( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5088 OF 1996 WITH CIVIL APPLICATION NO. 6718 OF 2005 1. Laxman s/o. Khanduji Dane .. Petitioners Age. 37 years, Occ. Service, R/o. Jambhala, Tq. Gangapur, Dist. Aurangabad. 2. Ravindra s/o. Devidas Khandake Age. 36 years, Occ. Service, R/o. S.T. Quarter, C.B.S., Aurangabad. 3. Shivaji s/o. Sandu Sathe Age. 28 years, occ. Service, R/o. F-18/3, HUDCO, Aurangabad. 4. Satish s/o. Kisan Chandan Age. 37 years, Occ. Service, R/o. Bhavani Nagar, Aurangabad. 5. Nitin s/o. Sudhakar Autee Age. 26 years, Occ. Service, R/o. N-9-M-2/32-3, HUDCO, Aurangabad. 6. Laxman s/o. Nanasaheb Lokhande Age. 29 years, Occ. Service, R/o. S.T. Quarter, Division Office, Aurangabad. 7. Prakash s/o. Pandurang Tupe Age. 28 years, Occ. Service, R/o. F-18/3, N-11, Nawajiwan Colony, HUDCO, Aurangabad. ( 2 ) Versus The Divisional Controller .. Respondent Maharashtra State Road Transport Corporation, Division, Aurangabad. Shri A.S. Deshmukh, Advocate for the petitioners. Mrs. R.D. Reddy, Advocate for sole respondent. CORAM : P.R. BORKAR,J. DATED : 12.10.2009 ORAL JUDGMENT :- 1. This writ petition is filed by seven petitioners whose Complaint (ULP) Nos. 208 of 1992 to 213 of 1992 and 229 of 1992 under the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 (for short “MRTU & PULP Act”) were dismissed by the Member, Industrial Court, Aurangabad, on 15.07.1996. 2. Briefly stated it is case of the petitioners who have filed complaint on 15.06.1992 that the petitioner in ( 3 ) Complaint (ULP) No. 208 of 1992 has joined service with the respondent on 01.02.1984; the petitioners in Complaint (ULP) No. 209 and 210 of 1992 have joined service on 01.07.1986; the petitioner in Complaint (ULP) No. 211 of 1992 had joined on 01.09.1986; the petitioners in Complaint (ULP) No. 212 and 213 of 1992 had joined on 01.07.1990 and the petitioner in Complaint (ULP) No. 229 of 1992 had joined on 01.03.1987. They were working for eight hours daily. They were washing, cleaning and sweeping the buses of the respondent and they were getting Rs.3/- per bus. Everyday about 25 buses were washed and cleaned by such employees. The work was of permanent nature. However, despite the availability of work, the petitioners were not made permanent. By amendment in the complaint on 28.06.1995, para “E” was added and it is stated therein that initially they were paid wages of Rs. 4/-. Their work was supervised. The entries were made regarding their duties by the Vehicle-Incharge-Supervisor. The group of 3-4 employees was working in every shift. One of the employees was also given some additional work. The complaints were filed stating that unfair labour practices under Item 6 & 9 of Schedule IV of the MRTU & PULP Act were indulged by the respondent and the petitioners be made ( 4 ) permanent, as inspite of years of service, they were kept temporary. 3. The respondent appeared and filed written statement, which is almost identical in all the complaints. It is contended that there was no relationship of employer and employee between the respondent and complainants/ petitioners. The petitioners were working on contract basis. They were to get payment on work basis. Thus, for washing bus, they were getting Rs. 3/- and for sweeping the bus they were getting 50 ps. There was no control or supervision over their work. They were not asked to do any work other than the contract work. No record was expected to be maintained and it was not maintained in respect of the complainants. For appointment as regular helper, passing of I.T.I. is necessary. So also there should be regular appointment by following selection procedure. The amended portion of the complaint was denied. It is stated that there was no supervision by the Vehicle-Inchare-Supervisor. 4. The learned Member, Industrial Court has accepted the defence that there was no relationship of employer and ( 5 ) employee between the respondent and the petitioners. The petitioners cannot be described as workers on daily wages or Badlis. For helpers I.T.I. Trade passing is necessary and appointment has to be made after following service procedure for selection. There were no vacancies of helpers available. The petitioners did not have necessary qualification for appointment as helper and in the circumstances there is no unfair labour practice alleged either under Item 6 or 9. 5. The unfair labour practices defined under Item 6 and 9 of Schedule IV of the MRTP & PULP Act are as follows :- “6. To employ employees as “badlis”, 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. x x x x x x 9. Failure to implement award, settlement or agreement.” 6. So far as Item 9 is concerned, no award, settlement or agreement was referred to either in the pleadings or during evidence and therefore in absence of such pleadings or evidence, it cannot be said that there is unfair labour ( 6 ) practice in as much as there is failure to implement any award, settlement or agreement. The only point that remains for consideration is whether there was unfair labour practice under Item 6 of Schedule IV i.e. to employ employees as “badlis”, casuals or temporaries and to continue them as such for years with object of depriving them of the status and privileges of permanent employees. 