Bombay High Court
Milind Sadhuji Orke & Anr vs Member, Industrial Court, Nagpur ... on 24 August, 2017
Bench: B.P. Dharmadhikari
Judgment lpa399.09
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
LETTERS PATENT APPEAL NO. 399/2009
IN WRIT PETITION No .899/2001.
1. Milind s/o Sadhuji Orke,
Aged about : 37 years, Occ : Service,
R/o Anand Nagar, Sawangi Moghe,
Post Bhimnagar, Tahsil &
District : Wardha.
2. Nilkanth s/o Baldeo Rajpute,
Aged about : 48 years,
Occ. Service, R/o Rambag,
Near Medical College Square,
Nagpur. ..... APPELLANTS
...V E R S U S...
1. Member,
Industrial Court,
Nagpur Bench, Nagpur.
2. The Director,
Maharashtra State Seed Certification
Agency, Near Skylab Hotel,
Akola C/o Shri V.K.Patil Building,
Distt. Akola.
3. The Divisional Seed Certification
Officer, Maharashtra State Seed
Certification Agency, Raja Kothi,
Near MLA Hostel, Nagpur.
::: Uploaded on - 01/09/2017 ::: Downloaded on - 02/09/2017 01:05:34 :::
Judgment lpa399.09
2
4. The District Seed Certification
Officer, Maharashtra State Seed
Certification Agency, Raja Kothi,
Civil Lines, Near MLA Hostel,
Nagpur. ... RESPONDENTS.
-------------------------------------------------------------------------------------------
Mrs. Kalpana Pathak, Advocate for the appellants.
Shri S.M. Ghodeswar, AGP for respondent No.1.
Shri Godbole, Advocate H/f Shri S.G.Jagtap, Advocate for the respondent
Nos.2 to 4.
-------------------------------------------------------------------------------------------
CORAM : B. P. DHARMADHIKARI
& ARUN D.UPADHYE, JJ.
DATE : AUGUST 24, 2017.
ORAL JUDGMENT. (Per B.P. Dharmadhikari, J).
We have heard Mrs. Pathak, learned counsel for the
appellants, Shri Ghodeswar, learned Assistant Government Pleader for
respondent No.1 and Shri Godbole, learned counsel holding for Shri
S.G.Jagtap, learned counsel for respondent Nos.2 to 4.
2. The appellants before this Court fairly pointed out that after
filing of present appeal in the year 2009, they have not been provided work
as a Driver by respondent Nos.2 to 4. Mrs. Pathak, learned counsel
contends that they are terminated but the work is also not provided and
being dependent on daily wage, they were / are unable to report daily.
Judgment lpa399.09
3. According to her, the Competent Authority namely the Board
of Director of respondent Nos.2 to 4 on 13 th November, 2000 passed a
resolution and decided to purchase two Marshal Jeeps. It was also resolved
and an approval was given to creation of two posts of Drivers for these two
Jeeps. In this backdrop, she has invited our attention to discussion
contained in paragraph 23 of the Judgment delivered by the learned
Member of Industrial Court on 22/01/2001. She points out that since 1996
till delivery of Judgment, appellants were working continuously as Drivers
and erroneously observing that they did not prove unfair labour practice
under Item 6 Schedule IV of MRTP & PULP Act, a declaration under Item 6
was refused. But the declaration of indulgence in unfair labour practice
under Item 9 Schedule IV has been given and accordingly, the employer was
asked to move the State Government seeking necessary approval for these
two posts of Drivers with a direction not to discontinue the appellants, in
the meanwhile.
4. The Judgment delivered by the Industrial Court on 22/01/2001 has
been set aside by the learned Single Judge on 17 th November, 2008 on the
ground that there were no sanctioned posts for granting regularization or
absorption of appellants and in absence of such posts, mere completion of
Judgment lpa399.09
240 days of continuous service in a year could not have resulted in issuing
such a direction. She contends that the law in Judgment of Hon'ble Apex
Court in the case of Secretary, State of Karnataka & others Vrs. Umadevi
& others, reported at AIR (2006) Supreme Court 1806 and the later
Judgment of Hon'ble Apex Court in the case of Maharashtra State Road
Transport Corporation and another Vrs. Castetribe Rajya Parivahan
Karmachari Sanghatana, reported at 2009 (8) SCC 556, have not been
properly applied in the present matter. She further adds that because of
denial of said benefits and declaration, all past service put in by the present
appellants has been lost.
5. She has taken us through relevant findings recorded by the
Industrial Court as also by the learned Single Judge of this Court and the
minutes of Board Meeting dated 20.11.2000.
6. Shri Jagtap, learned counsel appearing for respondent nos. 2 to
4 has supported the order. He submits that the learned Member of the
Industrial Court has recorded a finding that posts were not available/
sanctioned and hence, in absence of vacancy there was no unfair labour
practice under Item 6 of Schedule IV of the Act. He further adds that, said
finding has been further used by the learned Single Judge to note that mere
Judgment lpa399.09
completion of 240 days in such contingency cannot result in grant of
permanency. He therefore, prays for dismissal of the Letters Patent Appeal.
7. In alternative and without prejudice, he also submits that since
the appellants have not reported for duties since 2009, no relief can be
given to them at this stage, and they have to apply to the competent Court
for resuming service first. He submits that limitation in that event would
have been only 90 days and that period had expired long back.
8. Shri Ghodeswar, learned A.G.P. appearing for respondent no.1
submits that respondent no.1 has acted as a judicial officer and had no
personal interest in the matter.
9. The facts at hand show that need of purchase of two more
jeeps and therefore, need of two more drivers, has been felt by the
employer and accordingly on 30.11.2000, a resolution has been passed. By
that resolution on subject no.2, Board has resolved and approved purchase
of two new vehicles and creation of two more post of drivers consequently.
