The Joint Director Of Health ... vs Shri. Rau Mohan Naik
2018 Latest Caselaw 190 Bom

                                                                                              wp-12701-2016


rrpillai

                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           CIVIL APPELLATE JURISDICTION
                                       WRIT PETITION NO.12701 OF 2016


           The State of Maharashtra & Ors.                                     ... Petitioners
                    vs.
           Shri Rau Mohan Naik                                                 ... Respondent
                                                       ..........
           Mr. Sachin Kankal, A.G.P. for the Petitioner.
           Mr. Vikram Vyankatesh Pai for Respondent no. 1.
                                                        ..........

                                              CORAM : A.K. MENON, J.

                                              RESERVED ON          : 20 th DECEMBER, 2017
                                              PRONOUNCED ON :         9 th JANUARY, 2018
           P. C.

1. By this Writ Petition the petitioner, State of Maharashtra seeks to challenge

the judgment and order dated 28 th September, 2015 of the Industrial Court,

Kolhapur by which the Court directed the respondent to cease and desist from

engaging in unfair labour practices and in the meanwhile directed the

complainant- original respondent to be granted status and privileges of permanent

employee along with other consequential benefits.

2. A few facts may be narrated before dealing with the substance. The

respondent was at all material times employed as a Field Worker vide order dated

27th December, 1999. The appointment was on temporary basis. It is the

petitioners contention that the appointment was a seasonal one requiring the

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respondent to undertake spraying work in the field areas. Essentially the task was

to engage in prevention of Malaria and Filaria in the Office of the Health Service

department.

3. According to the respondent he is working with the petitioner since

27th December, 1999 continuously for a period of about 16 years. He had a clean

and unblemished record. There were no allegations of misconduct during the

period of his continuous employment. Often he was given the job of Laboratory

Technician since he had the necessary qualification. According to the respondent

there was 15 sanctioned posts of Laboratory Technicians out of which 9 posts were

vacant and the petitioner was not taken over to fill up these posts.

4. The respondent contended that he had worked for more than 240 days every

year during his tenure, but had not been appointed as a permanent employee. He

had been given notional breaks and contended that the petitioner was engaged in

unfair labour practices under the MRTP & PULP Act, 1971. It is the case of the

respondent that the petitioner extracted work of Laboratory Technician on lower

wages by keeping respondent engaged as field worker. According to him there was

no recognised union working. He was not being paid wages as a permanent

employee. The petitioner had maintained seniority list and in the said list of Field

Workers, the name of the complainant/respondent appeared at Sr. No. 18.

5. The petitioner had apparently prepared a Seniority list of Laboratory

Technicians as well in the year 2002 in which respondent's name appeared at Sr.

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No. 3. Although the respondent should have been absorbed on vacant post of

Laboratory Technician by seniority, this post has been kept vacant deliberately to

retain respondent as temporary employee and to avoid granting appointment on

permanent basis. The petitioner denied this allegation and contended that his

appointment was purely for a temporary period i.e. 29 days. It was contended that

the respondent was a graduate in Chemistry and they were not providing him with

the post of Laboratory Technician. It was denied that the provisions of Industrial

Disputes Act,1947 and Industrial Employment (Standing Orders) Act and/ or orders

of MRTU & PULP Act, 1971 were applicable to the respondent department or its

office. On this basis the parties went to Court.

6. The Industrial Court initially found that the complaint was false despite

opposition of the petitioner and the complainant was held to prove that petitioner

had engaged in unfair labour practices. Accordingly, the petitioner was directed to

absorb the respondent as Laboratory Technician on a regular and permanent basis.

The State filed a Writ Petition No. 1853 / 2013 in this Court. During the Course of

hearing of the Writ Petition it had dawned on the respondent that claiming the

post of Laboratory Technician may have legal difficulties given the circumstances

and therefore both parties agreed that the order of the Industrial Court dated 27 th

June, 2012 be set aside with consent and accordingly the Writ Petition was disposed

of remanding the matter to the Industrial Court.

7. Upon remand the complaint came to be amended and written Statement

came to be amended was filed. The matter was thereafter argued. Evidence was led.

