Chief Executive Officer, Zilla ... vs Maha. Rajya Aarogya Khate ...
2017 Latest Caselaw 852 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                        NAGPUR BENCH, NAGPUR.

                          WRIT PETITION NO. 5511 OF 2015

1. Chief Executive Officer,
     Zilla Parishad, Yavatmal,
     Tahsil & District Yavatmal.

2. The Commissioner,
     Rashtriya Gramin Aarogya Abhiyan
     Maharashtra Rajya, Mumbai, Saint
     George Rugnalaya Compound,
     P. Demelo Road, Mumbai.

3. The President,
     Rajya Aarogya Society, Aarogya
     Bhawan, 3rd Floor, Saint George
     Rugnalaya Compound, P. Demelo
     Road, Mumbai.

4. The Secretary,
     Zilla Ekatmik Aarogya Wa Kutumb
     Kalyan Society, Yavatmal, District
     Health Officer, Office Civil Road,
     Yavatmal.                                                  ... PETITIONERS

                                         VERSUS

1. Maharashtra Rajya Aarogya Khate
     Anshakalin Streee Parichar Wa AASHA
     Sanghatana, Reg. No. 2493/2009, 
     through its Vice President Shri 
     Diwakar Krushnarao Nagpure, 
     Ganesh Nagar, Juna Umarsara, 
     Tahsil and District Yavatmal.

2. The Chief Secretary, Maharashtra
     Government, Mantralaya, Mumbai.                          ... RESPONDENTS

                                     ....
Shri N.L. Jadhav, Advocate for the petitioners.
Ms. K.K. Pathak, Advocate for respondent No.1.
Shri S.B. Bissa, Assistant Government Pleader for respondent No.2.
                                     ....



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                                        CORAM : PRASANNA B.VARALE, J.

DATED : 20TH MARCH, 2017.

ORAL JUDGMENT :

Rule. Rule is made returnable forthwith. Heard finally with the

consent of the learned Counsel appearing on behalf of the respective

parties. Ms. K.K. Pathak, the learned Counsel waives notice on behalf of

respondent No.1 and Shri S.B. Bissa, learned Assistant Government

Pleader Prosecutor waives notice on behalf of respondent No.2.

2. By way of present petition, the petitioner challenges the order

dated 19th August, 2015 passed by the learned Member, Industrial Court,

Yavatmal in Complaint (ULP) No. 22 of 2013. The brief facts which give

rise to the filing of the present petition can be summarized as under :-

3. The respondent No.1 is a registered Union. It was the stand of

the Union that the Union represents the interest of Accredited Social

Health Activists (ASHA Employees) and Block Facilitator (Gat Pravartak).

ASHA scheme is introduced by the Central Government and the petitioner

herein (respondent No.1 before the learned Member, Industrial Court) is

the implementing authority. It was submitted by the Union by filing

Complaint (ULP) No. 22 of 2013 before the learned Industrial Court,

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Yavatmal that the National Rural Health Mission Scheme is introduced in

the year 2005 and it is still working. It was further submitted that the said

scheme started its functioning in Yavatmal district in the year 2008. There

are 800 to 1300 ASHA workers and 35 to 130 Gat Pravartaks are appointed

in the District for implementation of the fund. It was submitted that the

members of the Union were discharging their duties as per the direction of

the respondents and these members were regularly and punctuality

discharging their duties. In spite of the members discharging their duty

regularly and in spite the members were entitled for honorarium, they

were not paid the honorarium. It was further submitted that the members

of the Union were carrying out the work of ASHA employees in spite they

were not paid the equal payment like regular employees. It was further

submitted that though the members were working nearly eight hours a day

and 20 days in a month, a paltry amount of remuneration at the rate of

Rs.300/- per month was paid to them. It was further submitted that as per

the norms of the scheme, though the members of the Union are entitled

for minimum honorarium at the rate of Rs.17,200/- at the time of filing of

the complaint, they were paid at the rate of Rs.4,000/- per month.

