Bombay High Court
The Divisional Forest Manager vs Shri Vinayak Kurne on 27 September, 2011
Author: S.C.Dharmadhikari
Bench: S.C.Dharmadhikari
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kps
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3208 OF 2011
The Divisional Forest Manager,
Forest Development Corporation of
Maharashtra Limited, a Company
registered under the Companies
Act, 1956.
(Govt. of Maharashtra Enterprise),
Forest Project Division,
Vanvikas Bhavan, Kopri Colony,
Thane (East). ig ..Petitioner
-Versus-
Shri Vinayak Kurne,
C/o Divisional Manager,
Vanprakalp Vibhag,
Forest Development Corporation
of Maharashtra Limited,
Dahanu, Dist.Thane. ..Respondent
WITH
WRIT PETITION NO.3213 OF 2011
The Divisional Manager,
FDCM Ltd., Thane Pradesh, Thane,
Kopari Colony, Forest Vikas Bhavan,
Thane (E)-3. ..Petitioner
-Versus-
1 Shri Vinayak Kurne,
C/o Divisional Manager,
Vanprakalp Vibhag,
Forest Development Corporation of
Maharashtra Limited,
Dahanu, Dist. Thane.
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2 Deputy Division Manager,
Pune Greening Unit,
FDCM Ltd., Pune,
Akurdi, Pune.
3 Forest Range Officer,
Pimpri Chinchwad,
Pune Greening Unit,
Forest Project Dept.,
FDCM Ltd., Pune,
Akurdi, Pune.
4 Secretary,
Revenue & Forest Department,
Mantralaya, Mumbai-32.
5 Administrative Director,
FDCM Ltd.,
Ravel Plaza, Plot No.12,
Kadvi Chowk, Kamathi Rd.,
Nagpur-4.
6 Project Range Officer,
Jawhar, Dahanu Forest Project Dept.,
Forest Colony, Jawhar,
Thane (E)-3. ..Respondents
..........
Mr.K.K.Malpathak, for the Petitioners in both petitions.
Mr.V.H.Shekdar, for the Respondent No.1 in both petitions.
..........
CORAM : S.C.DHARMADHIKARI, J.
Reserved on : 23rd August, 2011.
Pronounced on : 27th September, 2011.
JUDGMENT:
1 Rule. Respondents waive service in both petitions. By consent, Rule made returnable forthwith. As both Writ Petitions involve common ::: Downloaded on - 09/06/2013 17:46:21 ::: *3* wp.3208.3213.11.sxw questions of facts and law, they are being disposed of by this common judgment.
2 By Writ Petition No.3208/2011 under Articles 226 and 227 of the Constitution of India, the Petitioner challenges the orders passed by the Industrial Court and the Labour Court on 2nd February, 2011 and 25th October, 2007 respectively.
3 The Labour Court by the order dated 25th October, 2007 passed in Complaint (ULP) No.317 of 2002 has directed the Petitioners before this Court to reinstate the Respondent/Complainant in service on the original post and place him anywhere where work is available.
However, he should be given continuity of service and full back wages from the date of his termination till the date of the order of the Labour Court by adjusting monthly wages and other benefits given to the Respondent/Complainant during the pendency of the complaint.
4 A Revision Application (ULP) No.23 of 2008 filed by the Petitioners has been dismissed by the Member, Industrial Court at Pune on 2nd February, 2011, thereby, upholding the order of the Labour Court.
5 The Petitioner is the Divisional Manager, Forest Development Corporation of Maharashtra Limited. It is a Company registered under the Companies Act, 1956. It is a Government of Maharashtra Enterprise. The Respondent filed the above mentioned complaint alleging unfair labour practices enlisted in Schedule IV Item No.1(a), (b), (d), (f) and (g) of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 (in short, MRTU & PULP Act, 1971). The Respondent ::: Downloaded on - 09/06/2013 17:46:21 ::: *4* wp.3208.3213.11.sxw alleged in the complaint that he is working in the office of the Petitioners as Office Attendant/Assistant. The Respondent further states that he is a permanent workman. It is stated that he has been working as such from February, 1991 at the office of the Petitioners at Satara. However, the Petitioner appointed him on daily wage basis. It has been alleged specifically that although the Respondent is appointed as Office Attendant/Assistant, yet he has been working as a Class-IV employee. The Respondent has educational qualification of XIth Standard pass and, therefore, he is carrying out all routine jobs. Thereafter, in 1997 the Satara Division Project was transferred to the Pune Greenery Zone, Pune Division and, therefore, from June, 1997 the Respondent has been working at Pune Division. He was working as such till 1st December, 2002. The Respondent has completed 240 days of service in every year. It is stated that from 1st December, 2002 the Respondent was terminated orally by the Petitioners. This is contrary to and in violation of law. This act of the Petitioner amounts to an unfair labour practice and the unfair labour practices are mentioned from Paragraph 4 onwards. It is alleged that there are 1,000 permanent workmen employed at various projects all over Maharashtra by the Petitioners. They have been given benefits of all Labour Laws and legislations by the Petitioners. However, from the date the Respondent was appointed he was paid Rs.65/- per day only. The Respondent has worked throughout and he has applied by several representations in writing from December, 1997 till 31st October, 2008 that he should be confirmed in service and given all benefits. However, the Petitioners did not extend the benefits arising out of Labour Laws and instead orally terminated the services of the Respondent. All this amounts to an unfair labour practice in terms of the aforestated and aforementioned items of Schedule-IV of the MRTU & PULP Act.
