Bombay High Court
Zilla Parishad Aurangabad ... vs The State Of Mah & Ors on 18 November, 2016
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.6666 OF 2006
WITH
CIVIL APPLICATION NO.9699 OF 2009
IN
WRIT PETITION NO.6666 OF 2006
1 Zilla Parishad, Aurangabad.
Through its Chief Executive Officer.
2 The Executive Engineer (Water Supply),
Zilla Parishad, Aurangabad.
ig ...PETITIONERS
-VERSUS-
1 The State of Maharashtra.
2 Aurangabad Zilla Parishad Kayam
Swarupi Pani Purwatha Karmachari
Sanghatana.
Through its Secretary.
Ramesh Narayan Chandanse,
Age : 46 years, Occupation : Service,
R/o N-9, K-Sector, 41/2,
Pawannagar, Hudco, Aurangabad.
...RESPONDENTS
...
Shri S.P.Shah a/w Shri P.V.Barde, Advocates for the Petitioner.
Shri S.P.Sonpawale, AGP for Respondent No.1.
Shri A.S.Shelke, Advocate for Respondent No.2.
...
WITH
WRIT PETITION NO.3385 OF 2016
Gangadhar s/o Murlidhar Kadam,
Age : 58 years, Occupation : Service,
R/o Biloli, Taluka Vaijapur,
::: Uploaded on - 22/11/2016 ::: Downloaded on - 24/11/2016 00:16:27 :::
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District Aurangabad.
...PETITIONER
-VERSUS-
1 The State of Maharashtra.
Through it's Secretary,
Rural Development Department,
M.S., Mantralaya, Mumbai.
2 Zilla Parishad, Aurangabad.
Through it's Chief Executive Officer,
Aurangabad.
3 The Executive Engineer,
Department of Water Supply,
Zilla Parishad, Aurangabad.
...RESPONDENTS
...
Advocate for Petitioner : Shri G.A.Kulkarni h/f Shri Deshmukh Rajendra S.
AGP for Respondent 1 : Shri S.P.Sonpawale.
Advocate for Respondents 2 and 3 : Shri Shrimant Munde.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 18th November, 2016
Oral Judgment :
(A) Writ Petition No.6666/2006 :-
1 The Petitioner/ Zilla Parishad is aggrieved by the judgment
dated 01.07.2006 delivered by the Industrial Court, Aurangabad in
Complaint (ULP) Nos.23/2000 and 101/2000 vide which both the
complaints have been allowed and the Employees mentioned in Annexure-
A to the Complaints, have been granted benefits of the Kalelkar
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Settlement coupled with the Bhole Commission Recommendations and
accordingly, the Zilla Parishad has been directed to take these Employees
on Converted Regular Temporary Establishment (CRTE) after completion
of five years as daily wagers.
2 This Court, by order dated 14.12.2006, has elaborately dealt
with the issue involved in this petition. The litigating sides were permitted
to file their written notes of submissions and upon minutely considering
the same, this Court admitted the petition and directed the Petitioner/
Zilla Parishad to bring the Employees on CRTE within a period of three
weeks. The direction of the Industrial Court to pay monetary benefits as
per the Kalelkar Settlement from the date on which the Employees were
deemed to have been brought on CRTE, was stayed pending the final
hearing of this petition.
3 The Petitioner/ Zilla Parishad approached the Honourable
Supreme Court by filing two Petitions for Special Leave to Appeal (Civil)
Nos.23534-35/2007 challenging the order of this Court dated 14.12.2006.
By order dated 30.11.2007, the Honourable Supreme Court dismissed the
said Special Leave Petitions and requested this Court to dispose of the writ
petition within three months. The record reveals that the Petitioner/ Zilla
Parishad, thereafter, has not taken the efforts to seek expeditious final
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hearing.
4 I have considered the strenuous submissions of Shri Shah
along with Shri Barde, learned Advocates for the Petitioner/ Zilla
Parishad, the learned AGP appearing for Respondent No.1/ State and Shri
Shelke, learned Advocate appearing for Respondent No.2/ Union.
5 Shri Shah has vehemently submitted that the term with
regard to employees working on "daily rated establishment" cannot be
extended to daily wagers. On this ground alone, the Employees, who had
preferred the ULP complaints, were not entitled to any benefits under the
Kalelkar Settlement and/or Bhole Commission Recommendations. He then
submits that the complaints were filed by an unrecognized Union and
hence, the complaints were not tenable.
6 He has then drawn my attention to the grounds formulated
by the Petitioner in the memo of the petition below paragraph 17 and has
submitted that without sanction of the posts and without budgetary
provisions, neither can daily rated employees be regularized, nor can they
be given any monetary benefits.
