Bombay High Court
Mukhyadhikari, Nagar Parishad, ... vs Nanasaheb Jalindar Shinde on 11 December, 2014
Bench: R.V. Ghuge
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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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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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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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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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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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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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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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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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.
WP/11257/2014/Group
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
WP/11257/2014/Group
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
WP/11257/2014/Group
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
WP/11257/2014/Group
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
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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
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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
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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
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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,
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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
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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
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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
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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
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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
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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
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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
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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
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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.)
...
WP/11257/2014/Group
khs/Dec.2014/11257-14 and others