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Matter came to be heard once again and by judgment and order dated

28th September, 2015 the Industrial Court upheld the finding that respondent was

entitled to be employed on permanent basis since he had been kept as a temporary

employee for 16 years. That the nature of work as Field Worker is of permanent

nature and 3 posts out of 7 Field workers were vacant. In the circumstances the

petitioner was ordered to grant status of permanent employee by the petitioner with

effect from 17th October, 2007 as a field worker.

8. The impugned order records that on behalf of the petitioner herein no

documents were produced nor has any witness been deposed to demonstrate that

the respondent had not worked for more than 240 days of continuous service as a

field worker. Perusal of the record reveals that written statement filed on behalf of

the petitioner in the Industrial Court, Kolhapur in paragraph 6 a specific statement

is made to the following effect :

"The Respondent have produced the chart along with

written statement which clearly shows that, the complainant has

never worked with Respondent Department continuously and

also he never completed 240 days continuous service in a year,

in such situation the complainant is not at all entitled to claim

permanency as well as benefit of permanent employee".

Thus according to the petitioner it had produced a chart along with written

statement which shows that the respondent did not ever complete 240 days in

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continuous service. This is a principle plank on which the defence rested. Oral

evidence is seen to have been led on behalf of the petitioner and respondent. In the

first round the judgment dated 27th June, 2012 copy of which is annexed at Exhibit

C to the petition the petitioners contention that the respondent claim permanency

since he has never completed 240 days of continuous service, has found to be

fallacious in as much as in paragraph 10 of his evidence the finding of fact is to the

following effect :

"From record it appears that complainant is working with the respondent since joining till this date and have worked for more than 240 days continuously in every year during his service tenure."

Thus in the Written Statement it is contended that the chart shows that the

respondent had not completed 240 days but finding was to the contrary. No doubt

the order of directing the petitioner to absorb the respondent as Laboratory

Technician dated 27th June, 2012 has been set aside but this finding to the effect

that he had completed more than 240 days is clearly upheld in the impugned

judgment as well.

9. In paragraph 2 of the impugned judgment the Industrial Court upon remand

has observed that in the earlier round the complainant had been found to have been

continuously working for more than 240 days in every year and even after remand

the contention of the petitioner that the respondent did not complete 240 days of

continuous service because the post of field worker is seasonal in nature has not

been established.

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10. In paragraph 7 of the impugned order the Industrial Court finds that in the

cross examination the respondent had refuted the petitioners contention that he had

not put in 240 days of continuous service and although the respondent had

admitted that the work of field worker is seasonal, the petitioner witnesses had

clearly admitted that work is of permanent nature and 3 posts out of 7 were vacant

and yet the petitioner did not give the status of permanent employee to the

respondent for more than 16 years. It is on this basis that the complaint was

allowed and respondent was directed to be appointed to work as Field Worker.

11. In the facts and circumstances of the case and in support of his submissions

Mr. Kankal relied upon decision of the Division Bench of this Court in Municipal

Council, Tirora and Anr. vs. Tulsidas Baliram Bindhade (2016) 6 Mh.L.J.

867 in which it was held held that mere completion of of 240 days of service by

itself would not be carte blanche to employee to claim permanency in service. The

Division Bench quoted an earlier judgment in Pune Municipal Corporation vs.

Dhananjay Prabhakar Gokhale 2006 (4) Mh.L.J. 66 in paragraph 8 to the

effect that merely because employee continues to render 240 days in a year by itself

will not be sufficient to claim permanency in the post unless he is able to establish

permanent posts duly approved by the Competent Authority is vacant and the

claimant is duly liable for being appointed to such posts. Mr. Kankal also relied

upon the decision in the case of Secretary, State of Karnataka and Ors. vs.

Umadevi AIR 2006 SC 1806.

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12. On the other hand Mr. Pai relied upon the observation of the Supreme

Court in Maharashtra State Road Transport Corporation and Anr. vs.