7 Shri Shelke, learned Advocate for the Respondent/ Union,
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points out that this Court, at the stage of hearing the petition for
admission, has passed a speaking order on 14.12.2006. The entire issues
raised in this petition have been considered and the directions in
paragraph 4 of the order were issued. These directions were not interfered
with by the Honourable Supreme Court. Shri Shelke hastens to add that
these directions have already been complied with by the Petitioner/ Zilla
Parishad.
Shri Shelke then indicates from the order dated 03.02.2016
delivered by the learned Division Bench of this Court in Writ Petition
No.5324/2009 in between Akhil Marathwada Zilla Parishad Kamgar
Union vs. State of Maharashtra and others that the said issue as to whether,
daily wagers would be entitled for the benefits of the Kalelkar Settlement
and the Bhole Commission recommendations, has been settled. The
learned Division Bench has concluded that such daily wagers are entitled
to such benefits.
9 Shri Shelke then submits that the proposal for bringing the
daily wagers on CRTE and for further benefits, was forwarded by the Zilla
Parishad in respect of 157 daily wagers. The employees in this petition are
covered by the said proposal. He, therefore, prays for the dismissal of this
petition with costs.
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10 Having considered the submissions of the learned Advocates
for the respective sides, I have gone through the petition paper book with
their assistance.
11 The terms set out in the Kalelkar Award and the Bhole
Commission recommendations have been long standing and have been
implemented for the past about more than four decades. The Government
Resolution dated 10.07.1974 infact promotes the Kalelkar Settlement and
makes it mandatory to all such Establishments which are covered by the
settlement that the daily wagers, who have been working for five years
continuously are brought on CRTE and after completion of five years on
CRTE, they are required to be regularized. There has been no change in
this policy and the law applicable.
12 By the order of this Court dated 14.12.2006, the Employees
have been brought on CRTE. The observations of this Court in paragraph 4
of the said order are reproduced herein below for clarity :-
"4. Hence Rule. Rule made returnable early. Ad interim
stay to the impugned order so far as it directs the
petitioner to pay the benefits to the employees after
they are brought on CRTE with effect from the date on
which they have completed five years of continuous
service. Though the consequential benefits flowing
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from the order are not payable to the respondent till
the date of passing of the impugned order on
01.07.2006, the petitioner is liable to bring the
respondent on CRTE with effect from the date of the
impugned order i.e. 01.07.2006. The respondent
would, therefore, also be entitled to the benefits
flowing therefrom from the date of the impugned
order i.e. 01.07.2006. This arrangement is an interim
one and would however, not affect the rights of the
parties. The petitioner is therefore directed to
immediately bring the respondent on CRTE within a
period of three (3) weeks from today and pay him all
the consequential benefits within a period of one
month from the date of this order."
Insofar as the submissions of Shri Shah are concerned that the
daily rated establishment is not a specific department created under the
law, it is an establishment in which the daily rated workers are utilized by
a different State instrumentalities. For common understanding, it has been
defined as daily rated establishment and the wages of these daily rated
employees are accordingly paid. The Kalelkar Award is squarely applicable
to such daily rated employees for the past about more than four decades.
14 Insofar as the submission of Shri Shah are concerned that an
unrecognized Union could not have filed the complaints, I am unable to
accept this submission for the reason that the complaints were filed under
Items 5, 6 and 9 of Schedule IV of the MRTU & PULP Act, 1971. It is not
the case of the Petitioner that there is a recognized Union and as such, the
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workers, not being the members of the recognized Union, could not have
filed the complaints through an unrecognized Union.
15 Shri Shah has vehemently submitted that the case of these
Respondents is covered by the judgment of the Honourable Supreme
Court in the matter of Secretary, State of Karnataka v/s Umadevi reported
at AIR 2006 SC 1806 : 2006(4) SCC 1. I am unable to accept this
submission as well since the Honourable Supreme Court has clarified in
paragraphs 43 and 44 that where daily wagers are working beyond the
period of 10 years, they should be regularized through a scheme to be
introduced forthwith. Notwithstanding the same, the daily wagers in the
instant case, are covered by the Kalelkar Settlement and as such, the
submissions of Shri Shah cannot cause any dent on the case of the
Employees.
16 The directions issued by the Industrial Court below paragraph
14 of the impugned judgment would clearly indicate that the Industrial
Court has not directed the Petitioner to blindly regularize the daily rated
employees. The directions issued by the Industrial Court read as under:-
"1. Both the Complaints ULP No.93/2000 and Com. ULP
101/2000 are allowed.
2. The respondents are declared engaged in unfair
labour practices.
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3. The respondent is directed to cease and desist from
engaging in unfair labour practices.
4. The respondent is directed to take the employees
named in annexure A annexed on both the complaint
on CRTE w.e.f. the date on which they have completed
their 5 years continuous service.
