1 REPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.5138 OF 2007. The State of Maharashtra, through the Dean, Government Medical College and Hospital, Latur, Tq. and Dist.Latur. ... Petitioner. Versus 1. Girish Shankarrao Mamade, Age 28 years, Occ.Service, R/o C/o Government Medical College and Hospital, Latur. 2. Suryakant Madhavrao Shelgave, Age 30 years, Occ. Service, R/o C/o Government Medical College and Hospital, Latur. 3. Vasant Madhavrao Jamge, Age 27 years, Occ.Service, R/o C/o Government Medical College and Hospital, Latur. 4. Jayjeet S. Jagtap, Age 27 years, Occ.Service, R/o C/o Government Medical College and Hospital, Latur. 5. Kundlik Ramrao Chotmal, Age 22 years, Occ.Service, R/o C/o Government Medical College and Hospital, Latur. 2 6. Ku.Sandhya Dagadu Patil, Age 20 years,Occ.Service, R/o C/o Government Medical College and Hospital, Latur. 7. Sanjay Shivaji Ingale, Age 30 years, Occ.Service, R/o C/o Government Medical College and Hospital, Latur. 8. Sanjay Saheb Kadam, Age 30 years, Occ.Service, R/o C/o Government Medical College and Hospital, Latur. 9. S.S.Pingle, Age 28 years, Occ.Service, R/o C/o Government Medical College and Hospital, Latur. 10. Brijbhushan N.Gaikwad, Age 22 years, Occ.Service, R/o C/o Government Medical College and Hospital, Latur. 11. Shaikh M.M. Age 20 years, Occ.Service, R/o C/o Government Medical College and Hospital, Latur. 12. Rajesh Sakharam Sawant, Age 30 years, Occ.Service, R/o C/o Government Medical College and Hospital, Latur. 13. Baburao Jakoji Tate, Age 32 years, Occ.Service, R/o C/o Government Medical College and Hospital, Latur. 14. Jayjeet Sahebrao Fawade, Age 20 years, Occ.Service, R/o C/o Government Medical College and Hospital, Latur. 3 15. Sayyad Ashfaq Shaukat, Age 30 years, Occ.Service, R/o C/o Government Medical College and Hospital, Latur. 16. Gangadhar Vaijinath Munde, Age 28 years, Occ.Service, R/o C/o Government Medical College and Hospital, Latur. 17. Noor Mohd. Gul Mohd. Khan, Age 30 years, Occ.Service, R/o C/o Government Medical College and Hospital, Latur. 18. Manoj Narsingh Bhisar, Age 26 years, Occ.Service, R/o C/o Government Medical College and Hospital, Latur. 19. Ku.Parveen Mohd.Sallauddin, Age 20 years, Occ.Service, R/o C/o Government Medical College and Hospital, Latur. 20. Sanjay Marotirao Shinde, Age 28 years, Occ.Service, R/o C/o Government Medical College and Hospital, Latur. 21. Samiullah Khan Pathan, Age 24 years, Occ.Service, R/o C/o Government Medical College and Hospital, Latur. 22. Santosh Kakasaheb Patil, Age 24 years, Occ.Service, R/o C/o Government Medical College and Hospital, Latur. 23. Amar Narsing More, Age 19 years, Occ.Service, R/o C/o Government Medical College and Hospital, Latur. 4 24. Santram Kishanrao Suryawanshi, Age 30 years, Occ.Service, R/o C/o Government Medical College and Hospital, Latur. 25. Ku. Jaywanti Nanasaheb Bhise, Age 22 years, Occ.Service, R/o C/o Government Medical College and Hospital, Latur. 26. Sanjay Pandurang Togare, Age 27 years, Occ.Service, R/o C/o Government Medical College and Hospital, Latur. 27. Sukhdeo Shahdeo Mane, Age 30 years, Occ.Service, R/o C/o Government Medical College and Hospital, Latur. 28. Chottupasha Chandpasha Patel, Age 28 years, Occ. Service, R/o C/o Government Medical College and Hospital, Latur. 29. Shaikh Abdul Rauf Abdul Sayyad, Age 26 years, Occ.Service, R/o C/o Government Medical College and Hospital, Latur. 30. Abhay Shriniwasrao Raikar, Age 30 years, Occ.Service, R/o C/o Government Medical College and Hospital, Latur. 31. Shivaji Ramhari Futane, Age 25 years, Occ.Service, R/o C/o Government Medical College and Hospital, Latur. 32. Govind Devidasrao Kokate, Age 25 years, Occ.Service, R/o C/o Government Medical College and Hospital, Latur. 5 33. Rajed Gorakh Ghule, Age 33 years, Occ.Service, R/o Latur. ... Respondents. ... Mr.N.B.Khandare, Government Pleader for the petitioner. Mr.P.L.Shahane, Mr.S.S.Choudhari and Mr.S.K.Shelke, advocates for the Respondents. ... CORAM : V.R.KINGAONKAR,J. Reserved on : 22.02.2010. Pronounced on: 09.03.2010. JUDGMENT 1. By this petition, the petitioner impugns judgment and order rendered by learned Member, Industrial Court, Latur in Complaint (ULP) No.58/2005. By the impugned judgment, finding is recorded that the petitioner committed unfair labour practice as contemplated under item No.9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (For short "MRTU and PULP Act") and direction was given to pay salaries to Respondents w.e.f. 1.4.2005 onwards and to provide them work of posts on which they were working prior to termination. 