1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 4482 OF 1998 The Divisional Controller, Maharashtra State Road Transport Corporation Ltd. ....Petitioner. Versus Dattatraya Kisan Shinde (Mali), Age 27 yrs., Occu. Service, R/o. At Post Bhoom, Karba-Bhai Galli, Tq. Bhoom, Dist. Osmanabad. ....Respondent. Shri. A.B. Dhongade, Advocate for the petitioner. Shri. R.T. Nagargoje , Advocate for the respondent. CORAM : R.K. DESHPANDE, J. DATE : 24th November, 2009 ORAL JUDGMENT : 1. This petition challenges the judgment and order dated 20.7.1998 passed in complaint ULP 273/1992 by the learned Member of the Industrial Court at Solapur. The complaint filed by the respondent/ employee under section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as "the said Act") complaining unfair labour practices under item No. 6, 9 and 10 of Schedule IV of the said Act, has been allowed and it is declared that the petitioner/employer had committed unfair labour practices under item No. 6, 9 and 10 of Schedule IV of the said Act. The learned Member of the Industrial Court further directed the petitioner/employer, to issue an order of permanency to the 2 complainant as prayed with effect from 2.7.1992. It was further directed that the complainant shall be entitled for all the consequential and monetary benefits arrived, out of the permanency, with effect from 2.7.1992. The facts leading to the case are as under :- 2. The respondent/employee filed the complaint (ULP) No. 273/1992 in the Industrial Court at Solapur, alleging the unfair labour practices under item 6, 9 and 10 of Schedule IV of the said Act. The complainant in his complaint alleged that he has been continuously working in the services of the petitioner/employer right from 1985 as a cleaner on daily wages of Rs. 8/- to 10/-. It was further alleged that there are number of permanent posts available in the establishment of the petitioner/employer and the persons, who are regularly working on the said posts, are paid the salary of Rs. 1200/- p.m. The complainant has further alleged that he has completed more than 240 days continuous service in the employment of the petitioner. However, in order to deprive him from the benefits of permanency, he has been engaged on daily wages, in spite of the fact that the work of cleaner was increasing day by day. He has further alleged that the work of the cleaner, performed by the regular employees, is of the same kind, which is performed by the complainant and therefore, he was entitled to pay, equivalent to the pay of the regular employees. He further claimed that he is also entitled to all such benefits as are available to the regularly appointed cleaners. 3 3. The petitioner/employer filed its written statement, opposing the claim of the complainant. The complainant did not deny the averments made in the complaint that there existed posts of cleaners in the establishment of the petitioner/employer. The stand of the petitioner/employer was that the services of the complainant were engaged on contract basis as and when the same were required and merely because he has completed 240 days service during the period of 7 years, does not entitle him to get permanency in the employment. It was further the stand taken that there is a separate procedure prescribed for the appointment of cleaner in the establishment of the petitioner, by advertising the posts and by calling the names from the Employees Exchange, Social Wellfair Board etc. The selection committee is required to be constituted and after selection of candidates, the regular appointments are made. According to the petitioner/employer, this procedure was not followed while appointing the petitioner on every occasion and therefore, the complainant is not entitled to get permanency in the employment. 4. The complainant examined himself and stated that he has been continuously working as a cleaner on daily wages since 1985. He has further stated that there are vacancies available and the identical work is performed by the other persons working as helper. In the cross examination, he has clarified that by making a reference to helper, he meant that it was post of cleaner and he was working as cleaner in the 4 employment. He has stated that he has completed 240 days continuous service in the employment of the petitioner. He has produced on record receipt at Exh. C-10 regarding payment for the month of June 1992, Exh. C-11 - receipt, for payment of Rs. 33.50 ps. for the month of June 1992 and other similar receipts at Exh. C-12, C-16, evidencing payment for washing and cleaning for buses. He also moved an application dated 24.1.1997, Exh. U-8, seeking direction to the petitioner to produce documents on record and such direction was issued by Court on 12.2.1997. The petitioner/employer, however, did not lead any evidence, either oral or documentary. 5. The learned Member of the Industrial Court, by its judgment and order dated 20.7.1998, decided the complaint ULP No. 273/1992. The learned Member relying upon the documents produced by the complainant, showing that he has completed 240 days continuous service on daily wages, recorded a finding that the employer has not disputed that the complainant has worked for more than 7 years continuously. The learned Member also took into consideration the fact that the employer has failed to produce the documents on record. The Industrial Court further rejected the plea of the employer that it has failed to establish that the complainant was working as an independent contractor. The Court further recorded a finding that there is a grade of cleaner in the corporation and other employees are doing the similar nature of job, who are getting all the benefits of permanent employees. It 5 has further recorded a finding that there is absolutely no reason for the employer to deprive the complainant from his legal right of getting permanency in the employment. The Industrial Court also rejected the plea of the employer that the cleaners are required to be employed in accordance with the Services Rules, as the employer had failed to produce the Service Rules on record. On these findings the complaint was allowed. 