Bombay High Court
Shripati Pandurang Khade vs Zonal Manager, Maharashtra State ... on 9 March, 1987
Equivalent citations: (1987)89BOMLR153
JUDGMENT V.V. Vaze, J.
1. Pursuant to the provisions of the Maharashtra Cotton (Procurement, Processing and Marketing) Act, 1971, the Government of Maharashtra appointed the Maharashtra State Co-operative Marketing Federation Limited ('Federation'), a society, registered under the Co-operative Societies Act, as its agent. The jurisdiction of this Federation extended to various agricultural produce including foodgrains such as Jawar etc. and it was felt that the working of this Federation is becoming unwieldly. In Maharashtra, only certain areas are mainly cotton growing like the Vidarbha area and some portions of Western Maharashtra, and hence Government decided to carve out the operation of the levy of cotton from the other activities of the Federation and assign them to another society siz., the Maharashtra State Co-operative Cotton Growers Federation Limited. This was done sometime in February, 1984.
2. Delineating the area of operation from the activities the main Federation did involve certain questions of succession and division of labour. By it's letter dated September 8, 1984, Government of Maharashtra in its Agriculture and Co-operative Department, gave certain directions to take effect from September 30, 1984 to the Federation which included transfer of assets and liabilities under the Cotton Growers Scheme, cash and bank balance at Bombay and mofussil areas in the scheme account as well as under the non-scheme account, balance under cash-credit accounts with the Maharashtra State Co-operative Bank and other banks as well as the other legal claims and insurance claims to be transferred to the Cotton Growers Federation. It was also provided that the stock of cotton bales, cotton seed, lint, tarpauline and other moveables as on September 30, 1984 should be transferred to the Cotton Growers Federation after preparing a detailed list. The Cotton Growers Federation was also to take up the liability of loans from the Maharashtra State Co-operative Bank, This letter did not make any reference to the action to be taken as respects the employees whose services have been transferred to the Federation. That was done at a latter date. By letter dated November 9, 1984, the State Government gave directions regarding the positioning of the staff. Such of the members of the staff that were recruited after July 1, 1972 in the cotton scheme were to be placed on deputation without payment of deputation allowance with the Federation. The Federation was expected to absorb the above categories as staff. On August 10, 1984, further directions were given and the staff was divided into two categories. The first category was in respect of the staff working under the Cotton Monopoly Scheme whose services were to be terminated with immediate effect and in any case, not later than August 15, 1984. As far as the "regular staff" is concerned, it was decided that the staff working in the cotton department of the Federation at Bombay and in the mofussil area should be placed at the disposal of the new organisation i.e. the Cotton Growers Federation on "As Is Where Is" basis as on July 1, 1984. ('As is where is' is rather an odd way of describing men; it is used for machinery accidented cars etc.)
3. Pursuant to the orders of the Government, letters were issued to various employees in which the employee was told that he is being fixed in the scale of 200-505 and his seniority is to be fixed after taking into consideration his previous service. This scheme of absorbtion of the employees of the Federation by the newly formed Cotton Growers Federation worked well and even according to the Federation, some 2077 employees were absorbed in the New Federation.
4. The present petitioners along with others were not so absorbed. They moved the Industrial Court at Kolhapur by filing complaints being U.L.P. Nos. 255/84. 14/85, 19/85 and 37/85 in which they alleged that the Co-operative Marketing Federation as well as the Cotton Growers Federation being respondents 1 and 2 engaged in unfair labour practice inasmuch as they tried to terminate the complainants' services inspite of the fact that the complainants have put in a long 12 years service. The complainants then referred to Award No. 213/73 which had directed the Co-operative Marketing Federation to make permanent such of the workers who have put the continuous service of 240 days. All the complainants averred that they have put in such service, but in flagrant breach of the provisions of the Award, the respondents treated them as temporary. The complainants prayed that they may be directed to be made permanent and absorbed in the service of the Cotton Growers Marketing Federation as per the directives of the State Government issued from time to time. The learned Member of the Industrial Court held that the Cotton Growers Federation is a separate creation of the Government of Maharashtra and being a new and separate establishment created for the purpose of implementation of the Cotton Monopoly Scheme, the two Federations are separate juristic persons. The learned Member then proceeded to say that simply because the office premises, furniture etc. is the same, it cannot be said that the Cotton Growers Federation is a part and parcel of Marketing Federation. In view of this finding, the learned Member held that the Award between the employees and the management of the Marketing Federation does not become binding on the Cotton Growers Federation. In view of this finding, the learned Member dismissed the complaints as no act of unfair labour practice was made out. Another set of complaints being U.L.P. Nos. 141, 142, 143, 144, 145 and 146 of 1985 was filed before the Labour Court, Sangli, for claiming interim relief on the basis that the complainants are permanent employees of the Cotton Growers Federation. Interim relief having been refused, revision applications being U.L.P. Nos. 3, 4, 5, 6, 7 and 8 of 1986 were filed before the Member, Industrial Court, Kolhapur. Orders on this batch of revision applications as well as the complaints being U.L.P. Nos. 255/84, 14/85, 19/85 and 37/85 were passed on one and the same day viz., January 30, 1985 by the same Member Mr. Kotnis. Obviously, the reasoning in both the orders is the same viz., that the petitioners cannot claim as of right that they should be absorbed in the Cotton Growers Federation because these two Federations are different. Similar orders have been passed in both these sets of petitions refusing relief to the petitioners giving rise to the present set of Writ Petitions.
