As per case facts, petitioners were appointed as Junior Engineers by the Pune Municipal Corporation on a contractual basis, and their services were terminated on March 19, 2011. Crucially, an ...
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AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.14928 OF 2024
Sanjay Shamrao Bhor … Petitioner
V/s.
Pune Municipal Corporation … Respondent
WITH
WRIT PETITION NO.15166 OF 2024
Prashant Harishchandra Bibave … Petitioner
V/s.
Pune Municipal Corporation … Respondent
WITH
WRIT PETITION NO.15167 OF 2024
Amol Balasaheb Tapkir … Petitioner
V/s.
Pune Municipal Corporation … Respondent
WITH
WRIT PETITION NO.15168 OF 2024
Shashibhushan Maruti Hole … Petitioner
V/s.
Pune Municipal Corporation … Respondent
WITH
WRIT PETITION NO.15169 OF 2024
Chetan Pandurang Chattar … Petitioner
V/s.
Pune Municipal Corporation … Respondent
Mr. Nitin Kulkarni with Mr. Avinash Belge for the
petitioner in all writ petitions.
Mr. Abhijit P. Kulkarni with Ms. Sweta Shah and Mr.
Abhishek Roy for the respondent-PMC.
1
ATUL
GANESH
KULKARNI
Digitally signed
by ATUL GANESH
KULKARNI
Date: 2026.05.08
14:25:06 +0530
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CORAM :AMIT BORKAR, J.
RESERVED ON MAY 7, 2026
PRONOUNCED ON:MAY 8, 2026
JUDGMENT:
1.Since common questions of fact and law arise for
consideration in all the present writ petitions, the same are being
decided and disposed of by this common Judgment and Order. For
the sake of convenience and to avoid repetition of facts, Writ
Petition No. 14928 of 2024 is treated as the lead matter, and the
facts pleaded therein are referred to for the purpose of
adjudication of the present group of petitions.
2.By these writ petitions instituted under Articles 226 and 227
of the Constitution of India, the petitioners have assailed the
legality, correctness, and propriety of the Judgment and Award
dated 30 May 2024 rendered by the learned Labour Court, Pune,
in the respective references preferred by the petitioners.
3.The brief facts giving rise to the present petitions are that the
petitioner had raised an industrial dispute questioning the legality
of the termination of his services effected by the respondent by
order dated 19 March 2011. The Appropriate Government, upon
being satisfied about the existence of an industrial dispute within
the meaning of the provisions of the Industrial Disputes Act, 1947,
made a reference for adjudication to the Labour Court at Pune.
Pursuant to the notice issued by the Labour Court in the said
reference proceedings, the petitioner appeared and filed his
Statement of Claim setting out the factual and legal basis of his
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challenge.
4.In the Statement of Claim, the petitioner pleaded that he was
appointed to the post of Junior Engineer on 24 March 2008
pursuant to an advertisement published in the daily newspaper
“Dainik Lokmat” dated 25 September 2005 inviting applications
for the post of Junior Engineer (Civil). According to the petitioner,
he possessed the requisite educational qualifications and had
accordingly participated in the selection process comprising a
written examination and interview. It was his case that though he
was not initially selected, his name was included in the waiting list
prepared by the respondent. Subsequently, on account of
availability of work in the Heritage and JNNURM Departments, the
petitioner came to be offered appointment on the basis of his merit
position in the waiting list. The petitioner relied upon the office
note dated 10 March 2008 pursuant to which he was appointed,
and further contended that Resolution No. 266 dated 27 May 2008
was thereafter passed recognizing and approving such
appointment.
5.The petitioner further contended that he was continued in
service by issuance of temporary appointment orders for fixed
periods of six months from time to time with an intention to
deprive him of the benefits attached to permanent employment.
According to the petitioner, though in substance he was
discharging regular and perennial duties, the respondent sought to
describe his employment as contractual under Section 73 of the
Maharashtra Municipal Corporations Act, while at the same time
attempting to claim protection under Section 2(oo)(bb) of the
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Industrial Disputes Act, 1947, so as to exclude the termination
from the ambit of retrenchment.
6.It was further the case of the petitioner that he had rendered
continuous service for more than 240 days. On that basis, along
with other similarly situated employees, the petitioner instituted a
complaint alleging commission of Unfair Labour Practice before
the Industrial Court at Pune under the provisions of the MRTU &
PULP Act, inter alia seeking conferment of permanency under
Clause 4(C) of the Model Standing Orders. In the said complaint, a
specific contention was raised that out of 283 sanctioned posts of
Junior Engineers, 34 posts were lying vacant and that 22 junior
employees had already been granted permanency, whereas similar
treatment was denied to the petitioner without any justifiable
basis.
