The Executive Engineer, Nashik Irrigation Division vs Shri Gulab Begubhai Shaikh

S.S. Shinde, J.—These petitions are filed challenging the common judgment and award dated 13/14th July, 2004 passed by the Labour Court, Ahmednagar in Reference (IDA) Nos. 296, 297, 298, 299, 374 AND 375 OF 1994.

The background facts of the case are as under:

The Labour Court, Ahmednagar has decided the group of six references by taking into consideration the statements of claim filed by the parties whereby it is the contention of the respondents herein that right from 1st April, 1985 till 20th September, 1988 the work as Mazdoor was given to the respondents in all writ petitions. Their services came to be terminated orally on 20th September, 1988. It is the case of the respondents, who are original claimants, that their services for the period from 1.4.1985 till 20th September, 1988 are clean and continuous in nature and the provisions of Kalelkar Award do apply to their cases and they are entitled for the benefits and wages accordingly. It is further case of the respondents that they were paid wages as daily wage earner but they were not paid for weekly offs and other holidays. Some juniors have been retained after their services were terminated. It is further case of the respondents that they have continuously worked for 240 days with the petitioner herein and instead of making them permanent, some juniors by name Vasant Jaybhai, Kadam, Sayyed, Gadabe and Gaikwad were retained in service by the petitioner employer. The services of respondents herein were terminated without compliance of provisions of Industrial Disputes Act, 1947 as well as without notice, not paying notice pay in lieu of notice and no retrenchment compensation was paid, no charge sheets were issued to them and thereby the services of respondents were illegally terminated.

The case of all the respondents in all writ petitions is similar one except the date of their appointments and alleged termination. It is further case of the respondents that their individual references may be allowed and they be reinstated with continuity of service with full back wages from their last date of termination.

The petitioner herein filed written statement below Exh.C-7 on 23rd March, 1996 and it was contended by the petitioner herein that the forum of Labour Court is not available to the respondents and they have to approach to the Administrative Tribunal and Labour Curt has no jurisdiction to entertain the references. It is further stated in the written statement that the respondents herein who are the original complainants, kept mum for years together and as per the provisions of the Industrial Disputes Act, 1947 the dispute is not in existence. Hence, references are barred by limitation.

It is further stated in the written statement that for urgent but temporary work so available with the Godavari Right Bank Canal Sub Division, Rahata only up to 19.10.1988 and casual labour work on daily wages were provided to the second party along with others. The respondents have worked as casual labourer on daily wages and they were paid as per the rate prevailing at the relevant time, as and when work was available with the first party. It is further stated that after 20.12.1988 no work was available with petitioner and therefore, no work was provided to the respondents as well as other labourers. It is further denied that the juniors have been retained after termination of the services of the respondents. It is further stated that none of the respondents have completed more than 240 days service in preceding 12 months. Therefore, the provisions of Industrial Disputes Act, 1947 are not applicable. It is further stated that the petitioner is not an industry neither there was relationship of employer and employee between the first party and second party and therefore, the Labour Court had no jurisdiction to try and decide the references.

It is further stated that one Mr. Vasant Jaybhai and others are employed by the petitioner as per the interim orders passed by the High Court in Writ Petition No. 1510 of 1993 and their cases are sub judice. It is further stated that the petitioner had never appointed the respondents as workmen and there is no relationship as employer and employee between the petitioner and respondents.

The Presiding Officer, Labour Court framed necessary issues for its consideration. The first issue was in respect of completion of 240 days service by the respondents and the Labour Court, on appreciation of the rival contentions and evidence, held that the respondents failed to prove that they have continuously worked for 240 days within the meaning of Section 25B of the Industrial Disputes Act, 1947. So far as issue No. 2 i.e. whether the respondents prove that the oral termination of their services was illegal, in breach of Section 25-F, 25-G, 25-H of the Industrial Disputes Act, 1947 r/w Rule 80/81 of Industrial Disputes (Bombay) Rules, 1957. The Labour Court has answered the said issue in affirmative. The third issue framed by the Labour Court was about the entitlement of respondents for the relief of reinstatement, continuity of service and full back wages and the same has been answered by the Labour Court directing the petitioner to grant re-employment with continuity of service but without back wages. Hence, these writ petitions are filed by the petitioner challenging the common judgment and award passed by the Labour Court in references filed by the respondents.

