SANJAY MANYA DONGARKARversusGOKHALE EDUCATION SOCIETY

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                   AGK
                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  CIVIL APPELLATE JURISDICTION

                                  WRIT PETITION NO.11397 OF 2024

                   Sanjay Manya Dongarkar,
                   Age 40 years, Occupation Nil,
                   R/at Post Chimbawe, Kosbad Hill,
                   Taluka Dahanu, District Palghar                 … Petitioner

                                        Vs.

                   Gokhale Education Society,
                   Kosbad Hill, Taluka Dahanu,
                   District Palghar                                … Respondent

ATUL
GANESH             Mr. Mayuresh Modgi for the petitioner.
KULKARNI
                   Mr. Graham Francis i/by Mr. Vishwanath Talkute for
Digitally signed
by ATUL
GANESH             the respondent.
KULKARNI
Date: 2026.04.30
11:50:26 +0530




                                     CORAM                  : AMIT BORKAR, J.

                                     RESERVED ON            : APRIL 16, 2026.

                                     PRONOUNCED ON          : APRIL 30, 2026

                   JUDGMENT:

                   1.    By the present petition instituted under Articles 226 and 227
                   of the Constitution of India, the petitioner has called in question
                   the legality, correctness, and propriety of the Judgment and Award
                   dated 27 March 2024 delivered by the learned Fourth Labour
                   Court, Thane in Reference (IDA) No. 164 of 2019, whereby the
                   industrial reference came to be answered against the petitioner.



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2.    The brief facts giving rise to the present proceedings, as set
out by the petitioner, are that the petitioner came to be appointed
as a watchman in the Training Centre conducted by the respondent
institution at Kosbad Hill with effect from 21 October 2003. It is
the case of the petitioner that he had earlier instituted proceedings
alleging unfair labour practices, being Complaint (ULP) No. 263 of
2013. The said complaint, however, came to be withdrawn on 25
July 2013 on the assurance allegedly extended by the respondent
that the petitioner’s son would be appointed in his place.
Thereafter, the services of the petitioner came to be terminated by
communication dated 20 February 2018. It is further the case of
the petitioner that the respondent had issued an advertisement in
the year 2008 for filling various sanctioned posts, including the
post of watchman, wherein the prescribed age criteria was stated
to be 31 to 35 years. According to the petitioner, he satisfied the
said eligibility condition on the relevant date. Being aggrieved by
the order of termination, the petitioner approached the Deputy
Commissioner of Labour, Thane. Upon hearing the parties, the
learned Deputy Commissioner of Labour was pleased to refer the
industrial dispute for adjudication to the Labour Court, and the
said dispute was thereafter registered as Reference (IDA) No.164
of 2019.

3.    Before the Labour Court, the petitioner filed his statement of
claim and the respondent entered appearance and filed its written
reply. The petitioner examined himself in support of his case. The
respondent, however, did not examine any witness. Upon
appreciation of the pleadings and material placed on record, the



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learned Labour Court passed the Award dated 27 March 2024 and
answered the reference in the negative. The petitioner states that
he obtained a certified copy of the Award from the office of the
Commissioner of Labour, Thane on 4 July 2024. Being dissatisfied
with the said Award, the present writ petition has been filed.

4.    Mr. Modgi, learned counsel appearing for the petitioner,
submitted that the conduct of the respondent squarely attracts
Item 10 of the Fifth Schedule to the Industrial Disputes Act, being
an unfair labour practice. He contended that neither the original
advertisement nor even a copy thereof relating to the post of
watchman was produced by the respondent before the Labour
Court. It was urged that there was no specific pleading by the
respondent indicating in what manner the petitioner was allegedly
ineligible for appointment. Learned counsel submitted that if the
advertisement was issued in the year 2008, the same would not
invalidate the petitioner’s earlier appointment made in the year
2003. Even otherwise, according to him, the petitioner fulfilled the
age criterion on the date of his initial engagement. It was further
argued that the respondent is not a governmental authority in the
strict sense and, therefore, the standards sought to be applied by
the respondent were misconceived. According to him, the service
conditions of the petitioner are governed by the provisions of the
Industrial Employment (Standing Orders) Act, 1946. He also
emphasized that the respondent failed to enter the witness box
and no evidence was led on its behalf.

5.    Learned counsel for the petitioner further submitted that the
post of watchman allegedly shown as reserved for open category in



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the purported advertisement was unsupported by any circular,
roster, notification or sanctioned vacancy position. According to
him, the order of termination is vitiated by mala fides and
arbitrariness. It was then urged that even assuming, without
conceding, that the petitioner was not eligible under the criteria
mentioned in the advertisement of 2008, the respondent
nevertheless continued him in service for nearly ten more years.
Such prolonged continuation, according to the petitioner, clearly
demonstrates that the respondent intended to utilise the petitioner
as cheap labour without conferring lawful service benefits. Learned
counsel pointed out that the petitioner has stated on oath that
after termination he has not secured alternate employment. On
these premises, reinstatement with continuity of service and full
back wages was prayed for.