7.During the pendency of the aforesaid complaint, the
petitioner also moved an application seeking interim relief. The
Industrial Court, after hearing the parties and considering the
material placed on record, partly allowed the interim application
by Judgment and Order dated 30 July 2010 and directed the
respondent to continue the petitioner in service till duly selected
candidates appointed in accordance with the recruitment rules
joined duties in place of the complainants. The said interim order
admittedly attained finality, the respondent having not challenged
the same before any superior judicial forum. The petitioner
contended that notwithstanding the subsistence and binding
nature of the aforesaid interim order, the respondent abruptly
terminated his services by office order dated 19 March 2011.
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According to the petitioner, the said action amounted to a clear
breach and disobedience of the order passed by the Industrial
Court. Aggrieved thereby, the petitioner instituted Criminal
Complaint No. 28 of 2011 before the Labour Court at Pune under
Section 48(1) of the MRTU & PULP Act alleging wilful violation of
the interim order dated 30 July 2010. The Labour Court, by order
dated 17 September 2013, prima facie recorded a finding that
breach of the order passed by the Industrial Court was made out
and accordingly issued process against the respondent.
8.Being aggrieved by the issuance of process, the respondent
preferred Revision Application (ULP) No. 214 of 2013 before the
Industrial Court at Pune. The Industrial Court, by its order in
revision, remanded the matter to the Labour Court with a direction
to examine the question as to whether previous sanction under
Section 197 of the Code of Criminal Procedure was necessary
before proceeding further with the complaint. Upon remand, the
Labour Court reheard the matter and once again, by order dated
28 September 2017, issued process against the respondent. The
petitioner, therefore, contended before the Labour Court that the
termination order dated 19 March 2011 was illegal, arbitrary, and
contrary to the binding interim order dated 30 July 2010 passed
by the Industrial Court and consequently liable to be quashed and
set aside.
9.The petitioner further contended that he had completed
continuous service in excess of 240 days and that his services came
to be terminated without compliance with the mandatory
requirements prescribed under Section 25F of the Industrial
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Disputes Act, 1947. It was also his contention that the respondent
had failed to display and maintain the seniority list as
contemplated under Rule 81 of the Industrial Disputes
(Maharashtra) Rules, 1957 and, therefore, the impugned action of
termination stood vitiated in law and was liable to be treated as
illegal and void ab initio. It was further brought on record that the
complaint alleging commission of Unfair Labour Practice and
seeking permanency ultimately came to be dismissed on merits by
the Industrial Court by Judgment and Order dated 9 March 2016.
Challenging the said Judgment and Order, the petitioner preferred
Writ Petition No. 9668 of 2016 before this Court, which
subsequently came to be disposed of by order dated 31 January
2023.
10.In the meanwhile, pursuant to the notice issued in the
reference proceedings, the respondent appeared before the Labour
Court and filed its Written Statement resisting the claim and
justifying the termination. The principal defence raised by the
respondent was that the petitioner had been appointed purely on
temporary and contractual basis for fixed periods of six months
from time to time and, therefore, cessation of employment upon
expiry of such contractual tenure would fall within the exception
carved out under Section 2(oo)(bb) of the Industrial Disputes Act,
1947 and would not amount to retrenchment within the meaning
of the said Act. In order to substantiate his contention that he had
rendered continuous service for more than 240 days, the petitioner
issued a notice to produce documents at Exhibit U-8 calling upon
the respondent to produce the muster-cum-wage register for the
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period from 24 March 2008 to 19 March 2011. The said
application came to be allowed by the Labour Court by order dated
27 July 2022.
11.The petitioner thereafter entered the witness box and
examined himself at Exhibit U-14 in support of the case pleaded by
him. On behalf of the respondent, Shri Avinash Vasant Wanjari was
examined at Exhibit C-15 and was subjected to detailed cross-
examination on behalf of the petitioner. The respondent also
examined Shri Vijay Tukaram Pawar at Exhibit C-16, who was
likewise extensively cross-examined by the petitioner. The
deposition of Shri Vijay Tukaram Pawar forms part of the record of
the proceedings. Upon appreciation of the pleadings, oral
evidence, documentary material produced on record, and the
submissions advanced on behalf of the respective parties, the
learned Labour Court, Pune, by the impugned Judgment and
Award dated 30 May 2024, rejected the reference preferred by the
petitioner. Being aggrieved by the aforesaid Judgment and Award
passed by the Labour Court, the petitioners have invoked the
supervisory and extraordinary writ jurisdiction of this Court under
Articles 226 and 227 of the Constitution of India.
