1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4563 OF 1996 Mahatma Phule Krishi Vidyapeeth, Rahuri, Taluka Rahuri, District Petitioner/ Ahmednagar, through its Registrar ori.Resp. versus 1. Vitthal Sakharam Kadam, age 32, occupation service, on daily wages, residence Unchgaon, Taluka Karveer, District Kolhapur. 2. The Learned Member of Respondents/ Industrial Court,Ahmednagar No.1 original Complainant --------- Shri Manish Nawandar, Advocate for the Petitioner. Shri T.K.Prabhakaran,Advocate for Respondent No.1. Coram: P. R. Borkar, J. Judgment reserved on : 01.10.2009 Judgment pronounced on : 07.10.2009 ORAL JUDGMENT 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 2 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. 02. Briefly stated, it is the case of Respondent No.1-complainant-employee that he was appointed initially on 3.12.1985 as A.V. Operator and he worked continuously for more than 240 days with Petitioner-Agricultural University which is running various colleges at various places. The petitioner-University undertakes and carries out activities like research of seeds. Respondent No.1 was initially appointed for eleven months and thereafter he was given appointments from time to time on daily wages on the said post of A.V. Operator. Since the date of appointment, Respondent No.1 has been performing his duties as A.V. Operator. Service record of Respondent No.1, according to him, was unblemished. However, in order to deprive him right of permanency, for all these years he was kept in service on temporary basis. On 5.9.1986 and 2.9.1989, the writ 3 petitioner-employer published advertisements inviting applications for the post of A.V.Operator without laying down condition of possessing education qualification as a wireman. However, in the subsequent advertisement published on 2.10.1991 the writ petitioner imposed said condition and thereby entered into unfair labour practice under items 5, 6 and 9 of Schedule IV of the Act and thus denied Respondent No.1 right of regularization/permanency of appointment as A.V.Operator from the date of his initial appointment and, therefore, he filed the said Complaint (ULP) No. 19 of 1992. 03. Petitioner-employer filed its say at Exhibit C-9 and denied all allegations in the complaint and contended that the complaint was not maintainable. However, it as admitted that the post of A.V. Operator was advertised. It is alleged that qualification for the said post was not fulfilled by Respondent No.1 and, therefore, he was not made permanent on regular establishment on the basis of advertisement. Since the complainant did not fulfill the educational qualification, there is no question of filling vacancy of A.V.Operator on permanent basis nor can petitioner has any right to get himself appointed on permanent basis. Qualification or eligibility for the post of A.V.Operator was prescribed by the Maharashtra Council of 4 Agricultural Education and Research which is established as per the provisions laid down in the Maharashtra Universities Act, 1983. The Council has prescribed two qualifications/eligibility for the post of A.V.Operator, namely, (i) passing of S.S.C or its equivalent examination with English and (ii) wireman's examination at least in second class with minimum 2 years experience of handling and operating projector and public addressing equipment. However, preference is to be given to those who have diploma of handling and operating S.S.V. film and Slide Projector. According to petitioner-employer, Respondent No.1-complainant had not passed wireman's examination and merely holding a post of wireman is not enough as claimed by Respondent No.1. According to petitioner, it had not indulged into unfair labour practice and, therefore, complaint should have been dismissed. 4. So mainly, the question that was raised before the Industrial Court was whether Respondent No.1 complainant was fulfilling required educational qualification/eligibility as laid down by the said Maharashtra Council of Agricultural Education and Research. 5. The learned Member, Industrial Court, Ahmednagar, by his impugned judgment, came to the conclusion that the witness for the petitioner, namely, Ramesh Lokhande in his evidence admitted 5 that revised qualification for the post of A.V.Operator came into operation on 2.10.1991 and that the requisite qualification required by rules prior to 2.10.1991 for the said post was possessed by the complainant. It is held by the learned Member of the Industrial Court that since 1985, the complainant was working as A.V. Operator continuously and, therefore, the qualification revised subsequently would not apply in the case of the complainant. 6. At the time of his arguments, Shri M.N.Nawandar, learned Counsel for the petitioner- employer, raised several new points which were not raised before the Industrial Court. According Advocate Shri Nawandar, the service conditions of the petitioner are governed by the Statutes framed under the Maharashtra Agricultural Universities (Krishi Vidyapeeths) Statutes, 1990 and therefore Respondent No.1 was governed by Maharashtra Civil Services Rules and the Industrial Court had no jurisdiction. According to Advocate Shri Nawandar, the complainant was not holding requisite qualification. In support of his submissions, Advocate Shri Nawandar relied upon several authorities. Initially, Advocate Shri Nawandar referred to the Maharashtra Agricultural Universities (Krishi Vidyapeeths) Statutes 1990 and submitted that as per statute 81, the ministerial staff members shall be those who are 6 for the time being in services of the University and not included in the categories if Executive, Academic Officers, Other Officers and Academic Staff Members. As per paragraph 2 of said Statute 81, the ministerial staff members shall consist of different grades viz. "A", "B", "C" and "D" and shall be determined by the State Council having regard to the requirements of the University business, from time to time. Statute 82 speaks about cadre or cadres of ministerial staff and their designations. Statute 83 speaks that the appointment should be strictly on the basis of merits. As per statute 84, the appointment shall be made only upon recommendation of the Selection Committee. There cannot be any dispute that a person to be appointed should possess requisite qualification and should be properly selected as per the rules. Learned Counsel for Petitioner further referred to statute 138, para 1 of which reads: "Statute 138. Pay, Allowances, Pension, Leave and General conditions of services of the Employees of the University, affiliated colleges and recognised institutions other than those Recognised for Research and Specialised Higher Learning.