::: Downloaded on - 09/06/2013 17:46:21 :::*5* wp.3208.3213.11.sxw Therefore, it was prayed that the complaint be allowed and directions to give permanency benefits to the Respondent be issued after setting aside the termination of services. It was prayed that the Petitioners must stop the unfair labour practices and reinstate the Respondent in service with full backwages and continuity of service. This complaint was filed on 16th December, 2002.
6 The Petitioners, after the notice was served filed their Written Statement and pointed out that the Respondent was working as a Daily Wage Employee. He was not working as Office Attendant/Assistant. He was appointed purely on Temporary Basis in the year 1991 in Satara Division which was closed in the month of June, 1997. The new Division was opened in the year 1997 at Pune for Plantation and Development at Pimpri Chinchwad on Contract Basis. There also the Respondent came on his own and on his request he was appointed again on Temporary Basis on Daily Wages for contract period which came to an end in December, 1997.
As the contract work was over the Respondent was told that from 1st December, 2002 there is no work available for him. In these circumstances, there is no question of any illegal termination leave alone any unfair labour practices. For all these reasons and when the Respondent was appointed purely on Temporary Basis and for contractual work, his services have been rightly terminated. Once there is no work available for him the Respondent cannot be continued. Therefore, the complaint be dismissed.
7 Thus, it was contended that once the projects at Satara and Pune had come to an end, the work allotted to all workers in the said project came to an end. Once it has so come to an end, there cannot be ::: Downloaded on - 09/06/2013 17:46:21 ::: *6* wp.3208.3213.11.sxw any question of unfair labour practice and therefore, the complaint be dismissed, particularly because the Respondent-Complainant was appointed on purely temporary basis on daily wages for a particular period which came to an end. On these pleadings, the issues came to be framed and the Labour Court recorded the evidence of the Respondent who in addition to his statements, produced certain documents. As far as the Petitioners are concerned, they examined two witnesses.
8 The Labour Court on appreciation and appraisal of oral and documentary evidence came to the conclusion that the Petitioners illegally terminated the Respondent on 01.12.2002 and that they have failed to prove that he was appointed on purely temporary basis. Consistent with these findings, it was held that the Petitioners have committed an unfair labour practice and that complaint deserves to be allowed. It is this order of the Labour Court which was confirmed by the Industrial Court.
9 Mr.Malpathak, learned counsel appearing for the Petitioners, submitted that the Courts below have failed to appreciate that this is not a case of any unfair labour practice. A case of unfair labour practice could have been made out provided the Petitioners can be held guilty of terminating the services of the Respondent contrary to the mandate flowing from the Industrial and Labour Laws. This is a case where the protection guaranteed by the Industrial and Labour Laws against termination were not applicable. The appointment of the Respondent was for particular projects and in particular divisions. If the Petitioners were assigned the work of a forestation or preservation of trees as a part of an ongoing scheme and for some determined period, then, calling for work such employees, would not mean that there was appointment made on a ::: Downloaded on - 09/06/2013 17:46:21 ::: *7* wp.3208.3213.11.sxw sanctioned or vacant post in the establishment. It was availing of services for the project work. Once such is the nature of the engagement, then, the Respondent could not have alleged that any unfair labour practice has been committed. Once the contract came to an end because of project work having been concluded, there was no right which could have been claimed by the Respondent on the basis of which the services can be continued. These are contractual arrangements and all workers working in the project on temporary basis came to be terminated after Satara Unit was closed down in 1997. Further, termination of services in Pune Division w.e.f. 30.11.2002 was on account of that project coming to an end. The Petitioners appointed the Respondent as daily wage Majdoor. This was always a fresh temporary engagement. Merely because he had allegedly worked for 15 continuous years, does not mean that he was entitled to urge that there is any unfair labour practice and particularly under the items complained of. Both orders are vitiated by an error apparent on the face of record. The Courts below have erred in holding that the Respondent is still in service of the Petitioners on daily wages at some other place wherever work is available. It was also erroneous to hold that the Respondent was appointed as Office Attendant/Assistant and the assumption that he has completed 240 days every year in a span of 15 years is inconsistent with and not borne out from the record. For all these reasons, the Writ Petitions be allowed.
10 Mr.Malpathak, in support of his contentions, has relied upon the following decisions:-
(1) AIR 2001 SC 3228 (Mahatma Phule Agricultural University and others. v/s Nasik Zilla Sheth Kamgar Union and others.) ::: Downloaded on - 09/06/2013 17:46:21 ::: *8* wp.3208.3213.11.sxw (2) 2008(5) ALL MR 497 (State of Maharashtra and another v/s Pandurang Sitaram Jadhav) (3) (2009) 8 SCC 556 (Maharashtra State Road Transport Corporation and another v/s Casteribe Rajya Parivahan Karmachari Sanghatana).
