Bombay High Court
Maharashtra State Electricity ... vs Vishwanath Shankar Sadafule on 10 November, 2017
Bench: R.M. Savant
LPA-174-10 reserved
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
LETTERS PATENT APPEAL NO.174 OF 2010
IN
WRIT PETITION NO.5786 OF 1997
1 Vishwanath Shankar Sadafule )
having his residential address at )
House No.552, North Sadar, )
Sadar Bazar, Solapur (East) )
(now residing at) )
Fakruddin Nagar, Solapur 410 003 )
2 Smt. Vimal Vishnu Mane )
3 Anil Vishnu Mane )
4 Sudhir Vishnu Mane )
5 Pramod Vishnu Mane )
Appellants 2 to 5 are the legal heirs of )
Vishnu Tukaram Mane deceased employee)
having their address at )
Room No.97, Sanjay Nagar, )
Kumatha Naka, Solapur, )
6 Revan Damu Suyavanshi )
having his address at )
Vasti Ambrai, Degaon Naka )
House No.505, Solapur, )
(now residing at ) )
At Dhekari, Post- Tuljapur )
Dist Usmanabad )
6-A Smt. Pushpa Revan Survase )
Alias Suryavanshi Age 51 years )
6-B Manoj Revan Survase )
Alias Suryavanshi Age 35 years )
6-C Dilip Revan Survase )
Alias Suryavanshi Age 32 years )
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6-D Rajendra Revan Survase )
Alias Suryavanshi Age 30 years )
(the Applicants 1-A to 1-D all are )
having their address at Dhekari, )
Post - Tuljapur,Dist Usmanabad )
Pin Code 413 601 )
6-E Punam Dayanand Phadke )
Married daughter having her address )
at Post Kemwadi )
Taluka Tuljapur,Dist Osmanabad ) ..Appellants
Vs
1 Maharashtra State Electricity )
Distribution Co. Ltd. )
Constituted under the Electric Supply )
Act 1947, through its Controller of )
Vehicles Workshop, Pune 411 053 )
2 R. U. Ingale, Member )
Industrial Court, Maharashtra, )
at Solapur ) ..Respondents
ALONGWITH
CIVIL APPLICATION NO.152 OF 2011
IN
LETTERS PATENT APPEAL NO.174 OF 2010
IN
WRIT PETITION NO.5786 OF 1997
Maharashtra State Electricity Distribution Co. Ltd. ..Applicant
(Orig. Respondent)
Vs.
Vishwanath Shankar Sadafule & Ors. ..Respondents
Ms Nayana Buch i/b Mr. S. K. More for the Appellants in Letters Patent
Appeal and for the Respondents in Civil Application
Mrs. Anjali Raghunath Shiledar Baxi, for the Respondent No.1 in Letters
Patent Appeal and for the Applicant in Civil Application
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LPA-174-10 reserved
CORAM :R. M. SAVANT, &
SARANG V KOTWAL, JJ
RSERVED ON: 11th October, 2017
PRONOUNCED ON : 10th November, 2017
JUDGMENT (PER R. M. SAVANT J.)
1 The above Letters Patent Appeal is filed challenging the judgment
and order dated 26-2-2010 of the Learned Single Judge of this Court (Anoop V.
Mohta J.) by which order the above Writ Petition being No.5786 of 1997 filed
by the Respondent No.1 came to be allowed and resultantly the judgment and
order dated 29-4-1997 passed by the Learned Member of the Industrial Court,
Solapur in Complaint ULP No.210 of 1989 and companion ULP's came to be
set aside.
2 The facts involved in the above Letters Patent Appeal can in brief
be stated thus:
The original complainants i.e. the Appellants herein were ex-
servicemen and had applied for the post of watchman with the Respondent
No.1 herein which is an Electricity Distribution Company. The said application
was made by the complainants sometime in the year 1988. The complainants
were appointed to the post of watchman on 15-2-1988 on contract basis on a
fixed tenure on an consolidated salary of Rs.400/- per month. The
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complainants rendered continuous services for a period of over 19 months and
were given a break of two days and thereafter reemployed on contract basis
and subject to the terms and conditions which were applicable to their earlier
appointment. Since the complainants were not made permanent or their
services were not regularised that they filed complaint under Section 28 read
with Item 6, 9 and 10 of the Schedule IV of the MRTU and PULP Act 1971.
