WP/11257/2014/Group
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 11257 OF 2014
Mukhyadhikari,
Nagar Parishad, Tuljapur ..Petitioner
Versus
Vishal Vijay Amrutrao,
Age 30 years, Occ. Service,
R/o Dayawan Nagar, Tuljapur,
Tq. Tuljapur, District Osmanabad ..Respondent
WITH
Mukhyadhikari,
WRIT PETITION NO.11258 OF 2014
Nagar Parishad, Tuljapur ..Petitioner
Versus
Ravikumar Bitu Maske
Age 41 years, Occ. Service,
R/o Arya Chowk, Tuljapur,
Tq. Tuljapur, District Osmanabad ..Respondent
WITH
WRIT PETITION NO.11259 OF 2014
Mukhyadhikari,
Nagar Parishad, Tuljapur ..Petitioner
Versus
Manohar Wamanrao Deshmukh
Age 52 years, Occ. Service,
R/o Vishwas Nagar, Tuljapur,
Tq. Tuljapur, District Osmanabad ..Respondent
WITH
WRIT PETITION NO.11260 OF 2014
Mukhyadhikari,
Nagar Parishad, Tuljapur ..Petitioner
Versus
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2
Ratnamal Chandrakant Jadhav,
Age 35 years, Occ. Service,
R/o Aradhwadi, Tuljapur,
Tq. Tuljapur, District Osmanabad ..Respondent
WITH
WRIT PETITION NO.11261 OF 2014
Mukhyadhikari,
Nagar Parishad, Tuljapur ..Petitioner
Versus
Vimal Chimaji Salunke,
Age 44 years, Occ. Service,
R/o Dayanand Nagar, Tuljapur,
Tq. Tuljapur, District Osmanabad ..Respondent
WITH
WRIT PETITION NO.11262 OF 2014
Mukhyadhikari,
Nagar Parishad, Tuljapur ..Petitioner
Versus
Janabai Ambadas Pophale,
Age 48 years, Occ. Service,
R/o Shivaji Nagar, Hudco, Tuljapur,
Tq. Tuljapur, District Osmanabad ..Respondent
WITH
WRIT PETITION NO.11263 OF 2014
Mukhyadhikari,
Nagar Parishad, Tuljapur ..Petitioner
Versus
Sanjivani Bhalchandra Jadhav,
Age 45 years, Occ. Service,
R/o Wadar Wada, Tuljapur,
Tq. Tuljapur, District Osmanabad ..Respondent
WITH
WRIT PETITION NO.11264 OF 2014
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WP/11257/2014/Group
3
Mukhyadhikari,
Nagar Parishad, Tuljapur ..Petitioner
Versus
Shivaji Vasantrao Sonwane
Age 41 years, Occ. Service,
R/o Bhim Nagar, Tuljapur,
Tq. Tuljapur, District Osmanabad ..Respondent
WITH
WRIT PETITION NO.11265 OF 2014
Mukhyadhikari,
Nagar Parishad, Tuljapur ..Petitioner
Versus
Sanjay Tanaji Ingale,
Age 40 years, Occ. Service,
R/o Dayawan Nagar, Tuljapur,
Tq. Tuljapur, District Osmanabad ..Respondent
WITH
WRIT PETITION NO.11266 OF 2014
Mukhyadhikari,
Nagar Parishad, Tuljapur ..Petitioner
Versus
Ramesh Devidas Akude,
Age 40 years, Occ. Service,
R/o Kanhe Galli, Tuljapur,
Tq. Tuljapur, District Osmanabad ..Respondent
WITH
WRIT PETITION NO.11267 OF 2014
Mukhyadhikari,
Nagar Parishad, Tuljapur ..Petitioner
Versus
Vanmala Namdev Ghodake,
Age 40 years, Occ. Service,
R/o Jijamata Nagar, Tuljapur,
Tq. Tuljapur, District Osmanabad ..Respondent
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4
WITH
WRIT PETITION NO.11268 OF 2014
Mukhyadhikari,
Nagar Parishad, Tuljapur ..Petitioner
