Bombay High Court
The Executive Engineer, ... vs Subhash Wamanrao Kadu on 20 July, 2017
Bench: I.K. Jain
wp.4563.08.jud 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.4563 OF 2008
The Executive Engineer,
Mechanical Division, Amravati,
District Amravati .... Petitioner
-- Versus -
Subhash Wamanrao Kadu,
Aged about 39 years,
Helper, C.R.T. Estt. Mechanical
Sub-Division No.7, Akola,
District Akola. .... Respondent
Shri A.M. Balpande, A.G.P. for the Petitioner.
Shri S.D. Chopde, Advocate for the Respondent.
CORAM : KUM. INDIRA JAIN, J.
DATE : JULY 20, 2017.
ORAL JUDGMENT :-
This petition takes an exception to the judgment and
order dated 22/08/2005 passed by Industrial Court, Akola in
Complaint (ULP) No.169/1999. By the said order, Industrial Court
declared that respondent therein had engaged in unfair labour
practice under Item 9 of Schedule IV of the Maharashtra
Recognition and Trade Unions and Prevention of Unfair Labour
Practices Act, 1971 (hereinafter referred to as 'the MRTU & PULP
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Act' for short) and directed the respondent to pay wages to the
complainant as per work done by him since 1987 and to consider
him for regularization of his services on the post of Heavy Duty
Operator (H.D.O.) after following due process of law.
02] The few facts relevant for the decision of this petition
may be stated as under :
i. On 01/10/2008, respondent filed Complaint (ULP)
No.169/1999 before Industrial Court, Akola for
regularization of his services since 1987 and for
payment of arrears of salary. It was the case of
complainant that he was in service of respondent
since 1981. Initially, he was on daily wages and since
1987, he was given work of H.D.O. The grievance of
complainant was that since 1987, though he was
working as H.D.O., his services were not deliberately
regularized and he was not paid salary in accordance
with the work to be performed by him. Complainant
alleged unfair labour practice under Item 3, 5 & 9 of
Schedule IV of the MRTU & PULP Act against the
employer.
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ii. Non-applicant filed written statement and resisted the
claim. The submission was that complainant was a
daily wage worker and there was no question of
regularizing the services of daily wage worker.
According to the employer, complainant was not a
workman as contemplated under the Act and the
complaint filed was not maintainable. Another
contention raised on behalf of employer was that
appointment of complainant was on temporary basis
as per availability of work and it was for fixed term.
The service of complainant came to an end after
completion of work assigned. As he was not on
regular basis, services of complainant were not
regularized and he was not entitled to the difference
of salary as claimed by him.
iii. In support of the claim, complainant filed affidavit and
supported his complaint. Based on the evidence of
complainant, Industrial Court found that employer
was engaged in unfair labour practice under Item 9 of
Schedule IV of the MRTU & PULP Act and passed the
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order as stated above. It is this order, which is the
subject matter of present writ petition.
03] This Court vide order dated 04/05/2009 has directed
the respondent to submit an undertaking to petitioner and
petitioner may consider the said undertaking for regularization of
services in accordance with the law. In view of the said order,
question as to whether respondent is entitled to difference of
back wages is left open and the same is to be decided in this
petition.
04] Learned A.G.P. appearing on behalf of petitioner
submits that proposal for regularization was sent to the
Government in the year 2005 and by the decision of the
Government in March, 2008, employee was asked to submit an
undertaking as per the policy of the Government, which was
initially submitted by him in the month of May, 2008. The
contention is that despite undertaking dated 18/03/2008,
complainant denied to accept the same. Learned A.G.P.
submitted that undertaking plays a vital role as it relates to the
subsequent development and, therefore, it is necessary to
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remand the matter for fresh decision to the Industrial Court.
05] In view of averments in paragraph 2.4 of the petition,
subsequent development brought on record by the petitioner,
copy of undertaking dated 18/03/2008 and copy of another
undertaking dated 01/09/2009, this Court finds substance in the
submission of learned A.G.P. that matter needs to be remanded
to the Industrial Court for decision afresh. Hence, the following
order would sub-serve the interest of justice:
ORDER
I. Writ Petition No.4563/2008 is partly allowed.
II. Impugned order dated 22/08/2005 passed by
Member, Industrial Court, Akola in Complaint (ULP)
No.169/1999 is quashed and set aside.
III. Matter is remanded to Industrial Court, Akola for its
fresh decision in accordance with the law and in
view of subsequent development brought on record
in paragraph 2.4 of the petition.
IV. Parties are at liberty to amend the pleadings and
adduce additional evidence, if any, to the extent of
difference of back wages.
V. Rule accordingly.
VI. No costs.
(Kum. Indira Jain, J.)
*sdw