12.Mr. Nitin Kulkarni, learned counsel appearing on behalf of
the petitioner, submitted that it is an undisputed and admitted
position on record that the interim order dated 30 July 2010
passed by the Industrial Court was subsisting and operative on the
date on which the petitioner’s services came to be terminated,
namely on 19 March 2011. He submitted that the respondent was,
therefore, under a legal obligation to act strictly in conformity with
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and subject to the directions contained in the said interim order
passed by the Industrial Court. According to the learned counsel,
the Labour Court exceeded the scope and ambit of the reference
inasmuch as the dispute referred for adjudication was confined to
the issue, as to whether the termination effected on 19 March
2011 was legal and proper and whether the petitioner was entitled
to reinstatement with continuity of service and full back wages. It
was contended that instead of restricting itself to the terms of the
reference, the Labour Court proceeded to adjudicate upon issues
relating to permanency, though such questions had already been
the subject-matter of proceedings before the Industrial Court
which ultimately culminated in dismissal of the complaint. He
submitted that the Labour Court erroneously entered into the issue
as to whether the petitioner was a temporary employee and
whether he was entitled to permanency, though the said
controversy was wholly dehors the scope of the reference. It was,
therefore, contended that the Labour Court travelled beyond the
terms of reference and thereby committed an error apparent on
the face of the record.
13.Learned counsel further submitted that after issuance of the
termination order, the petitioner had instituted Criminal Complaint
No. 28 of 2011 under Section 48(1) of the MRTU & PULP Act
before the Labour Court alleging breach and willful disobedience
of the interim order passed by the Industrial Court. He submitted
that while issuing process by order dated 17 September 2013, the
Labour Court recorded a categorical finding that the respondent
had been directed to continue the complainant in employment till
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newly selected candidates joined service in place of the
complainants. The Labour Court further observed that though
office orders dated 27 January 2011, 7 February 2011, 25 February
2011, 10 March 2011 and 28 March 2011 reflected appointment of
selected candidates, the said appointments were made against
vacancies arising on account of promotions and transfers and not
against the posts occupied by the complainants. According to the
learned counsel, the Labour Court had specifically recorded a
finding that the selected candidates were not appointed in place of
the petitioner.
14.He further submitted that even after remand, while passing
the subsequent order dated 28 September 2017, the Labour Court
reiterated its earlier finding that no selected candidate had been
appointed either against the petitioner’s post or in his place. In
view of the aforesaid findings, it was contended that there was a
clear, direct, and evident breach of the interim order dated 30 July
2010 passed by the Industrial Court. According to the learned
counsel, while adjudicating the reference proceedings, the Labour
Court failed to take into consideration the findings recorded in the
proceedings instituted under Section 48(1) of the MRTU & PULP
Act and consequently arrived at a wholly perverse and
unsustainable conclusion.
15.It was further submitted that the Labour Court ought to have
quashed and set aside the termination order solely on the ground
that the same had been effected in breach of the subsisting interim
order passed by the Industrial Court. However, instead of
examining the legal effect and binding nature of the interim
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protection granted by the Industrial Court, the Labour Court
erroneously proceeded on the footing that since the complaint
alleging Unfair Labour Practice ultimately came to be dismissed by
the Industrial Court by Judgment and Order dated 9 March 2016,
the interim order stood merged with the final adjudication and
consequently the termination became legal and valid. According to
the learned counsel, such reasoning clearly discloses total non
application of mind and complete misdirection in law. He therefore
prayed that the impugned Judgment and Award passed by the
Labour Court be quashed and set aside.
16.Mr. Nitin Kulkarni further submitted that the petitioner in
Writ Petition No. 14928 of 2024 was employed on contractual
basis during the periods from September 2011 to December 2012,
August 2013 to December 2013, December 2013 to November
2014, and December 2014 to May 2015. He submitted that the
petitioner in Writ Petition No. 15166 of 2024 was employed on
contractual basis for the period from 5 December 2014 to 31 May
2015, whereas the petitioner in Writ Petition No. 15167 of 2024
was engaged on contractual basis from December 2014 to May
2015. It was further submitted that the petitioner in Writ Petition
No. 15168 of 2024 was employed on contractual basis during the
periods from December 2011 to December 2012, August 2013 to
April 2014, December 2014 to May 2015, June 2018 to December
2021, and January 2022 to August 2023. Likewise, the petitioner
in Writ Petition No. 15169 of 2024 was employed on contractual
basis for the period from 5 December 2014 to 31 May 2015.