5. The respondents are further directed to pay all
consequential benefits to the employees in accordance
of their taking on CRTE within 4 months from this
order.
6. In the circumstances of the case no order as to cost.
7. Copy of this order be kept in Com. ULP 101/2000
and original be kept in Com.ULP 93/2000."
It is, therefore, apparent that the Industrial Court's directions
are perfectly in tune with the terms of the Kalelkar Settlement. The said
directions, therefore, cannot be said to be perverse or erroneous.
18 The learned Division Bench of this Court in it's order dated
03.02.2016 in Writ Petition No.5324/2009 concerning similarly situated
workmen has also settled the issue. Paragraphs 6, 7 and 8 of the said
order read as under:-
"6] We have considered the submissions of the learned
counsel for the respective parties. The only issue
before this Court in the present petition is, as to
whether the benefit of the Government Resolution
dated 10.7.1974 can be accorded to the petitioners.
The factual matrix as is placed before this Court is not
disputed by either of the parties. Petitioners are
working since 1989/1991, continuously un-
interrupted. The Government Resolution dated 10th
July, 1974 is self explanatory. Coupled with the said
Government Resolution, in respect of 21 petitioners,
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the Industrial Court has already passed an order
directing the respondents to give the benefit of
Kalelker Award and Bhole commission. A judicial
order is passed in respect of 21 employees. In the light
of that, the parties cannot shrug off their liabilities.
Even the Industrial Court has observed that not
bringing the petitioners on CRTE would tantamount
to an Unfair Labour Practice. The said Government
Resolution and the similar stand taken by the
Government in the instant writ petition was the
subject matter of scrutiny in W.P. No. 2883 of 1992
decided by this Court. This court, after considering the
case put forth by the State as well as the Zilla
Parishad, had directed implementation of the
Government Resolution dated 10th July, 1974. There
is no reason for us to adopt a different course. The
said judgment is exhaustive in nature, so also, the
Government Resolution is self explanatory. Coupled
with that, the orders of the Industrial Court also
supports the case of the petitioners.
7] The present order would enure to the benefit of the
petitioners before this Court. Though the proposal
was submitted in respect of large number of workers,
the Association has co me before this Court
representing the cause of 37 employees and out of
those 37, 10 persons have either left the service or
have retired. As such, the present order would enure
to the benefit of 27 persons, a list of those 27 persons
is placed on record and same is marked as "Annexure
A-1" to this petition.
8] In the light of above, Rule is made absolute in terms
of prayer clauses (C) and D), with reference to
"Annexure A-1" only and not "Annexure A". There
shall be no orders as to costs."
19 Considering the above, I do not find that the direction of the
Industrial Court to bring the daily wagers on CRTE after having worked
for five years continuously could be faulted. It is settled law that such
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daily wagers are not required to complete 240 days in continuous
employment in each calender year and for five consecutive calender years
so as to be entitled for the benefits under the Kalelkar Award. With the
law in place, the impugned judgment cannot be termed as being perverse.
This Writ Petition being devoid of merit is, therefore, dismissed. Rule is
discharged.
20 It needs mention that the representative of the
Respondent/Union representing these Employees has filed an additional
affidavit dated 28.01.2016 stating that 15 employees amongst those
mentioned in Annexure-A to the complaints have passed away. Their
names are set out below paragraph 6 of the additional affidavit at page
179. The Petitioner/ Zilla Parishad would be under an obligation to
calculate the deemed dates for bringing these deceased employees on
CRTE notionally and the deemed dates on which they would stand to gain
the benefits of regularization as per the Kalelkar Award and accordingly,
calculate their monetary benefits which shall be paid to the legal heirs of
the deceased employees. For the said purpose, the Respondent/Union
shall forthwith submit the names and addresses of the legal heirs of the
deceased employees and shall ensure that there shall be no mistake in
indicating the names of the legal heirs. After receiving such list, the
Petitioner/ Zilla Parishad shall comply with the directions set out herein
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above within six weeks.
21 The pending Civil Application does not survive and the same
is disposed of.
(B) Writ Petition No.3385/2016 :-
22 Insofar as Writ Petition No.3385/2016 is concerned, I have
heard the learned Advocates for the respective sides finally at admission
stage, with their consent, along with Writ Petition No.6666/2006. Hence,
RULE. Rule made returnable forthwith.
23 In this second petition, the Industrial Court, by the impugned
judgment dated 28.10.2014, has dismissed Complaint (ULP) No.60/2009
filed by the Employee, namely, Gangadhar Murlidhar Kadam. Considering
my conclusions set out in the foregoing paragraphs, the law need not be
repeated while deciding this second petition.
