Bombay High Court
The Rashtrasant Tukdoji Maharaj ... vs The Honourable Member, ... on 2 September, 2015
Bench: Z.A. Haq
1 wp2966.11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.2966/2011
1. The Rashtrasant Tukadoji Maharaj
Nagpur University, Nagpur, through
its Registrar, Ravindranath Tagore Marg,
Civil Lines, Nagpur.
2. The Vice-Chancellor,
Rashtrasant Tukadoji Maharaj
Nagpur University, Nagpur, through
its Registrar, Ravindranath Tagore Marg,
Civil Lines, Nagpur. Petitioners.
..Versus..
1. The Hon'ble Member,
Industrial Court Maharashtra,
Nagpur Bench, Nagpur.
2. Shri Subhash s/o Sudhakar Choube,
aged 43 Yrs., Occu. Service,
R/o Flat No.204, Kalyaneshwar
Apartments, Behind Rajvilas Talkies,
Mahal, Nagpur.
3. State of Maharashtra,
through its Secretary,
Department of Higher & Technical
Education, Mantralay,
Mumbai - 400 032. ..Respondents.
AND WRIT PETITION NO.2967/2011
1. The Rashtrasant Tukadoji Maharaj
Nagpur University, Nagpur, through
its Registrar, Ravindranath Tagore Marg,
::: Uploaded on - 04/09/2015 ::: Downloaded on - 06/09/2015 23:07:48 :::
2 wp2966.11
Civil Lines, Nagpur.
2. The Vice-Chancellor,
Rashtrasant Tukadoji Maharaj
Nagpur University, Nagpur, through
its Registrar, Ravindranath Tagore Marg,
Civil Lines, Nagpur. Petitioners.
..Versus..
1. The Hon'ble Member,
Industrial Court Maharashtra,
Nagpur Bench, Nagpur.
2.
Shri Surendra s/o Shankarrao Rawat,
aged 46 Yrs., Occu. Service,
R/o 106, Swaraj Nagar, Manewada
Road, Nagpur.
3. State of Maharashtra,
through its Secretary,
Department of Higher & Technical
Education, Mantralay,
Mumbai - 400 032. ..Respondents.
AND WRIT PETITION NO.2968/2011
1. The Rashtrasant Tukadoji Maharaj
Nagpur University, Nagpur, through
its Registrar, Ravindranath Tagore Marg,
Civil Lines, Nagpur.
2. The Vice-Chancellor,
Rashtrasant Tukadoji Maharaj
Nagpur University, Nagpur, through
its Registrar, Ravindranath Tagore Marg,
Civil Lines, Nagpur. Petitioners.
..Versus..
1. The Hon'ble Member,
::: Uploaded on - 04/09/2015 ::: Downloaded on - 06/09/2015 23:07:48 :::
3 wp2966.11
Industrial Court Maharashtra,
Nagpur Bench, Nagpur.
2. Ku. Harini d/o Kailash Dhengre,
aged 41 Yrs., Occu. Service,
R/o Chandanbai Colony,
PTS Quarters, Quarter No.236,
Nagpur.
3. State of Maharashtra,
through its Secretary,
Department of Higher & Technical
Education, Mantralay,
Mumbai - 400 032. ..Respondents.
AND WRIT PETITION NO.2969/2011
1. The Rashtrasant Tukadoji Maharaj
Nagpur University, Nagpur, through
its Registrar, Ravindranath Tagore Marg,
Civil Lines, Nagpur.
2. The Vice-Chancellor,
Rashtrasant Tukadoji Maharaj
Nagpur University, Nagpur, through
its Registrar, Ravindranath Tagore Marg,
Civil Lines, Nagpur. Petitioners.
..Versus..
1. The Hon'ble Member,
Industrial Court Maharashtra,
Nagpur Bench, Nagpur.
2. Shri Atul s/o Haribhau Badkar,
aged 42 Yrs., Occu. Service,
R/o M-11, Mulik Complex,
Ujwal Nagar, Wardha Road,
Nagpur.
::: Uploaded on - 04/09/2015 ::: Downloaded on - 06/09/2015 23:07:48 :::
4 wp2966.11
3. State of Maharashtra,
through its Secretary,
Department of Higher & Technical
Education, Mantralay,
Mumbai - 400 032. ..Respondents.
AND WRIT PETITION NO.2970/2011
1. The Rashtrasant Tukadoji Maharaj
Nagpur University, Nagpur, through
its Registrar, Ravindranath Tagore Marg,
Civil Lines, Nagpur.
2. The Vice-Chancellor,
Rashtrasant Tukadoji Maharaj
Nagpur University, Nagpur, through
its Registrar, Ravindranath Tagore Marg,
Civil Lines, Nagpur. Petitioners.
..Versus..
1. The Hon'ble Member,
Industrial Court Maharashtra,
Nagpur Bench, Nagpur.
