JUDGMENT - Smt. NISHITA MHATRE, J.:---This writ petition challenges the order of the Industrial Court dismissing a complaint filed by the petitioners under Item 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The petitioners are employed as Badli Workers in New Hind Textile Mills, which is taken over by the 1st respondent. The petitioners are working in various departments for number of years as Badli workers. The 1st respondent has not cared to make them permanent despite the fact that they are governed by the standing orders under which they should have been made permanent. After the Mill strike of 1982 the strength of the employees was reduced by the Mills. An agreement was entered into between the respondents and the Rashtriya Mill Mazdoor Sangh, which is the representative Union of workmen of Textile Mills stipulating inter alia, 85% of the muster strength in all the departments should be of permanent workmen. The petitioners state that there are vacancies in the processing department and hence they filed a complaint and approached the respondents to confirm them as permanent workers in the processing department as they were the senior most Badli workers. 2. As the respondents did not accede to the demand made by the petitioners to make them permanent the petitioners filed an application under the provisions of Bombay Industrial Relations Act, 1946, complaining that the respondents had committed an illegal change claiming permanency. This application, however, was not persued by the petitioners and it was dismissed for default. 3. The petitioners filed a complaint under the provisions of Item 9 of Schedule IV of M.R.T.U. P.U.L.P. Act, 1971, in the Industrial Court on 3rd December, 1992. The petitioners complained that although there were vacancies in the processing department, as the muster strength was 146, only 110 workmen were employed. They contended that the petitioners were entitled to the reliefs as the respondents had committed breach of settlement in existence between the respondents and Rashtriya Mill Mazdoor Sangh. A reply was filed by the 1st respondent in form of an affidavit of the production manager wherein he admitted the existence of an agreement between Rashtriya Mill Mazdoor Sangh and the respondents which states that 85% of the muster strength in the processing department works out to 124. He further admitted that only 110 workmen were employed as permanent employees. He further admitted that only 110 workmen were employed as permanent employees. Various documents were filed by the petitioners showing that number of permanent employees from the process department have been superannuated and therefore, the total vacancies on 20th July, 1992 for permanent posts were 35. An interim order was passed whereby the Industrial Court directing the respondents to provide regular work to the petitioners pending hearing and final disposal of the complaint. 4. It appears that on 14th February, 1995, the respondent gave notice of change under the provisions of Bombay Industrial Relation Act for introduction of Voluntary Retirement Scheme in some departments. The petitioners lead evidence of a clerk in the Labour office of respondent No. 1 and the respondents-management have adduced evidence of one of the employees of the Mill. The Industrial Court came to the conclusion that as the petitioners have already approached the Labour Court under B.I.R. Act, the complaint was not maintainable in view of section 59 of M.R.T.U. P.U.L.P. Act. The Industrial Court came to the conclusion that in view of judgment of the Apex Court in (Raymond Woollen Mills v. Shramik Utkarsha Sabha)1, reported in 1995(1) C.L.R. page 607 the complaint which was not filed by the representative and recognised union but by individual workmen was not maintainable. The Industrial Court further came to the conclusion that since the Mill has been declared as a sick unit, no relief can be granted to the petitioners. 5. Mr. Palshikar, learned Counsel for the petitioners assails the impugned order on three counts. He contend that section 59 of the M.R.T.U. P.U.L.P. Act does not act as a bar to the present complaint as the earlier application under B.I.R. Act was dismissed for default. He relies on a judgment of this Court in support of his contention reported in 1986(1) Bom.C.R. 484 , (Consolidated Pneumatic Tool Co. (I) Ltd. v. R.A. Gadekar others)2, that mere filing of an application without any result on merits, did not attract the provisions of section 59 of M.R.T.U. P.U.L.P. Act. He then contends that the judgment of the Apex Court in Raymond Woollen Mills case, (supra) does not preclude the petitioners from filing the complaint as they are affected persons. (I) Ltd. v. R.A. Gadekar others)2, that mere filing of an application without any result on merits, did not attract the provisions of section 59 of M.R.T.U. P.U.L.P. Act. He then contends that the judgment of the Apex Court in Raymond Woollen Mills case, (supra) does not preclude the petitioners from filing the complaint as they are affected persons. He relies on the judgments of this Court in (Yeshwant Jagannath Ingawale others v. Snowcem India Ltd. others)3, reported in 2000(I) C.L.R. 116 and (Bajirao Rajaram Patil v. Maharashtra State Co-operative Bank Ltd. and another)4, reported in 1997(2) Bom.C.R. 577 in support of his contention. Mr. Palshikar then contends that the respondents has unnecessarily raised the contention that no relief can be given in the complaint in view of the fact that the company was declared as a sick unit. He submitted that despite it being declared a sick unit several orders have been passed by this Court even in respect of the same unit of the respondent. He further relies upon judgments of this Court reported in (National Textile Corporation South Maharashtra Ltd. v. Rashtriya Mill Mazdoor Sangh)5, in Writ Petition No. 1358 of 1997 wherein Rebello, J., considered this aspect in respect of the same mill. He also relied on the decision of this Court in (Bhargav Keru Temondkar v. Manufacturing Mills (UC) N.T.C. (S.M.) Ltd. (AC) and others)6, reported in 1998(2) Bom.C.R. 60 in support of contention. 