7. Before we go to the various rulings cited by both sides, we may refer to some of the evidence placed on record. It is not disputed that the petitioners/complainants were not holding the requisite qualification of passing of I.T.I. Trade and as such they were not eligible to be made permanent as helpers. The only argument that is advanced before this Court is vacancies of cleaners are available and the petitioners should have been considered for permanent appointment as cleaners. It does not appear from the evidence that the various dates mentioned by the complaints in their complaints since when they were engaged for washing, cleaning and sweeping buses are denied. So engagement of petitioners was from various dates mentioned in the complaints as stated above and same continued till 15.06.1992 ( 7 ) when the complaints were filed. 8. It is not disputed that no selection procedure was undergone by the complainants/petitioners. Reference was made to the evidence of Arjun Dakhade, who was holding post of Personnel Officer with the respondent. He stated that in the respondent-undertaking classification of workers is daily rated - group II workers and permanent workers. After giving advertisement and calling applications, candidates are called to fill in the vacancies. The appointments are made by orders in writing. For helpers’ post, qualification required is matriculation and passing of I.T.I. Trade. Drivers, Conductors, Mechanics and Clerks are appointed on daily wages. Daily wagers are absorbed in group II. From then they are made permanent appointees. He further stated that 5-6 years before, there was system of engaging outsiders to sweep and clean basis. 50 ps. per bus for sweeping a bus and Rs. 3/- per bus for washing were paid. Those who were willing to do such work were offered the job. The work was given on oral directions. No seniority of such workers was maintained. The complainants were not regular employees. The concerned officer used to employ them on oral terms. No ( 8 ) entries regarding employment was made in the record. He further stated that at the time of his deposition on 21.06.1996, the cleaning and washing was done by heirs of deceased employees of the Corporation as per order of the Head Office. 9. Another officer examined and whose evidence can be said to be of some relevance for decision of this case is Dnyandeo Palekar, who was working as Depot Manager at the relevant time. He stated that in those days on rate basis work of washing and sweeping the buses was given. Rate of 3/- was given for washing a bus and amount of 50 ps. was paid for sweeping a bus. The workers who wished to offer their services were asked to do washing and cleaning work. The payment was dependent on number of buses washed and cleaned. The workers in batches, one after another, used to work as per their convenience. Payment was not made on voucher or pay slips. No other work was got done from those workers. He further stated that at the time of his evidence on 27.06.1996, washing was done mechanically and female workers were employed for doing sweeping work. The complainants had come for work of their own and they were not invited. ( 9 ) 10. The learned advocate for the respondent Mrs. Reddy argued that these were the employees who were working on contract basis and they have no right of permanency or regularization. She also argued that there is no post of cleaner. They were also not properly qualified. She relied upon several authorities for holding that there is no employee-employer relationship and the MRTU & PULP Act and Industrial Disputes Act (for short “I.D. Act”) do not apply to them. She also argued that the petitioners are not daily wagers or badli workers. Under the MRTP & PULP Act, ‘employee’ is defined in Section 2 (5) and in relation to present case they are ‘workman’ as defined under clause (s) of Section 2 of the I.D. Act and Section 2 (s) of the I.D. Act, which defines workman is as follows:- “(s) ‘workman’ means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, ( 10 ) but does not include any such person - (i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or (ii) who is employed in the police service or as an officer or other employees of a person, or (iii)who is employed mainly in a managerial or administrative capacity, or (iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.” . Thus workman means any person including an apprentice employed in any industry to do manual, unskilled, skilled work for hire or reward, whether the terms of employment be express or implied. So a person may be employed on work rate basis. 