Bombay High Court
The State Of Maharshtra And Others vs Sattar Nathu Pinjari on 13 October, 2016
Bench: R.V. Ghuge
WP/656/1997
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 656 OF 1997
1. The State of Maharashtra
2. Deputy Director,
Social Forest Division,
Jalgaon. ..Petitioners
Versus
Shri Sattar Natthu Pinjari
Age major, R/o Goregaonwale,
Tq. Chopda, Dist. Jalgaon.
ig ..Respondent
...
AGP for Petitioners : Shri P.N.Kutti
Advocate for Respondent : None present.
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: October 13, 2016
...
ORAL JUDGMENT :-
1. The petitioners are aggrieved by the judgment and order
dated 9.8.1996, by which, Complaint (ULP) No.632 of 1989 has been
allowed and the petitioners are directed to grant permanency to the
respondent from the date of filing of the Complaint i.e. 20.7.1989
and pay monetary benefits.
2. By order dated 6.9.2000, this Court admitted the petition and
granted interim relief to the petitioners as regards issuance of order
of permanency and monetary benefits incidental thereto.
WP/656/1997
3. None appeared for the respondent on 6.10.2016 and none
appears even today.
4. I have heard the learned AGP on behalf of the petitioners and
have gone through the record available.
5. The Industrial Court had considered the contentions of the
1.6.1983 till 31.3.1996.
respondent that he was working on daily wages as a Watchman from
He was given a break in service from
1.9.1987 to 19.8.1988 for which, he approached the Labour Court and
in 1989, the dispute was settled between the parties. He was
reinstated in service on the condition that he would give up his
backwages.
6. A document at Exhibit C/12, produced by the petitioners
indicated that the respondent was working continuously from
20.7.1988 till 31.3.1996. In this backdrop, the Industrial Court has
granted permanency to the respondent w.e.f. 20.7.1988.
7. It is trite law that permanency cannot be granted in the
absence of a permanent vacant post. The entire judgment of the
Industrial Court does not deal with the said issue as to whether a
permanent vacant post of a Watchman was available with the
WP/656/1997
petitioner so as to direct the absorption of the respondent on the
said vacant post.
8. In these circumstances, in my view, the Industrial Court should
have directed the petitioner to forward the proposal of the
respondent to the appropriate authority for creation of posts and / or
absorption if a post was vacant. When the department of Social
Forestry cannot create posts, a declaration of ULP for purportedly
continuing the employee as a daily wager could not have been made.
9. In the light of the above, this petition is partly allowed and
the impugned judgment of the Industrial Court is modified as under:-
(A) The declaration of ULP against the petitioner is
quashed and set aside.
(B) The proposal of the respondent shall be forwarded by
the petitioner to the appropriate department / authority for
absorption, considering the fact that the document
produced by the petitioner before the Industrial Court at
Exhibit C/12 indicates that the respondent was in
continuous service and was reinstated since a settlement
was arrived at between the parties.
(C) The above said proposal shall be forwarded by the
petitioner / department within eight weeks from today and
the appropriate authorities / department, upon receiving
the said proposal, shall decide the same for grant of
WP/656/1997
absorption to the respondent within sixteen weeks
thereafter.
(D) If the respondent is not presently in service or has
attained the age of superannuation, the proposal shall make
a mention of this aspect so as to enable the appropriate
authority to decide the proposal accordingly.
(E) In the event the respondent is presently in
employment, the above direction shall not be a cause to
enable the petitioner to dispense with his services.
10. Rule is made partly absolute in the above terms.
( RAVINDRA V. GHUGE, J. )
...
akl/d
