Bombay High Court
The Chief Officer, Sangli Municipal ... vs Shri Daramsing Hiralal Nagarkar on 14 June, 1991
Equivalent citations: [1991(63)FLR324], (1994)IIILLJ720BOM, 1991(1)MHLJ981
JUDGMENT H.H. Kantharia, J.
1. The respondent-workman was appointed as a Bill Clerk in the Public Works Department of the Sangli Municipal Council in a vacant post with effect from June 1, 1979. He was given appointment orders every month and thus continued in the employment till August 1, 1980. Thereafter he was again appointed for one month up to August 31, 1980 and then' no orders of appointment were issued in his favour. Instead, an order appointing one K.G.Londhe with effect from September 1, 1980 was passed. According to the respondent-workman, since he had continuously worked for a period of fifteen months in the Public Works Department of the Sangli Municipal Council he was entitled to be made permanent as a Bill Clerk and was further entitled to be continued in the services even after August 31, 1980 by virtue of the provisions of the Award made in Reference (IT) No. 102 of 1955. His grievance was that by failing to implement the provisions of the said Award and not making him permanent the petitioner committed Unfair Labour Practice covered by Item 9 of Schedule IV of the MRTU & PULP Act, 1971. It is also his contention that although he had continuously worked for fifteen months and was still not made permanent thereby the petitioner committing an unfair labour practice covered by Item' 6 of Schedule IV of the MRTU & PULP Act. He accordingly filed complaint (ULP) No. 449 of 1980 in the Industrial Court at Pune.
2. The said complaint was resisted by the Chief Officer of Sangli Municipal Council and one of the contentions raised in the written statement was that the complaint was barred by law of limitation and that the respondent-workman could not have been made permanent by the petitioner because they were to appoint persons recommended by the State Selection Board and thus committed no Unfair Labour Practice covered by Item 6 of Schedule IV of the MRTU & PULP Act. It was also contention of the petitioner-council that the provisions of the Award made in reference (IT) No. 102 of 1955 were not applicable to the facts of the respondent workmen's case and, therefore, they also did not commit an act of unfair labour practice covered by Item 9 of Schedule IV of the MRTU & PULP Act.
3. The learned Member of the Industrial Court, Pune who heard the unfair labour practice complaint came to the conclusion that the petitioner-council was guilty of unfair labour practice covered by Items 6 and 9 of Schedule IV of the MRTU & PULP Act and he accordingly by his judgment and order dated April 5, 1982 so declared and directed the petitioner council to take the first respondent-workman in the permanent employment of the council as a Bill Clerk in the Public Works Department, and treat him as a permanent employee with effect from September 1, 1980 and also pay to him one third of back wages for the enforced period of unemployment. The Council was also ordered to pay cost of Rs. 25/- to the respondent-workman.
4. Being aggrieved, the Chief Officer of the Sangli Municipal Council filed the present writ petition invoking the supervisory writ jurisdiction of this Court under Article 227 of the Constitution.
5. At the hearing, Mr. Jamdar, learned Advocate appearing on behalf of the petitioner-council, first of all urged that in the facts and circumstances of this case it cannot be said that the petitioner-council committed an unfair labour practice covered by Item 6 of Schedule IV of the MRTU & PULP Act inasmuch as the respondent-workman was not continued as a temporary workman for years but only for a period of fifteen months. Item 6 of Schedule IV of the MRTU & PULP Act provides that it would be general unfair labour practice on the part of an employer to employ employees as badlis, casuals or temporaries and to continue them as such for years with the object of depriving them of the status and privilege of permanent employees. Mr. Jamdar found force for his argument in the words tor years and submitted that the period of fifteen months would not be a period for years and for the purpose of satisfying this condition of this provision of law the concerned workman had to be kept temporary at least for a period of two years if not more. It is difficult to accept this submission of Mr. Jamdar because when it is said that one should not keep a workman as a temporary for years it merely means that he should not be kept as temporary for a long time. What would be a long time depends upon facts and circumstances of each and every case. In a given case even a period of five years and more would not be considered as 'for years' and in a given case a period of less than two years as in the present case would be a long period. It is pertinent to note here that in the present case the workman was employed every month. That itself shows that the petitioner-council had no intention to make him a permanent employee and was indulging in an act of hire and fire. Mr. Jamdar further submitted that the intention of the petitioner-council was not to deprive the respondent-workman of his status and privileges of permanent employee but he could not be made permanent in view of the fact that the petitioner-council could only appoint a person recommended by State Selection Board. There is no substance in this argument of Mr. Jamdar for the simple reason that the State Selection Board was a source for appointing a fresh candidate and in the matter of a person already appointed, it would not be difficult for the petitioner-council to make him permanent. For the purpose of making a workman permanent or not the petitioner-council had not to consult the State Selection Board. Under the circumstances, I find it difficult to persuade myself to agree with the submission of Mr. Jamdar that the petitioner-council did not commit unfair labour practice covered by Item 6 of Schedule IV of the MRTU & PULP Act.
6. But assuming for the sake of argument that there is substance in the submission of Mr. Jamdar and that the petittioner-council did not commit unfair labour practice covered by Item 6 of Schedule IV of the MRTU & PULP Act, it would not carry the petitioner-council's case further because there is no defence available to the petitioner-council for an allegation that they indulged in an act of unfair labour practice covered by Item 9 of. Schedule IV of the MRTU & PULP Act. As per Item 9 it would be general unfair labour practice on the part of an employer to fail to implement award, settlement or agreement . The record shows that as per the provisions of an Award made in Reference (IT) No. 102 of 1955 the respondent-workman had to be made permanent. And the moment the petitioner-council did not make the respondent- workman permanent in pursuance of the provisions of the said Award made in Reference (IT) No. 102 of 1955, they committed unfair labour practice covered by Item 9 of Schedule IV of the MRTU & PULP Act.
7. In this view of the matter, I find no substance in this writ petition which fails and stands dismissed, The judgment and order passed by the learned Member of the Industrial Court, Pune on April 5, 1982 in Complaint (ULP) No. 449 of 1980 is confirmed. The petitioner-council is, therefore, duty-bound to implement the said judgment and order. They are directed to do so within a month from today.
8. In the result, the writ petition stands dismissed and Rule is discharged. Interim stay is vacated. There shall, however, be no order as to costs.