6 2. By Government Notification dated 26.4.2002 it was decided to establish Government Medical College at Latur. The intake capacity was of 100 students. The notification was issued in anticipation of approval of the Medical Council since proposal was already forwarded to the Medical Council to accord necessary approval for establishment of the Medical College. Under the same Government Notification various teaching and non-teaching posts were created for the appointments on establishment of the Medical College. The Dean of the Medical College issued a public advertisement dated 18.2.2004 for filling of 69 posts of non-teaching staff members, including Library Assistant, Laboratory Technicians, Stenographer, Junior Clerks, mid- wife, Assistant Librarian, Peons, Driver, Sweeper etc. The advertisement, was for filling of the posts on contract basis. The candidates were called upon to submit their applications upto 25.2.2004 in required format-A along with true copies of the necessary documents. There is no dispute about the fact that in order to fill up 7 the said posts, the Dean of the Medical College had constituted Selection Committee. So also, a Scrutiny Committee of five teaching members, i.e. Professors/Lecturers was constituted. The interviews were scheduled on 4.3.2004. There were large number of applications received in response to the advertisement. The Dean of the Medical College published a notification, whereby the interviews were postponed for the reason that at least two (2) weeks time was required for scrutiny of the number of applications received. The Dean of the Medical College did not, however, declare further scheduled date on which oral interviews were to be held. The selection process was, however, deferred and could not be completed before middle of July 2004. In the meanwhile, on 15.6.2004, a team of Medical Council had inspected the infrastructure and other requirements of the Medical College. Some were deficiencies pointed out during the inspection. The office Superintendent prepared office notes on 13.7.2004 to the effect that the non-teaching posts were required to be filled up in order to comply with the technical objections 8 raised vide the inspection note of the Medical Council. The office submission revealed that the posts could be filled from category of candidates who were nominated by the Freedom Fighters, the candidates who were Project Affected persons, the candidates who were from category of earthquake affected persons and some of the candidates who could be appointed on purely contract basis. The Dean of the Medical College approved the office submissions on 14.7.2004. Consequently, the Respondents were appointed on various non- teaching posts. 3. There were some daily wagers who were working since before appointment but were not appointed likewise the Respondents. A complaint was made in this behalf. The then Dean of the Medical College had retired by that time. The new incumbent, who was appointed as Dean of the Medical College, nominated a Committee to inquire into one of such complaint made by some daily wagers. The Committee conducted inquiry. The Committee noticed that all the appointments were made without following the relevant Recruitment 9 Rules and Norms. The Committee noticed several defects in the process of appointments of the Respondents. The Committee found that all the appointments were made in flagrant violation of the Rules and the settled norms. The Committee also noticed that the Dean was not authorised to appoint the staff members by way of special recruitment power though he was empowered to appoint temporarily some of the Associate Professors and Professors on contract basis. The Committee found that the Respondents were appointed without interviews, preparation of merit list and appropriate method of selection. The Dean of the Medical College accepted the report of the Committee and directed that from March 2005, the salaries of the Respondents shall be withheld and they shall not be continued to work. 4. The Respondents filed complaint (ULP) No.58/2005 before the Industrial Court, Latur, alleging that they had worked for more than 240 days and were entitled to continuity of the service. They alleged that they were unlawfully 10 denied the salaries from March 2005 and thereby the petitioner committed unfair labour practice within the meaning of item No.9 of Schedule IV of the MRTU and PULP Act. They submitted that without holding any inquiry, without giving any notice of termination and without adopting proper procedure, work was denied to them and as such the petitioner committed the unfair labour practice. They contended that they were unlawfully denied regularisation in the service though they were lawfully employed inasmuch as the Dean had the authority to appoint them. Hence, they sought continuity of the service and payment of the salary w.e.f. March 2005 onwards. 