2. Shri Satish s/o Mahadeorao Shende,
aged 33 Yrs., Occu. Service,
R/o Near Police Chowki,
Mehandi Bag Road,
Lalganj, Nagpur.
3. State of Maharashtra,
through its Secretary,
Department of Higher & Technical
Education, Mantralay,
Mumbai - 400 032. ..Respondents.
::: Uploaded on - 04/09/2015 ::: Downloaded on - 06/09/2015 23:07:48 :::
5 wp2966.11
AND WRIT PETITION NO.2971/2011
1. The Rashtrasant Tukadoji Maharaj
Nagpur University, Nagpur, through
its Registrar, Ravindranath Tagore Marg,
Civil Lines, Nagpur.
2. The Vice-Chancellor,
Rashtrasant Tukadoji Maharaj
Nagpur University, Nagpur, through
its Registrar, Ravindranath Tagore Marg,
Civil Lines, Nagpur. Petitioners.
..Versus..
1. The Hon'ble Member,
Industrial Court Maharashtra,
Nagpur Bench, Nagpur.
2. Shri Narendra s/o Namdeorao Kajne,
aged 45 Yrs., Occu. Service,
R/o 43, Daga Layout,
North Ambazari Road,
Nagpur.
3. State of Maharashtra,
through its Secretary,
Department of Higher & Technical
Education, Mantralay,
Mumbai - 400 032. ..Respondents.
AND WRIT PETITION NO.2972/2011
1. The Rashtrasant Tukadoji Maharaj
Nagpur University, Nagpur, through
its Registrar, Ravindranath Tagore Marg,
Civil Lines, Nagpur.
::: Uploaded on - 04/09/2015 ::: Downloaded on - 06/09/2015 23:07:48 :::
6 wp2966.11
2. The Vice-Chancellor,
Rashtrasant Tukadoji Maharaj
Nagpur University, Nagpur, through
its Registrar, Ravindranath Tagore Marg,
Civil Lines, Nagpur. Petitioners.
..Versus..
1. The Hon'ble Member,
Industrial Court Maharashtra,
Nagpur Bench, Nagpur.
2. Narendra s/o Bhauraoji Kolhe,
aged 45 Yrs., Occu. Service,
R/o 78, Rajabaksha,
Near Gadge Maharaj Dharmshala,
Nagpur.
3. State of Maharashtra,
through its Secretary,
Department of Higher & Technical
Education, Mantralay,
Mumbai - 400 032. ..Respondents.
AND WRIT PETITION NO.2973/2011
1. The Rashtrasant Tukadoji Maharaj
Nagpur University, Nagpur, through
its Registrar, Ravindranath Tagore Marg,
Civil Lines, Nagpur.
2. The Vice-Chancellor,
Rashtrasant Tukadoji Maharaj
Nagpur University, Nagpur, through
its Registrar, Ravindranath Tagore Marg,
Civil Lines, Nagpur. Petitioners.
..Versus..
1. The Hon'ble Member,
::: Uploaded on - 04/09/2015 ::: Downloaded on - 06/09/2015 23:07:48 :::
7 wp2966.11
Industrial Court Maharashtra,
Nagpur Bench, Nagpur.
2. Mrs. Amruta w/o Awdhoot Deshpande,
aged 56 Yrs., Occu. Service,
R/o Plot No.I-3 Rani Laxminagar,
Nagpur.
3. State of Maharashtra,
through its Secretary,
Department of Higher & Technical
Education, Mantralay,
Mumbai - 400 032. ig ..Respondents.
AND WRIT PETITION NO.2974/2011
1. The Rashtrasant Tukadoji Maharaj
Nagpur University, Nagpur, through
its Registrar, Ravindranath Tagore Marg,
Civil Lines, Nagpur.
2. The Vice-Chancellor,
Rashtrasant Tukadoji Maharaj
Nagpur University, Nagpur, through
its Registrar, Ravindranath Tagore Marg,
Civil Lines, Nagpur. Petitioners.
..Versus..
1. The Hon'ble Member,
Industrial Court Maharashtra,
Nagpur Bench, Nagpur.
2. Sau. Snehal w/o Mukesh Deshpande,
aged 43 Yrs., Occu. Service,
R/o Plot No.191, Reshimbag,
Nagpur.
3. State of Maharashtra,
through its Secretary,
::: Uploaded on - 04/09/2015 ::: Downloaded on - 06/09/2015 23:07:48 :::
8 wp2966.11
Department of Higher & Technical
Education, Mantralay,
Mumbai - 400 032. ..Respondents.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ------------- -
Shri P.B. Patil, Advocate for the petitioners.
Shri N.S. Khubalkar, A.G.P. for respondents 1 and 3.
Shri S.S. Ghate, Advocate for respondent no.2. .....(in W.P. No.2966/2011)
Shri J.R. Kidilay, Advocate for the petitioners.