11 On the other hand, Mr.Shekdar, learned counsel appearing for the Respondent/Complainant, submitted that this is Writ Petition under Articles 226 and 227 of the Constitution of India. This Writ Petition is not a further appeal challenging the orders of the Courts below. In writ jurisdiction, it is not possible to disturb and alter the concurrent findings of fact unless they are demonstrated to be perverse. In the instant case, no perversity has been demonstrated. On the other hand, it is clear from the record that the Petitioners employed the Respondent on permanent post. In the year 1997, Satara Division of the Petitioners was converted into Pune Division and accordingly, the Respondent was transferred to Pune Division. Till the date of illegal termination, namely, 01.12.2002 the Respondent had worked with the Petitioners every year for more than 240 days on daily wages of Rs.65/- per day. When the Respondent requested that the Petitioners should make him permanent and give him benefit of permanency, that there was oral termination on 01.12.2002 without any reason. This is a clear case of an unfair labour practice because the Respondent was working as a regular employee. He was not given benefits of seniority, but the persons who were junior to him were made permanent. Once the witnesses examined by the Petitioners have admitted that the Respondent was working since 1991 at Satara and that the Respondent was appointed by the Petitioners as Office Attendant, then, having worked for more than 15 years, it is clear that the Petitioners ::: Downloaded on - 09/06/2013 17:46:21 ::: *9* wp.3208.3213.11.sxw denied him all service benefits. This is only because the Petitioners were under an impression that the Respondent being temporary and employed for a particular period. Thus, it is clear case of unfair labour practice and when the Corporation established by the State is indulging in such acts, then, all the more this Court should not interfere in writ jurisdiction. Further, the Industrial Court has not granted complete reliefs and directed the Petitioners to regularize the services of the Respondent w.e.f. 01.01.2006 by giving notional increment without computing actual monthly benefits from 01.01.2006 to 31.10.2010. The Industrial Court further directed that the Petitioners should fix the Respondent in proper pay scale by giving notional benefits from the year 2006 and pay the corrected salary i.e. after re-verification of wages w.e.f. 01.11.2010 and the remaining prayers were rejected. This is because junior employees, namely, Mr.Pise, Mr.Lipare and Mr.Nanaware who are appointed after the Respondent have been made permanent. The Writ Petition be, therefore, dismissed.
12 With the assistance of the learned counsel appearing for the parties, I have perused the petitions and annexures thereto. The impugned order of the Labour Court proceeds on the basis that the Respondent alleged that he was working with the Petitioners since 1991 as Office Assistant on daily wages of Rs.65/- per day. Although the Respondent is from Pune, the work as instructed by the Petitioners was done by him at Satara. In June, 1997, he was transferred to Pune in the office of the Divisional Manager, Forest Development Corporation at Pune. Since 1997 to 2001, he requested the Petitioners to make him permanent, but that request was not accepted. Therefore, a notice was sent on 30.10.2002 requesting for permanency and because of that notice, his ::: Downloaded on - 09/06/2013 17:46:21 ::: *10* wp.3208.3213.11.sxw services were illegally terminated orally w.e.f. 01.12.2002.
13 The Labour Court referred to the oral evidence of the Respondent and specifically his statements therein that he was working as a regular worker, but by avoiding seniority list, his juniors were made permanent.
14 In his cross-examination, it is stated by him that Satara Unit started in 1988 and he was working on daily wages at Satara. In fact there was nothing in his cross-examination, save and except, some suggestions to falsify his case that he had worked for 240 days every year with the Petitioners. He denied all suggestions and particularly that he was appointed purely on temporary basis and his services came to an end with closure of Satara Unit. He also denied the case that he was again appointed on daily wages as purely temporary employee on his request for a contract period at Pune Unit.
15 As far as the Petitioners' evidence is concerned, the witnesses stated that in the month of December, 1987 under the scheme of Social Forestry Satara, the Forest Division was opened at Satara and it was closed down in December, 1997. However, in June, 1997, Pune Greening Unit was opened for a particular contract work with the Pimpri Chinchwad Municipal Corporation (in short, PCMC). The Respondent was working at Satara on daily wages and after closure of that division at Satara, he himself came to Pune and on his request, he was again appointed on temporary basis under the contract for a contract period on daily wages of Rs.65/- per day. It is stated that a notice was displayed on 30.11.2002 by the Petitioners that no work would be available w.e.f.
::: Downloaded on - 09/06/2013 17:46:21 :::*11* wp.3208.3213.11.sxw 01.12.2002 and after completion of contract work, Pune Greening Unit was closed down on 30.04.2003.
16 However, in the cross-examination of these witnesses examined by the Petitioners, they admitted that the Respondent was working since 1991 at Satara till the date of closure and he had many times requested that he should be made permanent. The witnesses admitted the xerox copies of 10 pay slips (Exhibit C-23 collectively) issued by the Petitioners to the Respondent. Both of them have, thus, not falsified the case of the Respondent of having completed 240 days service every year. His designation as Office Attendant/Assistant was also admitted.
