. The Court is duty bound to first examine whether
sanctioned vacant posts exist against which such regularisation can
be made; whether the concerned employee possesses qualifications
and eligibility required for appointment to such post; and whether
the applicable recruitment procedure and service rules governing
appointment to such post have been complied with. If these
conditions are absent, then regularisation cannot ordinarily be
ordered merely because a worker has continued for substantial
time.
24.The Supreme Court has explained that if Courts begin
directing regularisation only on the ground of long service without
examining sanctioned posts and recruitment rules, such course
may permit entry into public employment through means not
recognised by law. The Court described such consequence as
permitting “backdoor entry” into public service. Such approach
would be inconsistent with constitutional principles, especially the
mandate of equality under Article 14 and fairness in public
employment, because regular public appointments are required to
be made through transparent and lawful procedure affording equal
opportunity to all eligible candidates. Therefore, indiscriminate
regularisation merely because of passage of time cannot be
sustained in law.
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25.However, the Supreme Court clarified that there exists
qualification to the above principle. The Court observed that a
different situation may arise where the employer itself has granted
regularisation or permanency to certain workers who were
similarly placed and similarly engaged. In such circumstances,
where some employees of same category, performing same duties,
under same mode of engagement, have been regularised by the
employer, denial of similar treatment to other identically placed
workers may amount to arbitrary and discriminatory conduct. In
such case, the Labour Court or Industrial Court would not be
creating a new right in favour of the workman; rather, it would be
enforcing equality and preventing unfair discrimination amongst
similarly situated employees.
26.The rationale behind this distinction is plain. If no one has
been regularised and the Court directs regularisation because of
long service, the Court may be stepping beyond permissible limits
and creating rights. But where the employer itself has chosen to
regularise some amongst a class of similarly placed workers, then
the inquiry shifts from creation of right to question of equal
treatment. Once employer extends permanency to some workers
from a particular category, it cannot deny the same benefit to
others from the same class without disclosing lawful distinction. In
such a situation, the Court merely ensures parity. It does not create
a benefit but removes inequality already brought into existence by
employer’s own conduct.
27.Thus the decision in ONGC v. Krishan Gopal clearly lays
down dual proposition. Firstly, regularisation cannot be granted
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because the worker has served for long years. Secondly, where
employer has itself regularised other similarly situated employees
engaged in similar manner, refusal to extend same treatment to the
remaining employees may amount to discriminatory treatment. In
such circumstance, Industrial or Labour Court may validly
intervene to restore fairness and equal treatment among
employees similarly circumstanced.
28.The fact that the deceased workman’s name appeared in the
same list along with those employees who were later absorbed as
permanent employees assumes significance. The inclusion of his
name in that common list indicates that his case had been viewed
by the employer within the same category of employees who were
under consideration for regularisation. Therefore unless the
employer demonstrates some disqualification, misconduct,
dissimilarity, or legal impediment specifically applicable to the
deceased workman, the denial of similar benefit to him raises
doubt regarding fairness of such action.
29.On the point of delay while approaching court, it is observed
from the material placed on record that the correspondence dated
11 July 2005 and 15 July 2005 clearly indicates that the deceased
workman had continuously approached the Petitioner requesting
that he be permitted to resume duties. The contents of the said
communications reveal that the deceased workman had not
treated his employment as abandoned nor had he accepted
cessation of service. On the contrary, the repeated requests made
by him demonstrate his intention and willingness to continue in
employment and to discharge duties under the Petitioner
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establishment. The said correspondence therefore constitutes
relevant circumstance showing that the deceased workman
asserted continuation of employer employee relationship and
sought restoration thereof.
30.Further, the subsequent correspondence dated 19 April 2006
addressed to the Additional Municipal Commissioner, the
communication dated 18 April 2006 addressed to the Additional
Municipal Commissioner, City, and thereafter the letter dated 11
June 2007 addressed to the Commissioner of the Municipal
Corporation and the Chief Labour Officer, further disclose that the
deceased workman continuously pursued his grievance before
authorities of the Corporation with the same request that he be
allowed to report for duty. The representations to higher
authorities shows that the deceased workman was pursuing his
claim before all administrative forums.
31.What is material is that despite such repeated
representations made over years, the Petitioner appears neither to
have allowed the deceased workman to resume duties nor to have
issued any response to the various communications sent by him.
The absence of any satisfactory reply from the employer to
repeated requests of a workman seeking reinstatement creates
doubt regarding the fairness of the employer’s conduct. If indeed
the Petitioner’s case was that the deceased workman had
abandoned service or had lawfully ceased to remain in
employment, it would have been expected that the employer
would communicate such position.
