1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1227 OF 2009 Prakash Krishnarao Kulkarni, age: 59 years, Occ: Retired, R/o Rameshwar Nagar, Navin Colony Block No.6, Bhusawal, Tal.Bhusawal, District Jalgaon. Petitioner Versus The Superintending Engineer, Maharashtra State Electricity Distribution Company Ltd., Vidyut Bhavan, MIDC, Jalgaon, Tq. & District Jalgaon. Respondent WITH WRIT PETITION NO.1229 OF 2009 Prakash Krishnarao Kulkarni, age: 59 years, Occ: Retired, R/o Rameshwar Nagar, Navin Colony Block No.6, Bhusawal, Tal.Bhusawal, District Jalgaon. Petitioner Versus The Superintending Engineer, Maharashtra State Electricity Distribution Company Ltd., Vidyut Bhavan, MIDC, Jalgaon, Tq. & District Jalgaon. Respondent Mr.K.C.Sant, advocate for the petitioner. Mr.A.S.Bajaj, advocate for the Respondent. 2 CORAM: R.M.BORDE, J. DATE : 30th March, 2010. ORAL JUDGMENT.: 1 Heard Shri Sant, learned Counsel for petitioner and Shri Bajaj, learned Counsel for Respondent. Rule, made returnable forthwith and heard finally by consent of learned Counsel for respective parties. 2 Petitioner is aggrieved by order dated 10.12.2008, passed by learned Member, Industrial Court, Jalgaon in Revision Application (ULP) No. 33/2008, confirming the order dated 05.09.2008, passed by Labour Court, Jalgaon in Complaint (ULP) No.33/2007. Petitioner also raises exception to the order dated 10.12.2008, passed by learned Member, Industrial Court, Jalgaon in Complaint (ULP) No.46/2007. 3 As far as Writ Petition No.1227/2009 is concerned, the issue, which arose for consideration before Labour Court is, as to whether petitioner, who was working as Divisional Accountant with Respondent-Company, can be categorized as “workman” within meaning of Section 2(s) of Industrial Disputes Act, 1947 (for short, “the Act”). On consideration of the material placed before Labour Court and after recording evidence of the parties, Labour Court recorded a finding that petitioner herein does not fall within category of “workman” as defined in Section 2(s) of the Act and as such, the Court has no jurisdiction to try and entertain the Complaint. The order passed by Labour Court has been confirmed by Industrial Court in Revision 3 Application (ULP) No.33/2008. 4 It is needless to go into factual aspects involved in the matter. Learned Counsel appearing for the petitioner contends that petitioner could lay hand on some material which goes to conclusively establish that petitioner shall have to be categorized as “workman” within meaning of Section 2(s) of the Act. The material annexed with Civil Application presented before this Court was not available when the matter was taken up for consideration before the Labour Court. It is the contention of petitioner that said material was placed before Revisional Court, however, Revisional Court refused to take into account additional material placed on record by petitioner before Revisional Court. Petitioner contends that on the basis of material in the form of documentary evidence placed on record, it clearly goes to establish case of the petitioner that he being “workman” has been admitted by the Respondent. 5 Learned Counsel for Respondent has controverted the contention and submits that Respondent does not admit that petitioner- employee fall within the category of “workman” as defined in Section 2(s) of the Act. 6 It is not necessary to go into merits of the contentions at this stage. It is stated that petitioner has already retired on attaining age of superannuation. The Complaint, that was filed before the Labour Court, was in respect of termination of services of petitioner. If the Complaint is considered favourably, petitioner would be entitled to certain monetary benefits. In the facts and circumstances of this case, it would be desirable to remit the matter back to the Labour Court for fresh consideration. The Labour 4 Court shall have to be directed to take into account the material placed on record by the petitioner with Civil Application No.13348 of 2009 in Writ Petition No.1227 of 2009 and decide the issue afresh in respect of contention of the petitioner that he being “workman” within meaning of Section 2(s) of the Act. It would be open for the petitioner to lead any further evidence and it would be open for the Respondent to lead evidence in rebuttal before the Labour Court. The evidence, which is already placed on record by the parties, shall be taken into account by the Labour Court while rendering decision on the issue. 7 So far as Writ Petition No.1229 of 2009 is concerned, it is stated that separate Complaint, being Complaint (ULP) No.46/2007, is presented to the Industrial Court, wherein also, the issue, as to whether petitioner is a “workman” has fallen for consideration. The Industrial Court has dismissed said Complaint on the ground that petitioner does not fall within category of “workman” within meaning of Section 2(s) of the Act. As the matter decided by Labour Court is being remitted back, for reconsideration to the Labour Court, the matter i.e. Complaint (ULP) No.46/2007, decided by the Industrial Court, wherein identical issue came up for consideration, the Industrial Court shall have to reconsider same. The decision of the Labour Court, on the issue as regards status of the petitioner, would be taken into account by the Industrial Court while considering the issue afresh. 8 In the result-, (i) Writ Petition No.1227 of 2009 deserves to be allowed and same is accordingly allowed. The order dated 10.12.2008, passed by learned Member, Industrial Court, Jalgaon in Revision Application (ULP) No. 33/2008, confirming the order dated 05.09.2008, passed by Labour 5 Court, Jalgaon in Complaint (ULP) No.33/2007, is quashed and set aside and the matter is remitted back to Labour Court, Jalgaon, for fresh consideration. The Labour Court shall consider preliminary issue raised in the matter and render decision thereon in accordance with observations made in this judgment. The Labour Court is directed to decide the Complaint as expeditiously as possible, preferably within three months from today. In view of this, pending Civil Application stands disposed of. R. & P. be sent back forthwith to the concerned Court. (ii) Writ Petition No.1229 of 2009 is also allowed. The order dated 10.12.2008, passed by learned Member, Industrial Court, Jalgaon in Complaint (ULP) No.46/2007, is quashed and set aside. The Industrial Court is directed to reconsider the issue in the light of the observations made in this judgment. In view of this, pending Civil Application stands disposed of. R. & P. be sent back forthwith to the concerned Court. (R.M.BORDE) JUDGE ******* adb/wp122709