Versus
Raju Rattu Roman,
Age 45 years, Occ. Service,
R/o Near ZP High School, Tuljapur,
Tq. Tuljapur, District Osmanabad ..Respondent
WITH
WRIT PETITION NO.11269 OF 2014
Mukhyadhikari,
Nagar Parishad, Tuljapur ..Petitioner
Versus
Rajabhau Mallikarjun Satpute,
Age 40 years, Occ. Service,
R/o Dayawan Nagar, Tuljapur,
Tq. Tuljapur, District Osmanabad ..Respondent
WITH
WRIT PETITION NO.11270 OF 2014
Mukhyadhikari,
Nagar Parishad, Tuljapur ..Petitioner
Versus
Bharat Rajaram Devkar,
Age 43 years, Occ. Service,
R/o Wadarwada, Tuljapur,
Tq. Tuljapur, District Osmanabad ..Respondent
WITH
WRIT PETITION NO.11271 OF 2014
Mukhyadhikari,
Nagar Parishad, Tuljapur ..Petitioner
Versus
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5
Aruna Vitthal Rokade,
Age 46 years, Occ. Service,
R/o Vishwas Nagar, Tuljapur,
Tq. Tuljapur, District Osmanabad ..Respondent
WITH
WRIT PETITION NO.11272 OF 2014
Mukhyadhikari,
Nagar Parishad, Tuljapur ..Petitioner
Versus
Shalan Bhalchandra Mane,
Age 44 years, Occ. Service,
R/o Mangalwar Peth, Tuljapur,
Tq. Tuljapur, District Osmanabad
WITH
..Respondent
WRIT PETITION NO.11273 OF 2014
Mukhyadhikari,
Nagar Parishad, Tuljapur ..Petitioner
Versus
Sajjan Shivaji Gaikwad,
Age 36 years, Occ. Service,
R/o Hudco, Tuljapur,
Tq. Tuljapur, District Osmanabad ..Respondent
WITH
WRIT PETITION NO.11274 OF 2014
Mukhyadhikari,
Nagar Parishad, Tuljapur ..Petitioner
Versus
Nagar Sudhakar Pawar,
Age 52 years, Occ. Service,
R/o Tuljapur,
Tq. Tuljapur, District Osmanabad ..Respondent
WITH
WRIT PETITION NO.11275 OF 2014
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WP/11257/2014/Group
6
Mukhyadhikari,
Nagar Parishad, Tuljapur ..Petitioner
Versus
Sindhu Gajendra Deshmukh,
Age 44 years, Occ. Service,
R/o Tuljapur,
Tq. Tuljapur, District Osmanabad ..Respondent
WITH
WRIT PETITION NO.11276 OF 2014
Mukhyadhikari,
Nagar Parishad, Tuljapur ..Petitioner
Versus
Vedprakash Ganpatrao Auti,
Age 35 years, Occ. Service,
R/o Jawahar Galli, Tuljapur,
Tq. Tuljapur, District Osmanabad ..Respondent
WITH
WRIT PETITION NO.11277 OF 2014
Mukhyadhikari,
Nagar Parishad, Tuljapur ..Petitioner
Versus
Astik Suryadas Sakhare,
Age 42 years, Occ. Service,
R/o Dayanand Nagar, Tuljapur,
Tq. Tuljapur, District Osmanabad ..Respondent
WITH
WRIT PETITION NO.11278 OF 2014
Mukhyadhikari,
Nagar Parishad, Tuljapur ..Petitioner
Versus
Nanasaheb Jalindar Shinde,
Age 38 years, Occ. Service,
R/o Kakramba,
Tq. Tuljapur, District Osmanabad ..Respondent
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7
WITH
WRIT PETITION NO.11279 OF 2014
Mukhyadhikari,
Nagar Parishad, Tuljapur ..Petitioner
Versus
Gunmat Bhujang Kadam,
Age 43 years, Occ. Service,
R/o Bhosale Galli, Shukrawar Peth,
Tuljapur, District Osmanabad ..Respondent
WITH
WRIT PETITION NO.11280 OF 2014
Mukhyadhikari,