It was further submitted that the members of the Union were

even paid less amount than the amount of minimum wages. It was further

submitted that the acts of the respondents are amounting to unfair labour

practice under items 5 and 9 of Schedule IV of the Maharashtra

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Recognition of Trade Unions and Prevention of Unfair Labour Practices

Act (hereinafter referred to as the MRTU and PULP Act). It was also the

submission of the Union that even though there is regular work available

with the respondents so as to engage the members, the respondents, by

not providing the regular work, denying the status of permanency to the

members. The respondents before the learned Member of the Industrial

Court by filing written statement, denied the contentions and allegations.

It was submitted by the respondents that the respondents are only the

implementing and supervising agency of the scheme floated and funded

by the Central Government. It was submitted that the members of the

Union were engaged on contract basis. It was further submitted that there

was no employer-employee relationship between the parties. It was also

submitted that there was neither any agreement, settlement nor award

between the parties in respect of any regular salary to be paid to the

members of the Union and as such the members of the Union could not

have claimed the payment of regular salary from the respondents. Thus, it

was the submission of the respondents that they have not committed any

unfair labour practice as alleged by the Union.

The learned Member of the Industrial Court on the ground that

the complainants were working with the respondents for three to four

years and they have completed 240 days continuous service and further on

the ground that a technical break was given to the complainants though

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there was work available continuously with the respondents, allowed the

complaint partly. The learned Member Industrial Court directed the

respondents to regularize the services of the complainants and further

directed the respondents to pay them all benefits of regularization from

the date of filing of the complaint. Rest of the claims of complainants are

rejected.

4. Shri Jadhav, the learned Counsel for the petitioners vehemently

submits that the learned Member of Industrial Court grossly erred in

allowing the complaint partly. The learned Counsel, in his detailed

submission, by inviting my attention to the scheme framed by the Central

Government, the appointment orders passed in favour of the

complainants and by referring to the oral evidence led by the parties

before the learned Member, Industrial Court, submits that the

complainants were recommended by the local committees namely the

health committees. Shri Jadhav, the learned Counsel for the petitioners

then submits that the complainants were selected as ASHA volunteers and

the nature of the work was not the permanent but these volunteers were

expected to participate in the health awareness programme and other

allied activities. He further submits that after the selection of such

workers, they were to undergo the training and they were entitled for

honorarium. The learned Counsel then submits that the complainants

utterly failed to produce any material before the learned Member of the

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Industrial Court to show that their appointments were on clear and vacant

post and by following due procedure of selection. Shri Jadhav, the learned

Counsel also submits that the complainants in their evidence tendered

before the learned Industrial Court clearly admitted that there was no

selection process undertaken for appointment of these complainants and

they were selected through the local committee of the Gram Panchayat.

The learned Counsel then submits that none of the complainants stated

before the learned Member of the Industrial Court either about the duties

or the work undertaken by these complainants. On the contrary, there is

only a vague reference that these complainants were working as ASHA

workers or the Block Facilitators. Shri Jadhav, the learned Counsel invites

my attention to the guidelines issued by the State Government in respect

of ASHA scheme. The learned Counsel, in support of his submission,

heavily relies on the judgments of the Apex Court as well as this Court in

the cases of Secretary, State of Karnataka and others .v. Umadevi and

Others (reported in 2006(3) SCC, 415); Divisional Manager, Aravali Golf

Club and another .v. Chander Hass and another (reported in 2007 DGLS

(SC), 1364); Brij Mohan Lal .v. Union of India and others (reported in

2012 DGLS (SC), 208); Renu and others .v. District and Sessions Judge, Tis

Hazari and another (reported in 2014 DGLS (SC), 130); Daulat Mahadu

More and others .v. The State of Maharashtra and others (unreported

judgment passed in Writ Petition No. 3756 of 2015 by the Aurangabad

Bench of this Court); Shirshal Rajendra Potdukhe and others .v. State of

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Maharashtra and others (reported in 2016(6) Mh.L.J., 346); Amrapali

Jeevan Gawai .v. Vaishali Sumedh Shirsat and others (reported in 2016

(6) Mh.L.J., 351); and Ramakant Laxman Sarmalkar .v. Nowrojee Wadia

Maternity Hospital and others (reported in 2002 (3) All MR, 322).

