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WP.2551.11 n WP.2548.11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2551 OF 2011
Sudhir S/o Kamlakar Ayachit,
Age : 48 Years, Occu.: Telephone Operator,
R/o : Quarter No. Old E-113,
Shakti Kunj Vasahat, Parli Vaijnath,
District: Beed. ... PETITIONER
V E R S U S
Maharashtra State Electricity Board,
Parli Thermal Power Station,
Parli Vaijnath, Dist. Beed.
Through its:
The Chief Engineer (Generation)
Presently known as -
Maharashtra State Power Generation
Company Ltd., Parli Thermal Power Station,
Parli Vaijnath, Dist. Beed.
Through its :
The Chief Engineer (Generation). ... RESPONDENT
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WP.2551.11 n WP.2548.11
WITH
WRIT PETITION NO. 2548 OF 2011
Anant S/o Narhari Sonar,
Age : 42 Years, Occu.: Telephone Operator,
R/o : Priya Nagar, Parli Vaijnath,
District: Beed. ... PETITIONER
V E R S U S
Maharashtra State Electricity Board,
Parli Thermal Power Station,
Parli Vaijnath, Dist. Beed.
Through its:
The Chief Engineer (Generation)
Presently known as -
Maharashtra State Power Generation
Company Ltd., Parli Thermal Power Station,
Parli Vaijnath, Dist. Beed.
Through its :
The Chief Engineer (Generation). ... RESPONDENT
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Mr. T.K.Prabhakaran, Advocate i /b Mr. V.R.Mundada, Advocate for the
Petitioner in both the petitions.
Mr. R.P.Powar, Advocate for the Respondent in both the petitions.
-----
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WP.2551.11 n WP.2548.11
CORAM : A.V.NIRGUDE, J.
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RESERVED ON : 13 September, 2012.
28 September, 2012.
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PRONOUNCED ON :
JUDGMENT:
1 Both these writ petitions, by consent, are taken up for final hearing.
2By consent, the writ petitions are disposed of by this common judgment.
3 Rule made returnable forthwith.
4 The Petitioners in both the petitions are challenging the
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legality and correctness of the common judgment dated 27 August, 2010 delivered by the learned Member, Industrial Court, at Aurangabad on their complaints, which they had filed under the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as "the MRTU and PULP Act").
5 The Petitioners are working with the Respondent -
Establishment as telephone operators since 1992. It is also an admitted th fact that, initially on 9 November, 1982 they were engaged as contract labour by one Shri. Bhosle, a contractor. The contract of Shri. Bhosle ::: Downloaded on - 02/08/2016 16:49:03 ::: 4 WP.2551.11 n WP.2548.11 continued for two years and though it was terminated, the Respondent -
Establishment retained the services of the Petitioners as telephone operators on "contract basis". There is no dispute between the parties that the Petitioners worked in shifts to operate the telephones of the Respondent - Establishment and that they are paid certain charges.
The arrangement between the Respondent - Establishment and the Petitioners is contract which is renewed every year. This position continued for last 25 years or more. The Petitioners also contended that they are not registered contractors nor the contract labours. They asserted that they are workmen as defined under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as "the ID Act") and under Section 3(5) of the MRTU and PULP Act. They also asserted that there is a clear permanent vacant post available. They further pointed out that at other place, the Respondent had made regular appointments of telephone operators. They, however, admit that there is a provision of MSEB Employees Service Regulations and that they admit that they were not employed in the service of the Respondent by following due procedure prescribed by the regulations. They further contended that more than 100 employees are employed in the Respondent -
Establishment and so Chapter V-B of the ID Act and Model Standing Orders are applicable. They further asserted that besides the amount they are paid for the work, no other benefits are extended to them. They further asserted that the work they are doing is available on regular ::: Downloaded on - 02/08/2016 16:49:03 ::: 5 WP.2551.11 n WP.2548.11 basis. They alleged that in the facts of their case, the Respondent -
Establishment has engaged in unfair labour practices in continuing the services of the Petitioners on contract basis without giving them permanent appointment.