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17.Per contra, Mr. Abhijit P. Kulkarni, learned Advocate
appearing on behalf of the respondent Corporation, invited my
attention to the judgment rendered by this Court in Writ Petition
No. 5546 of 2010 whereby the writ petition instituted by the very
same petitioners seeking regularisation of their services came to be
dismissed. He therefore submitted that the petitioners are not
entitled to the reliefs of reinstatement and back wages. The
learned counsel further submitted that though the petitioner had
applied pursuant to the advertisement issued by the respondent,
he was not selected in the regular recruitment process and his
name did not figure in the select list. According to him, the
petitioner thereafter came to be appointed only on the basis of the
office note and resolution and such appointment was purely
contractual in nature and not by way of regular recruitment. He
submitted that since the appointment itself was for fixed periods of
six months at a time, the petitioner could not claim reinstatement
as a matter of right. It was further contended that upon
completion of the project work, the services of the petitioner were
no longer required by the respondent Corporation.
18.Learned counsel for the respondent further submitted that
the petitioner had already claimed permanency before the
Industrial Court and the said complaint ultimately came to be
dismissed on merits. According to him, the interim order passed in
the said proceedings merged with the final order passed by the
Industrial Court. He submitted that pursuant to the interim
directions issued by the Industrial Court, the petitioner’s services
were extended for a further period of six months, however, the
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actual and effective termination had taken place on 22 July 2010.
It was contended that the petitioner could not claim 19 March
2011 as the date of termination since prior thereto he had merely
been continued in employment pursuant to the interim directions
issued by the Industrial Court. On the aforesaid basis, it was
contended that the reference itself was not maintainable.
19.Learned counsel further submitted that the appointment of
the petitioner was made under Section 534(1) of the BPMC Act
and, therefore, the petitioner was never a regularly recruited
employee but was only a contractual employee engaged for a
limited period. It was contended that the petitioner had also failed
to succeed in the subsequent recruitment examination conducted
pursuant to a fresh advertisement and, therefore, could not claim
benefits such as permanency, back wages, seniority, or continuity
of service. According to the respondent, since the petitioner was a
temporary contractual employee, the provisions of Section 25F of
the Industrial Disputes Act, 1947 were not attracted. Learned
counsel submitted that detailed written notes of arguments had
also been tendered before the Court and, therefore, repetition of
the same was avoided. In support of his submissions, reliance was
placed upon the judgments of this Court in
Sangli Miraj Kupwad
Cities Municipal Corporation, Sangli vs. Mahapalika Kamgar
Sabha, Sangli i
n Writ Petition No. 4647 of 2011 decided on 23 July
2012
; Ramesh Vitthal Patil & Others vs. Kalyan Dombivali
Municipal Corporation & Others
in Writ Petition Nos. 443, 565 and
901 of 2010 decided on 7 June 2010
; and the judgment of the
Supreme Court in Secretary, State of Karnataka & Others vs.
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Umadevi & Others, reported in 2006 INSC 216.
20.Mr. A.P. Kulkarni, while inviting my attention to the interim
order dated 30 July 2010, submitted that the Industrial Court had
directed the respondent Municipal Corporation to continue all the
petitioners in employment till candidates duly selected in
accordance with the recruitment rules joined service. He submitted
that no material whatsoever had been placed on record by the
respondent Municipal Corporation to demonstrate that duly
selected candidates appointed in accordance with the recruitment
rules had in fact joined service in place of the petitioners and,
therefore, the termination of the petitioners’ services was clearly in
breach of the order passed by the Industrial Court. He further
submitted that for the alleged breach of the said order, the
petitioners had already instituted criminal proceedings under
Section 30 of the Industrial Disputes Act wherein process had been
issued against the Municipal Corporation. Learned counsel further
submitted that the candidates who came to be appointed against
the posts on which the petitioners were working were newly
selected candidates. According to him, though there may not be
any specific finding recorded regarding appointment of such
candidates strictly in accordance with the recruitment rules, a
presumption would nevertheless have to be drawn that such
appointments were made after following the prescribed
recruitment procedure and rules.
