The Director, Directorate Of ... vs Smt. Laxmibai Pandharinath ...
2005 Latest Caselaw 987 Bom

JUDGMENT

B.H. Marlapalle, J.

1. The Judgment and Order passed by the learned Member of the Industrial Court at Nasik in Complaint (ULP) No. 63 of 1992 on 17/1/1995 has been assailed in this petition filed under Article 227 of the Constitution.

2. The petitioner No. 1 is a Director of Directorate of Printing and Stationery of Government of Maharashtra and the complainant-employee claimed to be working as a watchman on daily wages with effect from 15/8/1969 at the Government Type Writers Repair Workshop at Nasik, which is part of the Petitioners' establishment. He had claimed that on 2/10/1991 he was served with an office order informing him that his employment would come to an end on 31/10/1991, after duty hours. Accordingly, he was relieved from 1/11/1991. He approached the Industrial Court on or about 28/1/1992 i.e. within the period of limitation of three months and filed a complaint of unfair labour practice under Item 6 and 9 of Schedule IV of the M.R.T.U. & P.U.L.P. Act, 1971 (the Act for short). The reliefs prayed for in the said complaint, in addition to the relief of declaration, read as under:-

(a) Direct the respondent to accord him the status of a permanent workman and give him the privileges enjoyed by the permanent servant of the respondent with effect from 15-8-1969, or any other date as deemed fit by the court under the circumstances.

(b) Direct the respondent to withdraw the illegal and void order dated 19/10/1991, and/or compute and pay the retrenchment benefits at the rate of wages the complainant is entitled to receive on the last working day.

3. The employer submitted Written Statement and opposed the complaint, inter alia, on the following grounds:-

(a) The Complainant was engaged as a daily labour and as such was never on the regular establishment of the Department and his wages were paid all the while from the contingencies and not from the regular funds sanctioned by the Government.

(b) The Complainant was not eligible for regular employment as he was about 40 years of age in the year 1969 as against the requirement that any person being employed as Class -IV Government Servant ought to be below the age of 25 years and he was discontinued solely for the reasons that he had crossed the age of 60 years and could not be continued as a watchman for night duty.

(c) The establishment was located within the premises of Collectorate at Nasik and as such there was no need of a permanent watchman and in any case the State Government has not sanctioned any such post for regular establishment and in such circumstances it could not be alleged that the Department was guilty of unfair labour practice, namely, to deprive the complainant from the benefits of permanent post by continuing him on daily wages.

4. The learned Member of the Industrial Court in the impugned decision held that the establishment was an Industry as defined under Section 2(j) of the Industrial Disputes Act, 1947 ( for short "the I.D. Act"). As per the Industrial Court the contention of the Department that the watchman's post was not required on permanent basis was an eyewash, more so when it was not disputed that the complainant worked for almost 22 years. As per the Industrial Court the very long service rendered by the complainant should have been considered for regularisation by submitting necessary proposals to the higher authorities. This failure on the part of the Department amounts to the unfair labour practice under Item 6 of Schedule IV of the Act, concluded the Industrial Court. It further held that having put in service of 22 years as a watchman, the complainant was eligible to receive a payscale of Class-IV employee since the date of joining. Though the Industrial Court held that the unfair labour practice under Item 6 and 9 was proved, there is no reasoning set out in support of Item 9 of Schedule IV of the Act in the impugned decision.

4A. Thus, at the first instance, the complainant sought the reliefs of permanency and consequential benefits with effect from 15/8/1969 and secondly he challenged the order of termination/discontinuation. As on 28/1/1992 he was not in the employment and, therefore, the relief of permanency could not be available unless the termination order was set aside and he was reinstated and, therefore, at the first instance, it was necessary for the complainant to challenge the order of termination/discontinuation and seek the relief of reinstatement. The reliefs of permanency and consequential benefits could have been sought while in employment and not when he was out of employment.

5. In the Written Statement submitted by the Department it was admitted that the complainant was working as a watchman on daily wages right from 1969. But he could not be granted the benefit of permanency in the absence of availability of a permanent sanctioned post of a watchman. Merely because a person was retained on daily wages for number of years in a Government Department and without being made permanent, that by itself would not be held to be an act of unfair labour practice within the meaning of Item 6 of Schedule IV of the Act. The said item reads as under :-

"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."

There are three different ingredients that are required to be proved for unfair labour practice under this Item, namely, (a) to employ badlies, casuals or temporaries, (b) to continue them as such for years together and (c) with the object of depriving them of the status and privileges of permanent employees.