5. The case of the petitioner, before the Industrial Court, was that the Respondents were not the workmen within the meaning of Section 2(s) of the Industrial Disputes Act and Section 3(5) of the MRTU and PULP Act. It was contended that there was no employer-employee relationship between the parties. It was averred that the appointments of the Respondents were totally illegal. The petitioner asserted that the Dean 11 was not authorised to fill up the posts without following the recruitment Rules. The petitioner further asserted that the Respondents were appointed dehors the Rules, without interviews and without appropriate screening of their cases and, therefore, such employees can not have any right to continue the service. The petitioner further contended that the back door entry of the Respondents in the public employment can not be approved. The petitioner denied that unfair labour practice was adopted due to denial of salaries to the Respondents as well as denial of work to them. 6. Chiefly, two questions which need determination in this petition are : "(i) Where the workmen are not employed through a contractor, but the employer has flatly denied the employer-employee relationship, whether the Industrial Court lacks jurisdiction to deal with the complaint under the MRTU and PULP Act 12 on the premise that the nature of employment does not indicate existence of such relationship.? (ii) Whether the judgment in Umadevi's case (Secretary, State of Karnataka and others Vs. Umadevi (3) and others" (2006) 4 Supreme Court Cases -1) restricts its application only to the question pertaining to the jurisdiction of the HIgh Court under Article 226 of the Constitution of India and has no reference to the local Acts under which jurisdiction has been vested in the Industrial Court to pass appropriate orders in matters involving unfair labour practices.?" 7. Mr.Khandare, learned Government Pleader strenuously argued that whether it is in relation to the jurisdiction of the Industrial Court or the Writ jurisdiction of the High Court, ultimately, ratio laid down in Umadevi will be 13 applicable to the fact situation whereever it will be noticed that the appointments are dehors the recruitment Rules. He would submit that the Respondents were inducted in the Government service through back door without requirement of undergoing the selection process as contemplated under the Rules. He argued that filling up of the posts in such arbitrary manner is absolutely violative of the settled legal principles and, therefore, the Respondents could not have any legal right to seek continuation of the services. He would submit that the Industrial Court erroneously assumed that there was employer- employee relationship between the parties. He submitted that though specific denial was offered to such relationship, yet, such important issue was not framed by the Industrial Court and, therefore, perverse finding is rendered in the context of such issue. He would submit that the Industrial Court heavily relied on testimony of C.W. Dr. Shirole the then Dean of the Medical College who had produced certain appointment orders inspite of the fact that he was not supposed to have custody thereof inasmuch as he 14 had retired way back. He argued that C.W.Dr. Shirole, was instrumental in making such bogus appointments and was bound to support his illegal actions. Mr.Khandare, submits that reliance could not be placed on version of C.W.Dr.Shirole and the Industrial Court should have directed proper action against such a witness. He submits that the Industrial Court failed to appreciate the contention of the petitioner that the Dean (C.W.Dr.Shirole) had no legal authority to make appointments of the Respondents because his restricted power was to appoint the Professors and Lecturers on contract basis for only 120 days. Mr.Khandare, urged to set aside the impugned judgment by allowing the petition. Per contra, Mr.Choudhari, Mr.Shahane and Mr.Shelke, learned advocates supported the impugned judgment. They would submit that there was no fault on part of the Respondents. They would submit that the Respondents were eligible candidates. They contended that the petitioner was guilty of failure to comply with terms of the agreement i.e. the service contract and, therefore, could be said to have committed unfair 15 labour practice within the meaning of item No.9 Schedule IV of the MRTU and PULP Act. They contended that issue of employer-employee relationship did