Shri N.S. Khubalkar, A.G.P. for respondents 1 and 3.
Shri S.S. Ghate, Advocate for respondent no.2. .....(in W.P. No.2967/2011)
Shri P.V. Bhoyar, Advocate for the petitioners.
Shri N.S. Khubalkar, A.G.P. for respondents 1 and 3.
Shri S.S. Ghate, Advocate for respondent no.2. ig .....(in W.P. No.2968/2011)
Shri V. G. Wankhede, Advocate for the petitioners.
Shri D.M. Kale, A.G.P. for respondents 1 and 3.
Shri S.S. Ghate, Advocate for respondent no.2. .....(in W.P. No.2969/2011)
Shri P.B. Patil, Advocate for the petitioners.
Shri D.M. Kale, A.G.P. for respondents 1 and 3.
Shri S.S. Ghate, Advocate for respondent no.2. .....(in W.P. No.2970/2011)
Shri Rahul Khade, Advocate for the petitioners.
Ms. M.N. Hiwase, A.G.P. for respondents 1 and 3.
Shri S.S. Ghate, Advocate for respondent no.2. .....(in W.P. No.2971/2011)
Shri Ranjit Bhuibhar, Advocate for the petitioners.
Ms. M.N. Hiwase, A.G.P. for respondents 1 and 3.
Shri S.S. Ghate, Advocate for respondent no.2. .....(in W.P. No.2972/2011)
Shri A.P. Thakre, Advocate for the petitioners.
Ms. M.N. Hiwase, A.G.P. for respondents 1 and 3.
Shri S.S. Ghate, Advocate for respondent no.2. .....(in W.P. No.2973/2011)
Shri J.R. Kidilay, Advocate for the petitioners.
Ms. M.N. Hiwase, A.G.P. for respondents 1 and 3.
Shri S.S. Ghate, Advocate for respondent no.2. .....(in W.P. No.2974/2011)
- - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
CORAM : Z.A. HAQ, J.
DATE OF RESERVING THE JUDGMENT : 14.8.2015.
DATE OF PRONOUNCING THE JUDGMENT : 2.9.2015.
::: Uploaded on - 04/09/2015 ::: Downloaded on - 06/09/2015 23:07:48 :::
9 wp2966.11
JUDGMENT
1. Heard the learned advocates for the petitioners/employer, the learned
advocates for the respondents/employees and the learned Assistant Government
Pleaders in respective petitions.
2. As the issues involved in these petitions are identical and they are filed
challenging the same impugned order, these writ petitions are disposed of by common
judgment.
3. These writ petitions are filed by the Rashtrasant Tukadoji Maharaj Nagpur
University challenging the order passed by the Industrial Court allowing the complaints
filed by the respondents/employees under Section 28 read with Items 5, 6, 9 and 10 of
Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair
Labour Practices Act, 1971 (for short M.R.T.U. and P.U.L.P. Act") and directing the
petitioners to absorb the respondents/employees on the posts held by them and to
grant pay-scales applicable to the posts on the date on which they completed one
year's service. In some of the petitions, the Vice-Chancellor of the University and in
some petitions the In-charge of Inter Institutional Computer Center (I.I.C.C.) is also the
petitioner along with the University.
10 wp2966.11
4. The petitioner/University is the Statutory University, affiliated to the University
Grants Commission, New Delhi. In 1982, the University Grants Commission
sanctioned the scheme of Inter Institutional Computer Center for the petitioner
no.1/University. The scheme was approved by the State Government on the condition
that the State Government would not provide any financial assistance for
implementation of the scheme. According to the scheme, the University Grants
Commission was to provide financial assistance for maintenance of the Computer
Center, for the period of 5 years. The Executive Council of the University accepted the
proposal for establishment of the Inter Institutional Computer Center and it came to be
established in 1987. The University Grants Commission provided the funds for
maintenance of the Computer Center for 5 years from its establishment i.e. till 1992.
From 1992 - 1993, the University has borne the expenditure for maintenance of the
Computer Center. The respondents/employees are working in this Computer Center.
The respondents/employees were appointed in 1992 on consolidated salary of
Rs.1,000/- per month, which was increased to Rs.2,000/- per month from 5 th July, 1994
and then increased to Rs.4,800/- per month from 21 st September, 1996 and then
increased to Rs.7,000/- per month from 1 st January, 2000. According to the University,
expenditure for maintaining the Computer Center and payments of the salary of the
employees working at the Computer Center are made from the General Funds of the
University from 1992 - 1993, after the University Grants Commission stopped giving
11 wp2966.11
the financial assistance to it.