5. Per contra, Ms. Pathak, the learned Counsel for respondent

No.1 supports the order impugned in the instant petition. It is the

submission of the learned Counsel for respondent No.1 that the

complainant were working with the petitioners continuously for three to

four years. It is further submitted by the learned Counsel for the

respondents that the scheme floated by the State Government is still in

continuation. She further submits that though the complainants were

discharging the duties of the regular ASHA employees, they were paid

either a meager amount or were paid paltry amount of honorarium. She

also submits that the complainants were working eight hours a day and 20

days in a month but were paid a meager amount of Rs.300/- per month

initially and subsequently Rs.500/- to Rs.1000/- per month. The learned

Counsel further submits that the complainants were directed to submit an

undertaking in the form of affidavit and as the complainants were in need

of the work, the complainants submitted the undertaking to the effect that

the appointment of the petitioner was temporary. Ms. Pathak, the learned

Counsel submits that only to deprive the complainants from their

entitlements and legal benefits, an artificial and technical break was

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shown. It is also submitted that the complainants were well qualified and

in spite of having the requisite qualifications, the complainants were

engaged as if the bonded workers. She also submits that as the work is still

available with the petitioners by regularizing the complainants and by

payment of the wages equivalent to the regular ASHA workers to the

complainants, would cause neither any harm nor any prejudice to the

petitioners. The learned Counsel for the respondent No.1 places heavy

reliance on the judgment of the Division Bench of this Court in the case of

Vidya .v. State of Maharashtra and another (reported in 2011(129) FLR

556). By inviting my attention to the document namely the

communication dated 21.12.2011, Ms. Pathak, the learned Counsel for

respondent No.1 submits that though the petitioners were directed to

create the regular posts, the petitioners with an intention to deprive the

complainants from their rightful claims, are not creating such posts.

6. With the assistance of the learned Counsel appearing on behalf

of the respective parties, I have through the material placed on record.

Firstly, it would be necessary to refer to the orders issued in favour of the

complainants so as to appreciate the controversy involved in the present

petition. The orders are placed on record at "Annexure-P-1". Perusal of

the orders passed in favour of one of the complainants namely Smt. Amita

Vitthal Madavi shows that in view of the scheme namely, National Rural

Health Mission floated by the Central Government, the State Government

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through its implementing agency i.e. petitioner No.1 selected the

candidates, recommended by the local committee. The order further

refers to the terms and conditions. Perusal of these terms and conditions

clearly shows that the candidates selected were to create awareness about

the various health schemes. These candidates are expected to provide the

assistance at local level/village level and blocks in cases of the medical and

health requirements. The terms and conditions further state that these

orders would provide the necessary basic information to the residents in

cases of the pregnancy, the child care, the care of the infants, the

importance of safe delivery, the care and caution to be taken by pregnant

lady members. It also refers to provide the primary medicines for the

minor ailments like cough, cold, fever. It further states that such

candidates selected shall take active interest in conducting various health

awareness camp at local level. The order further shows that these

candidates will have to undergo the training and these selected candidates

would be entitled for the travelling expenses and the daily expenses at the

time of training and they would not be entitled for the honorarium. It

seems that subsequently such selected candidates were provided the

travelling expenses and a fixed amount of Rs.3,000/- for their visits in the

health awareness programmes. The complainants and the selected

candidates have submitted the undertaking in the form of affidavits.

