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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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