Bombay High Court
The State Of Maharashtra & Others vs Bharat Nawal Patil on 22 December, 2016
Bench: R.V. Ghuge
*1* 901.wp.3379.97
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3379 OF 1997
1 The State of Maharashtra.
2 The Deputy Director,
Social Forestry Division,
Jalgaon.
3 Ropwan Adhikari Social
Forestry, Erandol,
District Jalgaon.
4
Member, Industrial Court,
Nashik.
....PETITIONERS
-VERSUS-
Bharat Naval Patil,
At Post Pokhari,
Taluka Erandol,
District Jalgaon.
...RESPONDENT
...
AGP for Petitioners : Shri N.T.Bhagat.
Advocate for Respondent : Shri G.V.Wani.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 22nd December, 2016
Oral Judgment :
1 The Petitioner/ State is aggrieved by the judgment dated
07.02.1997 delivered by the Industrial Court by which Complaint (ULP)
*2* 901.wp.3379.97
No.798/1992 filed by the Respondent/ Employee was allowed and the
Petitioner was directed to grant permanency with all benefits to the
Respondent w.e.f. 01.01.1993 since he had completed one year of service
in 1992 when the complaint was filed.
2 I have considered the submissions of the learned Advocates
for the respective sides.
Shri Wani, learned Advocate for the Respondent/ Employee,
has strenuously defended the impugned judgment. He submits that the
Respondent had proved completion of 240 days in employment in the year
January, 1992 to December, 1992. Though he had worked for 222 days in
the said period, 52 weekly holidays were added by the Court and it was
rightly concluded that he had put in continuous employment under
Section 25-B of the Industrial Disputes Act, 1947. He submits that the
Petitioner is an industry under Section 2(j) of the Industrial Disputes Act,
1947 and the Industrial Court, therefore, rightly answered Issue No.5 in
the affirmative. He further submits that he was working from 01.10.1985
on daily wages. For some reason, he is not in employment from
01.04.1999. He, therefore, submits that this petition be dismissed and the
Petitioner be directed to implement the judgment of the Industrial Court.
*3* 901.wp.3379.97
4 I find from the impugned judgment that though the Industrial
Court has framed an issue as to whether, the Petitioner/ Establishment
proves that it is not an industry under Section 2(j), there is no
adjudication upon the said issue. In one single sentence, in paragraph 14,
the Industrial Court has concluded that "It is settled position that Social
Forestry Division has been held as an industry by our High Court and as
such, the Respondent is an industry". Such conclusion without any basis
cannot be sustained.
5 Insofar as granting permanency from 01.01.1993 is
concerned, the learned Division Bench of this Court in the matter of
Municipal Council Tirora vs. Tulsidar Baliram Bindhade, 2016 (6) Mh.L.J.
867, has come to the conclusion that in the State instrumentalities, unless
a permanent vacant post is available, regularization or permanency cannot
be granted on a non existing post.
6 The Respondent, in this case, has claimed to be a Watchman.
There is no evidence on record to indicate that a permanent post of a
Watchman was vacant and available and the Respondent was entitled to
the same based on his seniority, to be regularized w.e.f. 01.01.1993. In
Municipal Council, Tirora judgment (supra), this Court concluded that
*4* 901.wp.3379.97
Standing Order 4-C of the Standing Orders Act, 1946 would not be
applicable.
7 This Court, in the matters of Mukhyadhikari, Nagar Parishad,
Tuljapur vs. Vishal Vijay Amrutrao, 2015(5) Mh.L.J. 75 and Municipal
Council, Tuljapur v/s Baban Hussain Dhule, judgment 26.02.2015 in Writ
Petition No.1843/2015, has concluded that unless it is established that a
permanent vacant post is available and the Claimant is entitled for
absorption on the said post, the Industrial Court cannot issue directions to
grant regularization from a particular date.
8 In the light of the above, this Writ Petition is partly allowed as
under:-
(a) The impugned judgment dated 07.02.1997 is quashed and set
aside.
(b) Complaint (ULP) No.798/1992 is restored to the file of the
Industrial Court, Jalgaon for being decided afresh.
(c) The litigating sides shall appear before the Industrial Court on
16.01.2017 and formal notices need not be issued by the
Industrial Court.
(d) The Industrial Court shall ensure that the issue as to whether,
the Petitioner is an "industry" or not?, is decided on it's
*5* 901.wp.3379.97
merits. Similarly, the Industrial Court will have to conclude as
to whether, the post of Watchman is available and as to
whether, the Respondent/ Complainant was entitled to claim
regularization on the said post based on his seniority.
(e) The litigating sides are at liberty to adduce further oral and
documentary evidence.
(f) It is expected that the Industrial Court shall decide the
complaint as expeditiously as possible and preferably on or
before 15.10.2017.
(g) It is clarified that if the Respondent/ Complainant is not in
employment and has established a right to regularization, the
Industrial Court may consider the option of granting
compensation.
9 Rule is made partly absolute in the above terms.
kps (RAVINDRA V. GHUGE, J.)
