1 WP 1397.2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO.1397 OF 2009 Mahindra and Mahindra Limited, Plot No.F-1/F-7, MIDC Industrial Area, Hingna Road, Nagpur-440 016. Through it’s Manager. .. Petitioner .. Versus .. 1. Ganesh Krishnarao Paunikar, Aged about 32 years, R/o. Near Itwari City Post Office, Khapripura, Nagpur. 2. Milind N. Ganar, Aged about 32 years, R/o. Defence Ambajari, Quarter No.9/101/3, Nagpur. 3. A.M. Dhore, C/o. Nanda Shivan Classes, Balaji Nagar, Radkre Layout, Hingna Road, Nagpur. 4. Munnasingh Ramprasad Pandale, Aged about 37 years, R/o. Birsi Camp, Post. Paratwada, Tah. Gondia, District-Gondia. 5. Aqueel Ahmed s/o Abdul Alim Khan, Aged about 34 years, R/o. Near Hanuman Mandir, Madne’s Chawl, Gittikhadan, Katol Road, Nagpur. Respondent No.3 is deleted as per court’s order dt.7.7.11. Names of Respondents 1, 2, 4 & 6 are deleted as per the court’ order dated 24.2.2010 2026:BHC-NAG:13514 2 WP 1397.2009 6. Walmik Tamaji Ramteke, Aged about 35 years, R/o. Post Sindewahi, District-Chandrapur. 7. Member, Industrial Court, Nagpur, Temple Road, Civil Lines, Nagpur. .. Respondents .......... Mr. Mihir R. Puranik, Advocate for Petitioner. Respondent Nos.1, 2, 3, 4 & 6 are deleted. Mr. S.W. Sambre, Advocate for Respondent No.5. Mr. S.C. Joshi, AGP for Respondent No.7. .......... CORAM : PRAVIN S. PATIL, J. RESERVED ON : 28.09.2026. PRONOUNCED ON : 08.10.2026. JUDGMENT 1. Heard the learned counsel for the petitioner, the learned counsel for respondent no.5 and the learned Assistant Government Pleader for respondent no.7. 2. The petitioner-company approached this court by filing this petition challenging thereby the judgment and order passed by the Industrial Court, Nagpur, in Complaint (ULP) No. 266/2004 dated 20.12.2008, whereby the petitioner is directed to grant permanency to the respondents from the date of filing 3 WP 1397.2009 of the complaint with monetary benefits and also to maintain the waiting list as per the Standing Orders. 3. In the present case, the controversy, in short, can be summarized as under : The petitioner is a limited company duly incorporated under the provisions of the Companies Act, 1956. The company deals in manufacture of the tractors and its components. The petitioner-company started manufacturing of the tractors at Nagpur since year 1969. For the purpose of manufacture of the tractors, they were in need of the employees, such as assembler, artisans and helpers-cum-cleaner. Accordingly, the respondent no.5 was appointed in the establishment of the petitioner- company and worked for a period of 173 days i.e. from 17.11.1994 to 19.05.1995 by giving him gap in the service. 4. It is pertinent to note that after May-1995, the respondent no.5 was not in employment with the petitioner- company. However, in the year 2004, along with other ten employees, he has filed the complaint before the Industrial Court thereby seeking direction to the petitioner-company to 4 WP 1397.2009 continue them on the roll of the company by providing the work in preference to the trainees and further prayed to direct the petitioner-company to grant permanency to each of the complainants from the date of completion of 240 days by granting them permanent status, wages, pay-scales, allowances and benefit of permanent employees with arrears in the light of Section 4 (C) of Model Standing Order and to provide the work to them as per Section 4(D) and 4(E) of the Model Standing Orders. 5. In the said complaint, the present petitioner-company appeared and filed their reply. According to the petitioner- company, after the last day of work of respondent no.5 i.e. from 19.05.1995, he was not in employment. As he was not in employment at the time of filing the complaint, he cannot claim the benefits of permanency and regularization. It is also submitted that the complaint filed by the respondents is barred by limitation. Therefore, the complaint itself is not tenable, coupled with the fact that respondent no.5 has never completed the period of 240 days in a year. Hence, on all these counts, opposed the complaint filed by the respondent before the 5 WP 1397.2009 Industrial Court. 6. The learned Industrial Court by the impugned judgment dated 20.12.2008 allowed the complaint filed by the respondent no.5 along with others and directed the petitioner- company to grant permanency to him from the date of filing of complaint with monetary benefits and also to maintain the waiting list as per the Standing Order. The order of the Industrial Court dated 20.12.2008 is under challenge in the present case. 7. The petitioner-company, by way of present petition, has raised the specific ground and more particularly brought on record the fact that the respondent no.5 did not approach with clean hands before the Tribunal. It is the submission of the petitioner that after the year 1995, the present respondent no.5 never approach to them for getting re-employment in service. On the other hand, he got appointment as a Diesel Mechanic Instructor in a school run by Husnoor Education Society, Borgaon, Gorewada Tank Road, Nagpur with effect from 01.08.2002. The respondent no.5 was in employment of the 6 WP 1397.2009 said school from 01.08.2002 to 01.03.2014. On 01.03.2014 as his services were terminated by the said management, he has preferred Appeal No.22/2014 before the Presiding Officer, School Tribunal, Nagpur. Hence, it is the submission of the petitioner that at the time of filing the complaint by respondent no.5 before the Industrial Court, he was in a gainful employment, but without disclosing this fact, has filed the proceeding before the Industrial Court. 