vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4976 OF 2008 WRIT PETITION NO.4976 OF 2008 WRIT PETITION NO.4976 OF 2008 The State of Maharashtra ... Petitioner V/s. Shramik General Kamgal Union ... Respondent Mr.D.A. Patil, AGP, for Petitioner Mr.R.L. Nerlekar for Respondent CORAM: SMT.NISHITA SMT.NISHITA SMT.NISHITA MHATRE, J MHATRE, J MHATRE, J. DATED: SEPTEMBER 1, 2008 SEPTEMBER 1, 2008 SEPTEMBER 1, 2008 P.C.: P.C.: P.C.: . The petitioner has challenged the award in Reference (IT) No.16 of 1997. The Reference was made for adjudication on 17.1.1997 for reinstatement of 172 workmen with continuity of service and full backwages from 1.7.1986, alongwith ancillary benefits to which they were entitled. 2. The Tribunal has directed reinstatement of 58 workmen w.e.f. 1.7.1986. However, no backwages have been directed to be paid as the Tribunal was of the opinion that the litigation was pending for too long and in view of the fact that the workmen had agreed to give up their claim for backwages on condition that they were reinstated with continuity of service. : 2 : 3. The Tribunal has considered the evidence on record and has held that the petitioner had produced at a chart alongwith Exhibit C13 which indicates that most of the employees had completed 240 days in service in the preceding 12 months and, therefore, it was obligatory on the part of the petitioner to comply with the mandatory provisions of section 25F and 25G of the Industrial Disputes Act. While terminating their services, the Tribunal had observed that the petitioner had not complied with Rule 81 of the Industrial Disputes (Bombay) Rules requiring the employer to put up the seniority list before terminating the services of the workmen. Apart from this, the Tribunal has noticed the evidence on record where the petitioner’s witness has admitted that the workmen were terminated and contract labour has been employed instead of those workmen in order to cut the costs. The Tribunal has rightly held that the services of the workmen cannot be terminated in this fashion without following the provisions of law. There is sufficient work available for the workmen, the employer cannot get rid of them by deciding to employ contract labour instead. Admittedly all the workmen who have been awarded reinstatement had completed 240 days in service. Therefore, the termination of service ought to have been preceded by a notice u/s 25F and by the : 3 : offer of retrenchment compensation u/s 25F. The Tribunal has rightly in my opinion allowed the Reference. 4. The learned AGP submits that the Tribunal has not considered whether the Petitioner is an industry or not and that issue goes to the very root of the matter. He relies on the judgment in the case of State of Maharashtra & Ors. v/s. Presiding Officer, Industrial Court, Civil Lines, Nagpur & Ors., 2006(5) Mh.L.J. 838. 2006(5) Mh.L.J. 838. 2006(5) Mh.L.J. 838. In this judgment, a learned Single Judge was dealing with a matter under the MRTU & PULP Act which permits the filing of a complaint directly to the Court. The learned Judge has in those circumstances held that it was necessary for the workman to assert in his complaint that he was employed in an industry and that such a jurisdictional fact must be properly pleaded. 5. In the present case, the Government has referred the industrial dispute for adjudication before the industrial tribunal, obviously after being satisfied, prima facie, that the Aarey Milk and Agriculutral Division is an industry. The petitioners did not choose to challenge the making of the Reference at any point of time. Even in their written statement, they have not pleaded except for a stray sentence that since they are engaged in agricultural activities they are not covered : 4 : by the definition of industry. Nor have the petitioners made any grievance while the reference was being heard that the Tribunal had not framed an issue as to whether the workmen were employed in an industry. The statement of claim has described the work engaged in by the employer. The Tribunal has correctly appreciated the pleadings and evidence on record and held that the workmen are entitled to reinstatement with continuity of service. 6. Petition rejected.