Bombay High Court
Rashtriya Chemicals And Fertilisers ... vs Chairman, Railway Goods And Clearing ... on 11 November, 2022
Author: Sharmila U. Deshmukh
Bench: Nitin Jamdar, Sharmila U. Deshmukh
TRUPTI
SADANAND
BAMNE
Digitally signed by
TRUPTI SADANAND Trupti 1 12-wp-3267-2022.doc
BAMNE
Date: 2022.11.21
18:00:20 +0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 3267 OF 2022
Rashtriya Chemicals and Fertilizers Ltd. & Anr. ... Petitioners
Versus
Chairman, Railway Goods and Clearing
& Forwarding Establishment Labour Board
for Greater Mumbai & Anr. ... Respondents
......
Mr. Nimay Dave with Mr. Mac S.Bodhanwalla, Ms. Sakshi Sharma,
Mr. Burjis Doctor i/b. M.S. Bodhanwalla & Co. for the Petitioners.
Mr.B. S.Mahamulkar for the Respondent No.1.
Mr. M.S. Topkar i/b. Ms. Pavitra Manesh for the Respondent No.2.
......
CORAM : NITIN JAMDAR AND
SHARMILA U. DESHMUKH, JJ.
DATE : 11 NOVEMBER 2022
P.C. :
Heard the learned Counsel for the parties. Taken up for disposal.
2. The Petitioners have challenged the order passed by the Respondent No.1 -Railway Goods and Clearing & Forwarding Establishment Labour Board for Greater Mumbai (the Board) dated Trupti 2 12-wp-3267-2022.doc 26 May 2022. By the impugned order, the Respondent No.1-Board has directed the Petitioners to forthwith join two workers named, in Toli No. 195. The further direction is issued in respect of 7 mathadi workers that suspended gate passes in respect of these mathadi workers should be issued within a period of 7 days. It is directed that the Petitioners would issue gate passes to all the registered mathadi workers, who have been allotted by the Respondent No.1- Board and the Petitioners would not unilaterally without permission of the Respondent No.1- Board change any conditions.
3. Under section 3 of the Maharashtra Mathadi Hamal and Other Manual Workers (Regulation of Employment and Welfare) Act, 1969 (the Act of 1969), the Scheme for ensuring regular employment of unprotected workers has to be framed by the State Government. The Scheme is applied to establishments. It contains various provisions for the benefit of such registered unprotected workers. Under section 6 of the Act of 1969, the State Government constitutes a Board by such name as may be specified in the notification. Under section 6 A of the Act of 1969, the State Government can appoint a Board consisting of one person. The Respondent No.1 is constituted under section 6A of the Act of 1969. The power of the Board is specified under section 7 of the Act of 1969 and one of the duties is to take such measure as may be fit for administering the Scheme.
Trupti 3 12-wp-3267-2022.doc
4. Pursuant to the provisions of the Act of 1969, the Railway Goods Clearing and Forwarding Unprotected Workers (Regulation of Employment and Welfare Scheme, 1976 has been framed (the Scheme of 1976). Under clause 29 of the Scheme of 1976, a registered employer, which in this case is the Petitioners, are under certain obligations. The registered employer is under duty to employ workers who have been allotted to the Board. As per clause 24 (2) of the Scheme of 1976, the registered employer is also permitted to employ other workers if sufficient work is not available in a particular category. Under clause 13 of the Scheme of 1976, the Board will determine the number of workers required in that category in consultation with the employers. This in short the statutory work frame governing in the matter at hand.
5. The learned Counsel for the Petitioners, assailing the impugned order, firstly contended that the Board while passing the impugned order dated 26 May 2022 has travelled beyond the scope of the order of stay dated 28 April 2022 by which the Board was directed to hold a hearing. We have perused the order dated 28 April 2022 passed in Writ Petition (L) No. 13403 of 2022. By this order, the Division Bench of this Court disposed of the petition recording the statement of the Union - Respondent No.2 herein that there will be no agitation and the concerned two workers would give an undertaking as desired by the Board when called upon. As regard the issue of gate passes to the workers is concerned, the Board was Trupti 4 12-wp-3267-2022.doc directed to hear the parties and take a decision within stipulated time. As regard contention that the Board travelled beyond the scope of the order is concerned, since the challenge based in this petition is the direction issued by the Board who is under duty to ensure compliance of the Scheme and the Statute, the legality of the direction will still have to be considered even assuming that the Board has passed an order not contemplated by this Court in the earlier petition. Therefore, only on the ground that the Board has travelled beyond the earlier order, the impugned order cannot be quashed and set aside.
6. As regards the direction in respect of two workers under Toli No. 195, that is, Sadashiv Narayan Pukale and Ramesh Tukaram Nangre is concerned, the contention of the Petitioners is that these two workers, inspite of issuing gate passes, have not remained present and being a sensitive area, it is a security risk to a person who issued gate passes do not remain present as the same can be misused. The learned Counsel for the Respondent No.2- Union contended that if allotted workers do not remain present, since they are paid on piece rate basis, they will lose wages and therefore, no prejudice is caused.