17 The Courts below have concluded that the Petitioners have appointed the Respondent as Office Attendant, but they gave him every type of work. Once the Petitioners do not deny that the Respondent has worked for 240 days in every year and that fact is evident by the pay slips, so also, designation and they are not sure as to whether, the Petitioners appointed the Respondent as temporary hand or daily wage worker, then, the inference drawn against the Petitioners cannot be said to be vitiated by an error apparent on the face of record or perversity. It may be that the Petitioners have established their Units and were undertaking some Social Forestry and Greenery work for public bodies under a contract, but for demonstrating and proving that the Respondent was engaged by them only for this work and no other work or regular work of their establishment, something more was necessary and by such statements, they cannot succeed in dislodging the Respondent's case. The clear fact emerging from the record is that their Divisions at Satara and Pune have been made functional in the same year. Even from a reading of their ::: Downloaded on - 09/06/2013 17:46:21 ::: *12* wp.3208.3213.11.sxw memo of revision application, it is apparent that they do not dispute that there was a division at Satara and that was established in December, 1970 and it was closed, according to them, in the year 1997. However, they admit that in the year 1997 itself they engaged the services of the Respondent for the contract with PCMC. However, when they state that he was appointed temporarily and was assigned the work under a contract job, then, they ought to have proved that the Respondent has performed the duties all throughout on this understanding with full knowledge that his status cannot be equated with permanent and regular employees of the Petitioner Corporation. However, while meeting his case of illegal oral termination, all this has been pleaded. If this was the pleading, it must be certainly based on some documents. However, it is apparent that they have not produced any documents which would reinforce this understanding and temporary arrangement as between them and the Respondent. On the other hand, in the same breath, they admit the contents of the pay slips that have been produced on record and do not falsify the claim of the Respondent that he has worked for 240 days in a year.
18 The Respondent's case that he was transferred from Satara to Pune is also not satisfactorily dealt with leave alone fully falsified by the Petitioners. It has come on record that the Respondent is still in service on daily wages at some other place wherever work is available with the Petitioners. In these circumstances and when the Petitioners failed to prove their case that the Respondent was appointed on purely temporary basis for a particular period, then, the orders rendered by the Courts below do not require any interference in writ jurisdiction. The Courts below have rightly concluded that this is nothing but a case of denial of ::: Downloaded on - 09/06/2013 17:46:21 ::: *13* wp.3208.3213.11.sxw benefits of permanency. In fact the Labour Court directed reinstatement with full back wages and posting at any place anywhere work is available, but the Respondent has filed an affidavit in this Writ Petition No. 3208/2011 in which he has stated that the learned Industrial Court has allowed a separate complaint of unfair labour practices under Items 5, 6 and 9 of the Schedule-IV of the MRTU & PULP Act, 1971 wherein a request was made for regularization of his services and permanency benefits. In this context, in paragraph 5 of his affidavit in reply, this is what is stated:-
"5. I say that besides above I was constrained to file the separate complaint of unfair labour practice under items 5, 6 & 9 before the Hon'ble Industrial Court for regularization of my services and permanency benefits. The junior employees Mr.Pise, Mr.Lipare, Mr.Nanaware who were appointed after me were made permanent. The learned Industrial Court was pleased to allow my complaint partly and directed the petitioner to regularize my services w.e.f. 01.01.2006 by giving notional increments without making actual monthly benefits from 01.01.2006 to 31.10.2010 and further directed the petitioner to fix me in proper pay scale by giving notional benefits from the year 2006 and pay my corrected salary i.e. after re-verification of wages w.e.f. 01.11.2010. The remaining prayers were rejected. Though I am entitled for larger relief of permanency from the year 1991 the learned Industrial Court passed the balancing order and safeguarded the interest of the petitioner that they should not be burdened, still they filed this writ petition without any basis, which deserves to be dismissed."
19 The first complaint being Complaint (ULP) No.317/2002 only alleges unfair labour practices under items 1(a), (b), (d), (f) and (g) of Schedule-IV of the MRTU & PULP Act, 1971, but there is no rejoinder filed by the Petitioners controverting the above statements in paragraph 5 of ::: Downloaded on - 09/06/2013 17:46:21 ::: *14* wp.3208.3213.11.sxw the affidavit in reply.
20 In the entire memo of the Writ Petition No.3208/2011, there is no reference to any other complaint and particularly the directions referred in paragraph 5 of the affidavit in reply. The reply is filed in this court and a copy thereof was duly served on the Petitioners.
