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01. This is a Writ Petition filed by employer against the judgment and order dated 10.11.1995 of the learned Member, Industrial Court, Ahmednagar, allowing Complaint (ULP) No. 19 of 1992 filed by present Respondent No.1, thereby holding that the present writ petitioner-employer had engaged into unfair labour practice as per items 6 and 9 of Schedule IV of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 ("for short "the MRTU & PULP Act") and directed the writ petitioner to make Respondent No.1 permanent as Audio Visual Operator ("A.V. Operator" for short) with effect from 20.1.1992 and provide him status and privileges and all other consequential benefits and pay arrears accordingly.

Only exception is of the persons employed mainly in managerial or administrative capacity or who are employed in a supervisory capacity,drawing wages exceeding Rs.6500 per mensem.

12. It is, therefore, argued by Advocate Shri Prabhakaran that Respondent No. 1 falls within the definition "workman" under the Industrial Disputes Act and as such he is entitled to claim the relief under the MRTU & PULP Act. Merely because by statute 138 the Maharashtra Civil Services Rules are made applicable mutatis mutandis, that will not deprive Respondent No. 1 from getting relief under the MRTU & PULP Act. In my opinion, there is substance in the submission of Advocate Shri Prabhakaran. It was sought to be argued on behalf of the Petitioner that the Agricultural University is not an `industry'. But, that point was not raised before the Industrial Court and only objection taken before that Court was that Respondent No.1-employee did not fulfill the educational qualification but it may be noted that it is admitted by the witness of the writ petitioner that Respondent No.1 did fulfill the educational qualification or conditions as laid down prior to revision of qualification which came into operation with effect from 2.10.1991.

"26. The question that arises for consideration is: have the provisions of MRTU & PULP Act denuded of the statutory status by the Constitution Bench decision in Umadevi-1. In our judgment, it is not. The purpose and object of MRTU & PULP Act, inter alia, is to define and provide for prevention of certain unfair labour practices as listed in Schedule II, III and IV. MRTU & PULP Act empowers the Industrial and Labour Courts to decide that the person named in the complaint has engaged in or is engaged in unfair labour practice and if the unfair labour practice is proved, to declare that an unfair labour practice has been engaged in or is being engaged in by that person and direct such person to cease and desist from such unfair labour practice and take such affirmative action (including payment of reasonable compensation to the employee or employees affected by the unfair labour practice, or reinstatement of the employee or employees with or without back wages on the payment of reasonable compensation), as may in the opinion of the Court be necessary to effectuate policy of the Act. The power given to the Industrial and Labour Courts under Section 30 is very wide and the affirmative action mentioned therein is inclusive and not exhaustive. Employing badlis, casuals or temporaries and to continue them as such for years, with the object of depriving them of status and privileges of permanent employees is an unfair labour practice on the part of the employer under item 6 of Schedule IV. Once such unfair labour practice on the part of the employer is established in the complaint, the Industrial and Labour Courts are empowered to issue preventive as well as positive directions to an erring employer. The provisions of MRTU & PULP Act and the powers of Industrial and Labour Courts provided therein were not at all under consideration in the case of Umadevi-1. As a matter of fact, the issue like the present one pertaining to unfair labour practice was not at all referred, considered or decided in Umadevi-1. Unfair labour practice on the part of the employer in engaging employees as badlies, casuals or temporaries and to continue them as such for years with the object of depriving them of the status and privileges of permanent employees as provided in item 6 of Schedule IV and the power of Industrial and Labour Courts under Section 30 of the Act did not fall for adjudication or consideration before the Constitution Bench. "

However, the Apex Court has made it clear at the beginning of paragraph 27 that there cannot be any quarrel on the proposition that the Courts cannot direct creation of post.

20. Advocate Shri Prabhakaran has also relied upon the case Mahatama Phule Agricultural University vs. Nashik Zilla Sheti Kamgar Union 2001 III CLR 4, to show that the agricultural casual workers engaged by the Agricultural Universities in the State of Maharashtra are governed by MRTU & PULP Act. So, it is not that such Agricultural Universities are not `industry' as sought to be claimed before this court. Moreover, it is also argued that the necessary pleadings and evidence are not before the court to hold that Respondent No.1 is not 'workman' under the Industrial Disputes Act, or 'employee' within the meaning of MRTU & PULP Act.