wp4755.12 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.4755 OF 2012 and WRIT PETITION NOs.4464, 4465, 4466, 4467, 4618, 4627, 4630, 4633, 4634, 4635, 4636, 4652 OF 2012. The [ENTITY], through its Chief Officer. PETITIONERS. (Original Respondent). VERSUS Shri [ENTITY], age major, Occu. Service, R/o Pungalwes, Budhawada, Jintur, Dist.[ENTITY]. RESPONDENT. (Original Complainant). Shri [ENTITY], Advocate for Petitioner. Shri [ENTITY], Advocate for Respondent. and WRIT PETITION NO.4464 OF 2012 The [ENTITY], through its Chief Officer. PETITIONERS. (Original Respondent). VERSUS [ENTITY] s/o Vasantrao Kanade, age 41 yrs., Occu. Service, R/o Main Road, Jintur Dist.[ENTITY]. RESPONDENT. (Original Complainant). Downloaded on - 09/06/2013 19:48:16 wp4755.12 2 Shri [ENTITY], Advocate for Petitioner. Shri [ENTITY], Advocate for Respondent. and WRIT PETITION NO.4465 OF 2012 The [ENTITY], through its Chief Officer. PETITIONERS. (Original Respondent). VERSUS Smt.[ENTITY], age major, Occu. Service, R/o Hutatma Smarak,Jintur Dist.[ENTITY]. RESPONDENT. (Original Complainant). Shri [ENTITY], Advocate for Petitioner. Shri [ENTITY], Advocate for Respondent. and WRIT PETITION NO.4466 OF 2012 The [ENTITY], through its Chief Officer. PETITIONERS. (Original Respondent). VERSUS Smt.[ENTITY], age major, Occu. Service, R/o Pungalwes, Budhwada,Jintur Dist.[ENTITY]. RESPONDENT. (Original Complainant). Shri [ENTITY], Advocate for Petitioner. Shri [ENTITY], Advocate for Respondent. Downloaded on - 09/06/2013 19:48:16 wp4755.12 3 and WRIT PETITION NO.4467 OF 2012 The [ENTITY], through its Chief Officer. PETITIONERS. (Original Respondent). VERSUS [ENTITY], age major, Occu. Service, R/o Nr.Satwai Temple, Jintur Dist.[ENTITY]. ig RESPONDENT. (Original Complainant). Shri [ENTITY], Advocate for Petitioner. Shri [ENTITY], Advocate for Respondent. and WRIT PETITION NO.4618 OF 2012 The [ENTITY], through its Chief Officer. PETITIONERS. (Original Respondent). VERSUS [ENTITY], age major, Occu. Service, R/o Pungalwes, Budhwada,Jintur Dist.[ENTITY]. RESPONDENT. (Original Complainant). Shri [ENTITY], Advocate for Petitioner. Shri [ENTITY], Advocate for Respondent. and [CASE NUMBER] Downloaded on - 09/06/2013 19:48:16 wp4755.12 4 The [ENTITY], through its Chief Officer. PETITIONERS. (Original Respondent). VERSUS [ENTITY], age major, Occu. Service, R/o Pungalwes, Budhwada,Jintur Dist.[ENTITY]. RESPONDENT. (Original Complainant). ig Shri [ENTITY], Advocate for Petitioner. Shri [ENTITY], Advocate for Respondent. and WRIT [CASE NUMBER] The [ENTITY], through its Chief Officer. PETITIONERS. (Original Respondent). VERSUS [ENTITY], age major, Occu. Service, R/o Pungalwes, Budhwada,Jintur Dist.[ENTITY]. RESPONDENT. (Original Complainant). Shri [ENTITY], Advocate for Petitioner. Shri [ENTITY], Advocate for Respondent. and [CASE NUMBER] The [ENTITY], Downloaded on - 09/06/2013 19:48:16 wp4755.12 5 at Jintur, Dist. [ENTITY], through its Chief Officer. PETITIONERS. (Original Respondent). VERSUS Smt.[ENTITY], age major, Occu. Service, R/o Pungalwes, Budhwada,Jintur Dist.[ENTITY]. RESPONDENT. (Original Complainant). Shri [ENTITY], Advocate for Petitioner. Shri [ENTITY], Advocate for Respondent. ig and WRIT [CASE NUMBER] The [ENTITY], through its Chief Officer. PETITIONERS. (Original Respondent). VERSUS Smt.[ENTITY], age major, Occu. Service, R/o Pungalwes, Budhwada,Jintur Dist.[ENTITY]. RESPONDENT. (Original Complainant). Shri [ENTITY], Advocate for Petitioner. Shri [ENTITY], Advocate for Respondent. and WRIT [CASE NUMBER] The [ENTITY], through its Chief Officer. PETITIONERS. Downloaded on - 09/06/2013 19:48:16 wp4755.12 6 (Original Respondent). VERSUS Smt.[ENTITY], age major, Occu. Service, R/o Pungalwes, Budhwada,Jintur Dist.[ENTITY]. RESPONDENT. (Original Complainant). Shri [ENTITY], Advocate for Petitioner. Shri [ENTITY], Advocate for Respondent. ig and WRIT [CASE NUMBER] The [ENTITY], through its Chief Officer. PETITIONERS. (Original Respondent). VERSUS [ENTITY] s/o [ENTITY], age major, Occu. Service, R/o Main Road,Jintur Dist.[ENTITY]. RESPONDENT. (Original Complainant). Shri [ENTITY], Advocate for Petitioner. Shri [ENTITY], Advocate for Respondent. and [CASE NUMBER] The [ENTITY], through its Chief Officer. PETITIONERS. (Original Respondent). Downloaded on - 09/06/2013 19:48:16 wp4755.12 7 VERSUS Smt.[ENTITY], age major, Occu. Service, R/o Pungalwes, Budhwada,Jintur Dist.[ENTITY]. RESPONDENT. (Original Complainant). Shri [ENTITY], Advocate for Petitioner. Shri [ENTITY], Advocate for Respondent. ig CORAM: [ENTITY],J. RESERVED ON: 19.03.2013. PRONOUNCED ON: .04.2013. JUDGMENT:
