Bombay High Court
Dy.Director Socieal Forestry ... vs Marathwada Savra Shramik ... on 22 July, 2016
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.5116 OF 1995
Deputy Director,
Social Forestry Division,
Shivaji Nagar, Parbhani.
...PETITIONER
-VERSUS-
1 Marathwada Sarva Shramik Sanghatana.
Registration No.AWB-121,
Trade Union Centre, Kotwalpura,
Aurangabad.
(Through it's General Secretary
in Complaint ULP No.759 & 932/94
and through Secretary in Complaint
ULP No.952 and 981/94).
2 Marathwada Sarva Shramik Sanghatana.
Regn.No.AWB-121, Trade Union Centre,
Ghasniram Bunglow, Parbhani,
District Parbhani.
Through its General Secretary.
...RESPONDENTS
WITH
WRIT PETITION NO.5117 OF 1995
Deputy Director,
Social Forestry Division,
Nanded.
...PETITIONER
-VERSUS-
1 Marathwada Sarva Shramik Sanghatana.
Trade Union Centre,
Mahavir Nagar, Kamgar Bhavan,
Behind Kabde Hospital,
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Nanded, District Nanded.
Through its Vice President.
2 Madhav Ganpati Chatekar,
Age : 28 years, Occupation : Service,
R/o At & Post Lahan,
Tq. & Dist.Nanded.
3 Shaikh Gani Shaikh Gafoor Saheb,
Age : 26 years, Occupation : Service,
R/o At & Post Dabhad,
Tq. & Dist.Nanded.
4 Ambaji Gyanu Narwade,
Age : 27 years, Occupation : Service,
R/o Dhanura, Post Limbjaon,
Tq. & Dist.Nanded.
5 Sheshrao Nagorao Borate,
Age : 25 years, Occupation : Service,
R/o Khadki, Post : Kamtha (Ganpur),
Tq. & Dist.Nanded.
6 Yeshwant Ganpat Nagre,
Age : 30 years, Occupation : Service,
R/o Walki, Post Aundha,
Tq.Hingoli, District Parbhani.
...RESPONDENTS
WITH
WRIT PETITION NO.5118 OF 1995
Deputy Director,
Social Forestry Division,
Jalna.
...PETITIONER
-VERSUS-
1 Marathwada Sarva Shramik Sanghatana,
Kotwalpura, Aurangabad.
2 Gopal Vasantrao Boralkar,
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c/o Shri R.K.Kulkarni,
Brook Bond India Ltd.,
Jintur, Tq.Jintur,
Dist.Parbhani.
3 Mohan Kesu Adhe,
Age : Major,
R/o Dahifalgaon Jane,
Tq.Partur, Dist.Jalna.
...RESPONDENTS
...
Shri S.V.Warad, Advocate for the Petitioner.
Shri A.S.Shelke, Advocate for Respondent Nos.1 and 2 in Writ Petition
No.5116/1995, for Respondent Nos.1 and 6 in Writ Petition
No.5117/1995 and for Respondent No.1 in Writ Petition No.5118/1995.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 22nd July, 2016
Oral Judgment :
1 In these petitions, the Department of Social Forestry is
aggrieved by the judgments dated 31.03.1995, 10.04.1995 and
28.03.1995 delivered by the Industrial Court, Jalna in ULP Complaints
filed by the Respondent/ Union on behalf of the workers mentioned in
Annexures-A to each of the complaints under Section 28(1) of the MRTU
& PULP Act, 1971.
2 By the impugned judgments, the Industrial Court has allowed
the complaints and has directed that the employees mentioned in
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Annexures-A should be granted regularization in service upon completion
of one year in continuous employment and pay them regular pay scale
and other incidental and consequential benefits.
3 This Court, by order dated 20.10.1995, admitted these
petitions and granted interim relief in terms of prayer clause (E), which
reads as under:-
"(E) Pending hearing and final disposal of this writ
petition, the execution and implementation of the
order dated 31.03.1995 kindly be stayed."
4 The civil applications filed by the Respondent/ Union
subsequently praying for vacating the interim relief have been rejected by
this Court by a speaking order dated 22.06.2001.
5 I have considered the submissions of the learned Advocates
for the respective sides at length on 21.07.2016 and again today on
22.07.2016.
6 Having considered a host of factors canvassed by the litigating
sides and especially in the light of the Government Resolution dated
19.10.1996 which was the subject matter of the judgment of the learned
Division Bench of this Court dated 29.11.2001 delivered in Writ Petition
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No.2910/1997 (Manik Guglaji Zine vs. Directorate of Social Forestry) and
considering the Government Resolution dated 31.10.2013, I find that the
contentions of the Petitioner/ Department that the Department of Social
Forestry is not an industry, does not need further debate.
7 The Industrial Court, after considering the contents of the
Written Statement filed by the Petitioner, dealt with the objects for which
the Social Forestry Department was established. It cannot be ignored that
the Industrial Court has dealt with the issue extensively and has
concluded that the Petitioner/ Department is an industry. However, a short
issue is now raised before this Court in the light of the above referred two
Government Resolutions and especially the judgment of this Court dated
29.11.2001, which takes care of the issue raised by the Petitioner as
regards whether, it is an industry under Section 2(j) of the Industrial
Disputes Act, 1947.
