1 gr.doc ttm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4169 OF 2011 The State of Maharashtra .. Petitioners Vs. Kisan R. Mengal .. Respondent WITH WRIT PETITION NO.4170 OF 2011 The State of Maharashtra .. Petitioner Vs. Sukhadeo N. Mengal .. Respondent WITH WRIT PETITION NO.4171 OF 2011 The State of Maharashtra .. Petitioner Vs. Mr.Ramdas M. Awad .. Respondent WITH WRIT PETITION NO.4172 OF 2011 The State of Maharashtra .. Petitioner Vs. 2 gr.doc Shantaram D. Mengal .. Respondent WITH WRIT PETITION NO.4173 OF 2011 The State of Maharashtra .. Petitioner Vs. Navashiram Laxman Gangad .. Respondent WITH WRIT PETITION NO.4671 OF 2011 The State of Maharashtra .. Petitioner Vs. Yamraj K. Jadhav .. Respondent Mr.A.D.Kango, A.G.P. for the petitioner Ms.Seema Sarnaik with Mr.Ameya Tamhane for the respondents. WITH WRIT PETITION NO.4174 OF 2011 The State of Maharashtra .. Petitioner Vs. Bhagwan G. Jadhav .. Respondent Mr.A.D.Kango, A.G.P. for the petitioner CORAM: K.K. TATED, J. DATE: 1st AUGUST, 2011 3 gr.doc PC: 1. All these petitions are preferred by original respondents against the common judgment dt.20.08.2010 passed by learned Member, Industrial Court, Nasik directing petitioners to consider the claim of respondents original complainants for permanency on the post of vankamgar within a period of one month after obtaining the sanction of post of Vankamgar from Government. All these petitions can be disposed of by this common order as the same have arisen out of common judgment dated 20.08.2010. 2. In all these matters, respondents original complainants were working as Watchman/Worker with the petitioners since 1989, 1991 and 1993 on Employment Guarantee Scheme on several projects. In the year 2004, respondents preferred complaint under section 28 r/w items 5, 6, 9 and 10 of Schedule IV of the MRTU and PULP Act, 1971 for direction to the petitioners to provide them the benefits of permanent post of worker as Vankamgar from the date they are working as worker or after completion of 240 days or after completion of five years service. In those complaints, the petitioners filed their affidavit in reply/written statement and opposed the same. After 4 gr.doc considering the documents on record and the evidence of respondents, Industrial Court came to the conclusion that the respondents were working with the petitioners since 1989 and have completed 240 days in a preceding year before filing the complaint. The Industrial Court also held that they were doing the work as provided to the permanent workers and therefore, they are entitled to all the benefits of permanent employee. Therefore, the Industrial Court directed the petitioners to consider the respondents claim for permanency after obtaining sanction from the Government. 3. The learned A.G.P. appearing on behalf of the petitioners submits that the impugned order passed by Industrial Court dt. 20.8.2010 is against justice, equity and good conscious. He submits that the Industrial Court failed to appreciate that the respondents were appointed on daily wages basis under the Employment Guarantee Scheme from 1.11.1989 on wages of Rs.45/- per day. They never issued appointment letters to the respondents. Therefore, there is no question to consider the respondents for the benefits of permanent employees. He further submits that the Industrial Court failed to appreciate that the work which the respondents were doing is not 5 gr.doc available with the forest department of the petitioners and the appointment of the said workers like respondent were subject to the availability of the work provided in the range of the scheme and after completion of the said work, the work comes to an end automatically by virtue of completion of the said scheme. Therefore, there is no question to consider the respondents case for permanency. He further submits that the respondents failed to produce any cogent evidence on record to show that they worked for more than 240 days in a preceding year before filing the complaint. He submits that at present they do not have any post to absorb the respondents’ as permanent employees. He further submits that the court cannot direct the petitioners to create a new post for considering the respondents case as permanent employees. In support of this contention, he relies on the judgment in the matter of Indian Drugs & Pharmaceuticals Ltd. vs. Workmen, Indian Drugs & Pharmaceuticals Ltd. reported in 2007 (1) Supreme Court Cases 408. In that case, the Apex Court categorically held that the creation of posts, appointment on these posts, regularization, fixing pay scales, continuation in service, promotions etc. to be decided by the Government. All 6 gr.doc the said functions are executive or legislative and it is highly improper for the judges to step into this sphere except in rare and exceptional cases. Head Note A, C and G read as under: “A. Constitution of India – Arts.16, 14 and 309 – Public employment – Instrumentalities of State (government company) – Creation of posts, appointment to posts, regularisation, fixing of pay scales, continuation in service, promotions, etc. - Authorities competent to take decisions in respect of – Proper basis for suc decisions – Impermissibility of deciding executive or legislative and it is highly improper for Judges to step into this sphere, except in a rare and exceptional case – The court cannot create a post where none exists, nor issue directions to absorb or regularise temporary employees, as these are purely executive or legislative functions – Supreme Court cannot arrogate to itself powers