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32.It is thereafter seen that on 14 December 2007, the
Petitioner issued termination letter to the deceased workman
alleging therein that he had remained absent from duty from 25
June 2003 without intimation. This communication assumes
importance because it demonstrates that the Petitioner itself
subsequently proceeded to issue communication treating the
services of the deceased workman as terminated on account of
alleged absence. The issuance of such termination letter weakens
the stand that no termination ever took place. If the employer had
already considered the deceased workman as having ceased to be
in service long prior thereto, the necessity of issuing termination
communication in December 2007 itself requires explanation. The
issuance of such letter indicates that the employer itself found it
necessary to communicate cessation of service, thereby lending
support to the case of the Respondents that the relationship of
employment had remained in dispute and had not conclusively
ended merely by passage of time.
33.Even thereafter, the conduct of the deceased workman did
not reflect acquiescence. The record shows that the deceased
workman again addressed communication dated 17 January 2008
to several authorities including the Commissioner of the Municipal
Corporation, Dr. Smt. Shubha Raul, the Mayor, Deputy
Commissioner and Chief Labour Officer of the Municipal
Corporation. This further demonstrates that even after receipt of
termination communication, the deceased workman did not accept
the same quietly but immediately challenged the action and
continued to seek intervention from competent authorities.
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34.It is also brought on record that on 26 March 2008 the
Mayor addressed communication to Mr. Phanase requesting that
the deceased workman be permitted to resume duties. The fact
that even the office of the Mayor appears to have intervened and
recommended that the deceased workman be allowed to resume
duties indicates that the grievance raised by the deceased
workman was treated with seriousness at administrative level.
Though such recommendation may not create legal right, it does
indicate that the claim of the deceased workman had substance to
warrant consideration.
35.Thereafter, being unable to secure relief, the deceased
workman approached this Court by filing Writ Petition No. 6279 of
2009. In the said proceedings, this Court directed that the
deceased workman may make an application and that the
Petitioner may consider his case sympathetically for ad hoc
appointment if vacancy was available. Though the said order did
not adjudicate upon the rights of the deceased workman, it
demonstrates that the deceased workman had remained vigilant
and had taken recourse to proceedings for redressal of his
grievance. It further shows that the dispute regarding his
employment status was being pursued and had not lapsed into
abandonment.
36.Pursuant to the aforesaid liberty, the deceased workman
made applications dated 8 December 2009, 4 January 2010 and 19
January 2010. This reflects his diligence and willingness to comply
with directions of the Court in order to secure re-employment. In
response thereto, the Petitioner issued communication dated 8 July
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2010 stating that no vacancy was available and, therefore, the
deceased workman could not be appointed. The said reply is
significant because instead of rejecting the deceased workman on
ground that he had no claim or no prior relationship with the
establishment, the Petitioner chose to reject him only on ground of
non-availability of vacancy.
37.Subsequently, the deceased workman again approached this
Court by filing Writ Petition No. 6329 of 2011. In the said
proceedings, this Court held that the writ petition was not
maintainable and observed that the deceased workman may avail
remedy of raising industrial dispute under the Industrial Disputes
Act, 1947. Thereafter, acting upon such liberty, the deceased
workman raised the present industrial dispute before the
Appropriate Government. The sequence of these proceedings
shows chain of remedies by the deceased workman. At no point
can it be said that he slept over his rights or abandoned his
grievance. Rather, the record shows assertion of claim before
authorities, municipal officers, constitutional court and ultimately
industrial forum.
38.The Petitioner has sought to contend, relying upon the
decisions in
Nedungadi Bank, Prabhakar and Krishi Utpadan
Mandi Samiti
, that stale disputes ought not to be referred and that
back wages ought not be granted where there is delay in raising
dispute. There can be no quarrel with the legal principles
enunciated in those judgments. The proposition that industrial
dispute must be live and subsisting at the time of reference and
that stale and dead disputes ordinarily ought not to be entertained
22
wp-9089 -2023.doc
is well settled. Equally, the proposition that unexplained delay may
disentitle grant of full back wages is also accepted principle of law.
39.Accordingly, while delay is a relevant factor and cannot be
ignored, delay by itself does not extinguish industrial dispute. The
Court is required to examine whether the dispute had become so
stale, dead, and buried by passage of time that no adjudication
could be undertaken. In the peculiar facts of the present matter,
where repeated representations and judicial proceedings
intervened throughout the period, such conclusion cannot be
drawn. The Labour Court, therefore, cannot be faulted for holding
that notwithstanding lapse of time, the dispute still required
adjudication on merits.
40.Thus, in the opinion of this Court, the reliance placed by the
Petitioner upon the aforesaid judgments does not carry the matter
any further. The principles laid down therein are well settled, but
their application depend always upon factual foundation of each
case. Therefore, the Labour Court was justified in holding that the
industrial dispute remained sufficiently live for adjudication.
