1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Writ Petition NO.1658/2000 The Deputy Conservator of Forests (Wildlife) Allapalli at Chandrapur, Central Forest Rangers College, Mul Road, Chandrapur. .. Petitioner. Versus 1] Daulat Yashwant Kannake, aged about 44 years, Occupation Service R/o Markhanda ( Kanoba) Tahsil Chamorshi, District Gadchiroli. 2.] Member, Industrial Court, Nagpur. .. Respondents. ….. Mr. M. P.Badar, Advocate for the petitioner. Mr. J. S. Kalbande, Advocate for respondent no.1. Mr. D. P. Thakre, AGP for respondent no.2. … CORAM: B.P.DHARMADHIKARI, J DATE : 29th September, 2010 ORAL JUDGMENT : 1] In this petition filed under Article 227 of Constitution of India challenge is to the order of the Industrial Court dated 1st March 2000 delivered in ULP Complaint No. 1121/1996 granting relief to 2 respondent no.1 by quashing and setting aside the order dated 30.4.1996 at Exhibit 19. By that order, status of permanency conferred upon respondent no.1 earlier as per policy decision dated 31.1.1996 was withdrawn. It is not in dispute that as per said G. R. employee who has put in five years continuous service from 1.11.1989 till 31.10.1994 can be given benefit of permanency provided he has put in 240 days of service in each year during this period of five years. 2] As the respondent no.1 fullfil that criteria, vide order dated 14.3.1996 at Exhibit 17 he was made permanent. Later on vide order dated 30.4.1996 at Exhibit 19 said benefit was sought to be withdrawn by mentioning that he did not complete 240 days in each of these five years. 3] I have heard Advocate Badar for petitioner, Advocate Kalbande for respondent no.1 and AGP Thakre for respondent no.2. 4] Advocate Badar has contended that number of days put in by respondent no.1 are correctly mentioned in written statement and the same tallies with the discloser in Exhibit 19. Witnesses for the petitioners were cross-examined and by placing reliance upon vague 3 cross-examination, finding of the incorrect nature thereof has been reached. Learned counsel argues that all relevant musters have been produced. Respondent no.1 at least during two years i. e. from 11.11.1990 to 30.10.1991 and from 1.11.1991 to 31.10.1992 worked under E. G. S. for 112 days and 113 respectively. Said EGS work is not to be taken into account for counting for 240 days as per G. R. dated 31.1.1996. He has taken the Court through relevant observations of the Industrial Court. He also requested the Court to call for original R & P as according to him, all musters have been produced on record. 5] Advocate Kalbandhe for respondent no.1 has opposed the request. He states that completion of 240 days in each of relevant five years was once accepted by petitioner and hence on 14.3.1996 petitioner was made permanent. Without giving him notice and hearing, order dated 30.4.1996 was issued and unilaterally that status was removed. He has invited attention to the finding of the Industrial Court on cross-examination of the witnesses to demonstrate that said witnesses accepted that petitioner was in continuous service without any break and during some of these relevant years he has worked for 30 or 31 days in a month because he was not taking any weekly off. He has also pointed out charts pressed into service vide Exhibits 28, 29 and 4 30 are found to be incorrect by learned Member and this finding is based upon appreciation of evidence. That appreciation has not been assailed before this Court by raising any specific ground by the petitioner. According to him, in this situation records need not be called upon and the mater needs to be dismissed. 6] Learned AGP appears for respondent no.2 Tribunal. 7] The fact that on 14.3.1996 the petitioner was given permanency is not in dispute. Later on, the petitioner came up with defence that said status was conferred upon him inadvertently. Definitely burden was on them to substantiate this stand, they have produced charts at Exhibit 28, 29 and 30. In paragraph 7 of its order, the Industrial Court has looked into evidence of witnesses Shri Geetsingh and Bhaskar Gampawar for this purpose. Appreciation of evidence by the Industrial Court reveal that witnesses have clearly admitted that action was taken against respondent no.1 without due verification of records by them. The Industrial Court has found that respondent no.1 worked continuously without availing weekly off and therefore in every month he attended on 30 or 31 days and this fact has been admitted by witness Shri Geetsingh. In the light of this material, 5 evidence of Shri Gampawar who prepared charts at Exhibit 28, 29 and 30 has been looked into by the Industrial Court. In Exhibit 28 period of some months was missing and there was no explanation by witness about it. The missing period was from November 1990 to March 1992. The Industrial Court has found that in view of the admission of continuous work of the respondent no.1, burden was upon the petitioner to explain this missing period and the same has not been done. The same errors were also noticed by it in chart at Exhibit 29 and 30. 8] Advocate Badar has tried to compare the days of work disclosed in Exhibit 19 with days disclosed in written statement. There cannot be any such comparison because both are in the nature of contention of the present petitioner and the same needs to be substantiated by primary evidence i. e. by muster register. There is no ground in the petition in this respect. The petitioner has not come up before this Court with stand that Geetsingh and Gampawar have deposed contrary to records and have deposed deliberately against the department and in favour of respondent no.1-employee. If that be the case, whatever be the reasons given by the Industrial Court or by this Court, the petitioner is not estopped from taking appropriate 6 disciplinary action against Geetsingh and Bhaskar Gampawar. However, in the absence of any specific averment in the present writ petition in that respect, the finding of the Industrial Court in relation to charts at Exhibit 28, 29 and 30 cannot be labelled as erroneous or perverse. I do not find any merit in the request of Advocate Badar to call for relevant records from the Industrial Court. The cross of its witnesses denudes these documents of their authencity. 9] Even otherwise, perusal of ground no.(iv) as raised in petition before this Court shows that even during period 1.11.1990 to 31.10.1990 total number of days are shown to be 346 days and days under under plan and non-plan are shown to be 234. It is alleged that respondent no.1 worked for these 234 days, out of it period of 112 days is stated to be under EGS. In subsequent period from 1.11.1991 to 31.10.1992 respondent no.1 is alleged to have worked for 190 days and 143 days are stated to be under EGS. Work under EGS is provided to a employee who has enrolled himself with the office of Collector or Tahsildar for its grant and his name is required to be forwarded to concern Department by Tahsildar as per provisions of Maharashtra Employment Guarantee Act, 1977. The petitioner has not pointed out that name of respondent no.1 who was earlier working with them on 7 regular work was received by them from office of Tahsildar and, therefore, he was shifted under E.G. S. . In the present facts, the contention that respondent no.1 worked under E.G.S. therefore cannot be accepted. 10] In view of this finding, it is apparent that no exception can be taken to the order of the Industrial Court. There is no jurisdictional error at all. The petition is, therefore, rejected. No costs. JUDGE Ambulkar.