MUNICIPAL COUNCIL HINGANGHAT Vs. SANJAY DHANRAJ YENORKAR

JUDGEMENT

(1.) Rule returnable forthwith. Heard finally by consent of parties.

(2.) By the present petition, the petitioner has questioned the validity of judgment and order dated 15/4/2005 in Complaint U. L. P. No. 316/2000, passed by the Industrial Court, Nagpur. This petition is treated as one under Article 227 of the Constitution of India looking to the nature of the order made by the industrial Court.

(3.) Facts :- The respondent had filed complaint before the Industrial court under section 28 read with Item Nos. 5, 6 and 9, Schedule IV of the m. R. T. U. and P. U. L. P. Act, 1971. He averred in his complaint that he was initially appointed as a peon on 4-10-1994. On 28-2-1997 he was appointed to work as Chowkidar in the school on night duty and since then he has been working with the petitioner. Council on daily wages. On the date of filing of the complaint, he has been working as a mate. He then submitted that he completed more than 240 days of service and in accordance with Model Standing Orders rule 4-C, he became permanent. He has been continuously working and was entitled to be conferred with the status of permanent employee. He then submitted that juniors to him were made permanent in service by the petitioner intentionally ignoring his claim. The continuance of the respondent for years together in service as daily wager amounts to unfair labour practice. The petitioner filed written statement before the Industrial Court and set up a defence that the respondent worked in Social Forestry Scheme, implemented by the petitioner-Municipal Council and the said scheme was closed down in the year 1995 and as such he was not employee of the Municipal Council. It was then stated that he was engaged as Chowkidar during night and there is no sanctioned post of Chowkidar in primary school. It was then stated that upon completion of government scheme, the provisions of industrial law do not apply. It was then submitted that Octroi department of Municipal Council was abolished w. e. f. 1-5-1999 and several class-IV employees were in excess. There is no post available with the petitioner for absorbing the complainant-respondent particularly because the respondent was a scheme worker. It was then stated that in the absence of any sanctioned post, it was not possible to make the respondent permanent. It was then stated that the establishment expenditure of the petitioner-Council exceeded 42% and financial position of the Municipal Council was not sound. The industrial Court framed five issues. The respondent-complainant tendered his evidence on affidavit and he was cross-examined. The respondent filed several documents on record and proved them and the same were exhibited. The respondent tendered his evidence and categorically stated that he is a handicapped person with 40% handicap and there was reservation provided by the Government for handicapped persons in the establishment of the petitioner-Municipal Council. He produced certain Government resolutions on record. There was absolutely no challenge in the cross-examination to his handicap and his registration in the employment exchange in that category. The learned industrial Court heard parties and passed the impugned judgment and order. Hence, this petition.