8. The petitioner also brought to the notice of this court that the respondent no.5 did not enter into the witness box before the Industrial Court, as he was in the employment of a private school. In view of this fact, it is clear that the respondent no.5 has given up his right to claim permanency with the petitioner. Therefore, considering this material fact, the petitioner is not entitled for any relief in the matter. 9. It is also brought to the notice of this Court that when the company commenced manufacturing the tractors in the year 1996, following the liberalization of the economy, it has required to make several changes in order to withstand the 7 WP 1397.2009 competition. During this decade, the large number of new activities were started and old activities were discontinued. It is further stated that there were wide fluctuation in the demand of tractors as well as jeeps, due to this uncertainty in the market, they were required to reduce the employees. It is their further submission that at the relevant time, this decision was taken and most of the employees like the respondents were removed from the service. 10. The petitioner also pointed out bunch of the petitions which were filed before the Industrial Court challenging the same relief as claimed by the petitioner. The writ petitions were allowed and same were challenged up to the Hon’ble Supreme Court of India. However, Hon’ble Supreme Court of India has directed the coordinate bench of this court to decide the issue afresh. Accordingly, the bunch of the petitions were decided by this court vide judgment dated 27.11.2020. The said judgment of this Hon’ble Court in the case of Mahindra and Mahindra Limited, Nagpur .vs. Sunil Namdeorao Zade and another, reported in 2021 (3) Mh.L.J. 589, covered all the issues which are raised by the respondents in the present 8 WP 1397.2009 matter. He has pointed out that the coordinate bench of this court has dealt with the issue of uninterrupted service which is defined under the Bombay Industrial Act 1946, the maintainability of the proceeding before the Industrial Court, when the employee is not in employment as well as entitlement of absorption and regularization in service and issue of delay. 11. The petitioner, in support of his submission, also relied upon the judgment of Hon’ble Supreme Court of India in the case of Oshiar Prasad and others .vs. Employers in relation To Management of Sudamdih Coal Washery and M/s. Bharat Coking Coal Limited, Dhanbad, Jharkhand, reported in (2015) 4 SCC 71, wherein it is held that the absorption and regularization can be claimed or granted to the employee only when the contract of employment subsists and is in force inter se employee and employer. Relevant para 25 which is relied is reads as under : 25. It is a settled principle of law that absorption and regularisation in service can be claimed or/and granted only when the contract of employment subsists and is in force inter se employee and the employer. Once it comes to an end either by efflux of time or as per the terms of the contract of employment or by its termination by the employer, then in such event, the 9 WP 1397.2009 relationship of employee and employer comes to an end and no longer subsists except for the limited purpose to examine the, legality and correctness of its termination.” 12. In respect of the judgment of Mahindra and Mahindra Limited (supra) to substantiate the submission in the present case has relied upon the paragraphs 25, 32, 33, 36 and 37 are as under : 25. A crucial aspect of the matter has neither been adverted to nor considered by the Industrial Court in the impugned judgments and orders with regard to the nature of pleadings and evidence expected from the respondents-workmen to successfully claim that unemployment was involuntarily foisted upon them. The chart showing details of the periods of employment of the respondents- workmen would show that they were employed for specific periods and upon completion of such periods, their employment with the petitioner- Company ceased. There is nothing on record in the pleadings and the evidence on behalf of the respondents-workmen that they showed their willingness to work with the petitioner-Company at any point of time after their last dates of employment with the petitioner-Company. In the complaints filed on behalf of the respondents- workmen, there is no whisper about such willingness and/or about any steps taken by the respondents-workmen to approach the petitioner- Company for work. In fact, it is only in the cross- examination of the respondents-workmen before the Industrial Court that they have made bald statements that they had approached the petitioner- Company for work. Interestingly, respondent No.1 in Writ Petition No.7085 of 2019 has stated in cross-examination that he last approached the petitioner-Company for work in the year 1999, 10 WP 1397.2009 while the complaint was filed years later, in the year 2011. The said assertion is also not supported by any evidence. 