Nagar Parishad, Tuljapur ..Petitioner
Versus
Rajabai Rambhau Tole,
Age 43 years, Occ. Service,
R/o Aradhwadi, Tuljapur,
Tq. Tuljapur, District Osmanabad ..Respondent
WITH
WRIT PETITION NO.11281 OF 2014
Mukhyadhikari,
Nagar Parishad, Tuljapur ..Petitioner
Versus
Ambika Nanasaheb Kadam,
Age 40 years, Occ. Service,
R/o Tuljapur,
Tq. Tuljapur, District Osmanabad ..Respondent
WITH
WRIT PETITION NO.11282 OF 2014
Mukhyadhikari,
Nagar Parishad, Tuljapur ..Petitioner
Versus
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WP/11257/2014/Group
8
Balu Bapu Gaikwad,
Age 42 years, Occ. Service,
R/o Osmanabad Road, Tuljapur,
Tq. Tuljapur, District Osmanabad ..Respondent
WITH
WRIT PETITION NO.11283 OF 2014
Mukhyadhikari,
Nagar Parishad, Tuljapur ..Petitioner
Versus
Padminbai Subhas Chavan,
Age 50 years, Occ. Service,
R/o Dayanand Nagar, Tuljapur,
Tq. Tuljapur, District Osmanabad
WITH
..Respondent
WRIT PETITION NO.11284 OF 2014
Mukhyadhikari,
Nagar Parishad, Tuljapur ..Petitioner
Versus
Mahananda Bhagwan Papade,
Age 44 years, Occ. Service,
R/o Dayanand Nagar, Tuljapur,
Tq. Tuljapur, District Osmanabad ..Respondent
WITH
WRIT PETITION NO.11285 OF 2014
Mukhyadhikari,
Nagar Parishad, Tuljapur ..Petitioner
Versus
Nagarbai Narayan Pujari,
Age 45 years, Occ. Service,
R/o Tuljapur,
Tq. Tuljapur, District Osmanabad ..Respondent
WITH
WRIT PETITION NO.11286 OF 2014
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WP/11257/2014/Group
9
Mukhyadhikari,
Nagar Parishad, Tuljapur ..Petitioner
Versus
Dattatray Narayan Dongare,
Age 44 years, Occ. Service,
R/o Vishwas Nagar, Tuljapur,
Tq. Tuljapur, District Osmanabad ..Respondent
AND
WRIT PETITION NO.11287 OF 2014
Mukhyadhikari,
Nagar Parishad, Tuljapur ..Petitioner
Versus
Chaya Rangnath Patil,
Age 44 years, Occ. Service,
R/o Dayanand Nagar, Tuljapur,
Tq. Tuljapur, District Osmanabad ..Respondent
...
Shri K.K.Kulkarni, Advocate for Petitioners and
Shri K.B.Jadhav, Advocate for Respondents in
WP/11257/2014, WP/11258/2014, WP/11259/2014, WP/11260/2014,
WP/11262/2014, WP/11263/2014, WP/11264/2014, WP/11265/2014,
WP/11267/2014, WP/11268/2014, WP/11269/2014, WP/11270/2014,
WP/11271/2014, WP/11272/2014, WP/11273/2014, WP/11274/2014,
WP/11277/2014, WP/11281/2014, WP/11282/2014, WP/11284/2014,
WP/11285/2014 & WP/11287/2014.
...
CORAM : RAVINDRA V. GHUGE, J.
Dated : December 11, 2014 ORAL ORDER :
1. I have heard Shri Kulkarni,the learned Advocate for the petitioner and Shri N.B.Jadhav, learned Advocate appearing on behalf of the respondents in 23 writ petitions, as mentioned above, at length.
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2. In view of the order that I propose to pass, I am not formally issuing notices to the respondents. I have heard the learned Advocate Mr.Jadhav on behalf of the respondents workers.