The learned A.G.P. appearing for the petitioner/s submitted that the Labour Court ought to have rejected the references merely on the ground that those are admittedly filed about after five years without offering any satisfactory explanation for the delayed filing. The learned A.G.P. submitted that in Reference No. 298/94 the demand notice was issued after lapse of five years. In reference No. 297/94 and 299/94 the respondents have raised dispute through their demand notice on 30.10.1993. In Reference Nos. 374/94 and 375/94 respondents have raised the dispute through their demand notices on 17.3.1994 against termination of 1.11.1988. The A.G.P. vehemently argued that the references should have been rejected merely on the ground of delay. In support of her contention, she placed reliance on the reported judgment of the Apex Court in the case of The Nedungadi Bank Ltd. v. K.P. Madhavankutty and Ors. 2000 AIR SCW 397 and submitted that the law does not prescribe any limit for the appropriate Government to exercise its powers u/s 10 of the Act, the said power cannot be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner. The learned A.G.P. would submit that since all the references were time barred, the same being filed after lapse of five years, the same should have been rejected on that ground alone. The A.G.P. relied on schedule table of the Limitation Act and submitted as per Item 7/18/55, the reference should have been filed within reasonable period of three years. In support of her contention, the A.G.P. relied on various judgments.

The A.G.P. further submitted that the Labour Curt itself had come to the conclusion that respondents have not completed 240 days service and, therefore, the provisions of Section 25-F of the Industrial Disputes Act, 1947 cannot be made applicable in the cases of the respondents. In support of her contention, the A.G.P. relied on some reported judgments of this Court as well as Supreme Court.

The learned A.G.P. further submitted that to make provisions of Kalelkar Award applicable, there should be appointment letter. However, in case of respondents, there was no appointment letter issued. They were offered work for fixed period as casual labourers when work was available. It is further submitted that the Mazdoors are not regarded as regular workmen and their status is not higher than that of temporary workmen or probationers. It is further submitted that so far as argument of the respondents that the principle of `last come first go has not been followed by the petitioner and further contention that the juniors to them are appointed and continued in service is concerned, the A.G.P. placed reliance on the cross-examination of the respondents and submitted that the respondents themselves have admitted in their cross- examination that only those workmen who have completed more than 240 days and worked for five years continuously, have been taken on C.R.T. And no juniors have been retained nor any new recruitment has taken place at all. In support of her contention, the A.G.P. relied on certain judgments, which are part of written submissions placed on record. It is further submitted that the respondents were appointed on daily wages and they have not completed continuous service of 240 days and, therefore, termination of services of respondents does not fall within the purview of retrenchment as defined in Section 2(oo) of the Industrial Disputes Act and hence, provisions of Section 25F and 25G of the said Act are not applicable. Therefore, the learned A.G.P. prayed that the petitions may be allowed.