5. The respondents/employees filed complaints before the Labour Court
contending that they were working at the Computer Center since 1992 (details are
given in the complaints filed by the respective respondents/employees), after they were
appointed by the respondent no.2 - Vice-Chancellor, who is the Competent Authority to
make the appointment. The respondents/employees contended that they were covered
by the definition "workman" under the Industrial Disputes Act, 1947 and they were
entitled for the protection of the provisions of the said Act. The respondents/employees
averred that the petitioners had appointed Munshi Commission, Satpute Commission
and T.M. Karde Commission to examine the issue of regularization of the
respondents/employees and these Commissions submitted reports recommending
regularization of the respondents/employees, however, the recommendations of the
above Commissions are not implemented. The respondents/employees averred that
the Management Council of the petitioner no.1/University also recommended the
regularization of the respondents/employees and these recommendations of the
Management Council amounted to agreement and the failure to implement the
agreement amounted to unfair labour practice as contemplated by Item 9 of Schedule
IV of the M.R.T.U. and P.U.L.P. Act.
12 wp2966.11
The respondents/employees further relied on the report of the Committee
consisting of Dr. T.M. Karde, Shri B.Y. Aher, Dr. A.V. Kayande and Dr. R.M. Ingle. The
respondents/employees alleged that Shri Sant Gadgebaba Amravati University had
also established the Computer Center. The respondents/employees contended that
the juniors to some of the respondents/employees were conferred with permanency
and regularization.
The respondents/employees contended that the Model Standing Orders framed
under the Industrial Employment (Standing Orders) Act, 1946 (for short "Act of 1946")
were applicable and as the respondents/employees had been in continuous
employment for more than 240 days in the calendar year, they were entitled for
regularization and permanency.
The respondents/employees prayed for declaration that the petitioners/employer
indulged in unfair labour practice under Items 5, 6, 9 and 10 of Schedule IV of the
M.R.T.U. and P.U.L.P. Act. The respondents/employees sought directions against the
petitioners/employer to desist from committing the unfair labour practice and to
regularize the respondents/employees on the posts they were holding. The
respondents/employees also prayed for consequential benefits.
6. The petitioners filed written statement opposing the claim of the
respondents/employees. The petitioners denied that the respondents fall in the
13 wp2966.11
category of "workman" as defined in Section 2(s) of the Industrial Disputes Act, 1947.
The petitioners contended that the respondents/employees were not selected and
appointed in permanent posts and that the posts in which the respondents/employees
are working are not sanctioned by the State Government. The petitioners stated that
the Act of 1946 did not apply and the service conditions of the respondents were
governed by the Maharashtra Universities Act, 1994 and the Statues framed by the
petitioner no.1/University. The respondents/employer objected to the maintainability of
the complaints filed by the respondents/employees on the ground that they had remedy
by filing appeal under Section 59 of the Maharashtra Universities Act, 1994 before the
University and College Tribunal. The petitioners stated that they have not indulged in
unfair labour practice as contemplated by Item 9 of Schedule IV of the M.R.T.U. and
P.U.L.P. Act and prayed that the complaints be dismissed.
7. The Industrial Court by the order dated 24 th January, 2008 had allowed the
complaints and granted relief to the respondents/employees. The order passed by the
Industrial Court was challenged by the petitioners before this Court in Writ Petition
No.2840/2008 and other connected petitions.
8. This Court by the judgment dated 8 th December, 2010 recorded that the
petitioners/employer had raised specific plea that the Model Standing Orders are not
14 wp2966.11
applicable and the service conditions of the respondents/employees are governed by
the provisions of the Standard Code framed by the State Government exercising
powers under Section 8 of the Maharashtra Universities Act, 1994 and this submission
of the petitioners/employer was not considered by the Industrial Court. This Court
observed that the Industrial Court had not recorded finding on the point as to whether
the permanent posts, sanctioned by the State Government, existed. This Court
recorded that the Industrial Court allowed the complaints on the basis that the
respondents/employees had been in continuous employment for more than 240 days,
without adverting to the issue as to whether the Model Standing Orders are applicable.
This Court allowed the writ petitions filed by the petitioners/employer, set aside the
order passed by the Industrial Court and remanded the matters to the Industrial Court
for deciding the complaints afresh in the light of the observations made in the judgment.
After remand, the Industrial Court has allowed the complaints by the impugned
order and has granted reliefs in favour of the respondents/employees.
The petitioners/employer being aggrieved by the order passed by the Industrial
Court, have filed these writ petitions.
9. Shri P.B. Patil, learned advocate for the petitioners/employer has submitted that
as per Section 8(1)(a) of the Maharashtra Universities Act, 1994 the petitioner
no.1/University cannot create new posts of teachers, officers or other employees
15 wp2966.11
without prior approval of the State Government. It is submitted that as per Section
8(1)(b) of the Maharashtra Universities Act, 1994 the petitioner no.1/University cannot
revise the pay, allowances, post-retirement benefits and other benefits of its teachers,
officers and other employees. It is submitted that though the State Government
permitted the petitioners to establish the Computer Center, the State Government has
not granted approval to the posts in which the respondents/employees are working and
the State Government has not been providing any financial assistance in the matter. It
is submitted that the respondents/employees are appointed on temporary basis, without
issuing any advertisements and without following the procedure for selection. The
learned advocate has pointed out the copies of the appointment orders given to the
respondents/employees and has submitted that the respondents/employees accepted
the appointments on temporary basis and now they cannot seek regularization.
