W.P. No.3274 OF 2002 & Ors. : 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3274 OF 2002 Conservator of Forests & Anr. ... Petitioners V/s. Savala Dhondiba Pise ... Respondent a/w WRIT PETITION NO.3363 OF 2002 Conservator of Forests & Anr. ... Petitioners V/s. Kachru Yedu Ramkhambe ... Respondent a/w WRIT PETITION NO.3264 OF 2002 Conservator of Forests & Anr. ... Petitioners V/s. Bapu Sakharam Talekar ... Respondent a/w WRIT PETITION NO.3365 OF 2002 Conservator of Forests & Anr. ... Petitioners V/s. Ramchandra Laxman Shendkar ... Respondent W.P. No.3274 OF 2002 & Ors. : 2 : a/w WRIT PETITION NO.3273 OF 2002 Conservator of Forests & Anr. ... Petitioners V/s. Dattatray Haribhau Shinde ... Respondent and WRIT PETITION NO.3278 OF 2002 Conservator of Forests & Anr. ... Petitioners V/s. Laxman Nivrutti Pawar ... Respondent Mr.A.P. Vanarse, AGP, for Petitioners Mr.Rajiv Patil for Respondents CORAM: SMT.NISHITA MHATRE, J. JUDGEMENT RESERVED ON: JUNE 28, 2010 JUDGMENT PRONOUNCED ON: SEPTEMBER 8, 2010 JUDGMENT: 1. These petitions have been heard together and are being decided by a common judgement. They arise from a common order passed by the Industrial Court, Pune in Complaint (ULP) Nos. 96 to 101 of 1997 on 26.2.1999. 2. The petitioners in all these petitions are the Conservator of Forests and Sub- Divisional Forest Officers in Pune District. Each of the respondents in these petitions had filed separate complaints for redressal of their grievance before the Industrial W.P. No.3274 OF 2002 & Ors. : 3 : Court. The Industrial Court recorded common evidence in these complaints and has passed the impugned order. By this order, the Industrial Court has declared that the petitioners have committed unfair labour practices under Items 6 and 9 of Schedule IV of the MRTU & PULP Act. The petitioners have been directed to cease and desist from continuing these unfair labour practices. The petitioners have also been directed to make the workmen permanent and to offer them the benefits of permanency from 12.3.1997. Arrears of wages have been directed to be paid within three months of the date of the order. 3. The facts in the present petitions are as follows: Each of the workmen concerned in the petitions has filed a complaint under section 28 r/w Items 6, 9 and 10 of the Schedule IV of the MRTU & PULP Act. The grievance of the workmen is that though they were working continuously with the petitioners for years together they were not given the status of permanent employees. The workmen have described the nature of the work that they performed which included afforestation, tending to plants in the forest, preparing nurseries for plants, readying saplings for planting them, ploughing the land and all other work directed to be performed by the petitioners. They have stated that this work is available perennially. It has been further pleaded in the complaints that they are workmen under the Industrial Disputes Act and are therefore entitled to relief and benefits as workmen. They have further stated that at the end of each month they are paid wages @ Rs. 38.10 per day. Each of these workmen were employed for almost 7 years with the petitioners. They have alleged that although each of them have completed 240 days in service in the years prior to filing the complaint they were not accorded the status W.P. No.3274 OF 2002 & Ors. : 4 : of permanent workmen and consequently were deprived of the benefits available to permanent workmen. They have also pleaded that each of them was given artificial breaks in service. No seniority list was maintained by the petitioners, according to the workmen. They have therefore contended that the petitioners have committed unfair labour practices under Items 6, 9 and 10. According to the workmen, the rights enjoyed by them under the labour laws have been violated by the petitioners. The workmen therefore prayed that it be declared that they had completed 240 days in service and consequently they should be deemed to be permanent in view of various provisions of law, entitling them to benefits, status and privileges of permanent workmen. 4. A written statement was filed in each of the complaints by the petitioners. The main contentions of the petitioners before the Industrial Court were : (i) each of the workmen were called for work only when work was available and, therefore, they were not entitled to permanency or a declaration that they were entitled to the status and privileges as permanent workmen; (ii) the nature of work that the workmen were performing was casual; (iii) workmen were employed on daily wages and therefore, were not entitled to any relief; (iv) these workmen had not completed 240 days in each of the five years preceding the filing of the complaint and therefore could not avail of the benefits of a Government Resolution dated 1.11.1994, which was in force at that time, which stipulated that on completion of 5 years of service and 240 days in each year certain benefits were accorded to the workmen; (v) there are no fixed rules of appointment of such workmen; (vi) the workmen were employed on daily wages and on a temporary basis and were casual workers