JUDGMENT
Nishita Mhatre, J.
1. Both these writ petitions can be disposed of by a common judgment since the facts and the order impugned in both the writ petitions are same.
2. The petitioners have impunged the common order of the Industrial Court dated 28th July, 1995 denying them permanency and the benefits attached to the same from the date of their appointments. Both the petitioners were employed as “fireman” with the first respondent Municipal Council. They were employed to fill in permanent vacancies. However, in order to avoid the effect of the Standing Orders and the labour laws applicable, the first respondent discontinued the petitioners from service on completion of three months. The petitioners continued in service, always with breaks, from 1976 onwards. They were also given wage rise every year while in service. However, the benefits of permanency were not given to the petitioners. They, therefore, filed individual complaints before the Industrial Court, Thane, for a declaration that the first respondent had committed unfair labour practices under Items 5, 6, and 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the “said Act”) and that they should be declared as permanent firemen with effect from the date of their joining. These complaints were dismissed as not maintainable by the Industrial Court in 1987. On 16th December, 1994, the petitioners impugned the order of the Industrial Court by filing a writ petition in this Court which was allowed and the complaints were remanded to the Industrial Court. After remand, the Industrial Court by its common order dated 28th July, 1995 held that the first respondent had committed unfair labour practice under Items 5, 6, and 9 of Schedule IV of the said Act. The complaint in respect of Item 10 of Schedule IV of the said Act was dismissed. However, the Industrial Court directed the first respondent to make the petitioners permanent only with effect from 2nd March, 1981 and not from the dates of their joining. Being aggrieved by this order, the petitioners have approached this Court under Articles 226 and 227 of the Constitution of India by way of present writ petitions.
3. Mr. Apte, learned Advocate for the petitioners, has submitted that the Industrial Court while deciding in favour of the petitioners and granting permanency to them with effect from 2nd March, 1981, has given no reasons as to why permanency was not given from their dates of joining. He submits that it is apparent that there were vacancies available to be filled in right from the year the petitioners joint their service as they were working continuously from 1976 when they joined service. In view of this, he submits that the petitioners are entitled to permanency from 1976 itself.
4. The first respondent though served have remained absent all throughout.
5. On going through the order of the Industrial Court, I find that there is much substance in the submissions made by the learned Advocate for the petitioners. The employees of the first respondent Municipal Council were governed by the Award of the Tribunal in reference (TT) No. 412 of 1966. Under this Award, the Tribunal has directed that a workman should be made permanent on completion of one year’s service subject to the availability of a clear vacancy in a permanent post. In the instant case, it is not denied that the petitioners were working in permanent posts. Therefore, there were vacancies which were required to be filled. The petitioners having worked from 1976 when they joined service as firemen, continuously, are entitled to the benefits of permanency from the dates of their joining. The Industrial Court has lost sight of the fact that there is nothing to show that their were no clear vacancies during the period from 1976 to 1981 from which year the Industrial Court has granted permanency to the petitioners. There is not an iota of evidence to show why permanency could not be given with effect from 1976. Once the Industrial Court has come to the conclusion that the intention of the first respondent Municipal Council of not giving permanency to the petitioners was evidently in order to deprive the petitioners of certain benefits, the Industrial Court ought to have granted the same from the date of joining and not from March 1981 when the posts were increased.
6. In view of the aforesaid, Rule made absolute in both the writ petitions with costs.
7. Issuance of certified copy expedited.
