Bombay High Court
Bhandara District Central ... vs The Member Industrial Court Bhandara ... on 5 December, 2019
Author: A.S.Chandurkar
Bench: A.S.Chandurkar
1 WP893.13(j)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 893/2013
1] Bhandara District Central Co-operative Bank Ltd.
Through its Chairman, Bhandara,
Tahsil and District Bhandara.
2] Bhandara District Central Co-operative Bank Ltd.
Bhandara, through its Manager,
Both having Head Office at Civil Lines,
College Road, Bhandara.
Tahsil and District Bhandara.
....... PETITIONERS
...V E R S U S...
1] The Member, Industrial Court, Bhandara,
Tahsil & District Bhandara.
2] Shri Kishor @ Dhemya s/o Govindrao Dekate,
Aged adult, R/o Ward No.1,
Sarvodaya Samittee Dalit Mohalla, Andhalgaon,
Tahsil Mohadi, District Bhandara.
3] The Bhandara District Central Co-operative Staff
Association, Bhandara, through its
Secretary, Shri R.D.Bohote, having its office at
Tagore Ward, Bhandara.
....... RESPONDENTS
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Shri O.A.Ghare, Advocate for the petitioners.
Mrs. H.N.Prabhu, Assistant Government Pleader for the respondent no. 1.
Shri S.R.Bhongade, Advocate for respondent nos.2 and 3.
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CORAM : A.S.CHANDURKAR, J.
DATED : 05.12.2019
JUDGMENT
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2 WP893.13(j) The challenge raised in this writ petition is to the judgment of the Industrial Court dated 16.08.2012 by which the complaint filed by the respondent nos. 2 and 3 herein under Section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short, 'the said Act') has been allowed and the petitioners have been directed to grant the benefit of permanency to the respondent no.2 on the post of Peon.
2] The facts in brief are that it is the case of the respondent no.2 that by an order dated 24.12.1999 he was appointed on daily-wages on the post of Peon. The petitioners sought to discontinue his services on 04.05.2000 but the said order was withdrawn and the respondent no.2 was thereafter continued in service. Despite working continuously for a period of more than 240 days in a year, the services of the respondent no.2 were not regularized. He sent a notice to the petitioner on 24.04.2008 making a request to regularize his services and thereafter filed a complaint. In the reply filed on behalf of the petitioners, it was denied that the respondent no.2 was entitled to be made permanent in service. It was stated that the respondent no.2 was appointed by the Administrator without following the prescribed procedure. The respondent no.2 examined himself while the petitioners examined one witness. After considering the entire evidence on record, the learned Member of the Industrial Court noted that since the year 2000 the respondent no.2 was discharging duties. Under the Service Rules of the petitioners it was permissible to grant the relief of permanency to such temporary employees. Considering the various resolutions passed by the petitioners, it was held by the learned Member of the Industrial Court that the respondent no.2 was liable to be made permanent in ::: Uploaded on - 21/12/2019 ::: Downloaded on - 25/04/2020 13:53:02 ::: 3 WP893.13(j) service. Hence by the impugned judgment the complaint was allowed and the relief as sought was granted. Being aggrieved, the said judgment is challenged in the present writ petition.
3] Shri O.A.Ghare, learned counsel for the petitioners submitted that the respondent no.2 was not entitled to the relief of permanency in service. He had been appointed on daily-wages by the Administrator who was In-charge of the petitioner no.1-Bank. The provisions of Rule 18 (b) of the Service Rules were not applicable in the facts of the present case to grant the relief of permanency. The resolutions at Exhibits 212 to 231 were of the period prior to the appointment of the respondent no.2. They could not have been relied upon to grant the relief of permanency to him. The prescribed procedure while appointing the respondent no.2 had not been followed and granting relief to such an employee would result in his back door entry in service. Moreover the respondent no.2 had participated in the selection process that was conducted by the Bank but he was not successful. It was therefore submitted that the learned Judge of the industrial Court without taking into consideration the aforesaid relevant aspects and without giving due consideration to the decisions relied upon by the petitioners before the Industrial Court erred in allowing the complaint. In support of his submissions, the learned counsel relied on the decisions in Harminder Kaur and others Vs. Union of India and others, (2009) 13 SCC 90, State of Tamil Nadu through Secretary to Government, Commercial Taxes and Registration Department, Secretariat and Another Vs. A. Singamuthu, (2017) 4 SCC 113, State of Himachal Pradesh and another Vs. Ravinder Singh, (2008) 12 SCC 286 and Secretary, State of Karnataka and others ::: Uploaded on - 21/12/2019 ::: Downloaded on - 25/04/2020 13:53:02 ::: 4 WP893.13(j) Vs. Umadevi (3) and Others, (2006) 4 SCC 1 . He thus submitted that the impugned judgment was liable to be set aside.
