(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 4384 OF 2008 1. Sardar s/o. Maruti Anuse, Age : Major, Occupation : Service as a Junior Engineer, M.I.D.C., R/o. Bajajnagar, Waluj, Aurangabad. 2. Pramod s/o. Bhanudas Magare, Age : Major, Occupation : Service as a Technical Assistant, M.I.D.C., R/o. Dada Colony, Aurangabad. 3. Daulat s/o. Kanhuji Gange, Age : Major, Occupation : Service as a Steno-Typist, M.I.D.C., R/o. Gadiya Vihar, Aurangabad. 4. Sunil s/o. Shahuraj Waghmare, Age : Major, Occupation : Service as a Steno-Typist, M.I.D.C., R/o. MIDC Employees Colony, Railway Station Road, Aurangabad. 5. Sunil s/o. Bhagwanrao Aher, Age : Major, Occupation : Service as a Fitter, M.I.D.C., R/o. MIDC Employees Colony, Chikalthana, Aurangabad. (2) 6. Shashikant s/o. Arjunrao Kamble, Age : Major, Occupation : Service as a Steno-Typist, M.I.D.C., R/o. MIDC Colony, Railway Station Road, Aurangabad. 7. Vinod s/o. Keshav Satbhadre, Age : Major, Occupation : Service as a Electrician, M.I.D.C., R/o. At Post : Sukhapuri, Taluka : Ambad, District : Jalna. 8. Santosh s/o. Soma Chavan, Age : Major, Occupation : Service as a Pump Operator, M.I.D.C., R/o. Warwandi, Taluka : Paithan, District : Aurangabad. 9. Sandip s/o. Narayan Harane, Age : Major, Occupation : Service as a Technical Assistant, MIDC, R/o. Ambad, District : Jalna. 10. Gulab s/o. Poma Rathod, Age : Major, Occupation : Service as a Surveyor, M.I.D.C., R/o. MIDC Employees Colony, Railway Station Road, Aurangabad. 11. Govardhan s/o. Shridhar Jare, Age : Major, Occupation : Service as a Pump Operator, M.I.D.C., R/o. M.I.D.C. Employees Colony, Chikalthana, Aurangabad. (3) 12. Datta s/o. Uddhavrao Sanap, Age : Major, Occupation : Service as a Pump Operator, M.I.D.C., R/o. M.I.D.C. Employees Colony, Paithan, Taluka : Paithan, District : Aurangabad. 13. Sanjay s/o. Ramnath Waghmare, Age : Major, Occupation : Service as a Pump Operator, M.I.D.C., R/o. MIDC Employees Colony, Chikalthana, Aurangabad. 14. Ravindra s/o. Murlidhar Hake, Age : Major, Occupation : Service as a Pump Operator, M.I.D.C., R/o. At Post Adgaon (Bk.), Taluka & District : Aurangabad. .. Petitioners. versus 1. The State of Maharashtra, through the Secretary (Industries), Government of Maharashtra, Mantralaya, Mumbai-32. 2. The Chief Executive Officer, M.I.D.C., "Udyog Sarthi", Mahakali Gumpha Road, Marol Industrial Area, Andheri (East), Mumbai-93. .. Respondents. ....................... (4) Mr. A.G. Kanade, Advocate, for the petitioners. Mr. S.K. Tambe, Assistant Government Pleader, for respondent no.1. Mr. S.S. Dande, Advocate, for respondent no.2. ...................... CORAM : B.R. GAVAI & N.D. DESHPANDE, JJ. DATE : 7TH OCTOBER 2009. ORAL JUDGMENT (Per B.R. Gavai, J.) : 1. Rule. Rule made returnable forthwith. Heard by consent. 2. By way of present petition, the petitioners are seeking a writ of mandamus directing the respondents to confirm the services of the petitioners on the selected posts with retrospective effect i.e. on the date on which they have completed probation period. 3. The undisputed facts are as under : (a) All the petitioners are duly selected on various posts by the respondent no.2. It is also not in dispute that the appointment of the petitioners is pursuant to the due selection process, as adopted by the respondent no.2. The selection process was initiated in pursuance to the advertisement issued on 1st March 2004. The appointment orders of the petitioners were issued between 30th June 2004 to 9th July 2004. (5) (b) It is also not in dispute that all the petitioners have satisfactorily completed their probation period. 4. In the reply filed on behalf of respondent no.2, the respondent no.2 has not disputed regarding the due selection of the petitioners and then satisfactory completion of the probation period. The only reason given in the affidavit in reply, for non-confirmation of the services of the petitioners, is the order passed by the learned Member of the Industrial Court, Mumbai, dated 6th June 2005. It is stated that the learned Member of the Industrial Court, vide the said order, has directed the said respondent, not to confirm or make permanent the employees employed vide the advertisement Annexure "E" pending the disposal of the complaint. 5. It appears that the said complaint, being Complaint (ULP) No. 57/2005, is filed by the M.I.D.C. Employees' Union at Thane. It is the contention of the said complainant Union, that the members of the said Union have been working for number of years on various posts, as Rojandari employees. It is also case of the said complainant, that the resolution was passed by the respondent no.2 to make the members of the Union as permanent employees. In the said complaint, it is submitted that though various circulars have been issued to regularize the employees working on Rojandari basis, the said circulars are not implemented and, as such, employer has indulged into unfair labour practice. Along with the said complaint, an application under Section 30(2) (6) of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971, has been filed wherein an interim relief has been sought claiming a direction to the respondents to make permanent to the employees whose names are mentioned in Annexure "A" (in the said complaint) on the vacant posts. It appears that during the pendency of the said application under Section 30(2), an issue was raised regarding appointment of the present petitioners. The respondent, M.I.D.C., had specifically stated that the petitioners were appointed in pursuance to a special drive for filling the backlog in the reservation of Scheduled Caste and Scheduled Tribes. The learned Member of the Industrial Court, Mumbai, vide the said order dated 6th June 2005, has directed the respondents not to confirm or make permanent the employees employed vide the advertisement Annexure "E" pending disposal of the complaint. 6. It is to be noted that the present petitioners were not impleaded as party respondents in the said complaint by the complainant. We are afraid, as to whether the Industrial Court could have passed such an omnibus order without there being even necessary parties present before it. As already discussed herein above, the petitioners are appointed after following due selection process and even according to the respondent employer, they have completed their probation period satisfactorily. We are of the considered view, that the learned Member of the Industrial Court could not have passed the order that has been passed vide order dated 6th June 2005. It is a settled law that an order, adverse to the interest of a party, cannot be passed without hearing the party concerned. In any event, if the complainant succeeded in the said complaint, the final relief that could have been granted by the (7) Industrial Court was granting permanency to the members of the complainant Union. We find that since the petitioners were appointed after following due selection process and had completed their probation period successfully, by an omnibus order, the respondent Corporation could not have been directed not to confirm their services. 7. On a query, as to why the said order was not challenged by the respondent Corporation, Mr. S.S. Dande, learned Counsel appearing for the respondent Corporation, states that the lawyer who was appearing in the matter on behalf of the Corporation had died and, as such, the matter could not be prosecuted further. 8. We find that in the peculiar facts and circumstances of the case, the petitioners are entitled to the relief claimed in the petition. 9. Hence, the petition is allowed. The respondent no.2 Corporation is directed to confirm the services of the petitioners from the date on which each of them has successfully completed their probation period and grant them all benefits consequential to such confirmation. 10. Rule is made absolute in the aforesaid terms. There shall be no order as to costs. ( N.D. DESHPANDE ) ( B.R. GAVAI ) JUDGE JUDGE bgp/wp4384