21 Mr.Malpathak, however, urged that there is companion Writ Petition which is numbered as Writ Petition No.3213/2011 in which the order of the Industrial Court as far as the above directions are concerned, is challenged. On perusal of Writ Petition No.3213/2011 with the able assistance of the learned counsel appearing for the parties, leaves me in no manner of doubt that the reasoning, upon which the ultimate direction has been issued, is consistent with the pleadings of the Respondent in Complaint (ULP) No.416/2005. Therein after setting out the allegations which are common to both complaints and specifically stating that having worked continuously for 10 years and 11 months more, so also, seeking permanency benefits orally as well as in writing from 1997 till the date of oral termination, that the same have been denied and this is unfair labour practice. It was stated that because of the oral termination effected on 01.12.2002, the complaint of unfair labour practice which is subject matter of Writ Petition No.3208/2011 was filed. Therein the Respondent applied for interim reliefs. However, the application Exhibit U-2 for interim reliefs was dismissed on 24.01.2003. The Respondent being aggrieved and dissatisfied by the said order filed a revision application under section 44 of the MRTU & PULP Act, 1971 being Revision Application (ULP) No.33/2003, that revision application was decided on 16.06.2003 and the Industrial Court/ revisional court directed the ::: Downloaded on - 09/06/2013 17:46:21 ::: *15* wp.3208.3213.11.sxw Petitioners herein to continue the Respondent's services. The Petitioners did not continue him as Office Attendant/ Assistant, but posted him as Watchman and allowed him to report from 12.08.2003. They have not paid him the wages of Office Attendant/ Assistant which was at Rs.83/- per day in 1998-99 and thereafter, it was enhanced to Rs.87/- per day in 1999-2000. The Petitioners continued him on daily wage of Rs.65/- per day only. Thus, they continued to exploit him by denying him all benefits of permanency and deprived him of his monetary entitlement. Even when that complaint was being tried, it is apparent that the Respondent stepped into the witness box and reiterated all the allegations in relation to his service. The Petitioners now argue that the Respondent's version throughout was that when Satara Division was closed and Pune Division became functional, the Respondent approached the Petitioners for giving him work of temporary nature on daily wages and that is how they employed him. This is the stand of the Petitioners in their Written Statement filed in Complaint (ULP) No.416/2005. However, this version in the Written Statement has not been proved. On the other hand, what the Member, Industrial Court has observed in his order dated 10.11.2010 in Complaint (ULP) No.416/2005 is as under:-
"6. It appears that after filing the present complaint, the Ld. Labour Judge has decided the Comp. (ULP) No.317/2002 by judgment dtd. 25.10.2007 and directed the Respondent to reinstate the Complainant on his original post at any place anywhere where the work is available with continuity of service and directed to pay full back wages from termination till the date of this order by adjusting the monthly wages and other benefits given to the Complainant during pendency of the complaint. The Complainant in his affidavit in lieu of examination-in- chief mentioned at Exh.U-8 has repeated the facts stated in the complaint. In cross-examination he has stated that he joined the Respondent establishment in February 1991 as Office Assistant. He was not given written appointment ::: Downloaded on - 09/06/2013 17:46:21 ::: *16* wp.3208.3213.11.sxw order. He was getting Rs.65/- per day towards wages on monthly basis. He was getting Rs.1600/- to Rs.1700/-
towards wages. His initial appointment was at Satara and there he was about 7 years and then was at Pune for about 5 years. While working at Pune he demanded for permanency therefore his services were terminated and he challenged the said termination and the Labour Court granted relief in his favour. The junior employees Mr.Pise, Lipare and Nanaware who were appointed along with him were made permanent. He has admitted that Respondents have maintained the seniority list and his name is not there in the seniority list. He has admitted that as per order of the Court he was appointed in service as Forest Labour and posted at Jawar & he is getting Rs. 83/- per day on monthly wages and at present he is performing his work as Forest Guard under OWR scheme.
As against this the witness of the Respondent also repeated the contents of the written statement in his affidavit in lieu of examination-in-chief. In cross- examination, he has denied the suggestions that complainant was working as Office Assistant and in the year 1997 the office of Satara was merged with Respondent No.1 and the services of the Complainant were transferred from Satara to office of Respondent No.
2. He has denied the suggestion that office at Satara was never closed but the employees working at Satara were transferred to the various other projects or works. He has denied the suggestions that Complainant worked continuously with the Respondent from 1991 to 2002 and completed 240 days continuous service in each calendar year. He has denied the suggestions that the Complainant was insisting for permanency therefore his services were terminated by the Respondent. He has admitted that about 1000 permanent employees working with the Respondent throughout Maharashtra.
7. ...... Considering the length of service from 1991 to 2010 and considering the age of Complainant it is necessary to direct the Respondents to regularize the services of the Complainant by giving him benefits of permanent employees atleast from the date of filing of this complaint i.e. from 01.01.2006. The Respondents to grant notional benefits of increment to the Complainant without making ::: Downloaded on - 09/06/2013 17:46:21 ::: *17* wp.3208.3213.11.sxw any payment during the period from 2006 till 31.10.2010, but the Complainant should be fixed in the pay scale w.e.f. 01.01.2006 and he should be paid wages at par with the regular employees w.e.f. 01.11.2010. By continuing the Complainant on daily wage basis from 1991 till 2010 or till the date of filing of the complaint, the Respondents have committed unfair labour practice under item 6 and 9 of Sch-IV of the MRTU & PULP Act. Though the Complainant has not pleaded the unfair labour practice under item 9, but ingredient of item 9 is attracted therefore I hold that the Respondents have committed unfair labour practice under item 6 & 9 of Sch-IV of the MRTU & PULP Act and Complainant failed to prove the unfair labour practice under item 5 of Sch-IV of the MRTU & PULP Act. ...."