3. The petitioner Municipal Council, Tulzapur was the original respondent in all the complaints before the Industrial Court at Latur and is the petitioner in all these matters. A common judgment and order dated 28/03/2014 in 30 writ petitions and the judgment and order dated 02/05/2014 in WP No.11279/2014 are questioned in these petitions. Both the judgments are practically identical. The issue involved is identical and therefore I am deciding these petitions together.
4. The respondents had preferred several complaints before the Industrial Court at Latur under the M.R.T.U. and P.U.L.P. Act of 1971 (In short, State Act). In all the complaints, the respondents had invoked Item Nos. 5, 6, 9 and 10 of Schedule IV of the State Act. All of them had claimed permanency, benefits incidental and consequential thereto and had also sought a declaration of unfair labour practices (ULP) against the petitioner.
5. Evidence was recorded in all the complaints and the litigating parties had requested the Court to permit recording of oral evidence in complaint (ULP) No.85/2011. In 24 complaints, the complainants had led their oral evidence. In 6 other cases, the complainants led evidence ::: Downloaded on - 17/12/2014 23:46:48 ::: WP/11257/2014/Group 11 separately and in 5 cases, the complainants had adopted the evidence recorded by their co-complainants. It was at the request of the litigating parties that the Industrial Court took up all the complaints together for hearing and were disposed of by a common judgment.
6. The contention of the workers was that they have been working since 1993-1994 with the petitioner Municipal Council. They were treated as temporaries and were paid consolidated wages. They were deployed in the Water Supply, Sanitation, Library and the Administration departments of the Municipal council. Some of them were also teachers. All of them have put in more than 10 years in the continuous and un-interrupted service of the petitioner.
7. The workers while claiming permanency and benefits incidental thereto, had invoked the provisions of the Industrial Employment Standing Orders Act 1946 and had placed reliance upon the Model Standing Orders framed thereunder. Grievance was that though work is continuously available and the same has been performed by all these workers, the petitioner has deprived them of the benefits of permanency and has deliberately continued them as temporaries or casuals with an intent and object of depriving them of the benefits of permanency.
8. It was also alleged that the petitioner was indulging in favoritism ::: Downloaded on - 17/12/2014 23:46:48 ::: WP/11257/2014/Group 12 to one set of workers regardless of their merits. Since permanency was not bestowed upon the workers, it was alleged that the petitioners have failed to implement a settlement, agreement or award. It was, therefore, prayed that a declaration of unfair labour practices (ULP) be made against the petitioners.
9. The petitioner, who was respondent in all these matters, had led evidence through its Chief Officer. It was specifically brought on record that the petitioner Municipal Council does not have the power to create posts and cause recruitment without following the due procedure of Law and without obtaining the sanction from the Directorate of Municipal Corporation. It was, therefore, contended that since it was a growing Municipal Council, whose population was roughly about 20,000/- in the year 1988, the services in the nature of Water Supply, Sanitation, Public Library and the Municipal Administration were required to be offered to the growing population. Since the posts were not created by the Govt., the petitioner had no option but to continue the respondents as daily wagers on consolidated wages since services had to be given by the Municipal Council to the residents of Tulzapur.
10. The petitioner further contends that there was no deliberate or willful intention to deprive the respondents of any benefits under the Law to which they may be entitled to . It cannot be alleged against the petitioner that it was deliberately not creating posts or that there were ::: Downloaded on - 17/12/2014 23:46:48 ::: WP/11257/2014/Group 13 permanent vacant posts available and the petitioner was intentionally keeping them vacant.
11. After recording of oral evidence, the Industrial Court, Latur has decided all these complaints by its common judgment dated 28/03/2014 and an another judgment dated 02/05/2014. The petitioner is aggrieved by the declaration of ULP made by the Industrial Court, Latur against the petitioner despite having brought on record the fact that the petitioner did not have the powers to create posts and recruit employees as if it is an autonomous body.