REASONS AND ANALYSIS:
21.I have given my thoughtful and anxious consideration to the
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rival submissions canvassed by the learned counsel appearing on
behalf of the respective parties. I have also carefully gone through
the pleadings filed before the Labour Court, the documentary
material forming part of the present record, the oral evidence led
by both sides, and the various orders passed in the connected
proceedings before the Industrial Court and the Labour Court from
time to time.
22.The first circumstance, which in my opinion goes to the root
of the matter, is that the interim order dated 30 July 2010
admittedly continued to remain operative on the date on which
the termination order dated 19 March 2011 came to be issued.
This factual position is undisputed between the parties. The
Industrial Court, while passing the interim order, had directed the
respondent Corporation to continue the complainants in
employment till duly selected candidates appointed in accordance
with the recruitment rules joined duties in their place. Such
direction was a binding and operative order passed after hearing
the parties. Once such an order came into existence, it imposed a
corresponding obligation upon the respondent Corporation to act
in conformity with the same.
23.A judicial order cannot be treated as advisory. So long as the
order remained operative, the respondent could not obey one part
and ignore another part. The respondent was under obligation to
demonstrate that the condition prescribed in the interim order had
in fact occurred before terminating the services of the petitioners.
Unless duly selected candidates appointed in accordance with
recruitment rules joined in place of the petitioners, the respondent
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could not have dispensed with their services. The sanctity attached
to judicial orders is an important part of administration of justice.
If parties are permitted to disregard interim orders on their own
understanding, then the authority of judicial forums itself would
become uncertain. Therefore, the legal effect of the interim order
dated 30 July 2010 had to be given full weight and significance
unless it was set aside by a superior Court or otherwise ceased to
operate.
24.The petitioners, in my opinion, are justified in contending
that the Labour Court while adjudicating the industrial reference
was expected to confine itself to the specific terms of reference
made by the Appropriate Government. The dispute referred for
adjudication was limited in nature. The Labour Court was required
to decide whether the termination dated 19 March 2011 was legal
and proper and whether the petitioners were entitled to
reinstatement with continuity of service and back wages. The
reference was not framed as a adjudication regarding permanency
or regularisation. However, from the reasoning recorded in the
impugned Award, it appears that the Labour Court travelled into
the question whether the petitioners were temporary employees
and whether they were entitled to permanency.
25.No doubt, certain incidental observations regarding nature of
employment may become necessary while deciding legality of
termination. However, there is distinction between considering
background facts and reopening an issue already adjudicated
elsewhere. The complaint relating to permanency had already
been adjudicated by the Industrial Court and ultimately dismissed.
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Therefore, the Labour Court ought to have exercised restraint
while dealing with those aspects. An adjudicating authority
functioning under a statutory reference cannot enlarge the scope
of reference on its own and undertake fresh examination of
matters which were not referred for adjudication. In my opinion,
the reasoning adopted by the Labour Court on the aspect of
permanency unnecessarily overshadowed the issue relating to
legality of termination in the face of the subsisting interim order.
26.The proceedings initiated under Section 48(1) of the MRTU
& PULP Act also assume significance in the present matter. After
termination of services, the petitioner instituted Criminal
Complaint No. 28 of 2011 alleging deliberate breach of the interim
order passed by the Industrial Court. While issuing process by
order dated 17 September 2013, the Labour Court recorded
certain important prima facie findings. The Labour Court
specifically observed that the respondent had been directed to
continue the complainants till newly selected candidates joined in
their place. The Labour Court further noticed that the office orders
relied upon by the respondent only showed appointment of
candidates against vacancies created due to promotions and
transfers. These observations though recorded at the stage of
issuance of process, they discloseconsideration of the material
placed before the Court regarding compliance with the interim
order. Once such findings existed on record in connected
proceedings arising from the same factual controversy, the Labour
Court while adjudicating the reference was expected to consider
them carefully and assign reasons if it intended to take a different
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view. However, from the impugned Award, it appears that the
Labour Court failed to consider the effect of these earlier findings.
27.The subsequent order dated 28 September 2017 passed after
remand assumes equal importance. Even after reconsideration, the
Labour Court reiterated that no selected candidate had been
appointed either against the petitioner’s post or in his place. This
repetition indicates that even upon reconsideration, the Labour
Court itself was unable to find material showing compliance with
the condition imposed by the Industrial Court in the interim order
dated 30 July 2010. Once such position emerges from the record,
the respondent could not contend that the cessation of service was
merely contractual expiry. The interim order had imposed a
specific condition precedent before termination could take effect.
