1 UNREPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.851 OF 2002. 1. The State of Maharashtra. 2. Executive Engineer, Employment Guarantee Scheme, Division Ahmednagar, Ahmednagar-Aurangabad Road, Ahmednagar. ... Petitioners. Versus Raosaheb Gangadhar Badhe Age major, Occ.Nil, R/o Godegaon, Tal.Shrirampur, Dist. Ahmednagar. ... Respondent. ... Mr.K.M.Suryawanshi, A.G.P. for the petitioners. Mr.P.B.Shirsath, advocate for the Respondent. ... CORAM : V.R.KINGAONKAR,J. Date : 09.07.2009. ORAL JUDGMENT 1. By this petition, the petitioners challenge the judgment and order dated 7.5.1999, 2 rendered by the learned Labour Court, Ahmednagar, in Reference (IDE) No.75/1995, whereby the Respondent was directed to be reinstated in service within one month from date of publication of the award alongwith continuity of service. 2. Indisputably, the Respondent was appointed as Mustering Assistant and was working as such since 1.6.1976 till 30.4.1986. He asserted that he had worked for more than 240 days continuously in the year preceding to his termination. He alleged that he was illegally terminated from service without following due procedure. He alleged that the petitioner did not issue any notice of termination nor one month's salary in lieu of notice was given to him. Consequently, he urged for reinstatement in service. His application was referred by the Deputy Commissioner, Nasik under sub-section (1) of Section 10 and sub-section (5) of Section 12 of the Industrial Disputes Act, 1947 to the Labour Court inasmuch as the attempt to make reconciliation had failed. The learned Judge of the Labour Court held that termination of the 3 Respondent was illegal. 3. Heard learned A.G.P. Mr.Suryawanshi, and Mr.Shirsath, learned advocate for the Respondent. 4. Mr.Suryawanshi, would submit that the exparte award was passed by the learned Judge of the Labour Court because the Respondent did not join in the office of the Executive Engineer, Sangamner Division, though he was working as Mustering Assistant in the said Division. He would submit that the Executive Engineer (EGS), Ahmednagar Division was not a proper party before the Labour Court. He contended that the impugned award is illegal inasmuch as the Respondent was a temporary employee working on establishment of a Special Scheme which can not be treated as Industry within the meaning of Section 2(j) of the Industrial Disputes Act, 1947. He seeks to rely on a common judgment rendered by this Court in a batch of Writ Petitions Nos.703/97, 946/95, 986/95, 4789/95, 5445/95, 1403/96, 2737/96, 3286/96, 3307/96, 4186/96 and 4490/96. 4 5. The fact that the Executive Engineer, Sangamner was not joined as a party is not of much significance. For, the Executive Engineer of Ahmednagar Division, which is the main Division, was a party to the proceedings. It also appears that attempt was made for reconciliation. The Labour Judge has mentioned in the impugned judgment that the Deputy Commissioner of Labour reported failure of the reconciliation proceedings. In other words, there was sufficient notice to the concerned agency of the EGS about the claim put forth by the Respondent. The Executive Engineer of Ahmednagar Division could have called for necessary details from the Sangamner Office of the EGS. The Sangamner Office of the EGS is not a separate entity as such and is part of the Division of District Ahmednagar. It is pertinent to note that after receiving notice there was no justification to remain absent before the Labour Court and as such the exparte award can not be said to be out-come of any fraud committed by the Respondent. 5 6. True, the EGS can not be regarded as an Industry within the meaning of Section 2(j) of the Industrial Disputes Act. It is true that a Single Bench of this Court held that the Mustering Assistants were not entitled to seek reinstatement in service. However, in a similar case another Single Bench of this Court in "Chief Executive Officer, Zilla Parishad, Ahmednagar Vs. Daulat Narsingrao Deshmukh and another" 2001 (2) Mh.L.J. 543, held that the scheme for absorption of Mustering Assistants, drawn under the Government Resolution dated 1.12.95 as well as Government Resolution dated 21.4.1999 can be considered in view of parity. It appears that the Government has evolved a scheme for absorption of the Mustering Assistants. The learned A.G.P. states that approximately 3000 and some odd Mustering Assistants have been already absorbed as per the said scheme. It appears that the eligible persons are being considered for the benefit under the said scheme. 7. The Respondent can not claim right to any post as such because EGS is not an Industry. 6 Therefore, direction of the Labour Court to reinstate him in the service is quite contrary to the law. His case may be considered by the Government and if he is found eligible for absorption under the norms contained in the Government Resolution mentioned herein above then he may be absorbed. Still, however, the impugned judgment and award is unsustainable. 8. In the result, the impugned judgment and award is quashed. The Respondent may submit representation for the purpose of absorption under the scheme evolved by the Government and the same shall be duly considered. If he is found eligible for benefit of the scheme then his case may be processed in accordance with the Government Resolution. The petition is accordingly disposed of. C.A.No.5862/2005 is also disposed of. (V.R.KINGAONKAR,J.) Authenticated Copy (Pvt.Secy.to Hon'ble Judge) asp/office/wp85102 7