:1: :1: :1: HIGH HIGH HIGH COURT OF JUDICATURE AT BOMBAY COURT OF JUDICATURE AT BOMBAY COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION LETTERS LETTERS LETTERS PATENT APPEAL NO. 203 OF 2001. PATENT APPEAL NO. 203 OF 2001. PATENT APPEAL NO. 203 OF 2001. Maharashtra State Road Transport Corporation Through: Divisional Traffic Officer, Maharashtra, Thane, Head Office At Bombay. ..Appellants. VERSUS. 1. Kishore Kondiram Jagade, 2. Rajendra Tukaram Salunkhe, 3. Uday Shivram Mahadik, 4. Ravindra Shankar Padwal, 5. Shrikant Harichand Shinde, 6. Naresh Laxman Zaware, 7. Santosh Laxman Mali, 8. Naresh Pundlik Thale, 9. Ramesh Nathuram Naik, 10.Santosh Gangaram Patil, 11.Dipak Ganpat Vartak, 12.Vithal Hasha Gaikwad, 13.Ashok Babanrao Dudhsagar, 14.Sandip Gopinath Kadam, 15.Mohan Ganpat Kadam, 16.Mohan Rama Patil, 17.Sanjay Tukaram Shedge, 18.Sambhaji Savalaram Gharat, 19.Ramdas Jagganath Mhatre, All: Raigad. 20.Presiding Officer, Industrial Court, Thane. ..RESPONDENTS. ---- Mr. G.S.Hegde for appellant. Mr. S.M.Dharap with Mr. G.S.Godbole for respondent Nos. 1 to 19. ====== WITH WITH WITH LETTERS LETTERS LETTERS PATENT APPEAL NO. 204 OF 2001. PATENT APPEAL NO. 204 OF 2001. PATENT APPEAL NO. 204 OF 2001. 1. Maharashtra State Road Transport, Corporation, Bombay Central Bombay. 2. Divisional Controller, Bombay Division, :2: :2: :2: MSRTC Bombay. 3. Depot Manager, Kurla Nehru Nagar Depot, MSRTC Kurla, Bombay. 4. Depot Manager, Parel Depot, MSRTC, Parel, Bombay. 5. Depot Manager, Bombay Central Depot, MSRTC Bombay Central, Bombay. 6. Depot Manager, Panvel Depot, MSRTC, Panvel, Dist: Raigad. ..APPELLANTS. VERSUS. Casteribe Rajya Parivahan Karmchari Sanghatana, C-5, Bldg.No.26, New Panvel, Dist: Raigad. ..RESPONDENT. ----- Mr. G.S.Hegde for the appellant. Mr. K.S.Bapat i/b. M/s. Sanjay Udeshi & Co., for the respondent. ====== WITH WITH WITH LETTERS LETTERS LETTERS PATENT APPEAL NO. 205 OF 2001. PATENT APPEAL NO. 205 OF 2001. PATENT APPEAL NO. 205 OF 2001. 1. Maharashtra State Road Transport Corporation, Bombay. 2. Divisional Controller, Bombay Central, MSRTC Bombay. ..APPELLANTS. VERSUS. Casteribe Rajya Parivahan Karmchari Sanghatana, C-5, Bldg.No.26, New Panvel, Dist: Raigad. ..RESPONDENT. :3: :3: :3: ------- Mr. G.S.Hegde for appellant. Mr. S.M.Dharap with Mr. G.S.Godbole for respondent. ====== WITH WITH WITH LETTERS LETTERS LETTERS PATENT APPEAL NO. 206 OF 2001. PATENT APPEAL NO. 206 OF 2001. PATENT APPEAL NO. 206 OF 2001. 1. Maharashtra State Road Transport Corporation, Bombay. 2. Divisional Controller, ..APPELLANTS. VERSUS. Casteribe Rajya Parivahan Karmchari Sanghatana, C-5, Bldg.No.26, New Panvel, Dist: Raigad. ..RESPONDENT. ----- Mr. G.S.Hegde for the appellant. Mr. K.S.Bapat i/b. M/s. Sanjay Udeshi & Co., for the respondent. ====== WITH WITH WITH LETTERS LETTERS LETTERS PATENT APPEAL NO. 207 OF 2001. PATENT APPEAL NO. 207 OF 2001. PATENT APPEAL NO. 207 OF 2001. Maharashtra State Road Transport Corporation Through: Divisional Traffic Officer, Maharashtra, Thane, Head Office At Bombay. ..Appellants. VERSUS. 1. Kishore Kondiram Jagade, 2. Rajendra Tukaram Salunkhe, 3. Uday Shivram Mahadik, 4. Ravindra Shankar Padwal, 5. Shrikant Harichand Shinde, 6. Naresh Laxman Zaware, 7. Santosh Laxman Mali, 8. Naresh Pundlik Thale, 9. Ramesh Nathuram Naik, 10.Santosh Gangaram Patil, 11.Dipak Ganpat Vartak, 12.Vithal Hasha Gaikwad, :4: :4: :4: 13.Ashok Babanrao Dudhsagar, 14.Sandip Gopinath Kadam, 15.Mohan Ganpat Kadam, 16.Mohan Rama Patil, 17.Sanjay Tukaram Shedge, 18.Sambhaji Savalaram Gharat, 19.Ramdas Jagganath Mhatre, All: Raigad. ..RESPONDENTS. --- Mr. G.S.Hegde for appellant. Mr. S.M.Dharap with Mr. G.S.Godbole for respondent Nos. 1 to 19. ====== CORAM: CORAM: CORAM: S.B.MHASE & S.B.MHASE & S.B.MHASE & D.B.BHOSALE, D.B.BHOSALE, D.B.BHOSALE, JJ. JJ. JJ. DATE: DATE: DATE: MAY 6, 2005. MAY 6, 2005. MAY 6, 2005. ORAL ORAL ORAL JUDGMENT (PER S.B.MHASE,J.). JUDGMENT (PER S.B.MHASE,J.). JUDGMENT (PER S.B.MHASE,J.). 1. These Letters Patent Appeals are directed against the common judgment delivered by the learned Single Judge in Writ Petition Nos. 3831 of 1995, 2441 of 1995, 2442 of 1995 and 5801 of 1999 and 1886 of 1997. The learned Single Judge has disposed of these writ petitions by a common judgment, because the common point had arisen for consideration. The matter pertains to the employees of the Maharashtra State Road Transport Corporation (for the sake of brevity, hereinafter referred to as "the "the "the Corporation") Corporation") Corporation"). The employees involved in these writ petitions are the cleaners engaged by the Corporation for cleaning the buses and other premises of the Corporation on piece rate basis during the shift. The Caste Tribe :5: :5: :5: Parivahan