28.In practical terms, the burden rested upon the respondent
Corporation to establish that duly selected candidates appointed
according to recruitment rules had actually joined service in place
of the petitioners. Mere production of office orders showing
appointments elsewhere was insufficient. The respondent was
required to establish direct nexus between appointment of selected
candidates and replacement of the petitioners. The material
referred to in the breach proceedings does not establish such
replacement. Therefore, the Labour Court while deciding the
reference ought to have examined this aspect in greater detail
instead of proceeding mainly on the footing that the petitioners
were contractual employees.
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29.At the same time, it cannot be said that the respondent is
without defence or that all submissions raised on behalf of the
respondent deserve outright rejection. The written statement filed
before the Labour Court, the oral submissions advanced before this
Court, and the judgments relied upon by the respondent proceed
on the basis that the petitioners were not regularly recruited
employees. According to the respondent, their appointments were
purely contractual and for fixed duration under Section 534(1) of
the BPMC Act. The respondent has also relied upon Section 2(oo)
(bb) of the Industrial Disputes Act by contending that cessation of
contractual employment upon expiry of stipulated period would
not amount to retrenchment.
30.It is also a matter of record that the complaint filed by the
petitioners seeking permanency came to be dismissed by the
Industrial Court by Judgment and Order dated 9 March 2016. The
said order was subsequently carried before this Court in Writ
Petition No. 9668 of 2016 which also came to be disposed of on 31
January 2023. Therefore, the issue relating to permanency cannot
now be reopened in manner as if no earlier adjudication had taken
place. The findings recorded in those proceedings have attained
finality between the parties. To that extent, the Labour Court was
justified in observing that the petitioners could not seek
conferment of permanency afresh through the present industrial
reference.
31.However, merely because the petitioners failed in obtaining
permanency does not mean that the termination in question
became legal. These are two separate and distinct legal issues. A
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workman may fail in establishing right to permanency and still
succeed in proving that the termination of his service was contrary
to law for independent reasons. The respondent appears to
proceed on assumption that dismissal of the permanency
complaint automatically erased or nullified the interim protection
granted earlier by the Industrial Court. In my opinion, such
approach cannot be accepted in law.
32.An interim order remains operative and binding during the
period of its existence. The legality of an act done during the
subsistence of such order must be examined with reference to the
facts existing on that date. If termination was effected during
operation of the interim order and without satisfying the condition
prescribed therein, then subsequent dismissal of the main
complaint cannot retrospectively cure such illegality. Otherwise,
parties would be free to violate interim orders during pendency of
proceedings and later justify the same merely because the main
proceedings ultimately failed. Such interpretation would dilute
enforceability of interim orders. Therefore, the legality of the
termination dated 19 March 2011 must be examined with
reference to the legal position prevailing on that date and not
merely on the basis of eventual dismissal of the permanency
complaint years later.
33.The submission advanced by the respondent that the
termination had already taken place on 22 July 2010 also does not
materially advance the respondent’s case on the present record.
The documentary chronology placed before the Court clearly
shows that the impugned order challenged in the industrial
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reference is dated 19 March 2011. According to the petitioners,
they continued in employment under protection of the interim
order till that date. The respondent, on the other hand, seeks to
describe such continuation as mere contractual extension.
However, once the Industrial Court had directed continuation till
replacement by duly selected candidates, the respondent could not
merely describe the later cessation as expiry of contractual tenure
without first demonstrating compliance with the conditions
imposed by the Industrial Court.
34.The true issue, therefore, is not whether the appointment
was contractual, but whether the respondent could terminate the
petitioners without satisfying the conditions incorporated in the
judicial order. The form or nomenclature of appointment cannot
override the command contained in a binding order. Even a
contractual employer remains bound by directions issued by court.
Therefore, the respondent’s argument regarding earlier
termination date does not answer the petitioners’ grievance
relating to breach of interim protection.
35.The evidence led by the petitioners regarding completion of
continuous service exceeding 240 days and the alleged violation of
Section 25F of the Industrial Disputes Act also deserves careful
consideration. The petitioner had issued notice to produce
documents at Exhibit U-8 and the Labour Court had directed
production of muster cum wage records. Thereafter, oral evidence
was also led by both sides. The petitioner examined himself, while
the respondent examined two witnesses. Thus, the Labour Court
had before it sufficient material to examine factual continuity of
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service. If the evidence on record established continuous service
within meaning of the Industrial Disputes Act, then the protections
available under Section 25F could not have been brushed aside
merely because the respondent described the engagement as
contractual. No doubt, Section 2(oo)(bb) carves out an exception
in respect of fixed term contractual appointments. However, such
exception cannot be applied in every case where repeated
extensions are granted continuously over long duration. The Court
is required to examine the substance of employment and not
merely the label attached to it. Repeated renewals, continued
engagement for perennial work, and existence of interim
protection are all circumstances which require careful scrutiny
before excluding applicability of Section 25F.
