1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 3181/2005 The Executive Engineer and another ….vrs... Ashok R. Bode. Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : JANUARY 21, 2010. Heard finally by consent of Shri A.D. Mohgaonkar, learned counsel for petitioners and Shri D.A. Sonone, learned counsel for respondent. Learned counsel for petitioners / employer points out that in ULPA Complaint as filed, there was no plea that respondent had put in 240 days of continuous service or then he was a part time workman or that he was working as water man. He states that, there is no such assertion in evidence also. Petitioners have produced some documents to show that respondent was not a workman and he had not completed 240 days and on the basis of those documents without any other material on record the Labour Court has erroneously presumed that respondent was a water man and, that between 1992 to 1997 he has worked continuously. He points out that there is a finding that till 1986 the employee had not completed 240 days. He further states that, all these errors were pressed into service in Revision under Section 44 2 of the Industrial Disputes Act, however, without looking to those errors and contentions, mechanically the revision has been dismissed only because of limited jurisdiction available to the Industrial Court in the matter. Shri Sonone, learned counsel on the other hand, states that the Labour court has reached its conclusion on the strength of documents produced by the employer and hence, the employer cannot question those findings. He states that in view of this position, the Industrial Court has correctly maintained those findings. With the assistance of leaned Counsel for respective parties, I have perused the ULPA Complaint and I find that the assertion as pointed out by Shri Mohagaonkar, learned counsel are not there. Perusal of the judgment of Labour Court shows that the Labour Court has put the burden upon the employer to show that there was some contract which permitted them to engage services of employee as part time employee, and it has further found that the burden was upon the respondent to point out why the employee cannot be considered to have worked continuously from 09.05.1992 to 03.07.1997. The misconception of Labour Court in the matter is apparent from the fact that there was no such case pleaded in the complaint and there was no evidence to substantiate this stand by the employee. Perusal of the judgment delivered by the Industrial Court on 24.06.2009 again shows total non application of mind. Though, the jurisdiction under Section 44 of the Act is limited, the contentions raised need to be appreciated and dealt with. There is no such effort by the 3 Industrial Court. I find that the respondent employee claims to have been working since 1975, hence it would be in the fitness of things, to remand the matter to Labour Court, so as to do complete justice between the parties. In view of this, it is not necessary for me to go into more details of the controversy at this stage. All questions being raised are kept open for consideration by the Labour Court in accordance with law. The learned Counsel for respondent points out that the respondent is out of employment. In this situation, if the petitioners are providing any part time work to any other outsider or new employee or to fresh employee, the petitioners shall give preference to the present respondent in the matter, during the pendency of the complaint before the Labour Court and acceptance of such work by the respondent and making such work available to him by the petitioners shall not prejudice their contentions and rights before the Labour Court. It will be purely an adhoc arrangement during the pendency of the complaint. In view of the above, the judgment of Industrial Court dated 24.06.2009 in Revision No.2/2007 as also the judgment of Labour Court dated 28.12.2006 in ULPA complaint No. 96/1997 are quashed and set aside. ULPA Complaint No.96/1997 is restored back to the file of the Labour Court for fresh trial. Shri Sonone, learned counsel states that the respondent should be permitted to amend the complaint. Shri Mohogaonkar, learned counsel is opposing the request. However, as the question may turn on records with 4 petitioner, respondent is permitted to carry out appropriate amendment to his Complaint. Liberty to petitioners to carry out approaching consequential amendment to their Written Statement. Labour Court shall endeavor to decide the complaint finally as early as possible and in any case by 30.11.2010. Writ Petition is allowed in the aforesaid terms. Rule accordingly. No cost. JUDGE Rgd.