The said Complaints were numbered as 210 of 1981, 211 of 1981 and 212 of
1981. In the said Complaints the principal prayer of the complainants was a
direction to the Respondent No.1 to confer the status and privileges of the
permanent employees on the complainants. It was the case of the
complainants that they have worked for more than 240 days and that the work
discharged by the complainants was permanent and perennial in nature. It
was further their case that the Respondent No.1 has framed regulations for
appointing and regularising the services of the employees like the
complainants. It was their case that they were entitled for regularisation as
the model standing orders are applicable to them and that in not conferring
them the benefits of permanency, the Respondent No.1 has committed a
breach of the standing orders. It was the case of the complainants that the
Respondent No.1 has opened vehicle service centers at many District places
and hence the services of the complainants were required by the Respondent
No.1. It was therefore the case of the complainants that by not giving them the
benefits of permanency the Respondent No.1 has committed unfair labour
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practice under Items 6, 9 and 10 of Schedule IV of the MRTU & PULP Act,
1971. The Complaints came to be amended as after filing of the complaint,
the services of the complainants came to be terminated having regard to the
terms of their appointment. The complainants therefore prayed for their
reinstatement with effect from 4-1-1990 with continuity of service and
payment of back wages.
3 In the said Complaints the Respondent No.1 filed its Written
Statement. The Respondent No.1 at the outset questioned the territorial
jurisdiction of the Industrial Court, at Solapur as according to it the Industrial
Court Pune would have jurisdiction. It was the case of the Respondent No.1
that since the complainants were ex-servicemen and had approached the
Respondent No.1 for employment on account of their financial stringency, the
Respondent No.1 had with a view to help the complainants financially, had
engaged them for a fixed period on a consolidated salary for providing
additional security to the vehicles in the workshop. The Respondent No.1
averred in the Written Statement that the complainants having not been
recruited by following the regular procedure prescribed for recruitment, could
not claim any right on the basis of their said appointment. In so far as their
continuance in the post of watchman is concerned, it was the case of the
Respondent No.1 that the services of the complainants were required to be
terminated with the final contractual period coming to an end on 3-1-1990. It
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was the case of the Respondent No.1 that no unfair labour practice was
committed by the Respondent No.1 and that since the construction of the car
washer room which was in progress that the complainants were engaged for
the sake of security and on completion of all the construction work their
contractual period came to an end on 3-1-1990. It was also averred by the
Respondent No.1 that there is no sanctioned post of watchman in the District
Vehicle Service Center at Solapur.
4 The Industrial Court on the basis of the aforesaid pleadings
framed only one issue which was to the following effect:
" Whether the complainants have proved that the Respondent has
engaged in or is engaging in unfair labour practices under Item 6, 9 and 10 of
the Schedule IV of the MRTU and PULP Act 1971".
In support of their assertions, the complainants did not adduce
any oral evidence but relied upon the documentary evidence. In so far as the
Respondents are concerned, the Respondent No.1 adduced evidence of their
Deputy Executive Engineer, CW-1. The Industrial Court Solapur on the basis of
the material on record came to a conclusion that the Respondent No.1 has
committed unfair labour practice under Item 6, 9 and 10 of the Schedule IV of
the MRTU and PULP Act 1971, as a consequence the Industrial Court directed
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the Respondent No.1 to confer upon the complainants status and privileges of
permanent employees in the post of watchman from the date of completion of
240 days. The Industrial Court consequently also set aside the termination of
the services of the complainants being illegal and nonest.