The learned Counsel for respondents submitted that the Labour took into consideration the provisions of Sections 25F, 25G, 25H, 2(oo)(bb) and 25B of the Industrial Disputes Act, 1947 and has come to the definite conclusion that the respondents are entitled for re-employment with continuity in service. The learned Counsel further submitted that though respondents have not completed 240 days continuous service, even then they are entitled u/s 25G and 25H of the Industrial Disputes Act, 1947 for reemployment. According to the learned Counsel the respondents have worked for about five years and they have rendered their services continuously. Therefore, there was no any valid reason for the Labour Court to come to the conclusion that the respondents have not worked continuously for 240 days in the preceding year prior to their termination. It is further submitted that the provisions of Sections 25F, 25G and 25H do not contemplate length of service and, therefore, the Labour Court has rightly invoked the said provisions and granted relief in favour of respondents. According to the learned Counsel, even in case of daily wagers, it is necessary to maintain seniority list of the workmen and the principle of `last come, first go has to be followed and while giving re-appointment, the seniority rule should be followed. In support of his contention, the learned Counsel placed reliance on the reported judgment of the Supreme Court in the case of Samishta Dube Vs. City Board, Etawah and Another, . The learned Counsel invited my attention to the findings recorded by the Labour Court and submitted that when the witness who deposed on behalf of the petitioner himself stated before the Court below that the juniors to the respondents have been retained in service, the petitioner should have followed the provisions of Sections 25G and 25H. Therefore, according to the learned Counsel when the juniors are retained in service and the respondents are not offered re-employment, there is breach of seniority rule and, therefore, the Labour Court has rightly invoked the provisions of Section 25G and 25H and, therefore, no interference is warranted in writ jurisdiction. The learned Counsel further invited my attention to the provisions of Section 25G and submitted that the provisions of said section are not followed by the petitioner and irrespective of the fact that whether the workman has completed 240 days service or not, category- wise seniority list should have been produced on record and since it is not produced on record, the Labour Court has drawn adverse inference. The learned Counsel further submitted that the very reason that the work is not available and, therefore, services of the respondents cannot be continued is falsified by the evidence led on behalf of the respondents. Therefore, according to the learned Counsel, when the breaks are given in service on account of non availability of work and if it is proved that work was available then in that case, the Labour Court should have held that the respondents are in continuous service as contemplated u/s 25B of the said Act. The learned Counsel would submit that the provisions of Sections 25F, 25G and 25H of the Industrial Disputes Act, 1947 are applicable in the instant case. Therefore, the Labour Court has rightly passed the award in favour of the respondents. The learned Counsel, in support of his contentions, placed reliance on the reported judgment in the case of Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and Others, to contend that a party in possession of the best evidence which would throw light on the issue in controversy withholding it, court ought to draw an adverse inference against the said party notwithstanding that onus of proof does not lie on him.

The learned Counsel further placed reliance on the reported judgment of this Court in the case of Kalawati Pandurang Fulzele Vs. Divisional Controller, wherein this Court has already interpreted provisions of Section 25(oo)(bb) and Section 25-G of the Industrial Disputes Act, 1947 and also interpreted Rule 81 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short, hereinafter referred to as the MRTU & PULP Act, 1971) Schedule IV, Item (1) and relying on para 17 of the said judgment, the learned Counsel would submit that this Court has properly interpreted the provisions of Section 25-B and 25-G of the Industrial Disputes Act, 1947. The learned Counsel for respondents submitted that this Court may not interfere in extraordinary jurisdiction under Article 227 of the Constitution of India.

At this juncture, it would be relevant to refer the judgment and common award passed by the Labour Court, Ahmednagar. In para 13 of the award, the Labour Court framed as many as four issues for its determination / consideration. So far Issue No. 1 is concerned, the Labour Court held that the respondents herein have not completed one year continuous service in the preceding year of termination. For the purpose of Section 25-F of the Industrial Disputes Act, 1947, reliance can be placed on the provisions of Section 25-B under which the continuous service is defined for employees like respondents, as continuous uninterrupted service of 240 days in the preceding year prior to oral termination. The Labour Court held that none of the respondents have completed 240 days uninterrupted and continuous service in a calender year preceding to their termination. Therefore, there is no question of adjudication on the said issue, since there is no any writ petition filed by the respondents aggrieved by the said finding. Therefore, it has to be presumed that none of the respondents have completed uninterrupted and continuous service in the previous year to their termination.

The Labour Court framed Issue No. 2 Do each of the Second Party Workman individually prove, that his impugned termination as mentioned in Ann-`A so appended with this award, is illegal, through oral termination of their services in breach of Section 25-F, 25-G, 25-H of the I.D. Act, 1947 r/w Rule 80/81 of I.D. (Bombay) Rules, 1957?

Before examining the findings given by the Labour Court and the aforesaid issue, it would be relevant to refer to some of the reported judgments of the Honourable Apex Court.