11. The learned advocate for the petitioners Shri A.S. Deshmukh has relied upon certain authorities. However, the Full Bench judgment in the case of Maharashtra State Road Transport Corporation, Nagpur V/s. Premlal Khatri Gajbhiye, 2003 (3) Mh.L.J.1025 and Maharashtra State Road Transport Corp. V/s. Premlal, 2007 (4) SRJ 489 are the cases wherein ( 11 ) the dispute was regarding application of two clauses of resolution sought to be interpreted differently. The High Court held that clauses were distinct in nature and scope. In this case no settlement, award or agreement was referred to in the pleadings or during evidence and therefore it is not shown how the authorities cited are applicable to the facts of the present case. It was contention of the Corporation that Clause 49 of 1956 settlement was cancelled and revised in the Joint Committee Meeting held on 15.04.1978 and there was subsequent settlement. In that case question was if daily wager persons, have completed 180 days in aggregate during financial year etc. So, these two cases are not applicable to the facts of the present case. 12. The learned advocate Shri A.S. Deshmukh cited judgment in L.P.A. No. 44 of 1999 (Himmat Shankar Khairnar and Ors. V/s. Maharashtra State Road Transport Corp. and anr.) with other L.P.As. In para 18 it is observed that while reversing the order of the Labour Court as well as the Industrial Court, the learned Single Judge dealt with the facts which were not on record and not pleaded before the Labour Court, to hold that the appellants were not qualified ( 12 ) for appointment to the posts of helpers and that the appellants had failed to prove that they had completed the service of 240 days during the last calender year. That was a finding in the facts of said case. In that case the complainants have made complaint that inspite of putting several years of service, they had not been extended the benefit of permanency. On the other hand termination was effected without providing benefits like Sections 25-F and 25-G of the I.D. Act. The case is mainly decided on facts and as such no ratio is laid down. 13. Adv. Shri Deshmukh heavily relied on recent Supreme Court judgment in the case of Maharashtra State Road Transport Corporation and Anr. V/s. Casteribe Rajya P. Karmachari Sanghatana (Civil Appeal No. 3433 of 2007) decided by the Supreme Court on 20.08.2009. Adv. Mrs. Reddy submitted that as against said judgment, Review Petition is being filed. In para 26 of the judgment following observations are made :- “26. The question that arises for consideration is : have the provisions of MRTU & PULP Act denuded of the statutory status by the ( 13 ) Constitution Bench decision in Umadevi. 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 and 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 employees or employees affected by the unfair labour practice, or reinstatement of the employee or employees with our 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 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 the status and privileges of permanent employees is an unfair labour practice on the part of the employer under item 6 Schedule IV. Once such unfair labour practice on the part of the employer is etablished 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 MRTU & PULP Act and the powers of Industrial and Labour Courts provided therein were not at all under consideration in the case of Umadevi. 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. 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 ( 14 ) 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. It is true that the case of Dharwad District PWD Liberate Daily Wage Employees Assn. arising out of industrial adjudication has been considered in Umadevi and that decision has been held to be not laying down the correct law but a careful and complete reading of decision in Umadevi leaves no manner of doubt that what this Court was concerned in Umadevi was the exercise of power by the High Courts under Article 226 and this Court under Article 32 of the Constitution of India 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. Umadevi is an authoritative pronouncement for the proposition that Supreme Court (Article 32) and High Courts (Article 226) 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. Umadevi does not denude the Industrial and Labour Courts of their statutory power under Section 30 read with Section 32 of MRTU & PULP Act to order permanency of the workers who have been victim of unfair labour practice on the part of the employer under item 6 of Schedule IV where the posts on which they have been working exists. Unadevi cannot be held to have overridden the powers of Industrial and Labour Courts in passing appropriate order under Section 30 of MRTU & PULP Act, once unfair labour practice on the part of the employer under item 6 of Schedule IV is established.” 