5 The gist of the reasoning of the Learned Member of the Industrial
Court was that since the complainants had rendered services during the period
15-2-1988 to 3-1-1990 which is a period of more than 240 days in a calendar
year, they were entitled to permanency in the Respondent No.1. The Learned
Member observed that the case of the Respondent No.1 that the complainants
were engaged on a contract basis could not be accepted as a perusal of the
application form submitted by the complainants to the Respondent No.1
manifest that the complainants had applied for being provided employment
and not for engaging them on a contract basis. In support of the said
observation, the Learned Member relied upon the cross-examination of the
witness of the Respondent No.1 i.e. the Deputy Engineer who according to the
Learned Member has admitted in his cross-examination that the application
forms were submitted by the complainants for employment and not for work
on contract basis. The Learned Member further observed that the said witness
had also admitted that duties discharged by the complainants were of a
regular watchman. The Learned Member observed that by not granting them
the permanency the Respondent No.1 had committed unfair labour practice
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under Item 6 and 9 of the Schedule IV of the MRTU and PULP Act, 1971. The
Learned Member observed that though it was the case of the Respondent No.1
that there were standing orders framed by the Respondent No.1, the same
were not placed on record and therefore the case of the complainants based on
the model standing orders was required to be accepted. The Learned Member
also deemed it appropriate to draw an adverse inference against the
Respondent No.1 in view of the fact that the register of the employees was not
produced before it. The Learned Member also did not accept the case of the
Respondent No.1 that on account of non availability of the work, the services
of the complainants were required to be terminated on 3-1-1990. The Learned
Member relied upon the cross-examination of the Deputy Engineer who has
stated that there is no evidence to show that on 4-1-1990 the work assigned to
the complainants was over. As indicated above the Learned Member has
accordingly allowed the Complaints and issued the directions which are
contained in the operative part of the order passed by him and which have
been referred to in the earlier part of this judgment.
6 Against the judgment and order dated 29-4-1997 of the Learned
Member of the Industrial Court, the MSEDCL i.e. the Respondent No.1 filed
the above Writ Petition in this court being Writ Petition No.5786 of 1997. The
said Writ Petition came to be admitted and interim reliefs came to be granted
whereby the order of the Industrial Court dated 29-4-1997 came to be stayed,
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as a result of which the services of the complainants were discontinued. The
Writ Petition came to be allowed by a Learned Single Judge of this Court by
the impugned judgment and order dated 22-6-2010. The gist of the reasoning
of the Learned Single Judge was that since the complainants were admittedly
appointed on a contractual basis for a fixed period and on a consolidated
salary with clear indication that they would have no claim or any right of
claiming permanency and since the complainants having accepted the said
condition unconditionally, their case based on the standing orders or the
judgments could not be accepted. The Learned Single Judge was of the view
that since the complainants had continued on the basis of the interim orders
passed in the Complaints, their case falls within the ambit of "litigious
employment". The Learned Single Judge observed that in view of the interim
orders passed by the Industrial Court that the Respondent No.1 was compelled
to continue the complainants. The Learned Single Judge lastly observed that
the complainants were never appointed by following the due procedure as is
required to be followed by the Respondent No.1 which is a statutory body. The
Learned Single Judge relied upon the judgment of the Apex Court in MSRTC &
Ors. Vs. Castetribe Rajya P. Karmchari Sanghatana 1 and especially the
observation that the creation of posts is not within the domain of the judicial
functions and which obviously pertains to the domain of the executive. The
Learned Single Judge as indicated above accordingly set aside the judgment
and order dated 29-4-1997 passed by the Industrial Court, Solapur.
1 2009 III CLR 262
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7 Heard the Learned Counsel for the parties.
8 It was the submission of the Learned Counsel appearing for the
Appellants Ms Buch that the complainants having put in more than 240 days
of service in a calendar year between the period 1988 to 3-1-1990 were
entitled to permanency in terms of the standing orders applicable. Reliance is
placed on the Model Standing Orders and especially clause 4(c) thereof which
provides for a "badli" or temporary workman who has put in 240 days of
service in a calendar year to be made permanent. It was the submission of the
Learned Counsel that the Learned Single Judge had erred in relying upon an
extract from the judgment of the Apex Court in MSRTC's case (supra) which
extract according to the Learned Counsel has been read out of context by the
Learned Single Judge. It was the submission of the Learned Counsel that the
evidence which has come on record through the witness of the Respondent
No.1 proves the case of the complainants that the complainants were carrying
out duties which were assigned to the permanent watchmen who were in the
services of the Respondent No.1. It was the submission of the Learned Counsel
that it has been clarified in the judgment in MSRTC's case (supra) that the
rights of the workmen under the provisions of the MRTU and PULP Act have
not been taken away by the judgment of the Apex Court in Umadevi's case. It
was therefore the submission of the Learned Counsel that the impugned
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judgment and order dated 22-6-2010 passed by the Learned Single Judge is
required to be interfered with by this Court in its Letters Patent Appeal
jurisdiction.
