1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4147 OF 1998 Maharashtra State Electricity Distribution Co.Ltd. .. Petitioner V/s Rambhau M.Raktate & Anr. .. Respondents Mr.Vaibhav Sugdare i/by M/s.M.V.Jaykar & Co. for the petitioner. Mr.A.R.Shaikh for Respondent No.1. CORAM: R.G.KETKAR, J. DATE: 08.11.2011 P.C.: 1. Heard Mr.Vaibhav Sugdare, learned counsel for the petitioner and Mr.A.R.Shaikh, learned counsel for Respondent No.1 at length. 2. By this petition, the Maharashtra State Electricity Distribution Company Limited (for short “MSEDCL”) has challenged the judgment and award dated 04.04.1998 passed by the learned Member of the Industrial Court, Nashik, (for short ‘Tribunal’) in the complaint (U.L.P.) No.358 of 1988. By the impugned order, the Tribunal declared that the petitioner herein – MSEDCL has indulged in unfair labour practices covered under item Nos.6 & 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short the ‘Act’) and the MSEDCL was directed to cease and desist from 2 indulging in unfair labour practices that were complained of. The MSEDCL was further directed to allow the Respondent (hereinafter referred to as the ‘complainant’) to work as a driver by giving benefits of service regulation No.32 w.e.f.06.06.1988 i.e. the date on which he filed the complaint by giving him pay- scale of driver and other consequential benefits subject to adjustment of additional amount paid to him while he was working as a vehicle cleaner and holding charge of driver. The relevant and material facts that are necessary for disposal of the petition are as follows. 3. The complainant instituted the complaint interalia contending that he was appointed by MSEDCL as a vehicle cleaner on 08.03.1982. He joined the service on 09.03.1982. Though he was appointed as a vehicle cleaner, he was directed to work as a driver. Thus in substance, it is his case that though he was appointed as a vehicle cleaner, in fact he was discharging the duties of a driver right from his date of joining the service. He was however neither made permanent nor was he paid salary of the post of driver. He was paid wages of vehicle cleaner. The complaint was filed section 28 read with Items 6 & 9 of Schedule 3 IV of the Act. 4. The MSEDCL filed the written statement and resisted the complaint. It was denied that the complainant was working as a driver from the day he joined service. It was further denied that the complainant was directed to work as a driver. It was however contended that since the complainant holds a driving licence, he was asked to work as a driver. It was also contended that the post of driver is to be filled in by giving advertisement and through the employment exchange. During the pendency of the complaint, the complainant filed application dated 20.09.1990 calling upon the MSEDCL to produce the documents mentioned in Item Nos.1 to 6. 5. It appears that by order dated 11.10.1991 the Tribunal dismissed the complaint. The said order was challenged by the complainant by filing Writ Petition No.671 of 1992 in this Court. One of the grievances raised before this Court was that several material documents were not produced by the MSEDCL inspite of the complainant making application to that effect before the Tribunal. Though these documents were relevant for the purpose of deciding the complaint, the Tribunal did not give clear direction 4 for production of these documents. On this short count, the order dated 11.10.1991 was quashed and set aside on 23.06.1995. This Court remanded the matter to the Tribunal for trial and disposal in accordance with law with further direction to the MSEDCL to produce the documents enumerated under Items 2 to 6 in the application dated 20.09.1990 as also to produce the documents referred to in the reply filed by the MSEDCL to the said application. Pursuant to the order passed by this Court, the parties led additional evidence. The complainant made a grievance that despite this Court directing the MSEDCL to produce documents, it has not filed those documents on record. He further deposed that he was continuously working on the post of driver from 1982 to 1988 and in order to substantiate this fact, he called upon the MSEDCL to produce the log book abstract for that period. However that document was not produced on record. 6. On behalf of MSEDCL Madhukar Sadashiv Digrajkar, Administrative Officer working at Circle Office, Nashik Road, was examined. During the course of his evidence he stated that the MSEDCL was frequently utilising the services of the complainant as a driver as he is holding driving licence for heavy 5 vehicles. He further deposed that as per the rules of promotion applicable to the establishment of the MSEDCL, if the person works on the post of vehicle cleaner for a period of five years and knows driving, he is entitled to the promotion on the post of a driver on his passing the required test and subject to his selection by the selection panel. He further admitted that though the complainant had worked continuously as a driver from 1982 to 1988, he was not promoted on the post of driver as there were clear instructions from the zonal office not to fill up the post of driver. He further admitted that no such document containing such instructions was filed on record. By the impugned judgment and order the Tribunal allowed the complaint and passed the directions as set out earlier. It is against this order, the MSEDCL has filed this petition. 7. In support of this petition, Mr.Sugdare submitted that basically the Tribunal committed serious error in holding that the complainant has established commission of unfair labour practice covered under Item 6 of Schedule IV of the Act. He further submitted that the complainant was appointed as a vehicle cleaner. He was made permanent on that post and therefore there 6 is no question of committing any unfair labour practice covered by Item 6 of Schedule IV of the Act. He further submitted that the MSEDCL is a public authority and it has to follow the recruitment rules. The complainant was appointed as a vehicle cleaner and not as a driver. The Tribunal committed serious error in directing the MSEDCL to allow him to work as a driver which in fact amounts to a back-door entry. In support of this proposition, he relied upon the judgment of the Apex Court in the case of M.P.State Co- operative Bank, Bhopal V/s. Nanuram Yadav, (2007) 8 SCC 264. 