( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 9995 OF 2010 WITH WRIT PETITION NO. 9996 OF 2010 WRIT PETITION NO. 9995 OF 2010 Dattu s/o. Vinayak Kale, Age : 52 years, Occupation : Nil, R/o. Shivnai, Post : Bidkin, Taluka : Paithan, District : Aurangabad. .. Petitioner. versus 1. The Executive Engineer, Maharashtra Jeevan Pradhikaran Works Division No.2, Vedant Nagar, Behind Hotel Vedant, Station Road, Aurangabad. 2. The Sub-Divisional Officer, Maharashtra Jeevan Pradhikaran Works Sub-Division No.6, Nageshwarwadi, Aurangabad. 3. The Aurangabad Municipal Corporation, Aurangabad, Through its Commissioner. .. Respondents. ....................... ( 2 ) WRIT PETITION NO. 9996 OF 2010 Ramnath s/o. Raosaheb Kale, Age : 52 years, Occupation : Nil, R/o. Shivnai, Post : Bidkin, Taluka : Paithan, District : Aurangabad. .. Petitioner. versus 1. The Executive Engineer, Maharashtra Jeevan Pradhikaran Works Division No.2, Vedant Nagar, Behind Hotel Vedant, Station Road, Aurangabad. 2. The Sub-Divisional Officer, Maharashtra Jeevan Pradhikaran Works Sub-Division No.6, Nageshwarwadi, Aurangabad. 3. The Aurangabad Municipal Corporation, Aurangabad, Through its Commissioner. .. Respondents. ....................... Mr. A.A. More, Advocate, for the petitioners in both petitions. Mr. D.P. Bakshi, Advocate, for respondent nos.1 and 2 in both petitions. Mr. S.S. Tope, Advocate, for respondent no.3 in both petitions. ( 3 ) ........................ CORAM : B.P. DHARMADHIKARI, J. DATE : 14TH JANUARY 2011 ORAL JUDGMENT : 1. Heard learned Counsel for the respective parties. 2. Challenging termination effected in 1978, the petitioners filed ULP Complaints initially before the Industrial Court, some time in the year 1988. Those complaints were withdrawn in 1993 and the correct forum, namely, Labour Court was approached. The delay was explained before the Labour Court and the Labour Court condoned that delay. The order condoning delay was then questioned by the employer before the Industrial Court in revision and that revision was rejected. The matter proceeded further and the Labour Court found that as per muster produced before it for the period up to December 1977, continuous service of more than 240 days was established. It also has drawn adverse inference against the employer for not producing the other musters. Because of these findings, it granted relief of reinstatement with continuity and full back wages to the petitioners. ( 4 ) 3. The employer then approached Industrial Court in revision and Industrial Court has allowed that revision. 4. Mr. A.A. More, learned Counsel appearing for the petitioners, has contended that it was not necessary to record a finding that during the period of 12 months preceding their termination, the petitioners had put in 240 days of continuous service. In any case, according to the learned Counsel appearing for the petitioners, the records ought to have been produced by respondent nos.1 and 2, and as those records were not produced and rightly adverse inference has been drawn. He further states that under Section 44 of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 (For short, hereinafter referred to as "MRTU & PULP Act"), the jurisdiction available with the Industrial Court is of limited nature and hence entire evidence could not have been re- appreciated again. He points out that the petitioners were working with respondent nos.1 and 2 and the Water Supply Scheme has been transferred to respondent no.3 / Municipal Corporation, by then. He states that all other employees (colleagues of the petitioners) were transferred along with the scheme, to the respondent no.3 and similar treatment ought to have been extended to the petitioners. ( 5 ) 5. The learned Counsel appearing for the petitioners has relied upon judgment of the Honourable Apex Court, in the case of Anoop Sharma Vs. Executive Engineer, Public Health Division No.1, Panipat (Haryana) (2010(5) Mh.L.J. 244), to urge that when finding of violation of Section 25F of the Industrial Disputes Act, 1947, is reached, the grant of relief of reinstatement with continuity and back wages has to follow and its grant cannot be interfered with. He has also relied upon judgment of the learned Single Judge of this Court, in the case of Damodhar s/o. Mahipat Gawande and another Vs. Deputy Engineer, GSDA, Buldhana and others (2010(4) Mh.L.J. 96), to urge that after completion of 240 days of continuous service, the employee gets the status of permanency and hence here, after completion of 240 days, the petitioners ought to have been treated and recognized as permanent employees. A judgment delivered by Division Bench of this Court, in the case of Vithal Gatlu Marathe Vs. Maharashtra State Road Transport Corporation and others (1995(71) FLR 429), is also relied upon to show the limited nature of jurisdiction available to the Industrial Court in the matter. 