The denial of the right of compassionate appointment arising out of the award of 1979 amounted to an Unfair Labour Practice under the MRTU and PULP Act.

A.H. JOSHI, J.

1. Heard learned Advocates for the parties at length.

2. Admit,

3. Appeal is taken up for final hearing by consent of parties. Perused the record annexed to paper book of LPA.

4. The Appellant has filed present LPA challenging the judgment and order passed by the learned Single Judge of this court thereby partly refusing to grant interim relief while issuing Rule on the Writ Petition.

5. The grounds on which the LPA is preferred, could be conveniently assorted from the appeal memo and oral submissions, and those are summarized as below:—

(a) The award passed in Reference I.D. No. 51 of 1979 had ceased to exist.

(b) The claim of the appellant was refused by the common award rendered in Reference I.D. Nos. 2, 3 and 4 of 1993, which was delivered on 21-2-2005. (The date of notification of award in the official Gazette has not come on record.)

(c) The blanket protection or right of absorption/appointment on compassionate ground which existed in the award in Reference I.D. No. 51/1979 is qualified by the subsequent award and now, absorption/appointment on compassionate ground is available only subject to Government Resolutions/decisions already in vogue, applicable to Government/Semi Government organizations and local bodies.

(d) The award results in pecuniary burden.

(e) There is lack of sanctioned posts.

(f) The posts which were not filled in, have lapsed due to the policy of State and hence, there is no post in existence to appoint the complainant No. 2 on compassionate basis.

6. It is not in dispute that Shri Ganpat Ambekar, the father of the complainant No. 1 and husband of complainant No. 2 was in the employment of the appellant. Ganpat Ambekar retired on account of disability. On the date of retirement, award passed in Reference I.D. No. 51 of 1979 was governing the field. The Reference I.D. Nos. 2, 3 and 4 of 1993 were pending and those references were decided by judgment and award dated 21-2-2005, and award of 1979 ceased to operate only after 21-2-2005.

7. The complaint under M.R.T.U. and F.U.L.P. Act, being Complaint (ULP) No. 111/2003 was filed by the respondents on 28th April, 2003. The foundation of the complaint was right of appointment on compassionate basis which was in existence under the Award of 1979, and employer's failure to implement it, which act amounted to be an unfair labour practice.

8. The crucial pleading is contained in paragraph numbers 3 and 4 of the complaint. It has been met with a cryptic non-descriptive version of an evasive and bare denial as contained in the written statement.

9. The learned Member, Industrial Court, decided the complaint on receiving complainants' evidence on affidavit and after hearing oral submissions of the parties, by judgment and order dated 8th June, 2006.

10. The Industrial Court granted the declaration as regards Unfair Labour Practice and granted relief, the relevant text of which, reads thus:—

“2. It is hereby declared that the respondents have engaged in an unfair labour practice under Item-9 of Schedule IV of the said Act. They are restrained from continuing the same henceforth.

3. The respondents are directed to provide employment to the complainant No. 2 Smt. Chandrakala Piraji Ambekar in Class IV category from the date of filing of complaint i.e. 28-4-2003 without any previous monetary benefits till 8-8-2006 i.e. date of implementation of order.

4. The respondents are further directed to pay the difference of actual paid wages and wages as per Vth Pay Commission including other consequential benefits to the complainant No. 1 Piraji Ganpat Ambekar within the period of three months from the date of order.”

[quoted from operative part of judgment and order of Industrial Court passed in Complaint (ULP) No. 111/2003]

11. On perusal of the judgment of the learned Member of Industrial Court, it is seen that the reasons which are foundation of award are incorporated in sub paragraph of paragraph number 8. The relevant portion is eloquent and it would be useful to ref