Karmchari Sanghatana (for the sake of brevity, hereinafter referred to as "the Union".) is a registered Union under the Trade Unions Act and was functioning in the Corporation. The said Union had filed Complaint (ULP) No.542 of 1991 and Complaint (ULP) No. 574 of 1991 before the Member Industrial Court, Thane. The Union has alleged that the Corporation had/is indulged and indulging in the unfair labour practice under Item Nos. 5, 6, 9 & 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as "the said Act".). Complaint (ULP) Nos. 542 and 574 of 1991 were heard by the Member, Industrial Court and by a common judgment dated 25.4.1992 disposed of those complaints. The Member Industrial Court has found that the Union has failed to prove unfair labour practice under Item Nos. 9 & 10 of the said Act. The court has further held that the Complainant - Union was not recognised under the said Act, therefore, in view of the provisions of Section 21 of the said Act, Union had no authority to file the complaint for employees with respect to unfair labour practice under Item No. 6 of the said Act and no relief was given. However, by partially allowing the complaint, the Court found that the Corporation committed unfair labour practice under Item No. 5 of the said Act by paying unequal wages to the casual labourers as compared to the permanent sweepers and cleaners. :6: :6: :6: Therefore, the trial court directed that the casual labourers doing the work of cleaning the buses be paid equal wages as being paid to the permanent labourers doing the work of sweepers. 2. Being aggrieved with this judgment and order of the Member Industrial Court, Writ Petition No. 2441 of 1995 was filed by the Corporation. Writ Petition Nos. 2442 of 1995 and 3831 of 1995 were filed by the Compalainant - Union, since the complaint was dismissed by the Member, Industrial Court in respect of Item Nos. 6 & 9 of Schedule- IV of the said Act. LPA No. 204 of 2001 is directed against Writ Petition No. 3831 of 1995. LPA No. 205 of 2001 is directed against Writ Petition No. 2441 of 1995 and LPA No. 206 of 2001 is directed against Writ Petition No. 2442 of 1995. They are before this court for consideration. 3. Apart from above referred LPAs, which have arisen from ULP Complaint No. 542 of 1991 and 574 of 1991 filed by the Union, 19 other employees who were doing the work of sweeper had filed a complaint (ULP) No. 442 of 1992 before the Member Industrial Court against the Divisional Controller, Maharashtra Road Transport Corporation, Thane. In the said complaint, the same dispute as mentioned in (ULP) No. 542 & 574 of 1991 was :7: :7: :7: raised. The said complaint was disposed of by the Member Industrial Court, Thane by order dated 6.2.1997 holding that the Corporation committed unfair labour practice under Item No.6 of Schedule- IV of the said Act and directed the Corporation to give to the complainants with effect from 3.8.1992, ie., from the date of filing of the complaint the status of permanent employee and other monitory benefits equal to the regular sweepers. The Member, Industrial Court, however, dismissed the said complaint holding that the complainant has failed to prove unfair labour practice under Item Nos. 5 & 9 of Schedule-IV of the said Act. The Corporation filed Writ Petition No. 1886 of 1997 as against the said dismissal of Complaint (ULP) No. 442 of 1991. The employees also filed Writ Petition No.5801 of 1999 since their complaint under Item Nos. 5 & 9 of the said Act was dismissed. LPA 203 of 2001 is directed as against Writ Petition No. 1886 of 1997 and LPA No.207 of 2001 is directed against Writ Petition No. 5801 of 1999. Thus, it will be revealed that all these LPAs. have arisen as stated above, from the original proceedings in (ULP) Complaint Nos. 542 of 1991, 574 of 1991 and 442 of 1992 filed before the Member, Industrial Court. 4. The complaint (ULP) No. 442 of 1992 has been filed by 19 employees. In (ULP) complaint No. 542 of 1991 the Union has taken up the cause of 11 employees who were :8: :8: :8: engaged as sweepers from 1985 and 1988 in various depots of the Corporation. In ULP Complaint No. 574 of 1991 the annexure shows that the Union has taken the cause of 16 employees from the Bombay Central Depot, 19 employees from Kurla-Nehrunagar Depot and 25 employees from Parel Depot and 3 employees from Panvel Depot. 