1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 790 OF 1995 1. The State of Maharashtra, Through The Executive Engineer, Irrigation Division, Nathnagar, North Paithan. 2. The Sub Divisional Officer, Sub Division No. 9, Jayakwadi Jal Vapar Prakalap CADA, Tirthupuri, Tq. Ambad, Dist. Jalna now at present The Sub Divisional Officer, Jayakawadi Irrigation Sub-Division, No. 15, Tirthpuri, Tq. Ambad, Dist. Jalna. ....Petitioners. Versus 1. Shri. Arun Hanumantrao Vaishnav, Age 38 yrs., Occu. Nil, R/o. Railway Station, Pangaon, Tal. & Dist. Latur. 2. The Hon. Judge, Labour Court, Jalna. 3. The Hon. Member, Industrial Court, Jalna. ....Respondents. Shri. K.M. Suryawanshi, A.G.P. for petitioners. Shri. D.K. Kulkarni, Advocate for respondent No. 1. CORAM : R.K. DESHPANDE, J. DATE : 2nd July, 2010. 2 ORAL JUDGMENT : 1. This writ petition is preferred by the State of Maharashtra, Department of Irrigation, challenging the judgment and order passed by the Labour Court, Jalna on 3.8.1994, allowing complaint (ULP) No. 144/1993, filed by the respondent employee. By this judgment and order, the oral termination of respondent effected on 24.1.1987 by the petitioners has been quashed and set aside and the petitioners/employers are directed to reinstate the complainant in service with effect from 24.1.1987 with continuity in service and 50% backwages. This judgment and order was the subject matter of revision petition (ULP) No. 219/1994 filed by the petitioners before the Industrial Court at Jalna under section 44 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as "M.R.T.U. & P.U.L.P. Act") and the same was dismissed by the Industrial Court by its judgment and order dated 30.11.1994. Hence, both these judgments and orders are the subject matter of present writ petition. 2. The respondent/employee filed complaint (ULP) No. 144/1993, invoking the jurisdiction of the Labour Court under item No. 8(a), (b), (d), (f) and (g) of section 28 (1) held under Schedule IV of the M.R.T.U. & P.U.L.P. Act. It was alleged that the respondent/complainant/employee was untrained labour with petitioners in the year 1985 and he had 3 completed 240 days continuous service, preceding the date of his termination with effect from 24.1.1987. It was alleged that the petitioners neither issued notice nor paid the compensation to the complainant, as was required to be paid under section 25-F of the Industrial Disputes Act. Hence, on that count, the order of termination was liable to be quashed and set aside and the complainant was entitled to be reinstated in the service with backwages. 3. The petitioner/employer filed written statement. The factum of completion of 240 days continuous service, preceding to the date of termination, was not disputed. However, specific plea was raised that complainant abandoned the services with effect from the year 1986. 4. Before the Labour Court, the complainant led his own evidence and he was cross examined by the employer. The employer did not adduce any evidence. The Labour Court decided the complaint by its judgment and order dated 3.8.1994, holding that the complainant had completed 240 days continuous service prior to the date of termination and that there was non compliance of section 25-F of the Industrial Disputes Act while terminating his services. It was held that neither notice nor compensation as required by section 25-F was paid. On these findings, the oral termination dated 24.1.1987 by the employer was quashed and set aside, directing reinstatement of the complainant in service with effect from 24.1.1987 with continuity in service and 50% 4 backwages. 5. The Industrial Court decided the revision petition (ULP) No. 219/1994 preferred by the petitioner/employer by its judgment and order dated 30.11.1994 and the same was dismissed. The Industrial Court concurred with the findings of fact recorded by the Labour Court. It was specifically held that the burden of proof in respect of abandonment of service was on the employer and the employer did not adduce any evidence and no material was placed on record to substantiate its plea. It was held that the employer almost admitted the fact that employee completed 240 days continuous service and the termination being in violation of section 25-F, was rightly set aside by the Labour Court. Similarly, the order of payment of 50% of backwages was also maintained. 6. The instant matter was admitted and interim relief in terms of prayer clause “E” was granted, staying the effect and operation of the judgments and orders under challenge. It was, however, made clear that if the respondent applies, he will be re-employed as casual labour on the same terms and conditions, on which he was employed in the year 1985 during the pendency of the petition. The learned A.G.P. for the petitioners submits that as a result of the aforesaid order, the respondent is in employment of the petitioner even till this date. 5 7. Learned A.G.P. Shri. K.M. Suryawanshi has urged that the orders passed by the Courts below are liable to be quashed and set aside, on the sole ground that the Irrigation Department of the State Government is not an industry. He relies upon the unreported judgment of the Apex Court delivered in Civil Appeal No. 3637/1997 on 2nd May 1997, in the case of Executive Engineer (State of Karnataka) vs. K. Somasetty and others, holding that the Irrigation Department of State is not an industry. He further relies upon the decision of the Division Bench of the Gujrat High Court reported in 2000 III CLP 86 in the case of Shankerji Cheljaji Thakor Vs. State of Gujrat. 8. The question, whether the Irrigation Department of the State is industry or not, was not raised in the written statement filed before the Labour Court. It was also not a ground raised in the revision memo preferred before the Industrial Court. It is also not the ground raised in the present petition. Whether a particular department is an industry or not, may also require an evidence. Be that as it may. Such a question cannot be permitted tobe raised during the course of argument, particularly when the matter is of 1995 and it is being heard in 2010, almost after lapse of 15 years. The petitioner cannot take the other side, by surprise. Hence, the said argument cannot be taken into consideration. 9. There is no challenge to the findings of fact recorded by the 6 Courts below that the employee has completed 240 days continuous service prior to the date of termination from service. The only ground raised is that the employee was absent from work with effect from October 1986 and he did not turn up. Such a plea has not been substantiated by leading the evidence before the Labour Court. The employer has failed to establish the said plea and hence, no fault can be find with the findings recorded by the Courts below. 10. In the result, there is no substance in the petition. The same is dismissed. Rule is discharged. No order as to costs. [ R.K. DESHPANDE, J. ] ssc/wp790.95