of the executive or legislature – Judicial activism in this connection, deprecated – Furthermore, such questions cannot be decided in court on basis of emotions and symphathies, but must be decided on legal principles – Clarified, that directions given by Supreme Court in certain cases for regularization of temporary or ad hoc employees without laying down any principle of law, did not lay down any precedent and had to be treated as directions given under Art.142 – Situation of scarcity of jobs, and reasons therefore, posited – Observed, jobs cannot be created by 7 gr.doc judicial orders, nor even by legislative or executive, decisions – Jobs are created when the economy is rapidly expanding, which means when there is rapid industrialisation – Additional burden imposed on people at large to benefit a few, in case of State Owned/Operated Corporations C. Constitution of India – Arts. 16, 14 and 309 – Public employment – Instrumentalities of State (government company) – Temporary employee – Nature of – Rights available to – Distinct from those available to permanent employees – Held, temporary employees, who include casual, daily-rated, ad hoc employees, etc. have no right to the post, nor to be continued in service, nor to get absorption, far less of being regularised and getting regular pay, nor can a direction be passed that a temporary employee be continued till the age of superannuation since there is no age of superannuation as such employees have no right to the post at all – Service Law – State Owned/Operated Corporations – Public Sector. G. Constitution of India – Arts.141 and 142 – Decision when a precedent – Reiterated, mere directions given in a given case without laying down a principle of law do not constitute a precedent – Such directions can be treated as one given under Art.142 – Precedents.” 8 gr.doc 4. On the basis of these submissions, the learned A.G.P. appearing on behalf of the petitioners submits that the impugned order passed by the Industrial Court is liable to be set aide. 5. On the other hand, the learned counsel for respondents original complainants in Writ Petition No.4169 of 2011, 4170 of 2011, 4171 of 2011, 4172 of 2011, 4173 of 2011 and 4671 of 2011 vehemently opposed the present petition. She submits that the respondents original complainants produced on record all the documents showing that the respondents are working with the petitioners since 1989 on daily wages. She submits that the duties of the respondents are to protect the forest, save the property of forest from the thieves, carry out plantation, to water the forest plants etc. These works are similar to the work of the permanent employees of Class IV. They also collect seeds, shatawari, palas, chandan, khair gum etc. from the various herbals in the forest, which the petitioners sell. She submits that the respondents by their application called upon the petitioners before the Industrial Court to produce the muster for the relevant period. Inspite of the court order, the petitioners failed and neglected to produce the same. She further submits that in view of the resolution of the 9 gr.doc Government of Maharashtra dt.19.10.2000 respondents are entitled to the benefit of permanency on the posts of Vankamgars. She further submits that the Industrial Court only directed the petitioners to forward the proposal to the government for permanency on the post of Vankamgar in respect of respondents and therefore, there is no necessity of entertaining the present petition as in any case, whether the permanency has to be granted to the respondents is for the government to decide. Hence, there is no substance in the present petition and the same is liable to be dismissed. 6. I have gone through the impugned order dt.20.8.10 passed by the learned member, Industrial Court, copy of complaint filed by respondent and the written statement filed by petitioners. One thing is clear that the respondents are working with the petitioners since last more than 20 years on daily wages basis. They are doing the work similar to the permanent employees of Class IV. When the respondents original complainants filed the application in the Industrial Court directing the petitioners to produce the muster roll and relevant papers and though the court directed the petitioners to produce the same, they failed and neglected to do so. Admittedly, at present also the 10 gr.doc respondents are working with the petitioners on daily wages basis. 7. Considering these facts, Industrial Tribunal directed the petitioners to consider the claim of respondents for permanency on the post of Vankamgar within a period of one month after obtaining the sanction of the post of Vankamgar from the government. 8. The learned A.G.P. fairly pointed out the order passed by this court (Coram:Smt.Nishita Mhatre, J.) in Writ Petition No.3274 of 2002, Conservator of Forest and Others vs. Savala Dhondiba Pise and other connected matters in which this court dismissed the Governments’ petition arising out of the order passed by Industrial Court directing them to give the benefit of permanent post to the workers who were appointed in the forest department on daily basis. 9. In the present case, Industrial Court has only directed the petitioners to consider the respondents’ claim for permanency on the post of Vankamgar within a period of one month after obtaining the sanction of the post of Vankamgar from the Gvoernment. Therefore, I do not find any substance in the present petitions. 11 gr.doc 10.Petitions are dismissed. No order as to costs. (K.K.TATED,J.) 12 gr.doc