wp9525.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.9525 OF 2010. The Managing Director of Maharashtra State Electricity Distribution Company Ltd. and another. .. PETITIONERS. VERSUS Lilabai Ashok Shinde. .. RESPONDENT. ... Shri Uday S. Malte, Advocate for Petitioners. Shri P.A. Kulkarni, Advocate for Respondent. ... CORAM : S.S. SHINDE,J. 6th DECEMBER, 2010. PER COURT: 1. This writ petition is directed against the interim order dated 6th August, 2010 passed by the Membe5r, Industrial Court, Aurangabad below Exh.U-2 in Complaint (ULP) No.16/2009 under Section 28 read with Items 6 and 9 of Schedule IV of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour wp9525.10 2 Practices Act, 1971 (for short, the MRTU & PULP Act). 2. The learned Counsel for the petitioners submitted that the petitioners have entered into agreement with Dhanesh Enterprises, Nagpur and the Guest House where the respondent was working, is already handed over to Dhanesh Enterprises. It is the contention of the Counsel for the petitioners that Dhanesh Enterprises is necessary party. However, it is not made party in the Complaint (ULP) No.16/2009 filed by the respondent. He submitted that the services of the respondent were already terminated and said fact was incorporated in the written statement filed by the petitioners. He submitted that the respondent was not appointed by following the prescribed procedure under law and it is settled position that the person who is not appointed by following proper procedure, cannot be continued in service. He has placed wp9525.10 3 reliance on the judgment in the case of Maharashtra State Electricity Distribution Co. Ltd., Pune vs. Vishwanath Sha nkar Sadafule and others (2010(5) Mh.L.J. 43). He also invited my attention to the relevant Regulations i.e. Classification of Recruitment Regulations, 1961. He invited my attention to Note 6 to Schedule A-2 which speaks about the Recruitment on all non-technical posts in pay group of Class 3 and 4, shall be made from the candidates sponsored by local employment exchange. The learned Counsel for the petitioners invited my attention to the Regulations 12 and 34 of the Regulations of 1961. It is submitted that the posts intended to be filled in by direct recruitment are required to be advertised and filled in according to the prescribed procedure. The procedure for selection is first to issue an advertisement, giving two weeks time to the candidates to file applications and such advertisement has to be sent to the Employment wp9525.10 4 Exchange and after following due procedure, recruitment is required to be done. Therefore, the respondent, who is not appointed as per the prescribed procedure, is not entitled to any relief as granted by the Industrial Court. The learned Counsel for the petitioners placed reliance on the reported judgments of this Court in the cases of University of Mumbai vs. S.D. Patel and others (2005(2) Mh.L.J. 302), General Secretary, Van Shramik Sangh vs. Director,Social Forestry, Maharashtra State and ors. (2009(1) Bom.C.R. 589), and Division Bench judgment of this Court in case of Divisional Controller, Maharashtra State Road Transport Corporation, Osmanabad vs. Maruti Bapurao Lokhande (2009(4) Mh.L.J. 869). Relying on the aforesaid judgments, the learned Counsel for the petitioners would submit that the respondent has no right either to ask for continuation in service or permanency or any other relief as she was not appointed as per the procedure wp9525.10 5 prescribed and on a vacant post. 3. On the other hand, the learned Counsel for the respondent submits that the main complaint is pending before the Industrial Court, waiting its turn for final disposal. He further submitted that though the petitioner herein placed reliance on the alleged agreement with Dhanesh Enterprises, copy of the said agreement was not placed on record before the Industrial Court. He further submitted that all the contentions raised by the petitioner can be agitated before the Industrial Court while adjudicating the complaint finally. He, therefore, prayed that this Court may not interfere with the interim order at this stage. 4. I have heard learned Counsel for the parties at length. I have carefully perused the impugned order in this petition. It is not in dispute that this writ petition is wp9525.10 6 directed against an interim order by which application of the respondent was allowed and the petitioners, who are original respondents are directed not to terminate the services of the respondent herein and to pay her monthly wages till disposal of the complaint, regularly. The petitioners are further directed to pay Rs.500/- towards costs to the respondent. Therefore, this writ petition is directed against the interim order pending complaint filed by the respondent for final adjudication before the Industrial Court. 5. It is not in dispute that the Counsel for the original respondents i.e. petitioners herein was not present before the Industrial Court on the fixed date of hearing when the interim order was passed by the Industrial Court. The Industrial Court has adverted to the written statement filed by the petitioners herein. The main contention of the petitioners that they have entered into an agreement with wp9525.10 7 third party for running the Guest House, was not supported by any evidence or by producing copy of the agreement on record before the Industrial court. The Industrial Court has considered the effect of not filing the agreement by the petitioners in para 8 of the order and has reached to the conclusion that in absence of any copy of the agreement on record, it cannot be presumed that by such agreement, the services of the applicant – respondent herein should be automatically terminated. It is not in dispute that no separate notice or any intimation was given to the respondent, terminating her services. The contention of the petitioners that since the petitioners have entered into an agreement with the Dhanesh Enterprises for running the Guest House and, therefore, by virtue of such agreement, the services of the respondent i.e. original complainant stood automatically terminated. wp9525.10 8 6. Upon hearing the learned Counsel for the parties and perusal of the impugned judgment and order passed by the Industrial Court and more particularly, reasons recorded in paragraph 8 thereof, I do not think that case is made out for interference. At any stretch of imagination, it cannot be said that merely because the petitioners have entered into an agreement with the third party i.e. Dhanesh Enterprises, the services of the complainant – respondent herein stood automatically terminated. The procedure under Industrial Disputes Act is required to be followed by the employer. It also appears that the respondent herein has also produced photocopy of the official note prepared on the basis of the application of the respondent herein for increase in salary. Copies of the documents coupled with the affidavits of the applicant – respondent, prima facie, go to show that since about 2000, wp9525.10 9 the respondent is continuously working as a sweeper in the rest house of the petitioners herein. 7. Though the learned Counsel for the petitioners has referred to various regulations enumerated in the Classification of Recruitment Regulations, 1961, that argument is very well available to the petitioners at the time of final adjudication of the complaint. That apart, if the petitioners herein wanted to follow the regulations scrupulously, it is not known that why the services of the respondent are availed by the petitioners without following Regulations of 1961. The judgments which are relied upon by the Counsel for the petitioners may be helpful at the time of final adjudication of the complaint. At the interim stage, the Industrial Court, on the strength of evidence and documents brought on record by the complainant – respondent, adverting to the wp9525.10 10 written statement of the petitioners, has passed equitable interim order. Therefore, in my opinion, at this stage when the proceedings / complaint is pending for final adjudication in the Industrial Court, no interference is warranted. The Industrial Court has taken a possible view. Therefore, at this stage, no interference is warranted. Hence, writ petition being devoid of merits, stands dismissed. [ S.S. SHINDE ] JUDGE. ... PLK/*