22 In these circumstances, it is not as if the Courts below have overlooked or ignored any principle of law and the constitutional guarantee of equality in public employment. This is not a case where there was no regular post or no regular work. All throughout the case is that the appointment is of Office Attendant/Assistant, it may be that the Respondent went on reporting at Pune Division or wherever the work was available and presently he is at Jawahar-Dahanu. It is not as if this is an admission that there is no regular work or that there is no regular post and therefore, benefits of permanency and regularization cannot be claimed. I am not in agreement with Mr.Malpathak that the Courts below have, while taking cognizance of the complaint of unfair labour practice, virtually directed creation of post and providing regular work to the Respondent by creating a post for him at particular station/unit. There is absolutely nothing on record to indicate that such direction has been issued or that direction issued would amount to directing the Petitioners to create any post for the Respondent and make substantive appointment ::: Downloaded on - 09/06/2013 17:46:21 ::: *18* wp.3208.3213.11.sxw therein. The pleadings are in relation to unfair labour practice on the part of the Petitioners and while holding that the practices adopted were illegal and unfair, it was directed by the Courts below that the benefits of permanency ought to be given to the workman who has put in more than 15 years of service and that oral termination of his services was vitiated in law. If on the basis of the material on record, it is evident that the Respondent has put in more than 15 years of services and his case that he has completed service of 240 days in every year, is not falsified, then, directing that he should be reinstated in service with back wages, and modifying that direction considering that the Respondent is still in service of the Petitioners, does not amount to infringing or acting contrary to the constitutional guarantee of equality in public employment and the mandate flowing from Articles 14 and 16 of the Constitution of India, which is the main plank of the argument before me. Having found that the Courts below acted within their limits while adjudicating the complaints of unfair labour practice and complied with the principles of labour and industrial jurisprudence, then, all the more the argument of Mr.Malpathak cannot be accepted.
23 Reliance placed by Mr.Malpathak on the judgments of the Honourable Supreme Court and particularly dealing with the cases of regularization and permanency in public employment is misplaced. In the case of State of Maharashtra and another v/s R.S.Bhonde and others reported in (2005)6 SCC 751, the Honourable Supreme Court held that the status of permanency cannot be granted when there is no post. Moreover, mere continuance every year of seasonal work during the period when work was available, does not constitute a permanent status unless there exists a post and regularization is done. However, that finding ::: Downloaded on - 09/06/2013 17:46:21 ::: *19* wp.3208.3213.11.sxw was rendered by the Honourable Supreme Court on the basis of the material produced by the State of Maharashtra and particularly finding that more than 3000 workers were engaged from time to time on daily wages besides 970 workers are working on regular basis. Whenever the post was vacant or newly created with the approval of the competent authority, by following due procedure the vacancies were filled up from amongst those who are on daily wages according to the zonewise seniority list separately maintained for a particular zone and which position was not disputed by the Respondents before the Supreme Court.
The finding of unfair labour practice in that case amounted to not just making the Respondents/Complainants permanent, but that was subject to the approval of the State Government as modified by the learned Single Judge of this Court. The case arose when the original Complainants before the Supreme Court sought to claim benefits as permanent employees. Once there was direction that the orders of the Courts below were to be complied with subject to the approval of the State Government, then, all the more relying upon earlier judgment in Mahatma Phule Agricultural University v/s Nasik Zilla Sheth Kamgar Union (supra), that the State's appeal came to be allowed by the Honourable Supreme Court.
24 There is clear distinction in the case before me inasmuch as there is no material produced in relation to the alleged contractual work undertaken by Satara and Pune Divisions. In fact, the same Division was opened at Pune and employees from the Satara Division were posted and transferred at Pune. In fact it has come on record in the present case that Satara Division was functional for more than 10 years. Even Pune Division was functional for nearly 5 years. What has, therefore, occasioned to term the work allotted to the Respondent as temporary and contractual, has not ::: Downloaded on - 09/06/2013 17:46:21 ::: *20* wp.3208.3213.11.sxw been clarified at all. As to who awarded the contract to the Petitioners and what was its duration and how many employees were engaged to do contractual work and for how much time, has not been brought on record and therefore, Mr.Malpathak cannot derive any assistance from the judgment in the case of Mahatma Phule Agricultural University (supra). In fact this is a case where the judgment of the Honourable Supreme Court in the case of Maharashtra State Road Transport Corporation and another v/s Casteribe Rajya Parivahan Karmachari Sanghatana, reported in (2009) 8 SCC 556 is fully applicable. While rendering a finding on question No.1, the Honourable Supreme Court distinguished the decision of the Constitution Bench in the case of State of Karnataka v/s Umadevi reported in (2006) 4 SCC 1 and held thus:-
"30. The question that arises for consideration is: have the provisions of the MRTU & PULP Act been denuded of the statutory status by the Constitution Bench decision in Umadevi? In our judgment, it is not.
31. The purpose and object of the MRTU & PULP Act, inter alia, is to define and provide for prevention of certain unfair labour practices as listed in Schedules II, III and IV. The MRTU & PULP Act empowers the Industrial and Labour Courts to decide that the person named in the complaint has engaged in or is engaged in unfair labour practice and if the unfair labour practice is proved, to declare that an unfair labour practice has been engaged in or is being engaged in by that person and direct such person to cease and desist from such unfair labour practice and take such affirmative action (including payment of reasonable compensation to the employee or employees affected by the unfair labour practice, or reinstatement of the employee or employees with or without back wages, or the payment of reasonable compensation, as may in the opinion of the Court be necessary to effectuate the policy of the Act.
