WP/3341/1997 : 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3341 OF 1997 The District Malaria Officer, Malaria Office, Thane & anr. ... Petitioners V/s. Vijay Sitaram Yeshwantrao & Ors. ... Respondents Mr.P.G. Sawant, AGP - B Panel, for Petitioners Mr.P.K. Dhakephalkar i/b R.A. Korde for Respondents CORAM: SMT.NISHITA MHATRE, J. DATED: DECEMBER 8, 2010 ORAL JUDGMENT: 1. The petition has been preferred against the order passed in complaint (ULP) No.354 of 1989. By this order, the Industrial Court has allowed the complaint filed by the workmen, the respondents herein. It was declared that the petitioners have committed an unfair labour practice under Item 6 of Schedule IV of the MRTU & PULP Act and not under Items 5, 9 and 10. The Court has further directed that the employees named in annexure A must be accorded permanent status from the date of filing of the complaint i.e. 12.7.1989. It has further directed the petitioner to pay them their wages and arrears in accordance with their status. 2. While admitting the petition, this Court had directed that the services of the respondents should not be terminated except by disciplinary action, pending final WP/3341/1997 : 2 : hearing of the petition. It has further directed that in the event the services are to be terminated for any other reason permission of this Court was required to be sought. The petitioners were directed to pay to the employees covered by the impugned order minimum wages. 3. The Respondents have filed a complaint under Items 5, 6, 9 and 10 alleging that all the workers had been employed for years together as temporary employees with a view to deprive them of their status and benefits of permanency. It was contended that they were doing the work of a perennial nature inasmuch as they were employed for eradicating and prevention of Malaria. The workmen contended that while they were being paid monthly wages of Rs.450/-, others who were permanent were drawing Rs.1,500/- per month. They have also complained that they were not entitled to any benefits like casual leave, sick leave, privilege leave, etc. which were available to permanent employees. In these circumstances, it was prayed that the services of the workmen should be made permanent. The petitioners filed a written statement before the Industrial Court contending that they were not the employers of the workmen. According to the petitioners, CIDCO was the employer and ought to have been made a party to the complaint. It was further contended that the government had sanctioned posts in CIDCO for anti-malarial activities. The Joint Director of Health Services, Pune (Malaria & Filaria) Pune permitted the petitioners to utilise the services of 30 field workers as seasonal staff for spraying disinfectants. It is contended that the government had not sanctioned the employment of the staff for anti malarial activity. It is further pleaded that Malaria being a seasonal disease the question of appointing the respondents as permanent workmen does not arise. According to the petitioners, the workmen enlisted in Annexure A & B to the complaint WP/3341/1997 : 3 : were employed for work of a seasonal nature as they were engaged for anti malarial work. 4. The workmen led evidence by examining the respondents herein and some of the other persons mentioned in annexure to the complaint. A perusal of this testimony before the Court indicates that the workmen were employed round the year and their activities were not seasonal in nature. The workmen have described the work that they were required to do, that is of spraying insecticide and pesticides in order to eradicate Malaria and Filaria and going from door to door to enquire whether anybody was suffering from Malaria. The nomenclature used for these workmen was District Malaria Officer. However, none of them were accorded the permanent status and were continued as temporary employees from year to year. 5. The Industrial Court has noted in the impugned order that the Petitioners, though in possession of documentary evidence, had not produced any material on record to show as to when the persons mentioned in annexures A & B were appointed. No material was produced by the Petitioners to establish that their appointment was intermittent. The Industrial Court has observed further that the Petitioners inspite of several opportunities granted to them had not cross-examined the second witness for the respondents nor had they examined any witness to prove their own case. In these circumstances, the Industrial Court concluded that the Petitioners had committed an unfair labour practice under Item 6 of Schedule IV of the MRTU & PULP Act. As regards the other items, namely, Item 5, 9 and 10, the Court held that the workmen had not proved or established any unfair labour practices under these Items. WP/3341/1997 : 4 : 6. Mr.Sawant, learned AGP appearing for the petitioners, submits that the respondents were seasonal workers and employed only when the Malaria cases increased. He submits that there was no sanctioned posts with the petitioners and, therefore, these workmen could not be made permanent in service. He further submits that the workmen had not made out any case to indicate that they were temporary employees who had been continued for several years in service without making them permanent. He has relied on the judgement of the Supreme Court in the case of Secretary, State of Karnataka & ors. v/s. Umadevi & Ors., (2006) 4 SCC 1. 7. For the judgment in Umadevi (supra) to be applicable to any case, it is necessary for the employer, that is the petitioners in this case, to establish that they had pleaded and proved (i) that the workmen had been employed without following the due process of law, (ii) that there were no sanctioned posts available to make these workmen permanent and (iii) that no vacancies were available with the petitioners to make these workmen permanent. 8. In the present case, in my opinion, the pleadings of the petitioners do not bear these facts out. In fact the written statement merely proceeds on the footing that the petitioners are not liable as the CIDCO is the employer of the workmen. They have also stated that two types of activities are undertaken in the Malaria programme (i) surveillance/detection and the treatment of Malaria by examination of the blood of patients which is done by permanently appointed trained staff (ii) indoor residual insecticidal spraying during the transmission season in endangered areas done by WP/3341/1997 : 5 : the seasonal temporary staff. In short, the contention was that the workers were employed for a particular season and not continuously or perennially. The written statement however, does not mention anything about there being no sanctioned posts or that no vacancies were available for making such workmen permanent. 9. I have perused the impugned order and in my view, there is no error committed by the Industrial Court. It has considered the evidence on record and found that the workmen were engaged for work of a perennial nature. In fact since they were working throughout the year they could not be termed as temporary workmen. The Industrial Court in my view, has rightly concluded that the work being of a permanent nature, the workmen were entitled to permanency. 10. When there are no pleadings on record with regard to the sanctioned posts or vacancies available with the petitioners in my opinion I need not consider that aspect at all. In fact that was never the contention raised before the Industrial Court by the petitioners. In these circumstances, I have no doubt that the impugned order passed by the Industrial Court deserves to be confirmed. 11. Petition is therefore dismissed. Rule discharged. No costs.