IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.2465 OF 2007 IN WRIT PETITION NO.1799 OF 2001 The Conservator of Forest and Others ...Petitioners vs. Shivaji Vishnu Tupe and others ... Respondents --- Shri S.N. Patil AGP for Petitioners Shri Rajiv Patil h/f Shri Omkar Warange for Respondent Nos.1to 5 ---- CORAM: V.M. KANADE J. DATED 6TH JULY, 2009 P.C. 1. This is an application for fixing an early date of hearing. 2. By order dated 19.6.2009, the Civil Application along with the main petition was kept for final disposal. Accordingly, the main petition itself is placed on the final hearing board. The Civil Application, therefore, does not survive. 3. The State of Maharashtra has filed this petition, challenging the judgment and order dated 12th March, 1996 passed by the Industrial Court in Complaint (ULP) No.1127 of 1991. The Industrial Court by the said order was pleased to allow the complaint filed by the Respondents herein and declared that the Petitioners herein had committed an unfair labour practice and they were directed to make the Complainants-Respondents herein permanent with effect from 4th November, 1994 and offer them status and privilege and consequential benefits of permanency. It is an admitted position that thought the Petitioners herein were served, they remained absent. The present petition has been filed almost after 5 years from the date of the impugned order i.e. on 20th March, 2005. 4. Brief facts are as under. The Respondents filed a complaint under section 28(1) read with Item No. 1(a), (b) of Schedule II and Item Nos.5,6,9 and 20 of Schedule IV of the M.R.T.U. & P.U.L.P. Act, 1971. It was the case of the Respondents that they had been working in the Forest Department since 1987-1988 for a period of 240 days every year and, as such, they had become permanent employees of the government and they were entitled to get absorbed in service as permanent employees and they were entitled to get the benefit of permanency. It was contended that the forest department was an industry and, therefore, the complaint was maintainable under the said Act. Since the Petitioners herein did not appear before the Industrial Court over a period of 5 years, in the complaint, an ex- parte order was passed accepting the averments made by the Respondents-workmen in their affidavit in support. Thereafter, almost after a period of 5 years, the present petition has been filed. 5. The learned Counsel appearing on behalf of the Petitioners submits that the Industrial Court had erred in passing the impugned order. He submitted that no reasons had been assigned by the Industrial Court while allowing the complaint filed by the Respondents. He invited my attention to the notification dated 31st January, 1996 being Government Decision No.LAB1094/PK 252/F9. In the said notification, it was stated that those employees who were completed 5 years of service as on 1.11.1994 and had worked for 240 days in a year, should be absorbed. He submitted that in the present case, the Respondents had not completed 5 years as on 1.11.1994 since they were appointed sometime in the year 1991 and, therefore, in view of the said notification , their services were liable to be terminated. It is further submitted that the Respondents were given employment under various schemes and work under the said scheme was over and, as such, being temporary employees, the Petitioners were entitled to terminate their services. 6. Shri Patil, the learned Counsel for the Respondents, on the other hand, submitted that no explanation has been given for the delay caused of 5 years in filing the writ petition and on this ground, the writ petition is liable to be dismissed. He further submitted that since no evidence was led by the Petitioners herein though they were served, an ex-parte order was passed by the Industrial Court. He submitted that it was not open for the Petitioners to now contend that the Respondents were appointed for the first time in 1990 or 1991. 8. There is a much substance in the submission made by the learned Counsel appearing on behalf of the Respondents. There is a gross delay in filing the petition. No explanation has been given by the State of Maharashtra for the delay caused in filing this petition. There is no averment in the petition mentioning the reasons why the Petitioners did not appear before the Industrial Court though they were served. The Respondents had filed the complaint in the year 1991. The Industrial Court waited till 1996 and thereafter constrained to file an ex-parte order. Even, thereafter, the said order was not implemented and only thereafter the present writ petition appears to have been filed after contempt proceedings taken out by the Respondents herein. Even on merits, it appears that by virtue of the G.R. Dated 31st January, 1996, the Respondents were entitled to be made permanent as on 1.11.1994 since they have completed 5 years of continuous service. There is no material placed on record by the State of Maharashtra that the Respondents herein were working from 1990 /1991 and not from the year 1987 / 1988 as alleged by the Complainants. The Industrial Court also in its operative part of the order has stated that the Respondents should be made permanent from 1.11.1994 and not from the date of filing of the complaint. The Petitioners being the State, have a duty and are under an obligation to act fairly. The impugned order was passed by the Industrial Court in 1996 and more than 13 years have been passed since then. There is a gross delay of 5 years in filing the petition. 9. ln these circumstances, therefore, in my view, this is not a fit case where the impugned order should be set aside at such a belated stage. Writ petition is, accordingly, dismissed. V.M. KANADE J.