1 unreported IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.4671 OF 1996. 1. The Suptd. Engineer, A'nagar Irrigation Circle, Nagar-Aurangabad Road, Ahmednagar. 2. The Executive Engineer, Urdhwa Pravara Project Divn., At Post Chulewadi, Tq. Sangamner, Dist.Ahmednagar. 3. Sub-Divisional Officer, Urdhwa Prawara Project, Sub-Divn.5. Talegaon, Tq.Sangamner, Ahmednagar. ... Petitioners. Versus Vishwanath Bapu Jondhale, R/o Kokangaon, Tal.Sangamner, Dist. Ahmednagar, At present residing at Upper Pravara Irrigation Colony, At Post Chintalwedhe, Tq.Akole, Dist.Ahmednagar. ... Respondent. ... Mrs.Kalpalata Patil Bharaswadkar, Spl.counsel for the petitioners. Mr.P.L.Shahane, advocate for the Respondent. ... 2 CORAM : V.R.KINGAONKAR,J. Date : 15.02.2010. ORAL JUDGMENT 1. By this petition, petitioners challenge judgment and order rendered by learned Member of Industrial Court, Ahmednagar in complaint (ULP) No.190/1989. 2. The Respondent was working with the petitioners since 21.10.1985. He was continuously working for more than five (5) years and, therefore, was entitled to receive benefit of Kalelkar Settlement (Award). By order dated 27th September 1988 some workers, including the Respondent, were notified as eligible for benefit of Converted Regular Temporary establishment (CRT). The Respondent was directed to be taken on CRT as driver in a regular pay-scale available to the said post. Subsequently, by correction order dated 20.3.1989 (Exh.C) Government issued corrigendum to the earlier communication and directed that instead of absorption of the Respondent on CRT as a driver, the entry shown against his name should be read as "Majoor". 3 Thus, his pay-scale was reduced to the scale of Rs.200-3-230-5-255 Spl.increment-5-280 instead of pay-scale of Rs.260-10-390-15-420- Spl.increment - 15-495. 3. Being aggrieved by such rectification in the Government notification, the Respondent filed complaint (ULP) No.109/1989 before the Industrial Court alleging that he was subjected to Unfair Labour Practice under item Nos.5 and 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 ( For short, MRTU and PULP Act). 4. The learned Member of the Industrial Court found favour with the Respondent and directed that he shall be reinstated as driver on CRT with retrospective effect i.e. 21.10.1985 and shall be paid actual wages payable to such post. 5. The petitioners allege that there was apparent error while issuing the general order regarding conversion of the nature of services of 4 several employees including the petitioner and instead of showing him as "Majoor", erroneously the employment was shown as of driver though he never was employed as a driver. It is the contention of the petitioners that rectification of such factual mistake could be effected at any time because the Respondent was not eligible for appointment as a driver nor had continuously worked for more than 240 days as a driver before issuance of the original notification dated 27.9.1988 (Exh.B). The Respondent, however, contended that he had actually worked as driver and was eligible for employment on CRT as per the said notification. 6. Heard learned counsel for the parties. 7. It is significant to note that the Respondent was initially employed only as a "Majoor". He had worked on establishment of the petitioners as a labour (Majoor). What appears from the record is that he was holding driving license and, therefore, was temporarily required to work as a driver. His services were being 5 utilised only as "Locum" during the leave period of some other drivers. The record shows that he had not worked for more than 240 days preceding to the complaint during the relevant year of 1988. It appears that he had worked only for 138 days between the year 1983 till 1986, intermittently, for some period during the year, and was not originally appointed as a driver on establishment of the petitioners. Needless to say, there was some factual error committed while issuing the notification dated 27th September 1988 (Exh.B). Instead of showing nature of employment as "Majoor" it was erroneously shown as "driver". Obviously, the error could be rectified at the subsequent stage. The regularisation of the services of the Respondent with retrospective effect is impermissible. He was entitled to receive benefit of Kalelkar Settlement but as a Majoor and not as a driver. The Industrial Court committed patent error while holding that he was subjected to Unfair Labour Practices due to the rectification order issued by the Government vide Exh.C dated 20.3.1989. 6 8. Mr.Shahane, learned advocate has placed on record a copy of Government Resolution dated 24.11.2000 which is marked as "X". The Government Resolution purports to show that employees, who have completed five (5) years continuous service will be eligible for the temporary employment on CRT after period of five (5) years. The Respondent was working as driver, no doubt, for some period between 1982 till 1987 and was rightly or wrongly taken on CRT as a driver. He continued to work as such for more than five (5) years after 21.10.1985. Obviously, he is eligible for appointment on CRT w.e.f. 21.10.1990, as a driver. His past services ought to be counted as of "Majoor". Therefore, retrospectivity granted by the Industrial Court is improper. The impugned order will have to be, therefore, interfered with to the extent it is erroneous. 9. In the result, the petition is partly allowed. The impugned order is set aside. Instead of direction to take the Respondent as a driver on CRT with effect from 2l.10.1985, he 7 shall be so treated to have been taken on CRT from 21.10.1990 onwards. If any excess amount is paid to him in the pay-scale of driver for period prior to 21.10.1990 then it shall be adjusted in further payment to which he will be entitled to. Needless to say, he will be entitled to pay-scale as a driver only w.e.f. 2l.10.1990 onwards. The petition is accordingly disposed of. Rule made partly absolute. No costs. (V.R.KINGAONKAR,J.) asp/office/wp467196