1 wp89.11 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 89 OF 2011 _____________________________________________________________________ Office Notes, Office | Memoranda of Coram, | appearances, Court's | Court’s or Judge’s orders orders or | directions and | Registrar's orders | _____________________________________________________________________ Mr. K.J. Ghute-Patil, A.G.P. for petitioners. 1. Heard Shri. K.J. Ghute-Patil, learned A.G.P. for petitioners. Respondent-employee was initially employed in 1984 and terminated in 1987. That termination was set aside by the Labour Court in ULP Complaint and it was maintained by Industrial Court in Revision under Section 44 of the M.R.T.U. & P.U.L.P. Act. He was, therefore, reinstated. He was again sought to be terminated by the order dated 09.10.2001. This termination forms subject matter of ULP Complaint no.150 of 2001. Labour Court has found termination in violation of Section 25F of the Industrial Disputes Act. It also noted that till then, 16 years continuous service was put in by the respondent. Petitioner then approached to the Industrial Court in Revision No. 3/2009 and vide judgment dated 22.03.2010, the Industrial Court has maintained that finding of Labour Court. Both Courts have found that 2 wp89.11 there are three posts of drivers available with the petitioners and there was no question of retrenchment. Termination is found to be oral termination. These findings are findings of facts and are not demonstrated to be perverse. 2. Learned A.G.P. for the petitioners has placed reliance on the judgment of Constitution Bench reported in "A.I.R. 2006 S.C. 1806" (Secretary, State of Karnataka & ors V/s Umadevi & others), to urge that as the respondent was not recruited after following prescribed procedure, his termination did not constitute retrenchment. Argument can not be accepted as the said judgment is applicable only in the matter for regularisation as has been explained by the judgment of Hon'ble Apex Court in "Maharashtra State Road Transport Corporation & another V/s Casteribe Rajya Parivahan Karmchari Sanghatana" reported in (2009) 8 S.C.C. 556. 3. Considering the status of the respondent as daily wager, Labour Court has given him reinstatement with continuity of service without back wages. The continuity of service is obviously given with a view to allow him to claim work as and when available as per his standing in seniority list. Even otherwise, Section 25H of the Industrial Disputes Act obliges the petitioners to give preference to respondent if work becomes available. I 3 wp89.11 therefore find no prejudice caused to the petitioners. Petition is therefore rejected. No costs. (B.P. DHARMADHIKARI) JUDGE. 18.01.2011 gas/wp89.11