9 Per contra, the Learned Counsel for the Respondent No.1 Ms Baxi
would submit that having regard to the terms of the contract of employment
between the complainants and the Respondent No.1, the complainants are not
entitled to claim permanency to the post of watchman. The Learned Counsel
would seek to draw our attention to the terms of the contract as mentioned in
the appointment letter. It was the submission of the Learned Counsel that the
contract of employment had come to an end on 3-1-1990 by efflux of time and
the continuance thereafter of the complainants under the interim orders of the
Industrial Court cannot enure to the benefit of the complainants so as to
contend that they had put in continuous service without being made
permanent. It was the submission of the Learned Counsel that the
continuance of the complainants can be termed as "litigious employment" as
observed by the Apex Court in Umadevi's case. The Learned Counsel would
contend that the complainants were employed to provide security for the
District Vehicle Service Center which no more exists and therefore the
complainants cannot be granted the reliefs they have sought vide the
Complaints. The Learned Counsel sought to place reliance on the judgment of
the Apex Court in the matter of State of Maharashtra & Ors Vs. Anita &
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Anr.2 to contend that the complainants are now estopped from challenging
the nature of their appointment once having accepted the same. It was
therefore the submission of the Learned Counsel that the Learned Single Judge
of this Court has rightly set aside the judgment and order dated 29-4-1997
passed by the Industrial Court having regard to the facts which have come on
record and therefore no interference is called for with the said judgment of the
Learned Single Judge in the Letters Patent Appeal Jurisdiction.
10 Having heard the Learned Counsel for the parties we have
considered the rival contentions. As indicated in the earlier part of this
judgment, the Complaints filed by the Appellants herein being Complaint ULP
Nos.210 of 1981, 211 of 1981 and 212 of 1981, were allowed by the Industrial
Court by the impugned judgment and order dated 29-4-1997 and a declaration
of unfair labour practice came to be issued against the Respondent No.1 for
violating item 6 and 9 of Schedule IV of the MRTU and PULP Act 1971. The
said declaration is founded on the finding reached by the Industrial Court that
the complainants having put in 240 days of service were entitled to the benefit
of permanency and since they were not made permanent, the Respondent
No.1 had indulged in an unfair labour practice. The said judgment and order
passed by the Industrial Court as indicated above was interfered with by the
Learned Single Judge of this Court, resultantly the said judgment and order
dated 29-4-1997 of the Industrial Court has been set aside.
2 (2016)8 SCC 293
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11 In the context of the challenge raised in the above Letters Patent
Appeal, it would be necessary to refer to the terms of appointment of the
complainants when they were appointed as watchmen on 9-2-1988. The said
terms are reproduced hereinunder:
1 You will be paid a monthly lump-sum
remuneration of Rs.400/- (Rs. Four hundred
only)
2 You will have to work on either of there two
shifts from 16800 to 2400 hours or 0000 hours to
0500 hours.
3 You are entitled for one weekly off and all other
leave is without pay.
4 This order shall be terminated if found
necessary without assigning any reason by giving
one week's notice
5 You are responsible for the Security of the
Board's property during your duty hours at the
District Vehicle Services Center, Solapur.
6 This order will neither entitle you for any kind
of permanent job in MSEB nor preference in
recruitment.
7 No uniform will be provided to you but tools
and tacklers as lathis, torch and whistle will be
provided by us.
8 The payment will be made on or before 5 th of
every month, subject to the attendance certificate
given by the Dy. Executive Engineer.
9 The Board will not compensate for any kind of
injury/mishap during the course of duty.
Personal safety is at your risk.
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10 If you are agree for the above terms and
conditions, you should report to Dy. Executive
Engineer, District Vehicle Service Center on or
before 15.2.88.
A reading of the aforesaid terms and conditions therefore discloses
that the complainants were to be paid a consolidated salary of Rs.400/- per
month, they were entitled to one weekly off and all other leave was without
pay, they were informed that they would neither be entitled for any kind of
permanent job in MSEB nor preference in recruitment and lastly in clause (10)
it was stated that if they agreed to the aforesaid terms and conditions, they
should report to the Deputy Executive Engineer, District Vehicle Service Center
on or before 15-2-1988. The preface to the said terms and conditions
stipulated, the period for which the complainants were appointed namely that
they were appointed for a period of 6 months from the date of the order, the
said terms and conditions assume importance in the context of the challenge
raised in the above Letters Patent Appeal.
