1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION No. 4790 OF 2006. ( The Executive Engineer, Wardha Irrigation Project -: versus :- Ramesh Bhendare and 51 others.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : JULY 12, 2010. Heard Shri O.D. Kakde, learned A.G.P. for petitioner, Shri P.D. Naukarkar, learned counsel for Respondent Nos. 1,2,6,9,10, 11, 15, 16, 17, 19, 20, 22, 23, 24, 26, 27, 28, 30, 31, 32, 34, 35, 37, 38, 40, 43, 45, 46, 47 and 49 and Shri A.I. Sheikh, learned counsel for Respondent Nos. 12, 13, 25, 29, 33, 36, 41, 42, 46, 47 and 49. Respondent Nos. 1 to 49 in present Writ Petition filed ULPA Complaints registered as Complaint ULPA Nos. 933, 939, 946, 948 and 967 of 1987 on the file of the 3rd Labour Court, Nagpur assailing their termination w.e.f. 01.10.1987 as unfair labour Practice under Item No.1 Schedule IV of the Maharashtra Recognition of Trade Union 2 and Prevention of Unfair Labour Practice Act. The complaints were opposed by the petitioners by filing Written Statement and raising various defences. After recording evidence, the learned Labour Court found that the provisions of Kalelkar Settlement were applicable and hence, the complainants before it (except Yamunabai) were entitled to be brought on C.R.T.E. However, as Smt. Yamunabai was already employed on compassionate ground, she was not given the benefits of reinstatement and all other complainants were given benefit of reinstatement with continuity and 25% back wages. Petitioners then challenged this action by filing Revision under Section 44 of the Act before the Industrial Court vide Revision Nos. 417 to 433, 435, 437 to 453 and 455 to 468 of 2002. All these revisions are disposed of by a common order dated 16.03.2006 by the Industrial Court, Nagpur. The revisions came to be dismissed. This Court thereafter on 21.09.2006 issued notice and granted interim stay of Criminal prosecution instituted by the present respondents for getting the orders of Labour Court in their favour executed. That interim relief continues to operate even today. 3 Shri Kakde, learned A.G.P. contends that the Labour Court could not have considered the entitlement of respondents under Clause 28 of the Kalelkar Settlement. His case is, that the issue ought to have been raised before the Industrial Court and grant of CRTE benefit is not automatic, therefore, the relief as granted is unsustainable. He also points out that effort was made to comply with the provisions of Section 25-F of the Industrial Disputes Act in present matter. In the alternative he also states that there was no plea about absence of gainful employment and no evidence in that respect is lead and thus the relief of grant of 25% back wages has been mechanically granted. He relies upon the judgment of Hon'ble Apex Court in the case of U.P.State Brassware -vrs- Udaynarayan reported at 2006 [1] SCC 479., to argue that as the entitlement to back wages has not been established, grant of that relief is unsustainable. Shri Naukarkar, learned counsel for respondents point out that the finding of 240 days of continuous service in one year is not in dispute. He further states that the completion of 5 years continuous service in this fashion is also not in dispute and it is an admitted position that the names of respondents were forwarded for bringing them on CRTE as per Clause 28 of the Kalelkar Settlement. In this 4 situation, according to him all the respondents are rightly given the benefits of reinstatement with continuity as they are entitled to the said benefits. His contention is, after applying the above mentioned judgment of Hon'ble Apex Court, the relief of grant of 25% back wages has been granted by the Industrial Court. He further points out that the respondents are reinstated after the judgment of Labour Court in their favour i.e. from 18.10.2002 and grant of stay by this Court is not relevant. He contends that, after that date all the respondents are entitled to full wages till date. Shri Kakde, learned A.G.P. in reply states that as interim order has been passed by this Court which continues to operate even today, there is no question of petitioners paying any salary to the respondents after 18.10.2002 till date. He contends that the Writ Petition deserves to be allowed. The fact that the provisions of Kalelkar Settlement apply to petitioners is not in dispute. It is therefore, obvious that as per Clause 28 thereof, after completion of 5 years of service, post personnel to each complainant before the Labour Court stood created. Said Clause 28 also does not require completion of 240 days of continuation service in each of preceding 5 years. But in this 5 case, it has been proved that respondents completed such continuous service. The effort of petitioners to show compliance with provision of Section 25-F of the Industrial Disputes Act also indicates an indirect admission and completion of 240 days continuous service. Hence, though Shri Kakde, learned A.G.P. has attempted to urge that said finding recorded concurrently by Labour Court and Industrial Court is unsustainable, in Writ jurisdiction I, do not find any perversity or jurisdictional error in the matter. Perusal of the order of the Industrial Court also shows that the Industrial Court has considered the above mentioned judgments in case of U.P. State Brassware, only and has maintained 25% back wages. The illegal termination of respondents has been established. Facts show that they deserved to be brought on CRTE after they completed 5 years of service. I, do not find anything wrong with said grant of 25% back wages. The petitioners have prosecuted the writ petition honestly and bonafidely challenged the order dated 16.03.2006. On 21.09.2006 this Court protected the petitioners from any criminal prosecution and that interim order continues to operate till today i.e. for about 4 years. In this situation, I think that interest of justice can be met with by directing the petitioners to reinstate the respondents with continuity 6 within a period of 4 months from today with 25% back wages till the date of their reinstatement. The impugned judgment of Labour Court dated 18.10.2002 is modified only to that extent. Writ Petition is thus partly allowed, however in the facts and circumstances of the case, there shall be no order as to costs. JUDGE Rgd.