1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.3947/2009 Shri Rama Shankar Sali Age 65 years, Occ-Mazdoor R/o Ghadavi Galli, Erandol Tal.Erandol, Dist.Jalgaon. .. PETITIONER [ORIG.COMPLAINANT] VERSUS The Chief Officer, Nagar Palika, Erandol Tal.Erandol,Dist.Jalgaon. .. RESPONDENT [ORIG.RESPONDENT] .... Shri Sandesh R. Patil,Adv.for petitioner Shri M.S.Deshmukh,Adv.for Respondent ... CORAM : R.K.DESHPANDE,J. DATE : 29/6/2010. ORAL JUDGMENT: 1] This Writ Petition is filed by an employee challenging the 2 judgment and order dated 10/6/2008 passed by the learned Member of the Industrial Court, Jalgaon, dismissing Complaint (ULP) No.100/03. The petitioner invoked the jurisdiction of the Industrial Court under Section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 [for short MRTU & PULP Act] on the averment that the petitioner complainant has been continuously working in the services of the respondent-Municipal Council from 25/9/1982, on daily wages. However, he has not been granted status of a permanent employee. He has further alleged that by an order dated 11/10/2002, several employees working on daily wages under the respondent-Municipal council were absorbed in service and made permanent and accordingly they were given the benefits of permanency, even by relaxing the age limits. 2] According to the Municipal Council, the petitioner was employed on contract basis. It is further the stand taken by them that since the petitioner was employed on contract basis, there was no question of granting him benefits of permanent employee. It is further denied that the petitioner was in employment after 1998. 3] The Industrial Court framed issues and one of the issues 3 was, “Whether the complaint as framed and filed is tenable?” as the complainant had crossed the age of 58 years and on the date of filing of the complaint, he was of 64 years age. The issue was answered in the affirmative. In respect of the claim of the complainant that the respondent had committed unfair labour practice as contemplated by Items No. 6 and 9 of Schedule IV,of the MRTU & PULP Act, the answer was in the negative. It was held that the date of birth of the complainant was 1/6/1939 and on the date of filing of the complaint, he was more than 58 years of age. It is further a finding recorded that on the date of absorption of other employees by an order dated 11/10/2002, the petitioner had crossed the age of 58 years and hence, approval to his absorption was canceled vide letter dated 9/1/2007. With these findings, the complaint is dismissed. 4] Shri Patil, the learned counsel appearing for the petitioner has relied upon three judgments [1] 1991(2) MLJ. 1408 in the case of Pyarelal Ganesh Khichar V/s Municipal Council, Ramtek & another ; [2] 2007(1) Bom.L.C. 695 in the case of Shahar Palika Kamgar Union; Ahmednagar V/s Chief Officer, Ahmednagar Municipal Council, Ahmednagar and [3] 2009(8) SCC 556 in the case of Maharashtra State Road Transport Corporation and another V/s Castribe Rajya Parivahan Karmachari Sanghatana. Relying upon the judgment in Pyarelal’s case cited supra, the learned counsel has urged that 4 the service conditions of the employee are governed by Model Standing Orders and in terms of Items 1-C of Rule 4 of the Model Standing Orders, it was held that the employee is entitled to get permanency in service upon completion of 240 days continuous service. According to the learned counsel, the petitioner has completed 240 days continuous service and therefore, he was entitled to be made permanent in terms of the aforesaid clause under the Model Standing Orders. Relying upon the second judgment in Shahar Palika Kamgar Union’s case cited supra, the learned counsel has urged that the requirement of completing 240 days continuous service is not sine-qua-non for a valid claim under Item 6 of Schedule IV of the MRTU & PULP Act and even if it is not established that the employee has completed 240 days continuous service, that does not prevent him from making claim of permanency under Items 6 and 9 of Schedule IV. Relying upon the third judgment delivered by Apex Court in M.S.R.T.C’s case cited supra, the learned counsel has urged that irrespective of the fact whether Model Standing Orders are applicable or not, the employees are entitled to get permanency in terms of Items 6 and 9 of Schedule IV, if it is established that the complainant has been employed as badlis, casuals or temporaries and he has been continued for long period with the object of depriving him the status and privileges of the permanent employees. He submits that the petitioner was in continuous employment since 1982 and hence he should have been granted permanency in 5 service. 5] The learned Member of the Industrial Court has rejected the claim of the petitioner based upon the order dated 11/10/2002, by which, several other employees were absorbed in service. It is not in dispute that the petitioner had attained age of 58 years even prior to the date of filing of the complaint or even prior to 11/10/2002 i.e. the date when the other persons were absorbed in service on permanent basis. In view of this, the case of the petitioner could not be compared with the case of those who were made permanent by an order dated 11/2/2008. The claim was therefore, rightly rejected by the Industrial Court. 6] So far as the claim based upon the Provisions of the Standing Orders and the decision of this Court in Pyarelal’s case cited supra is concerned, this was not the pleading in the complaint. It was not the case put forth that the service conditions of the employees i.e. the petitioner were governed by Model Standing Orders and that the employee had completed 240 days continuous service and was therefore, entitled to be made permanent. Leave apart that, there is no evidence led to that effect and hence, no finding is recorded by the Courts below. The said judgment and the provisions of the Model Standing Orders are of no avail to the petitioner. 6 7] Although the petitioner has claimed that he has completed 240 days continuous service and relying upon the decision of this Court in Shahar Palika Kamgar Union’s case cited supra, there is no evidence led to that effect on record. Leave apart that, there is no finding recorded by the Industrial Court that the petitioner was employed as badli, casual or temporary basis and he was continued in service as such with the object of depriving him the status and privileges of permanent employee. This is neither the case put forth in the complaint nor a finding recorded by the Industrial Court. In the absence of such finding, the judgment of the Apex Court in MSRTC’s case cited supra is not applicable. 8] In view of above, no fault can be found with the findings recorded by the Industrial Court. In the result, there is no substance in the Petition. The same is therefore, dismissed with no order as to costs. [R. K. DESHPANDE, J.] umg/wp1426-09