In the case of Surendranagar District Panchayat Vs. Dahyabhai Amarsinh, the Supreme Court had an occasion to interpret the provisions of Section 25F and in paragraph 8, held that as per Section 25F, no workman who is in continuous service for not less than one year under an employer shall be retrenched by that employer unless conditions laid therein are fulfilled. The retrenchment is defined in Clause (oo) of Section 2 of the Industrial Disputes Act 14 of 1947. Under the definition termination of the service of a workman by the employer by any reason whatsoever, otherwise than, as a punishment, by way of disciplinary action, would constitute retrenchment except in cases accepted in the Section itself. In paragraph 9 of the said judgment, the Supreme Court held that to attract the provisions of Section 25F, one of the conditions required is that the workman is employed in any industry for a continuous period which would not be not less than one year. Section 25B of the Act defines continuous service for the purposes of Chapter V-A Lay-off and Retrenchment. The purport of this Section is that if a workman has put in an uninterrupted service of the establishment, including the service which may be interrupted on account of sickness, authorized leave, an accident, a strike which is not illegal, a lock-out or cessation of work, that is not due to any fault on the part of the workman, shall be said to be a continuous service, for that period and in paragraph 14 the Supreme Court relying upon earlier reported judgment of the Apex Court in case of Short Commissioned Officers Welfare Association and Another vs . Union of India and Another reported as observed that in that judgment, this Court has said that the actual working for less than 240 days would include Sundays and other paid holidays if the workman is in employment of the employer although for less than a period of 12 months. In paragraph 19 of the said judgment, the Apex Court held that workman therein has not produced any evidence to prove the fact that he has worked for 240 days. No proof of receipt of salary or wages or any record or order in that regard was produced; no co worker was examined; muster roll produced by the employer has not been contradicted. Therefore, the Court held that the workman in that case was not entitled for the protection or compliance of Section 25F of the I.D. Act.

As regards non compliance of Sections 25G and 25H, the Apex Court observed in paragraph 19 that no seniority list was maintained by the department of daily wagers. In the absence of regular employment of the workman, the appellant was not expected to maintain seniority list of the employees engaged on daily wages and in the absence of any proof by the respondent regarding existence of the seniority list and his so called seniority no relief could be given to him for non-compliance of provisions of the Act. The Courts could have drawn adverse inference against the appellant only when seniority list was proved to be in existence and then not produced before the court. In order to entitle the Court to draw inference unfavourable to the party, the Court must be satisfied that evidence is in existence and could have been proved.

In case of Bhogpur Co-op. Sugar Mills Ltd. v. Harmesh Kumar AIR 2007 SC 288 in paragraph 5 , the Supreme Court observed that the fact that the appellant operates a seasonal factory and the respondent had not been in continuous service for 240 days during twelve months preceding his termination is not in dispute. In paragraph 10 the Apex Court has examined the scope of Section 2(oo)(bb) of the said Act and in the facts of that case, the Court held that in case of seasonal workman not completing 240 days of service, there is termination of services not retrenchment in view of Section 2(oo)(bb). To such cases provisions of Sections 25-G, 25-H do not apply. The Court further observed in paragraph 9 of the judgment, thus:

We are not oblivious of the distinction in regard to the legality of the order of termination in a case where Section 25-F of the Act applies on the one hand, and a situation where Section 25-G thereof applies on the other. Whereas in a case where Section 25-F of the Act applies the workman is bound to prove that he had been in continuous service of 240 days during twelve months preceding the order of termination, in a case where he invokes the provisions of Sections 25-G and 25-H thereof he may not have to establish the said fact.