10. Shri P.B. Patil, learned advocate has submitted that the petitioner
no.1/University cannot be said to be an "industrial establishment" as defined under
Section 2(e) of the Act of 1946 and, therefore, the Model Standing Orders are not
applicable. It is submitted that the complaints filed by the respondents/employees
were not maintainable and the order passed by the Industrial Court is without
jurisdiction. In support of the submission, reliance is placed on the following
judgments :
16 wp2966.11
(I) Judgment given by the Allahabad High Court in the case of
Hindi Sahitya Sammellan Prayag V/s. Presiding Officer, Labour
Court, Allahabad reported in 2005 (104) FLR 834 and
(ii) Judgment given by the Division Bench of Delhi High Court in
the case of Indraprastha Medical Corporation Ltd. V/s. NCT of
Delhi and others reported in 2006(110) FLR 1176.
11.
It is submitted that considering the facts of the case, the petitioners/employer
tried to find out solution and accordingly the Committees were appointed. The interim
report given by the Sub-Committee consisting of Dr. T.M. Karde, Dr. V.P. Mishra, Dr.
A.S. Satpute and Shri W.Z. Kalode on 11 th April, 2000 has been pointed out by which it
was recommended that the working staff of the Computer Center should be regularized
after following the process of advertisement of posts and selection on the basis of
qualifications prescribed, without further delay. It is submitted that in the circumstances,
the claim made by the respondents/employees for regularization and conferral of
permanency cannot be granted. It is submitted that the respondents/employees cannot
be granted regularization and permanency as the posts in which they are working are
not sanctioned by the State Government and the order passed by the Industrial Court
overlooking this aspect, cannot be sustained. In support of this submission, reliance is
placed on the judgment given by the Division Bench of this Court in the case of Pune
17 wp2966.11
Municipal Corporation and others V/s. Dhananjay Prabhakar Gokhale reported in
2006-III- LL.J. 59. It is submitted that the Industrial Court has committed an error in
directing regularization of service of the respondents/employees without considering
that the posts in which the respondents/employees are working are not sanctioned by
the State Government and the posts are not on the regular establishment of the
petitioner no.1/University. It is submitted that the Courts cannot direct creation of posts
and absorption and regularization of the employees in those posts. In support of this
submission, reliance is placed on the judgment given by the Hon'ble Supreme Court in
the case of Hindustan Aeronautics Limited V/s. Dan Bahadur Singh & Ors. reported in
AIR 2007 SC 2733. The learned advocate has submitted that the impugned order be
set aside and the complaints filed by the respondents/employees be dismissed.
12. Shri S.S. Ghate, learned advocate for the respondents/employees has
submitted that the various Committees appointed by the petitioners have recommended
absorption and regularization of the respondents/employees and there is no justification
on the part of the petitioners/employer in not granting regularization and permanency to
the respondents/employees.
It is submitted that the contentions of the petitioners that the appointments of
the respondents/employees were not made after following due procedure, cannot be
considered by this Court in the writ petitions, as these contentions were not raised
18 wp2966.11
before the Industrial Court. It is further submitted that the argument that the University
cannot be said to be an "industrial establishment" as contemplated by the Act of 1946
also cannot be considered by this Court, as this issue was not properly raised before
the Industrial Court and the issue is required to be decided by the Industrial Court after
considering the relevant factual aspects. In support of the submission, the learned
advocate has relied on the following judgments :
(i) Judgment given by this Court in the case of Divisional
Forest Officer, Gadchiroli V/s. Madhukar Ramaji Undirwade and
another reported in 1996(2) Mh.L.J. 376 and
(ii) Judgment given by the Hon'ble Supreme Court in the case
of Durgapur Casual Workers Union & Ors. V/s. Food Corporation
of India & Ors. reported in 2015 I CLR 379.
13. Shri Ghate, learned advocate has relied on the judgment given by the Full
Bench of this Court in the case of Gangadhar Balgopal Nair V/s. Voltas Limited & Anr.
reported in 2007 I CLR 460 and has submitted that by virtue of Section 2-A of the Act of
1946, Clause 4-C of the Model Standing Orders ipso facto applies to a temporary
workman of an industrial establishment.
