Narhari Madhavrao Jiddewar vs Kinetic Engineering Ltd ...
2017 Latest Caselaw 5 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD

                            WRIT PETITION NO. 10686 OF 2016

Narhari Madhavrao Jiddewar,
R/o 12, Somnath Laundry,
Gavthan, Kedgaon Devi,
Ahmednagar.
                                                          ...PETITIONER

          -VERSUS-

Kinetic Engineering Limited,
Nagar Duand Road,
Ahmednagar.
                                                          ...RESPONDENT

                                        ...
                   Advocate for Petitioner : Shri Tarde Vivek V. 
              Advocate for Respondent : Shri Bedre Vinayak Sudhakar.
                                        ...

                                          CORAM:  RAVINDRA V. GHUGE, J.

DATE :- 27th February, 2017

Oral Judgment :

1 Rule. Rule made returnable forthwith and heard the learned

Advocates by consent, finally.

2 While issuing notice, I had passed the following order on

06.12.2016:-

1. The petitioner is aggrieved by the judgment of the Industrial Court dated 13.4.1996, by which,

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Complaint (ULP) No.72 of 2010, filed by the petitioner seeking benefits incidental to permanency has been rejected.

2. The petitioner was earlier terminated by order dated 18.10.1984 by the respondent. Reference (IDA) No.2 of 1988 was allowed on 18.8.1995 and the petitioner was granted reinstatement but without continuity and without backwages. Under orders of this Court dated 15.7.1998 in Writ Petition No.5646 of 1996, the petitioner was reinstated on 15.7.1998. He superannuated on 16.10.2015. Yet, the Industrial Court has concluded in paragraph No.16 that as the petitioner has been continued on temporary basis and he has not been declared permanent by a competent Court, he is not entitled to benefits of permanency.

3. By judgment dated 23.8.2016, this Court has disposed off Writ Petition No.5646 of 1996 and has sustained the judgment of the Labour Court.

4. I find that the case of the petitioner is squarely covered by Standing Order 4C and 4D of the Industrial Employment Standing Orders Act, 1946. Prima facie, he cannot be deprived of permanency and benefits incidental thereto.

5. Issue notice before admission to the respondent returnable on 13.1.2017.

6. The parties shall note that this matter is likely to be heard finally at admission stage."

3 There is no dispute that the Petitioner herein was granted

reinstatement without continuity and without back wages by the Labour

Court by it's judgment dated 18.08.1995. The Petitioner/ Workman had

approached this Court in Writ Petition No.435/1996 praying for continuity

and full back wages. The said Writ Petition was dismissed by this Court on

18.01.1996. The Petitioner was granted a fresh appointment on

15.07.1998. By order of this Court dated 23.08.2016, Writ Petition

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No.5646/1996 filed by the Respondent/ Management challenging the

same award of the Labour Court dated 18.08.1995, was disposed of and

Rule was discharged.

4 The Petitioner had approached the Industrial Court in

Complaint (ULP) No.72/2010 praying for the benefits of employment

from the date of the award of the Labour Court which is 18.08.1995 and

considering the effect of Standing Orders 4-C and 4-D of the Model

Standing Orders, there should be parity in wages in comparison to the

comparable workers on the basis of the principle of "equal pay for equal

work".

5 By the impugned judgment, the Industrial Court has

dismissed the complaint purely on the ground that the Petitioner was

continued on temporary basis and he cannot claim permanency unless he

has been declared permanent by the competent Court. It was further

observed that the Complainant cannot take undue benefit of the petition

being dismissed in default, to get wages on par with permanent

employees.

6 Shri Bedre, learned Advocate for the Respondent/

Management, has strenuously supported the impugned judgment and has

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canvassed that as the Petitioner was reinstated on 15.07.1998 as a fresh

employee, he was rightly continued as temporary and he has no legal right

to claim permanency.

7 I find that the Industrial Court has completely misdirected

itself. It has failed to consider the effect of Standing Orders 4-C and 4-D of

the Model Standing Orders r/w Item (9) of Schedule IV of the MRTU &

PULP Act, 1971. The Respondent, unquestionably and undisputedly, is a

private industry. The Rules applicable to the State Instrumentalities to the

extent of creation of posts by the State Government, are not applicable to

the private industries. The Model Standing Orders are undisputedly

applicable to the Respondent. The effect of Standing Orders 4-C and 4-D

would, therefore, rightly bestow the deemed status of permanency on the

Petitioner. This aspect has been completely lost sight of by the Industrial

Court.

8 The Labour Court delivered it's award dated 18.08.1995

directing that the Petitioner should be reinstated in service without

continuity and without back wages. It, therefore, means that the Petitioner

was to be reinstated not in continuity, but was to be appointed as a fresh

candidate. The challenge to the said award has been put to rest by this

Court in the petitions filed by the Petitioner as well as the Respondent/

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Management. The Petitioner was, therefore, entitled to be reinstated on

18.08.1995. Per contra, he has been reinstated on 15.07.1998.

9 In the light of the above, this Writ Petition is partly allowed.

The impugned judgment of the Industrial Court dated 30.04.2016 is

quashed and set aside and Complaint (ULP) No.72/2010 is remitted to the

Industrial Court at Ahmednagar with the following directions:-

(a) Both the litigating sides shall appear before the Industrial

Court on 24.03.2017. Formal notices need not be issued.

(b) The Industrial Court shall decide the Complaint afresh by

permitting the litigating sides to lead oral and documentary

evidence, if so desired.

(c) The Petitioner shall be deemed to be reinstated in service on

18.08.1995 as a fresh candidate and would be entitled for

minimum rates of wages applicable to the Engineering

Industry as prescribed in the Schedule of the Minimum Wages

Act.

(d) The Industrial Court shall consider the complaint only for the

purpose of calculations of legal dues payable to the Petitioner

keeping in view that after completion of 240 days from

18.08.1995, the Petitioner would be deemed permanent

under Standing Orders 4-C and 4-D.

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              (e)        While calculating the said wages for the period 18.08.1995 to 

15.07.1998 and thereafter, till the superannuation of the

Petitioner, the Industrial Court shall consider the salaries

being paid to the identically situated employees, who can be

said to have joined the service in 1995-1996 and at par with

such comparable employees.

(f) The Petitioner as well as the Respondent would be obliged to

bring before the Industrial Court, appropriate evidence in

order to enable the Industrial Court to consider the

comparative wages being paid to the comparable employees,

who are permanent in service.

(g) Considering that the Petitioner has superannuated on

16.06.2015, the Industrial Court shall endeavour to decide

the said complaint as expeditiously as possible and preferably

on or before 31.03.2018.

10 Rule is made partly absolute in the above terms.

kps                                                           (RAVINDRA V. GHUGE, J.)