6.   Per contra, Mr. Francis, learned counsel appearing for the
respondent, opposed the petition and submitted that the
respondent institution receives grant-in-aid from the Government
of Maharashtra and appointments of employees are required to be
made strictly in accordance with rules and norms prescribed by the
State Government. It was contended that the respondent had no
independent    authority     to    grant   permanency    or     regular
appointment to any person dehors the governing rules. According
to the respondent, the petitioner ought to have availed remedies
before   the    Divisional        Commissioner,   the    Maharashtra
Administrative Tribunal, or the School Tribunal, as may be
applicable. It was further submitted that the petitioner answers the
description of a public servant under the Maharashtra Civil



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Services Rules and, therefore, the present proceedings before the
Labour Court were not maintainable. Learned counsel submitted
that the petitioner was appointed as a night watchman on 21
October 2003 on a fixed honorarium of Rs.2,050/- per month and
that the appointment was purely temporary in nature. It was also
contended that the post was meant for open category candidates
and the petitioner had crossed the upper age limit. Consequently,
his services could not be regularised under the applicable rules and
regulations. Learned counsel for the respondent further submitted
that the services of the petitioner came to be discontinued with
effect from 20 February 2018 since he was merely a temporary and
ad hoc appointee. According to the respondent, the petitioner is
attempting to secure a back-door entry into permanent service by
seeking reinstatement through judicial proceedings, which cannot
be countenanced in law. It was lastly submitted that the competent
Government authority had refused approval to the petitioner’s
appointment on the concerned post. On these grounds, dismissal
of the writ petition was sought.

7.    I have heard the learned Advocates for the parties and I have
perused the pleadings, evidence, and the Award passed by the
learned Fourth Labour Court, Thane.

8.    The broad facts are not much in dispute. The petitioner was
engaged as a watchman in the Training Centre of the respondent
institution at Kosbad Hill, Dahanu, district Palghar, with effect
from 21 October 2003. He was paid fixed honorarium. He
continued in service for long years. It is also not in dispute that he
had earlier raised a complaint of unfair labour practice and the



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same was withdrawn on 25 July 2013 on the assurance said to
have been given by the respondent that the petitioner’s son would
be appointed in his place. Thereafter, the petitioner continued to
work till his services were terminated by letter dated 20 February
2018. Thus, the service record shows a long and continuing
relationship extending for about fifteen years.

9.    The first submission of the petitioner is that the respondent
had issued an advertisement in the year 2008 for filling up the
post of watchman and the age condition prescribed therein was 31
to 35 years. The petitioner says that he was within the said age
criteria. He further says that no original advertisement or proper
copy thereof was produced before the Labour Court and the
respondent did not explain in what manner the petitioner was
ineligible. When an employer relies upon an advertisement and a
vacancy chart to justify termination or denial of regular treatment,
the employer must produce the best evidence. Here the respondent
did not place the original advertisement on record. It also did not
lead evidence to show that the petitioner was outside the zone of
consideration or that his continuation was unlawful from
inception.

10.   The petitioner has also submitted that even assuming the
advertisement of 2008 is taken into account, it cannot erase the
fact that he had already been appointed in 2003 and was allowed
to work continuously thereafter. If the respondent itself engaged
the petitioner and took work from him for long years, then at a
later stage it cannot simply turn around and say that the petitioner
was never eligible, without proving the exact rule, the exact



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vacancy position, and the exact defect in his appointment. The
conduct of the respondent shows that it accepted the services of
the petitioner for a very long period. Such long continuation gives
rise to a strong inference that the work was available, and the
engagement was being utilised by the institution.

11.   Learned counsel for the petitioner was right in submitting
that the respondent did not step into the witness box. The best
person to explain the reason for termination, the vacancy position,
the approval status, the recruitment process and the alleged open
category reservation was the respondent itself. Yet no such witness
came forward. No convincing documentary chain was produced to
show that the post was never available for the petitioner or that his
continuation was prohibited by any binding rule. If the employer
keeps silence on matters specially within its knowledge, then the
Court can draw adverse inference. In the present case such adverse
inference is clearly available.

12.   Another submission of the petitioner is that the services were
terminated in a arbitrary manner. The petitioner had already
served for years. He had even earlier withdrawn a complaint on
the assurance about his son. After such long service, sudden
termination without proper explanation reflects arbitrariness. The
respondent’s case is not that the petitioner remained absent, or
was guilty of misconduct, or that there was a disciplinary enquiry.
The only defence is that he was temporary and that the post was
open category, and he had crossed age. But none of these points
were established by reliable evidence.




