1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 7527 OF 2008 Vilas Rangnath Hazare and another ...Petitioners Versus Deputy Director, Social Forestry Department, Ahmednagar and Anr ...Respondents ..... Mr. P.V. Barde, advocate for the petitioners Mr. P.P. More, AGP for respondents. ..... CORAM: S. S. SHINDE, J. DATED: 29TH AUGUST, 2009 PER COURT:- 1 Heard. Rule. Rule made returnable forthwith. By consent of the counsel for the parties, matter is taken up for final hearing immediately. 2 This petition is directed against the judgment and order dated 3.11.2008 passed by the Industrial Court Ahmednagar in complaint (ULP) No. 144 of 1995. 3 It is the case of the petitioners that they were appointed as watchmen on daily waves by the respondents. Though the petitioners have completed 240 days service in each calender year or more than 2 10 years, however, the permanency benefits are not provided to them and being aggrieved by the inaction of the respondents, they filed complaint (ULP) No. 144 of 1995 before the Member, Industrial Court, Ahmednagar. 4 On 23.3.1995, the Member, Industrial Court was pleased to grant interim relief in favour of the petitioners. However, the learned Member finally dismissed the complaint filed by the petitioners on 3.11.2008. Hence, this writ petition. 5 Learned counsel appearing for the petitioners has invited my attention to the grounds taken in the petition and submitted that the petitioners have produced on record Exh.U-17, the documents issued by the respondent showing that the petitioners have completed more than 10 years service. It was also pointed out to the learned Industrial Court that the government Resolution is issued by the Social Forestry Department and by virtue of the said Resolution, the petitioners are entitled to be continued in service as a permanent employee. Accordingly to the learned counsel though the specific attention of the Member Industrial Court was invited to the Government Resolution dated 31.1.1996 the Court has not given specific findings of said Resolution. Learned counsel further submitted that the Judge Industrial Court contrary to the information available at Exh.U-17 which was exhibited before the court, recorded a findings that the petitioners 3 have not completed more than 240 days service in each calender year. Learned counsel invited my attention to para 13 of the judgment of the Industrial Court and submitted that the findings recorded by the Industrial Court that the petitioners have not worked for more than 240 days in a calender year, are contrary to the documents at U-17. Therefore, learned counsel would submit that the findings in para 13 are perverse and therefore, on this ground alone, the matter required to be remanded back to the Industrial Court for reconsideration. Learned counsel, from the original record available in the Court, has invited my attention to the said documents and submitted that for more than 10 years the petitioners have worked for more than 240 days in a calender year, therefore, the counsel submitted that the matter required to be remanded back and the Industrial Court to consider the case of the petitioners afresh in the light of the said documents available on record as well as in the light of the Government Resolution dated 31.1.1996. 6 Learned AGP appearing for the State submitted that the petitioners were engaged on daily wages and there is no post on which their appointments were made, The posts are not sanctioned. They have not completed 240 days service. They are taking undue advantage of the interim order passed by this Court and continued in service. Learned counsel invited my attention to the reported judgment of Hon’ble Supreme Court in the case of Madhyamik Shiksha 4 Parishad, U.P. Vs. Anil Kumar Mishra and others, reported in AIR 1994 SC 1638 and in view of that in absence of any sanctioned post available no direction can be given by the Court for relaxation or granting permanency benefits to the employee. Therefore, the learned AGP submits that the writ petition is devoid of any merits and deserves to be dismissed. 7 Upon hearing learned counsel appearing for the petitioners and learned AGP for the respondent-State, I am of the considered view that the findings recorded by the Member, Industrial Court in para 13 are contrary to the record. From the observations in para 13, it clearly shows that the petitioners have worked more than 240 days service. The said document is issued by the Plantation Officer of the Social Forestry department, Jamkhed. The said document is part of the record which has been summoned from the Industrial Court. In this background, when the document itself speaks that the petitioners have worked for more than 240 days in each calender year for about 10 years, the findings recorded by the Judge, Industrial Court that the petitioners have not worked continuously for more than 240 days is contrary to the record. Apart from that it appears that the court has not considered the Government Resolution dated 31.1.1996, as rightly contended by the counsel appearing for the petitioners. The findings recorded by the Industrial Court are perverse and contrary to the record and the matter deserves to be remanded back to the Industrial 5 Court for fresh hearing. 8 Though, learned AGP contested the matter on merits having been satisfied on the point that the findings recorded by the Industrial Court are perverse, leaving the matter open to be agitated on merits, the impugned judgment and order dated 3.11.2008 is set aside. The matter is remanded back to the Industrial Court for fresh hearing deciding afresh. The complaint (ULP) No. 144 of 1995 is restored to its original stage. The Judge, Industrial Court to hear the parties and allowed them to lead evidence and file documents and after hearing the respective parties decide the complaint as expeditiously as possible and preferably within six months from today. It is made clear that this Court has not expressed any opinion on the merits of the matter and it would be open for the parties to agitate all points before the Industrial Court. Till the complaint is decided by the Industrial Court, interim order passed by this Court on 19.12.2008 shall continue to operate. 9 Record and proceedings be sent back to the concerned Court forthwith. Rule made absolute in the above terms. (S.S. SHINDE, J.) rlj/ 6