8 The Government Resolution dated 19.10.1996 was the subject
matter of challenge in Writ Petition No.2910/1997 which was dealt with
by the learned Division Bench of this Court in it's judgment dated
29.11.2001. The grievance put forth was that two ULP Complaint
Nos.461/1991 and 755/1994 were pending adjudication before the
Industrial Court at Nagpur. Item 6 of Schedule IV of the MRTU & PULP
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Act, 1971 was invoked alleging that the employees were continued as
badlis, casuals or temporaries for years together with an object of
depriving them of the permanency status and it's benefits. The said
Government Resolution makes a distinction/ categorization of employees
working on the Employment Guarantee Scheme (EGS) and those working
on the specific schemes or projects of the Social Forestry Department. The
Government Resolution further provides that those workers working on
the EGS would not have right to stake a claim for regularization. However,
those workers working on the schemes or projects would be considered for
regularization after completion of five years in continuous employment.
9 Paragraphs 10, 11 and 12 of the judgment dated 29.11.2001
are reproduced as under:-
"10. In view of this law laid down by the Apex Court
making a destination between the persons working
under the Employment Guarantee Scheme (or Rozgar
Hamee Yojana) and Jawahar Rozgar Yojna on the one
hand and a regular employment on the other, no fault
can be found with Clause (l) of the Government
Resolution dated 19th October, 1996. Which directs
that the work done under the Rozgar Hamee Yojana
or similar schemes ought to be executed while arriving
at 240 days. This being the position, in our view, the
declaration, as sought by the petitioner, cannot be
granted in this petition.
11. The impugned Resolution of 19.10.1996 is passed to
concern permanency on those employees who have put
in continuous service of five years under Respondent
No.1. The Resolution states that the work put in
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under the Departmental Schemes or Projects other
than the Employment Guarantee Schemes is to be
considered. It specifically excludes the period put in
under the Employment Guarantee Scheme or such
Schemes when allotted to Respondent No.1. The idea
is to confirm the benefit only on those who have put
in specified period in the Departmental Schemes or
other Projects taken by the Department. The work for
the period of five years by the employees would
indicate the requirement of the Department over a
sufficiently long period wherein the employees have
worked continuously. The Government wants to
regularize them on the basis of this continuity. In that
it does not want to include the period for which these
persons have put in work for Employment Guarantee
Schemes. The purpose of those schemes is different
and the funds are from a source other than of the
Department conferment of permanency on only those
engage in Departmental Schemes of Projects
undertaken by Department (other than Employment
Guarantee Scheme) cannot amount to discrimination
or unjustified classification.
12. The above preferred two complaints filed by
petitioners are pending. Mr.Bhide, learned counsel for
the petitioners, states that the workmen would like of
lead evidence to point out that they have, in fact,
worked under the Scheme of Respondent No.1 itself
(other than Employment Guarantee Scheme) and
have put in 240 days continously for five years prior
to 01.01.1994."
10 There is no dispute in this case that neither have the
employees represented by the Respondent/ Union, contended in their
respective complaints that they are working on EGS, nor has the
Petitioner/ Department even whispered in it's Written Statement, much
less, pleaded that the employees mentioned in Annexures-A to the
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complaints are working on EGS.
11 It is strenuously canvassed by Shri Shelke, learned Advocate
for the Respondents, that after the complaints were allowed by the
impugned judgments, many amongst these workers were shifted from the
schemes/ projects of the Department to the EGS only to create a 'make
believe' picture that they are working on the EGS.
Beside the above contentions, Shri Shelke further submits
with regard to the present position of the workers working in the Social
Forestry Department in three districts, as under:-
(A) Nanded District:- 224 workers, 16 workers regularized in
2012 by virtue of the Government Resolution, 19 workers
have passed away, 88 workers are still in service, no
information about 84 other workers and 13 workers have
superannuated.
(B) Jalna district :- 241 employees, 30 employees are regularized
by the Government Resolution and rest are believed to be out
of employment.
(C) Parbhani district :- 92 employees, 40 employees are
regularized by the Government Resolution, 15 employees
have passed away, 03 employees are working as daily wagers
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today and 20 workers are believed to be not in employment.
13 Shri Warad, learned Advocate for the Petitioner, submits on
instructions from the Officer present in the Court that the EGS is closed in
March, 2008 and rest of the schemes were also closed in August, 2008.
Presently, the Petitioner / Department implements schemes under the
Mahatma Gandhi National Rural Employment Guarantee Scheme.
