1 I N THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR C.A.W. No. 1336 of 2009 (In W. P. No. 705 OF 2009) Supdt. Dr. Babasaheb Ambedkar Govt. Boys Hostel, Wardha & ors. v. Smt. Vimal w/o Hiraman Khandare & anr. ------------------------------------------------------------------------------------------------------ Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's and Registrar's orders orders ------------------------------------------------------------------------------------------------------------------- Mrs. Neeta Jog Advocate for the Applicants/Respdts.. Mr. J.B. Jaiswal Advocate for the N.As./Pentrs. ..... CORAM: A.B.CHAUDHARI, J. RESERVED ON : 14.8.2009. PRONOUNCED ON : 2 nd SEPTEMBER, 2009. COURT S ORDER : This civil application has been taken out by respondents 1 and 2 for clarification of the order dated 5.4.2007 in W.P.No. 705 of 2006 made by this Court. After filing of the said application, petitioners filed affidavit dated 4.8.2009 along with the documents showing number of sanctioned posts and vacant posts of Cook and Maid-servants in the hostels run by the petitioners. Thereafter another affidavit dated 2 20.8.2009 came to be filed along with a chart showing further details in respect of those posts and when and how those posts became vacant. 2. Having heard learned counsel for both the sides on the aforesaid civil application and having regard to the earlier judgment of this Court dated 5.4.2007, this civil application will have to be treated as Review Application in respect of the said judgment dated 5.4.2007 in W.P. No. 705 of 2006. Hence, office is directed to treat C.A.W. No. 1336/09 as Review Application and proceed accordingly. 3. FACTS : Respondents had filed Complaint (ULP) No. 408 of 1997 before the Industrial Court claiming that they worked in Class IV category as Maid-servants on daily wages in the hostels run by the petitioners. They stated that they have also been performing the duty of Cook in those hostels while working and they have enough experience and were entitled to be placed in post of Cook and they should be regularized as Maid-servant or Cook since they fall in the same category. 4. To these averments, the petitioners filed written statement resisting the claim. They took a 3 stand that the respondents were provided work of Maid Servant on daily wages as and when required in leave vacancy of Maid-servant and the posts of Maid-servants were abolished by the Government. No post of Maid Servant was available on which the petitioners could be appointed. The Industrial Court after hearing the parties recorded a finding that the respondents worked from 1989 and onwards intermittently as Maid-servants or in leave vacancy of Maid-servants and Cooks and accordingly they continued to work though intermittently. On the pleadings and evidence tendered by the petitioners the Industrial Court in its judgment and order dated 5.8.2004 held thus : It is the case of respondents that posts of maid servant are not vacant and therefore they cannot provide employment to complainants. There is no dispute that services of complainants are terminated by respondents. Therefore, complainants are entitled for re-employment as per the provisions of Section 25-H of Industrial Disputes Act, 1947. If respondents are directed to reappoint complainants on the post 4 of maid servant or cook as and when posts are available with the respondents, then no prejudice would be caused to them. 5. From the above finding it appears that the posts of Maid-Servant or Cook falls in the same category and Industrial Court in exercise of its power under Section 25-H directed accordingly. The Industrial Court then made operative order directing respondents to re-appoint complainants on the post of Maid-Servant or Cook as and when posts are available. This judgment was put to challenge in W.P. No. 705 of 2006. This petition was heard and decided by me on 5.4.2007. In para 3 of the judgment, I have recorded the submissions made by Mr.Deopujari, learned AGP, that no post of Cook or Maid- servant is available because the same was abolished by the Government and therefore it was not possible for the petitioners to comply with the order of the Industrial Court. Acting on this statement, this Court held that the post of cook not being available, no direction could be made to provide post of cook to them but this court confirmed the order directing the petitioners to allow respondents to work as maid servants or to employ them on the post of Maid-servant. The judgment dated 5 5.4.2007 is perhaps final since nothing is shown before me that the same was challenged thereafter. 6. In response to C.A. No. 1336/09 the petitioners filed affidavit of Rajesh Shaligram Pande, Special District Social Welfare Officer, Wardha, dated 4.8.2009 along with bunch of documents showing the data regarding Cook/Maid-servant, Helpers in six hostels run by the petitioner in the district of Wardha. Mrs.Jog, learned counsel for the review petitioners/respondents submits that though there are posts available in other hostels in the district of Wardha other than the hostel in which the respondents were working, respondents are not being considered for their appointments in those hostels in the district on the ground that they could not be appointed in other hostels except the hostel in which they were working. According to her, this is wrong since the seniority has to be district-wise and the same cannot be hostel-wise. Mr.Jaiswal, learned AGP, submitted that year-wise seniority list is being prepared by the petitioner-department in respect of all the hostels in the district and that is produced at Annexure R-3. He then submitted that on the basis of the said affidavit in all in the district hostels; out 6 of seven posts of cook, four posts are vacant and out of six posts of helpers/maid-servants, one post is vacant. 7. Since the details about vacant posts were not furnished, I had directed A.G.P. to provide those details and accordingly affidavit dated 20.8.2009 has been filed by Rajesh Shaligram Pande along with the document Annexure R-4 which shows that one post of Cook in Dr.Ambedkar Hostel, Wardaha, is vacant because of retirement of Cook with effect from 1.8.2009. Two posts of Cook are vacant in Dr.Ambedkar Hostel, Pulgaon and one of them became vacant since 6.6.2009 while the other is vacant since 1996-97 and the post of Helper in the same hostel is vacant because of retirement on 1.12.2006. Further in the Girls Hostel at Pulgaon one post of Cook is vacant since 15.6.2003 due to transfer. It is difficult to understand as to why the petitioners by keeping so many posts vacant are putting the backward class students to inconvenience who are residing in the hostels. Respondents are admittedly having experience since 1989 as Cook and Maid-servants and have enough experience to cook and work as Maid- servants and therefore it would be appropriate to ask the petitioners to appoint the respondents in vacant 7 posts. 8. From the above details it is clear that when the Industrial Court decided the complaint by its judgment dated 5.8.2004 and this Court decided the writ petition on 5.4.2007, one post of Helper and one post of Cook was vacant since 1.12.2006 and 1996-97. Similarly, after the decision of W.P. No. 705/06 one post of Cook became vacant at Dr. Ambedkar Hostel, Pulgaon, effective from 6.6.2007. It is thus clear that now in all four posts of Cook and one post of Helper are vacant and the statement made by learned A.G.P. recorded in para 3 of my judgment dated 5.4.2007 was obviously wrong in the light of the above submissions made by the petitioner. This, in my opinion, is an error apparent on the face of the record which deserves to be corrected in the interest of justice. Looking to the above factual aspect, I review my judgment dated 5.4.2007 and make the following order. 9. Review Application arising from Civil Application No. 1336/09 is disposed of and the judgment and order dated 5.4.2007 in W.P. No. 705 of 2006 is modified as under - Complaint (ULP) No. 408 of 1997 from the 8 judgment of which W.P. No. 705 of 2006 arose, is partly allowed. It is held that petitioners indulged in unfair labour practice in breach of items 6 and 9 of Schedule IV of The Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. Petitioners are, therefore, directed to make respondents 1 and 2 permanent in either of the posts of Cook which are available 4 in number and one post of Helper which is available, as indicated above, in these hostels of Wardha district within eight weeks from today. It is made clear that none of the respondents shall be entitled to claim any arrears of salary towards their appointments which is ordered to be made by this order. In the circumstances, there shall be no order as to costs. JUDGE /TA/ 9