:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 541 OF 2008 1. Mr. Dattatraya Sahebrao Tambe and anr. .. Petitioners Vs. 1. Bhima Sahakari Sakhar Karkhana Ltd. and ors. .. Respondents Mr. N.A. Kulkarni for petitioners. Mr. A.V. Lokhande and Mr.R.R. Salvi for respondent no.1. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. Date : March 28, 2008. Date : March 28, 2008. Date : March 28, 2008. P.C.: P.C.: P.C.: 1. Heard Mr. Kulkarni the learned counsel for the petitioners. Mr. Lokhande appears for the respondent-Karkhana. 2. The respondent no.2-Union had filed Complaint (ULP) No. 21 of 1998 before the Industrial Court at Pune under Items 5, 9 and 10 of Schedule IV read with Section 28(1) of the M.R.T.U. & P.U.L.P. Act, 1971 (for short the Act). In the said complaint the Union :2: had sought the relief of permanency in employment of 16 employees listed in the annexure attached to the complaint. The present petitioners’ names were at Sr.Nos.11 and 12. Mr. Lokhande states that the name of the first petitioner i.e. Mr. D.S. Tambe does not appear in the annexure to the complaint. The said complaint has been dismissed by the learned Member of the Industrial Court at Pune vide his Judgment and Order dated 24/1/2005 and the same order is sought to be impugned after three years. 3. So far as the present petitioners are concerned, it was pointed out before the Industrial Court that the applications at Exhs.U-2 and U-6 filed in Complaint (ULP) No. 21 of 1998 were decided by the said court and it was noted that both the petitioners were not in the employment at the relevant time and if they had any desire to challenge the order of discontinuation/termination of service either oral or written, they were at liberty to approach the Labour Court. Mr.Lokhande the learned counsel for the respondent no.1 has invited my attention to the affidavit-in-reply filed in the instant petition and :3: from the same it is clear that the petitioners’ filed Complaint (ULP) Nos.88 and 89 of 1998 before the Labour Court along with an application for interim relief which was allowed by directing the respondent - employer to pay a subsistence allowance of Rs.750/- per month during the pendency of the complaint. The Industrial Court in Revision Application increased the said amount to Rs.1500/- per month and finally both the complaints came to be allowed by the Labour Court on 21/9/2007 directing the reinstatement with continuity of service and full backwages with effect from 23/7/1997. The respondent-Karkhana has challenged this judgment and order in Revision Application Nos.112 and 113 of 2007 and, as of now, the petitioners are in employment of the respondent-Karkhana. Mr. Kulkarni, therefore, submitted that the petitioners have the locus to challenge the judgment and order dated 24/1/2005 even belatedly and in this regard he has relied upon a judgment of this court in the case of Saudi Arabian Air Lines vs. Ashok Margovind Panchal and anr. [2002 III CLR 743]. :4: 4. Undoubtedly, when the impugned order was passed by the Industrial Court on 24/1/2005, none of the petitioners were in service and the complaints filed by them for reinstatement were pending before the Labour Court. Therefore, I do not find any error committed by the Industrial Court in not considering the petitioners’ claim for permanency by the impugned order. If the petitioners are now in the employment and the Labour Court has granted them reinstatement with full backwages, they may take out a fresh case for permanency and the Industrial Court will be required to consider their claim afresh. However, such a claim cannot be considered by taking out a challenge to the impugned order when the petitioners were not in employment and as stated by Mr.Lokhande, the name of petitioner no.1 was not even included in the annexure filed along with the complaint. Mr.Lokhande also pointed out that Complaint (ULP) Nos.254 and 255 of 2007 have also been instituted by the petitioners under Item 9 of Schedule IV of the Act claiming monetary benefits to the tune of Rs.3,31,815/- and in case the petitioners have not prayed for the relief of permanency, they are not :5: estopped from seeking an amendment to the said complaints and in any case these complaints will have to be considered on their own merits. 5. Hence, I am not impressed by the challenge sought to be raised by the petitioners to the impugned order three years later and I am satisfied that the Industrial Court was not in error in not considering the petitioners’ claim. 6. The petition is rejected summarily. (B.H. Marlapalle,J.) (B.H. Marlapalle,J.) (B.H. Marlapalle,J.)