12. According to the petitioner, the basic ingredient required for proving Item No.6 of Schedule IV of the State Act was that the employer had an intention of depriving the daily wagers of their status and privileges of permanency. Once it is established that the petitioner cannot create posts and cannot unilaterally recruit employees, the basic object required to be established under Item No.6 of Schedule IV, stands disproved. Learned Advocate for the petitioner, therefore, submits that the declaration of ULP is unsustainable against the petitioner.
13. Learned Advocate for the petitioner also points out that Item No.5 of Schedule IV could be attracted if there is a specific pleading to establish a particular set of workers, who have been unfairly benefited by the partisan act of the petitioner of showing undue favoritism ::: Downloaded on - 17/12/2014 23:46:48 ::: WP/11257/2014/Group 14 towards them by granting them permanency and benefits incidental thereto, while depriving the respondents of such benefits. According to the learned Advocate, neither had the respondents pleaded in their complaint as regards a particular set of persons, having been favoured by the petitioner, nor has it been brought on record that there are certain employees, who could be said to have formed a particular set and who have benefited from the act of favoritism.
14. Learned Advocate for the petitioner has placed reliance upon the judgment of this Court in the matter of Lagwad Adhikari and others Vs. Yasin Hamid Sayyad, 2008(2) Mh.L.J.338. He has specifically relied upon paragraph Nos. 6, 10, 12 and 15 from the said judgment, which read as under :-
"6. The short question this Court is required to consider is, whether the findings of the Industrial Court holding the present petitioners guilty of unfair labour practices within the meaning of Items 6 and 9 of Schedule IV of the Act are justified. Items 6 and 9 of Schedule IV of the Act reads as under:
6. 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 privileges of permanent employees.
9. Failure to implement award, settlement or agreement.
It is a well settled position in law that when badlis, casuals or ::: Downloaded on - 17/12/2014 23:46:48 ::: WP/11257/2014/Group 15 temporaries are continued for years together on account of non availability of permanent sanctioned posts, failure for their absorption in the respective posts either Class -D or Class -C per se, is not an act of unfair labour practice within the meaning of Item 6 of Schedule IV of the Act.
In the case of Punjabrao Krishi Vidyapeeth, Akola v. General Secretary, Krishi Vidyapeeth Kamgar Union and Ors. , a Single Bench of this Court (Hon'ble Shri Justice V.S. Sirpurkar as His Lordship then was) considered the scope of Item 6 of Schedule IV and posed the following questions:
What then is the position of an employer who does not have the authority to employ such person permanently owing to a provision of law? Could it be said that an employer who is specifically prohibited from granting the status of permanency by creating posts is also covered under the language of Schedule IV, Entry 6?
In para 8 His Lordship replied these questions as under:
"The answers to these questions will depend upon the true interpretation of this entry. Now, the plain language of entry No. 6 suggests that in continuing the employees as casuals or temporaries, there must be a definite object of depriving such workers of their rightful benefits. Then and then alone, this practice could be covered under the entry. How would that object be discerned is the question? By mere showing that there has been a practice of continuing the employees in the manner as shown ::: Downloaded on - 17/12/2014 23:46:48 ::: WP/11257/2014/Group 16 above, does the complainant discharge his burden?
The answer must be given in the negative. It is true that a continued practice of continuing the employee for years together as a badli employee or a temporary employee may definitely raise a finger of suspicion regarding the intention of that employee. However, in order to hold such employer guilty of such unfair labour practice as described in entry 6, something more is required. There must be "tangible evidence" to show that this was deliberately done. The words "with the object of" connote intention or mens rea on to the part of employer, or a certain design in his mind achieve certain results. Without that vital intention or that certain design, the employer cannot be dragged in...."
This view has been confirmed by the Apex Court in the case of Mahatma Phule Agricultural University (Supra). In para 14 their Lordships reproduced Item 6 of Schedule IV of the Act and stated as under:
"The complaint was against the Universities. The High Court notes, that as there were no posts the employees could not be made permanent. Once it comes to the conclusion that for lack of posts the employees could not be made permanent how could it then go on to hold that they were continued as "badlis", casuals or temporaries with the object of depriving them of the status and privileges of permanent employees. To be noted that the complaint was not against the State Government. The complaint was against the Universities. The inaction ::: Downloaded on - 17/12/2014 23:46:48 ::: WP/11257/2014/Group 17 on the part of the State Government to create posts would not mean that an unfair labour practice had been committed by the Universities. The reasoning given by the High Court to conclude that the case was squarely covered by Item 6 of Schedule IV of the MRTU and PULP Act cannot be sustained at all and the impugned Judgment has to be and is set aside...."