4] Shri S.R.Bhongade, learned counsel for the respondent nos. 2 and 3 in support of the impugned order submitted that the initial orders of appointment at Exhibits 37 to 39 were issued by the General Manager of the Bank and not by the Administrator as alleged. Under the provisions of Rule 10 of the Service Rules, the appointment of the respondent no.2 was permissible and the same was accordingly done. There was also a provision to confirm the services of such temporary employees and the respondent no.2 was entitled to the benefit of those rules. A finding had been recorded that the petitioners did not bring on record the prescribed procedure of recruitment. On the contrary various admissions given by the petitioners witness were taken into consideration by the Industrial Court while granting the relief to the respondent no.2. Participation in the recruitment process would not disentitle the respondent no.2 to seek necessary reliefs. Placing reliance on the decision in Maharashtra State Road Transport Corporation and Anr. Vs. Casteribe Rajya P. Karmachari Sanghatana 2009 III CLR 262 , it was submitted that there was no reason to interfere with the impugned judgment passed by the Industrial Court.
5] I have heard the learned counsel for the parties at length and with their assistance, I have gone through the records of the case. In the complaint as filed it is the specific case of the respondent no.2 that he was initially appointed on the post of Peon by an order dated 24.12.1999 (Exhibit 37). Thereafter he was issued another ::: Uploaded on - 21/12/2019 ::: Downloaded on - 25/04/2020 13:53:02 ::: 5 WP893.13(j) order of appointment dated 08.05.2000 (Exhibit 39). Perusal of this order indicates that according to the General Manager of the petitioner no.1-Bank the services of the respondent no.2 were required at Kandri branch of the said Bank. Hence until further orders he was directed to be continued in service on daily-wages of Rs.35/- per day. In this manner the respondent no.2 continued in service and ultimately on 24.04.2008 he issued a notice to the Bank seeking relief of being made him permanent in service. It is thus clear that since the year 1999 the respondent no.2 continued in engagement with the petitioners on daily-wages. In fact, even today he is in service. As per the provisions of the Service Rules applicable to the Bank, Rule 10 permits the General Manager or Manager of the Bank to temporarily appoint employees below the clerical cadre. Rule 18 (b) prescribes making such employees permanent in service who have rendered temporary service for period exceeding one year. The petitioners examined its Officer at Exhibit 202. He referred to the provisions of Rule 11 (5) of the Service Rules permitting such appointments on temporary basis to be made. He also admitted that the General Manager had the authority to make such appointment. Despite there being an order on 04.05.2000 to discontinue the services of the respondent no.2, he was retained in service as there was need of the same. He further admitted that under Rule 10 temporary appointment could not be made for period exceeding six months. He further admitted that earlier resolutions were passed regularizing the services of various Peons.
6] The aforesaid evidence on record has been taken into consideration by the learned Judge of the Industrial Court. It has then been found that though it was ::: Uploaded on - 21/12/2019 ::: Downloaded on - 25/04/2020 13:53:02 ::: 6 WP893.13(j) the case of the petitioner that the respondent no.2 was not appointed by following the prescribed procedure, the petitioners did not bring on record such prescribed procedure. The earlier resolutions passed absorbing the services of other Peons were relied upon and it was then noted that the respondent no.2 had been deliberately retained on daily-wages since 1999 without any reason. It is found that these observations as made by the learned Member of the Industrial Court are based on material evidence available on record.
7] In M.S.R.T.C. and anr. (supra), the Hon'ble Supreme Court held that the provisions of the said Act are required to be taken into consideration and the decision of the Constitution Bench in Secretary, State of Karnataka (supra) did not have the effect of rendering the provisions of the said Act inapplicable. If it was found that casual or temporary appointments were made and such appointees were continued for years together with the object of depriving them of the status and privileges of a permanent employee, the same would amount to an unfair labour practice on the part of the employer under Item 6 of Schedule IV of the said Act. It is found that the ratio of the said decision in M.S.R.T.C. and anr. (supra) squarely applies to the case in hand. It is therefore found that the Industrial Court did not commit any error in granting relief to the respondent no.2. In the decisions relied upon by the learned counsel for the petitioners the appointments were dehors the recruitment process. In the present case the petitioners could bring on record any such prescribed procedure though the witness was examined on their behalf. On the contrary the said witness admitted that an employee appointed temporarily was entitled to have his services regularized in the light of the provisions of the Rules 10 ::: Uploaded on - 21/12/2019 ::: Downloaded on - 25/04/2020 13:53:02 ::: 7 WP893.13(j) and 18 of the Service Rules. Hence the ratio of those decisions does not assist the case of the petitioners.
8] In that view of the matter it is found that the Industrial Court after considering the entire material on record as well as the relevant Service Rules has found that the respondent nos. 2 and 3 had made out a case for being entitled to the relief of the services of the respondent no.2 being made permanent. I do not find any jurisdictional error committed in that adjudication. Hence the writ petition stands dismissed. Rule is discharged leaving the parties to bear their own costs.
However the judgment of the Industrial Court shall be implemented after a period of eight weeks from today.
JUDGE Andurkar..
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