Casteribe Rajya Parivahan Karmachari Sanghatana (2009) 8 SCC 556 in

which he relied upon the observation in paragraph 36 to the effect and submitted

that Supreme Court had frowned upon regularisation of the temporary workman

in regular posts. Umadevi (supra) does not denude the Industrial and Labour

Courts of their Statutory power under Section 30 read with Section 32 of the MRTU

and PULP Act to order permanency of the workers who have been victims of unfair

labour practice on the part of the employer where the posts on which they have

been working exist.

13. Having heard the learned counsel for the parties, I am of the view that no

interference is called for in the present set of facts. The admitted facts are that the

respondent no. 1 was appointed by the petitioner from 27 th December, 1999 as field

worker and that he was qualified having completed B.Sc (Chemistry). These are

evident from the written statement. As against this the evidence reveals that

original appointment of the respondent was as Field Worker on temporary basis and

he was paid wages on man days. He had not been appointed in the post of

Laboratory Technician but he has accepted that he had worked for more than 240

days. He had denied the suggestion that he had not worked as Laboratory

Technician and that he had not claimed any facility that he must be appointed as

Laboratory Technician.

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14. The finding of the Courts below are to the effect that respondent had

completed more than 240 days in a year from 1999-2006 thus destroying the main

plank defence that he had not worked for 240 days continuously. In the contrary,

the finding is to the fact that he had worked for 824 days continuously and the

petitioner had provided work to the complainant as a Field Worker, thereafter as

Superior Field worker. However, the finding was to the effect that complainant had

worked from 27th December, 1999 till date of the first judgment 26 th June, 2012.

The Seniority list for the year 2001-02 for Field Workers shows that the

complainant was at Sr. No. 18 as in the list of Senior Field Workers the complainant

is placed at Sr. No. 3. The record further indicated that though he was appointed as

Field Worker the petitioner has engaged him for the work of Laboratory technician.

15. The petitioner had not disputed that the complainant possessed the requisite

qualification for the post of Laboratory Technician. Prior to the remand there were

39 post of Laboratory Technician. In fact paragraph 10 of the first order recalls

that the petitioner had admitted that respondent no. 1 possesses the requisite

qualification for Laboratory Technician. However this is not relevant today since

that order has been set aside by consent. Thus in the overall scheme of things the

respondent had worked for more than 240 days continuously is eligible for the

posts.

16. The impugned order records that there were 3 posts out of 7 vacant for Field

Worker and although the respondent had stated in his cross examination that the

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work of Field Worker was seasonal the petitioner had admitted that the work of

Field Worker was a post of permanent nature and 3 posts out of 7 were vacant. On

these circumstances that the order came to be passed observed that respondent no. 1

was engaged for more than 16 years as temporary employee on the basis of lower

wage and avoiding granting permanency to him. The conclusion of the impugned

order cannot be faulted. Even otherwise Casterbibe Rajya Parivahan Karmachari

Sanghatana (supra) holds that Umadevi (supra) does not denude the Industrial and

and Labour Courts of their statutory power under Section 30 read with Section 32

of the MRTP and PULP Act. That Umadevi (supra) cannot be held to have

overridden the powers of the Industrial and Labour Courts in passing appropriate

order under Section 30 of the MRTU and PULP Act, once unfair labour practice

have been established.

17. In the present case unfair labour practice has been established. As fact

finding Authority , the lower Courts have held so. I find no reason to interfere with

this finding. It is also worthy of mention that although Tulsidas Baliram Bindhade

(supra) in which the learned AGP had relied upon the observation of the Supreme

Court in which it had quoted observation of the Supreme Court merely because an

employee rendered service for 240 days will not entitle him to claim permanency in

the posts. The said observation comes with an implied caveat that observation will

not be valid in case there is permanent post duly approved and vacant and that the

applicant was eligible for appointment to such posts. This is not a case where any

such caveat has to be resorted to. On the other hand the respondent complies with

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all these requirements of having completed 240 days, being qualified and also there

being a vacancy which is an admitted position. Thus in my view no interference is

called for in the Writ Jurisdiction of this Court. Accordingly, I pass the following

order :

          (a)      Writ Petition is dismissed.

          (b)      Petitioner will pay costs of Rs.10,000/- to the respondents.



                                                          (A.K. MENON, J.)




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