6 The Respondent - Establishment resisted the case by filing written statement in which it is contended that the services of their employees are regulated by M.S.E.B. Employees Service Regulations framed under Section 79 (c) of the Electricity (Supply) Act, 1948.
Recruitment to various posts is controlled and governed by M.S.E.B.
Classification and Recruitment Regulations, 1961. They admitted that the Establishment is equipped with PBX telephone Exchange. They further admitted that in 1982, an independent contractor one Bhosle was entrusted with the work of operating PBX Exchange on contract basis.
They further admitted that the Petitioners were engaged by him for running the system. They further admitted that Bhosle's contract came to an end in 1984 and thereafter, from time to time, 'contract' was given to the Petitioners for operating the PBX Exchange. They further asserted that there is no permanent vacant post as telephone operator in their Establishment. There was no sanctioned post of telephone operator at the Establishment. They, however, admitted that two posts of telephone operators were sanctioned for the first time in June 1996.
They further admitted that these posts are not filled up on account of certain policy decision. The learned Member of the Industrial Court ::: Downloaded on - 02/08/2016 16:49:03 ::: 6 WP.2551.11 n WP.2548.11 thereafter, in view of these rival pleadings, framed some issues and after recording the evidence of the Petitioners, he in paragraph No.25 of his judgment, held as under:
"25 In the light of above discussed facts and circumstances and the ratio laid down in the various cases, it is clear that basically, the complainant has failed to prove that there exists undisputed relationship between himself and the respondent of employee and employer. The complainant has failed to prove that he was appointed by following prescribed rules as telephone operator and as such, he is entitled for permanency benefits. For these reasons, I record my findings to above issues in the negative and proceed to pass following Order:-
Complaint is dismissed.
Parties are directed to bear their own costs."
7 The issues that were framed by the learned Member, are required to be quoted, so as to appreciate and discuss the findings quoted above.
::: Downloaded on - 02/08/2016 16:49:03 ::: 7 WP.2551.11 n WP.2548.11 "Sr.No. Issues Findings 1. Does the complainant prove In the that the respondent negative. committed unfair labour practice under item No.1 (a) of Sch.II of the MRTU & PULP Act, as alleged ? 2. Does the complainant prove In the that the respondent negative. ig abolished the work of a regular nature being done by the complainant and to give such work to contractors as a measure of breaking strike, as alleged ? 3. Does the complainant prove In the that the respondents negative. employed the Complainant as badli, casual or temporary and continued him as as such for years, with the object of depriving him of the status and privileges of permanent employees as alleged ? 4. Does the complainant prove In the unfair labour practices on negative. the part of the respondents by failure to implement award, settlement or ::: Downloaded on - 02/08/2016 16:49:03 ::: 8 WP.2551.11 n WP.2548.11 agreement, as agreed ? 5. Whether the complainant is In the entitled to relief sought ? negative. 6. What order ? Complaint dismissed as per final order." 8
However, the learned Member apparently concentrated on the question as to whether there existed undisputed relationship of employer - employee between the parties. The learned Member thereafter, discussed various decisions of the Supreme Court and also of this Court and held that the Court would not have jurisdiction to decide the plaint because of relationship between the Petitioners and the Respondent is not that of employer and the employees.
9 After 1984, there is no labour contractor between the Petitioners and the Respondent - Establishment. The contract is admittedly signed by the Petitioners themselves. They are working as telephone operators and apparently the work is available on permanent basis. It is further an admitted fact that there are two posts of telephone operators with the Respondent - Establishment since 1996 and they are vacant. So, in view of this and in view of the various judgments of the Supreme Court and this Court, the first question that is required to be ::: Downloaded on - 02/08/2016 16:49:03 ::: 9 WP.2551.11 n WP.2548.11 decided in these cases, is whether the employer - employee relationship between the parties is "indisputable"? The answer to this is in affirmative. My reasons are elaborated as under:
10 Section 2(s) of the ID Act. Section 2(s) of the ID Act reads as under:
"2 (s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such persons -
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer of other employee of a person, or
(iii) who is employed mainly in a managerial or administrative capacity, or ::: Downloaded on - 02/08/2016 16:49:03 ::: 10 WP.2551.11 n WP.2548.11
(iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."