32. The power given to the Industrial and Labour Courts under Section 30 is very wide and the affirmative action mentioned therein is inclusive and not exhaustive.::: Downloaded on - 09/06/2013 17:46:21 :::
*21* wp.3208.3213.11.sxw Employing 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 is an unfair labour practice on the part of the employer under Item 6 of Schedule IV. Once such unfair labour practice on the part of the employer is established in the complaint, the Industrial and Labour Courts are empowered to issue preventive as well as positive direction to an erring employer.
33. The provisions of the MRTU & PULP Act and the powers of the Industrial and Labour Courts provided therein were not at all under consideration in Umadevi. As a matter of fact, the issue like the present one pertaining to unfair labour practice was not at all referred to, considered or decided in Umadevi. Unfair labour practice on the part of the employer in engaging employees as 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 as provided in Item 6 of Schedule IV and the power of the Industrial and Labour Courts under Section 30 of the Act did not fall for adjudication or consideration before the Constitution Bench.
34. It is true that Dharwad Distt. PWD Literate Daily Wages Employees' Assn. [(1990) 2 SCC 396] arising out of industrial adjudication has been considered in Umadevi and that decision has been held to be not laying down the correct law but a careful and complete reading of the decision in Umadevi leaves no manner of doubt that what this Court was concerned in Umadevi was the exercise of power by the High Courts under Article 226 and this Court under Article 32 of the Constitution of India in the matters of public employment where the employees have been engaged as contractual, temporary or casual workers not based on proper selection as recognised by the rules or procedure and yet orders of their regularisation and conferring them status of permanency have been passed.
35. Umadevi is an authoritative pronouncement for the proposition that the Supreme Court (Article 32) and the High Courts (Article 226) should not issue directions of absorption, regularisation or permanent continuance of temporary, contractual, casual, daily wage or adhoc employees unless the recruitment itself was made ::: Downloaded on - 09/06/2013 17:46:21 ::: *22* wp.3208.3213.11.sxw regularly in terms of the constitutional scheme.
36. Umadevi does not denude the Industrial and Labour Courts of their statutory power under Section 30 read with Section 32 of the MRTU & PULP Act to order permanency of the workers who have been victims of unfair labour practice on the part of the employer under Item 6 of Schedule IV where the posts on which they have been working exist. Umadevi cannot be held to have overridden the powers of the Industrial and Labour Courts in passing appropriate order under Section 30 of the MRTU & PULP Act, once unfair labour practice on the part of the employer under Item 6 of Schedule IV is established."25
While distinguishing the Mahatma Phule Agricultural University's case (supra) and R.S.Bhonde's case (supra), what the Supreme Court held is that there cannot be any quarrel with the proposition that the Courts cannot direct creation of posts. Equally, the status of permanency cannot be granted by the Court when no such post exists and that executive functions and powers with regard to the creation of posts cannot be arrogated by the Courts. But, when the factual matrix demonstrates that the benefits of regularization and permanency have been denied, then, by relying on some circulars and orders, casuals cannot be continued as permanent employees by the Courts. Such a proposition flows from reading of the judgments of the Honourable Supreme Court itself.
26 In these circumstances and when the employees who are identically situated as that of the Respondent have been not only absorbed, but have been given benefits of permanency, then, all the more the Petitioners cannot deny such benefits to the Respondent. Therefore, reliance placed by the learned counsel appearing for the Respondent on ::: Downloaded on - 09/06/2013 17:46:21 ::: *23* wp.3208.3213.11.sxw the decision of the High Court of Karnataka in the case of Shivamma v/s Krishna Grameen Bank reported in 2011 II CLR 986, is appropriate and correct.
27 Recently, even the Honourable Supreme Court had an occasion to consider an argument akin to what has been advanced before me by the Petitioners. Negativing that and reiterating the principles of service and Industrial Jurisprudence, in Harjinder Singh vs. Punjab State Warehousing Corporation, reported in AIR 2010 SC 1116, this is what is held:-
"17.
Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43-A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to subserve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J. opined that "the concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State" -- State of Mysore v. Worker of Gold Mines, AIR 1958 SC 923.
18. ..........
19. The preamble and various Articles contained in Part IV of the Constitution promote social justice so that life of every individual becomes meaningful and he is able to live with human dignity. The concept of social justice engrafted in ::: Downloaded on - 09/06/2013 17:46:21 ::: *24* wp.3208.3213.11.sxw the Constitution consists of diverse principles essentially for the orderly growth and development of personality of every citizen. Social justice is thus an integral part of justice in the generic sense. Justice is the genus, of which social justice is one of its species. Social justice is a dynamic devise to mitigate the sufferings of the poor, weak, dalits, tribals and deprived sections of the society and to elevate them to the level of equality to live a life with dignity of person. In other words, the aim of social justice is to attain substantial degree of social, economic and political equality, which is the legitimate expectation of every section of the society. In a developing society like ours which is full of unbridgeable and ever widening gaps of inequality in status and of opportunity, law is a catalyst to reach the ladder of justice. The philosophy of welfare State and social justice is amply reflected in large number of judgments of this Court, various High Courts, National and State Industrial Tribunals involving interpretation of the provisions of the Industrial Disputes Act, Indian Factories Act, Payment of Wages Act, Minimum Wages Act, Payment of Bonus Act, Workmen's Compensation Act, the Employees' State Insurance Act, the Employees' Provident Funds and Miscellaneous Provisions Act and the Shops and Commercial Establishments Act enacted by different States.