8. On the other hand Mr.A.R.Shaikh submitted that the complainant specifically came to the Court with a case that he was appointed as a vehicle cleaner. Though he was appointed as a vehicle cleaner, in fact he continuously worked as a driver. Though he was working as a driver he was not made permanent in driver’s post and therefore, the MSEDCL has committed unfair labour practice covered by Item 6 of Schedule IV of the Act. He further submitted that considering the evidence on record, the Tribunal rightly came to the conclusion that the complainant was working as a driver. This is a pure question of fact and the Tribunal has 7 dealt with this aspect exhaustively and recorded the finding in affirmative. He therefore submitted that there is no reason to take a different view from the one already taken by the Tribunal. In support of this proposition he relied upon the judgment of this Court in the case of Maharashtra Small Scale Industries & Ors V/s. Industrial Court, Maharashtra & Ors., 1991 I CLR 711. 9. I have considered the rival submissions made by learned counsel appearing for the parties. The Tribunal has come to the conclusion that the petitioner MSEDCL has committed unfair labour practice covered under Items 6 & 9 of Schedule IV of the Act. The said items read as under:- “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.” “9.Failure to implement award, settlement or agreement.” 10.As noted earlier the complainant had made an application on 20.09.1990 before the Tribunal calling upon the MSEDCL to produce the documents referred in Item Nos.2 to 6. Earlier on 11.10.1991 the Tribunal dismissed the complaint. Aggrieved by this decision, the complainant approached this Court. By order dated 23.06.1995, this Court remanded the matter to the Tribunal 8 and further directed the MSEDCL to produce the documents. 11.After disposal of the writ petition, the parties led additional evidence. The complainant made a grievance that despite this Court’s order, the MSEDCL did not produce the documents on record. He reiterated that he was continuously working for six years as a driver without any break. 12.Mr.Madhukar Sadashiv Digrajkar, working as an Administrative Officer was examined by MSEDCL. In the cross-examination he stated that the driver’s signature is obtained on the log book and not log extract and that the MSEDCL did not produce log book as called for in the application dated 20.09.1990. He admitted that MSEDCL did not file on record application dated 03.10.1986 made by the complainant for appointment on the post of driver and the recommendation made thereon by the Executive Engineer vide letter dated 10.10.1986 bearing No.6203. He admitted that the MSEDCL did not file on record the letter bearing No.377 dated 27.01.1988 by which it was admitted that the MSEDCL was frequently utilising the services of the complainant as driver, as he is holding the driving licence for heavy motor vehicles. He further deposed that MSEDCL did not file on record a single 9 document either referred by it in the Written Statement or in the proceedings before the Tribunal as directed by this Court. He admitted that as per rules of promotion applicable to the establishment of MSEDCL the person who works on the post of a cleaner for five years and knows driving, is entitled to be promoted on the post of driver on his passing the required test and subject to selection by the selection panel. He deposed that the complainant had worked continuously from 1982 to 1988 as a driver, and he was not promoted because there were clear instructions from the zonal office not to fill the post of driver. However, the said instructions were not filed on record. 13.On the basis of material on record, the Tribunal came to the conclusion that though the complainant was entitled to the post of a driver as he was driving the vehicle right from the date of his appointment, he was appointed as a cleaner. He was not made permanent on the post of driver and consequently the MSEDCL has committed unfair labour practice covered under Items 6 & 9 of Schedule IV of the Act. I do not find that the Tribunal has committed any error of law apparent on the face of record in reaching the said conclusion. The finding recorded by the 10 Tribunal is based upon evidence on record. The said finding is a finding of fact. As held by this Court in the case of Maharashtra Small Scale Industries (supra) there is no reason to take a different view from the one already taken by the Tribunal. Though the complainant was working as a driver for several years, he was not made permanent on that post. The wording of Item 6 of Schedule IV of the Act is wide enough to include the case of the complainant herein. 14.It is relevant to note that despite the complainant making application on 20.09.1990 and despite the positive direction issued by this Court to the MSEDCL while disposing of Writ Petition No.671 of 1992 to produce the documents, it failed to produce those documents. The petitioner is an employer – public body and it is required to maintain the requisite record of employment. It was for this reason that the MSEDCL was called upon to produce the relevant documents viz. (i) Seniority list of drivers and cleaners for the period 01.10.1988 to 01.10.1990, (ii) The attendance muster and voucher in relation to the complainant since 09.03.1982 till date, 11 (iii) Copy of the order issued by the MSEDCL to establish whether the order asking the complainant to work as a driver since 1982 was given in writing or was it oral, (iv) The letter issued by the Circle Office setting out therein that the promotion to the post of drivers should be given to the cleaners. (v) The relevant log books of different vehicles from the period from 1982 to 01.10.1990 on which the complainant had been working. 