in the forest department. W.P. No.3274 OF 2002 & Ors. : 5 : 5. After recording the evidence led by the respondent in Writ Petition No.3278 of 2002 for himself and on behalf of the respondents in the other writ petitions, as well as the officer of the Petitioner, the Industrial Court held that the Petitioners have committed unfair labour practices under Items 6 and 9 of Schedule IV of the MRTU & PULP Act. The Industrial Court was of the view that since the workers had been employed for a long period of time i.e. for 7 years on different schemes by the Petitioners they were entitled to the relief claimed under Item 6 of Schedule IV of the MRTU & PULP Act. The Industrial Court further held that the G.R. dated 19.10.1996 ought to have been applied to the Respondents as they had all completed 5 years in service and put in 240 days of service in each year. The Industrial Court therefore held that the Petitioners had also indulged in unfair labour practices under Item 9 of Schedule IV. 6. Mr.Vanarase, the learned AGP appearing for the petitioners, vehemently argued that the Industrial Court has erred in granting the relief to the workmen. According to him, only those persons who had completed 240 days in 5 years up to 1.11.1994 were entitled to become permanent under the G.R. dated 31.1.1996. He submitted that the workers were engaged on certain projects and were not required permanently. He then submitted that there was no prayer in the complaint for permanency. Apart from this, the learned AGP submitted that the workmen were neither employed in a permanent nor a temporary vacancy and, therefore, were not entitled to the benefits of the G.R. Of 31.1.1996. He contended that the requisite procedure for recruiting these workmen was not followed. He submitted that had W.P. No.3274 OF 2002 & Ors. : 6 : these workmen completed 240 days in 5 years they would still not be entitled to a permanent status but would have been treated as supernumerary workmen. He pointed out that no permanent work is available for these workers and that they were engaged only for seasonal work. Furthermore, he submitted that there are no sanctioned posts available and therefore the workmen cannot get any relief. Mr.Vanarase relied on the judgements of the Constitution bench of the Supreme Court in the case of Secretary, State of Karnataka & ors. v/s. Umadevi & Ors., (2006) 4 SCC 1, Official Liquidator vs. Dayanad and others, (2008) 10 SCC 1, of the Division Bench of this Court in the case of The State of Maharashtra & Anr. vs. Pandurang Sitaram Jadhav, Letters Patent Appeal No.14 of 2008 in W.P. No.4141 of 2006 along with other connected LPAs and of a learned Single Judge of this Court (Chandrachud, J.) in The Conservator of Forests & anr. v/s. Shri Bajarang Popat Kale (Writ Petition No.5954 of 2003) dated 10.12.2008. According to him, these judgements apply squarely to the facts of the present case and therefore, the relief granted by the Industrial Court is unsustainable. 7. On the other hand, Mr. Patil, appearing for the workers, submitted that the impugned order of the Industrial Court is correct and the relief granted by it is in consonance with the scheme of the MRTU & PULP Act. He urged that the order should not be disturbed by this Court in its writ jurisdiction as the order is not perverse. He submitted that the Industrial Court cannot ignore an unfair labour practice merely because no posts were available with the petitioners. According to him it is for the State to create posts and it must do so once a competent court finds that the Petitioners, who are part of the machinery of the State, have committed an W.P. No.3274 OF 2002 & Ors. : 7 : unfair labour practice by depriving the workmen of the benefits of permanency by continuing them as temporary workmen for years together. He submitted that the petitioners have not explained why the G.R. of 1996 has not been extended to the present workmen. He further pointed out that a categoric statement has been made by the petitioners that there are no rules of recruitment for these workmen. The learned advocate submitted that in all these cases the workmen had not only pleaded but proved that they were entitled to a declaration that they had become permanent and that therefore they were entitled to the benefits and privileges of permanent workmen. He submitted further that there is no pleading whatsoever in the written statement filed by the Petitioners that the workers were not employed against sanctioned posts; nor is there a pleading that in case the workmen succeeded in the complaints, sanctioned posts are not available with the Petitioners for the order to be complied. Mr. Patil has referred to several judgements to buttress his contentions. 