1. Since, common issue is involved in all these writ petitions, the same are being disposed of by this common order.
2. These writ petitions take exception to the judgment and order dated 20.10.2010 thereby allowing the complaints filed by the present respondents - original complainants and declaring that the respondent therein - present petitioner has engaged in and has been engaging wp4755.12 in unfair labour practices under [SECTION] and [SECTION] of the [ACT] (for short, referred to as the said Act), and directing the petitioner herein to cease and desist from engaging in such unfair labour practices. The petitioner herein was further directed to regularize the services of the complainants from the date of the order and to give them all consequential monetary benefits within two months from the said order.
3. The learned Counsel for the petitioner submitted that the petitioner - Municipal Council was respondent in the [CASE NUMBER] and other similar complaints filed by the original complainants -
respondents herein before the Industrial Court Maharashtra, Bench at Jalna, which came to be allowed by the Industrial Court.
4. The case of the complainants is that they wp4755.12 are workmen of petitioner - municipal council, which is an industry and they were appointed by the municipal Council on various dates in the year, 1994. Since their appointment, they are working continuously and they had completed more than 240 days in each calendar year. They are being paid salary as per minimum wages and their work is satisfactory and the work is available throughout the year. It is submitted that the work of the complainants is of permanent nature and the petitioner herein with an object to deprive them from getting benefits of permanency, they are not made permanent and thus, the present petitioner is engaged in unfair labour practice under [SECTION] of the said Act.
5. It is further submitted that as per Model Standing Orders, 1946 Clause 4(b) and 4(c) and [ACT], it is necessary to make the complainants regular in service as soon as they completed 240 days wp4755.12 continuous service, which is not done by the present petitioner and it amounts to an unfair labour practice under [SECTION] of the said Act. It is further submitted that the petitioner Municipal Council has passed Resolution on 11.1.2001 and decided to absorb the complainants and other employees. However, two employees who are junior to the complainants are made permanent and thus petitioner herein shown favouritism to those junior employees and committed unfair labour practice under [SECTION] of the said Act. Hence, the complainants came to be filed under [SECTION] of the said Act.
6. The petitioner - municipal council filed written statement and denied the allegations of unfair labour practice in toto. It is submitted that the Model Standing Order is not applicable to the employees of petitioner herein and there are separate Rules of recruitment and recruitment is made on vacant and sanctioned wp4755.12 posts after approval of Director, Municipal Council, Mumbai. It is submitted by the municipal Council that Executive Committee of the petitioner herein is necessary party and complainants are not tenable on that count.
7. The petitioner - original respondent further submitted that complainants have been engaged on daily wages whenever work was available and the said work is not perennial in nature and also not available throughout the year. So also posts on which complainants are working, are not vacant and sanctioned by competent authority. Hence, complainants are not entitled for regularization in service as held in the judgment of Supreme Court in case of State of Karnataka and others vs [ENTITY] and others reported in 2006 II CLR 261.