32. In the case of Mohd. Ali vs. State of H.P., reported in 2018 MhLJ Online (S.C.) 122 = (2018) 15 SCC 641, the Hon'ble Supreme Court considered a case where workmen had worked for different number of days in calendar years with the employer. After taking into consideration the undisputed data on record and the concept of 'continuous service' as it then existed, the Hon'ble Supreme Court found that the workmen had not completed 240 days in a calendar year in the immediate preceding year of their dismissal and, therefore, the reliefs claimed by them could not be granted. Although, it is vehemently submitted on behalf of the respondents-workmen herein that the said case pertained to the provisions of the Act of 1947 and in the present case this Court is concerned with the concept of 'uninterrupted service' under clause 2(g)(viii) of the Model Standing Orders, this Court is not impressed with the distinction sought to be made. Even if clauses 4-B, 4-C, 4-D and 4-E of the Model Standing Orders are taken into consideration, it cannot be said by any stretch of interpretation that in the complaints filed by the respondents-workmen herein after 9 to 23 years of their last dates of employment with the petitioner-Company, they could successfully claim that they had completed 240 days of continuous and uninterrupted service on the basis that they were covered under clause 2(g)(viii) of the Model Standing Orders. Therefore, it becomes clear that the Industrial Court committed an error in holding in favour of the respondents-workmen in this context. 33. On the aspect of continuous and recurring cause of action, this Court finds that the Industrial Court erred in holding that not only were the complaints filed by the respondents-workmen within limitation, but they did not suffer from delay and laches. There is no dispute about the fact that 11 WP 1397.2009 complaints could be filed under section 28 of the Act of 1971, within 90 days of occurrence of the unfair labour practices complained of. In the present case, the respondents-workmen have claimed that their complaints were within limitation because the cause of action occurred every time the petitioner-Company ignored their right and employed other workmen. This interpretation is flawed, for the reason that unfair labour practices claimed by the respondents- workmen under Items 5 and 9 of Schedule IV of the Act of 1971, would occur provided the respondents- workmen first cross the threshold of proving that they were in uninterrupted service of the petitioner- Company. The pleadings and evidence on record show that the respondents-workmen were all along aware from the last dates of employment with the petitioner-Company that certain other workmen were being offered employment. The respondents- workmen could have shown willingness of employment with the petitioner-Company and immediately represented before the Company about the alleged bias and favourtism being shown in favour of workmen junior to them or fresh workmen from the market, to claim unfair labour practice under Item 5 to Schedule IV of the Act of 1971. Such grievances regarding unfair labour practice under Item 9 to Schedule IV of the Act of 1971, could also have been immediately raised by the respondents-workmen. 36. In the present case, there is a specific period of limitation of 90 days provided under section 28 of the Act of 1971, under which the respondents- workmen sought to raise their grievance and they miserably failed to demonstrate how their complaints could be said to be either within limitation or that they did not suffer from delay and laches. The Industrial Court failed to appreciate this aspect of the matter, while entertaining the complaints filed by the respondents-workmen. Once a conclusion is reached that the theory of continuous and recurring cause of action raised on behalf of the respondents-workmen cannot be 12 WP 1397.2009 accepted, it becomes clear that the respondents- workmen could be treated as workmen/employees only for the purpose of challenging the termination of their Services. 37. In the present case, as the chart shows, the last dates of employment of the respondents-workmen with the petitioner-Company were about 9 to 23 years before they filed the complaints before the Industrial Court. The cessation of their employment or the termination of their services could have been challenged only before the Labour Court. The respondents-workmen chose not to take any steps for long period of time with regard to their cessation of employment with the petitioner- Company upon completion of specific periods for which they were appointed. Therefore, in the years 2010-2011, the challenge to termination of their services raised by the respondents-workmen was also hopelessly barred by limitation. Even otherwise, such a grievance could not have been raised in the complaints before the Industrial Court. Therefore, there is substance in the contention raised on behalf of the petitioner-Company that the Industrial Court did not have jurisdiction to entertain the complaints filed on behalf of the respondents-workmen. A perusal of the pleadings in the complaints would show that the respondents- workmen, in a convoluted manner, by claiming right of permanency and regularization, were in effect challenging termination of their service, which was impermissible. The theory of continuous and recurring cause of action based on clause 2(g) (viii) of the Model Standing Orders is found to be unacceptable by this Court and therefore, it is found that the Industrial Court erred in entertaining the complaints of the respondents-workmen in these cases.” 