Judgment · High Court · 2026

( 1 ) WP 14883 OF 2023.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 14883 OF 2023District : AhmednagarSachin Arun BhingardiveAge : 38 years, Occ: Nil,R/o : Nityaseva Society, Vasant Tekadi,Ahmednagar, Ta. And District Ahmednagar...PETITIONERVERSUS1.The Secretary,Dr. N. J. Paulbudhe Institute of Technology (Polytechnic),Survey No.479/2, At post Narayandoh,Taluka and District Ahmednagar2.The Head Master/Principal,Dr. N.J. Paulbudhe Institute of Technology (Polytechnic),Survey No.479/2, At post Narayandoh,Taluka and District Ahmednagar ...RESPONDENTS-----------------------------------------------------------------------------------------------------------Mr. Santosh S. Jadhavar, Advocate for the PetitionerMr. V. N. Upadhye, Advocate for Respondent Nos.1 and 2-----------------------------------------------------------------------------------------------------------CORAM:AJIT B. KADETHANKAR, J.RESERVED DATE:13.08.2026PRONOUNCED DATE:17.08.2026JUDGMENT :-.The petitioner has filed this writ petition with following prayers :“B) By issuing appropriate writ order or direction, theJudgment and Order dated 17.08.2023 passed by thelearned Member, Industrial Court, Ahmednagar, inComplaint (ULP) No.38/2017, may kindly be quashed ( 2 ) WP 14883 OF 2023.odtand set aside to the extent of operative order clauseNo.3 and 4 with further direction to the respondentsto grant permanency to the petitioner in service fromthe date of initial appointment i.e. from 11.08.2010.C) By issuing appropriate writ order or direction, theComplaint (ULP) No.38/2017 filed before theIndustrial Court Ahmednagar may kindly be allowed.D) By issuing appropriate writ, order or direction, therespondents may kindly be directed to grantpermanency to the petitioner in service on the post ofPeon in respondent No.2 insinuate.E) By issuing appropriate writ, order or direction, therespondents may kindly be directed to pay salary tothe petitioner as per the pay scale applicable for thepost of Peon as per the provisions of MaharashtraEmployees of Private Schools (Conditions of Services)Rules, 1981 with grant of revision in the pay scale asper the 5th Pay Commission and 6th Pay Commissionand to pay arrears of salary accordingly.”2.Rule. Rule made returnable forthwith. At the instance of the parties, thewrit petition is heard for final disposal.3.Subject matter :a)The Petitioner was working with the Respondent – Management as aPeon on a clear and vacant post. Despite the terms and conditions of theappointment and his continuity in service for at least 7 years, the Petitionerwas neither conferred permanency nor was given remuneration in pay scale.Hence he has filed a complaint under Section 28(1) of the Maharashtra ( 3 ) WP 14883 OF 2023.odtRecognition of Trade Unions and Prevention of Unfair Labour Practices Act,1971 (for brevity “the Act”) before the learned Member of the IndustrialCourt, Ahmednagar. During the pendency of the complaint, the Managementterminated the Petitioner. The Petitioner assailed his termination before theSchool Tribunal, where the appeal is under adjudication.b)After hearing the parties, learned Member of the Industrial CourtAhmednagar partly allowed Petitioner’s complaint. It was observed that theRespondent–Management is engaged in unfair labour practices under ItemNos.6, 9 and 10 of Schedule IV of the Act. Directions were given to theRespondents to pay minimum wages to the complainant for a period of threeyears preceding the date of filing of the complaint. Subject matter of the writ petition is “the refusal by the learned Memberof the Industrial Court to grant the relief of permanency.”4.Brief facts :a)It is not a fact disputed by any party that, after following due procedurethe Respondent–Management appointed the Petitioner on ad-hoc basis on thepost of Peon vide appointment order dated 11.08.2010. The Petitioner servedthe Respondent–Management continuously under the said appointment order. ( 4 ) WP 14883 OF 2023.odtb)The petitioner neither received remuneration in pay scale nor benefit ofpermanency was conferred upon the Petitioner despite having continuouslyserved for years together.c)Therefore, the Petitioner filed Complaint (ULP) No.38 of 2017 beforethe learned Member of the Industrial Court, Ahmednagar, under Section 28(1)read with Item Nos.5, 6, 9 and 10 of Schedule IV of the Act. In the complaint,the Petitioner sought a declaration that the Respondent – Management isindulged in unfair labour practices. It was also prayed that the Respondent–Management be directed to confer permanency upon the