7. Shri Jadhav, the learned Counsel for the petitioners invites my

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attention to the guidelines issued by the State Government. Perusal of the

said guidelines shows that these are the guidelines for appointment of

ASHA volunteers in the non tribal area under the National Rural Health

Mission. Perusal of the said guidelines shows that initially under the

National Rural Health Mission, the scheme was floated in 15 districts

having majority of the tribals. Subsequently, from the month of

September, 2008, the scheme is extended to the other non tribal districts

also. The guidelines then refer to the selection process and the duties to be

performed by the ASHA volunteers. These duties include the medical

assistance at the primary level, the propoganda at the local/village level in

respect of free health services, the distribution of the publication in respect

of family welfare, family planning, awareness in respect of mother and

child health such as the medical examination, pre pregnancy, the diet, the

iron tablets, assistance in maintaining the birth and death registration.

The guidelines then refer to the basic training provided to the ASHA

workers. Thus, considering the nature of the guidelines and the

appointment order, it clearly reveals that the complainants were not

appointed on any clear, vacant and regular post but the nature of the

appointment of all the complainants was of the voluntary assistance in the

scheme. The working hours referred to in the guidelines and the

appointment order clearly shows that these ASHA volunteers were

required to spare four days a week and two - three hours a day. The

appointment order further shows that the ASHA block facilitators were

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entitled for the travelling expenses and the honorarium at the rate of

Rs.3,000/- per month. The evidence tendered by the complainants on

affidavit shows that the complainants admitted there was no procedure

followed for appointment of the ASHA volunteers. The evidence tendered

by the respondent/Union further shows that except the allegations namely

the respondents are extracting the work and by giving technical breaks are

depriving the members of the Union from their rightful entitlement.

There is nothing placed on record to show what duties were discharged by

the members of the respondent/Union. In the cross-examination, it is

admitted that the members of the Union are receiving honorarium. It is

also admitted that these members are referred to as ASHA volunteers. It is

also admitted in the cross-examination that there is neither any

agreement, settlement nor any award between the parties in respect of

regularization of the services.

8. The above referred material clearly shows that the respondent/

Union utterly failed to establish before the learned Member of the

Industrial Court that the petitioners were indulged in the act of unfair

labour practices as alleged by the complainants. The material also clearly

reveals that the members of the Union were not selected by adopting the

regular selection mode. At the cost of repetition, it must be stated that the

selection of the members of Union was as the ASHA volunteers. On

perusal of the material placed on record, the unfortunate state of affairs

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emerged. As stated above, this Court put a specific query to Ms. Pathak,

the learned Counsel for respondent No.1/Union that whether any material

was brought before the learned Member of the Industrial Court to show

that the complainants have either actively participated in any health

awareness programme or actively discharged any duty either to facilitate

the local member in availing medical facility or assisted any local member

to attend the primary health center. From the perusal of the material

placed on record, a sorry state of affairs emerged. On one hand, the

Central Government floated a very laudable scheme namely National

Rural Health Mission and it seems that the Central Government also

allocated the funds for the scheme to be implemented through the various

agencies of the State Government. From the perusal of the material placed

on record, it reveals that the various cash incentives are provided to the

volunteers, such as for instigating the mothers to under the safe delivery

scheme, Rs.600/- is the incentive provided for creating awareness in

respect of dots treatment; Rs.250/- incentive provided for vaccination; in

the group of age between zero to one and one to two years, Rs.100/- and

Rs.50/- incentive is provided for active participation; in pulse polio

scheme, Rs.95 incentive is provided. There are incentives also provided for

creating awareness in other ailments. It may not be necessary to mention

all these ailments and incentives for creating awareness. Suffice to say that

the scheme is floated by the Central Government with a laudable object to

provide medical assistance at the block level and Panchayat level. The

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object of engagement of ASHA volunteers is to create man power of

voluntary nature for the effective implementation of the scheme. On the

other hand, it reveals that the candidates selected under the scheme were

unable to show that they have performed any of such duty either creating

awareness or providing the primary medical assistance at block level. As

such, these candidates who failed to perform their duty as volunteer

participating in the health mission and awareness and on the other hand,

these candidates were insisting for the monetary benefits as regular

employees.

