1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 2903 OF 1994 Ganpat s/o. Deoba Arke, Age 32 yrs., Occu. Service, R/o. Kumbhari Pimpalgaon, Tq. Ambad, Dist. Jalna. ....Petitioner. Versus 1. The Administrator, Command Area Development Authority, Garkheda, Aurangabad. 2. Executive Engineer, Jayakwadi Project Divn. No. 2, Jalna. 3. Dy. Engineer, (SDO), J.W.U.P., Sub Divn. No. 10, Kumbhari Pimpalgaon, Tq. Ghansawangi, Dist. Jalna. 4. The State of Maharashtra, Mantralaya Bombay, Through the Deputy Secretary, Irrigation Department, Mantralaya Bombay - 400032. 5. The Industrial Court, Simila Building, Osmanpura, Aurangabad. ....Respondents. WITH WRIT PETITION NO. 2904 OF 1994 Kamlakar s/o. Bapurao Pujari, Age 41 yrs., Occu. Service, R/o. Kumbhari Pimpalgaon, Tq. Ghansawangi, Dist. Jalna. ....Petitioner. Versus 1. The Administrator, 2 Command Area Development Authority, Garkheda, Aurangabad. 2. Executive Engineer, Jayakwadi Project Divn. No. 2, Jalna. 3. Dy. Engineer, (SDO), J.W.U.P., Sub Divn. No. 10, Kumbhari Pimpalgaon, Tq. Ghansawangi, Dist. Jalna. 4. The State of Maharashtra, Mantralaya Bombay, Through the Deputy Secretary, Irrigation Department, Mantralaya Bombay - 400032. 5. The Industrial Court, Simila Building, Osmanpura, Aurangabad. ....Respondents. WITH WRIT PETITION NO. 2905 OF 1994 Murlidhar Raibhan More, Age Major, Occu. Service, R/o. Kumbhari Pimpalgaon, Tq. Ghansawangi, Dist. Jalna. ....Petitioner. Versus 1. The Administrator, Command Area Development Authority, Garkheda, Aurangabad. 2. Executive Engineer, Jayakwadi Project Divn. No. 2, Jalna. 3. Dy. Engineer, (SDO), J.W.U.P., Sub Divn. No. 10, Kumbhari Pimpalgaon, Tq. Ghansawangi, Dist. Jalna. 4. The State of Maharashtra, Mantralaya Bombay, 3 Through the Deputy Secretary, Irrigation Department, Mantralaya Bombay - 400032. 5. The Industrial Court, Simila Building, Osmanpura, Aurangabad. ....Respondents. Shri. G.M. Jadhav, Advocate for petitioner in all writ petitions. Shri. K.M. Suryawanshi, A.G.P. for respondent Nos. 1 to 5 in all writ petitions. CORAM : R.K. DESHPANDE, J. DATE : 9th July, 2010. ORAL JUDGMNET: 1. All these writ petitions are preferred by employees, challenging the judgment and order dated 14.9.1993, passed by the Industrial Court in complaints (ULP) Nos. 178/1989, 190/1989 and 210/1989, respectively, preferred under section 28 (1) read with Item No. 2, 5, 6 and 9 of Schedule IV of MRTU and PULP Act. The separate complaints filed by the petitioners are dismissed. The complaints before the Industrial Court were that the complainants were employed in the services of respondents on 12.4.1973, 31.12.1975 and 1.1.1976, respectively. All of them were retrenched from the service on 15/16.10.1984. However, subsequently, all of them were reappointed in service. It was the case of the complainants that they have worked for more than 10 years and hence, they are entitled to benefits under the Kalelkar settlement. 4 2. The Industrial Court dismissed the claim of the petitioners, holding that there was break in the services of the petitioners from 15/16th October 1984 till the date of their reappointment on 21.1.1986, 22.1.1986 and 6.12.1985, respectively. It was further held that in order to get the benefit of permanency under the Kalelkar settlement, it has to be shown that 10 years continuous service was rendered by the employees. According to the Industrial Court, the petitioners had failed to establish their 10 years continuous service from the date of their re-appointment. 3. Shri. Jadhav, the learned counsel appearing for the petitioners in all these writ petitions, has urged that some other employees, who were similarly situated and retrenched from service on 15/16th October 1984, were also re-employed after gap of year or more. However, the gap in their service was condoned and they were granted benefits of Kalelkar settlement regarding permanency. He further urged that such a treatment is denied to the present petitioners. Hence, the complaints were filed. 4. With the assistance of the learned counsels for the parties, I have gone through the orders passed by the Industrial Court, which are impugned in all the three writ petitions. The respondents did not file any written statement nor did lead any evidence. The complainants filed their affidavits along with some other documents. The learned counsel 5 for the petitioners has produced a copy of the letter dated 6th of September 1991 in these writ petitions, whereby the break in the services of other employees from 16.10.1984 to 27.1.1985 was condoned. The learned A.G.P. Shri. Suryawanshi has, however, urged that all other employees in respect of whom the Industrial Court delivered the judgment and order dated 16.12.1993, in their complaints were absorbed in the services, whereas the case of the petitioners is that the petitioners were re-employed and that makes the real distinction for granting the benefits of continuity of service and ultimately the permanency in terms of Kalelkar settlement. Shri. Jadhav, the learned counsel for the petitioners has, however, submitted that all those persons, who were granted benefits of Kalelkar settlement by the judgment of the Industrial Court dated 16.12.1993, were also re-appointed and subsequently, the break in their service was condoned. He submits that the question whether the employees are absorbed in services or re-appointed, does not make any difference, when the employer is the State, who has to extend the similar benefits to all similarly situated employees. 5. It seems that the Industrial Court has not considered the judgment and order dated 16.12.1993 passed in Complaint (ULP) No. 72/1988 and other connected complaints. Similarly, what is the effect of order of absorption/condonation of break in service dated 16th of September 1991 produced before this Court by the learned counsel for the petitioners, has also not been considered. The question is, whether 6 the petitioners before this Court are similarly situated to that of the employees, who had filed Complaint (ULP) No. 72/1988 and other connected matters, which was decided on 16.12.1993. These aspects are required to be considered by the Industrial Court. However, it seems that the orders suffer from total non application of mind to the evidence on record. The same, therefore, cannot be sustained. Hence, the matters will have to be remitted back to the Industrial Court for decision afresh. 6. In the result, all these writ petitions are allowed. The Judgments and orders dated 14.9.1993 passed in Complaint (ULP) Nos. 178/1989, 190/1989 and 210/1989 are hereby quashed and set aside. All the complaints are remitted back to the Industrial Court for reconsideration. The Industrial Court shall provide an opportunity to the parties to place on record additional material, if available. The Industrial Court shall also permit the respondents to file their written statement, if it is not filed on record and shall decide the matters afresh in accordance with law, after giving an opportunity of hearing to the parties concerned. Rule is made absolute in these terms. No order as to costs. [ R.K. DESHPANDE, J. ] ssc/wp2903.94