12 Before we deal with the said challenge, it would be necessary to
refer to the judgment of the Apex Court in MSRTC & Anr. Vs. Castetribe Rajya
Karmachari Sanghatna (supra). In the said case the issue which had arisen
before the Apex Court was whether the provisions of the MRTU & PULP Act
1971 have been denuded of the statutory status on account of the Constitution
Bench Judgment of the Apex Court in Umadevi's case. The Apex Court
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answered the said issue in the negative. The Apex Court held that in the
context of the purpose and object of the MRTU & PULP Act which was to
provide for prevention of certain unfair labour practice listed in Schedule II, III
and IV of the said Act. The Industrial and Labour Courts were empowered to
decide whether the person named in the Complaint has engaged in or is
engaging in unfair labour practice and if the unfair labour practice is proved,
then to declare that such unfair labour practice has been committed by the said
person and directing him to cease and desist from such unfair labour practice
and take affirmative action. The Apex Court held that power given to the
Industrial and the Labour Courts under Section 30 of the said Act is wide and
the affirmative action mentioned therein is inclusive and not exhaustive. The
Apex Court held that employing badlis, casuals or temporaries and to continue
them as such for years together with the object of depriving them of the status
and privileges of permanent employees is an unfair labour practice on the part
of the employer under item (6) of the Schedule (IV). Once such unfair labour
practice is established in the complaint, the Industrial and Labour Courts are
empowered to issue preventive as well as positive direction to an erring
employer. The Apex Court held that the provisions of the MRTU and PULP Act
and the powers of Industrial and Labour Courts provided therein were not at
all under consideration before the Apex Court in Umadevi's case and what was
for consideration before the Apex Court was the exercise of the powers by High
Courts under Article 226 and the Apex Court under Article 32 in the matter of
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public employment. The Apex Court held that Umadevi's case is an
authoritative pronouncement for the proposition that the Apex Court under
Article 32 and the High Courts under Article 226 shall not issue directions for
absorption, regularisation or permanent continuance of temporary contractual,
casual, daily wage or ad-hoc employees. Paragraph which is material of the
said judgment is paragraph 26 which for the sake of ready reference is
reproduced hereinunder:
26. The question that arises for consideration is -
have the provisions of MRTU & PULP Act denuded
of the statutory status by the Constitution Bench
decision in Umadevi (supra). In our judgment, it
is not. The purpose and object of MRTU & PULP
Act, inter alia, is to define and provide for
prevention of certain unfair labour practices as
listed in Schedule II, III and IV MRTU & PULP Act
empowers the Industrial and Labour Courts to
decide that the person named in the complaint
has engaged in or is engaged in unfair labour
practice and if the unfair labour practice is
proved, to declare that an unfair labour practice
has been engaged in or is being engaged in by
that person and direct such person to cease and
desist from such unfair labour practice and take
such affirmative action (including payment of
reasonable compensation to the employee or
employees affected by the unfair labour practice,
or reinstatement of the employee or employees
with or without back wages, or the payment of
reasonable compensation), as may in the opinion
of the Court be necessary to effectuate policy of
the Act. The power given to the Industrial and
Labour Courts under Section 30 is very wide and
the affirmative action mentioned therein is
inclusive and not exhaustive. Employing badlis,
casuals or temporaries and to continue them as
such for years, with the object of depriving them
of the status and privileges of permanent
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employees is an unfair labour practice on the part
of the employer under item 6 of Schedule IV. Once
such unfair labour practice on the part of the
employer is established in the complaint, the
Industrial and Labour Courts are empowered to
issue preventive as well as positive direction to an
erring employer. The provisions of MRTU & PULP
Act and the powers of Industrial and Labour
Courts provided therein were not at all under
consideration in the case of Umadevi. As a matter
of fact, the issue like the present one pertaining to
unfair labour practice was not at all referred,
considered or decided in Umadevi. Unfair labour
practice on the part of the employer in engaging
employees as badlies, casuals or temporaries and
to continue them as such for years with the object
of depriving them of the status and privileges of
permanent employees as provided in item 6 of
Schedule IV and the power of Industrial and
Labour Courts under Section 30 of the Act did not
fall for adjudication or consideration before the
Constitution Bench. It is true that the case of
Dharwad District PWD Literate Daily Wage
Employees Assn. 1990 I CLR 534 SC 396 arising
out of industrial adjudication has been considered
in Umadevi and that decision has been held to be
not laying down the correct law but a careful and
complete reading of decision in Umadevi leaves
no manner of doubt that what this Court was
concerned in Umadevi was the exercise of power
by the High Courts under Article 226 and this
Court under Article 32 of the Constitution of India
in the matters of public employment where the
employees have been engaged as contractual,
temporary or casual workers not based on proper
selection as recognized by the rules or procedure
and yet orders of their regularization and
conferring them status of permanency have been
passed. Umadevi is an authoritative
pronouncement for the proposition that Supreme
Court (Article 32) and High Courts (Article 226)
should not issue directions of absorption,
regularization or permanent continuance of
temporary, contractual, casual, daily wage or ad-
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hoc employees unless the recruitment itself was
made regularly in terms of constitutional scheme.