9. Shri Jadhav, the learned Counsel for the petitioners was

justified in submitting that as the post of ASHA volunteer is not a

permanent post and the respondent/Union could not have claimed any

regularization in the post and the learned Member of the Industrial Court

failed to appreciate all these facts in their proper perspective, the judgment

and the order passed by the learned Member, Industrial Court is

unsustainable. Shri Jadhav, the learned Counsel for the petitioners rightly

placed heavy reliance on the judgment of the Apex Court in the case of

Secretary, State of Karnataka and others .v. Umadevi and others (cited

supra). The learned Counsel was also justified in submitting that merely

because the members of the Union worked for three to four years, they are

not entitled to claim permanency or regularization in the service. It would

be useful to refer to the observations of the Apex Court made in Umadevi's

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case, as follows :-

"When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post."

10. Shri Jadhav, the learned Counsel for the petitioners also places

reliance on the judgment of the Division Bench of this Court in the case of

Shirsal Rajendra Potdukhe and others .v. State of Maharashtra and others

(cited supra). It would be useful to refer to the observations of this Court as

follows :-

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"On hearing the learned counsel for the parties and on a perusal of the documents annexed to the Petition/s, especially the Government Resolution dated 31.03.2010, it appears that the petitioners are not entitled to the relief claimed. Admittedly, the scheme under which the petitioners were appointed temporarily for a period of eleven months, on honorarium, was floated by the Central Government and the State Government is only the implementing authority. Admittedly, the scheme has come to an end on 31st July, 2016. The petitioners applied in pursuance of the advertisements and accepted the appointments for a period of eleven months on temporary basis, on honorarium and on the other conditions mentioned in the appointment order, without a demur. Now, after the scheme is discontinued the petitioners are seeking the regularisation of their services in any other scheme or in the Departments of the Zilla Parishad. The petitioners do not have any right, whatsoever, to seek their regularisation either in the services of the Zilla Parishad or in the other schemes. It is held by the Hon'ble Supreme Court in the case of Secretary, State of Karnataka vs. Umadevi (3) and others, reported in (2006) 4 SCC 1 and the other judgments of the Hon'ble Supreme Court rendered from time to time; and reported in (2012) 6 SCC 502, Brij Mohan Lal vs. Union of India and others, (2012) 11 SCC 656, Maheshchandra Verma and others vs. State of Jharkhand and others and 2014(2) SCALE 262, Renu and others vs. District and Sessions Judge, Tis Hazari, that merely because the employees have worked in casual and temporary employment for certain number of years, they would not be entitled to regularisation. In the said judgments, the Hon'ble Supreme Court has observed that there cannot be a total embargo on casual or temporary

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employment and in the exigency of administration it would be necessary to make appointments temporarily, contractually or casually. In the instant cases also, the appointment of the petitioners was under a scheme and the petitioners had secured the employment for a period of eleven months under the scheme, with the clear knowledge that their employment would come to an end after the period of eleven months and latest, when the scheme is brought to an end. The appointments of the petitioners in the scheme for the past few years have at least brought some succor to the petitioners when innumerable educated people in this country are unemployed and even do not have an opportunity to secure employment on temporary basis for a period of eleven months. We do not find any right in the petitioners to seek their regularisation in service, especially when they were appointed under the scheme with a clear understanding that their services would come to an end after a period of eleven months. Also, the petitioners had never challenged their appointments for the period of eleven months when such appointments were made during the past five years. They cold not have challenged the same as, by the advertisement, the appointments were sought to be made under the scheme, that was not a scheme of a permanent nature. There is nothing in the policy of the Government, at least in the scheme that was implemented in this case that as soon as the scheme comes to an end, the services of the employees that are temporarily employed would be absorbed in some other schemes that are implemented by the State government. In fact, the scheme itself provides that the appointments were required to be made for a period of eleven months, only on honorarium. In any case, we do not find that the petitioners