14. Adv. Shri Deshmukh referred to pleadings in paras 2 ( 15 ) and 4 of the said case. In that case the trade union which is not recognized under the MRTU & PULP Act had filed two complaints before the Industrial Court, Bombay, alleging unfair labour practice under item nos. 5,6,9 and 10 of Schedule IV of MRTU & PULP Act. It is alleged that the employees whose names were mentioned in the annexure were engaged by the Corporation as casual labourers for cleaning the buses between the years 1980-85. According to the complainants, those employees were required to work everyday at least eight hours at the concerned depot of the Corporation; the work done by these employees is of permanent nature. The posts of sweepers/cleaners were available in the Corporation and inspite of that these employees have been kept on casual and temporary basis for years together denying them the benefit of permanency. The Corporation has taken plea that the complainants were engated for cleaning the basis on contract basis at the rate of 1.50 paise per bus and they were not employed as ‘badlis’, casual or temporary workers. The engagement of these workers on contract basis is purely of casual nature. It is further stated that prior to 1980, the Corporation buses were being cleaned by regular helpers, but some problems arose amongst the employees. ( 16 ) Therefore, it was decided not to compel the qualified helpers to clean and sweep the buses and in those circumstances, it was decided that those who volunteered their services by reporting at the respective depot might be allowed to clean the buses on contract basis. It is stated that these workers cannot be provided with the status of permanency on par with the other permanent cleaners. 15. Mrs. Reddy also argued relying on para 26 of above referred case that in this case unfair labour practice on the part of the management is not established. The Industrial Court has rejected the complaint. Ultimately, the Supreme Court observed in para 33 of above referred case that the Industrial Court, Thane as well as Industrial Court, Bombay, had held that the posts of cleaners exist in the Corporation, though no factual details were placed on record by the Corporation. In para 34 it is observed that as per Standing Orders 503, the procedure for recruitment of Class IV employees has been given and there should be recommendations from service selection board and the selections of the complainants were not as per the procedure laid down. It is observed by the Supreme Court that Standing Orders cannot be ( 17 ) elevated to the statutory rules. Standing Orders are not statutory in nature and do not have statutory force and breach of Standing Orders by Corporation itself is unfair labour practice. It is observed that concerned employees having been exploited by the Corporation for years together by engaging them on piece rate basis, it is too late in the day for them to urge that procedure laid down in Standing Order No. 503 having not been followed, these employees could not be given status and benefits of permanency. The argument of the Corporation, if accepted, would tantamount to putting premium on their unlawful act of engaging in unfair labour practice. The Supreme Court further observed in para 42 of the case that even though trade unions were not recognized, employees should not be deprived of the status on the basis of permanency and ultimately it is held that benefit of permanency applicable to the posts of cleaner may be conferred on the complainants. It is argued by learned advocate for the petitioners that facts of the case before the Supreme Court and the facts of present writ petition are identical. 16. Learned Adv. Mrs. Reddy for the respondent also ( 18 ) referred to several authorities. In the case of State of Haryana and Ors., V/s. Charanjit Singh and Ors., 2005 AIR SCW 5632. In para 20 it is laid down that the persons employed in the case before Their Lordships, were employed on contract and they were not entitled to principle of equal pay for equal work. 17. In the case of Gangadhar Pillai V/s. Siemens Ltd., (2007) 1 S.C.C.533, it was found that the appellant was casual or temporary employee intermittently for number of years. There was no evidence to show that breaks were given so as to deprive the appellant from benefit of a permanent status and same amounted to unfair labour practice. Their Lordships also observed that in the circumstances of the case, object of temporary employment was bona fide and not to deprive the appellant employee from benefit of a permanent status. Their Lordships also referred to Section 2 (oo) (bb) of the Industrial Disputes Act and held that workman in that case was not entitled to benefit of permanency and regularization. Their Lordships observed that mere violation of Section 25-F of the Industrial Disputes Act, will not entitle workmen to regularization, even if termination of ( 19 ) services was in violation of Section 25-F and reinstatement is not the only result. In that case Their Lordship dismissed the petition. It is also observed that the reason for provision under Section 25-F is to fasten statutory liabilities upon employer to pay compensation before retrenchment, and not for any other purpose such as regularization or grant of permanent status. The facts of the case are different. There is no termination in violation of Section 25-F of the I.D. Act, in the case before this Court. 18. Next case cited by Adv. Mrs. Reddy for the respondent is Secretary, State of Karnataka & Ors., V/s. Umadevi and Ors., AIR 2006 S.C. 1806. She pointed out paras 38, 39, 41 and 42 of the said case. She emphasized on the observations that when a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such person cannot invoke the theory of legitimate expectations.