36.The argument advanced by the respondent that the interim
order merged with the final order passed in the complaint
proceedings also requires careful examination. It is true that
interim orders lose independent existence once final adjudication
takes place. However, this principle cannot be stretched to mean
that any breach committed during subsistence of interim order
disappears after final disposal of proceedings. The legality of
conduct must be judged with reference to the point of time when
such conduct occurred. If a party acts in breach of an operative
order during pendency of proceedings, subsequent dismissal of the
main complaint cannot retrospectively legitimise the earlier
breach. At the highest, dismissal of the complaint may affect future
continuation of interim relief. It cannot erase consequences arising
from acts already committed contrary to judicial directions.
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Therefore, the respondent’s theory of merger does not
satisfactorily answer the issue regarding legality of termination
dated 19 March 2011 during subsistence of interim protection.
37.Much emphasis was laid by the learned Advocate appearing
for the respondent Corporation on the judgment delivered by this
Court in Writ Petition No. 5546 of 2010 wherein the claim of the
present petitioners seeking regularisation of their services came to
be rejected. According to the learned counsel, once the petitioners
failed in obtaining relief of regularisation before this Court, they
cannot thereafter seek reinstatement, continuity of service, or back
wages in the present proceedings. It was therefore contended that
the entire foundation of the present petitions becomes
unsustainable in view of the earlier adjudication which has already
attained finality between the parties. There cannot be any dispute
regarding the legal position that the issue relating to regularisation
and conferment of permanency upon the petitioners cannot now
be reopened in the present proceedings. The earlier judgment
undoubtedly binds the parties to the extent of the findings
recorded therein. If the claim of regularisation has already been
negatived by a competent Court, the petitioners cannot indirectly
secure the same relief under another nomenclature. The
respondent is therefore justified to the limited extent in contending
that no blanket direction granting permanency or regularisation
can now be issued in favour of the petitioners.
38.However, in my considered opinion, the submission of the
respondent cannot be accepted in its broad form so as to non suit
the petitioners even on the issue of legality of termination. The
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controversy involved in the present proceedings is different from
the issue which fell for consideration in Writ Petition No. 5546 of
2010. In the earlier proceedings, the Court was concerned with the
question whether the petitioners were entitled to regularisation or
permanency in service. In the present proceedings, the issue is
whether the termination order dated 19 March 2011 was legal and
proper, particularly when an interim order dated 30 July 2010
passed by the Industrial Court was admittedly operating between
the parties. Thus, the cause of action as well as the legal issues
involved in both proceedings are not entirely identical. Merely
because an employee is held not entitled to regularisation, it does
not automatically follow that every subsequent termination of such
employee becomes immune from judicial scrutiny. Even a
temporary or contractual employee is entitled to challenge
termination if the same is shown to be contrary to statutory
provisions, violative of principles of natural justice, or passed in
breach of a binding judicial order. The rejection of claim for
permanency does not confer liberty upon the employer to act
contrary to subsisting judicial directions.
39.So far as the claim for reinstatement and back wages is
concerned, the same has to be examined not from the angle of
regularisation, but from the standpoint whether the termination
itself was legally sustainable. If the Court ultimately finds that the
termination was effected in violation of the interim protection
granted by the Industrial Court, then consequential relief may
follow in accordance with law notwithstanding rejection of the
earlier claim for permanency. At the same time, such relief cannot
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be equated with conferment of permanent status. The distinction
between reinstatement consequent upon illegal termination and
regularisation in service must always be kept in mind. Therefore,
the judgment in Writ Petition No. 5546 of 2010 certainly restricts
the petitioners from claiming permanency as a matter of right.
However, the said judgment does not conclude the present
controversy relating to legality and validity of the termination
order dated 19 March 2011, particularly when allegations
regarding breach of the subsisting interim order of the Industrial
Court are raised and supported by material already available on
record.