5. The case of the Complainant is that the persons enumerated in various complaints above referred to, were employed by the Corporation in various depots of the Corporation for cleaning ST buses. They are doing the work of sweeping, cleaning the passenger buses. They are also cleaning and washing rams and they are to see that the car washers and water pumps are working properly. They are equally cleaning the area near the diesel pumps. They were also doing other related work as directed by the Supervisor. They have stated that they have worked in 1 to 2 shifts and sometime even in 3 shifts and each of the employee has completed 240 days in a year. They have stated that they are continuously in service, some from the year 1980, some from the year 1985 till the date of filing of the complaint. They have stated that for number of years they have been treated as casual workers by the Corporation and are being paid at the piece rate basis, i.e., initially they were paid at the rate of Re.1/- per bus which was later on revised to Rs.2/- per bus. :9: :9: :9: Therefore, it is their contention that the Corporation is indulged into unfair labour practice under Item Nos. 5 & 6 of Schedule IV of the said Act. The cause for filing the complaint is that in the year April 1992 the new cleaners are employed by the Corporation and they were given all regular benefits and thus the Corporation has indulged into an act of unfair labour practice by showing favouritism to one side without any merits. 6. So far as the Corporation is concerned, the Corporation has come forward with various contentions though the Corporation has admitted that these employees were working with the Corporation on piece rate basis, the Corporation has denied that the Corporation has committed and/or indulged in any unfair labour practice. According to the Corporation, the Corporation is constituted under the provisions of the Road Transport Corporation Act, 1982 and is controlled by the Government of Maharashtra. The policies of the Corporation are independently framed by the Board of Directors of the Corporation which are nominated by the Government. 7. The Corporation has stated that the employment in the Corporation is regulated by the Standing Orders. The Complainant - employees were not regular basis sweepers and cleaners. Initially prior to 1985 the work of cleaning :10: :10: :10: the buses was being carried out through the helpers. However, the helpers refused to clean the buses therefore by way of a stop-gap-arrangement, the complainant - employees were asked to clean the buses at the rate of Rs.2/- per bus and the work was given as and when available. It is further their case that the Corporation has framed General Standing Order No. 503 which regulates the mode of appointment in the Corporation on regular basis. The procedure is laid down by the said General Standing order for selection and appointment of the candidates. In order to get selected as per the procedure provided under the said Standing Order, names of the employees shall be recommended by the Employment Exchange and that the Corporation has to interview and select the employees by duly constituted committees for the said purpose. Since the complainant-employees have not been selected as per above referred procedure, they cannot claim that they are the regular employees and that they are entitled to be absorbed and/or regularised, otherwise it will amount to back-door entry. The Corporation further states that since the posts were non existent, there cannot be fixation as against non existent posts. It is clarified that the posts of cleaners which were created later on have been decided to be filled in only by way of persons appointed on compassionate ground. Therefore, these workers cannot be considered for regularisation as against :11: :11: :11: the said posts. The Corporation thus denied the relationship of employer and employee. It also contended that these employees were given the work on contract basis to clean the buses at the specified rate as and when available. Therefore, there is no relationship of the employer and employee. 8. All these rival contentions have been considered by the courts below and the facts which are now crystalised for our consideration are as follows: Till 1980 the work of cleaning the ST buses was being carried out by the regular employees of the Corporation who were classified as helpers. However in 1980 helpers who were carrying out the work of sweeping refused to work and have approached the Court. Therefore, since 1980 the Corporation started to give the said work to the complainant and persons like complainant and since then the Complainant and employees represented by Union are continuously working as cleaners. Initially the rate of sweeping of the buses was Re.1/- per bus, it was later on enhanced to Rs.2/- per bus by Circular dated 16th October 1990 and that the Complainant and :12: :12: :12: similar workers were attending the duty in one shift to three shifts, as per directions of the Officers of the Corporation and accordingly attendance record is maintained