What emerges from the above fact situation and which is
relevant for the decision in this case is that the Social Forestry Department
has, by the Government Resolution dated 19.10.1996, whose validity has
been upheld by this Court vide it's judgment dated 29.11.2001 and the
Government Resolution dated 31.10.2013, framed a scheme for
regularizing the daily-wagers in it's service and whose wages would be
paid from the funds allocated to the various schemes or projects. This is
also in tune with the law laid down by the Honourable Supreme Court in
paragraphs 43 and 44 of it's judgment in the case of Secretary, State of
Karnataka v/s Umadevi, AIR 2006 SC 1806 : 2006(4) SCC 1, whereby, it
was held by the Honourable Apex Court that the employees who are
irregularly inducted in employment and have been working for a
considerable period, should be regularized in service by introducing a
specific scheme by the concerned Departments.
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15 In the above backdrop and especially in the light of the view
taken by the learned Division Bench of this Court in the above reproduced
judgment dated 29.11.2001, those workers, who on the date of the
judgments of the Industrial Court, which are 31.03.1995, 10.04.1995 and
28.03.1995, have been working on the schemes or projects of the
Petitioner/ Department, deserve to be regularized in service. The two
Government Resolutions would assist the Petitioner/ Department to arrive
at a decision to regularize the services of such employees. To this extent, I
am not interfering with the conclusions of the Industrial Court and
consequentially, these petitions are partly dismissed to that extent.
16 By this judgment, I find it appropriate to close the debate as
to whether, the workers at issue in these petitions were working on EGS.
There was neither any restriction nor an embargo upon the Petitioner to
specifically aver in their Written Statement before the Industrial Court as
to whether, any of the workers mentioned in Annexures-A were working
on EGS. After 25 years of litigation, I do not deem it proper to permit the
Petitioner to reopen this issue and thereby, start a debate as to whether,
any of these workers were working on EGS primarily for the reason that in
the Written Statement, the Petitioners have not identified even a single
worker from those mentioned in Annexures-A to be working on EGS.
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17 Shri Shelke has strenuously submitted that those workers who
have passed away while in service and those who have been disengaged
and are out of employment or those who have been switched over from
the main scheme/ project to the EGS by the Petitioner, only to defeat their
claims, deserve to be compensated.
18 The said contention can be considered to the extent of those
workers who have passed away. They would, therefore, be entitled to
those service benefits as would be available to them under the law
applicable considering that they were working on the main scheme or
project of the Department.
19 The Respondent/ Union is, therefore, at liberty to make
specific representations to the concerned Department at it's respective
divisions indicating such deceased employees and the exact tenure of their
employment so as to enable the Petitioner/ Department to consider the
representations and decide them in the light of the directions of this
Court. Such representations could be filed within a period of EIGHT
WEEKS from today and upon submitting such representations, the
Petitioner/ Department shall take a decision on the said representations
within a period of TWELVE WEEKS thereafter and communicate such
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decision to the Respondent/ Union. In the event the Respondent/ Union is
aggrieved by any decision of the Department, it would be at liberty to seek
redressal of it's grievance.
20 Insofar as those employees, who are said to have been
surreptitiously shifted from the main scheme/ project to the EGS
purportedly to defeat their claims are concerned, the Respondent/ Union
would be at liberty to raise a grievance afresh either by making a
representation to the Petitioner/ Department or by any other mode as is
legally permissible considering the judgments of the Industrial Court. They
would, therefore, be at liberty to claim all benefits as they deem fit and
the same would then be considered by the Department or Authority, as the
case may be, strictly in accordance with the policy and Government
Resolutions applicable to the Petitioner/ Department.
21 Insofar as those workers who are said to be not in
employment today and are away from work for the past about more than
20 years are concerned, the impugned judgments of the Industrial Court
would not give them a right to seek benefit of continued employment. In
the event they are aggrieved by their purported disengagement or removal
or termination or retrenchment, they would be at liberty to raise an
industrial dispute either independently under Section 2(A) or through the
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Union under Section 2(k) of the Industrial Disputes Act, 1947, which
would be considered on it's own merits.
22 Insofar as those workers who are in employment and are the
beneficiaries of the impugned judgments are concerned, the Petitioner
shall forthwith submit their proposals within SIX WEEKS from today to
the appropriate Authority in the light of the Government Resolutions
dated 19.10.1996, 31.10.2013 and the judgment of this Court dated
29.11.2001, for granting regularization. Upon submitting such proposal as
directed above, the concerned Department or Authority shall take a
decision on the said proposal within TWELVE WEEKS from the receipt of
the same. Considering the passage of time in these matters, the Petitioner
as well as the concerned Department or Authority shall be precluded from
seeking extension of time either for submitting the proposal or for
deciding the same.
23 Needless to state, it is expected that the Petitioner and the
concerned Department shall implement these directions within the time
frame as above. It be noted that this Court has not directed the Petitioner
or the concerned Department to create posts, but they are expected to
take a decision strictly within the ambit of the Government Resolutions
dated 19.10.1996, 31.10.2013 and the observations of this Court in it's
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judgment dated 29.11.2001.
24 Further, needless to state, the impugned judgments of the
Industrial Court would stand modified in the light of the above
conclusions.
25 These Writ Petitions are, therefore, partly allowed and Rule is
made partly absolute.
kps (RAVINDRA V. GHUGE, J.)
