1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5074 OF 2009 1. The Principal, D.Y. Patil College of Engineering & Technology & anr. ....Petitioners vs 1. Namdev Nivruti Ambi & ors. ....Respondents Mr. A.V. Bukhari, senior counsel with Mr. B.V. Bukhari for the Petitioners. None for the Respondents. CORAM : S.J. VAZIFDAR, J. DATE : 15TH JANUARY, 2010. P.C. :- 1. By an order dated 27th November, 2009, notice was issued to the Respondents, returnable on 11th January, 2010. The notice was to intimate that the matter may be disposed of finally at the stage of admission. I am informed that the Respondents have been, accordingly, served. 2 2. The Petitioners have challenged the order dated 17th May, 2006 passed by the Labour Court and the order dated 11th August, 2008, passed by the Industrial Court in Revision. The Labour Court allowed the complaints filed by the Respondents. The Labour Court declared that the Respondents had engaged in unfair labour practice under Item-1(b) and (f) of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, and ordered them to desist from engaging in the said unfair labour practice. The Labour Court also awarded 30% of the back wages. The Industrial Court, in Revision, set aside the order of the Labour Court only to the extent that 30% of the back wages were awarded. 3. It is not necessary to set out the various facts. Suffice it to state that the Respondents’ grievance was that the Petitioner had terminated their services contrary to and in violation of the provisions of section 25F of the Industrial Disputes Act, 1947. The Petitioner denied the same. The Petitioner pleaded a defence under section 2(oo)(bb) of the Industrial Disputes Act. 4. It is pertinent to note that before the Labour Court, it was pointed out that the Respondents’ advocate had earlier filed a pursis that the Respondents were not coming forth and that he, therefore, wanted to 3 withdraw his vakalatnama. Further, the Respondents’ advocate had apparently stated that he proposed to withdraw in the proceedings by issuing notice, but subsequently sought adjournments and ultimately argued the matter on behalf of the Respondents. The Respondents had filed a pursis stating that they did not wish to lead any oral evidence. The Petitioners, on the other hand, chose not to lead any oral evidence. 5. The Labour Court and the Industrial Court proceeded on the basis that the Petitioners had admitted that the Respondents had worked for a period of more than 240 days; that the provisions of section 25F were not followed and that, therefore, the oral termination was not right. 6. Mr. Bukhari, the learned senior counsel appearing on behalf of the Petitioner invited my attention to paragraph 5(b) of the complaint wherein the averment is : “The complainant was continuous in the employment of the Respondents and completed 240 days.” He then relied upon paragraph 7 of the written statement filed by the Petitioner which reads as under :- “7. With reference to para 5(b) of the Complaint, it is emphatically denied that the termination of the Complainant’s services constitutes retrenchment and therefore observance of mandatory conditions precedent to valid 4 retrenchment as prescribed under the Industrial Disputes Act, 1947 was an obligation on the Respondent No.1, as is alleged or at all. It is respectfully submitted that due to the nature of work for which the Complainant was employed, it was an implied condition of his contract of employment that his services were co- terminus with the completion of the construction activity and therefore by virtue of Section 2(oo)(bb) of the Industrial Disputes Act, 1947, the termination of the Complainant’s services was and is not a retrenchment. Consequently, there was no obligation on the Respondent No.1 to adhere to the mandatory conditions precedent to the valid retrenchment.” 7. Mr. Bukhari submitted that the averments in paragraph 7 of the written statement themselves constitute a denial of the averment in the complaint that the Respondents had worked continuously for the Petitioner and completed 240 days. It is not necessary to consider this submission at this stage as I am in agreement with Mr. Bukhari that the averment that the complaint did not by itself satisfy the requirement of section 25F read with section 25B of the Industrial Disputes Act. The averment merely states that the Respondents were continuously in the employment of the Petitioner and completed 240 days. It does not indicate the precise period or periods during which the 240 days had allegedly been completed. Unless details in this regard are 5 pleaded it is not possible to ascertain whether the provisions of section 25F read with section 25B apply in the case of the workman. The failure to deny this averment would, therefore, not constitute an admission on the Petitioners part of the applicability of section 25F in this case. Moreover, the least that must be stated in favour of the Petitioner is that in view of such a pleading, it was necessary for the Respondents, at least by leading oral evidence, to indicate the periods during which the Respondents had worked for 240 days. In other words, even assuming that there was no denial of the averment in paragraph 5(b) of the complaint it would make no difference for there is no implied admission of the ingredients of section 25F read with section 25B being satisfied. 8. However, considering that this is a labour matter, it would be unfair and unjust to set aside the impugned orders without affording the Respondents an opportunity of pleading by an amendment and proving, if necessary, their case in this regard. Needless to say, if they do so, the Petitioners will be entitled to meet the case in pleadings and evidence. 9. In the circumstances, the impugned orders are set aside. The matter is remanded. The Labour Court shall hear the complaint afresh after affording all the parties an opportunity of amending their pleadings 6 and leading evidence if they so desire. There shall be no order as to costs.