by the Corporation. In respect of the casual workers, the Corporation issued this circular on 30th July 1990, 24th July 1990 and 30th July 1992 and Complainant’s employer were governed by these circulars. By Circular dated 30th July 1992, the directions were issued that henceforth the casual labourers on piece rate basis should not be appointed. However, all the employees of which we are considering the case have been appointed as piece rate shift workers prior to 30th July 1992 and they are not covered by the bar on employment as per the policy of the Corporation. On the contrary, they were employed as piece rate workers as per the various circulars issued by the Corporation from time to time. Since the work was being carried out prior to 1980 through the some of the helpers, this aspect establishes that the permanent and perennial work was available with the Corporation, namely, cleaning of the buses. Then only the dispute which was started was; as to who shall clean the buses, i.e., whether the :13: :13: :13: helpers who clean the buses and/or there shall be separate post of Swacchak (Cleaners) and during this period all these present employees were employed by the Corporation on piece rate basis. Admittedly, in the year 1992, the post of the Swacchaks were created by the Corporation by converting the part of helpers into Swacchaks but these posts were reserved for appointment on compassionate ground, though the Corporation was aware about the number of workers working on piece rate basis with the Corporation since 1980 onwards by way of stop gap arrangement. It is equally an admitted fact that none of these piece rate employees cleaning the buses were appointed by following the procedure as laid down in General Standing Order No. 503 which is applicable to the Corporation. 9. Mr. Hegade, learned counsel for the Corporation submited in respect of Complaint (ULP) Nos. 542 & 574 of 1991, that these complaints which are filed by the Union, are not tenable in view of Section 21 of the said Act. The learned counsel submitted that (ULP) complaints which have been filed by the Union are under items 5, 6, 9 & 10 of Schedule-IV of the said Act. However, the complaint under :14: :14: :14: Item No.6 cannot be filed by an Union since the complainant union is not a recognised union. According to the learned counsel, the complaint in respect of Item 2 & 6 of Schedule-IV of the said Act can only be filed by a recognised union, and if there is no recognised union to appear in the complaint, the said complaint can be filed by an employee himself, as provided in Section 21 of the said Act. The learned counsel emphatically submitted that Section 21 read with Section 28 of the said Act leads to the only one inference, namely, the complaint in respect of Item 2 & 6 of Schedule-IV of the said Act can only be filed by a recognised union and no other union than the recognised union can file the said complaint. Therefore, it is submitted that since Complaint (ULP) Nos. 542 & 574 of 1991 have not been filed by the employee concerned, in the absence of the recognised union to appear for them, the said complaints filed by an unrecognised union is not tenable and sustainable in law. He submitted that the finding recorded to that effect by the Industrial Court are justifiable. He submitted that the findings recorded by the Single Judge on this point are not proper and required to be set aside. . The learned counsel appearing for the Union submitted that the complaint under section 28 of the said Act can be filed by any union. For that purpose, he :15: :15: :15: invited our attention to Section 28 of the said Act, more specifically, to the fact that the complaint can be filed by any union or any employee or employer or investigating Officer. Therefore, he submitted that section 21 cannot be an embargo for the unrecognised union to appear in the matter. It is further submitted by the learned counsel that, so far as the Corporation is concerned, at the relevant time, when the complaints were filed there was no recognised union and therefore any union, though not recognised one, could file the complaint. Therefore, the complaint filed by the Petitioner is proper one. Mr.Hegade learned counsel submitted that when the Legislature has specifically provided that the complaint in respect of Items 2 & 6 of Schedule -IV of the said Act has to be filed by the recognised union only, then even though there is no recognised union, other union cannot file the complaint. He submitted that it will be against the legislative mandate. Therefore, he again emphasised that the complaint shall have been filed by the employee himself. Therefore, the complaint filed by the Union is not tenable. 