6. Shri. A.B. Dhongade, the learned counsel appearing for the petitioner, has urged that there is no relationship of the employer and employee, which has been established. He urged that the complainant was not a workman, but was appointed, purely on contract basis as and when his services were required. He has urged that the learned Member of the Industrial Court had committed an error in holding that the petitioner corporation has failed to establish that the complainant was appointed as an independent contractor. 7. As against this Shri. R.P.Nagargoje, the learned counsel appearing for the respondent/employee, has urged that the Industrial Court had recorded a finding of fact that the complainant has completed more than 7 years continuous employment with the petitioner establishment and he was deprived of all the benefits of permanency and therefore, the Industrial Court has rightly held that the petitioner/employee was engaged as contemplated under item No. 6, 9 and 10 of Schedule 4 of the 6 said Act. He has further submitted that there is no dispute on the question that there existed the post of cleaner in the establishment of the petitioner and therefore, there is no justifiable ground put forth by the employer to warrant interference in the order passed by the Industrial Court. The learned counsel relied upon the decision of the Apex Court reported in 2009 (8) SCC 556, Maharashtra State Road Corporation and another Vs. Casteribe Rajya Parivahan Karmachari Sanghatna. He further relied upon the decision of the Single Judge of this Court delivered in Writ Petition No. 5088/1996, Laxman s/o. Khanduji Vs. The Divisional Controller, MSRTC, on 12.10.2009. According to him, in both these judgments, the complainants were working as cleaners in the services of the Maharashtra State Road Corporation and it has been held that that the employer was engaged in unfair labour practices as covered by item No. 6, 9 and 10 of Schedule IV of the said Act. 8. The employer has not seriously disputed the fact that the complainant has worked for more than 240 days continuously in the services of the petitioner. The same is also the finding recorded by the Industrial Court in the order impugned in this petition and there is no challenge to the said finding. It is, therefore, confirmed that the complainant has completed more than 240 days continuous employment with petitioner. The employer also did not dispute the pleadings and the evidence brought on record by the complainant to 7 establish that there existed the posts of cleaners in the establishment of the petitioner and this is also a finding recorded by the learned Member of the Industrial Court. There is no challenge to this, in the instant petition. It is also not in dispute that there are other persons working as cleaners on regular basis, getting regular pay scale and other benefits available to the permanent employees. It is also not in dispute that the complainant has been employed on daily wages to work as cleaner. Thus, this court is required to proceed on this undisputed factual position. 9. The main ground raised by the petitioner/employer is that the complainant was appointed as an independent contractor and there was no relationship of employer and employee. This plea has not been accepted by the Industrial Court. The Industrial Court has recorded a finding that the petitioner/employer has failed to bring on record any evidence to establish that the complainant was appointed as an independent contractor for the purpose of cleaning buses. When this plea is raised by the employer, the burden obviously lies upon the employer to establish the said fact. The learned counsel for the petitioner is unable to point out any evidence on record to substantiate his plea. In view of this, the learned Member of the Industrial Court rightly rejected the said contention. 10. So far as the applicability of the Service Rules are concerned, it is 8 also not in dispute that the employer has failed to bring on record the Service Regulations, wherein it is said that a separate procedure for appointment was prescribed to the post of cleaner. In the absence of any such Service Rules produced on record, the Industrial Court was right in rejecting the said plea of employee. Apart from this, in the judgment of the Apex Court relied upon by the learned counsel for the complainant in the matter of Maharashtra State Road Transport Corporation cited supra, such a contention has been negatived. Similarly, the another judgment of the learned Single Judge of this Court delivered in Writ Petition No. 5088/1996 decided on 12.10.2009, wherein also such a contention has been rejected. Thus, there is no substance in this contention raised by the petitioner /employer. 11. Except the aforesaid ground, no other ground is raised by the learned counsel for petitioner. 12. In the result, there is no substance in the instant writ petition. The same is, therefore, dismissed with costs. [ R.K. DESHPANDE, J. ] ssc/wp4482.98