Bombay High Court High Court

Bhagchand vs Government Of Maharashtra on 25 July, 2011

Bombay High Court
Bhagchand vs Government Of Maharashtra on 25 July, 2011
Bench: Ravi K. Deshpande
                                                  2507wp4154.06.odt




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         IN THE HIGH COURT OF JUDICATURE 




                                        
         AT BOMBAY, NAGPUR BENCH, NAGPUR.


                WRIT PETITION NO.4154 OF 2006




                                       
    Bhagchand s/o Kapurchand Garade
    Aged about 37 years,
    Occupation Service,




                                
    R/o at Post Tahsil 
    and District Gondia.          .......... Petitioner.
                   
                           VERSUS
                  
    1) Government of Maharashtra 
    (Through its Secretary), 
    Irrigation Department, 
      

    Mantralaya, 
    Mumbai-32.
   



    2) Superintending Engineer
    Irrigation Department 
    (Local Sector), 
    Vainganga Nagar, 





    Ajni, Nagpur.

    3) Executive Division 
    (Local Sector), 
    Govindpur Colony, 





    Gondia, 
    District Gondia.              .......... Respondents.



            Shri M.P.Jaiswal, Counsel for the petitioner.
            Mrs.Rashi Deshpande, AGP for the respondents.



                                                        .....2/-




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                        CORAM      : R. K.DESHPANDE, J. 
                        DATE       : 25.JULY, 2011.




                                              
    ORAL JUDGMENT.


    01)       This   writ   petition   challenges   the   judgment 




                                    

and order dated 16.7.2005, passed by the Industrial

Court, Bhandara, dismissing the Complaint (ULP) No.85

of 2003, filed by the petitioner/complainant under

Section 28 read with Items 5, 6 and 9 of Schedule-IV

of MRTU and PULP Act, 1971. The claim of the

petitioner/complainant was that from 14.9.1989 to

16.10.1991 he had completed more than 240 days

continuous service and hence, as per the provisions

of Clause 4-C of the Model Standing Orders framed

under the Bombay Industrial Relations Act, 1946, the

complainant is entitled for the status of deemed

permanency.

02) It is not in dispute that on 16.10.1991, the

petitioner/complainant was terminated from service

and he had filed the Complaint (ULP) No.121 of 1991,

…..3/-

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the said complaint was dismissed on 21.10.1995 by the

Labour Court, Bhandara. The revision against it, was

allowed by the Industrial Court, Bhandara, on

8.3.2001. The employer preferred Writ Petition

No.2175 of 2001, in which an interim order was passed

by this Court, that the regularization and the status

of the present petitioner/complainant shall be

subject to the outcome of the writ petition.

03) Shri M.P.Jaiswal, the learned Counsel

appearing for the petitioner, informs that the

petition was decided subsequently on 19.8.2009 and

the mater was remanded back to the Labour Court,

Bhandara, for decision afresh. He further submits

that on 28.3.2001 the said complaint was allowed

directing the reinstatement with continuity in

service and full back wages to the

petitioner/complainant. He further submits that the

finding was recorded that the petitioner/complainant

had completed 240 days continuous service preceding

the date of his termination on 16.10.1991 and there

…..4/-

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was non-compliance of Sections 25F and 25G of the

Industrial Disputes Act, 1947 and hence, the

complaint was allowed.

04) The Industrial Court, Bhandara, has, by

impugned order, dismissed the complaint only on the

ground, that the Writ Petition No.2175 of 2001 was

admitted by this Court and it was pending for final

hearing. The Industrial Court, Bhandara, has also

noted, that the regularization was subject to the

outcome of the writ petition and hence, the complaint

has been dismissed without considering the other

issues, involved in the complaint. The

petitioner/complainant has been saddled with the

costs of Rs.10,000/- to be recovered from his salary

by the employer.

05) The Industrial Court, Bhandara, has committed

an error in dismissing the complaint on the sole

ground, that the matter was subjudiced in Writ

Petition No.2175 of 2001. No doubt, that this Court

…..5/-

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had observed in the order dated 1.8.2001 passed in

the said writ petition, that the regularization and

the status of the petitioner/complainant, shall be

subject to the outcome of the writ petition. In view

of this, the Industrial Court, Bhandara, could not

have dismissed the complaint without entering into

the merits of the matter. The said writ petition has

been decided and the complaint against termination,

has also been decided. The Industrial Court,

Bhandara, has framed issues, however, no findings are

recorded on those issues and the complaint has been

dismissed. Though there is a passing reference in

para-13 of the judgment, that the

petitioner/complainant did not complete five years

continuous service prior to 15.10.1991, the question

of applicability of the Model Standing Orders under

the Bombay Industrial Relations Act, 1946, has not

been considered.

06) In view of this, the order passed by the

Industrial Court, Bhandara, cannot be sustained and

…..6/-

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the matter will have to be sent back to the

Industrial Court, Bhandara, to consider it afresh.

07) In result, the petition is allowed. The

judgment and order dated 16.7.2005, passed by the

Industrial Court, Bhandara, in Complaint (ULP) No.85

of 2003, is hereby quashed and set aside. The matter

is remitted back to the Industrial Court, Bhandara,

to decide the said complaint afresh, by recoding the

finding on all the issues. The Industrial Court,

Bhandara, shall make an endeavour to decide the

complaint as expeditiously as possible.

08) Rule is made absolute in this terms. No order

as to costs.

JUDGE

BrWankhede

…../-

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