10. Section 21(1) of the said Act is for our consideration since the Corporation is an "Industry" governed under the Industrial Disputes Act. Sub-section (2) of Section 21 is applicable to an industry wherein the Bombay Industrial Relations Act is applicable. Sub-section :16: :16: :16: (1) of Section 21 is as follows: "No employee in an undertaking to which the provisions of the Central Act for the time being apply, shall be allowed to appear or act or allowed to be represented in any proceedings relating to unfair labour practices specified in items 2 and 6 of Schedule IV of this Act except through the recognised union: Provided that, where there is no recognised union to appear, the employee may himself appear or act in any proceeding relating to any such unfair labour practices." . Item Nos. 2 & 6 of Schedule-IV of the said Act are as follows: Item 2: To abolish the work of regular nature being done by employees, and to give such work to contractors as a measure of breaking a strike. Item 6: To employ "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." 11. Needless to state that both these items pertaining to unfair labour practices are of the general importance and as a result of the said unfair labour practices not only a particular employee will be affected but equally a large number of employees on strike and/or employees working as badlis, casuals or temporaries will be :17: :17: :17: affected. Therefore, these subjects have been specifically assigned to the recognised unions and therefore right to agitate as against these subjects has been assigned to the recognised union only. However, the question arises what will happen if there is no recognised union in the said industry and/or there is recognised union but the said recognised union is not coming forward to appear. Out of these two contingencies, in the present matter we are not required to consider what happens if the recognised union is in existence in the industry, but is not appearing and/or is not coming forward, then whether unrecognised union can represent the employees for items 2 & 6 of Schedule - IV of the said Act. We are not considering this question, because for the decision of the case in hand this is not the point at issue. The point in issue before this court is, when there is no recognised union in the said industry, then in that circumstances, whether the unrecognised union working in the said industry can file a complaint or not. . In short, whether it will be proper to hold that when there is no recognised union in the industry covered by the Industrial Disputes Act, it is only the employee concerned who can file the complaint under items 2 & 6 of the Schedule - IV of the said Act and the unrecognised union cannot file the said complaint. :18: :18: :18: 12. In this respect, the reference can be made to the following judgments: (A) Petroleum Petroleum Petroleum Employees’ Union Employees’ Union Employees’ Union v/s. v/s. v/s. Bhara Bhara Bhara Corporation Corporation Corporation Limited, 1983, reported in Mah.L.J. page 618 Limited, 1983, reported in Mah.L.J. page 618 Limited, 1983, reported in Mah.L.J. page 618. The Single Judge of this Court in the said matter, dealing with this aspect has held in paragraph 5 of the said judgment; "The correct interpretation to place upon Section 21 is this: Where there is a recognised union only that recognized union can be allowed, on behalf of an employee, to appear or act or be represented in proceedings relating to unfair labour practices specified in Items 2 & 6 of the fourth schedule. Where there is no recognised union an employee may himself appear or act in any proceeding relating to such unfair labour practice. This does not mean that an unrecognised union cannot act or appear in a proceeding relating to such unfair labour practice. It can represent an employee or the employee may appear himself if he so chooses." (B) (B) (B) Another Another Another judgment is 1992(I) Bom.C.R. 286 Dyes judgment is 1992(I) Bom.C.R. 286 Dyes judgment is 1992(I) Bom.C.R. 286 Dyes and and and Chemical Workers Union v/s. Asian Chemicals Works and Chemical Workers Union v/s. Asian Chemicals Works and Chemical Workers Union v/s. Asian Chemicals Works and Ors. Ors. Ors. The Single Judge of this court relying upon the above referred judgment reported in 1983 Mh.L.J. 618, observed that; :19: :19: :19: "Mr. Justice Barucha had thus ruled that where there was no recognised union, an employee himself can appear or act in a proceeding relating to unfair labour practices covered by Items 2 & 6 of Schedule IV of the MRTU & PULP Act which does not mean that an unrecognised union cannot act or appear in such a proceeding. Mr. Justice Bharucha had categorically ruled that an