WP/1505/1999 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1505 OF 1999 Ramchandra Shivling Kumbhar & Ors. ... Petitioners V/s. Executive Engineer, Public Works Division No.2, Pandharpur, Dist. Solapur & Ors. ... Respondents Ms. Seema Sarnaik for the Petitioners. Mr. P.G. Sawant, AGP, for the Respondents. CORAM : SMT. NISHITA MHATRE, J. DATE : 7 TH DECEMBER, 2010. ORAL JUDGEMENT : 1. This Writ Petition has been preferred by four workmen whose complaints, being Complaint (ULP) Nos.9, 10, 11 and 12 of 1990, have been dismissed by the Industrial Court, Solapur on 27th August, 1998. The petitioners have filed Complaints (ULP) Nos.9, 10,11 and 12 of 1990 before the Industrial Court contending that the respondents had committed unfair labour practices under Items 5, 6, 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, (for short “the MRTU & PULP Act”). It was the case of the petitioners that they were direct employees of the Public Works Department and that they had not been confirmed in service although they had worked for several years. According to the petitioners, the respondents had not made them permanent in service with a view to deprive them of their status of permanent employees. They also contended that there were other workmen similarly situated who had been made permanent. WP/1505/1999 2 2. The respondents contested the complaints by contending that the petitioners were employed under the Employment Guarantee Scheme and, therefore, were not entitled to be made permanent in service. It was contended that the Employment Guarantee Scheme, which is framed under the Maharashtra Employment Guarantee Act, 1977, does not require the workmen who are employed under the said Scheme to be made permanent. 3. The Industrial Court on the basis of the oral and documentary evidence led before the it found that the respondents had not committed any unfair labour practice as the petitioners were employed under the Employment Guarantee Scheme. 4. Ms. Sarnaik, the learned Advocate for the petitioners, submits that the evidence on record discloses that the petitioners were employed since 1984, directly with the Public Works Department, and their names were borne on the Nominal Muster Roll which is maintained for direct employees of the Public Works Department. She submits further that although the petitioners may have been asked to work on the Employment Guarantee Scheme, they were never employed under the Employment Guarantee Scheme. According to her, several procedures and formalities have to be completed by a person who is to be employed under the Employment Guarantee Scheme which the petitioners were not required to comply with at any point of time. She, therefore, submits that these petitioners were never working under the Employment Guarantee Scheme. WP/1505/1999 3 5. Mr. Sawant, the learned AGP for the respondents, has produced several documents on record in this Court including the musters, i.e. Nominal Muster Rolls, for the period from 12th May, 1986 onwards. According to him, the petitioners were employed under the Employment Guarantee Scheme from 1989 and, therefore, could not be termed as direct employees of the Public Works Department. He submits that the Labour Court has not committed any error by concluding that there was no unfair labour practice on the part of the respondents. 6. With the assistance of the learned Advocates for the parties, I have perused some of the documents produced by the learned AGP for the respondents. Admittedly, these documents were not produced before the Industrial Court by the respondents. However, it appears, prima facie, that the names of the petitioners are borne on the Nominal Muster Roll even for the month of February, 1988. There are several such documents indicating that the names of the petitioners are borne on the Nominal Muster Rolls for the earlier years. 7. In these circumstances, in my opinion, it would be appropriate to remand the complaints to the Industrial Court for a fresh hearing. The respondents shall be permitted to file the compilation of documents which is produced in Court today, before the Labour Court. The petitioners may also produce any other documents on record to establish their case that they were employees of the WP/1505/1999 4 Public Works Department and not working under the Employment Guarantee Scheme. Parties are also permitted to lead oral evidence, if necessary. 8. Mere production of the documents, as aforesaid, will not mean that the documents have been proved in accordance with law. It would be necessary for the parties to prove the documents, as required under law. 9. The Writ Petition is allowed. 10. Rule made absolute accordingly. 11. The Complaint (ULP) Nos.9, 10, 11 and 12 of 1990 are remanded to the Industrial Court, Solapur to decide the same in accordance with law. While deciding the Complaints, the Industrial Court will bear in mind, the distinction between the employees who are employed on the Employment Guarantee Scheme and those who are employed under the Employment Guarantee Scheme. 12. The Complaint (ULP) Nos.9, 10, 11 and 12 of 1990 shall be disposed of by the Industrial Court, Solapur by 31st August, 2011. 13. The parties to be present before the Industrial Court, Solapur on 10th January, 2011.