1 W.P.6220.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6220 OF 2010 Maharashtra Rajya Kapus Utpadak Panan Mahasangh Marayadit, Pradhan Karyalaya, Nagpur, Through its Managing Director. ..PETITIONER. VERSUS Sheshrao Sanduji Jogdand, Age 51 Years, Occup.: Service, R/o Saroday Nagar, Sailu, Tq. Sailu, District Parbhani. ..RESPONDENT ... Shri.S.T.Shelke,Advocate for Petitioner. Shri.P.B.Rakhunde,Advocate holding for Shri.P.P.Deshpande,Advocate for Respondent. ... CORAM: A.V.NIRGUDE, J. DATE : 30TH MARCH, 2011. ORAL JUDGMENT : 1. Rule. Rule is made returnable forthwith. With the consent of the learned counsel for the parties, the present Writ Petition is taken up for final hearing at the stage of admission. 2. This Writ Petition is filed against the judgment and order dated 10th March, 2010, passed by the learned Member,Industrial Court, Jalna, in Complaint (ULP) NO. 35 of 2008. The petitioner herein was original respondent, 2 W.P.6220.10 whereas respondent was original complainant. 3. The respondent-workman(Ori. Complainant) had filed this complaint alleging that he is a workman and was awarded punishment by the petitioner-Original respondent, pursuant to an unfair labour practice. The petitioner- Ori. respondent filed Written Statement and also filed an application saying that the respondent-workman is not a workman, but was working in Managerial capacity, under the provisions of Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practice Act, 1971 (for short “MRTU & PULP Act, 1971”). They urged the Court at the interim stage that, the Court should decide the issue “as to whether respondent-original complainant is a workman or not?”. Despite of such request made to the Court, the Court admittedly did not decide as to whether this would amount to preliminary issue, and whether such issue should be decided as preliminary issue. 4. The learned Judge eventually framed issues in this case, but admittedly, did not frame the issue in respect of status of the respondent as to whether he was workman or not. The petitioner-original respondent did not make any attempt to seek correction in the issue/s that were framed, and which were used for recording the evidence. After recording of the evidence, the impugned Judgment and order was passed. 3 W.P.6220.10 5. The order, obviously is vitiated because important issue between the parties has remained undecided. But such error was committed mainly because of the petitioner’s negligence in bringing to the notice of the Court below that important issue has not been framed. The case deserves to be remanded back to the lower Court. However, the petitioner-respondent should be saddled cost of Rs. 5000/-(Rupees Five Thousand) to be paid to the respondent- Ori. Complainant. 6. The costs shall be deposited in the Lower Court. The Rule is made absolute in terms of following order. ORDER (I) The impugned Judgment and order dated 10.03.2010, passed by the learned Member, Industrial Court, Jalna, in Complaint (ULP) No. 35 of 2008 shall stand set aside on the petitioner's paying coast of Rs.5000(Rs. Five thousand) to the respondent on or before 18th April,2011. (II) The case shall then stand remanded back to the Lower Court and the Lower Court shall frame the necessary issue/s and then permit the parties to lead their evidence on the newly framed issue/s. (III) Rest of the evidence given by the parties shall remain on record and shall be used for deciding the case afresh. Sd/- [ A.V.NIRGUDE, J.] MTK ok 4 W.P.6220.10