11 The learned Member inter alia referred in his judgment, the judgment of the Supreme Court in the case of Dharangadhara Chemical Works Ltd. Vs. State of Saurashtra reported in [ AIR 1957 SC 264]. In this case, the words and phrases 'workman' and 'contractors' are distinguished. It is observed that such distinction lies between two categories to the effect that the workman agrees himself to work, whereas the contractor agrees to get other persons to work.
Admittedly, the Petitioners agreed to work for the Respondent as telephone operators and so they are workmen as defined under Section 2(s) of the ID Act.
12 In order to support the impugned judgment, the learned counsel for the Respondent placed reliance on various judgments. I have heard his submissions at length. He initially placed reliance on the judgment of the Supreme Court in the case of Secretary, State of Karnataka & ors Vs. Umadevi & ors, reported in [ 2006 (II) CLR 261 ::: Downloaded on - 02/08/2016 16:49:03 ::: 11 WP.2551.11 n WP.2548.11 SC ] and asserted that having regard to the law laid down in the said judgment, the Petitioners cannot be said to be employees of the Respondent - Establishment because they are admittedly not recruited by following process of regulations. However, this submission can be easily nullified by the ratio of the judgment of the Supreme Court in the case of Maharashtra State Road Transport Corporation & Anr Vs. Casteribe Rajya P. Karmchari Sanghatna, reported in [ 2009 (III) CLR 262 ]. The Supreme Court in this judgment very clearly held that the judgment of Umadevi's case will not affect the powers of the Industrial Court under Section 30 of the MRTU and PULP Act.
13 Besides the judgment of Umadevi's case, the learned counsel for the Respondent also placed reliance on the judgment of the Division Bench of this Court in the case of Hindustan Coca Cola Bottling S/W Pvt. Ltd. Vs. Bhartiya Kamgar Sena & Ors, reported in [ 2001 (III) CLR 1025]. In this judgment, following the Supreme Court's judgment in the case of Cipla Limited Vs. Maharashtra General Kamgar Union and Ors., reported in [ 2001 (I) CLR 754 ], the Division Bench of this Court held that if employer - employee relationship is established by the competent Forum or employer - employee relationship is "undisputed" or "indisputable", then a complaint under the MRTU and PULP Act would be maintainable. The ratio of this judgment is a settled law now.
::: Downloaded on - 02/08/2016 16:49:03 ::: 12WP.2551.11 n WP.2548.11 14 So, in this case, the first question that was required to be decided by the learned Member was, whether the relationship between the parties as employer - employee is "indisputable" by the employer.
Merely denying the relationship is not sufficient. The Respondent, however, could not deny the fact that the Petitioners were working as telephone operators with the Respondent without any break and they are paid certain remuneration for the same. In view of this, the fact that there existed a so called "contract" between the Petitioners and the Respondent is required to be ignored altogether. This fact makes out a case to hold that the relationship is "indisputable".
15 In view of this, I am not inclined to refer to other judgments of this Court namely the judgment of the Division Bench in the case of State of Maharashtra and Anr. Vs. Pandurang Sitaram Jadhav, reported in [2008 (III) CLR 151].
16 I am inclined to hold that this complaint was maintainable before the learned Member of the Industrial Court, Aurangabad. I am also holding that the finding of fact recorded by the learned Member in paragraph No.16 of his judgment "In the instant case, admittedly as yet, such posts of telephone operator are not crated by the respondent" is factually incorrect. As recorded above, the Respondent admitted that in 1996, two posts of telephone operators are created and are not filled up because of certain policy. In view of this, the case is required to be ::: Downloaded on - 02/08/2016 16:49:03 ::: 13 WP.2551.11 n WP.2548.11 remanded back to the trial Court for deciding mainly the issue No.3 which is quoted above.
17 There shall be no order as to costs.
[ A.V.NIRGUDE, J ]
ig %%%
ndm
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