- (1). In accordance with the provisions of section 28 and clause (c) and (g) of section 37 of the Act and the provisions made else where in the Act and the Statutes in this behalf the provisions of the following Maharashtra Civil Service 7 Rules (as amended and added from time to time) applicable to the State Government employees shall be applicable mutatis mutandis to the employees of the University, affiliated colleges and recognised institutions other than those Recognised for Research and specialised higher learning. (i) The Maharashtra Civil Services (General conditions of Service Rules, 1981; and (ii) The Maharashtra Civil Services (Pay) Rules, 1981; and (iii) The Maharashtra Civil Services (Joining Time, Foreign Services and Payments during suspension, Dismissal and Removal) Rules, 1981 and; (iv) The Maharashtra Civil Services (Leave) Rules 1981; and (v) The Maharashtra Civil Services (Pension) Rules, 1984; and (vi) The Maharashtra Civil Services (Commutation of Pension) Rules, 1984; and (vii) ................................ ......... (viii) ................................ 7. Advocate Shri T.K.Prabhakarn, learned Advocate for Respondent No.1 argued that statute 138 makes service conditions under the Maharashtra Civil Services Rules applicable to the employees of the University mutatis mutandis but the employees of the University were not equated with or granted status of State Government 8 employees. It is just adoption of certain rules in-stead of framing the same separately. Under the circumstances, it cannot be argued that the Industrial laws do not apply to the employees of the University or that present Respondent No.1 cannot approach the Industrial Court under the MRTU & PULP Act as argued on behalf of Respondent No.1. 8. One thing is very clear that the statutes referred to including statute 138, were the Statutes of 1990. Prior to that, statutes of 1968 were applicable to Mahatma Phule Agricultural University and as per statute 72 thereof, the appointment of ministerial staff has to be made pursuant to recommendation of the Selection Committee constituted for the purpose in accordance with the statute made. However, in case of emergency, the Vice Chancellor was given power to make appointment of suitable person for a period not exceeding 12 months without consulting the Selection Committee. 9. Advocate Shri Nawandar for the petitioner- employer drew my attention to Section 13-B of the Industrial Employment (Standing Orders) Act, 1946 which is regarding application of the Act. As per Section 13-B, the Industrial Employment (Standing Orders) Act, 1946 is not applicable when the Industrial Establishment in so far as workmen 9 employed therein are the persons to whom Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Service Regulations, ................. are applicable. So, it is argued on behalf of the petitioner that Respondent No.1 is governed by M.C.S.Rules as per statute 138. Advocate Shri T.K.Prabhakaran argued that under Statute 138, certain rules from M.C.S.Rules are adopted mutatis mutandis and they do not give status of State Government employees to the employees of the Agricultural Universities and, therefore, Section 13-B of the Industrial Employment (Standing Orders) Act, 1946 is not applicable to the facts of the present case. 10. This is a case of denial of right of permanency to the employee, who has been kept in service temporarily for several years and for the purpose we will have to consider item 6 of Schedule IV of the MRTU and PULP Act, which is to the effect' "General Unfair Labour Practices on the part of Employers; 1 to 5 .................................. 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." 10 11. Shri T.K.Prabhakaran, learned Advocate for Respondent No.1, drew my attention to Section 3(5) of the MRTU and PULP Act which defines the term "employee" to following effect: "3.(5) "employee" in relation to an industry to which the Bombay Act for the time being applies, means an employee as defined in clause (13) of section 3 of the Bombay Act, and in any other case, means a workman as defined in clause (s) of section 2 of the Central Act and a sales promotion employee as defined in clause (d) of section 2 of the Sales Promotion Employees (Conditions of Service) Act, 1976. As per Section 2(s)of the Industrial Disputes Act, 1947, "workman" is defined to mean:- "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 proceedings under the Act. .................................... 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. 11 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. Advocate Shri Prabhakaran argued that writ petitioner-employer cannot be allowed to contend that Respondent No.1 appointed by it in 1985 and continued from time to time did not fulfill the education qualification which were revised and which came into operation with effect from 2.10.1991. When first employed in 1985 and 12 thereafter continued for years till 1991, Respondent No.1 was having requisite qualification as admitted by the witness of the employer. 