1 wp 3054.95 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3054 OF 1995 The State of Maharashtra through Deputy Director Groundwater Surveys and Dev. Agency, Aurangabad. .. Petitioner Versus 1. Jagannath S/o Dhondiram Jawale, Age : 25 Years, Occu. : Nil, R/o Samta Nagar, Kranti Chowk, Aurangabad. 2. Learned Presiding Officer, Labour Court, Aurangabad. 3. Learned Member, Industrial Court, Aurangabad. .. Respondents Shri K. B. Choudhari, Addl. G. P. for the Petitioner/State. Shri N. L. Jadhav, Advocate for the Respondent No. 1. CORAM : S. V. GANGAPURWALA, J. DATE : 26TH AUGUST, 2011. ORAL JUDGMENT : . Rule. Rule made returnable forthwith. With the consent of parties taken up for final hearing. 2 wp 3054.95 2. The present respondent No. 1 had filed Complaint ULP No. 01/1988 seeking reinstatement in service with continuity and backwages on the ground that in the year 1987 the respondent No. 1 was illegally terminated from the service. The Labour Court allowed the said complaint and directed the employer to reinstate the respondent No. 1 with continuity of service and backwages. Aggrieved thereby the employer/present petitioner filed revision before the Industrial Court. The Industrial Court dismissed the revision and confirmed the judgment of the Labour Court. Aggrieved thereby the present writ petition is filed. 3. Shri Choudhari, the learned Additional Government Pleader submits that the appointment of the respondent No. 1 was temporary in nature and the appointment was not in pursuant to any other selection process. In view of that the respondent No. 1 cannot claim any right. The learned A. G. P. relies on the judgment of the Apex Court in a case of M/s. Hariyana State F. C. C. W. Store Ltd. Vs. Ram Niwas and another reported in 2002 (5) Judgments Today S. C. 106 and the judgment of the Apex Court in a case of Secretary State of Karnataka and others Vs. Umadevi and others reported in (2006) 4 S. C. C. 01. According to the A. G. P. the employees 3 wp 3054.95 junior to the respondent No. 1 are absorbed in service. The learned A. G. P. further contends that no proper opportunity was given to the petitioner to contest the matter. The matter had proceeded ex-parte. The learned Additional Government Pleader in the alternate contends that the matter may be remanded. 4. Shri Jadhav, the learned counsel for the respondent No. 1 submits that the Industrial Court has taken into consideration the fact that ample opportunity was granted to the petitioner, but still the petitioner did not file any reply nor led any evidence. The petitioner's case has gone uncontroverted. The respondent No. 1 was appointed in the year 1982 and was continuously working. Even the experience certificate was issued by the petitioner which are not disputed by them. The respondent No. 1 has worked continuously for more than 240 days in the year. While terminated the respondent No. 1, the procedure as is required under the Industrial Disputes Act is not followed. According to the learned counsel the Apex Court in a case of Maharashtra State Road Transport Corporation Vs. Casteribe Rajya P. Karmchari Sanghatana reported in 2009(6) Bom. C. R. 605 has interpreted the judgment of Umadevi referred supra and has held that the said judgment 4 wp 3054.95 may not be applicable to the proceedings under M.R.T.U. and P.U.L.P. Act. The respondent No. 1 has worked continuously for more than five years and as such the termination is illegal. The work is available with the petitioner. 5. With the assistance of learned counsel I have gone through the judgments, the affidavit filed on record and the judgments cited. 6. The fact that the respondent No. 1 was appointed in the year 1982 and continuously served with the petitioner till 1987 upon technical break is not disputed. Even the petitioner has given the names of the employees who are absorbed by the petitioner who were junior to him. The experience certificates are filed on record issued by the petitioner to the respondent No. 1, which says that since 11th November, 1982 the present respondent No. 1 has continuously worked with the petitioner as watchman on daily wages by giving a technical break. The learned Single Judge of this Court in Writ Petition No. 1075/1991 at its Bench at Nagpur has confirmed the judgment passed by the Industrial Court in similar set of facts. The work was of permanent nature and the main casual worker cannot be deceived. If the said workers work continuously for years 5 wp 3054.95 together and the presumption would be that such worker is engaged neither to do the work of occasional nature or casual nature, but the work is of permanent nature. It would be clear that the respondent No. 1 has worked for more than 240 days in a year prior to the filing of the complaint. It is also clear that the petitioner has not followed the procedure as is laid down U/Sec. 25(F) of the Industrial Disputes Act. With the available material on record it cannot be said that the Court below have committed any error while passing order granting reinstatement with continuity. As far as backwages are concerned, the initial burden lies upon the employee to show that he was not gainfully employed during the said period. There is nothing on record to show such in this regard. When the initial burden itself is not discharged, the burden does not shift on the petitioner. In the light of that, I quash and set aside the impugned order to the extent of backwages. However, the petitioner shall reinstate the respondent No. 1 forthwith with continuity in service and pay him the appropriate remuneration to which he is entitled to, in view of the judgments passed by the Courts below. The Rule is accordingly made partly absolute. No costs. Sd/- [ S. V. GANGAPURWALA, J. ] bsb/Aug. 11