Full Judgment Text
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.904 OF 2011
1) Deputy Conservator of Forest,
Gadchiroli Forest Division,
Gadchiroli.
2) Range Forest Officer,
Forest Division, Gadchiroli.
3) Round Officer, Manda,
Gadchiroli Range, Gadchiroli. ... Petitioners
- Versus -
Mohan Raghuvir Chavan,
aged about 33 years, r/o
Sawela, Post Kotegaon,
Taluq and District Gadchiroli. … Respondent
-----------------
Ms. T. Khan, Assistant Government Pleader for the
petitioners.
Shri B.M. Khan, Advocate for the respondent.
CORAM : R.M. SAVANT, J.
DATED : JUNE 21, 2011
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ORAL JUDGMENT :
Rule, with the consent of the learned Counsel
for the parties made returnable forthwith and heard.
2) The above petition takes exception to the
judgment and order dated 15/9/2009 passed by the
learned Member of the Industrial Court in Complaint
(ULP) No. 65/1998 filed by the respondent herein. By
the said judgment and order, the said Complaint came
to be allowed and it was declared that the
respondents, i.e. petitioners herein, have indulged in
an unfair labour practice and it was directed that the
complainant is entitled to the benefit of Government
Resolution dated 31/1/1996 since he has completed
five years of service on or before 1/11/1994. The
petitioners were directed to grant the benefit of
permanency to the respondent with monetary benefits
to be granted to him with effect from 1/11/1994.
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3) The facts, which are necessary to be cited for
adjudication of the above petition, can be stated thus :
The respondent herein was initially employed
as a daily wager from 1/9/1987. The respondent
having worked as such for a period of about ten years
filed Complaint (ULP) No. 65/1998 alleging unfair
labour practice under Item 9 of Schedule IV of the
Maharashtra Recognition of Trade Unions and
Prevention of Unfair Labour Practices Act, 1971. The
sum and substance of the allegations of the
respondent in the said complaint was that he was
being wrongly denied the benefit of Government
Resolution dated 31/1/1996, under which Resolution
the mechanism for granting permanency to the
persons, who were working as casual/daily wage basis
has been provided. In the said complaint, a written
statement came to be filed by the petitioners herein.
The parties went to trial. The respondent herein
examined himself. He also produced documents,
which were marked as Exhs. 34 to 37. Exh.34 was a
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letter issued to the Deputy Conservator of Forest,
Gadchiroli forwarding seniority list of workers under
Grades A, B and C. Exh. 35 was a letter dated
26/2/1996 by which the seniority list of the daily
wagers was sent to the Civil Surgeon, Gadchiroli so as
to facilitate their medical examination for being made
permanent. Exh. 36 was the Government Resolution
dated 31/1/1996. The respondent was extensively
cross-examined by the petitioners herein.
4) The Industrial Court by the judgment and
order dated 15/9/2009 allowed the said complaint and
issued directions, which have been mentioned
hereinabove. The Industrial Court in the absence of
any evidence being produced by the petitioners herein
in the form of attendance sheets, salary slips, etc.,
inter alia on the basis of Exh.s 34 to 36, came to a
conclusion that the respondent has worked
continuously for a period of five years and, therefore,
was entitled to the benefit of the said Government
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Resolution dated 31/1/1996.
5) Being aggrieved by the said judgment and
order dated 15/9/2009, the instant petition has been
filed.
6) Heard the learned Counsel for the parties. Ms.
Khan, learned Assistant Government Pleader
appearing for the petitioners, submitted that the
respondent, who had approached the Industrial Court
by way of the said Complaint (ULP), has not
discharged the burden in the matter of proving that he
had worked for 240 days in each calendar year
preceding to the date of Government Resolution dated
31/1/1996 and that the Industrial Court by merely
observing that he has worked for five years allowed the
said complaint. The learned Assistant Government
Pleader sought to rely upon a chart, which has been
annexed at page 43 to the petition so as to contend
that the said chart discloses that the respondent had
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not worked for 240 days in each of the preceding
calendar years. It was contended that the documents
(Exhs. 34 to 36) would merely show the seniority on
the basis of the date of employment and would not
indicate as to whether the respondent was entitled to
be made permanent in terms of the criteria mentioned
in the Government Resolution dated 31/1/1996.
7) Per contra, Shri Khan, learned Counsel for the
respondent, submitted that the impugned judgment
and order does not call for any interference as the
findings recorded have been so recorded by the
Industrial Court on the basis of the material on record.