In the case of Samishta Dube (supra), the Apex Court held that irrespective of length of service, Section 6-P of the U.P. Industrial Disputes Act, 1947 does not require any particular period of continuous service as required by Section 6N of the said Act. In case of Central bank of India v. S. Satyam and Ors. (1996) SCC 419 the Honourable Supreme Court held thus:

The plain language of Section 25-H speaks only of re-employment of ''retrenched workmen''. The ordinary meaning of the expression ''retrenched workmen must relate to the wide meaning of ''retrenchment'' given in Section 2(oo). Section 25-F also uses the word ''retrenchment'' but qualifies it by use of the further words ''workman'' who has been in continuous service for not less than one year''. Thus, Section 25-F does not restrict the meaning of retrenchment but qualifies the category of retrenched workmen covered therein by use of the further words workman. Who has been in continuous service for not less than one year. It is clear that Section 25-F applies to the retread a workman who has been in continuous service for not less: one year and not to any workman who has bean in continuous service for less than one year; and it does not restrict or curtail the meaning of retrenchment merely because the provision therein is made only for the retrenchment of a workman who has been in continuous service for not less the one year. Chapter V-A deals with all retrenchments while Section 25-F is confined only to the mode of retrenchment of workmen in continuous service for not less than one year. Section 25-G prescribes the principle for retrenchment and applies ordinarily the principle of ''last come first so'' which is not confined only to workmen who have been in continuous service for not less than one year, covered by Section 25-F. The next provision is Section 25-H which is couched in wide language and is capable of application to all retrenched workmen not mere; covered by Section 25-F. It does not requirement of the ordinary meaning of the word `retrenchment'' used therein. The Provision for re-employment of retrenched workmen merely gives performance to a retrenched workmen in the matter of reemployment over other persons. It is enacted for the benefit of the retrenched workmen and there in no reason to restrict its ordinary meaning which promotes the object of the enactment without causing any prejudice to a better placed retrenched workman. Chapter V-A providing for retrenchment is not enacted only for the benefit of the workmen to whom Section 25-F applies but for all cases of retrenchment and, therefore, there is no reason to restrict application of Section 25-H therein only to one category of retrenched workmen.

The Apex Court, in paragraph 12 of the judgment in Central Bank of India (supra), has considered the effect of delayed filing of reference. In the facts of that case, it is held thus:

All the retrenched workmen involved in the present case were employed for short periods. Between 1974 to 1976. It was only in 1982 that a writ petition was filed by them to claim this benefits. The other persons employed in the industry during the intervening period of several years have not been impleaded. Third party interests have arisen during the interregnum. These third parties are also workmen employed in the industry during the intervening period of several years. Grant of relief to the writ petitioners (respondents herein) may result in displacement of those other workmen who have not been impleaded in these proceedings, if the respondents have any claim for re-employment. The laches leading to the long delay after which the writ petition was filed in 1982 is sufficient to disentitle them to the grant of any relief in the writ petition.

Therefore, the Apex Court held that this ground alone was sufficient for High Court to decline any relief to the workers in that case.

In the instant case, the Labour Court has observed in paragraph 27 that all the second parties workmen have raised the industrial dispute after a lapse of 5 years from the date of their impugned termination so taken place. In paragraph 28 the Labour Court has taken a note of testimony of one Mr. P.N. Kadam and more particularly, cross-examination and observed that except his oral testimony, there is nothing on record to show that he did approach with the first partys office after his impugned termination has taken place. In paragraph 29 the Labour Court has observed that there is no provision / section in respect of the limitation for raising an industrial dispute as far as the provisions of the I.D. Act, 1947 is concerned. In para 29 itself, it is observed that for want of specific provision in respect of delay under the provisions of I.D. Act, 1947, this aspect could be very well dealt with while determining and granting, if any relief in favour of the said second party workman could be done. However, it appears that in subsequent part of the judgment, the Labour Court has not given any findings on the point of delayed references which point was raised on behalf of the petitioner employer.