8. The petitioner - original respondent further submitted that the Government of Maharashtra has decided to absorb daily wagers wp4755.12 engaged on daily wages before 1993 and such persons have been absorbed by original respondent. The complainants are not covered under said resolution and are not entitled for absorption. It is further submitted that the Executive Committee has no powers to pass Resolution in respect of regularization without having vacant and sanctioned posts from Competent Authority and therefore, said resolution dated 11.1.2001 is against Rules and Government Circulars. The original respondent -
petitioner therefore, prayed for dismissal of the complaints.
9. The Industrial Court framed three issues for its consideration / determination and held that the respondent i.e. petitioner herein has engaged in and has been engaging in unfair labour practices under [SECTION] and [SECTION] of the [ACT], and directed the petitioner herein to wp4755.12 cease and desist from engaging in such unfair labour practices. The petitioner herein was further directed to regularize the services of the complainants from the date of the order and to give them all consequential monetary benefits within two months from the said order.
10. The learned Counsel for the petitioner submits that appointments of the respondents were not on vacant and sanctioned posts and the same were temporary in nature and without following recruitment rules. It is submitted that the respondents were permitted to make back door entry by the Council especially when recruitment was banned and also contrary to the law laid down by the Supreme Court in case of [ENTITY] (supra). It is further submitted that the appointments made are without following due process of law or the Rules for appointment.
The learned Counsel for the petitioner invited my attention to the grounds (A) to (L) in the writ petitions and submitted that on the said wp4755.12 grounds, these petitions deserve to be allowed.
He submits that the six employees who were appointed by the Municipal Council in the year, 1995, were appointed by way of direct recruitment. Therefore, the cases of the respondents cannot be compared with those six employees. The learned Counsel pressed into service reported judgment in the case of [ENTITY] (supra) to support his contention.
11. On the other hand, learned Counsel for the respondents submitted that it is not in dispute that the respondents are working with the petitioner from 1993, 1994 and 1995. It is submitted that the Industrial Court has considered the material placed on record and also the evidence led by the parties and held that each of the complainants has worked for more than 240 days continuously in every calendar year and hence, as per the Model Standing Orders, they are entitled to regularization as permanent employees. It is wp4755.12 submitted that in case of employees who were appointed in between April, 1995 to October, 1995 and who are junior to the complainants, their services have been regularized by the petitioner herein. Therefore, relying on the reasons recorded by the Industrial Court, the learned Counsel for respondents /complainants submits that the petitions are devoid of any merits and the same may be dismissed.
12. I have given careful consideration to the submissions of the learned Counsel for the parties and with the able assistance of the learned Counsel for the parties, perused the pleadings in the petitions, grounds therein, annexures thereto and the impugned judgments and orders of the Industrial Court and also the judgments of the Supreme Court in [ENTITY] (supra) and in case of Maharashtra Road Transport Corporation and another vs [PRECEDENT] [2009(8) SCC 556, cited across the Bar, this Court is of the opinion that the view wp4755.12 taken by the Industrial Court is in consonance with the material placed on record. Firstly, it is not in dispute that the respondents i.e. original complainants are working from 1993, 1994 and 1995, which means, the original complainants have rendered more than 17 to 18 years service. It is also not in dispute that services of the six employees who were appointed in between April, 1995 to October, 1995, have been regularized. Though the Counsel for the petitioner submitted that they are direct recruits, said statement is contrary to the deposition of the witness who deposed on behalf of the petitioner before the Industrial Court. The Chief Officer of the petitioner - Municipal Council, in his cross-examination, has admitted that the six employees who were appointed in between April, 1995 to October, 1995, are junior to the respondents / complainants. However, their services have been regularized by the petitioner.