20. ..........
21. ..........
22. In Government Branch Press v. D.B. Belliappa (1979) 1 SCC 477 : (AIR 1979 SC 429), the employer invoked the theory of hire and fire by contending that the respondent's appointment was purely temporary and his service could be terminated at any time in accordance with the terms and conditions of appointment which he had voluntarily accepted. While rejecting this plea as wholly misconceived, the Court observed:-
"It is borrowed from the archaic common law concept that employment was a matter between the master and servant only. In the first place, this rule in its original absolute form is not applicable to government servants. Secondly, even with regard to private employment, much of it has passed into the fossils of time. "This rule held the field at the time when the master ::: Downloaded on - 09/06/2013 17:46:21 ::: *25* wp.3208.3213.11.sxw and servant were taken more literally than they are now and when, as in early Roman Law, the rights of the servant, like the rights of any other member of the household, were not his own, but those of his pater familias". The overtones of this ancient doctrine are discernible in the Anglo-American jurisprudence of the 18th century and the first half of the 20th century, which rationalised the employer's absolute right to discharge the employee. "Such a philosophy", as pointed out by K.K.Mathew, J. (vide his treatise: "Democracy, Equality and Freedom", p.326), "of the employer's dominion over his employee may have been in tune with the rustic simplicity of bygone days. But that philosophy is incompatible with these days of large, impersonal, corporate employers". To bring it in tune with vastly changed and changing socio-economic conditions and mores of the day, much of this old, antiquated and unjust doctrine has been eroded by judicial decisions and legislation, particularly in its application to persons in public employment, to whom the Constitutional protection of Articles 14, 15, 16 and 311 is available. The argument is therefore overruled.
The doctrine of laissez faire was again rejected in Glaxo Laboratories (India) Ltd. v. Presiding Officer (1984) 1 SCC 1 : (AIR 1984 SC 505), in the following words:
"In the days of laissez-faire when industrial relation was governed by the harsh weighted law of hire and fire the management was the supreme master, the relationship being referable to contract between unequals and the action of the management treated almost sacrosanct. The developing notions of social justice and the expanding horizon of socio-economic justice necessitated statutory protection to the unequal partner in the industry namely, those who invest blood and flesh against those who bring in capital. Moving from the days when whim of the employer was supreme lex, the Act took a modest step to compel by statute the employer to prescribe minimum conditions of service subject to which employment is given. The Act was enacted as its long title shows to require employers in industrial establishments to define with sufficient precision the conditions of employment under them and to make the said conditions ::: Downloaded on - 09/06/2013 17:46:21 ::: *26* wp.3208.3213.11.sxw known to workmen employed by them. The movement was from status to contract, the contract being not left to be negotiated by two unequal persons but statutorily imposed. If this socially beneficial Act was enacted for ameliorating the conditions of the weaker partner, conditions of service prescribed thereunder must receive such interpretation as to advance the intendment underlying the Act and defeat the mischief."
23. Of late, there has been a visible shift in the courts approach in dealing with the cases involving the interpretation of social welfare legislations. The attractive mantras of globalization and liberalization are fast become the raison d'etre of the judicial process and an impression has been created that the constitutional courts are no longer sympathetic towards the plight of industrial and unorganized workers. In large number of cases like the present one, relief has been denied to the employees falling in the category of workmen, who are illegally retrenched from service by creating by-lanes and side- lanes in the jurisprudence developed by this Court in three decades. The stock plea raised by the public employment/ engagement of the workman-employee was contrary to some or the other statute or that reinstatement of the workman will put unbearable burden on the financial health of the establishment. The courts have readily accepted such plea unmindful of the accountability of the wrongdoer and indirectly punished the tiny beneficiary of the wrong ignoring the fact that he may have continued in the employment for years together and that micro wages earned by him may be the only source of his livelihood. It need no emphasis that if a man is deprived of his livelihood, he is deprived of all his fundamental and constitutional rights and for him the goal of social and economic justice, equality of status and of opportunity, the freedoms enshrined in the Constitution remain illusory. Therefore, the approach of the courts must be compatible with the constitutional philosophy of which the Directive Principles of State Policy constitute an integral part and justice due to the workman should not be denied by entertaining the specious and untenable grounds put forward by the ::: Downloaded on - 09/06/2013 17:46:21 ::: *27* wp.3208.3213.11.sxw employer-public or private."
28 Thus, when the Industrial Laws are intended to achieve a socially beneficial purpose, then, the interpretation which would advance the same and defeat the mischief must be placed on their provisions. In the result, both Writ Petitions fail. Rule is discharged in each one of them, but without any order as to costs.
ig (S.C. Dharmadhikari, J)
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