8. I will first deal with the exposition of law in the judgements cited before me. In Umadevi's case (supra), the Supreme Court was considering orders passed by the High Court in one set of appeals filed against the judgement of the Administrative Tribunal, and another group of appeals arising from orders passed by the Karnataka High Court in writ petitions filed directly under Article 226 of the Constitution. While deciding these appeals, which were in respect of the public employment, the Supreme Court noticed that several persons are employed without following a regular procedure or even through the back door, on daily wages. The Supreme Court further noted that orders were often passed by the High Courts in W.P. No.3274 OF 2002 & Ors. : 8 : exercise of their powers under Article 226 of the Constitution, regularising such appointments. The Supreme Court observed that High Courts could not, while acting under Article 226 of the Constitution, ordinarily issue directions for regularisation unless the recruitment itself was made regularly, in terms of the constitutional scheme of public employment. Deprecating the practice of the High Courts of directing absorption and regularisation of daily wage earners, the Supreme Court observed that such directions should not interfere unduly with the economic arrangement of the affairs of the State or its instrumentalities or lend themselves as instruments to facilitate the bypassing of constitutional and statutory mandates. 9. In paragraph 33 of Umadevi's judgement, the Supreme court has spoken thus: 33. It is not necessary to notice all the decisions of this Court on this aspect. By and large what emerges is that regular recruitment should be insisted upon, only in a contingency can an ad hoc appointment be made in a permanent vacancy, but the same should soon be followed by a regular recruitment and that appointments to non-available posts should not be taken note of for regularisation. The cases directing regularisation have mainly proceeded on the basis that having permitted the employee to work for some period, he should be absorbed, without really laying down any law to that effect, after discussing the constitutional scheme for public employment. In paragraphs 15, 16, 17, and 53 the Court has drawn a distinction between regular appointments and those which are irregular but not illegal. They read as under: 15. Even at the threshold, it is necessary to keep in mind the distinction between regularisation and conferment of permanence in service jurisprudence. In State of Mysore v. S.V. Narayanappa11 this Court stated that it was a misconception to consider that regularisation meant permanence. In R.N. Nanjundappa v. T. Thimmiah12 this Court dealt with an argument that regularisation would mean conferring the quality of permanence on the W.P. No.3274 OF 2002 & Ors. : 9 : appointment. This Court stated: (SCC pp. 416-17, para 26) “Counsel on behalf of the respondent contended that regularisation would mean conferring the quality of permanence on the appointment whereas counsel on behalf of the State contended that regularisation did not mean permanence but that it was a case of regularisation of the rules under Article 309. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules.” 16.In B.N. Nagarajan v. State of Karnataka8 this Court clearly held that the words “regular” or “regularisation” do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. This Court emphasised that when rules framed under Article 309 of the Constitution are in force, no regularisation is permissible in exercise of the executive powers of the Government under Article 162 of the Constitution in contravention of the rules. These decisions and the principles recognised therein have not been dissented to by this Court and on principle, we see no reason not to accept the proposition as enunciated in the above decisions. We have, therefore, to keep this distinction in mind and proceed on the basis that only something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised and that it alone can be regularised and granting permanence of employment is a totally different concept and cannot be equated with regularisation. 17.We have already indicated the constitutional scheme of public employment in this country, and the executive, or for that matter the court, in appropriate cases, would have only the right to regularise an appointment made after following the due procedure, even though a non-fundamental element of that process or procedure has not been followed. This right of the executive and that of the court would not extend to the executive or the court being in a position to direct that an appointment made in clear violation of the constitutional scheme, W.P. No.3274 OF 2002 & Ors. : 10 : and the statutory rules made in that behalf, can be treated as permanent or can be directed to be treated as permanent. 