6. The respective Counsel appearing for the respondents have supported the orders of the Industrial Court. According to ( 6 ) them, there is no jurisdictional error or perversity. 7. The facts clearly show that the alleged termination is in December 1978 and the Industrial Court (a wrong forum) was approached under Section 28 of the MRTU & PULP Act, 1988. After realizing the mistake, the complaint was withdrawn in 1993 and the Labour Court was approached vide ULP Complaint Nos. 303/1993 and 304/1993. The Labour Court has condoned delay in filing those complaints and that order has become final. 8. Perusal of judgment dated 27-4-2009 delivered by the Labour Court reveals that in paragraph 13, it has relied upon muster roll No. 556498 to note that between the period from 16-6-1976 till 20-6-1977, the complainants before it have put in more than 240 days of service. It has noted Sundays, other Government holidays and added the same to the attendance in the muster rolls. This finding of fact cannot be stated to be erroneous or perverse. However, the period relevant for determination of controversy was of 12 months prior to December 1978. It has recorded no finding about completion of 240 days during the said period. The discussion undertaken by it shows that in paragraph 11, it has drawn adverse inference for non-production of relevant records. With this application of mind, it has granted relief of reinstatement with continuity and ( 7 ) full back wages to the petitioners. 9. The present respondent nos.1 and 2 then filed Revisions ULP Nos. 36/2009 and 37/2009 under Section 44 of the MRTU & PULP Act. The respondent no.3 / Municipal Corporation filed Revision ULP Nos. 42/2009 and 43/2009. All the four revisions have been decided together by the Industrial Court vide common judgment dated 20-8-2010. 10. After noticing the respective arguments of parties and also the judgment of the Honourable Apex Court, in the case of Secretary, State of Karnataka and others Vs. Umadevi & others (AIR 2006 SC 1806), and another judgment of the Honourable Apex Court, in the case of Maharashtra State Road Transport Corporation & another Vs. Casteribe Rajya P. Karmachari Sanghatna (2009 III CLR 262), the learned Member of the Industrial Court has found that the burden to prove completion of 240 days in a year was upon the petitioners. The Industrial Court noticed that the petitioners were not in a position to state the date on which they were appointed or the date on which they were orally terminated. It has also considered effort made by them to procure documents by giving notice to produce. The inordinate delay in filing complaints is also looked into by the Industrial Court. It has also considered the contention of respondent nos.1 ( 8 ) and 2, that as per provisions of Maharashtra Public Works Manual, such musters are required to be preserved only for a period of 10 years and hence, it has found that when complaints were filed after 15 years, the Labour Court could not have drawn adverse inference for non-production of those muster rolls. It has, therefore, not agreed with the finding of the Labour Court, of completion of 240 days of service. It has, therefore, allowed the revisions filed by the respondent nos.1 and 2. 11. The jurisdiction of the Industrial Court under Section 44 of the MRTU & PULP Act is limited. But then, if it notices any jurisdictional error perversity committed by the Labour Court, it is duty bound to correct it. In the present matter, the Labour Court has granted reinstatement with continuity and full back wages, ignoring the fact that the complaint was filed before it after about 15 years of the termination. Not only this, the inability of the complainants to point out their date of termination is also not looked into. The provisions of the Maharashtra Public Works Manual, about destruction of records, are also not looked into. 12. As already noted above, the petitioners have not shown how they have completed 240 days of service in 12 months preceding their termination. Admittedly, they were daily ( 9 ) wagers. The finding of the Labour Court is based only upon its observation in paragraph 13, that 240 days of continuous service was completed till 20-6-1977. The completion of 240 days during the said period could not have entitled the petitioners to grant of relief of reinstatement straightway when they have chosen to approach the court after 10 years or 15 years. The service put in by them on daily wage was only of about 3 years, if their contention is accepted. In this situation, the Industrial Court has found petitioners not entitled to any relief. 