In paragraph 41 the Court has recorded admission given by the witness on behalf of the petitioner herein below Exh.C-20 vide para 8 and observed that since the witness for the petitioner herein itself admits that no complete record has been on record in respect of all sets of employees and, therefore, the Court drew adverse inference against the petitioner herein for non production of some documents on record. Relying on the examination and cross-examination of the witness, who was examined on behalf of the petitioner, the Labour Court came to the conclusion in paragraph 49, thus:

Thus, that from the material on record, which comprises of the facts and circumstances as emerged in these matters and in the light of the law so referred and discussed, it is crystal clear that the first party has violated the principles of natural justice as well as the provisions as contemplated u/s 25-G and 25-H of the I.D. Act, 1947 r/w Rule 80/81 of the I.D.A (Bombay) Rules, 1947, respectively and hence, these second party workmen have proved the Issue No. 2, of course, through the cogent evidence by these second party workmen, respectively, that they have not been given preference while and by allotting the work, then to that of other juniors, who have been retained in the employment with the first party at the relevant time. Since, that has taken place at the hands of the first party management, which is in violation of the provisions of the I.D. Act, 1947.

On careful perusal of the findings recorded by the Labour Court in the impugned judgment and award, it clearly appears that in spite of specific pleadings by the petitioner herein that the petitioner department is not an `Industry and, therefore, the provisions of Industrial Disputes Act, 1947 are not attracted, the same is not adjudicated by the Labour Court. By this time, it is well settled by various pronouncement of this Court as well as Hon''ble Apex Court that the workman filing complaint has to assert in the complaint that that the department in which he is appointed / given work, is carrying out activities for which the said complainant is appointed, are other than part of the sovereign function discharged by the concerned department in routine manner. In short, the complainant has to assert in the complaint that his services are engaged to carry out the activities other than sovereign function of the department and therefore, he can knock the door of the Industrial Court by invoking provisions of the Industrial Disputes Act. Secondly, on careful perusal of the impugned judgment and award, it is clear that the Labour Court has not recorded any findings that the respondents herein are workmen within the meaning of the provisions of Section 2(s) of the I.D. Act. However, proceeded further to decide the matter presuming that all the respondents are workmen within the meaning of provisions of Section 2(s) of the said Act. It is an admitted position that the junior persons who, according to the respondents have been continued in service or taken again in the employment before the respondents, are not made party to the reference before the Labour Court. It is an admitted position that reference is filed after lapse of five years from the alleged date of termination. It is also an admitted position that some of the junior persons to the respondents are absorbed in the service since they have completed 240 days service in five calender years, and by virtue of that they are appointed on CRT by taking recourse to Kalelkar Settlement. Therefore, this admission in the cross-examination by the respondents that though the juniors to them have been continued in service and taken on CRT by virtue of completion of 240 days service in five calender years, their cases stand on different footings than the respondents.

The Supreme Court had an occasion to consider the case arising out of delayed reference in the matter of he Nedungadi Bank Ltd. (supra) and held that Law does not prescribe any time limit for the appropriate Government to exercise its powers u/s 10 of the Act. It is not that this power can be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner.

Taking into consideration over-all situation, the position which emerges is that the Labour Court has not recorded a finding on the point whether the petitioner department is an industry and also has not referred to any assertion of the respondents to the effect that the petitioner department is an industry and, therefore, the provisions of the Industrial Disputes Act are applicable. Secondly, the Labour Court has not recorded any finding that the respondents are workmen within the meaning of provisions of Section 2(s) of the I.D. Act. Thirdly, it is an admitted position that none of the respondents have completed one years continuous service in the preceding year of termination. Therefore, there is no question of complying the provisions of Section 25-F of the said Act in the case in hand. It is also an admitted position that the reference is delayed by five years in case of all respondents and to that effect, the Labour Court has not given specific finding in spite of objection raised by the petitioner employer that the reference is stale reference and is filed after lapse of five years. As observed above, the Apex Court, in case of Central Bank of India (supra) held that laches leading to the long delay after which the writ petition was filed is sufficient to disentitle the petitioners therein to grant of any relief in the writ petition. In the instant case, it is an admitted position that though the juniors are retained in service or re-employed, in the cross- examination of the respondents, it is admitted that those junior employees have completed five years continuous service and 240 days in each calender year and by virtue of that they are beneficiaries of Kalelkar Settlement and have been taken on CRT. Therefore, the case of those juniors who are given re-employment or continued in service, stands on different footing than the respondents. That apart, when the reference is filed after lapse of five years, the Labour Court should not have allowed such delayed reference and should not have given directions to the petitioner department to re-employ the respondents with continuity of service. It is an admitted position that the juniors against whom allegations are made, were not parties to the reference before the Labour Court and, therefore, no relief can be granted to the respondents. Allowing the claim of the respondents on the ground that juniors are retained in service would ultimately destabilize the services of the juniors retained. As the Supreme Court in case of Surendranagar District Panchayat (supra), in paragraph 19 has observed that in order to entitle the Court to draw inference unfavourable to the party, the Court must be satisfied that evidence is in existence and could have been proved. In case of M.P. Electricity Board v. Hariram etc. AIR 2004 SC 4791 the Supreme Court held in paragraph 10 that the Industrial Court or the High Court could not have drawn an adverse inference for the non-production of the Muster Rolls for the year 1990 to 1992 in the absence of specific pleading by the respondents- applicants that at least during that period they had worked for 240 days continuously in a given year. Therefore, in the instant case also, there is no case made out by the respondents herein in their pleadings that adverse inference should be drawn for non-production of the documents by the petitioner employer.