14. It is submitted that the respondents/employees had been in the continuous
employment of the petitioner for more than 20 years and had been doing the work of
regular nature. According to the petitioners/employer, respondents/employees are not
19 wp2966.11
regularized only because posts are not approved by the State Government. It is
further submitted that the employees, who are appointed to work at the Computer
Centers in the other Universities, are regularized and conferred with permanency and
are paid on par with the regular employees. It is argued that the petitioners are
discriminating the respondents/employees and the action of the petitioners is violative
of the guarantee enshrined under Article 14 of the Constitution of India. It is argued
that the respondents/employees are entitled to be treated equally with other similarly
situated employees and are entitled for the benefits of regularization and permanency.
In support of this submission, reliance is placed on the judgment given by this Court in
the case of Municipal Council, Bhandara and another V/s. Mrs. Jaiwantabai and others
reported in 1998(3) Mh.L.J. 765.
15. Shri Ghate, learned advocate for has relied on the provisions of Section 2(4)
and Section 38B of the Bombay Shops and Establishments Act, 1948 and has
submitted that the petitioner no.1/University is having more than 50 employees on its
establishment and, therefore, the provisions of the Act of 1946 are applicable and the
Model Standing Orders will apply mutatis mutandis and the respondents/employees
having worked continuously for more than 240 days for several years, are entitled for
regularization and conferral of permanency in view of Clause 4-C of the Model Standing
Orders. The learned advocate has pointed out from the paragraph nos.23 to 27 of the
20 wp2966.11
impugned order, the findings recorded by the Industrial Court that the Model Standing
Orders framed under the Act of 1946 are applicable. It is submitted that the findings
recorded by the Industrial Court are proper and is in consonance with the legal position
and does not require any interference. It is prayed that the petitions be dismissed with
costs.
16. I have examined the documents placed on the record of the writ petitions and
after considering the submissions made by the learned advocates for the respective
parties, I find that that the substantial issues which arise for consideration are :
(i) Whether the petitioner no.1/University can be said to be an
"industrial establishment" as contemplated by Section 2(e) of the
Act of 1946 ?
(ii) Whether the respondents/employees are entitled for
regularization of their services and conferral of permanency, though
there is nothing on the record to show that the posts in which the
respondents/employees are working are approved and that the
respondents/employees are appointed after following the
procedure ?
17. Section 2(e) of the Act of 1946 reads as follows :
2(e) "industrial establishment" means-
(i) an industrial establishment as defined in clause (ii) of Section 2
of the Payment of Wages Act, 1936 (4 of 1936), or
[(ii) a factory as defined in clause (m) of Section 2 of the Factories
Act, 1948 (63 of 1948) or]
21 wp2966.11
(iii) a railway as defined in clause (iv) of Section 2 of the Indian
Railways Act, 1890 (9 of 1890), or
(iv) [***]"
Section 2(ii) of the Payment of Wages Act, 1936 reads as follows :
2 (ii) ("industrial or other establishments" ) means any-
[(a) tramway service, or motor transport service engaged in
carrying passengers or goods or both by road for hire or reward;
(aa) air transport service other than such service belonging
to or exclusively employed in the military, naval or air forces of the
Union or the Civil Aviation Department of the Government of India];
(b) dock, wharf or jetty;
[(c) inland vessel, mechanically propelled;]
(d) mine, quarry or oil-field;
(e) plantation;
(f) workshop or other establishment in which articles are
produced, adapted or manufactured, with a view to their use,
transport or sale;
[(g) establishment in which any work relating to the
construction, development or maintenance of buildings, roads,
bridges or canals, or relating to operations connected with
navigation, irrigation or to the supply of water, or relating to the
generation, transmission and distribution of electricity or any other
form of power is being carried on;]"
22 wp2966.11
It is not the case of the respondents/employees that the petitioner
no.1/University falls in any of the categories enunciated by Clauses (a), (aa), (b), (c),
(d), (e), (f) and (g) of Section 2(ii) of the Payment of Wages Act, 1936. Therefore, the
petitioner no.1/university will not be covered by Clause (i) of Section 2(e) of the Act of
1946.