Resolution no where points out need of any sanction or approval from the
State Government for that purpose.
Judgment lpa399.09
10. In the light of this, when discussion undertaken by the
Industrial Court is looked into, Industrial Court has found that two jeeps
were provided by the department to respondent nos. 2 and 3 i.e. present
respondent nos. 3 and 4. Thus, 2 jeeps became available as per resolution
mentioned supra. Industrial Court further observed that in absence of
sanctioned post, complainants i.e. present appellants were engaged on
these vehicles on temporary basis. Their service were being utilized for
limited period, but, then they were required to attend office continuously
except on holidays and Sundays. The Industrial Court has therefore,
concluded that respondent nos. 2 and 3 needed two posts of drivers on
regular basis, but, then could not make the complainants permanent for
want of posts. It has also found that there was no intention on the part of
the respondents to deprive the complainants of status and privileges of
permanency by continuing them as temporary workers. Only fault
according to the Industrial Court was not moving the authority competent
to sanction the posts for that purpose. Thus failure has been accepted, but,
then the Industrial Court has recorded a finding that this failure or omission
does not tantamount to unfair labour practice under item 6.
11. Discussion in paragraph no.24 of its judgment shows that there
were administrative directions to respondent nos. 2 and 3, not to issue any
Judgment lpa399.09
appointment order to the complainants and to use the new jeeps only when
necessary and only on day of its use, to employ temporary drivers and to
obtain signatures only on that day in muster roll. The letter containing
instructions also directed the officers not to allow such employees i.e.
complainants to sign the muster roll when their services were not used.
This treatment was also assailed by the complainants, as an act of
contravention of Model Standing Orders.
12. The learned Single Judge has in paragraph no.4 noted these
facts and then looked into the evidence on record. In paragraph no.9, the
absence of sanctioned posts of drivers at Nagpur has been accepted. The
finding that the authority competent to sanction post was not party, has
again been reiterated. In background of the fact that the State Government
did not sanction the post of drivers at Nagpur, a finding that completion of
240 days would not result in grant of permanency or regularization, has
been recorded. The failure or omission to obtain sanction from the State
Government has been held not sufficient to attract Item 9 of Schedule IV
also.
13. Thus, basic facts are not in dispute and two vehicles as
approved by the Board of Directors in their meeting dated 30.11.2000, were
Judgment lpa399.09
made available. Board itself has also sanctioned creation of two posts of
drivers, but, that part of resolution has not been commented upon. Board
no where sought sanction or approval from the Government, hence, need of
such approval ought to have been demonstrated independently.
14. It is to be noted that ULP Complaint No. 1332/1997 was filed
by present appellants pointing out that they were in service from
15.03.1996 and 01.08.1996 respectively. They therefore claimed that they
had completed 240 days of continuous service and hence because of
Standing Order 4[c] on completion of 240 days itself, they were entitled to
grant of permanency. When two new jeeps are allowed to be purchased, it
follows that it was with approval of the State Government. It also means
that as a consequence, two posts of drivers to drive them also were
sanctioned. The arguments noted supra and material looked into by the
Industrial Court or by this Court has become available thereafter i.e. in the
year 2000 or 2001. The unfair labour practice claimed was in the year
1997.
15. The judgment delivered by the Hon'ble Supreme Court in case
of Secretary, State of Karnataka .vrs. Umadevi (supra), in paragraph no.53
shows that where the employee is continued in employment for a period of
Judgment lpa399.09
10 years of more, without any interim orders from the court, his claim for
regularization can be looked into as a one time measure. That period of 10
years was complete in present matter in 2006 i.e. after adjudication of
above mentioned ULPA Complaint on 22.01.2001, and during the pendency
of Writ Petition No. 899/2001, before this Court. The Hon'ble Supreme
Court through its Larger Bench in case of Maharashtra SRTC vs. Castetribe
Rajya Parivahan Karmchari Sanghatana (supra), has further clarified the
situation and pointed out that for grant of such a benefit, sanctioned vacant
post must be available. Board resolution mentioned supra, recognizes
need of two such posts. Law commented upon by the Industrial Court itself
shows that the work load was available for two drivers. Permitting
purchase of two new vehicles but, denying two posts of drivers, therefore,
itself speaks volumes. Instructions to use the services of complainants in
the mode and manner mentioned supra also shows an intention to victimize
and exploit. It aggravates the unfair labour practices complained of.
16. However, in the light of subsequent events, we do not find it
necessary to finally comment on entire controversy. Appellants before this
Court are not getting work from 2009. Thus period of about 8 years is
already over. Facts mentioned supra shows that they were supposed to
report for duty every day and if they were given work, then only they would
Judgment lpa399.09
be permitted to sign the muster roll and earn daily wage. In this situation,
after 2009 appellants dependent upon their daily wage, could not report for
work, appropriate cognizance therefore can be taken if, any proceedings are
filed by the appellant either for reinstatement or then for providing work to
them as the same is available or then by invoking Section 25H of the
Industrial Disputes Act.
17. If such a grievance is made and delay or latches, if any, are
explained, and its cognizance on merit is taken, all question which arise can
then be looked into by the concerned Court to find out entitlement or
eligibility of complainants to suitable relief. In present facts, when they are
not reporting for work since 2009, granting relief of regularization is not
possible.
18. Hence, keeping all issues and all related aspects open for
consideration by the competent Court and also keeping all rival contentions
regarding the same open, we dispose of the present Letters Patent Appeal.
No costs.
JUDGE JUDGE
chaulwar/Rgd.