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13.   The respondent’s stand is that it receives grant and aid from
the Government of Maharashtra and appointments are governed
by Government rules, and that the petitioner had no right to
permanent appointment. Even if that stand is accepted to certain
extent, it does not answer the real grievance. Grant-in-aid or
regulatory control does not authorise the employer to continue a
worker for years and thereafter discard him without proving the
legal basis. Mere statement that approval was not granted is not
enough unless the respondent produces the refusal, the reasons,
and the precise rule under which the petitioner could not be
continued.

14.   The contention that the petitioner should have approached
another forum and that the Labour Court was not competent is
also not a good defence in the facts of this case. The petitioner
raised an industrial dispute on the footing of unfair labour practice
and illegal termination. The reference was duly made by the
Deputy Commissioner of Labour. Once the dispute was referred,
the Labour Court was bound to examine whether the termination
was legal and justified. The respondent participated in the
proceedings. Therefore, at this stage, it cannot be heard to say that
the matter was hopelessly before wrong forum, particularly when
the controversy was one of service termination and unfair labour
practice.

15.   The respondent’s argument that the petitioner was a
temporary, ad hoc employee appointed on fixed honorarium of
Rs.2,050/- per month also does not carry the matter much further.
A temporary label is not decisive by itself. What matters is the



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reality of the engagement. Here the reality is that the petitioner
was allowed to work continuously for nearly fifteen years. That
long period cannot be treated as a stop gap arrangement. If the
work was only temporary, the respondent should have shown the
temporary nature by proper orders, periodical extensions, or clear
contractual limits. No such clear record is produced. Therefore, the
label of temporary is not enough to defeat the claim.

16.   The respondent also says that the post was reserved for open
category and the petitioner had crossed the age limit. This
submission is not proved. No proper roster, no sanctioned vacancy
chart, no recruitment rules, and no contemporaneous vacancy
position were produced. The Labour Court appears to have
accepted the respondent’s version almost as a matter of
assumption. In service jurisprudence, especially where termination
affects livelihood, assumptions cannot replace proof. If the
respondent wanted to rely on age bar or category restriction, it
had to show when the vacancy arose, what was the notified
category, and how exactly the petitioner was disentitled. It failed in
that duty.

17.   Another important factor is that the petitioner deposed on
oath that he was not employed elsewhere after his termination.
This statement remained unrebutted. The respondent did not bring
any contrary material. The petitioner had already been in service
for long years. In such situation, when termination is found to be
unjustified and the employer has not shown any lawful basis for
discontinuance, denial of back wages would also be unjust. The
normal consequence of illegal termination in such circumstances is



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reinstatement with continuity and back wages, unless there are
compelling reasons to deprive the workman of that relief. No such
compelling reason is shown here.

18.   The submission that the respondent never intended to
exploit the petitioner as cheap labour may be stated as a defence,
but the conduct speaks otherwise. When an institution takes work
of a person for years without regularising his position, without
proving any lawful cessation, and then terminates him on
unsupported grounds, the inference of exploitation cannot be
lightly brushed aside. The petitioner was made to work. He was
continued for a long time. The respondent benefited from his
labour. When the legal challenge came, it offered only a paper
defence.

19.   For the reasons recorded in the foregoing judgment, the
following order is passed:

      (i)    The writ petition is allowed;

      (ii)   The Judgment and Award dated 27 March 2024 passed
      by the learned Fourth Labour Court, Thane in Reference
      (IDA) No.164 of 2019 is quashed and set aside;

      (iii) The Reference (IDA) No.164 of 2019 stands answered
      in favour of the petitioner;

      (iv) It is declared that the termination of the petitioner
      effected by communication dated 20 February 2018 is illegal
      and unsustainable in law;




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      (v)   The respondent is directed to reinstate the petitioner in
      service on the post of watchman, or on an equivalent
      suitable post, within a period of eight weeks from the date of
      receipt of this order;

      (vi) The petitioner shall be entitled to continuity of service
      for all purposes from the date of termination till actual
      reinstatement;

      (vii) The respondent shall pay to the petitioner full back
      wages from 20 February 2018 till the date of reinstatement,
      together with all consequential monetary benefits. The
      arrears shall be computed and paid within a period of twelve
      weeks from today;

      (viii) In the event the amount is not paid within the
      stipulated period, the same shall carry interest at the rate of
      6% per annum from the date it became due till realization;

      (ix) Rule is made absolute in the aforesaid terms.

      (x)   There shall be no order as to costs

20.   At this stage, learned Advocate for the respondent seeks stay
of this judgment. Considering the submissions and the effect of the
judgment, operation of the judgment is stayed for a period of four
weeks from today.


                                             (AMIT BORKAR, J.)




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