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2. The Union, although a registered union under the Trade Union Act, but unrecognised under MRTU & PULP Act, filed two complaints, namely, complaint (ULP) No. 542/1991 and complaint (ULP) No. 574/1991 before the Industrial Court, Bombay alleging that the Corporation has indulged in unfair labour practice under item nos. 5,6,9 and 10 of Schedule IV of MRTU & PULP Act. The names of the affected employees were mentioned in the annexures annexed with the complaints. All these affected employees were engaged by the Corporation as casual labourers for cleaning the buses between the years 1980-85. According to the complainants, these employees are required to work everyday at least eight hours at the concerned depot of the Corporation; the work done by these employees is of permanent nature but they are being paid a paltry amount; and that the posts of sweepers/cleaners are available in the Corporation yet these employees have been kept on casual and temporary basis for years together denying them the benefit of permanency.

10. Mr. Shekhar Naphade, learned Senior Counsel for the employees and Mr. Vinay Navare, learned counsel for the Union stoutly defended the direction given to the Corporation in according permanency and consequential benefits to the affected employees.

(2001) 7 SCC 346 (2005) 3 SCC 409

11. We deem it appropriate to notice the relevant provisions of MRTU & PULP Act first. But before we do that it is important to notice that MRTU & PULP Act was enacted with an object to provide for the recognition of trade unions for facilitating collective bargaining for certain undertakings; to state their rights and obligations; to confer certain powers on unrecognized unions; to provide for declaring certain strikes and lockouts as illegal strikes and lockouts; to define and provide for the prevention of certain unfair labour practices; to constitute courts (as independent machinery) for carrying out the purposes of according recognition to trade unions and for enforcing the provisions relating to unfair labour practices; and to provide for matters connected with the purposes aforesaid.

26. The question that arises for consideration is: have the provisions of MRTU & PULP Act denuded of the statutory status by the Constitution Bench decision in Umadevi1. In our judgment, it is not. The purpose and object of MRTU & PULP AIR 1967 SC 1071 (1972) 1 SCC 409 (1979) 4 SCC 507 Act, inter alia, is to define and provide for prevention of certain unfair labour practices as listed in Schedule II, III and IV. 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 policy of the Act. 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. 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. The provisions of MRTU & PULP Act and the powers of Industrial and Labour Courts provided therein were not at all under consideration in the case of Umadevi1. As a matter of fact, the issue like the present one pertaining to unfair labour practice was not at all referred, considered or decided in Umadevi1. Unfair labour practice on the part of the employer in engaging employees as badlies, 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 Industrial and Labour Courts under Section 30 of the Act did not fall for adjudication or consideration before the Constitution Bench. It is true that the case of Dharwad District PWD Literate Daily Wage Employees Assn.7 arising out of industrial adjudication has been considered in Umadevi1 and that decision has been held to be not laying down the correct law but a careful and complete reading of decision in Umadevi1 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 recognized by the rules or procedure and yet orders of their regularization and conferring them status of permanency have been passed. Umadevi1 is an authoritative pronouncement for the proposition that Supreme Court (Article 32) and High Courts (Article 226) should not issue directions of absorption, regularization or permanent continuance of temporary, contractual, casual, daily wage or ad-hoc employees unless the recruitment itself was made regularly in terms of constitutional scheme. Umadevi1 does not denude the Industrial and Labour Courts of their statutory power under Section 30 read with Section 32 of MRTU & PULP Act to order permanency of the workers who have been victim 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 exists. Umadevi cannot be held to have overridden the powers of Industrial and Labour Courts in passing appropriate order under Section 30 of MRTU & PULP Act, once unfair labour practice on the part of the employer under item 6 of Schedule IV is established.

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(1995) 3 SCC 78 1962 Supp (2) SCR 890 (1978) 1 SCC 162 1984 Supp. SCC 663 (1993) 2 SCC 115

38. It is important to bear in mind that the concept of recognition of unions has been introduced in MRTU & PULP Act with a view to facilitate the collective bargaining for the employees in certain undertakings. In respect of unfair labour practices specified in items 2 & 6 of the Schedule IV, it is provided in Section 21 that in respect of such items no employee in an undertaking to which the provisions of Industrial disputes Act applies shall be allowed to appear or act or be allowed to be represented except through the recognized union. The expression, " to appear or act or allowed to be represented" in Section 21(1) is of wide import, comprehensive and embraces within itself the act of filing complaint, leading evidence, examination and cross examination of witnesses and audience before the Industrial Court/Labour Court. There is nothing to control the expression, " to appear or to act or allowed to be represented" as used in Section 21(1). It is referable to all kinds of acts by the recognized union in the proceedings relating to unfair labour practices specified in items 2 and 6 of the Schedule IV. Section 21(1) excludes individual employees, unrecognized union or any other form of association or union other than recognized union under MRTU & PULP Act to appear or act or be represented in the proceedings relating to unfair labour practices specified in items 2 and 6 of Schedule IV. It is only recognized union which has been empowered to espouse the cause relating to unfair labour practices specified in items 2 and 6 of Schedule IV in the proceedings before Industrial/Labour Court. Section 21(1) is a special provision in respect of appearance, act and representation in respect of the complaints filed under Section 28 relating to unfair labour practices specified in items 2 and 6 of Schedule IV. Section 21, thus, creates a bar on unrecognized union from acting, appearing or representing any employee(s) in a proceeding relating to unfair labour practices under items 2 and 6 of Schedule IV. The right to represent the employee(s) in matters relating to unfair labour practices in items 2 and 6 of Schedule IV of the Act under Section 21 is exclusively available to the recognised union and none else.