6. Mr. Ramaswamy for the respondents submits that claim of permanency could not be considered in the complaint filed by individuals as such a complaint could be filed only by a representative union. He further submits that although there was an agreement with the union maintaining 85% of the muster strength as permanent employees, this agreement has been substituted by another agreement whereby Rashtriya Mill Mazdoor Sangh, which is representative Union has agreed for introduction of scheme for voluntary retirement. He contends that under this scheme permanent posts of those who accepted voluntary retirement scheme were to be abolished and hence there is no question of granting permanency to petitioners. He further submits that the mill is declared as a sick unit and B.I.F.R. has recommended closure of the concerned mill. He vehemently opposes and relief being granted to the petitioners as according to him permanent workmen are being paid idle wages by respondent No. 1. He further submits that the mill is declared as a sick unit and B.I.F.R. has recommended closure of the concerned mill. He vehemently opposes and relief being granted to the petitioners as according to him permanent workmen are being paid idle wages by respondent No. 1. He also urges that in any event the bar under section 59 will operate and the complaint is liable to be dismissed, in view of the fact that the petitioners has actually approached the Labour Court under the Bombay Industrial Relations Act. 7. Similar contentions were raised by N.T.C. in Writ Petition No. 1358 of 1997, which have been considered by Rebello, J. The learned Judge has in fact held that once a permanent post exists and if the badli workers have completed 240 days, they are entitled to be made permanent. In the present case, the petitioners have been working continuously since 1972 as badli workmen. In fact the record shows that the petitioners' witness was not cross-examined on this aspect. Admittedly, the muster strength in process department is 146 and 85% of this strength would amount to 124 employees. However, only 110 permanent employees were employed during the period of 1992 to 1993 when the complaint was filed. Some persons were superannuated and the posts have not been abolished by following the procedure under Bombay Industrial Relations Act. Therefore, there are vacancies in the processing department. The contention that the processing department has to be closed also cannot be accepted in view of the fact that there is nothing on record to show that notice of closure is given or that the processing department is in fact closed. The petitioners have been working continuously as badlis and are therefore entitled to the benefits of the agreement between respondent No. 1 and Rashtriya Mill Mazdoor Sangh. By not filling up the vacant permanent posts respondent No. 1 has not implemented the said settlement, thus committing breach of Item 9 of Schedule IV of the M.R.T.U. P.U.L.P. Act. 8. The contentions raised by Mr. Ramaswamy on the aspect as to whether any relief can be given to a workman once the Mill has been declared a sick unit have been dealt with in several judgments of this Court. The claim of the workmen related to a period before the Mill was declared a sick unit. 8. The contentions raised by Mr. Ramaswamy on the aspect as to whether any relief can be given to a workman once the Mill has been declared a sick unit have been dealt with in several judgments of this Court. The claim of the workmen related to a period before the Mill was declared a sick unit. Merely because the unit is declared sick, the obligation cast on respondent No. 2 to implement their agreement with Rashtriya Mill Mazdoor Sangh does not get obliterated. All that the petitioners are seeking is implementation of the settlement. The fact that the Mill is declared sick cannot be an obstacle to the petitioners for getting relief under Item 9 of Schedule IV of the M.R.T.U. P.U.L.P. Act. 9. The contention regarding section 59 also cannot be accepted as admittedly the application was not heard on merits nor was there any order passed on merits. The application is dismissed for default. The judgment in the appropriate Government shall consider their disputes expeditiously and make a reference within two months of the workman submitting a justification statement. 10. Rule discharged with the aforestate directions. No order as to costs. All concerned to act on an ordinary copy of this order duly authenticated by the Court Associate. Rule discharged with direction. -----