13. The learned counsel for the respondent-employee did not dispute this legal position which is laid down by this Court 13 WP 1397.2009 in the case of Mahindra and Mahindra (supra). However, his only contention before this court is that the employees junior to him were still in employment and he is not absorbed by the petitioner-company. To substantiate this fact, he has pointed out Civil Application No.107/2012 filed in the present petition, wherein he has sought direction to the petitioner for appointment as a permanent employee. It is seen from the record that after filing the said application, the petitioner and respondent no.5 has filed a joint pursis on record dated 01.08.2014. As per the said pursis, it is stated that the petitioner will provide employment to the respondent no.5 as a temporary employee for a period of six months started from 11.08.2014 and pay the wages at the rate of Rs.11,121/-. Accordingly, the respondent no.5 did not press the prayers made in Civil Application No.107/2012. In pursuance of same, the petitioner has issued the appointment order dated 11.08.2014 as a temporary employee for a period of six months, stating that after a period of six months, his employment come to an end automatically. The said order was accepted by the petitioner and accordingly he was in employment for six 14 WP 1397.2009 months. 14. Respondent no.5, therefore, filed another Civil Application Nos.620/2015 and 1033/2015 directing the petitioner to provide work to him and also pay the wages as well as arrears of wages. The said application was decided by this court by order dated 30.06.2015, wherein this court has held that as the petitioner has provided the work for six months, directed to provide the work to the respondent- employee and make him available the wages regularly till the final decision of the petition by making the said order operative from 01.07.2015. 15. In the light of directions of this court dated 30.06.2015 the respondent-employee is receiving the wages regularly from the petitioner during the pendency of the present petition. Therefore, the respondent-employee stated that he should be treated in employment and continued in the said work in the facts and circumstances of the present case. 16. In view of this submission made by the respondent counsel and the order which is under challenge before this 15 WP 1397.2009 court, the issue which is to be considered by this court, whether on the basis of interim orders passed by this court in the present writ petition, the order of the Industrial Court which is under challenge can be superseded and respondent-employee can be continued in the employment. 17. In the present case, as observed above, the coordinate bench in a bunch of the cases has held that the employee, who was not in employment at the time of filing complaint, cannot seek the relief of absorption or regularization in service, so also the complaint is required to be filed within a statutory period of 90 days and thirdly the case of the employees like the petitioner cannot be considered as an uninterrupted service. The said judgment is till date holding the field and many of the cases which are filed before this court by the employees are governed by the said judgment and all those petitions were dismissed by this court on the grounds referred and discussed in the case of Mahindra and Mahindra (supra). 18. In the present case, though there are interim orders passed by this court, but in my considered opinion, while 16 WP 1397.2009 deciding the petition finally, same cannot have a binding precedent in the matter. The petition is required to be decided on its own merit. In the present case, the petitioner has brought on record the specific factual position that the respondent-employee was in a gainful employment as an Instructor from 01.08.2002 to 01.03.2014. 19. The period during which the petitioner has rendered service with the petitioner-company is as under : Name of Complainant Working Period Days work Art. Break days A. Ahmed 17/11/94 to 10/01/95 45 3 14/01/95 to 18/03/95 64 2 21/03/95 to 19/05/95 59 0 Total 168 + 5 = 173 days 20. It is also pertinent to note that the respondent- employee did not enter into the witness box to substantiate his submission that he was willing to work with the petitioner- company and the petitioner-company did not offer work while others were granted employment. In absence of such pleading 17 WP 1397.2009 and evidence on record, as the coordinate bench has rightly held that the respondent workmen voluntarily chosen unemployment and choose to work with other employees, in such circumstances, the respondent-workman cannot be held that he has rendered uninterrupted service with the petitioner- company and consequently as per the settled principles of law, the complaint, which is filed almost after nine years, cannot be entertained by the Industrial Court. Here, in the present case, there is an additional evidence available on record that the respondent employee was in employment of a private institute from 01.08.2002 to 01.03.2014. 21. In the light of this factual as well as legal position, in my considered opinion, as the facts of the present case are covered by the judgment delivered by the coordinate bench of this court in the case of Mahindra and Mahindra (supra), by applying the principles of stare decisis, the impugned judgment and order passed by the Industrial Court needs to be quashed and set aside. So also the interim orders passed by this court of directing to grant wages regularly to the respondents till the decision of the petition is merged in the final order of this court, 18 WP 1397.2009 the said interim relief stands disposed of. Accordingly, the following order is passed : O R D E R (i) Writ Petition is allowed. (ii) The judgment and order dated 20.12.2008 passed by the Industrial Court, Nagpur in Complaint (ULP) No.266/2004, is hereby quashed and set aside. (iii) The interim orders, if any, passed by this court are also stand disposed of in terms of the final order of this court. (Pravin S. Patil, J.) Gulande Signed by: A.S. GULANDE Designation: Senior Pvt. Secretary Date: 09/10/2026 10:40:05