not arise at all because admittedly, rightly or wrongly, the Respondents were appointed on various posts and were paid monthly salaries uptil March 2005 from August 2004. They contended that Umadevi's case is not attracted because it has no application to the proceedings under the MRTU and PULP Act. They submitted that the appointments, even for sake of argument are unlawful, yet, without giving any notice to show cause or without taking any administrative action, the Respondents could not have been terminated from the service. It is argued that the Respondents were appointed in order to over-come the deficiencies pointed out in the inspection note of the Medical Council. So, they could not have been "used and thrown out" in arbitrary manner. Hence, the learned advocates sought dismissal of the petition. 8. The record purports to show that initially the applications were called to fill up 16 the non-teaching posts by issuing appropriate advertisement (Exh.B) clearly shows that the posts were to be filled on contract basis. The oral interviews of the candidates were scheduled on 4.3.2004. It appears that the Scrutiny Committee informed the Dean (C.W. Dr.Shirole) that period of two (2) weeks would be required for proper scrutiny of the large number of applications which had been received in response to the advertisement. It is for such reason that the date of interviews was postponed with clarification that it would be duly published when it would be settled. Unfortunately, inspite of such publication regarding extension of the date of oral interviews, for more than four (4) months no action was taken. Assuming that two (2) weeks time was required by the Scrutiny Committee, the work of screening might have been completed at least by end of March 2004. There was no tangible reason to wait any more and not to hold the oral interviews during month of April/May/June 2004. 9. There can not be duality of opinion 17 that due to surreptitious appointments of the Respondents, a large number of applicants who were awaiting response to their applications to the advertised posts, were taken for a ride. They had no means to know why they were not called for the oral interviews. The method of recruitment was totally unknown to the recruitment Rules. The office submissions (Exh.C-Colly.) would make it manifestly clear that even amongst so-called categories of persons like those who were nominated by the Freedom Fighters, those who were Project Affected, those who were Earthquake affected etc, there was no selection as such. What appears from the record is that the names of the Respondents were indicated in the office submissions prepared by the Ministerial staff. The Dean approved the office submissions. Obviously, there was no verification about proper recommendation of the candidates who were allegedly nominated by the Freedom Fighters. There was no proper verification from the Collectorate about eligibility of other candidates like Earthquake or Project Affected categories. Though the 18 advertisement was for appointments of the candidates on contract basis, yet, all of these candidates (Respondents) except five (5) i.e. the Respondent Nos.25 to 29, were given regular posting as if they were duly selected candidates. This was nothing but highhandedness of C.W. Dr.Shirole, the then Dean of the Medical College. In fact, he could not have appointed the Respondents on permanent posts. Moreover, when the Respondents No. 25 to 29 were appointed on contract basis then why others too were not given contractual appointment.? There appears no answer to this question. The recruitment Rules were flagrantly breached in the process of such appointments of the Respondents. It has come on the record that four (4) of the employees, so appointed, are related to the staff members who were already working on establishment of the Medical College. The only deducible inference is that the appointments of the Respondents were manipulated, were made dehors the Rules and could be termed as bogus appointments. 