41.In view of the discussion made hereinabove, the following
order is passed:
(i) The present Petition, being devoid of merits, stands
dismissed;
(ii) The Award dated 11 April 2019 passed by the learned
2nd Labour Court, Mumbai in Reference (IDA) No. 181 of
2013 is hereby upheld;
23
wp-9089 -2023.doc
(iii) The Petitioner shall comply with the impugned Award,
if not already complied with, within a period of eight weeks
from the date of this order;
(v) In the event the monetary benefits arising under the
impugned Award have not yet been released, the same shall
be calculated and disbursed to the legal heirs of the deceased
workman within the aforesaid period;
(vi) Rule is discharged in the aforesaid terms;
(vii) In the facts and circumstances of the case, there shall
be no order as to costs.
42.Pending interlocutory application(s), if any, stands disposed
of.
43.At this stage, learned Advocate for the petitioner seeks stay
of this judgment and order for a period of four weeks from today.
However, for the reasons recorded above, the request for stay is
rejected.
(AMIT BORKAR, J.)
24
In a pivotal decision, the **Bombay High Court Writ Petition** No. 9089 of 2023, concerning Shabnoor Ayub Pathan versus Brihanmumbai Mahanagarpalika, has been thoroughly examined and the Labour Court’s award upheld. This ruling, now a key reference on CaseOn, delves into critical aspects of worker rights under the **Industrial Disputes Act** and the nuances of employee regularization. Legal professionals and students frequently consult CaseOn for comprehensive analyses of such landmark judgments, understanding their implications on employment law and administrative fairness.
The case revolved around a deceased workman, Mr. Zamir Abdul Sattar Shaikh, who sought reinstatement, permanency, and back wages from the Brihanmumbai Mahanagarpalika (BMC), his former employer. The BMC challenged the Labour Court’s award, primarily citing delay in raising the dispute, lack of continuous service, and the workman's temporary 'Badli' (substitute) status.
The High Court relied on several established legal principles, particularly:
The Bombay High Court meticulously analyzed the facts and the Labour Court’s findings:
The Court acknowledged the ten-year gap but found that the deceased workman had actively and continuously pursued his grievance. He made repeated representations to various authorities, filed two Writ Petitions before the High Court, and only after being granted liberty by the High Court did he formally raise the industrial dispute. The Court noted that the BMC itself issued a termination letter in December 2007 (for alleged absence from June 2003), suggesting the employment relationship was still considered active and not abandoned. This consistent pursuit of justice prevented the dispute from becoming 'stale or dead' in the eyes of the law.
While acknowledging that wage slips primarily show payment for work done, the Court emphasized that when read with other documents like the identity card (which stated his appointment date as July 1997 and last working date as June 2003) and correspondence, there was sufficient basis for the Labour Court to infer substantial service. The Court found evidentiary value in the identity card as an official document from the employer. The employer's admission of giving 'artificial breaks' to the workman further supported the claim of continuous service.
This was a critical point of the judgment. The deceased workman's name appeared in a proposed list for absorption into permanent service alongside 15 other employees who were subsequently regularized. The High Court, applying the second part of the ONGC v. Krishan Gopal principle, reasoned that once the employer considered the workman for regularization and extended this benefit to others in the same category without valid distinction, denying it to the deceased workman was discriminatory and an arbitrary exercise of power. The Labour Court was therefore justified in enforcing parity rather than creating a new right.
For legal professionals navigating these complex rulings, especially those involving the **Industrial Disputes Act**, CaseOn.in offers invaluable support. Our 2-minute audio briefs provide concise yet comprehensive summaries, enabling quick analysis of specific judgments and their legal ramifications, like this important ruling on regularization and delay.
Given the workman’s diligent efforts to seek redressal through multiple forums and the finding that the dispute remained live, the High Court implicitly endorsed the Labour Court's decision to grant full back wages. The delay was deemed 'explained' by the ongoing legal and administrative battles.
The Bombay High Court dismissed the Writ Petition, thereby upholding the Labour Court’s award. It affirmed that a workman's persistent efforts to seek justice can overcome arguments of delay, especially when the employer's own actions suggest an ongoing employment relationship. Most importantly, the judgment reinforces the principle that employers cannot arbitrarily deny regularization to one employee when similarly situated colleagues have been granted permanency without a legally sound reason.
This judgment serves as a vital precedent for several reasons:
This case is a must-read for employment lawyers, labor law practitioners, and law students studying the Industrial Disputes Act, offering deep insights into the interpretation of continuous service, the impact of delay, and the critical issue of fair regularization practices.
Please note that all information provided in this article is for informational purposes only and does not constitute legal advice. While efforts have been made to ensure accuracy, the content should not be relied upon as a substitute for professional legal counsel. For specific legal issues, it is essential to consult with a qualified legal professional.
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