The Supreme Court in case of Regional Manager, S.B.I. Vs. Rakesh Kumar Tewari, held that if the plea in respect of Section 25-G is not put forward, the opportunity for leading evidence thereon is denied, for no amount of evidence can be looked into unless a plea is raised. Respondent not having raised any plea in respect of violation of Section 25-G, or that termination of their services was illegal, it was not open to Tribunal to go off on a tangent and conclude that termination of service of respondents was invalid. In the instant case also, the entire tenor of the statement of claim on behalf of the respondents is that they are in continuous service of the petitioner for years together and they have completed 240 days in each calender year and, therefore, there is violation of Section 25-F while terminating their service by the petitioner. Therefore, the entire claim of the respondents is on the footing that they are in continuous service of the petitioner. However, the Labour Court itself has recorded findings that none of the respondents has completed 240 days service in the preceding year of termination. Therefore, the Labour Court should not have directed the petitioner to re employ the respondents herein and grant them continuity in service. It is true that the case of the respondents should not have been thrown out by the Labour Court merely on the ground of delayed reference. However, taking into consideration the delay in filing references read along with pleadings in the statement of claim and case of the respondents that juniors are retained in service, the Labour Court should not have proceeded to adjudicate the matter thereby directing the petitioner to grant re-employment to the respondents with continuity of service in absence of making the juniors party respondents to the proceedings. In case if the order of the Labour Court has to be executed, certainly the persons against whom there are allegations that though they are juniors, they are retained in service, are required to be destabilize or replaced by respondents. Taking over-all view of the matter and in view of the fact that the very nature of the employment of the respondents as on daily wages and as contended by the petitioner, it was for the particular work as per availability of work and for a particular period, in view of the delayed reference of the respondents, in view of non recording findings by the Labour Court on the issue whether the petitioner is an industry or not, not recording findings on the point whether the respondents are workmen u/s 2(s) of the I.D. Act, not making the junior persons as party respondents before the Labour Court, in view of the findings recorded by the Labour Court itself that none of the respondents has completed 240 days service in a calender year preceding the termination, in view of the fact that in cross-examination the respondents have admitted that the junior persons who are retained in service have completed more than 240 days service in each calender year for five years, in my considered view, the directions by the Labour Court to the petitioner department to re-employ the respondents with continuity of service cannot be sustained. Therefore, for all the reasons stated herein above, the writ petitions deserve to be allowed.

In the result, writ petitions are allowed. The impugned judgment and award passed by the First Labour Court, Ahmednagar dated 13/14th July, 2004 in Reference (IDA) Nos. 296, 297, 298, 299, 374 AND 375 OF 1994 is quashed and set aside. Rule is made absolute, accordingly with no order as to costs.

Civil Applications stand disposed of.