10. There is one more issue which requires consideration, though may not be in all these cases and i.e. regarding calculating 240 days of work in one year. It is well settled that if a workman is paid on daily wages he does not get the benefit of weekly holidays and paid holidays for being taken into consideration for deciding the working days and only when a workman is monthly rated, such days are counted for calculating 240 days for a continuous period of one year within the meaning of Section 25B of the Industrial Disputes Act, 1947. There is one more important aspect regarding the eligibility of the daily rated temporaries/casuals right for permanency on having put in such service for number of years, while engaged for such long period under a Scheme. Mr.Vanarase in this regard relied upon the Constitution Bench decision in Umadevi's case (Supra). In the case of Delhi Development Horticulture Employees Union v. Delhi Administration, Delhi and Ors.[(1992)IILLJ452][SC] the issue of regularisation in service merely on account of completion of 240 days of work under Jawahar Nehru Rojgar Yojana was considered by the Supreme Court and it has been held that the casuals/temporaries working under such Schemes were not entitled to claim regularisation in service. Their Lordships stated, "...Those employed under the scheme, therefore, ::: Downloaded on - 17/12/2014 23:46:48 ::: WP/11257/2014/Group 18 could not ask for more than what the scheme intended to give them. To get an employment under such scheme and to claim on the basis of the said employment, a right to regularisation is to frustrate the scheme itself. No Court can be a party to such exercise. It is wrong to approach the problems of those employed under such schemes with a view to providing them with full employment and guaranteeing equal pay for equal work. These concepts, in the context of such schemes are both unwarranted and misplaced. They will do more harm than good by depriving the many of the little income that they may get to keep them from starvation. They would benefit a few at the cost of the many starving poor for whom the schemes are meant. That would also force the State to wind up the existing schemes and forbid them from introducing the new ones, for want of resources. This is not to say that the problems of the unemployed deserve no consideration or sympathy. This is only to emphasis that even among the unemployed a distinction exists between those who live below and above the poverty line, those in need of partial and those in need of full employment, the educated and uneducated, the rural and urban unemployed etc. "...The Courts can take judicial notice of the fact that such employment is sought and given directly for various illegal consideration including money. The employment is given first for temporary periods with technical breaks to circumvent the relevant rules, and is continued for 240 or more days with a view to give the benefit of regularisation knowing the judicial ::: Downloaded on - 17/12/2014 23:46:48 ::: WP/11257/2014/Group 19 trend that those who have completed 240 or more days are directed to be automatically regularised. A good deal of illegal employment market has developed resulting in a new source of corruption and frustration of those who are waiting at the Employment Exchanges for years...."
12. Seeking regularisation in public employment must satisfy the requirements that the selection so made was as per the procedure prescribed under the Rules framed under Article 309 of the Constitution or any other Rules/instructions issued by the State Government in the absence of such Rules, the eligibility in terms of qualification and experience, the age limit, the aspect of reservation of seats depending upon the social status. For such public appointment on regular basis all eligible candidates must have a fair opportunity to apply, compete and face the selection process which ought to be transparent and fair. In short, the selection has to be on merits. The employees who are appointed on temporary basis either on daily wages or on monthly wages may be eligible to apply for such posts but merely because they worked for years together as temporaries or casuals directly engaged by the Department or by some Officer and without going through the selection process prescribed for Group D and categories cannot claim regularisation in service only on the basis of the length of their service. The issue has been now well settled by the Constitution Bench judgment in Umadevi's case (Supra). It is clear that regularisation could be asked for by those who have come through the normal selection process prescribed under the Rules or notifications and not by those who are popularly called as the back door entries.