24 It is apparent from the complaint filed by the Employee
Gangadhar Murlidhar Kadam that he was working as a daily wager with
the same Zilla Parishad from 1989. The complaint was filed on
10.06.2009 after he realized that he was being deprived of the benefits
which were extended to all other daily wagers under the Kalelkar Award.
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The Industrial Court has dismissed the complaint primarily on the ground
that the Kalelkar Settlement is not mentioned in the complaint by the said
employee. Nevertheless, the Industrial Court was aware as is seen from
the impugned judgment that the claim of this employee was with regard
to the Kalelkar Settlement.
25 In the light of the above, in my view, the Industrial Court
should have called upon the Respondent/ Zilla Parishad to place the
service details of the Employee (Gangadhar Kadam) on record for better
assistance. It is not disputed even at this stage that the Employee is in
employment of the Zilla Parishad from 1989 on daily wages.
26 Shri Munde, learned Advocate for the Respondent/ Zilla
Parishad, has strenuously placed reliance upon the judgment of the
Honourable Supreme Court in the matter of A.Umarani vs. Registrar,
Cooperative Societies, AIR 2004 SC 4504: 2004 (7) SCC 112. It is
contended that in the light of this judgment all daily wagers and
temporary employees, who have gained back door entries, should not be
regularized in employment and they do not have any right of continuity. It
appears that the Zilla Parishad has lost sight of the observations of the
Honourable Supreme Court in paragraph 44 of the subsequent judgment
in the matter of Secretary, State of Karnataka vs. Umadevi (supra) which
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read as under:-
"44. One aspect needs to be clarified. There may be cases
where irregular appointments (not illegal
appointments) as explained in S.V.Narayanappa
(supra) [AIR 1967 SC 1071], R.N.Nanjundappa
(supra) [AIR 1972 SC 1767], and B.N.Nagrajan
(supra) [AIR 1979 SC 1676], and referred to in
paragraph 15 above, of duly qualified persons in duly
sanctioned vacant posts might have been made and
the employees have continued to work for ten years or
more but without the intervention of orders of courts
or of tribunals. The question of regularization of the
services of such employees may have to be considered
on merits in the light of the principles settled by this
Court in the cases above referred to and in the light of
this judgment. In that context, the Union of India,
the State Governments and their instrumentalities
should take steps to regularize as a one time measure,
the services of such irregularly appointed, who have
worked for ten years or more in duly sanctioned posts
but not under cover of orders of courts or of tribunals
and should further ensure that regular recruitments
are undertaken to fill those vacant sanctioned posts
that require to be filled up, in cases where temporary
employees or daily wagers are being now employed.
The process must be set in motion within six months
from this date. We also clarify that regularization, if
any already made, but not subjudice, need not be
reopened based on this judgment, but there should be
no further by-passing of the constitutional
requirement and regularizing or making permanent,
those not duly appointed as per the constitutional
scheme."
27 Nevertheless, the Kalelkar Award has been made applicable to
the establishments like the Respondent/ Zilla Parishad in order to ensure
that the daily wagers, who have been working continuously for five years,
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should be brought on CRTE and five years thereupon, should be brought
on regular establishment. Had this aspect been kept in focus by the
Industrial Court, I am of the view that the complaint at issue would not
have been dismissed.
28 The learned Advocate for the Zilla Parishad has canvassed
that this petition is not maintainable since the judgment dated 28.10.2014
delivered by the Industrial Court is challenged on 29.02.2016 by filing this
petition. I do not find that the said submission needs any consideration
since this petition has been filed within sixteen months from the date of
the impugned judgment and it cannot be said that this petition suffers
from inordinate delay and laches.
29 In the light of the above, this Writ Petition is partly allowed.
Consequentially, the impugned judgment of the Industrial Court dated
28.10.2014 is quashed and set aside and Complaint (ULP) No.60/2009 is
partly allowed by directing the Respondent/ Zilla Parishad to bring the
Petitioner/ Employee (Gangadhar Kadam) on CRTE after his completion
of working for five consecutive years.
30 Needless to state, further benefits under the Kalelkar
Settlement/ Award would then be available to the Petitioner/ Employee
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which the Respondent/ Zilla Parishad shall accordingly, calculate and
extend the same to him.
31 I am depriving the Petitioner/ Employee of any interest on the
monetary benefits since he has filed his complaint after being in
employment for twenty years and he, therefore, would not be entitled to
interest.
Nevertheless, the Zilla Parishad will have to extend him the
benefits available under the Kalelkar Award within a period of 16
(SIXTEEN) WEEKS from today, failing which, interest at the rate of 3% per
annum would be available to the Employee on the monetary benefits to
which he is entitled to from the date of filing of his complaint which is
10.06.2009 till the actual payment.
33 Rule is made partly absolute in the above terms.
kps (RAVINDRA V. GHUGE, J.)