53.One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa11, R.N. Nanjundappa12 and B.N. Nagarajan8 and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme. 10. This judgement was followed in the case of Official Liquidator vs. Dayanad and others, (2008) 10 SCC 1. A bench of three Judges of the Supreme Court frowned upon the practice of smaller benches of the Court bypassing the judgement in Umadevi's case (supra). The Court observed in this case that there was no fundamental right in those who have been employed on daily wages or temporarily or on a contractual basis to claim that they have a right to be absorbed in service. The Court has observed thus: 71. ….There is no fundamental right in those who have been employed on W.P. No.3274 OF 2002 & Ors. : 11 : daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled. 11 It is true that such workmen may not have a fundamental right as observed by the Supreme Court. However, the Court has not dealt with the statutory rights of an industrial worker in either of the aforesaid judgements. The MRTU & PULP Act is a statute which deals with unfair labour practices. Under Industrial jurisprudence, which is based on welfare legislations, certain rights have been bestowed on the workmen. The workers cannot be divested of these statutory rights by the judgement in Umadevi's case (supra). Nor does the judgement in the case of Umadevi (supra) say so. To read the judgement in the case of Umadevi in a manner so as to deprive the workmen of their statutory rights, would do violence to the language of the judgement. Therefore, it is not possible to accept the submission of the learned AGP that merely because of the judgement in the case of Umadevi (supra), the rights conferred on a workman under the Industrial Disputes Act or the MRTU & PULP Act or the other labour legislations are to be ignored. 12. In The State of Maharashtra & Anr. vs. Pandurang Sitaram Jadhav, Letters Patent Appeal No.14 of 2008, the Division Bench of this Court (Swatanter Kumar, C.J. and A.P. Deshpande, J.) considered a case where the Industrial Court found that the workman in that case had been engaged on daily wages for years together. The W.P. No.3274 OF 2002 & Ors. : 12 : Industrial Court held that each of the workmen had completed 240 days in service and had not been made permanent, in breach of the standing orders applicable. The Industrial Court therefore granted permanency to the complainants from the date they completed 240 days in service and extended all benefits of permanency. The Single Judge of this Court upheld the view of the Industrial Court by observing that the judgement in Umadevi’s case (supra) would not apply to the facts in that case, as the Supreme Court had not dealt with an industrial establishment to which the Industrial Employment (Standing Orders) Act applies. The Division Bench of this Court, after quoting certain passages from the judgement in Umadevi’s case (supra), held that the provisions of the Model Standing Orders by themselves do not confer any right of permanency unless the two prerequisites are satisfied namely (i) the appointment is in conformity with the Rules relating to appointment and (ii) permanent sanctioned vacant posts being in existence. The Court therefore held that the provisions of Model Standing Orders are subject to the rules regulating selection and appointment so also subject to the constitutional scheme of public employment. I am informed at the bar that the judgement of the Division Bench has been challenged in the Supreme Court. 13. In The Conservator of Forests & anr. v/s. Shri Bajarang Popat Kale (supra) a learned Single Judge of this Court (Chandrachud, J.), while dealing with similar writ petitions in the case of employees working in the Junnar Forest Range held that the recruitment of the workmen was not in accordance with regular process of selection. The workmen were employed on the Employment Guarantee Scheme and were provided some work as a form of livelihood. It is in these circumstances the learned W.P. No.3274 OF 2002 & Ors. : 13 : Judge, by relying on the judgement in Umadevi's case (supra) and the aforesaid judgement in the Letters Patent Appeal held that, in the absence of sanctioned and vacant posts and particularly because the complainants were not appointed after following the regular process the relief granted by the Industrial Court was not warranted. The Writ Petitions were therefore allowed. In the present case, the workmen were employed for years together on work which was of a perennial nature and not on the Employment Guarantee Scheme. Thus this judgement is clearly distinguishable from the facts and circumstances in this matter. 14. In the case of MSRTC & Anr. vs. Casteribe Rajya Parivahan Karmchari Sanghatana, (2009) 8 SCC 556 the Supreme Court has considered whether the provisions of the MRTU & PULP Act had been denuded of their status by the decision of the Constitution Bench in Umadevi's case. The Court observed that the provisions of the MRTU & PULP Act and the powers of the Industrial Court and the Labour Court provided therein did not arise for consideration in the case of Umadevi. The Court noted that the issue pertaining to unfair labour practices was neither referred, nor considered nor decided in Umadevi's case. The Supreme Court dealt with this issue as follows: 30. The question that arises for consideration is: have the provisions of the MRTU and PULP Act been denuded of the statutory status by the Constitution Bench decision in Umadevi? In our judgment, it is not. 31. The purpose and object of the MRTU and PULP Act, inter alia, is to define and provide for prevention of certain unfair labour practices as listed in Schedules II, III and IV. The MRTU and PULP Act empowers the Industrial and Labour Courts to decide that the person named