7. Firstly, we do not find any specific communication made by the Petitioners to the Respondent No.1-Board pointing out that these two workers have remained absent. This issue is raised only Trupti 5 12-wp-3267-2022.doc after agitation made by the Union. If these two mathadi workers do not remain present in spite of issuing gate passes, the Board could have taken remedial action as and when pointed out. Therefore, prima facie we do not find that the stand of the Petitioner that these two workers should not be allowed to work because they are habitually remained absent, to be just and proper for their future work. This position also can be redressed by directing these two workers to give an undertaking that they will remain present as per their allotment and if they do not remain present, giving liberty to the Petitioners to bring the same to the notice of the Board. The Board, who is established for the interest of the unprotected workers, also cannot ignore the fact that if allotted mathadi workers are not remaining present, it would deprive other willing unprotected workers from getting wages. Therefore, as and when such complaint is received by the Petitioners, the Board has to look into the same, and if found correct to take remedial action.
8. As far as the impugned direction in respect of 7 workers is concerned, similar direction can be issued. The learned Counsel for the Respondent No.2- Union states that the Union is ready to give such undertaking as may be directed by this Court. Therefore, the Union on behalf of its members will give an undertaking that their members, who are allotted to the Petitioners, shall remain present.
Trupti 6 12-wp-3267-2022.doc
9. As regards the other workers, who have been allotted to the Petitioners, the Petitioners can bring to the notice of the Respondent No.1- Board fact of their absence to take necessary remedial action. This, according to us, will provide necessary safeguard and redress the anxiety expressed by the Petitioners.
10. The second wider contention that is advanced before us by the Petitioners is that the Petitioners do not require the services of the workers now from Toli Nos. 192 to 195. It is contended that the workers under these tolies were allotted to the contractors, who have been treated as employer, for the Gypsum Pond work and by efflux of time somewhere around December 2020, the work has been stopped and the contracts with the contractors have come to an end. However, on 29 June 2020, an order passed by the Respondent No.1-Board which refers to the fact that there has been change in circumstance and thereafter has passed an order for allotment of the workers from these tolies for the purpose of other work for instance at R & D, Sujala and others. This order of 29 June 2020 is not in challenge before us. Also we are informed that this order has not been challenged. Therefore, as long as this order of allotment remains, the Petitioners cannot unilaterally prohibit the members of the tolies which have been allotted.
Trupti 7 12-wp-3267-2022.doc
11. If there is change in circumstance post the order of 29 June 2020, it is open to the Petitioners to approach the Respondent No.1 - Board for modification of the allotment/ cancellation. It is pointed out to us that such course of action is permissible and the Board can fix the number of workers and the register under clause 13 of the Scheme of 1976. There is no debate for us under clause 13 of the Scheme of 1976 that the Board can change/ cancel the number of workers allotted if there is change in circumstance. Therefore, once the Scheme provides for this course of action, it is not open to the Petitioners to unilaterally ignore the allotment orders. Since it is the case of the Petitioners, as placed before us, that in view of the change in circumstance, the requirement of workers has been reduced and the services of workers from toli nos. 192 to 195 are not required for longer period, we observe that it is open to the Petitioners to apply to the Respondent No.1-Board for necessary modification/ cancellation. If such an application is made within a period of two weeks from today, the Respondent No.1- Board will take necessary decision upon the same within a stipulated time thereafter after following necessary procedure.
12. Another issue sought to be raised by the Petitioners, which is not subject matter of this petition, is that the Respondent No.1- Board has by a separate order issued notice to the Petitioners as to why they should pay the wages to the workers, that is, Sadashiv Narayan Pukale and Ramesh Tukaram Nangre. The Respondent Trupti 8 12-wp-3267-2022.doc No.1- Board at this stage has only issued a show cause notice. The question whether these two workers deliberately remained absent or they were prohibited from working is a factual issue, which the Respondent No.1-Board will have to decide after giving an opportunity to the Petitioners and the concerned, if any order is passed, the Petitioners have their remedies open in law. This enquiry will be carried out independently without being influenced by the observations made in this order.
13. Accordingly, we dispose of the petition with a direction that the impugned order dated 26 May 2022 is sustained with modification that Sadashiv Narayan Pukale and Ramesh Tukaram Nangre shall give an undertaking within a period of one week to the Petitioners and the Respondent No.1-Board that they shall remain present for work whenever the gate passes are issued to them when the work is available. If they do not remain present even after issuing the gate passes, liberty to the Petitioners to bring the said fact to the notice of the Respondent No.1-Board. The same modification will apply in respect of clause no. 2 and seven workers specified therein.
14. The Respondent No.2- Union will also give an undertaking to the Respondent No.1 - Board with a copy to the Petitioners that its members will remain present as and when they are called for work.
15. The learned Counsel for the Petitioners states that the workers Trupti 9 12-wp-3267-2022.doc should be directed to give an undertaking of good conduct. According to us, such undertaking is not necessary. As far as any misconduct and misbehavior is concerned, the Petitioners are always entitled to bring to the notice of the Respondent No.1- Board, who is under duty to take necessary disciplinary action, if the case is so made out.
16. The writ petition is disposed of in above terms.
(SHARMILA U. DESHMUKH, J.) (NITIN JAMDAR, J.)