Bombay High Court
The Zilla Parishad,Bhandara ... vs The Industrial Crt.,Nagpur & ... on 28 September, 2012
Bench: B.P. Dharmadhikari
WP4041.01.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.4041/2001
Petitioners : 1. The Zilla Parishad,
Bhandara, District Bhandara,
through its C.E.O., Bhandara.
2. The Executive Engineer,
Public Works Department, Zilla
Parishad, Bhandara, District :
ig Bhandara.
3. Sub Divisional Officer,
Sub Division No.1, Zilla Parishad,
Bhandara, District Bhandara.
...Versus...
Respondents : 1. The Industrial Court Maharashtra,
Nagpur Bench, Nagpur.
2. Anil Nathuji Lonare,
Aged about 46 years, Occupation -
Service, r/o At Madgi,
Post Kasalwada, Tahsil & District
Bhandara.
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Mrs. M.P. Munshi, Adv. for petitioners
Shri A.M. Joshi, AGP for R - 1
Shri M.P. Jaiswal, Adv. for R - 2
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CORAM : B.P. DHARMADHIKARI,J.
DATE : 28.09.2012
WP4041.01.odt
ORAL JUDGMENT
1. Challenge in this petition filed by the
petitioners-employer under Article 226 and 227 of the
Constitution of India is to order of the Industrial
Court dated 29.1.2001 delivered in ULP Complaint
No.720/1994, granting relief under Item 9 of Schedule
IV of the Maharashtra Recognition of Trade Unions &
Prevention of Unfair Labour Practices Act, 1971 (for
short, the MRTU and PULP Act ) to the present
respondent no.2 and asking the employer to regularize
him in service from completion of 240 days service
with further direction to pay difference of amount for
a period from the date of filing of complaint i.e.
8.8.1994 till he is so regularized. This Court has
while issuing notice in the matter on 19.7.2002 stayed
these directions of the Industrial Court.
2. Advocate Mrs. Munshi in this background,
submits that the entire consideration in the impugned
order is based upon earlier judgment delivered by the
Labour Court which was in fact ex-parte. The said
judgment of the Labour Court, dated 24.11.1986
therefore could not have been relied upon as evidence
WP4041.01.odt
to the contrary was produced in the present matter.
Attention has been invited to order dated 8.9.1987 by
which the petitioners implemented the said judgment of
the Labour Court. Learned Counsel submits that
respondent no.2 was reinstated under the Employment
Guarantee Scheme (E.G.S.). This order dated 8.9.1987
was nowhere questioned by him. Therefore, he cannot be
treated as an employee of Zilla Parishad and hence,
there was specific defence that there was no employer-
employee relationship. It is pointed out that in ULP
Complaint the Industrial Court cannot exercise
jurisdiction at all, moment such dispute is raised.
Here as respondent no.2 was working under E.G.S.,
there was no relation and hence, the impugned order is
without jurisdiction.
3. It is further pointed out that during the
pendency of these proceedings, the respondent no.2 was
transferred vide orders dated 7.4.2003 and 9.4.2003 to
another Gittikhadan and transfer order was challenged
in ULP Complaint No.124/2003. The petitioners could
lead proper evidence in that complaint and it has been
established that he was working under Employment
WP4041.01.odt
Guarantee Scheme. Because of this evidence, the
Industrial Court has delivered the judgment on
24.10.2005 and maintained that transfer order.
Dismissal of ULP Complaint No.124/2003 is not
questioned by respondent no.2 and hence, findings
recorded therein have attained finality.
4. The learned Counsel further relied upon the
Maharashtra
judgment of the Hon'ble Apex Court in the case of
State Road Transport Corporation and
another...Versus...Casteribe Rajya Parivahan Karmchari
Sanghatana, reported at 2009 (8) Supreme Court Cases
556 to urge that when benefit under clause 4 (c) of
the Model Standing Orders is to be extended to
employee, the employee has to establish availability
of sanctioned vacant post. Here there is no such
evidence and hence, direction given by the Industrial
Court is unsustainable. According to the learned
Counsel after challenge to the transfer order failed,
respondent no.2 is not in employment.
5. Advocate Shri Jaiswal for respondent no.2
supports the impugned order dated 29.1.2001. However,
he fairly states that benefit of regularization
WP4041.01.odt
extended therein after completion of 240 days should
be modified and that benefit should be conferred in
terms of clause 28 of the Kalelkar Settlement. He
contends that the earlier judgment of the Labour Court
dated 24.11.1986 which declares termination of present
respondent no.2 as an unfair labour practice has
attained finality and the question whether respondent
no.2 is or ig is not employee under
consideration only in ULP Complaint No.720/1994. The
E.G.S. fell for
order of the Labour Court directing the petitioners to
reinstate respondent no.2 has been implemented on
8.9.1987 and it is the petitioners-employer who has
provided work to respondent no.2 then at a site where
E.G.S. work was going on. It is the submission that
the said fact does not mean that respondent no.2
employee was under Employment Guarantee Scheme.