Petitioner in view ofthe fact that he had long back completed service of 240 days.d)Directions were sought to the respondent management to pay thedifference between the consolidated amount and the applicable pay scale wasalso prayed for.e)The Respondent – Management appeared before the Industrial Courtand submitted its defense thereby denying the averments and the prayersmade by the Petitioner in his complaint.f)During the course of hearing of the complaint, the Respondent –Management even terminated the Petitioner. Hence the Petitioner filed anappeal under Section 9 of the Maharashtra Employees of Private Schools ( 5 ) WP 14883 OF 2023.odt(Conditions of Service) Regulation Act, 1977 (for brevity “the MEPS Act)before the School Tribunal.g)The learned Member of the Industrial Court heard the parties and partlyallowed Petitioner’s complaint. It was declared that the Respondents areindulged in unfair labour practices. The relief of permanency was rejected. Asregards service remuneration, the Petitioner was held entitled only forminimum wages, that too, for the last three years preceding the date of filingthe complaint. Hence, this petition.5.Submissions :a)Mr. Santosh Jadhavar, learned Advocate for the Petitioner submits thatthe learned Member of the Industrial Court failed to consider that thePetitioner has made out a case of permanency. That, the terms of appointmentitself show that the Respondent – Management has agreed to pay thePetitioner such remuneration which is in terms of pay scale.b)Mr. Jadhavar’s further contention is that the impugned judgment andorder is half-hearted one. Mere declaration that the Respondent –Management has indulged into unfair labour practices cannot be said to be ( 6 ) WP 14883 OF 2023.odtjustice. He would submit that while the Petitioner was appointed on pay scale,the Industrial Court is not justified in directing minimum wages to thePetitioner, that too, only for last preceding three years before the date of filingthe complaint. It is lastly submitted by Mr. Jadhavar that closure of his serviceduring pendency of his complaint can not be a ground to deny him the benefitof permanency. With these submissions, Mr. Jadhavar prays to allow the writpetition.c)Mr. V. N. Upadhye, learned Advocate for the Respondent – Managementwould submit that there is no error or infirmity in the impugned judgment andorder passed by the Industrial Court.d)He would submit that the findings recorded by the learned Member ofthe Industrial Court are well reasoned. Insofar as remuneration issue isconcerned, he would submit that the grant of minimum wages to thecomplainant is perfectly as per the law and considering the nature of theservices.e)On the crucial point of permanency, Mr. Upadhye submits that theIndustrial Court has rightly observed that due to retrenchment, permanencycould not be conferred upon the Petitioner. He would dispute that thePetitioner was terminated. According to Mr. Upadhye, evidently the petitioner ( 7 ) WP 14883 OF 2023.odtwas retrenched. He would submit that termination and retrenchment aredifferent concepts and methods to close down services of an employee.However, effect in each case drastically differs from the other. With suchsubmissions, Mr. Upadhye, learned Advocate for the Respondent –Management concludes his arguments.6.Considerations :a)I have heard both the learned Advocates for the respective parties atlength. Perused the pleadings of both the sides. Considering the controversywhich is narrowed down in the light of submissions, I framed following mootpoints to be adjudicated :(i)“While relief of permanency is to be adjudicated on thebasis of the situation existing on the date of filing the complaint,whether subsequent termination/retrenchment can be a groundto deny the permanency?”(ii)While admittedly Petitioner’s services are governed by theprovisions under the MEPS Act and the Rules of 1981 thereunder,whether minimum wages act would be applicable to him? ( 8 ) WP 14883 OF 2023.odtb)It is not in dispute that the Petitioner was appointed on 11.08.2010 as aPeon, may be shown as on an ad-hoc basis. There is nothing on record to showthat the appointment was for a specific period or on contract; meaningthereby Petitioner’s appointment as a Peon was on clear and vacant post. Theargument advanced by Mr. Santosh Jadhavar, learned Advocate for thePetitioner on the point of nature of appointment is acceptable.c)Learned Member of the Industrial Court has already observed in somany words that the Respondent – Management is indulged in unfair labourpractices under Item Nos.5, 6 and 9 of