6. All these three parameters must be fulfilled to record a finding of unfair labour practice against the employer. When it comes to the Government Department it has been held by this Court that in the absence of a sanctioned post, the establishment concerned cannot be charged of unfair labour practice under Item 6 even though it employs casuals or temporaries or daily wages for years together. No one can claim permanency in the Government service unless he/she enters the Government service through a prescribed selection method undertaken against the sanctioned posts. Obviously, the Complainant did not undergo any such selection process and the Department pointed out that he was not eligible right at the first instance on account of his over age. When a temporarily appointed daily wager is continued as such for years together on account of non availability of a permanent sanctioned post under any Government Department or any local self government body that by itself would not amount to denial of permanency with the object of depriving them of the status and privileges of permanent employees. In the case of State of Haryana and Ors. v. Piara Singh and Ors. , a three Judge Bench while dealing with the directions given by the High Court to grant permanency to an ad-hoc employee who had completed one year service, stated in para 17 as under :-

"17. Now coming to the direction that all those an hoc/temporary employees who have continued for more than an year should be regularised, we find it difficult to sustain it. The direction has been given without reference to the existence of a vacancy. The direction in effect means that every ad hoc/temporary employee who has been continued for one year should be regularised even though

(a) no vacancy is available for him -which means creation of a vacancy (b) he was not sponsored by the Employment Exchange nor was he appointed in pursuance of a notification calling for application which means he had entered by a back-door (c) he was not eligible and/or qualified for the post at the time of his appointment (d) his record of service since his appointment is not satisfactory."

In para 25, the apex court set out certain guide-lines regarding regularisation of ad hoc/temporary employees in Government service. On the face of the law laid down in the case of Piara Singh (Supra), it cannot be held that a Government Department would be guilty of an act of unfair labour practice within the meaning of Item 6 of Schedule of the Act on account of a person or some persons being continued as temporaries due to non availability of permanent sanctioned posts and the benefit of permanency can be granted only to a person who meets the eligibility criteria, has come through the prescribed selection procedure and there is a sanctioned post available. As noted earlier, the Written Statement filed by the petitioner-Department clearly stated that there was no sanctioned post available and even at the time of initial appointment in the year 1969 the complainant-employee was not eligible for being appointed in a Class-IV post under the State Government. By the impugned order of the Industrial Court the prescribed rules of recruitment and granting permanency, have been nullified. The view taken by the Industrial Court is, therefore, wholly unsustainable and the findings that the Department was guilty of unfair labour practice under Item 6 of Schedule IV are required to be set aside.

7. However, in the case of Dhirendra Chamoli and Anr. v. State of U.P. , the apex court held that when permanent appointments cannot be given due to non availability of sanctioned posts and temporary employees are required to be continued for such requirements in Class IV under the State Government, such temporary hands are required to be offered the salary at the beginning of the payscale as is available to a regular employee. In para 2 of the said decision, apex court observed as under:-

"...The fact that these employees accepted employment with full knowledge that they will be paid only daily wages and they will not get the same salary and conditions of service as other Class IV employees, cannot provide an escape to the Central Government to avoid the mandate of equality enshrined in Article 14 of the Constitution. This Article declares that there shall be equality before law and equal protection of the law and implicit in it is the further principle that there must be equal pay for work of equal value. These employees who are in the service of the different Nehru Yuvak Kendras in the country and who are admittedly performing the same duties as Class IV employees, must therefore get the same salary and conditions of service as Class IV employees. It makes no difference whether they are appointed in sanctioned posts or not. So long as they are performing the same duties, they must receive the same salary and conditions of service as Class IV employees."

7A. In the instant case the Department has not denied that the complainant continued right from the year 1969 till he was discontinued in October, and his discontinuation was a sole reason that he had crossed the age of 60 years. It has not come on record that he has given the salary in the payscale available to a post of watchman in regular employment or any other Class IV post in regular employment at least for the period subsequent to the law laid down by the apex court in the case of Dhirendra Chamoli (Supra). While admitting this petition, the petitioner-department was directed to deposit an amount of Rs. 20,000/-and the said amount has been deposited. The Registry has invested this amount in fixed deposit. It would be difficult at this stage to calculate the exact amount of arrears payable to the complainant on the basis of the law laid down in the case of Dhirendra Chamoli. The learned AGP has also pointed out that in the year 1992 itself the complainant's son came to be appointed as a watchman on compassionate ground and his service has been regularised with effect from 1/2/1995 as per the Circular dated 19/9/2000. Ends of justice would be, therefore, met if the deposited amount with accrued interest is allowed to be withdrawn by the present respondents, who are the LRs of the original complainant, who died during the pendency of the proceedings before the Industrial Court, notwithstanding the fact that his complaint filed before the Industrial Court stands dismissed.

8. In the premises it is held that the petitioner-Department was not guilty of an act of unfair labour practice within the meaning of Item 6 of Schedule IV of the Act and Complainat (ULP) No. 63 of 1992 fails. However, the respondents are allowed to withdraw the amount of Rs. 20,000/-deposited with the Registry of this Court with the accrued interest towards the arrears of salary/wages payable to the complainant for the period from August 1985 to 19/10/1991 and all other legal benefits. Rule stands discharged subject to liberty to withdraw the amount. No costs.