Attention is invited to consideration of this
controversy by the Industrial Court in the impugned
order and particularly to admissions given by the
witnesses examined by the petitioners. Learned Counsel
submits that in terms of clause 28 of the Kalelkar
Settlement after putting him five years of service a
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post personnel to respondent no.2 stood created and
the respondent no.2 also stood regularized against
that post. The Industrial Court has accepted that
entitlement.
6. It is further urged that even today
respondent no.2 is in service and negation of
challenge to transfer order has got no bearing on the
7. The
present controversy.
first question to be looked into is
about the jurisdiction of Industrial Court. The
earlier order passed by the Labour Court on 24.11.1986
asking the petitioners to reinstate respondent no.2
became final and has been also implemented by the
petitioners on 8.9.1987. Thus, the employee-employer
relationship is judicially recognized and settled. The
said relationship is attempted to be destroyed only by
pointing out the order of reinstatement, dated
8.9.1987. The Industrial Court has found in the
impugned order that respondent no.2 was not employee
under Employment Guarantee Scheme. The provisions of
the Maharashtra Employment Guarantee Act, 1977 are
very clear. A person is required to register/enroll
WP4041.01.odt
himself with Collector for claiming work under E.G.S..
The office of Tahsildar thereafter forwards his name
to authorities which are implementing the E.G.S. work
and those authorities are then duty bound to provide
him work. If work is not provided or not available, he
is given some allowance. If the petitioners want to
say that respondent no.2 was working under Employment
Guarantee Scheme, they have to bring on record all
these facts. Here the order of reinstatement dated
8.9.1987 shows that while implementing direction of
the Labour Court asking the petitioners to reinstate
respondent no.2, the petitioners have provided work to
respondent no.2 at a site where E.G.S. work was going
on. This is, therefore, not sufficient to conclude
that respondent no.2 was working under Employment
Guarantee Scheme. Perusal of order of the Industrial
Court particularly paragraph no.7 shows the admission
of witness of the petitioners that he was not certain
whether name of respondent no.2 was forwarded by
E.G.S. authorities. He was also not in a position to
answer whether his name was shown in any list received
from Tahsil office and he had not made any enquiry in
WP4041.01.odt
that respect. After considering these three answers
given by the said witness, the Industrial Court has
found that respondent no.2 was not working under
Employment Guarantee Scheme. These findings cannot be
said to be either erroneous or perverse.
8. Finding reached by the Industrial Court is
independent and does not depend upon earlier judgment
of the Labour Court dated 24.11.1996. Hence, grievance
that sought earlier judgment is ex-parte is also not
very relevant in this background.
9. Various judgments which deny jurisdiction
either to Labour Court or Industrial Court under the
Maharashtra Recognition of Trade Unions & Prevention
of Unfair Labour Practices Act, 1971 are not attracted
when the relationship is undisputed or indisputable.
Here though relationship is being denied or disputed,
discussion above shows that in law, it is
indisputable. The objection to jurisdiction of
Industrial Court therefore is erroneous and
misconceived.
10. The transfer of respondent no.2, filing of
ULP Complaint No.124/2003 by him and its dismissal are
WP4041.01.odt
again not relevant for the purpose of deciding the
present controversy. The question whether respondent
no.2 is in service after 2007 or not is also not very
relevant. The impugned order is delivered by the
Industrial Court on 29.1.2001 and entitlement of
respondent no.2 to said benefits from 1974 till the
date of his termination can always to be worked out
11. The
and benefit thereof can be extended to him.
Industrial Court, however, has
erroneously referred to provisions of Model Standing
Orders. The issue is covered by the provisions of
Kalelkar Settlement. Provisions of clause 28 of the
Kalelkar Settlement are very clear. The moment
respondent no.2 completed 5 years of service, a post
personnel to him automatically stood created. The
issue is settled by the judgment of this Court in the
case of The State of Maharashtra...Versus...M.V.
Ghalge and another, reported at 1992 Lab. I.C. 748. A
post personnel to respondent no.2 was therefore
already created when he filed ULP complaint No.
720/1994. He had joined the service earlier in 1977
and was terminated in 1986 and has been reinstated
WP4041.01.odt
again on 8.9.1987. Law also does not require
respondent no.2 to put in 240 days of continuous
service in any of these five years.
12. Hence, the impugned order of the Industrial
Court dated 29.1.2001 needs modification. Grant of
regularization after completion of 240 days of
continuous service therein is, therefore, quashed and
set aside.
The petitioners are
respondent no.2 on CRTE in accordance with provisions
directed to bring
of clause 28 of the Kalelkar Settlement after he
completed 5 years of service. Consequential exercise
of fitment in pursuance of this direction be completed
within a period of 4 months from today. It is made
clear that the difference of amount arising on account
of said benefit is to be released to respondent no.2
from the date of filing of complaint i.e. from
8.8.1994 as per the direction issued by the Industrial
Court. Said payment of difference for period prior to
8.8.1994 is denied to him.
13. Writ Petition is, thus, partly allowed. Rule
is made absolute accordingly. No order as to costs.
JUDGE
ssw