10. Mr.Khandare, seeks to rely on "Tulip 19 Star Hotels Vs. Union of Centaur Tulip Employees" 2007 LawSuit (SC) 589. The Apex Court referred to three decisions, namely, "Vividha Kamgar Sabha Vs. Kalyani Steels Ltd. and another" 2001 (2) SCC 381, "Cipla Ltd. Vs. Maharashtra General Kamgar Union and others" 2001 (3) SCC 101 and "Sarva Shramik Sangha Vs. Indian Smelting and Refining Co. Ltd., and others" 2003 (10) SCC 455 and held that for maintainability of complaint under the MRTU and PULP Act, existence of employer-employee relationship between the parties is a must. The Apex Court held that the issue pertaining to employer-employee relationship between the parties ought to be considered before dealing with the complaint under the MRTU and PULP Act. The fact situation in the given case was altogether different. The cases where employees were appointed by the contractor and not directly by the employer, stand on different footings. The Industrial Court can not proceed with the complaint on assumption that the relationship between the workmen and the employer does exist where the Company alleges that they were not its employees but were the employees of the 20 contractor. In some of the cases referred by Mr.Khandare, the dispute was whether the employees working in the canteen were the employees of the canteen contractor or were directly under control of the Company and were appointed by the Company though the appointments were said to have been made by the contractor by way of camouflage. In the fact situation of the present case, there is hardly any scope to raise such issue. The petitioner had not disputed jurisdiction of the Industrial Court for such a reason. On the other hand, there is clear evidence to show that the Respondents were appointed by the petitioner, may be totally in breach of the recruitment Rules or norms envisaged under the Government Resolutions. Obviously, the Respondents and the petitioner were having employees and employer relationship. It follows, therefore, that the dispute could be entertained by the Industrial Court under the MRTU and PULP Act. 11. Mr.Khandare, further seeks to rely on "State of Manipur and others Vs.Y.Token Singh and 21 others" (2007) 5 Supreme Court Cases 65. The Apex Court held that fake appointments which were made without following any established procedure, without knowledge of the Department concerned, and without maintaining any record by the competent authority could have been cancelled by the Government. It is held that principles of natural justice are not required to be complied with when such appointees had no right to continue in service. It is further observed that constitutional scheme under Article 14 and 16 must he complied with by the State while offering the appointments. Mr.Khandare, heavily relied on "Secretary, State of Karnataka and others Vs. Umadevi (3) and others" (2006) 4 Supreme Court Cases 1. The Apex Court held : "The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional 22 scheme. Merely because an employee had continued under cover of an order of the court, which we have described as "litigious employment" in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its 23 instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates." ........x x x x "While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain - not at arm's length - since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground 24 alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee." 12. The ratio of Umadevi is attracted as and when it is noticed that the employment is without following the recruitment Rules. The employment of the Respondents was totally dehors the Rules and in flagrant violation of the norms. Not only that but it was done even against the declared intention shown in the advertisement of the posts. It is obvious that the Respondents had no legal right to continue in the employment 25 due to the basic infirmity in the process of appointments. This is a glaring example of back door entry in the Government employment. The contention of the learned advocates for the Respondents is that they could not be abruptly shunted out without observing principles of natural justice and without giving at least retrenchment compensation U/s 25-F of the Industrial Disputes Act. It is for such a reason that the Industrial Court held the petitioner guilty of unfair labour practices which according to the learned advocates for the Respondents is the proper view. 13. The clinching question is whether discontinuation of the Respondents' services could be regarded as unlawful retrenchment. Where the foundation of the appointments is totally shaky, it is difficult to say that the Respondents were entitled to claim continuity in the service. The view taken in "Secretary, State of Karnataka and others Vs. Umadevi (3) and others (supra)" clearly disapproves the continuity of employment where the recruitment is 26 found to have been done without following the relevant Rules. True, the Respondents were not holding the posts on the basis of fabricated orders nor they were within the class of "litigious employment". Still, however, their entry in the service is found to be illegal. Nay, they were appointed without any selection as such. It is more probable that they were