15. In the premises, these petitions succeed and they are ::: Downloaded on - 17/12/2014 23:46:48 ::: WP/11257/2014/Group 20 hereby allowed. The impugned Judgment Order rendered by the Industrial Court in respective petitions is hereby quashed and set and Complaint (ULP) Nos. 370/94, 130/96, 522/96, 46/97, 128/96, 562/90 and 124/96 are hereby dismissed. And the aside 64/96, order as to costs.
Rule is made absolute accordingly with no order as to costs."
15. The petitioner, therefore, submits that the impugned judgments deserve to be quashed and set aside for being perverse and erroneous.
16. Learned Advocate for the respondents has vehemently opposed the petitions. Contention is that the work performed by the respondents and which they have been performing even today, is perennial in nature. The said work is required to be performed as long as the Municipal Council is in existence. The duties discharged by the workers in the various Departments like Water Supply, Sanitation, Public Library, Administration and Educational Establishments of the Municipal Council, is of a continuous character and is unending. The fact that the workers were continued for years together is only because work is available.
17. According to him, the population under the Municipal Council of Tulzapur is growing and presently is about 35,000/- or even could be more. He, therefore, states that the petitioner has to come to a conclusion to grant permanency to the workers since they cannot be ::: Downloaded on - 17/12/2014 23:46:48 ::: WP/11257/2014/Group 21 continued as daily wager till their retirement.
18. Learned Advocate for the respondents further submits that all the respondents / workers are in their mid-forties and in another decade or in a period of about 15 years, they would be reaching their age of superannuation In the event, they retire as a daily wager, retiral benefits would not be made available to them and further complications would arise. The issue as regards their permanency needs to be addressed to urgently and it is with this object that the respondents / workers had approached the Industrial Court since they were suffering injustice at the hands of the petitioner and the State.
19. He further points out that sufficient evidence in oral and documentary form was brought on record. Several appointment orders, statements indicating payment of consolidated wages and evidence as regards their continuous working, had convinced the Industrial Court that they had completed 240 days in the continued and uninterrupted service of the petitioner. The cross examination of the witness of the petitioner also indicates that work is available and the respondents are working continuously and that there are several such employees, whose proposals were sent to the Government and were granted permanency after the Government approved the said proposals. It is not in question that the Director of Municipal Administration and the Government of Maharashtra have to consider the aspect of granting permanency to the ::: Downloaded on - 17/12/2014 23:46:49 ::: WP/11257/2014/Group 22 respondents.
20. Learned Advocate further states that since Tulzapur town is known to be a pilgrimage center, it cannot be said that the work being performed by the respondents is likely to diminish. The population is growing and the basic amenities that the petitioner has to provide to the residents of the Tulzapur town are also growing. As such, the Industrial Court has rightly considered the case and has delivered the impugned judgment taking into account that the work being done by the respondents is of a regular and perennial character.
21. Learned Advocate further points out that the Industrial Court has not directed the petitioner to grant permanency to the respondents with immediate effect. In his submissions, the Industrial Court has rightly issued directions to the Municipal Council to send the proposals of the respondents, complete in all respects, to the Government within 2 months and thereafter it is left to the Government to consider the said proposals and grant permanency. He, therefore, submits that the impugned judgments cannot be termed as being erroneous or perverse.
22. I have considered the submissions of the learned Advocates and have gone through the petition paper books with their assistance. This Court, in several similar matters, has directed the employers like the Municipal Corporations or Municipal Councils or such other ::: Downloaded on - 17/12/2014 23:46:49 ::: WP/11257/2014/Group 23 instrumentalities of the Government to forward the proposals of the daily rated workers, who have been working for years together with the Government, for its consideration.
23. It is left to the Government to consider the viability of the proposals and take a conscious decision with sensitivity since it is a matter of employment of such workers as well as their retiral benefits.
Post retirement, such workers do not get any benefits and there are several such cases pending before this Court. It is an irony that such workers, who have devoted their entire service life span in state instrumentalities, are rendered living in starving conditions, while in service and post retirement.