Section 2(m) of the Factories Act, 1948 reads as follows :
"2(m) "factory" means any premises including the precincts
thereof-
(i) whereon ten or more workers are working, or were working on
any day of the preceding twelve months, and in any part of which a
manufacturing process is being carried on with the aid of power, or
is ordinarily so carried on, or
(ii) whereon twenty or more workers are working, or were working
on any day of the preceding twelve months, and in any part of
which a manufacturing process is being carried on without the aid
of power, or is ordinarily so carried on, - but does not include a
mine subject to the operation of [the Mines Act, 1952 (35 of 1952)],
or [a mobile unit belonging to the armed forces of the Union,
railway running shed or a hotel, restaurant or eating place] [or a
poly house or green house engaged in the activity of floriculture or
pomology or High Value Crops]
[Explanation [I].- For computing the number of workers for the
purposes of this clause all the workers in [different groups and
relays] in a day shall be taken into account;]
[Explanation II.--For the purposes of this clause, the mere fact that
an Electronic Data Processing Unit or a Computer Unit is installed
in any premises or part thereof, shall not be construed to make it a
factory if no manufacturing process is being carried on in such
premises or part thereof;]
23 wp2966.11
[Explanation III.- For the purpose of this clause, the term "High
Value Crops" shall mean and include, -
(i) Plantation of fruits, flowers and vegetables in a green
house or shed-net house;
(ii) Plantation of exotic fruits, flowers and vegetables;
(iii) Plantation of crops by use of bio-technology;
(iv) Plantation of medicinal and aromatic plants and processing
industry;
(v)
Production of mushroom and processing industry;
(vi) Production of fruits by micro-drip irrigation by use of plastic
and mulching;
(vii) Nurseries and processing industry where vegetables are
produced in a green house;
(viii) Nursery of ornamental plants;]"
The respondents/employees have neither pleaded nor have established that the
petitioner no.1/University is covered within the meaning of "factory" as defined in
Section 2(m) of the Factories Act, 1948. It cannot be said that the petitioner
no.1/University is an "industrial establishment" as contemplated by Section 2(e)(ii) of
the Act of 1946.
The petitioner no.1/University cannot be said to be "railway" as defined in
Section 2(iv) of the Indian Railways Act, 1890. Therefore, the petitioner no.1/University
cannot be said to be an "industrial establishment" as contemplated by Section 2(e) of
24 wp2966.11
the Act of 1946. I adopt the reasonings given in the judgment in the case of Hindi
Sahitya Sammellan Prayag V/s. Presiding Officer, Labour Court, Allahabad and in the
judgment given in the case of Indraprastha Medical Corporation Ltd. V/s. NCT of Delhi
and others ( both cited supra) and conclude that the petitioner no.1/university cannot be
said to be an "industrial establishment" as contemplated by Section 2(e) of the Act of
1946.
18.
The submissions made on behalf of the respondents/employees that the
petitioner no.1/University is an "industrial establishment" and "industry" and, therefore,
the Act of 1946 is applicable, cannot be accepted. The reliance placed on the
provisions of Section 2(ii) of the Payment of Wages Act, 1936 to urge that the petitioner
no.1/University is an "industrial establishment" as contemplated by Section 2(e) of the
Act of 1946, is misplaced as the petitioner no1./University does not fall in any of the
categories enunciated in the Clauses (a), (aa), (b), (c), (d), (e), (f) and (g) of Section
2(ii) of the Payment of Wages Act, 1936.
Similarly, the submissions made on behalf of the respondents/employees
relying on judgment given by the the Full Bench of this Court in the case of Gangadhar
Balgopal Nair V/s. Voltas Limited & Anr. (cited supra) is misdirected. The Full Bench
dealt with the following issue :
"Whether Model Standing Order 4-C as contained in the Schedule
25 wp2966.11
I to the Bombay Industrial Employment (Standing Order) Rules,
1959 ipso facto applies to a temporary workman in an Industrial
Establishment without its incorporation into a pre-existing certified
standing order ?"
The Full Bench was not considering the issue as to whether the employer was
an "industrial establishment" as contemplated by Section 2(e) of the Act of 1946.
19. The arguments made on behalf of the respondents/employees relying on the
provisions of Section 2(iv) and Section 38B of the Bombay Shops and Establishments
Act, 1948 are also misdirected. Section 2(iv) of the Bombay Shops and Establishments
Act, 1948 defines a "commercial establishment" and this definition cannot be read into
the definition of "industrial establishment" under Section 2(e) of the Act of 1946.
Section 38B of the Bombay Shops and Establishments Act, 1948 lays down that the
provisions of the Act of 1946 (in its application to the State of Maharashtra) and the
Rules and Standing Orders (including Model Standing Orders) made under the Act of
1946 will apply mutatis mutandis to all establishments wherein 50 or more employees
are employed and to which the Bombay Shops and Establishments Act, 1948 applies,
as if they were "industrial establishments" within the meaning of Act of 1946.
"Establishment" as defined in Section 2(8) of the Bombay Shops and
Establishments Act, 1948 reads as follows :
2(8) "Establishment" means a shop, commercial
26 wp2966.11
establishment, residential hotel, restaurant, eating house,
theater, or other place of public amusement or entertainment to
which this Act applies and includes such other establishment as
the [State] Government may, by notification in the Official
Gazette, declare to be an establishment for the purposes of this
Act."