5. The effect of the general circulars issued by the Government as a matter of policy came to' be considered in the English case of Regina v. Secretary of State for the Home Department, Ex-parte Asif Mahmood Khan (1984) 1 W.L.R. 1337. Khan was a Pakistani by birth settled in England with his wife who did not have a child of their own. They wanted to adopt his brother's child living in Pakistan. Before applying for entry clearance for the child, Khan obtained a circular letter of the Home Office which stated that, although there was no provision in the Immigration Rules for bringing a child to the United Kingdom for adoption, the Home Secretary, in the exercise of his discretion, might exceptionally allow the child to be brought into the United Kingdom if the intention to adopt under the law of United Kingdom was genuine. Khan's application was rejected. But allowing his appeal, it was held that the circular letter creates, though not an estoppel, a reasonable expectation in the minds of the recipients of the Letter that decision should be made solely on the basis of the criteria therein or if a new policy was to be adopted, it was only after the applicant has been offered a "full opportunity to make representation why, in his case, it should not be followed". Likewise here.
6. The circular dated January 18, 1985 has been sent to all the erstwhile employees of the Federation except the petitioners. The circular refers to the earlier services rendered by the addressee with the Federation and assures him that his seniority, pay, allowances and other benefits would be protected, his provident fund, gratuity, family pension etc., will also be considered and he will be absorbed in the scale of 200-503 with effect from February 1, 1985 after proper fitment in the scale in view of the services rendered. The petitioners have produced an ad-hoc seniority list showing their respective dates of birth, dates of joining, designation, educational qualifications etc. Most of the petitioners have joined in 1973, some in 1972 and others in 1973. That is to say, they have joined much before the Cotton Growers Federation was established. The Seniority List has been signed by the Up-Vyavasthapak (Vibhagiya) (Deputy Zonal Manager), Faltan as well as officers of the Union. In most of these petitions, the Cotton Growers Federation had made a general denial because they were not in the know of the things nor did they have any record with them of the services rendered by the petitioners with the parent body Marketing Federation. In one matter of S.P. Khade, U.L.P. No. 14 of 1985, Marketing Federation has denied the contention of the complainants that "they have put in continuous service in permanent post as Ginning Clerks for more than 240 days," It was nowhere the case of the complainants that they have put in services as permanent clerks and that is why they have approached the Labour Court and Industrial Court for implementation of the Award on the basis of the circular. No reasons have been given as to why the petitioners have not been made permanent on the basis of the general circular dated January 18, 1985 and the documentary evidence about seniority list produced by them shows that they have put in atleast more than 10 years of service which obviously exceeds 240 days.
7. Hence, the petitions succeed. Rule made absolute. Both respondents Nos. 1 and 2 are directed to process the cases of the petitioners on the basis that they have put in more than 240 days of service and grant them all the benefits under the circular letter dated January 18, 1985 bearing No. EST/P(DD) of 1984 addressed to The Maharashtra State Co-operative Cotton Growers Marketing Federation Limited, Gautam Building, Zakeria Bunder Road, Shiwri, Bombay 400 015, by the Saha-Sanchalak (Shasan). Respondents to bear their own costs and to pay those of the petitioners, Leave to appeal to the Supreme Court was prayed for by Mr. Bhandari. The same is refused as there is no point of law involved in the matter, requiring resolution by the Supreme Court.