1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. LETTERS PATENT APPEAL NO. 201 OF 2010 IN WRIT PETITION NO. 6432 OF 2006 (The Vansaurakshak, Van Vibhag and others .v. Abdul Ajij Abdul Latif) Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. Shri S.R. Deshpande, Advocate for the appellants. Shri P.D. Meghe, Advocate for the respondent. CORAM : D.B. BHOSALE AND PRASANNA B. VARALE, JJ. 21ST JULY, 2010. P.C. (Prasanna Varale, J) Heard learned Counsel for the parties. By the present Letters Patent Appeal, the appellants have impugned the judgment and order passed by the learned Single Judge in Writ Petition No. 6432 of 2006 dated 17th July, 2009 thereby allowing the writ petition partly. In the writ petition, the order passed by the Industrial Court, Jalgaon in Complaint ULP No. 829 of 1996 dated 25.11.2005 was challenged. The Industrial Court, by order dated 25.11.2005 allowed the Complaint ULP No. 316 of 1996 (Old Case No. 829 of 1996) and directed the appellants (respondents before the Industrial Tribunal) to regularize the services of the respondent- complainant before the Industrial Court on the post of driver and further directed to pay all the monetary and consequential benefits within a period of three months from the date of order. The learned Single Judge, by judgment and order dated 17th July, 2009 confirmed the order of the Industrial Court and directed the petitioner to regularize the services of the respondent on the post of driver with effect from 26.07.1996 whereas the other part of the order of the Industrial Court by which the monetary benefits were granted to the respondent was set aside. Shri S.R. Deshpande, the learned Counsel appearing on behalf of the appellants vehemently submitted that the learned 2 Single Judge as well as the learned Member, Industrial Court ought to have considered that the respondent was appointed as a daily wager and was not appointed on the post of driver and as such regularizing the services of the respondent is unsustainable. He further submitted that the learned Single Judge as well as the Member of the Industrial Court failed to see that the post of driver is a Class-III post and the same was required to be filled in by the selection board by following due procedure of law. Per contra, Shri P.D. Meghe, the learned Counsel appearing on behalf of the respondent submitted that the grounds urged by the appellants before this Court were not at all urged before the learned Industrial Court. He further submitted that the respondent was appointed in the year 1990 as a daily rated labour but in fact from the initial appointment till filing of the complaint, the respondent was working as a driver with the appellants- authorities. Learned Counsel for the respondent further submitted that from the documentary evidence as well as the oral evidence, it was brought to the notice of the learned Member, Industrial Court that the respondent was working as a driver and the respondent was placed at the top in the seniority list of the driver prepared by the appellants-authorities and in spite of these facts, the respondent was denied the regularization in the service which itself was sufficient to prove that the appellants-authorities have committed unfair labour practice under item 6 and 9 of Schedule IV of the MRTU & PULP Act, 1971. Shri Meghe, learned Counsel further submitted that the learned Industrial Court as well as the learned Single Judge, after considering the matter in its proper perspective, arrived at just conclusions and no fault can be found with these conclusions. We have given our anxious consideration to the submissions advanced by the learned Counsel for the parties. Perusal of the order passed by the learned Industrial Court shows that the respondent was appointed in the establishment of the appellants-authorities on 23.07.1990 and since then he was working as a driver. It was also reflected from the record which was placed before the learned Industrial Court further show that 3 the authorities have issued certificate to the respondent to show that the respondent was working as a driver and also recommendations to the superior authorities for the regularization of the respondent and grant of benefits of permanency. The documents further reflected that the respondent was placed at the top in the seniority list of the driver maintained by the appellants-authorities and these facts were not denied by the appellants-authorities either by producing contra documentary evidence or oral evidence. It is also not denied by the appellants-authorities that the appellants-authorities have extracted the work of driver from the respondent right from his initial appointment till filing of the complaint though he was appointed as a labour. It is also not denied by the appellants- authorities that though the respondent has worked with the appellants-authorities for more than 240 days in a calender year and though the post of driver was in existence and though the respondent was placed at the top in the list, neither he was regularized in the service nor other benefits were granted to him. We also find that the appellants-authorities approached to the Industrial Court by filing an application for review of the judgment dated 25.11.2005 and the same was also dismissed by order dated 24.08.2006. The grounds which were urged before us by the learned Counsel for the appellants were also urged before the learned Single Judge namely the respondent was appointed as purely temporary basis and working as a casual labour. The learned Single Judge while dealing with the contentions raised by the appellants observed thus :- “On an appreciation of the evidence tendered by the parties on record, the Industrial Court held that the respondent continuously worked with the petitioners since the year 1990 as a driver and it was necessary for the petitioners to have regularized the services of the respondent as driver. The Industrial Court held that the entire documentary evidence produced by the respondent on record showed that the respondent was not appointed as a casual labourer, but was working as a driver since the date of his 4 appointment i.e. 23.08.1990. The documents also showed that the petitioners were in need of the services of the respondent. Since the documents on record clearly showed that the posts of drivers were in existence at the relevant time and were also vacant, the Industrial Court held that the petitioners were liable to regularize the services of the respondent on the post of driver with effect from 26.07.1996 i.e. the date of filing of the complaint. The order passed by the Industrial Court is impugned in the instant petition.” Learned Counsel for the appellants has placed strong reliance on the judgment of the Apex Court in the matter of State of Karnataka .v. Umadevi (reported in 2006(4) SCC 1). In our considered opinion, the judgment of the Apex Court in Umadevi's case is not applicable to the case at hand in view of the peculiar facts of the case at hand. In the case at hand, it is clear that the respondent was continuously working as a driver since the initial appointment in the year 1990 till filing of the complaint i.e. nearly 20 years and in spite of the post of driver available with the appellants and the same was advertised during pendency of the petition, the respondent was not considered solely on the ground that he was overage. It is also not in dispute that though the respondent was appointed as a labour, the appellants-authorities have extracted the work of driver from the respondent for more than 20 years without giving him the benefits of the regularization in the service or status of permanency. Learned Single Judge, by appreciating the facts of the case as well as the judgment of this Court in Writ Petition No. 1666 of 1997 observed thus :- “The order passed by the Industrial Court, Jalgaon, on 25.11.2005 cannot be faulted with as the petitioners had not raised the pleas which are raised by the petitioners before this Court and the Industrial Court has rightly held on the basis of the evidence tendered by the parties that the respondent had continuously worked as a driver with the petitioners since the year 1990 and it was necessary for the petitioners to have regularized the services of the respondent on the post of driver at least from the 5 date of filing of the complaint. The impugned order appears to be just and proper and cannot be interfered with in the facts and circumstances of the case. The case of the respondent is also supported by the judgment rendered by this Court in Writ Petition No. 1666/1997, on 20th of February, 2009. Though the services of the respondent are liable to be regularized with effect from 26.07.1996, in the facts and circumstances of the case, it would not be proper to grant the monetary benefits, to the respondent with effect from 26.07.1996. The respondent is also ready to given up that claim.” In our considered opinion, the view taken by the learned Single Judge is just and proper. We see no reason to take any different view from the view taken by the learned Single Judge. In our opinion, the judgment passed by the learned Single Judge impugned in this appeal requires no interference. In the result, the appeal is dismissed. JUDGE JUDGE *rrg.