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have any right to seek their absorption either on the posts available with the Zilla Parishad or on the posts in the other schemes only because they have worked under the scheme for development of backward areas during the past five years. Under the other schemes also, the appointments could be made in accordance with the policy under those schemes and a direction cannot be issued by this Court to directly absorb the petitioners under those schemes. In the circumstances of the case, no case is made out by the petitioners for grant of relief of regularisation. We humbly follow the law laid down by the Hon'ble Supreme Court in the case of Umadevi (supra) and the other judgments that are referred to hereinabove, while doing so. Merely because there may be a recommendation by the High Power Committee, a direction to regularise the services cannot be granted." (emphasis supplied).

Shri Jadhav, the learned Counsel for the petitioners also places

reliance on the judgment of Division Bench of this Court in the case of

Municipal Council, Tirora and another .v. Tulsidas Baliram Bindhade

(reported in 2016(16) Mh.L.J., 867). On the backdrop of the submission

that the respondent had completed 240 days in a calender year and as such

he should have been granted permanency, this Court observed thus :-

"... The judgment of a Division Bench of this Court in Pune Municipal Corporation vs. Dhananjay Prabhakar Gokhale, (supra), after referring to the judgment of the Supreme Court,

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in paragraphs 8 and 9 observes that merely because an employee continued to render service for 240 days in a year, that by itself will not be sufficient for him to claim permanency in the post, unless he is able to establish that such a permanent post duly approved by the competent authority is vacant and the claimant is duly eligible for being appointed in such post. Mere completion of 240 days of service by itself is not a carte blanche to an employee to claim permanency in the service of his employer."

11. Though Ms. Pathak, the learned Counsel for the respondent

No.1 places heavy reliance on the communication dated 21st December,

2011 to submit that in view of this communication, the State Government

was duty bound to create the regular posts, I am unable to accept the

submission of Ms. Pathak for the reasons that the said communication is

only in the nature of the guidance issued by the Joint Secretary of the

Government of India, Ministry of Health and Family Welfare to the Health

Secretaries of all the States and Union Territories. The said

communication cannot be treated as the material having a statutory force.

Apart from this, it only directs to take the necessary measures for the

implementation and the smooth functioning of the scheme namely

National Rural Health Mission. This communication cannot be said to

have a binding effect on the State government for creation of the posts.

12. Though the learned Counsel for the respondent No.1 places

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reliance on the judgment in the case of Vidya .v. State of Maharashtra

(cited supra), I am of the opinion that in view of the facts of the present

petition, the judgment of this Court in the case of Vidya .v. State of

Maharashtra (cited supra) is of no help to the learned Counsel for

respondent No.1. It is not in dispute that the State of Maharashtra has

floated a scheme in the year 1975 for the appointment of Anganwadi

Sevika, Auxiliary Nurse/Midwives and Accredited Social Health Activists.

Under the said scheme, a provision was made for an honorarium to be

paid to these anganwadi workers or anganwadi helpers. Thus, on the

backdrop of the scheme floated by the State Government, there was a

creation of the post and certain amount of a fixed honorarium was also

paid to the anganwadi sevikas and anganwadi helpers. Such is not the case

in the present petition. The members of the respondent/Union were

selected from the local committee as the volunteers. They were receiving

the incentives. There was no selection of these candidates by a proper

selection mode or by proper selection agency. As such, the status of these

volunteers cannot be equated with the anganwadi workers or anganwadi

helpers or auxiliary midwives. The learned Member of the Industrial Court

failed to consider all these aspects and only on a general observation that

the members of the respondent/Union worked for 240 days in a calender

years and they worked for three to four years, allowed the complaint partly.

The judgment passed by the learned Member, Industrial Court is thus

unsustainable. The order dated 19th August, 2015 passed by the learned

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Member, Industrial Court, Yavatmal in Complaint (ULP) No. 22/2013 is

quashed and set aside.

In the result, the writ petition is allowed. Rule is made absolute

in aforesaid terms.

JUDGE

*rrg.