According to the said witness, the said employees were regularized as per the Court orders. The Industrial Court has observed that no any order of competent Court was produced on record which would wp4755.12 suggest that the said six employees whose services have been regularized, were appointed in pursuant to the Court order. Therefore, though the learned Counsel for the petitioner argued that those six employees were directly appointed and therefore, their cases cannot be compared with the cases of the respondents, it cannot be accepted, in view of the admissions of the Chief Officer Mr. [ENTITY] that the said employees were appointed in pursuance to the Court order. The stand taken by the Municipal Council before this Court and the evidence given by Mr.[ENTITY], Chief Officer of the petitioner - Municipal Council, shows different versions. The Industrial Court has considered the case of the complainants that the complainants are working with the respondent - petitioner herein as daily wagers since 1993, 1994, and 1995 and they have completed more than 240 days in each calendar year. The petitioner - Municipal Council continued the respondents - complainants for years together as temporary and deprived them of the status and privileges of permanent employees and thus, committed unfair labour practices under [SECTION] of wp4755.12 Schedule IV of the said Act. The Industrial Court has also considered the case of the complainant under [SECTION] of the said Act in para 22 of the impugned judgment and on the basis of the material placed on record, reached to the conclusion that six junior employees to the complainants have been regularized by the petitioner. ig Therefore, the petitioner i.e. original respondent engaged in unfair labour practice under [SECTION] of the said Act.
13. The contention of the petitioner that the posts are not sanctioned and in view of the law laid down by the Supreme Court in case of [ENTITY] (supra), direction of the Industrial Court to regularize services of the complainants cannot be sustained, is devoid of any merits.
The Supreme Court, in case of [PRECEDENT], in para 26 held, thus:
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26. The question that arises for consideration is: have the provisions of [ACT] denuded of the statutory status by the Constitution Bench decision in [ENTITY]. In our judgment, it is not. The purpose and object of [ACT], inter alia, is to define and provide for prevention of certain unfair labour practices as listed in [SECTION].
ig [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, or 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] is very wide and the affirmative action mentioned therein is inclusive and not exhaustive. Employing badlis, casuals or temporaries and to continue wp4755.12 them as such for years , with the object of depriving them of the status and privileges of permanent employees is an unfair labour practice on the part of the employer under [SECTION]. 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 direction to an erring employer. The provisions of [ACT] and the powers of Industrial and Labour Courts provided therein were not at all under consideration in the case of [ENTITY]. 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 [ENTITY]. 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 [SECTION] and the power of Industrial and Labour Courts under [SECTION] of the Act did not fall for adjudication or consideration before the Constitution Bench. It is true that the case of Dharwad District PWD Literate Daily Wage Employees Assn.7 arising out of industrial adjudication has been considered in [ENTITY] and that decision has been held to be not laying down the correct law but a careful and wp4755.12 complete reading of decision in [ENTITY] leaves no manner of doubt that what this Court was concerned in [ENTITY] was the exercise of power by the High Courts under [SECTION] and this Court under [SECTION] of the [ACT] in the matters of public employment where the employees have been engaged as contractual, temporary or casual workers not based on proper selection as recognized by the rules or procedure and yet orders of their regularization and conferring them status of permanency have been passed. [ENTITY] is an authoritative pronouncement for the proposition that Supreme Court ([SECTION] and High Courts ([SECTION] should not issue directions of absorption, regularization or permanent continuance of temporary, contractual, casual, daily wage or ad-hoc employees unless the recruitment itself was made regularly in terms of constitutional scheme. [ENTITY] does not denude the Industrial and Labour Courts of their statutory power under [SECTION] of [ACT] to order permanency of the workers who have been victim of unfair labour practice on the part of the employer under [SECTION] where the posts on which they 24 have been working exists. [ENTITY] cannot be held to have overridden the powers of Industrial and Labour Courts in passing appropriate order under [SECTION] of [ACT] & wp4755.12 [ACT], once unfair labour practice on the part of the employer under [SECTION] is established."
14. Therefore, it follows from the authoritative pronouncement of the Supreme Court in case of [PRECEDENT] (supra) that power of Industrial and Labour Court u/[SECTION] of the Act did not fall for adjudication or consideration before the constitution Bench in the case of [PRECEDENT] (supra) and it does not denude the Industrial or Labour Court of their statutory power under [SECTION]/[SECTION] of the said Act to order permanency of workers, who have been victims of unfair labour practice on part of employer under [SECTION] of the Act.
14. In that view of the matter, in my considered opinion, viewed from any angle, the view taken by the Industrial Court is a plausible and reasonable view. The view taken is not perverse, in any manner, rather it is in consonance with the material placed on record. The respondents -
complainants are working for more than 17 - 18 wp4755.12 years with the petitioner and the benefit granted by the Industrial Court to them directing the petitioner to regularize their services is the most appropriate direction in the given set of the facts and circumstances of the case.
15. Therefore, for the reasons aforesaid, no interference ig is called for in the impugned judgments and orders of the Industrial Court.
Hence, the petitions are devoid of any merits and the same stand dismissed.
[ [ENTITY], J ] [ENTITY].