The Supdt Engineer, Ahmednagar ... vs Abdul Bakshubhai Shaikh
2016 Latest Caselaw 5952 Bom

                                                                      WP/3650/1997
                                            1

                    IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD




                                                                              
                              WRIT PETITION NO. 3650 OF 1997




                                                      
     1. The Superintending Engineer,
     Ahmednagar Irrigation Circle,
     Fakirwada, Nagar Aurangabad Road,
     Ahmednagar.




                                                     
     2. The Executive Engineer,
     Ahmednagar Irrigation Circle,
     Fakirwada, Nagar Aurangabad Road,
     Ahmednagar.




                                          
     3. The Sub-Divisional Engineer,
                             
     Ahmednagar Irrigation Division,
     Sub-Divisional Deolali Pravara,
     Tq. Rahuri, District Ahmednagar.                           ..Petitioners
                            
     Versus

     Abdul Bakshubhai Shaikh
     R/o Musalwadi Irrigation Bunglow,
      

     Tq. Rahuri, Dist. Ahmednagar.                     ..Respondent

                                        ...
   



                        AGP for Petitioner : Shri P.N.Kutti
           Advocate for Respondent : Shri P.V. Barde h/f Shri D.R.Korde
                                        ...





                              CORAM : RAVINDRA V. GHUGE, J.

Dated: October 13, 2016 ...

ORAL JUDGMENT :-

1. The petitioners are aggrieved by the judgment dated

23.12.1996, delivered by the Industrial Court, Ahmednagar by which

Complaint (ULP) No.734 of 1995 was allowed and, by declaring ULP

under item 9 of Schedule IV of the Maharashtra Recognition of Trade

Unions and Prevention of Unfair Labour Practices Act, 1971 ("the said

WP/3650/1997

Act ") against the petitioners, they were directed to allot work to the

respondent as per seniority and availability of the work.

2. By order dated 12.9.1997, this Court admitted the petition and

stayed the impugned judgment by granting prayer clause (c). This

petition was inadvertently included in the list of petitions decided by

this Court on 16.7.2009. By order dated 7.9.2016, the review

application was allowed by condoning the delay and this petition was

restored at it's stage of final hearing.

3. I have considered the strenuous submissions of the learned

AGP on behalf of the petitioners and Shri Barde, on behalf of the

respondent.

4. The impugned judgment indicates that the respondent failed

to prove that he was working continuously or had completed 240

days in each calendar year, though he had claimed to have worked

from 1980 till 22.4.1987. It is also revealed that the Industrial Court

concluded that the respondent was not entitled for permanency and

consequential benefits. The respondent has not challenged this

judgment.

5. The last issue dealt with by the Industrial Court indicates that

the petitioners are held guilty of ULP under item 9 of Schedule IV of

WP/3650/1997

the Act of 1971 and they are directed to make work available to the

respondent as per its availability and his seniority.

6. Though the respondent has averred in the complaint filed by

him for seeking regularization in employment, that he deserves to be

absorbed on compassionate ground, the said claim has been rejected

by the Industrial Court, since the father of the respondent retired

from service with the petitioners in 1993 and the respondent has

never applied for compassionate appointment. There is no

documentary evidence to indicate that he applied for compassionate

appointment.

7. The respondent claims to have been disengaged on 22.4.1987.

He filed his complaint on 23.11.1995, which is practically after 8

years and 5 months. Admittedly, he was not in employment and

according to the petitioners, he was disengaged more than 8 years

ago. The said termination could have been judicially scrutinized only

by the Labour Court considering Section 7 of the 1971 Act, which

vests jurisdiction in the Labour Court to deal with cases of discharge,

dismissal, retrenchment, termination or otherwise removal from

service. The Industrial Court, therefore, could not have exercised

jurisdiction in the said matter and more so when the respondent

stood terminated 8 years and 5 months prior to the filing of his

complaint.

WP/3650/1997

8. Be that as it may, the fact remains that no application for

condonation of delay was filed by the respondent seeking

condonation of 8 years and 2 months of delay, considering the

limitation of 90 days prescribed by law. Even on this count, the

Industrial Court could not have entertained the complaint until the

delay was condoned.

9. Notwithstanding the above stated legal hurdles, the Industrial

Court could not have drawn a conclusion that Section 25G of the

Industrial Disputes Act, 1947 has been violated, when there is no

observation based on oral and documentary evidence in the

impugned judgment that fresh hands were engaged after the

disengagement of the respondent or that juniors to the respondent

were continued in employment by the petitioners.

10. In the light of the above, this petition is allowed. The

impugned judgment of the Industrial Court dated 23.12.1996 is

quashed and set aside and Complaint (ULP) No.734 of 1995 stands

dismissed.

11. Rule is discharged.

( RAVINDRA V. GHUGE, J. ) ...

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