1 wp-1329-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY srj CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1329 OF 2011 Maharashtra State Road Transport Corporation .. Petitioner V/s. Shri Sharad M. Kadam and others .. Respondents. Mr. G.A. Karmalkar for Mr. G.S. Hegde for the Petitioner. Mr. M.S.Topkar, for Respondents. CORAM : K.K.TATED, J. DATED : 4TH MAY, 2011. P.C. 1 Heard learned counsel for the parties. 2 Rule. 3 By consent of both the parties, matter is taken on board for final hearing at the stage of admission. 4 By this Petition under Articles 226 and 227 of the Constitution of India, Petitioner/Employer challenges the Judgment dated 11th March, 2010 passed by the Industrial Court No.2, Kolhapur 2 wp-1329-11.sxw in Revision Application (ULP) No.172 of 2005 arises out of judgment and award dated 12th August, 2005 passed by the Labour Judge, Labour Court, Ratnagiri in Complaint (ULP) No.6 of 1992, dismissing Petitioner’s Review Application. 5 A few facts of the matter are as under:­ The Respondents/Original Complaints filed Complaint (ULP) No.6 of 1002 before the Labour Court, Ratnagiri against Petitioner under section 28 read with item 3 (a,b,d & f) of Schedule IV of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1971 (herein after referred to as “the said Act”). In the said complaint, Respondents contended that for the last several years, they were working with Petitioner for cleaning their buses on tismahai work basis. Thereafter, from 21st August, 1992, Petitioner stopped to allot any work to the Respondents and, therefore, they filed complaint before the Labour Court. The Labour Court passed judgment and award dated 12th August, 2005, declaring that the Petitioner were engaged in unfair labour practices under item (a) & (b) of Schedule IV of the said Act. The Labour Court directed Petitioner to reinstate all the Respondents on their previous post immediately and to give continuity in service from the date of their termination and to pay 50% of back wages from the date of 3 wp-1329-11.sxw termination till the date of their reinstatement based upon monthly pay of Rs.700/­. 6 Being aggrieved by the said judgment, the Petitioner preferred Review (ULP) No.172 of 2005 before the Industrial Court No.2 at Kolhapur under section 44 of the said Act. The Industrial Court by its judgment dated 11th March, 2010 dismissed the Review Application. 7 Being aggrieved by the said order, the Petitioner preferred present Writ Petition under Articles 226 and 227 of the Constitution of India. 8 The learned counsel Mr. Hegde appearing on behalf of the Petitioner submits that both the Courts below erred in coming to the conclusion that Petitioner is engaged in unfair labour practices. The Labour Court also erred in directing the Petitioner to reinstate the Respondents in service without any cogent reasons. He submits that the lower Courts failed to consider the fact that the Respondents were appointed on contract basis for cleaning the buses only on temporary arrangement and after obtaining regular employees, the said work was not available to the Respondents. He submits that the Courts below erred in holding that the Petitioner’s have unlawfully terminated the services of Respondents. He submits that the Labour 4 wp-1329-11.sxw Judge has erred in not considering the facts that the Respondents were appointed in the peculiar circumstances and only for temporary arrangement and, therefore, did not get rights to get the permanency. The learned counsel appearing on behalf of the Petitioner further submits that the Labour court erred in finding that there was relation of employer and employee between the Petitioner and Respondents. He also contended that the Labour Court erred in finding that the Petitioner indulged in unfair labour practices in terminating employment of Respondents without following due process of law. 9 The learned counsel appearing on behalf of Respondents vehemently opposes the present Writ Petition. He submits that both the Courts below considered the facts on record and held that the Petitioner indulged in unfair labour practices. He submits that concurrent finding and facts recorded by both the Court cannot be interfered in Writ jurisdiction under Articles 226 & 227 of the Constitution of India. He further submits that the present case is squarely covered by reported judgment in the matter of Maharashtra State Road Transport Corporation & Another v/s. Casteribe Rajya P. Karmachari Sanghatana reported in 2009 III CLR 262. He submits that in view of the Apex Court judgment, nothing survives in the present Writ Petition and same is liable to be dismissed with costs. 5 wp-1329-11.sxw 10 I have gone through the judgment passed by the Labour Court and Industrial Court and the Revision preferred by the Petitioner. The Labour Court relied on the pleading and oral as well as documentary evidence on record and on their proper accedes, comes to conclusion that there was relationship of employer and employee between Petitioner and Respondents and that finding was confirmed by the Industrial Court in Revision. I do not find any legal interference therein. Hence, their findings cannot be interfered. 11 As regards the findings that the Petitioners indulged in unfair labour practices, the decision of the Labour Court on this point is fully supported by the decision of the Apex Court in the matter of Maharashtra State Road Transport Corporation & Another (supra). The Industrial Court at Bombay in Complaint (ULP) No.542 & 574 of 1991 in the Industrial Court at Thane in Complaint (ULP) No.442 of 1992 find similar facts and their decisions were challenged before the Apex Court and facts and the decision in those cases were referred to by the Apex Court in the decision reported in the matter of Maharashtra State Road Transport Corporation & Another (supra). The Supreme Court declared a law in paras 33, 34 & 35, which reads as under:­ 6 wp-1329-11.sxw “Para 33­ In view of the findings recorded by the Industrial Court, Thane as well as Industrial Court, Bombay, it can be safely held that the posts of cleaners exist in the Corporation. No factual foundation has been laid by the Corporation that the posts of cleaners do not exist in the Corporation, rather the evidence on record reflects otherwise.” “Para – 34­ The question, now, remains to be seen is whether the recruitment of these workers is in conformity with Standing Order 503 and, if not, what is its effect? No doubt, Standing Order 503 prescribes the procedure for recruitment of Class IV employees of the Corporation which is to the effect that such posts shall be filled up after receiving the recommendations from the Service Selection Board and this exercise does not seem to have been done but Standing Orders cannot be elevated to the statutory rules. These are not statutory in nature. We find merit in the submission of Mr. Shekhar Naphade, learned Senior Counsel that Standing Orders are contractual in nature and do not have a statutory force and breach of Standing Orders by the Corporation is itself an unfair labour practice. The 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 urge that procedure laid down in Standing Order No.503 having not been followed, these employees could not be given status and principles of permanency. The argument of the Corporation, if accepted, would tantamount to putting premium on their unlawful act of engaging in unfair labour practice. It was strenuously urged by the learned Senior Counsel for the Corporation that industrial court having found that the Corporation indulged in unfair labour practice in employing the complainants as casuals on piece rate basis, the only direction that could have been given to the Corporation was to cease and desist from indulging into such unfair labour practice and no direction of according permanency to these employees could have been given. We are afraid, the argument ignores and overlooks the specific power given to the Industrial/Labour Court under Section 30(1)(b) to take affirmative action against ignores 7 wp-1329-11.sxw the erring employer which as noticed above is of wide amplitude and comprehends within its fold a direction to the employer to accord permanency to the employees affect by such unfair labour practice.” “Para­35­ Seen thus, the direction of giving status, wages and all other benefits of permanency, applicable to the post of cleaners to the complainants, in justified and warrants no interference. Question (one) is answered accordingly.” 12 The law declared by the Apex Court reported above to the facts of the above case, it must be held that the decision of the Labour Court confirmed by the Industrial Court need not interfered. Hence, Writ Petition is dismissed with no order as to costs. (K.K.TATED, J.)