Bombay High Court
Sudhir Kamlakar Ayachit vs Maharashtra State Electricity ... on 28 September, 2012
Bench: A.V. Nirgude
1
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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2
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
-----
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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3
WP.2551.11 n WP.2548.11
CORAM : A.V.NIRGUDE, J.
th
RESERVED ON : 13 September, 2012.
28 September, 2012.
th
PRONOUNCED ON :
JUDGMENT:
1 Both these writ petitions, by consent, are taken up for final
hearing.
By 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
th
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
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
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
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.
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
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."
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
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
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
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.
WP.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
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
