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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO. 8033 OF 2020

Sayyad Jamil Ahmed s/o. Maqbool Ahmed

..

Petitioner

Age. 39 years, Occ. Service,

R/o. Plot No.283, Al-Hilal Colony,

Aurangabad.

Versus

The Joint Director

..

Respondent

Higher Education, Aurangabad Division,

Near Deogiri College,

Aurangabad.

Ms.A.N. Ansari, Advocate for the petitioner.

Mr.Y.G. Gujarathi, AGP for respondent/State.

CORAM

:

N.J.JAMADAR, J.

RESERVED ON

:

23.03.2021

PRONOUNCED ON:

04.05.2021

J U D G M E N T :-

01]

Rule. Rule made returnable forthwith and, with

the consent of the learned Counsels for the parties,

heard finally at the stage of admission.

02]

The challenge in this petition, under Article

227 of the Constitution of India, is to the judgment and

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order dated 29^th February, 2020, passed by the learned

Member, Industrial Court, Aurangabad, in Complaint [ULP]

No.2 of 2014, whereby the preliminary issue as to whether

the respondent is an “industry” came to be answered in

the negative and, resultantly, the complaint filed by the

petitioner/complainant came to be dismissed.

03]

The background facts can be stated in brief as

under :-

a]

On 30^th September, 2011, the complainant was

appointed as a driver to drive the official vehicle of

the respondent, initially for a period of eleven months

on fixed salary of Rs.6000/- per month. The appointment

was renewed by a further term of eleven months by order

dated 1^st September, 2012. It was followed by another

order dated 2^nd August, 2013 for an identical term and

fixed salary.

b]

The complainant thus approached the Industrial

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Court alleging unfair labour practices as described in

Ites 5,6 and 9 of Schedule IV of the Maharashtra

Recognition of Trade Unions & Prevention of Unfair Labour

Practices Act, 1971 [the Act, 1971] with the assertions

that there was a vacant sanctioned post of driver on the

establishment of the respondent. The complainant was

appointed as a driver after subjecting him to driving

test and interview. The work of the driver was of

permanent nature. The complainant worked for more than

240 days continuously with the respondent in each of the

years from his initial appointment. Yet, in order to

deprive the complainant of the status and privileges of a

permanent employee, the respondent continuously kept the

complainant a temporary employee by issuing appointment

orders for 11 months only. The respondent controls and

supervises the higher education in Aurangabad region.

The activities of the respondent fall within the ambit of

section 2[j] of the Industrial Disputes Act, 1947 and,

thus, the respondent is an industry.

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c]

By judgment and order dated 1^st August, 2018,

the learned Member, Industrial Court allowed the

complaint; declared that the respondent committed unfair

labour practices under Items 5,6 and 9 of Schedule IV of

the Act, 1971 and directed the respondent to give

permanency benefits to the complainant from the date of

filing of complaint.

d]

The respondent challenged the said order before

this court in Writ Petition No.2066 of 2019. By judgment

and order dated 19^th September, 2019, this Court partly

allowed the petition, and the order passed by the

Industrial Court dated 1^st August, 2018 was quashed and

set aside and the Complaint [ULP] No.2 of 2014 was

restored to the file of the Industrial Court. It was

inter alia directed that the Industrial Court shall frame

and try the issue as to whether the complainant proves

that the respondent is an industry under section 2[j] of

the Industrial Disputes Act, 1947.

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e]

Post remand, the learned Member, Industrial

Court, in conformity with the order of this Court framed

and tried the preliminary issue as to whether the

respondent is an industry. The learned Member, Industrial

Court was persuaded to enter a finding that the

complainant failed to prove that the respondent is an

industry a