Insofar as chart at page 43 on which much emphasis
has been laid by the learned Assistant Government
Pleader appearing for the petitioners is concerned, it
is the contention of Shri Khan that the said document
could not be taken into consideration in view of the
fact that the same was not produced before the
Industrial Court and the respondent, therefore, did not
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have an opportunity to deal with it.
8) Having heard learned Counsel for the parties, I
have given my anxious consideration to the rival
contentions. In the instant case, as can be seen, the
Industrial Court on the basis of the documents (Exhs.
34 to 36) has come to a conclusion that the
respondent was in continuous service of the petitioners
in the preceding five years so as to entitle him for the
benefit of the said Government Resolution dated
31/1/1996. In my view, the chart on which reliance is
now sought to be placed by the learned Assistant
Government Pleader appearing for the petitioners,
cannot be made a part of the record of this Court in
view of the fact that the said document was not
produced before the Industrial Court in the said
complaint. The submissions advanced on behalf of the
petitioners on the basis of the said document,
therefore, cannot be countenanced. It was for the
petitioners herein to produce the said document and
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having not produced the evidence, which was available
with them, the Industrial Court was right in relying
upon the documents (Exhs. 34 to 36) which have been
produced by the respondent in the said complaint.
The said documents disclose that the respondent was
subjected to medical examination. Insofar as the
document purporting to be a seniority list is concerned,
the said document also discloses the date from which
the respondent has been employed.
9) In my view, the findings arrived at by the
Industrial Court on the basis of the said documents and
on the basis of oral evidence, which was led by the
parties, cannot be said to be perverse or requiring
interference at the hands of this Court in the extra-
ordinary writ jurisdiction. It is also the case of the
respondent that persons, who were junior to him, have
been made permanent and that he has been deprived
of permanency. That case of the respondent has not
been effectively dealt with by the petitioners in the
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Industrial Court. In that view of the matter, the
impugned judgment and order dated 15/9/2009 passed
by the Industrial Court does not merit any interference
at the hands of this Court in the extra-ordinary writ
jurisdiction. The writ petition is accordingly dismissed.
Rule discharged. No order as to costs.
JUDGE
khj
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.904 OF 2011
1) Deputy Conservator of Forest,
Gadchiroli Forest Division,
Gadchiroli.
2) Range Forest Officer,
Forest Division, Gadchiroli.
3) Round Officer, Manda,
Gadchiroli Range, Gadchiroli. ... Petitioners
- Versus -
Mohan Raghuvir Chavan,
aged about 33 years, r/o
Sawela, Post Kotegaon,
Taluq and District Gadchiroli. … Respondent
-----------------
Ms. T. Khan, Assistant Government Pleader for the
petitioners.
Shri B.M. Khan, Advocate for the respondent.
CORAM : R.M. SAVANT, J.
DATED : JUNE 21, 2011
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ORAL JUDGMENT :
Rule, with the consent of the learned Counsel
for the parties made returnable forthwith and heard.
2) The above petition takes exception to the
judgment and order dated 15/9/2009 passed by the
learned Member of the Industrial Court in Complaint
(ULP) No. 65/1998 filed by the respondent herein. By
the said judgment and order, the said Complaint came
to be allowed and it was declared that the
respondents, i.e. petitioners herein, have indulged in
an unfair labour practice and it was directed that the
complainant is entitled to the benefit of Government
Resolution dated 31/1/1996 since he has completed
five years of service on or before 1/11/1994. The
petitioners were directed to grant the benefit of
permanency to the respondent with monetary benefits
to be granted to him with effect from 1/11/1994.
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3) The facts, which are necessary to be cited for
adjudication of the above petition, can be stated thus :
The respondent herein was initially employed
as a daily wager from 1/9/1987. The respondent
having worked as such for a period of about ten years
filed Complaint (ULP) No. 65/1998 alleging unfair
labour practice under Item 9 of Schedule IV of the
Maharashtra Recognition of Trade Unions and
Prevention of Unfair Labour Practices Act, 1971. The
sum and substance of the allegations of the
respondent in the said complaint was that he was
being wrongly denied the benefit of Government
Resolution dated 31/1/1996, under which Resolution
the mechanism for granting permanency to the
persons, who were working as casual/daily wage basis
has been provided. In the said complaint, a written
statement came to be filed by the petitioners herein.
