1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, NAGPUR BENCH, NAGPUR MISC. CIVIL APPLICATION NO.1042/2007 IN WRIT PETITION NO.5510/2004 (Decided) The Executive Engineer, Maharashtra State Electricity Board, Rural Division, Gorakshan Road, Akola ...Versus... Subhash Mukund Ambekar and another -------------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. -------------------------------------------------------------------------------------------------------------------------------------- [S/Shri K.H. Deshpande & R.E. Moharir, Advs. for applicant] [Shri S.R. Deshpande, Adv. for respdt. No.1] [Smt. K.S. Joshi, AGP for respdt. No.2] CORAM:- A.B. CHAUDHARI, J. DATED :- 20.02.2008 This review petition is directed against judgment and order of this Court dated 10th September, 2007. In support of the review petition, Shri K.H. Deshpande, learned Senior Advocate with Advocate Shri R.E. Moharir made following submissions. (1) The services of original respondent No.1 according to him were terminated in October, 1980 but he filed conciliation proceedings for the first time on 29.4.1991 and thus there being delay of 11 years, the Labour Court ought to 2 have dismissed the reference on that ground. (2) The respondent - employee was always on Nominal Muster Roll (N.M.R.), which is an undisputed fact and in terms of Board's resolution, Nominal Muster Roll (NMR) employee had no right either on post nor has any right to claim reinstatement, as the work performed was purely casual and depending on exigency of work. Therefore, NMR employee cannot claim reinstatement and he is not a workman. (3) Looking to the nature of services of NMR employee, this case can be said to be of non-renewal of contract and, therefore, as per Section 2 (oo) (bb) of the Industrial Disputes Act, 1947 there is no retrenchment. These are the errors which are apparent on the face of record and, therefore, it is necessary to review the said impugned judgment. Per contra, Shri S.R. Deshpande, learned Counsel for the respondent No.1 – employee argued that the ground regarding nature of employment as NMR employee was raised before this Court also but then this Court found that except tendering written statement, no evidence was at all led by the petitioner in spite several opportunities given by the Labour Court and, therefore, there were no proved facts on record and the Labour Court could not have assumed what is being contended now for the first time in the review petition. Delay of 11 years caused has been properly explained 3 in the evidence that was tendered before the Labour Court and the Labour Court has accepted that evidence for the delay. There was no serious challenge on that aspect in the cross- examination much less by tendering evidence by the petitioner. It is now too late in the day to make any such grievance. At any rate, this submission was not made when the writ petition was heard by this Court and consequently this Court had no reason to consider such submission and that cannot be a ground for review. Heard learned Counsel for the rival parties at length. With the assistance of the parties, I went through the documents as well as oral evidence tendered by the respondent No.1 - employee as well as findings recorded by the Labour Court so also the judgment under review. It is not a disputed position that the petitioner filed written statement in the Court and thereafter it completely kept away from the Court though Labour Court granted several opportunities to the petitioner to tender evidence. In other words, there was no evidence on record from the side of the petitioner in support of the submission made before me. The argument that respondent No.1 was an employee on NMR is an admitted position does not take us anywhere in the absence of specific evidence before the Labour Court. Following the judgment of the Hon'ble Mr. Justice B.N. Srikrishna (as he then was), this Court has already taken a view in the case of Kalawati 4 Pandurang Fulzele...Versus...Divisional Controller, reported in 2007 (5) Bom. C.R. 177 that an employee even on NMR is a workman. Paragraph 17 of the said judgment reads as under ; “17. Honourable Mr Justice B.N. Srikrishna (as he then was), an authority on Labour & Industrial Law, thwarted a similar attempt, when it was argued that workers on nominal muster roll are not entitled to protection of the provisions of the Industrial Disputes Act. He said in paragraph 10 in the case of (MSEB Workers Federation, Pune Vs. MSEB & ors), reported in 1995 (II) C.L.R. 588 thus - “Mr Baxi, learned Advocate appearing for the first respondent-Board strenuously contended that the 8 retrenched workmen were N.M.R. employees , who had admittedly put in less than five years' continuous service and, therefore, they were not entitled to get several benefits like permanency and others flowing from permanency. Consequently, in her submission, section 25-G of the Industrial Disputes Act, 1947 itself would not apply to the case of the 8 retrenched workmen. It is not possible to accept this contention. The provisions of section 25-G of the I.D. Act are attracted as soon as 5 a 'workman' is “retrenched” from service after completion of one year's continuous service. That the 8 workmen had completed one year's continuous service is not in dispute. That the situation was one of “retrenchment” is also not in dispute. If that be so, section 25-G of the I.D. Act makes no distinction between permanent or non-permanent employees, but is only concerned with whether the person retrenched is a 'workman' and has completed one year's continuous service within the meaning of section 25-B of the I.D. Act. Further, the expression 'workman' defined in section 2 (s) of I.D. Act, does not make any distinction between a permanent or a nonpermanent employee. The contention, therefore, is unsound and has to be rejected.” (Emphasis supplied) It was for the petitioner first to set up a plea in written statement and then to tender oral or documentary evidence before the Labour Court in support of their alleged plea regarding non-renewal of contract or Section 2 (oo) (bb) of the Industrial Disputes Act. No such plea was ever set up in written statement. When the jurisdiction is with competent Trial Court to hold a full dressed trial, the petitioner could not have kept itself away from the proceedings before the Labour Court and 6 then to raise such a plea for the first time in writ petition or review petition. It is a fact that the plea regarding delay of 11 years in filing reference was not argued before me as can be seen from the judgment under review. For all the above reasons, therefore, I do not find any substance in the present review petition. The same will have to be dismissed. Hence, the Misc. Civil Application (Review) is dismissed with costs quantified at Rs.3,000/- (Rupees Three Thousand Only) payable by review petitioner to respondent No. 1 - Subhash Mukunda Ambekar within a period of ten weeks from today. JUDGE ssw