1 ra241.10 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD REVIEW APPLICATION NO. 241 OF 2010 IN WRIT PETITION NO. 2560 OF 1994 _____________________________________________________________________ Office Notes, Office | Memoranda of Coram, | appearances, Court's | Court’s or Judge’s orders orders or | directions and | Registrar's orders | _____________________________________________________________________ Mr. D.R. Shelke, Advocate for the review applicant. Mr. S.K. Shelke, Advocate for respondent No.1. Mr. D.R. Korde, A.G.P. for respondent no.2. 1. Heard Advocate Mr. D.R. Shelke for review applicant and Mr. S.K. Shelke for respondent no.1. Learned A.G.P. appears for respondent no.2-Labour Court. The review sought is of the judgment dated 15th July, 2010 passed in Writ Petition No. 2560 of 1994. 2. Shri. D.R. Shelke for review applicant contends that Tapi Corporation was constituted in the year 1997 and it has to shoulder all liabilities of State Government. Hence, Tapi Corporation ought to have been impleaded as party in the Writ Petition No. 2560 of 1994, which was then pending. Neither the State Government which was aware of this fact nor the respondent no.2-employee pointed out this development to this Court, and hence, impugned 2 ra241.10 judgment came to be delivered without hearing applicant- Tapi Corporation. 3. He has relied upon the judgment of the Division Bench of this Court reported in "2009(2)Bom.C.R. 268" (Godavari Marathwada Patbandhare Vikas Mahamandal V/s State of Maharashtra and another) and some other Judgments to urge that the necessity of joining such Corporation in proceedings of present nature is already well settled. 4. Without prejudice to this contention and on merits, the learned Counsel has urged that as per the notice of retrenchment dated 15.06.1985 served by State Government on respondent no.1, the termination was on account of closure of work of project and hence, it did not constitute retrenchment as defined in Section 2(OO) of Industrial Disputes Act. He has further urged that in any case there was no question of violation of Section 25F and in that situation, the provisions of Section 25G are also not relevant. 5. Lastly and without prejudice to these two contentions, learned Counsel has argued that the respondent no.1 had hardly put two and half years of service on daily wages in the establishment of seasonal nature and hence he could not have been given relief of reinstatement that too with continuity and full back wages. 3 ra241.10 6. Advocate Shri. S.K. Shelke for respondent no.1 has urged that the Labour Court delivered the award on 28.02.1994 in Reference (IDA) No. 10 of 1991. Till delivery of award and for more than three years thereafter the project was with the State Government and applicant- Tapi Corporation has been constituted in 1997. The petitioner before this Court in Writ Petition No. 2560 of 1994 was the State Government and burden was upon the State Government to point out to this Court that it has transferred its liability to Tapi Corporation. When the State Government prosecuted the matter before this Court, it is apparent that the State Government was defending and protecting the interest of Tapi Corporation. He has urged that the judgment, on which the reliance is placed by Advocate Shri. D.R. Shelke for review applicant is not relevant. 7. He further states that the plea of closure of project was not before the Reference Court and this Court also was not called upon to consider that plea, when it delivered judgment under review on 15th July, 2010. According to him, when violation of Sections 25F and 25G established, grant of relief of reinstatement, is in accordance with law. Learned Counsel further urged that in any case, it can not be subject matter for review and applicant has to take further appropriate steps to challenge that judgment. 4 ra241.10 8. Constitution of Tapi Corporation is after three years of award delivered by Labour Court. That award was impugned in Writ Petition No. 2560/1994 and about after three years of filing of Writ Petition, Tapi Corporation came to be constituted. Thus, the State Government which was prosecuting that Petition, ought to have pointed out this development to the High Court, that has not been done. Tapi Corporation was aware that it has inherited all liability, it could have itself moved this Court in pending Writ Petition. It also chose not to take any such steps. No fault can be found with the employee- respondent no.1. Thus, for inaction or omission on the part of original petitioner and Tapi Corporation, no prejudice can be suffered by the respondent no.1. 9. Judgments on which the learned Counsel has placed reliance, are delivered in the proceedings under the Land Acquisition Act wherein the responsibility to pay the compensation was upon the shoulders of such acquiring body. Here, at the time of termination, the State Government was the employer and even when the Writ Petition was filed, the State Government remained as employer. The change of employer has taken place subsequently and such change of employer and liabilities of successor employers are taken care of under the provisions of Industrial Disputes Act. The said Judgments which are relied upon, have no bearing on the present controversy. 5 ra241.10 10. Learned Counsel for the applicant may be right in contending that the employee who has rendered service for about two and half years, is not entitled for relief of full back wages and reinstatement. However that can not be the ground for review as such contention is open only in further challenge to the Judgment of which the review is sought. 11. Perusal of the order of termination dated 15.06.1985, does not show that work of project was closed. Similarly, in Writ Petition there is no ground that the plea of closure of project was taken before the Labour Court and the Labour Court has not looked into the same. The plea of closure basically raises some question of facts and here the Labour Court after appreciating the findings noted that there was violation of provisions of Section 25F and 25G of the Industrial Disputes Act, which is possible only in case of an ongoing Industry. I find that this Court can not interfere in this jurisdiction and the applicant has got remedy of challenging the judgment delivered on 15.07.2010. 12. In view of this, I find Review Application No.241 of 2010 misconceived. Same is accordingly rejected. (B.P. DHARMADHIKARI) JUDGE. 13.01.2011 gas/ra241.10