The parties went to trial. The respondent herein
examined himself. He also produced documents,
which were marked as Exhs. 34 to 37. Exh.34 was a
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4
letter issued to the Deputy Conservator of Forest,
Gadchiroli forwarding seniority list of workers under
Grades A, B and C. Exh. 35 was a letter dated
26/2/1996 by which the seniority list of the daily
wagers was sent to the Civil Surgeon, Gadchiroli so as
to facilitate their medical examination for being made
permanent. Exh. 36 was the Government Resolution
dated 31/1/1996. The respondent was extensively
cross-examined by the petitioners herein.
4) The Industrial Court by the judgment and
order dated 15/9/2009 allowed the said complaint and
issued directions, which have been mentioned
hereinabove. The Industrial Court in the absence of
any evidence being produced by the petitioners herein
in the form of attendance sheets, salary slips, etc.,
inter alia on the basis of Exh.s 34 to 36, came to a
conclusion that the respondent has worked
continuously for a period of five years and, therefore,
was entitled to the benefit of the said Government
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5
Resolution dated 31/1/1996.
5) Being aggrieved by the said judgment and
order dated 15/9/2009, the instant petition has been
filed.
6) Heard the learned Counsel for the parties. Ms.
Khan, learned Assistant Government Pleader
appearing for the petitioners, submitted that the
respondent, who had approached the Industrial Court
by way of the said Complaint (ULP), has not
discharged the burden in the matter of proving that he
had worked for 240 days in each calendar year
preceding to the date of Government Resolution dated
31/1/1996 and that the Industrial Court by merely
observing that he has worked for five years allowed the
said complaint. The learned Assistant Government
Pleader sought to rely upon a chart, which has been
annexed at page 43 to the petition so as to contend
that the said chart discloses that the respondent had
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not worked for 240 days in each of the preceding
calendar years. It was contended that the documents
(Exhs. 34 to 36) would merely show the seniority on
the basis of the date of employment and would not
indicate as to whether the respondent was entitled to
be made permanent in terms of the criteria mentioned
in the Government Resolution dated 31/1/1996.
7) Per contra, Shri Khan, learned Counsel for the
respondent, submitted that the impugned judgment
and order does not call for any interference as the
findings recorded have been so recorded by the
Industrial Court on the basis of the material on record.
Insofar as chart at page 43 on which much emphasis
has been laid by the learned Assistant Government
Pleader appearing for the petitioners is concerned, it
is the contention of Shri Khan that the said document
could not be taken into consideration in view of the
fact that the same was not produced before the
Industrial Court and the respondent, therefore, did not
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7
have an opportunity to deal with it.
8) Having heard learned Counsel for the parties, I
have given my anxious consideration to the rival
contentions. In the instant case, as can be seen, the
Industrial Court on the basis of the documents (Exhs.
34 to 36) has come to a conclusion that the
respondent was in continuous service of the petitioners
in the preceding five years so as to entitle him for the
benefit of the said Government Resolution dated
31/1/1996. In my view, the chart on which reliance is
now sought to be placed by the learned Assistant
Government Pleader appearing for the petitioners,
cannot be made a part of the record of this Court in
view of the fact that the said document was not
produced before the Industrial Court in the said
complaint. The submissions advanced on behalf of the
petitioners on the basis of the said document,
therefore, cannot be countenanced. It was for the
petitioners herein to produce the said document and
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8
having not produced the evidence, which was available
with them, the Industrial Court was right in relying
upon the documents (Exhs. 34 to 36) which have been
produced by the respondent in the said complaint.
The said documents disclose that the respondent was
subjected to medical examination. Insofar as the
document purporting to be a seniority list is concerned,
the said document also discloses the date from which
the respondent has been employed.
9) In my view, the findings arrived at by the
Industrial Court on the basis of the said documents and
on the basis of oral evidence, which was led by the
parties, cannot be said to be perverse or requiring
interference at the hands of this Court in the extra-
ordinary writ jurisdiction. It is also the case of the
respondent that persons, who were junior to him, have
been made permanent and that he has been deprived
of permanency. That case of the respondent has not
been effectively dealt with by the petitioners in the
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Industrial Court. In that view of the matter, the
impugned judgment and order dated 15/9/2009 passed
by the Industrial Court does not merit any interference
at the hands of this Court in the extra-ordinary writ
jurisdiction. The writ petition is accordingly dismissed.
Rule discharged. No order as to costs.
JUDGE
khj
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