1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 489 OF 2010 (State of Maharashtra & Ors. vs. Yavatmal Zilla Shetmazoor and Vankamgar) and WRIT PETITION NO. 602 OF 2010 (State of Maharashtra & Ors. vs. Yavatmal Zilla Shetmazoor and Vankamgar) with WRIT PETITION NO. 603 OF 2010 (The Dy. Director of Horticulture, Yavatmal & Anr. vs. Yavatmal Zilla Shetmazoor and Vankamgar) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. APRIL 12, 2010. Heard finally S/Shri Mujumdar, Kankale and Adgokar, learned AGP for the petitioners in respective writ petitions and Shri Kadu, learned counsel for the respondent in all the petitions. The Industrial Court has granted permanency without recording any finding as to the availability of permanent vacancies. Shri Kadu, learned counsel has stated that necessary evidence about availability of vacancies was produced before the Industrial Court. He invites attention to an advertisement appearing in Newspaper “Namo Maharashtra” dated 03.11.2007. He points out that as per said advertisement 15 posts of Peons/ Watchmen and four posts of Helpers were sought to be filled in. He also invites attention to the judgment of the Hon'ble Apex Court in Maharashtra SRTC vs. Casteribe Rajya Parivahan Karmchari Sanghatana, reported at 2 (2009) 7 SCC 556, in support of his contention. The learned AGPs, on the other hand, for the petitioners relies upon very same judgment to urge that until and unless there is a finding of availability of vacancies, the declaration of unfair labour practice under item 6 or 9 could not have been granted. Shri Kadu, learned counsel in his submissions invited attention to the fact that in earlier ULP Complaint No. 15 of 1999, the Labour Court has already granted reinstatement with continuity to all the employees and accordingly they are in service. He states that in such situation when work is being taken from them for all these years, availability of work is established and not only this, the principle of equal pay for equal work must apply. With the assistance of learned counsel, I have perused the impugned judgments delivered by Industrial Court. The judgments are in three separate complaints and complaints sought relief for about 58 employees. The Industrial Court has granted declaration of unfair labour practice only under item 6 and has directed the petitioners to absorb all the complainants permanency in service with effect from the date of filing of complaints. The judgment, however, nowhere shows reference of advertisement or then availability of any vacancy. The finding under item 6 has been reached only because long continuation of employment. Because of the judgment of the Hon'ble Apex Court, it is clear 3 that the said finding is unsustainable but then the position remains that the employees are continued in service after 1999 till date and hence for long time. Shri Kadu, learned counsel has stated that even today, most of the employees are in service. In this situation, I am inclined to give one opportunity to the respondents to prove before the Industrial Court the availability of vacancies. The respondents can file necessary documents and lead additional evidence before the Industrial Court and to prove that vacancy. The petitioner – employer shall also be at liberty to prove the absence of vacancies. For said purpose, the impugned judgments of Industrial Court are set aside. The Complaints ULP are restored back to the file of Industrial Court for taking fresh decision in accordance with law. In the meanwhile, the petitioners shall not disturb the status and working of the respondents. The Industrial Court shall decide the Complaints ULP as early as possible and in any case by 31st December 2010. Writ Petitions are disposed of. Rule accordingly. No order as to costs. JUDGE *GS.