The respondents/employees have not been able to establish that the petitioner
no.1/University can be said to be a "Shop" (as defined by Section 2(27), "Commercial
Establishment" (as defined by Section 2(4), "Restaurant or eating house" (as defined by
Section 2(25), "Theater" (as defined in Section 2(29) or "other place of a public
amusement or entertainment" to which Bombay Shops and Establishments Act, 1948
applies. The respondents/employees have not placed any material on the record to
show that the State Government has issued notification in the official gazette declaring
that the petitioner no.1/University to be an "establishment" for the purposes of the
Bombay Shops and Establishments Act, 1948. In view of the above, the submissions
made on behalf of the respondents/employees, relying on the provisions of Section
2(4) and Section 38B of the Bombay Shops and Establishments Act, 1948, that the
petitioner no.1/University is an "industrial establishment", cannot be accepted.
20. The submission made on behalf of the respondents/employees that the
petitioners cannot be permitted to raise the issue that the petitioner no.1/University
cannot be said to be an "industrial establishment", is also misconceived. The
27 wp2966.11
submission that the petitioners have not raised this point before the Industrial Court is
contrary to the facts on the record. In paragraph no.11 of the written statement filed
before the Industrial Court, the petitioners pleaded that the certified Standing Orders
and the Model Standing Orders are not applicable. The petitioners pleaded that they
are not governed by the Maharashtra Universities Act, 1994 and the Statues framed by
the petitioner no.1/University. This Court while deciding the Writ Petition No.2840/2008
and other connected matters recorded that the Industrial Court while deciding the
complaints earlier, had not dealt with the issue raised by the petitioners that the Model
Standing Orders are not applicable and the service conditions of the employees of the
petitioner no.1/University are governed by the provisions of the Standard Code framed
by the State Government exercising powers under Section 8 of the Maharashtra
Universities Act, 1994. This Court recorded that the Industrial Court is required to
decide as to whether the Model Standing Orders are applicable and then only the
findings can be given as to whether the contentions of the respondents/employees
about alleged unfair labour practice under Items 6 and 9 of Schedule IV of the M.R.T.U.
and P.U.L.P. Act can be examined. This Court remanded the matter to the Industrial
Court for deciding complaints after considering these issues. The challenge as raised
on behalf of the respondents/employees in this regards is contrary to the facts on the
record and, therefore, the judgments given in the case of Divisional Forest Officer,
Gadchiroli V/s. Madhukar Ramaji Undirwade and another and in the case of Durgapur
28 wp2966.11
Casual Workers Union & Ors. V/s. Food Corporation of India & Ors. ( both cited supra)
do not assist the respondents/employees as in those cases the employer had not
raised the plea before the Industrial Court, but in the present case, the plea has been
raised before the Industrial Court and while remanding the matter this Court directed
the Industrial Court to advert to the issue.
21. It is undisputed that the respondents/employees are appointed without there
being any advertisements and without the interviews having been conducted. The
respondents/employees have not been able to show on the record that their
appointments are made properly, following the principles laid down under Article 14 of
the Constitution of India enabling similarly situated persons to offer their candidature for
the posts. The issue is settled by the judgment given by the Hon'ble Supreme Court in
the case of Secretary, State of Karnataka and others V/s. Umadevi and others
reported in (2006) 4 SCC 1. It cannot be disputed that the respondents/employees
are making claim for the posts which fall within the domain of public employment and,
therefore, unless the respondents/employees establish that their appointments are
made properly, it would not be proper for this Court to uphold the contentions of the
respondents/employees regarding the regularization in service and conferral of
permanency. Though this issue has not been raised by the petitioners before the
Industrial Court, this Court cannot overlook these aspects and the law laid down by the
29 wp2966.11
Hon'ble Supreme Court in the matter. The failure on the part of the Industrial Court to
consider these relevant aspects, vitiates the order passed by it.
22. In view of the above, I hold that the order passed by the Industrial Court is
unsustainable and it has to be set aside. The complaints filed by the
respondents/employees have to be dismissed.
23.
However, considering the fact that the respondents/employees had been in the
employment for more than 20 years, the petitioners are directed to take steps as per
the recommendations of the Sub-Committee consisting of Dr. T.M. Karde, Dr. V.P.
Mishra, Dr. A.S. Satpute and Shri W.Z. Kalode in the interim report given by them on
11th April, 2000 recommending that the working staff of the Inter Institutional Computer
Center should be regularized after following due process of advertisement of posts and
selection, on the basis of the qualifications prescribed for the posts. Though the above
referred Committee has recommended the regularization of the employees, after
following the procedure, it will not be appropriate to direct the petitioner no.1/University
to regularize the respondents/employees after following the process of advertisement
and selection, as the following of the process cannot be a formality. The
petitioner/University shall take steps to advertise the posts and conduct selection
process and while doing so, the petitioner no.1/University shall consider the claim of the
30 wp2966.11
respondents/employees who have been working at the Inter Institutional Computer
Centers since long, by giving relaxation in the age limit, if required. The steps should
be taken by the petitioner no.1/University within 6 months.
Writ petitions are allowed in the above terms.
In the circumstances, the parties to bear their own costs.
JUDGE
Tambaskar.