Schedule IV of the Act against thePetitioner. There is no challenge from the side the Respondent – Managementagainst these findings.d)As regards refusal to direct permanency is concerned, I do have seriousreservations on the reasoning rendered by the learned Member of theIndustrial Court whereby the said relief is refused. It is a matter of record thaton the date of filing of the complaint the Petitioner was very much in serviceon the basis of the appointment order (supra). The petition itself was filed forgrant of permanency. Although the Respondent – Management has come upwith a case that it has lawfully retrenched the Petitioner from the post. May itbe a retrenchment or a termination according to the Management and the ( 9 ) WP 14883 OF 2023.odtPetitioner respectfully, the fact remains that the claim for permanency has tobe adjudicated on the basis of the fact and situation as they existed on thedate of filing of the complaint.e)It is an undisputed fact that the Respondent – Management has broughtPetitioner’s services to an end during the pendency of hearing of thecomplaint. In my considered view, the termination/retrenchment shall notrelate back to the date of filing of the complaint to decide the issue ofpermanency. Obviously, the Petitioner has approached to the School Tribunalalleging that he is terminated by the Respondent – Management. TheManagement may defend the appeal on the grounds available to it. The fate ofPetitioner’s discontinuation shall be decided by the Tribunal on its own merit.However, findings rendered by this Court on ‘permanency status’ shall prevailfor the purpose of service benefits. It was for the Industrial Court to define the“status” of the Petitioner as a permanent employee based on the facts andrecord existed on the date of filing of the complaint. f)In view of this, I do not subscribe to the reasoning and observationrecorded by the learned Member of the Industrial Court that due tosubsequent development of retrenchment, relief of permanency could not begranted. Suffice it to say that the Industrial Court has descriptively observed ( 10 ) WP 14883 OF 2023.odtabout unfair labour practices at the behest of the Respondent – Management. In view of this, I find that the Petitioner has made out a case for relief ofpermanency status. I answer the moot question holding that, “claim forpermanency has to be adjudicated on the basis of the facts and situationholding field on the date of claim; and subsequent termination/retrenchmentcan not be a ground to deny the claim for permanency.,’ g)Insofar as the remuneration issue is concerned, learned Member of theIndustrial Court ought to have appreciated that the Petitioner was appointedas a Peon in a private educational institute. The service terms and condition ofan employee working in a private educational institute are governed by theprovisions of M.E.P.S. Act and the Rules of 1981 thereunder. The Act and theRules provide for the remuneration that is pay scale to be paid to an employeeof a private school. In view of this, the Industrial Court is not justified ingranting minimum wages to the Petitioner as is ordered in paragraph 3 of theoperative order in the impugned judgment and order dated 17.08.2023.h)For the reasons recorded above, the petition must succeed. ThePetitioner has made out a successful case for causing interference of this Courtunder Article 227 of the Constitution of India. In view of this, I pass followingorder : ( 11 ) WP 14883 OF 2023.odtO R D E RI.Writ Petition stands allowed.II.Impugned judgment and order dated 17.08.2023 passedby the learned Member Industrial Court, Ahmednagar inComplaint (ULP) No.38 of 2017 is quashed and set aside to theextent of clause Nos.3 and 4 of the operative order.III.It is declared that the Petitioner is entitled for thebenefits of permanency in service on the basis of initialappointment order dated 11.08.2010 within the meaning ofprovisions of the MEPS Act and the Rules of 1981 thereunder.Legality of Petitioner’s termination/retrenchment shall besubject to the decision of the School Tribunal. The status ofpermanency shall be for the purpose of service benefits. IV.The Petitioner is entitled for salary in the applicable payscale as per the provisions of the MEPS Act and the Rules of1981 thereunder from the date of his initial appointment tillthe date of his termination/retrenchment.V.The Respondent – Management, within four (4) monthsfrom today, shall pay such due amount to the Petitioner. Anypayment made earlier shall be adjusted.VI.Rule is made absolute in above terms.[AJIT B. KADETHANKAR, J.]PRW