The right of re-employment can be recognized as flowing from the Model Standing Orders, independent of the provisions of Section 25F and Section 25H of the Industrial Disputes Act, 1947.

JUDGMENT

A. S. Chandurkar, J. - In these Letters Patent Appeals the common judgment of learned Single Judge in Writ Petition Nos.3160 and 3337/2001 decided on 23/09/2010 is under challenge. Both the appeals can be conveniently decided by this common judgment.

2. For sake of convenience the facts of Letters Patent Appeal No.86/2011 are being referred to. It is the case of the respondent No.1-complainant that he was appointed on temporary basis as a Wireman being semi-skilled worker on the basic salary of Rs.200/-. Various appointment orders on temporary basis for a period of three months at a given point of time were issued to the complainant, the first appointment being from 17/12/1992 and the last engagement ending on 08/08/1994. According to the complainant the appellant-employer was an Engineering Industry in which about 500 employees were working continuously. The employer was covered by the provisions of the Model Standing Orders framed under the Maharashtra Industrial Relations Act, 1946. The work on the post of workman on which the complainant was engaged was always available with the employer. After terminating the services of the complainant the employer continued employing other employees on the same post and then proceeded to retain some of them who were junior to the complainant. It is the case of the complainant that when his services came to be terminated he had completed 240 days of continuous service in the preceding year and he was therefore entitled to be paid retrenchment compensation under Section 25F of the Industrial Disputes Act, 1947 (for short, the Act of 1947). Since there was non-compliance with the aforesaid mandatory provisions, the complainant filed a complaint under Section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short, the Act of 1971) alleging commission of an unfair labour practice under Item-9 of Schedule-IV to that Act. It was also his case that the seniority list as required to be maintained was not maintained. A waiting list as required to be maintained under Clause 4D of the Model Standing Orders was also not maintained. The employer ought to have complied with the provisions of Section 25H of the Act of 1947 thereby giving preference to the complainant while recruiting any other person on the same post. The complainant accordingly sought necessary relief in the said complaint.

3. The employer filed its written statement opposing the complaint. It was stated that the engagement of the complainant was of a purely temporary nature with his engagement coming to an end automatically in terms of the order of appointment. The engagement was for temporary period with a view to consider the suitability of the employee engaged. It was denied that the complainant had completed 240 days of continuous service. All other allegations relating to non-compliance of Clause 4D of the Model Standing Orders as well as failure to maintain the seniority list were denied. It was also denied that provisions of Section 25H of the Act of 1947 were attracted. According to the employer on 30/04/1994 the services of the complainant were sought to be engaged but the complainant refused to accept the offer on the ground that he was not being offered permanent appointment. It was thus submitted that the complaint was liable to the rejected.

4. The parties led evidence before the Industrial Court which after considering the same recorded a finding that the complainant had worked for a continuous period of 240 days in the preceding year. The relief of regularisation and permanency could not be granted by the Industrial Court as the order of termination was required to be challenged before the Labour Court which was not so done. It was then found that in view of provisions of Section 25H of the Act of 1947, there was a right of re-employment in favour of the complainant. The evidence in that regard led by the complainant was sufficient to grant that relief and