13. Learned counsel for the petitioner cited following authorities. (a) (2006) 2 SCC 702 M.P.Housisng Board v. Manoj Shrivastav. (b) (2007) 6 SCC 207 Hindustan Aeronautics Ltd. vs.Dan Bahadur Sing. (c) (2006) 5 SCC 493, National Fertilizers Ltd. vs. Somvir Singh. (d) (2009)5 SCC 625 M.Rathinaswami vs. State of T.N. (e) (1998) 4 SCC 117 State of Punjab v. Ram Lubhaya Bagga. (f) (2007) 1 SCC 408 Indian Drugs & Pharmaceuticals Ltd. vs. Worken, Indian Drugs & Pharmaceuticals Ltd. (g) AIR 1989 SC 2060 State of A.P. vs. V.Sadanandam. (h) 1994 Mh.L.J. 1004 Muni.Corpn. Amravati vs. Ashok. (i) (1985) 2 SCC 54 Abdulla Bin Ali vs. Galappa. 14. Most of the cases cited on behalf of the petitioner-employer are based on the principle laid down in the case of Secretary, State of 13 Karnataka vs. Umadevi (2006) 4 SCC 44. It is laid down that any body which falls within the definition of "State" under Article 12 is bound to comply with the Constitutional requirements as adumbrated in Articles 14 and 16 and when recruitment rules are made, employer is bound to comply with the same and any appointment in violation thereof would render it as nullity. It is also laid down that if the appointments are illegal, such employees have no right to continue in service and the fact that they have been working for a long time was not a ground for directing regularisation of their services, in view of law laid down in Umadevi's case (supra). It is also laid down that the scope of judicial review is limited. It is for the Government to lay down what should be the qualification for a particular post. The Court being not expert in administrative matters, not to sit in appeal over the decision of the executive authorities unless they are arbitrary or shocking. It is also laid down that the courts cannot create a post where none exists nor can it issue directions for absorption of temporary employees nor can court continue their services or direct to pay them salaries as all these are executive or legislative functions. Similarly, the mode of recruitment is also province of the employer. A daily wager does not hold a post or derive any legal right in relation thereto, unless appointed on a duly 14 sanctioned vacant post and upon following statutory law operating in the field. 15. Learned Advocate Shri Nawandar for the petitioner has also produced copies of advertisements issued by the petitioner on 26.12.2004, 5.9.2004, 2.9.1989 and 17.9.1991. There is no dispute that Respondent No.1 has been in continuous service of the petitioner-employer from 1985 and that as per the qualification earlier laid down, he was fulfilling the criterion and was given appointment. The mode of his selection was not challenged on the ground that it was not as per the rules. There is no such pleading nor such an argument can now be raised before this court for the first time in writ petition. 16. Relying upon the case of Municipal Corporation, Amrawati vs. Ashok Kamble, 1994 Mh.L.J. 1004 Advocate Shri Nawandar submitted that even though no objection was taken to the jurisdiction of the Industrial Court at the initial stage, if that court had no jurisdiction, the said ground can be agitated at any stage of the proceedings. However, the question whether the petitioner - University is `industry' or not or whether Respondent No.1 is `employee' within the meaning of the MRTU & PULP Act, are the matters which are not purely questions of law, but 15 those are mixed questions of law and facts and, therefore, cannot be argued before the High Court for the first time. There has to be pleadings and evidence adduced before the Industrial Court in that behalf. 17. As against that, Advocate Shri T.K. Prabhakaran has relied upon the case of Krishi Utpadan Mandi Samiti vs. Arvind Chaubey 2003 I-llJ 507. In that case, plea that the employer is not `industry' was not taken before the Industrial court. It was held that once the appellant did not raise such contention before the Industrial Tribunal, it was not available to be canvassed higher-up. 18. The second case relied upon by Advocate Shri T.K.Prabhakaran is of Rajasthan High Court in the matter of Chief Engineer, Public Health Engineering Department vs. Labour Court, Jaipur 1994 I ll.n.770. In that case, Rajasthan High Court has considered the question whether the Industrial Disputes Act, 1947 can be applied to a civil servant who also happens to be a workman and whether his right to approach the Labour Court and Industrial Tribunal for vindication of his grievance can be taken away. In the case cited, there was termination on account of absentism. It is held that there was violation of principle of natural justice in holding the departmental 16 enquiry. The court held that the Labour Court had jurisdiction to entertain the dispute. 19. Advocate Shri T.K.Prabhakarn for Respondent No.1 also cited judgment of the Supreme Court in Civil Appeal No.3433 of 2007, Maharshtra State Road Transport Corporation vs. Castribe Rajya P. Karmachari Sanghatana, decided on 28.8.2009, inter-net copy of which is produced on record. In that case in para 26, the Hon'ble Apex Court laid down law as follows; "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 17 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. 18 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. 21. In the facts and circumstances, in my opinion, this writ petition has no merits and the same deserves to be dismissed. This court cannot permit the employer-petitioner to raise new grounds or questions which were not raised before the Industrial Court. The view taken by the Industrial Court is a reasonable and proper view based on evidence on record. Before parting with this judgment, it is necessary to note that admittedly pending this writ petition Respondent No.1 is said to have acquired additional qualification, he was duly selected and now he is taken up on regular establishment. But, that will 19 not take away merit of the case filed by him before the Industrial Court. 22. Hence, Writ Petition is dismissed. Parties to bear their own costs. Rule discharged. pnd/ wp4563.96 (P.R.BORKAR, J.)