Umadevi does not denude the Industrial and
Labour Courts of their statutory power under
Section 30 read with Section 32 of MRTU & PULP
Act to order permanency of the workers who have
been victim of unfair labour practice on the part
of the employer under item 6 of Schedule IV
where the posts on which they have been working
exists. Umadevi cannot be held to have
overridden the powers of Industrial and Labour
Courts in passing appropriate order under Section
30 of MRTU & PULP Act, once unfair labour
practice on the part of the employer under item 6
of Schedule IV is established.
13 Hence in the light of the judgment of the Apex Court in MSRTC &
Anr. Vs. Castetribe Rajya Karmachari Sanghatna (supra) the Industrial Court in
the instant case was entitled to consider whether the Respondent No.1 has
committed an unfair labour practice by not making the complainants
permanent after they had rendered 240 days of continuous service in a
calendar year. It is in the aforesaid background that the facts of the instant
case would have to be considered.
14 As indicated above, the complainants were appointed by identical
appointment letters on 9-2-1988. The said appointment letters as we have
already seen make it clear that the complainants were appointed on rate
contract basis for a period of 6 months from the date of the order. They were
appointed on a consolidated salary of Rs.400/- per month. It was made clear
to them that they would not be entitled to claim any kind of permanent job in
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MSEB nor preference in recruitment. They were asked to report to the Deputy
Executive Engineer, District Vehicle Service Center if they were agreeable to
the aforesaid terms and conditions. Implicit in the complainants reporting to
the Deputy Executive Engineer is the fact that the complainants had accepted
the aforesaid terms and conditions. Whether the complainants would be
entitled to question their terms of appointment after accepting the same is
questionable (see State of Maharashtra & Ors Vs. Anita & Anr (Supra)). It
would have to be borne in mind that the MSEDCL is a statutory authority
established under the Electricity Act. The MSEDCL has to follow a procedure
whilst carrying out the recruitment to any permanent post. However, there
can be no dispute about the fact that there is a power vested in the MSEDCL to
make an appointments on temporary basis which is need based. In the instant
case as indicated above the complainants were appointed on a rate contract
basis on a consolidated salary as at the relevant time there was a need for
watchmen in the District Vehicle Service Center, Solapur. The Learned
Member of the Industrial Court as can be seen from a reading of the order
passed by him has laid emphasis on the fact that the complainants had filled
the application forms for employment and not engaging them on contract
basis. The Learned Member of the Industrial Court has further held that the
complainants were employed for years with an object to deprive them the
status and privileges of permanent employees. The Industrial Court observed
in its order that watchman was not covered by the regulations provided for
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regular employment of technical staff. The Industrial Court has held adversely
against the Respondent No.1 on the ground that neither the prescribed
Standing Orders nor the Service Rule was placed on record nor the
Respondent No.1 has persuaded the Industrial Court as regards the non
applicability of the Model Standing Orders. The Industrial Court therefore
held that the complainants having put in 240 days uninterrupted service were
entitled to be made permanent in terms of Section 4(c) of the Industrial
Employment Standing Orders Act.
15 In so far as the judgment of the Learned Single Judge of this Court
is concerned, the Learned Single Judge in the light of the clear terms of
appointment as referred above held that the complainants were not entitled
for the reliefs granted by the impugned order passed by the Industrial Court.
