:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3877 OF 1997 WRIT PETITION NO. 3877 OF 1997 WRIT PETITION NO. 3877 OF 1997 Kurduwadi Municipal Council ] Kurduwadi, Taluka Mhada, ] District Solapur, Through its ] Chief Officer ]..Petitioner versus Ashok Murlidhar Palange ] Residing at Post Road, Khatik ] Gully, Kurduwadi, Taluka Mhada ] District Solapur ]..Respondent Mr. T. R. Yadav i/b. Mr. Avinash Fatangare for the Petitioner. Mr. S. G. Kudle i/b. Mr. A. R. Metkari for the Respondent. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. DATE : 3RD FEBRUARY, 2009 DATE : 3RD FEBRUARY, 2009 DATE : 3RD FEBRUARY, 2009 ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : . Heard learned counsel for the parties. 2. The petitioner has challenged the Order of the Industrial Court directing reinstatement with backwages to the respondent. 3. The respondent worked as Octroi Peon w.e.f. 20.3.1992. He filed a complaint under the MRTU & :2: PULP Act praying for permanency. Pending this complaint, the petitioner terminated his service w.e.f. 1.7.1994. The complaint was accordingly amended. After hearing the submissions the Industrial Court has directed reinstatement with backwages. 4. The Industrial Court found that the respondent has worked for a requisite number of days. The respondent prayed for a direction to the petitioner to produce muster registers, which are in their exclusive custody for the period 20.3.1992 to 17.6.1994. However, no muster rolls were produced. On the contrary, the Chief Officer of the petitioner in his cross examination admitted that the petitioner maintained and preserved muster rolls and wage registers, in which the attendance of the respondent had been marked. The Industrial Court has come to the conclusion that the respondent has worked for adequate number of days and has rendered continuous service from 20.3.1992 till the date of termination i.e. 1.7.1994. 5. The learned counsel for the petitioner has not been able to point out any infirmity such as want of evidence or of improper inference from facts :3: by the Industrial Court. The learned counsel however strongly submitted that the Industrial Court ought not to have granted the relief of reinstatement to the petitioner because the respondent cannot be said to have been validly appointed as peon by following the procedure prescribed for selection of peons. The learned counsel relied on the judgment of Division Bench of this Court reported in 2008 III CLR 151 State of 2008 III CLR 151 State of 2008 III CLR 151 State of Maharashtra & Anr. vs. Pandurang Sitaram Jadhav Maharashtra & Anr. vs. Pandurang Sitaram Jadhav Maharashtra & Anr. vs. Pandurang Sitaram Jadhav holding that the employees who were not appointed to sanctioned posts and in accordance with the procedure prescribed for appointments are not entitled to permanency rights. In the present case according to the learned counsel for the petitioner, the respondent is not shown to have been appointed in accordance with the procedure for appointment of peons and therefore the respondent could not have been reinstated with backwages. 6. At the outset, it must be noticed that the respondent had initially claimed permanency rights after he was terminated. During the pendency of the proceedings, he amended his complaint and claimed that the termination was illegal and therefore he is entitled to be reinstated. However, apparently the :4: Industrial Court has declared that the respondent is entitled to permanency and is entitled to reinstatement. The learned Industrial Court has not given any specific declaration why the termination is illegal. The learned counsel for the respondent submitted that the termination was ex facie illegal because it was made during the pendency of the complaint and in violation of the status quo order but it is not possible to see any discussion on this point in the judgment. 7. Turning back to the main question argued on behalf of the petitioner, it is apparent from the Order that the learned Industrial Court rejected the petitioner’s contention that the respondent is not entitled to regularisation since he has not been appointed in accordance with the procedure for appointment of peons on the ground that the petitioner failed to prove the procedure that has been prescribed for selection of the post in question. The learned counsel for the petitioner submitted that in the absence of the respondent having made any plea that he was appointed after following the prescribed procedure it was not necessary for the respondent to establish to the contrary. This submission is not correct. The :5: petitioner wanted to establish that the respondent has been appointed without following the procedure prescribed by law, it was therefore necessary for the petitioner to prove that this was so. The burden of proof clearly lay on the petitioner under Section 102 of the Evidence Act. In any case the petitioner in fact pleaded that the respondent was not appointed in accordance with the prescribed procedure and was therefore bound to establish that fact. It also appears from the judgment that the petitioner did try to establish the fact, but failed to do so. The learned Industrial Court has observed that the petitioner produced circular of the State Government dated 18.3.1994. In the circular a list of posts which fall within the purview of State Selection Board for the purposes of appointment was shown under Annexure ’B’ and the list of posts not falling within the purview of the State Selection Board was shown in Annexure ’C’. However, for reasons best known to them the petitioner did not produce the said Annexure ’B’ and ’C’ from which it could have been established, if true, that the appointment to the post of peon fall within the purview of the State Selection Board for which the procedure was prescribed. The Industrial Court has observed that in the absence of any evidence it was :6: not possible to uphold the petitioner’s contention that the appointment of the respondent was made on adhoc basis and by way of a stop gap arrangement. Even before this court, the petitioner has not produced the circular with the relevant Annexures from which the procedure for appointment of the respondent could have been determined. The finding of the Industrial Court is not liable for interference on this ground. 8. However, it appears that the Order of the learned Industrial Court suffers from a serious infirmity, in that, the court has granted a declaration that the termination of the services of the respondent on 1.7.1994 is bad in law and therefore he is liable to be reinstated in service. There is however no discussion and the reasons why the Industrial Court has come to such a conclusion. It is not possible, to ascertain why the Industrial Court has held that the services of the respondent were terminated illegally. It is possible that the termination may have been illegal for violation of Section 25G, 25H of the Industrial Disputes Act or even because it was contrary to an order of status quo said to have been granted by the Court for whatever reason. The Industrial Court was bound to :7: have discussed the reason and come to a definite conclusion. That not having been done, I am of view that the order of reinstatement is not sustainable. 9. Having regard to the over all circumstances of the case, I am of view that the matter is liable to be remanded back to the Industrial Court for fresh adjudication in accordance with law, the impugned order is therefore set aside. The matter is remanded back to the Industrial Court for a fresh decision. Parties shall be at liberty to amend their pleadings and lead such evidence as may be advised on both the aspects i.e. (i) procedure for appointment of peons at the relevant time, and (ii) the facts leading to the termination of the respondent. The Industrial Court shall also make an enquiry into the respondent’s entitlement to back wages in accordance with law. The respondent shall not be disturbed from his service on account of any of the facts pertaining to the present dispute. The Industrial Court is directed to decide the matter as early as possible, not later than 12 months from the date the parties appear before it. Parties are directed to appear before the industrial Court on 16.3.2009. Rule disposed of accordingly. :8: (S. A. BOBDE, J.) (S. A. BOBDE, J.) (S. A. BOBDE, J.)