Manik Guglaji Zine And Ors. vs Director Of Social Forestry, ...
2001 Latest Caselaw 918 Bom

JUDGMENT

H.L. Gokhale, J.

1. Heard Mr. Bhide, learned counsel for the petitioners and Mr. Badar, learned Special Counsel for the respondents.

2. The petitioners herein are some twelve persons who were working as watchmen under the first respondent for different periods as pointed out in Annexure-1 to the petition, two of them starting from 1984 for that matter. It is the case of the petitioners that they have been kept on temporary basis for a long time and are deprived of the benefit of regularization.

3. They have, in fact, for this purpose, filed two complaints under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 ("MRTU & PULP ACT", for short). The first one is Complaint (ULP) No. 461 of 1991 filed by a Trade Union, whereas the second one is Complaint (ULP) No. 755 of 1994 filed by the petitioner No. 10. That Complaint invokes Item 6 of Scheduled-IV to the said Act, which declares the following practice as a General Unfair Labour Practice on the part of employer:--

"6. To employ 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."

4. Apart from filing those Complaints, they have filed the present petition. This is mainly because of the Government Resolution, dated 19th October, 1996, which made a beneficial provision for certain daily-rated labourers working under the first respondent. The Government Resolution stated that those daily-rated workmen who had completed five years continuous service on 1st

November, 1994; will be eligible to be regularized on some 1.164 supernumerary posts, which were created by the State. Clause (1) of the said Government Resolution stated that while calculating this period of five years, the period put in by the employees on Employment Guarantee Scheme or similar Schemes guaranteeing employment will not be considered.

5. Prayer Clause (iii) of this petition seeks a declaration that the above referred Condition No. (1) of this Government Resolution debarring (i.e. excluding) the services rendered in these other schemes is bad and the same be set aside. Prayer (1) is also to similar effect, viz., that the opening para of the Resolution restricting the benefit of permanency to the employees completing five-year continuous service prior to 1-11-1994 in the Social Forestry Department be set aside, the other two prayers seek permanency for petitioners on the basis of period of service put in under other schemes.

6. Mr. Bhide, learned counsel for the petitioners, submits that the employees, who are daily-rated, whether working under the Schemes of the first respondent or the Employment Guarantee Schemes, are the same persons and they are persons in difficulty and, therefore, no distinction should be made between the work put in by them under the two Schemes. He submits that there is no rationale foundation in providing that only the period of work put under Departmental Schemes will be considered for regularisation and not the period worked under other Schemes.

7. As far as the respondent No. 1 is concerned, a Return has been filed on their behalf and it has been specifically stated that muster rolls for "Jawahar Rozgar Yojana" and such other schemes etc., are different. The wages under the Employment Guarantee Scheme, Jawahar Rozgar Yojana etc., are paid from separate funds available for those schemes and these Schemes are temporary. As against that, the Schemes of the Department are continuous Schemes, whereunder forestalion in Municipal areas etc., is taken by the first respondent. Mr. Badar, learned counsel for respondent No. 1, therefore, submits that the object of employing people under the Employment Guarantee Scheme is to provide employment, whereas the objects of projects under the Schemes of the respondent No. 1 are different. The idea of completing 240 days and, therefore, getting certain rights based thereon cannot be extended for the period worked under the Employment Guarantee Scheme.

8. Mr. Bhide, learned counsel for the petitioners, relied upon a Judgment of the Apex Court in Chief Conservator of Forests and Anr. v. Jagannath Maruti Kondhare reported in 1996 (1) CLR 680. In that Judgment, the particular scheme framed by the Department and even the Social Forestry Scheme was held as not amounting to sovereign function, and it was held that it was open for the employees to invoke provisions of MRTU & PULP Act. As far as this proposition is concerned, there is no difficulty to accept that. The point is whether these employees, while discharging work under the Departmental Scheme as temporary employees, can add the number of days put in under the Employment Guarantee Scheme and claim that they have completed 240 days under the Departmental Scheme.

9. As far as nature of the Employment Guarantee Scheme is concerned, the same has been interpreted and explained by the Apex Court in Delhi

Development Horticulture Employees' Union v. Delhi Administration, Delhi and Ors. . This is what the Apex Court has said in Para 14 of that Judgment:--

"14. ......... The above figures show that if the resources used for the Jawahar Rozgar Yojna were in their entirely to be used for providing full employment throughout the year, they would have given employment only to a small percentage of the population in need of income, the remaining vast majority being left with no income whatsoever. No fault could, therefore, be found with the limited object of the scheme given (he limited resources at the disposal of the State. Those employed under the scheme, therefore, 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 regularization 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 emphasize 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."

10. In view of this law laid down by the Apex Court making a distinction between the persons working under the Employment Guarantee Scheme (or Rozgar Hamee Yojana) and Jawahar Rozgar Yojana on the one hand and a regular employment on the other, no fault can be found with Clause (1) of the Government Resolution, dated 19th October, 1996, which directs that the work done under the Rozgar Hamee Yojana or similar schemes ought to be excluded while arriving at 240 days. This being the position, in our view, the declaration, as sought by the petitioner, cannot be granted in this petition.

11. The impugned Resolution of 19-10-1996 is passed to confer permanency on those employees who have put in continuous service of five years under respondent No. 1. The Resolution stales that the work put in under the Departmental -Schemes or Projects other than the Employment Guarantee Scheme is to be considered. It specifically excludes the period put in under the Employment Guarantee Scheme or such Schemes when allotted to respondent No. 1. The idea is to confer the benefit only on those who have put in specified period in the Departmental Schemes or other Projects taken by the Department. The work for the period of five years by the employee would indicate the requirement of the Department over a sufficiently long period wherein the

employees have worked continuously. The Government wants to regularize them on the basis of this continuity. In that it does not want to include the period for which these persons have put in work for Employment Guarantee Schemes. The purpose of those Schemes is different and the funds are from a source other than of the Department. If that period is excluded while assessing the continued requirement for the Departmental work, no fault can be found in that restricting the conferment of permanency on only those engaged in Departmental Schemes or Projects undertaken by Department (other than Employment Guarantee Scheme) cannot amount to discrimination or unjustified classification.

12. The above referred two complaints filed by petitioners are pending. Mr. Bhide, learned counsel for the petitioners, states that the workmen would like to lead evidence to point out that they have, in fact, worked under the Scheme of respondent No. 1 itself (other than Employment Guarantee Scheme) and have put in 240 days continuously for five years prior to 1-11-1994. It will be open to the petitioners to lead that evidence to establish on evidence that they have put in such number of days, in which case, of course, they will get the benefit of this Government Resolution apart from establishing in that court on evidence that there was an Unfair Labour Practice on the part of the respondents. Since the decision would be on evidence, as above, to be led in those two proceedings, the present Judgment will not affect that right of the petitioners to lead that evidence and to get an order to the above effect. As far as relief through this petition pointing out that there is a discrimination is concerned, that, however, cannot be granted, Petition is, therefore, dismissed, though there will be no order as to costs.