1 wp748.11 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 748 OF 2011 _____________________________________________________________________ Office Notes, Office | Memoranda of Coram, | appearances, Court's | Court’s or Judge’s orders orders or | directions and | Registrar's orders | _____________________________________________________________________ Mr. A.S. Shelke, Advocate for the petitioner. Mrs. V.A. Shinde, A.G.P. for respondent nos.1 and 2. Mrs. Dr. Kalpalata Patil Bharaswadkar, Advocate for respondent no.3. 1. Advocate Mr. Shelke appearing for the petitioner- Union has urged that the Industrial Court has erred in co- relating completion of 240 days with unfair labour practices under Item 6 of the Schedule IV of the M.R.T.U. & P.U.L.P. Act. According to him Item 6 is attracted even in absence of proof of completion of 240 days service. In the alternative and without prejudice, learned Counsel for petitioner states that if 52 paid holidays and 3 national holidays are added to days of service put in by the members of petitioner-Union, every year they have rendered 240 days continuous service. Lastly, learned Counsel states that the Industrial Court could have 2 wp748.11 directed the employer to absorb the said six members even against future vacancies. The reliance is placed upon the judgment of this Court reported at " 2000 III CLR 264" ( Burroughs Welcome (I) Ltd., V/s D.H. Ghosle and others) particularly paragraph no.8 to substantiate his contentions. 2. Learned counsel, Advocate Mrs. Bharaswadkar has supported the impugned judgment of the Industrial Court. 3. After hearing respective Counsel, I find that in reported judgment (supra), learned Single Judge has recorded the findings about the availability of work though the workers were discontinued and in that situation, item 6 is found to be attracted. Here at least arguments advanced before the Industrial Court has emphasis on completion of 240 days and applicability of the Model Standing Orders. The contentions that completion of 240 days of continuous service is not relevant for attracting of Item 6 of Schedule IV of M.R.T.U. & P.U.L.P. Act does 3 wp748.11 not appear to have been advanced before Industrial Court. In any case, evidence shows that availability of work and employment by rotation, is not brought on record. 4. The provisions of clause 4C of Model Standing Orders apply only when there is proof of completion of 240 days. Here the Industrial Court has recorded the number of days put in by respective employees and in paragraph no.20 by way of specimen number of days of one such employee are looked into. In view of that finding, it was necessary for petitioner to demonstrate how each concerned member had completed 240 days and for that purpose to place relevant data before this Court. That has not been done. Therefore, neither Item 6 nor Item 9 of Schedule IV of the M.R.T.U. and P.U.L.P. Act, is attracted here. 5. Perusal of the complaint also shows that the Government has framed scheme vide resolution dated 19.10.1996 for regularisation. In view of the judgment of 4 wp748.11 the Hon'ble Apex Court reported at "A.I.R. 2006 Supreme Court 1806 (Secretary, State of Karnataka and others V/s Umadevi and others), it is apparent therefore that the petitioner ought to have proved entitlement of said members as per that scheme. That exercise has not been undertaken in this matter. 6. I therefore do not find any jurisdictional error or perversity in the approach of the learned Industrial Court. 7. However, prima facie, it appears that the said six members of petitioner-Union are working since 1996 and even prior thereto. If any scheme is framed by the Government is applicable to them, with liberty to petitioner to knock the door of Industrial Court on the basis of such scheme, the present Writ Petition is disposed of. No costs. (B.P. DHARMADHIKARI) JUDGE. 01.02.2011 gas/wp748.11