1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD /unreported/ WRIT PETITION NO.605 of 2010 Date of decision:22/10/2010 For approval and signature HON'BLE MR.JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? No 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? Private Secretary AGP/office/605-10wp 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.605 OF 2010 Yamanaji Eknath Nehe, Age 40 years, Occu.Nil, r/o Songaon, Taluka Rahuri, District Ahmednagar. ...PETITIONER VERSUS 1. The State of Maharashtra, Through Secretary, Irrigation Department, Mantralaya, Mumbai. 2. The Superintending Engineer & Administrator, Command Area Development Authority, Nagar-Aurangabad Road, Ahmednagar. 3. The Executive Engineer, Minor Irrigation Division No.2, Gulewadi, Taluka Sangamner, District Ahmednagar. 4. The Assistant Engineer, Grade-I, Minor Irrigation (Survey), Sub Division Shrirampur, District Ahmednagar. ...RESPONDENTS ... 3 Mr.P.V.Barde, Adv., for the petitioner. Mr.K.S.Patil, AGP for respondent State. Shri P.R.Tandale, Adv., for respondent nos. 2 to 4. ... CORAM: K.U.CHANDIWAL, J. DATE :22/10/2010 *** ORAL JUDGMENT: 1. Rule, made returnable forthwith. Heard finally by consent of the parties. No further documentation sought. 2. Rejection of Complaint (ULP) No.134/2003 by the learned Member, Industrial Court at Ahmednagar, dt.2.12.2009 is questioned by the employee. 3. The principal contention of Mr.P.V.Barde, learned Counsel for the petitioner is, when the learned Judge could observe in his findings that there is delay on the part of the petitioner, it was incumbent for the learned Judge to have framed an issue for delay and, in the absence of such an issue for delay being not framed, the mandate requires, to remand the matter. In order to illustrate his points, learned Counsel has placed reliance to the judgment of this Court reported in 2004 (3) 4 Mh.L.J.1078 ( Madhao so Somaji Sarode Vs. Jotiba Dhyan Upasak Shikshan Sanstha, Dudhala and others, particularly, paragraph no.11 thereof. In the similar line, learned Counsel has relied to the judgment in Writ Petition No.3890/2007, again paragraph no.11 thereof which also takes recourse to the earlier judgment of 2004 in the matter of Madhao (supra). Paragraph no.11 in the matter of Madhao (supra) reads as under: "11. I am also in agreement with the law laid down by the M. P. High Court in the case of Suresh Kumar and Ors. v. Firm Kurban Hussain Taiyab Ali and Ors. (cited supra) that if the Tribunal comes to a conclusion that the appeal was not filed within limitation then it should give an opportunity to the party to make an application for condonation of delay. In the present case, from the order itself, it can be seen that though the Tribunal had on earlier occasion entertained the appeal on merits, in its final order has come to a finding that the appeal or the petitioner was filed beyond the prescribed period of limitation. In my view, before dismissing the appeal of the petitioner on the ground of delay, the learned Tribunal ought to have given an opportunity to the appellant to make an application for condonation of delay. I find support in the view I have taken from the aforesaid judgments of the Supreme Court in the case of State of M. P. and Anr. v. Pradeep Kumar and Anr. (cited supra) and M. P. High Court in the case of Suresh Kumar and Ors. v. Firm Kurban Hussain Taiyab Ali and Ors. (cited supra)." 4. The crucial facts in the matter need attention. The petitioner was a daily wager 5 engaged on 26.3.1990. He was subsequently removed. Consequent upon such removal, the petitioner moved Complaint (ULP) No.438/1994 before the learned Member, Industrial Court at Ahmednagar. He lost in the said complaint on 27.6.2003. There was an ad interim order dt. 23.12.1994 in favour of the petitioner. Under the veil of the said order, he was in employment with respondent nos. 2 to 4. It is, thus, clear, any arrangement of employment of the petitioner, after at least 1994, could not be by any recognized procedure of employment followed. It was an litigious arrangement of which he got benediction and benefit. 5. The submission from Mr.P.V.Barde, learned Counsel, that there is non compliance of Section 25-F of the Industrial Disputes Act, will not be available to be coined as, apparently, petitioner did not put in 240 days service. 6. The other submission by the learned Counsel of remand, in the context of above referred judgment of this Court, now needs to be dealt with. 7. The learned Judge, when on merits, found and reflected in paragraph no.15 that there is no violation of terms of Kalelkar Award, however, since the petitioner failed to prove that he was 6 entitled to seek benefit of Kalelkar Award, consequently, the petitioner was not eligible/entitled to seek resort to said Award as there is lack of continuous service of five years. It was, thereafter, in paragraph No.16, the learned Judge has dealt with submissions of the petitioner having been terminated during pendency of the proceedings. It may be a factual matrix that the petitioner lost his father on 6.7.2003 and his complaint was dismissed on 26.8.2003 ( actually 26.7.2003). The dismissal, indeed, was taken recourse by the present Complaint No.134/2003, as it is lodged on 3.7.2003 or, thereafter. The observations of the learned Judge in the light of factual matrix in paragraph no.16, will not call for framing of an issue from the point of view of delay as service of the petitioner was by the orders of the Court and it could not be treated as a regular appointment. Consequently, the request for remand is also uncalled for. Writ Petition lacks merit, dismissed. No order as to costs. Rule discharged. (K.U.CHANDIWAL) JUDGE ... AGP/605-10wp