13. The Division Bench of this Court, in the case of Vithal Gatlu Marathe (supra), has noted that Industrial Court cannot re-appreciate evidence and overturn findings of fact. Here, there is no re-appreciation of evidence at all by the Industrial Court. The finding of fact is also not overturned by it. It has on the strength of PWD Manual not looked into by Labour Court, found that drawing of adverse inference was not proper and it has noticed evidence which is not considered upon by that court. This judgment, therefore, has no application to the facts of the present case. 14. The judgment of the learned Single Judge of this Court, in the case of Damodhar s/o. Mahipat Gawande and another (supra), which considers Item 6 of Schedule IV of the ( 10 ) MRTU & PULP Act, holds that the moment an employee completes 240 days of continuous service, if work of permanent nature is available, whether a post was sanctioned or not, in terms of the Model Standing Orders, the employee would be entitled to the benefit of permanency. It is to be noted that the recent judgment of the Honourable Apex Court, in the case of Maharashtra State Road Transport Corporation & another Vs. Casteribe Rajya P. Karmachari Sanghatna (supra), which distinguishes the Constitution Bench judgment of the Honourable Apex Court, in the case of Secretary, State of Karnataka and others Vs. Umadevi & others (supra), has also been noticed by the learned Single Judge in the matter. However, controversy before the Labour Court was not about grant of permanency. The jurisdiction to grant permanency and to take cognizance of that controversy either under Item 6 or Item 9 of Schedule IV of the MRTP & PULP Act is with the Industrial Court. The Labour Court has also not made any comments in this respect. I, therefore, find that the reliance placed by the learned Counsel for the petitioners, on the judgment of the learned Single Judge of this Court, in the case of Damodhar s/o. Mahipat Gawande and another (supra), in so far as present matter is concerned, is misconceived. 15. The Honourable Apex Court, in the case of Anoop ( 11 ) Sharma Vs. Executive Engineer, Public Health Division No.1, Panipat (Haryana) (supra), has found that the Labour Court after noticing violation of Section 25F of the Industrial Disputes Act, had granted relief of reinstatement with back wages to the employee. The Honourable Apex Court has, considering facts before it, found that the High Court erred in interfering in the matter and, therefore, restored the relief granted by the Labour Court. Here, the Labour Court has granted relief ignoring the fact that the complaint came to it almost 15 years after the date of alleged termination. The Labour Court ignored inability of complainants before it to disclose alleged date of their oral termination. These facts are looked into by the Industrial Court. The Labour Court has also drawn adverse interference for non- production of records, while the Maharashtra Public Works Manual obliges the employer to preserve muster roll only for a period of 10 years. In this situation, I find that the judgment of the Honourable Apex Court, in the case of Anoop Sharma Vs. Executive Engineer, Public Health Division No.1, Panipat (Haryana) (supra), relied upon by the learned Counsel for the petitioners, in so far as present matter is concerned, is not relevant. 16. The contention, that other employees have been transferred along with the Water Supply Scheme, is of no ( 12 ) relevance in the present facts. It is not a case, that those employees were terminated and in spite of that termination, they have been transferred along with the establishment. The learned Counsel appearing for the petitioners has attempted to urge that pendency of ULP Complaints or claims of the petitioners for such transfer were not communicated by the respondent nos.1 and 2, to the respondent no.3. It does not advance their cause in any way. 17. As I do not find any jurisdictional error or perversity with the impugned orders passed by the Industrial Court, the petitions are dismissed. No costs. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp9995etc