Bombay High Court
State Of Maha & Ors vs Yogini Balwant Kulkarni on 8 May, 2017
Bench: R.V. Ghuge
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.4386 OF 2004
1. The State of Maharashtra,
Through the Joint Director,
(Old Deputy Director)
Technical Education,
Regional Office, Nashik Road,
Nashik,
2. The Principal,
Government Polytechnic,
Ahmednagar -- PETITIONERS
VERSUS
Yogini Balwant Kulkarni,
Age-Major, 444, Hudco Colony,
Savedi Road, Ahmednagar -- RESPONDENT
Mr.N.T.Bhagat, AGP for the State/petitioner.
Mr.P.V.Barde, Advocate for the respondent.
( CORAM : Ravindra V.Ghuge, J.)
DATE : 08/05/2017
ORAL JUDGMENT :
1. This petition was admitted by order dated 01/12/2004.
Interim relief was not granted.
2. I have heard the learned counsel for the respective sides at
length.
khs/MAY 2017/4386
3. The petitioner has challenged the impugned judgment dated
23/09/2003 delivered by the Industrial Court in Complaint (ULP)
No.234/1993 thereby allowing the said complaint of the respondent.
By the impugned judgment, the petitioners were held guilty of unfair
labour practices under Items 5 and 9 of Schedule IV of the MRTU
and PULP Act, 1971 and the respondent was granted seniority from
05/08/1993 in addition to the order of regularization dated
19/01/2000 w.e.f. 01/09/1999.
4. There is no dispute that the respondent, whose name was
recommended by the Employment Exchange in 1982, was appointed
by the petitioner on 06/03/1991. She was terminated on
27/08/1993. Her ULP complaint was allowed by the Labour Court
and she was reinstated in service on 16/02/1994 with continuity and
full back wages. By the judgment of this Court dated 03/09/2015
delivered in WP No.4175/1994, the challenge to the reinstatement of
the respondent was allowed only to the extent of reducing the full
back wages granted by the Labour Court to 50% back wages. The
respondent/employee has refunded the excess amount received by
her towards full back wages, to the petitioner/department.
5. It is equally undisputed that a Government Resolution dated
khs/MAY 2017/4386
01/09/1999 was issued by the petitioner thereby granting
regularization to the employees like the respondent w.e.f.
01/09/1999. By order dated 19/01/2000, the respondent was
granted all benefits incidental to regularization w.e.f. 01/09/1999.
6. In the impugned judgment dated 23/09/2003, the Industrial
Court has granted regularization to the respondent and seniority
w.e.f. 05/08/1993 on the ground that she has completed 240 days in
continuous employment in a calendar year in the service of the
petitioner.
7. Mr.Barde, learned Advocate for the respondent has strenuously
defended the impugned judgment and has vehemently canvassed
that this Court would have limited jurisdiction under the writ of
certiorari while dealing with such cases under Article 227 of the
Constitution of India.
8. I am unable to accept the submissions of the Mr.Barde in the
light of the law laid down by the learned Division Bench of this Court
in case of Municipal Council, Tirora and another Vs. Tulsidas
Baliram Bindhade [2016(6) Mh.L.J.867] wherein the learned Division
Bench, while dealing with a reference by the learned Single Judge,
khs/MAY 2017/4386
has concluded that completion of 240 days, as enunciated under the
Model Standing Orders framed under the Industrial Employment
(Standing Orders) Act, 1946 would not be applicable to state
instrumentalities. So also, the respondent has accepted her
regularization on the basis of the GR dated 01/09/1999 during the
pendency of the complaint before the Industrial Court.
9. The learned Single judge of this Court (Coram : Ravindra
V. Ghuge, J.) in the matter of Mukhyadhikari, Nagar Parishad,
Tuljapur Vs.Vishal Vijay Amrutrao and other connected matters
[2015(5) Mh.L.J.75] and by judgment dated 26/02/2015 in Municipal
Council Tuljapur Vs. Baban Hussain Dhale (Dead), through his LR
and others has also concluded that the concept of completion of 240
days as a foundation for granting regularization would not be
available in state instrumentalities.
10. Considering the above, this petition is partly allowed and the
direction of the Industrial Court declaring unfair labour practices in
clause 2 and 3 of the impugned order is set aside. The direction in
clause 4 stands modified and the respondent/employee would
therefore be entitled to all the benefits flowing from the GR dated
01/09/1999 with effect from the said date.
khs/MAY 2017/4386
11. Rule is made partly absolute in the above terms.
( Ravindra V.Ghuge, J.)
khs/MAY 2017/4386