15.The MSEDCL did not produce these documents and thus it withheld the best available evidence, which if produced could have thrown clear light about the nature of duties of the complainant. The omission on the part of the MSEDCL to produce the crucial primary documents, justify adverse inference against it. It cannot be believed, neither it can be accepted that the establishment like the MSEDCL would not maintain the documents and registers relating to its employees. The MSEDCL would not employ any person without any record. In this background withholding of these important documents clearly shows that the MSEDCL did not disclose true and correct facts 12 before the Tribunal relating to the nature of duties of the complainant. 16.Mr.Sugdare relied upon the judgment of the Apex Court in the case of M.P. State Co-operative Bank (supra), to contend that the direction issued by the Tribunal to allow the complainant to work as a driver amounts to a back door entry. In that case, the Apex Court laid down the following principles in the matter of public appointment:- (1) The appointments made without following the appropriate procedure under the rules/ government circulars and without advertisement or inviting applications from the open market would amount to breach of Articles 14 and 16 of the Constitution of India. (2) Regularisation cannot be a mode of appointment. (3) An appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation. (4) Those who come by back door should go through that door. (5) No regularisation is permissible in exercise of the statutory power conferred under Article 162 of the Constitution of India if the appointments have been made in contravention of the statutory rules. (6) The Court should not exercise its jurisdiction on misplaced sympathy. (7) If the mischief played is so widespread and all pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, it will neither be possible nor necessary to issue individual show-cause notice to 13 each selectee. The only way out would be to cancel the whole selection. (8) When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place and the entire selection has to be set aside. 17.In the instant case, it is admitted that the complainant was appointed as a vehicle cleaner. It is nobody’s case that without following procedure for appointment on the post of vehicle cleaner as also without following the recruitment rules, the complainant was appointed as a vehicle cleaner. In the case of M.P.State Co-operative Bank (supra) the Apex Court was mainly concerned with the question as to whether the M.P.State Co- operative Bank appointed 60 clerks cum typists in accordance with the service rules. The Apex Court considered its earlier judgments in :- (i) Krishan Yadav V/s.State of Hariyana, (1994) 4 SCC 165, (ii) Union of India V/s.O.Chakradhar, (2002), 3 SCC 146, (iii) A.Umaraw V/s.Registrar, Co-operative Societies, (2004) 7 SCC 112, (iv) State of H.P V/s.Suresh Kumar Varma, (1996) 7 SCC 562, (v) State of U.P.V/s. U.P.State Law Association, (1994) 2 SCC 204, (vi) Indian Drugs and Pharmaceuticals V/s.Workmen, (2007), 14 1 SCC 408. 18.In these cases the question that arose was whether the appointments were made by following appropriate procedure under the rules or they were made fraudulently, arbitrarily. Since in the instant case it is nobody’s case that the recruitment rules were not followed while appointing the complainant as a vehicle cleaner, in my opinion, the judgment of the Apex Court in M.P.State Co-operative Bank Ltd. (supra) is of no assistance to the petitioners case. The complainant is basically contending that though he was appointed as a vehicle cleaner, in fact, he worked as a driver right from the date of joining the service of MSEDCL. The evidence on record clearly substantiates the case made out by the complainant. 19.Taking overall view of the matter, I do not find that the Tribunal committed any error of law or fact. The finding of the Tribunal is based on the available material and cannot be said to be vitiated by any error of law or fact. Nor can it be said that the Tribunal considered this aspect with wrong approach or that the finding of the Tribunal is vitiated by any extraneous or erroneous consideration. This Court while sitting in writ jurisdiction under 15 Art.226 of the Constitution of India does not sit as an appellate forum over the findings recorded by the Tribunal but the judicial review of such findings recorded by the Tribunal is confined to the manner in which the conclusions have been arrived at and not their correctness. The Tribunal has considered at length the ‘material’ placed by both the parties and on weighing the probabilities, the material placed by the complainant was found acceptable which does not call for any interference under Article 226. In the result, petition fails and the same is dismissed. Rule is discharged with no order as to costs. In view of disposal of the writ petition, the interim order stands vacated. 20.At this stage, Mr.Sugdare orally applied for stay of this order for a period of nine weeks from today. He submitted that the petition was admitted by issuing rule and the interim relief in terms of prayer clause (b) was granted on 31.08.1998 and the said order is still in force. 21.On the other hand, Mr.Shaikh opposed this application on the ground that the 1st Respondent- original complainant is due to retire in the next year. Considering the fact that the interim order is operating since 1998, in order to enable the petitioner to 16 challenge this order, there shall be stay of this order for a period of nine weeks from today. (R.G.KETKAR, J.)