40.Taking an overall view of the matter, I find that the Labour
Court attached disproportionate importance to the contractual
nature of the appointments while giving insufficient consideration
to the binding effect of the interim order dated 30 July 2010 and
the findings recorded in the connected breach proceedings. The
Labour Court also appears to have expanded the enquiry beyond
the precise terms of reference by entering into elaborate discussion
on permanency which had already been adjudicated separately. At
the same time, it must also be observed that the petitioners cannot
now claim permanency as an unrestricted relief because that
controversy has already attained finality against them.
41.Therefore, the correct legal conclusion, in my considered
opinion, is not that the petitioners acquired an enforceable right of
permanency. The correct conclusion is that the termination dated
19 March 2011 could not have been sustained when it was
effected during operation of a subsisting judicial order and without
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establishing strict compliance with the conditions incorporated
therein. The principal infirmity lies not merely in the contractual
nature of appointment, but in the failure to demonstrate lawful
compliance with the operative directions of the Industrial Court
before terminating the petitioners’ services.
42.For all the aforesaid reasons, I am of the considered view
that the impugned Judgment and Award dated 30 May 2024
passed by the Labour Court cannot be sustained in law. The
reasoning adopted by the Labour Court suffers from legal infirmity
and failure to properly appreciate the effect of the interim order
and the material findings recorded in the connected proceedings.
The ultimate conclusion reached by the Labour Court, therefore,
cannot be said to be supported by proper appreciation of the
evidence and applicable legal principles.
43.In view of the foregoing discussion, and upon overall
assessment of the material submissions, evidence on record, and
the findings arrived at hereinabove, the following order is passed:
(i) All the writ petitions are partly allowed;
(ii) The impugned Judgment and Award dated 30 May
2024 passed by the learned Labour Court, Pune, in the
respective references is quashed and set aside;
(iii) It is declared that the termination orders issued against
the petitioners on 19 March 2011 are unsustainable in law,
having been effected during subsistence of the interim order
dated 30 July 2010 passed by the Industrial Court and
without establishing compliance with the conditions
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contained therein;
(iv) The respondent Corporation is directed to reinstate the
petitioners in service on their original posts or on equivalent
posts, subject to availability of work, within a period of
twelve weeks from the date of uploading of this Judgment
and Order;
(v) However, having regard to the peculiar facts and
circumstances of the present case, particularly the admitted
position that the petitioners had subsequently worked with
different employers on contractual basis after cessation of
service with the respondent Corporation, and further
considering that the termination had taken place in the year
2011 whereas the present proceedings came to be instituted
after considerable lapse of time, this Court is not inclined to
grant full back wages;
(vi) The petitioner in Writ Petition No.14928 of 2024
having admittedly worked on contractual basis during the
periods from September 2011 to December 2012, August
2013 to December 2013, December 2013 to November 2014,
and December 2014 to May 2015; the petitioner in Writ
Petition No.15166 of 2024 having worked from 5 December
2014 to 31 May 2015; the petitioner in Writ Petition
No.15167 of 2024 having worked from December 2014 to
May 2015; the petitioner in Writ Petition No.15168 of 2024
having worked during the periods from December 2011 to
December 2012, August 2013 to April 2014, December 2014
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to May 2015, June 2018 to December 2021, and January
2022 to August 2023; and the petitioner in Writ Petition
No.15169 of 2024 having worked from 5 December 2014 to
31 May 2015, this Court finds that grant of full back wages
would not be justified and would result in conferring
monetary benefit even for periods during which the
petitioners were gainfully employed elsewhere;
(vii) Accordingly, instead of full back wages, the respondent
Corporation shall pay lump sum compensation quantified at
25% of the last drawn wages for the interregnum period
from the date of termination till reinstatement, after
excluding the periods during which the respective petitioners
were admittedly employed elsewhere as stated hereinabove;
(viii) The petitioners shall be entitled to continuity of service
only for the limited purpose of retiral and pensionary
benefits, if otherwise admissible in law. However, such
continuity shall not confer any right of permanency,
regularisation, seniority, or promotional benefits;
(ix) It is clarified that this Judgment shall not be construed
as granting regularisation or permanency to the petitioners
and the respondent Corporation shall be at liberty to
regulate their service conditions in accordance with law and
applicable recruitment rules;
(xi) The respondent Corporation shall comply with the
aforesaid directions within a period of twelve weeks from the
date of uploading of this Judgment and Order;
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(xii) Rule is made absolute in the aforesaid terms. There
shall be no order as to costs.
44.Pending interlocutory application(s), if any, stand disposed
of.
(AMIT BORKAR, J.)
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