24. The oral and documentary evidence brought on record in these matters leaves no room for doubt that all these respondents / workers had completed 240 days in the continuous service of the petitioner. The work performed is perennial in nature. Some of the similarly situated workers have been granted permanency after their proposals were accepted by the Government. The directions given by the Industrial Court, therefore, to the extent of sending the proposals to the Government for approval and the Government, considering the same for granting permanency, do not appear to be unsound or unsustainable.
25. In so far as the ratio laid down by this Court in the case of Lagwad ::: Downloaded on - 17/12/2014 23:46:49 ::: WP/11257/2014/Group 24 Adhikari and others (supra), is concerned, the issue was as regards a daily rated workman working in the Social Forestry Department. This Court caused an interference in the said matter since the issue of completing 240 days in continuous employment as required by Section 25(B) of the Industrial Disputes Act, did not appear to have been proved.
This Court, therefore, concluded that 240 days in the case of daily rated workmen, need to be calculated by taking into account the days actually worked by such a workman and weekly holidays or paid holidays could not be taken into account while computing 240 days.
26. In the instant case, it is undisputed that the respondents / workers were appointed on consolidated wages. It is also established that the proposals of some similarly situated workmen have been accepted by the Government and they have been granted permanency.
The Industrial Court has issued directions in the impugned judgment whereby the Municipal Council is mandated to submit the proposals of the respondents to the Government for consideration. I am, therefore, of the opinion that the view taken by this Court in the case of Lagwad Adhikari and others (supra) as regards computing 240 days, would not affect the merits of the case of the respondents.
27. Nevertheless, the grievance of the petitioner to the extent of a declaration of ULP by the Industrial Court, needs to be entertained. It is settled law that when the state instrumentality cannot create posts ::: Downloaded on - 17/12/2014 23:46:49 ::: WP/11257/2014/Group 25 and cannot grant permanency to an employee, on a non existing vacant permanent post, the object of depriving the workers of the benefits and status of permanency cannot be said to be proved and which is a salient ingredient of Item 6 of Schedule IV. To this extent, the ratio laid down by this Court in the Lagwad Adhikari case (supra), will be applicable.
28. When the Industrial Court itself was convinced that the petitioner needs to send the proposals to the Government for approval, it should have refrained from issuing a declaration of Unfair Labour Practices.
There was no evidence as regards any act of force or violence on the part of the petitioner so as to attract Item No.10 of Schedule IV.
Similar was the case as regards the object required under Item No.6, which consequentially also affects Item No.9 of Schedule IV. The Industrial Court has rightly directed the petitioner to send the proposals of the respondents for approval since the Government has to take a call on the services of such respondents / workmen at the earliest.
However, there could not have been a declaration of ULP.
29. In the light of the above, I hereby allow these petitions partly only to the extent of modifying the impugned judgment in so far as the declaration of ULP is concerned. Clause 2 of the operative part of the impugned judgment is modified only to the extent of setting aside the declaration of ULP as against the petitioner. The remaining portion of the impugned judgment alongwith its directions to the petitioner to send ::: Downloaded on - 17/12/2014 23:46:49 ::: WP/11257/2014/Group 26 the proposals to the Government for approval and for grant of permanency, is sustained. The same shall be complied with within two months from today and the State shall take a decision on the said proposals within four months after receiving them from the petitioners.
30. It is pointed out by the learned Advocate for the respondents that one of the respondents / workers Smt.Janabai Ambadas Pophale in complaint (ULP) No.86/2011 and who is a respondent in WP No.11262/2014, has recently retired. As such, in her case, the petitioner is expected to send her proposal to the extent of seeking an approval to her regularization with retrospective effect in accordance with the rules, so as to make retiral benefits available to her.
31. Petitions are accordingly partly allowed in the above terms.
(RAVINDRA V. GHUGE, J.) ...
::: Downloaded on - 17/12/2014 23:46:49 :::WP/11257/2014/Group 27 khs/Dec.2014/11257-14 and others ::: Downloaded on - 17/12/2014 23:46:49 :::