The Learned Single Judge observed that merely because ad-interim reliefs
were granted to the complainants on 4-8-1989 by the Industrial Court before
the expiry of the contractual period, the said fact would not be a sufficient
reason for continuance of the complainants in the services of the Respondent
No.1 as the case of the complainants falls within the ambit of the term
"litigious employment". The Learned Single Judge observed that the
complainants were continued on the post because of interim orders passed by
the Industrial Court and not in terms of the appointment letters / orders
passed by the Respondent No.1. The Learned Single Judge placed reliance on
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the Judgment of the Apex Court which is referred to in paragraph 5 of the
impugned order as also the judgment of this court in the matter of State of
Maharashtra Vs. Pandurang Sitaram Jadhav. However, the over arching fact
according to the Learned Single Judge was that in view of the clear terms of
appointment, no right was created in favour of the complainants to claim
permanency or to continue on the post of watchman after the expiry of the
contractual period.
16 The facts as unfolded therefore disclose that the complainants
were appointed on contract basis on a fixed salary with a condition that they
would not be entitled to claim permanency. The complainants accepted the
terms and conditions of the appointment and have worked with the
Respondent No.1 from 9-2-1988 till 3-1-1990 and that their appointment has
come to an end by efflux of time. The complainants therefore could not have
called in question their appointment and claim permanency on the basis of the
standing orders on the ground that they have completed 240 days service in a
calendar year. In our view, the Industrial Court has totally misdirected itself by
relying upon the standing orders to confer the benefit of permanency on the
complainants by setting aside their termination orders and granting the
complainants the relief of permanency. In the said process the Industrial Court
had unnecessarily placed reliance on the applications of the complainants
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when what was required to be seen was the terms and conditions of their
appointment. The Industrial Court had also erred in observing that the
complainants had continued for years together when in fact the continuance of
the complainants was on account of the interim orders passed by the Industrial
Court. The instant case is not a case where the complainants had worked for
years together without being given the benefits to which permanent employees
are entitled to. The instant case is a case where the period for which the
complainants were appointed had come to an end on 3-1-1990 and their
services stood terminated on the said day. In our view, the Learned Member of
the Industrial Court has misdirected himself by placing reliance on the
applications made by the complainants when the determinative factor had to
be the terms of appointment of the complainants and their acceptance by the
complainants. The case put up by the Respondent No.1 that it had provided
the complainants employment as watchman so as to enable them to get over
their financial stringency as they were ex-servicemen appears to be a plausible
defence which the Respondent No.1 is taken. There can be no dispute about
the fact that the complainants have not been appointed by following any
procedure which the Respondent No.1 is required to follow. It is also the case
of the Respondent No.1 that the complainants were engaged for the District
Vehicle Service Center, Solapur and when the need came to an end, the
services of the complainants came to an end by efflux of time. It is also the
case of the Respondent No.1 that at present there are no District Vehicle
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Service Centers. In our view, the facts of the instant case are such that they
militate against the case of the complainants seeking reliefs in the Complaints
filed by them. The continuance of the complainants was only on account of
the interim orders passed by the Industrial Court. The Learned Single Judge
was therefore right in holding that the continuance of the complainants was
on account of "litigious employment". If the course of action as directed by
the Industrial Court is to be followed, then the same would amount to foisting
employees on the Respondent No.1 when it does not require them and would
also result in giving a go by to the regular recruitment procedure which the
Respondent No.1 as a statutory body is otherwise required to follow.
17 In our view therefore, the Learned Single Judge was right in
allowing the above Writ Petition for the reasons mentioned in the impugned
Judgment and Order dated 22-6-2010. We are informed that two of the
complainants have expired and therefore their heirs are brought on record and
it is only one complainant who is alive. However, for the reasons aforestated
no relief can be granted to them in the above Letters Patent Appeal. Hence no
interference is called for with the impugned judgment and order passed by the
Learned Single Judge. In that view of the matter, the Appeal would have to
be dismissed and is accordingly dismissed with parties to bear their respective
costs.
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18 In view of the dismissal of the above Letters Patent Appeal, the
Civil Application No.152 of 2011 does not survive and to accordingly stand
disposed of as such.
[SARANG V KOTWAL, J] [R.M.SAVANT, J]
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