1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 5600 OF 2009 (The Executive Engineer & Anr. vs. Duryodhan D. Nagalwade) 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 01, 2010. Heard Shri Mujumdar, learned AGP for the petitioners and Shri Bhure, learned counsel for the respondent. Civil Application No. 514 of 2010 explaining delay and laches is accepted. The learned AGP has pointed out that the learned Member of Industrial Court on 26.06.2008 has reversed the judgment of Labour Court, Bhandara, dated 26.07.2007 and has granted relief practically of reinstatement and full back wages though the provisions of Kalelkar Settlement are looked into for that purpose. He points out that in earlier round of litigation, the Labour Court at Bhandara has expressly recorded a finding that as employee has not completed 240 days of service in one year, there is no violation of Section 25F of Industrial Disputes Act, 1947 (hereinafter referred to as the Act). However, it then noted that as the petitioners did not prepare any seniority list, they could 2 not establish that the respondent was junior most person removed from the service and, therefore, violation of Section 25G of the Act had been established. Because of this, the Labour Court on 10.01.2002 had granted relief of reinstatement without back wages. This judgment was challenged by the petitioners as also by employee in Revision Nos. 56/2002 and 57/2002 and on 26.07.2004, Industrial Court set aside that judgment and remanded the matter back for fresh hearing. The Labour Court delivered fresh judgment on 26.07.2007 and dismissed the complaint. That judgment has been interfered with only because of Clause 28 of Kalelkar Settlement. Shri Bhure, learned counsel, on the other hand, points out that the Courts have found that the respondent was in service from 1979 and did complete five years of service in 1984 and hence he was borne on C.R.T.E. Because of that, his subsequent termination had been found to be bad and he has been reinstated with continuity and all consequential benefits. The learned Member of Industrial Court in revisional jurisdiction has taken note of Clause 28 of Kalelkar Settlement and has granted benefit of CRTE to the respondent. The question is whether it was open to the Industrial Court to do so but then no material is placed on record to point out any prejudice caused to the petitioners because of that exercise. The facts show that the respondent employee had completed five years 3 service in 1984 and his name should have been brought on CRTE in 1984. The termination of his service is, therefore, found to be vitiated by Industrial Court. In view of the arguments advanced by the respective parties, it is not necessary for this Court to go into more details of this controversy. The facts show that the order of termination has been set aside. As termination was challenged, the Industrial Court could have granted relief of reinstatement. Accordingly that relief has been granted. But then there is further direction to calculate monetary benefits of respondent from 05.01.1993 according to his CRTE status and to pay those benefits accordingly. It is apparent that the back wages could not have been allowed in the guise of CRTE payment. Labour Court had dismissed the complaint and the Industrial Court has not considered the aspect of availability of gainful employment or otherwise. In this situation, only the operative clause 6 of the judgment of Industrial Court is modified and the petitioners are directed to calculate his monetary benefits from 05.01.1993 and to fix it accordingly on the date of judgment delivered by Industrial Court i.e. 26.06.2008. However, the arrears for the period from 05.01.1993 till 26.06.2008 are not payable to the respondent and arrears for the period from 26.06.2008 onwards shall be paid to him in accordance with law. Writ Petition is thus partly allowed. Rest of 4 the judgment of the Industrial Court dated 26.06.2008 is maintained as it is. Rule accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs. JUDGE *GS.