Sindhi Hindi Vidya Samiti, Nagpur ... vs Dilip S/O Jagobaji Gajbhiye And ...
2021 Latest Caselaw 192 Bom

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


              WRIT PETITION NO. 2343 OF       2019


PETITIONER :-       1. Sindhi Hindi Vidya Samiti, 6, Vijay Nagar,
(Org. respondents      Chhaoni, Nagpur through its Chairman.
No.1 to 7)
                    2. Baba Nanak Sindhi Hindi Pathshala,
                       Garoba Maidan, Nagpur, through its
                       Headmaster.

                    3. Sindhi Hindi English Primary School,
                       Pachpaoli,  Nagpur    through    its
                       Headmaster.

                    4. Sindhi Hindi Primary Boys School,
                       Pachpaoli,  Nagpur   through  its
                       Headmaster.

                    5. Sindhi Hindi Girls        High School,
                       Pachpaoli,  Nagpur        through  its
                       Headmaster.

                    6. Kaka Trilokchand Sindhu English High
                       School, Pachpaoli, Nagpur, through its
                       Headmaster.

                    7. Sindhi Hindi Junior College, Pachpaoli,
                       Nagpur through its Principal.

                         ...VERSUS...

RESPONDENTS :-      1. Shri Dilip Jagobaji Gajabe, aged about 47
(Org. Complainant      years, Occup. Service, R/o Chitnispura,
No.1 to 8)             Near Police Chouki, Nagpur.



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                              2. Shri Kachru @ Sheshrao S/o Gonvinda
                                 Khadse, Aged about 57 years, Occ.
                                 Service, R/o Behind Nirala High School,
                                 Mangpura, Nagpur.

                              3. Smt. Bhagirathi Rambhau Durgude, aged
                                 Major Occ. Service, R/o C/o Bhagwan
                                 Ghodmare, Balabhaupeth, Nagpur.

                              4. Smt. Manorama w/o Kawduji Hande,
                                 Aged about 57 years, Occ. Service, R/o
                                 C/o Dineshpuri Thakkargram, Pachpaoli,
                                 Nagpur.

                              5. Smt. Vanmala Dipak Fakarde (Deceased)

                              6. Shri Pramod Bhikulal Godiya, Aged
                                 about 42 years, Occ. Service, R/o Near
                                 House of Dipak Wadibhasme, Ganjipeth,
                                 Nagpur.

                              7. Shri Shamu Rambhau Bagde (Deceased)
                                 through his LRs, 8-a Jwala Baban
                                 Jambhulkar, Aged about: 58 years, Occ.
                                 Housewife, R/o Opp. Sindhi Hindi High
                                 School, VHB Colony, Qtr. No.1/4,
                                 Balabhaupeth, Nagpur.

                              8. Smt. Usha W/o Ranjit Pakhide, Aged
                                 about 48 years, Occ. Housewife, R/o Pili
                                 Nadi, Near House of Rajendra Shahu,
                                 Kamptee Road, Nagpur.

(Org.Resp.No.8)               9. Education Officer (Secondary),                       Zilla
                                 Parishad, Civil Lines, Nagpur.

-------------------------------------------------------------------------------------------
                Mr. P. D. Meghe, counsel for the petitioners.
   Mr. V. K. Paliwal, counsel for respondent Nos.1 to 4 and 6 to 8.
          Mr. A.R.Chutake, A.G.P. counsel for respondent No.9.
 -------------------------------------------------------------------------------------------



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CORAM : MANISH PITALE, J.

DATE OF RESERVING THE JUDGMENT:                 03.12.2020.
DATE OF PRONOUNCING THE JUDGMENT: 06.01.2021.



JUDGMENT

Heard.

2. Rule. Rule made returnable forthwith. The writ petition is

heard finally with the consent of the learned counsel for the rival

parties.

3. A management and its schools are petitioners before this

Court challenging the judgment and order dated 21/08/2018

passed by the Member, Industrial Court, Maharashtra, Nagpur

Bench, whereby a joint complaint filed by the respondents was

partly allowed. The original complainant Nos.1 to 4 and 7 to 9

were granted relief of being accorded status and privileges of

permanent employees of the petitioners from the date of filing of

the complaint i.e. 14/02/2005 and they were further granted

monthly wages/salary as per the pay scale prevailing during the

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relevant time from 14/02/2005, with a further direction to the

petitioners to pay arrears of wages and other monetary benefits to

the said original complainants from 14/02/2005. It was also

directed that the aforesaid complainants would be given the

benefit of continuity of service along with other monetary and

non-monetary benefits from their respective dates of employment,

apart from awarding costs of Rs.3,000/- per complainant.

4. The respondents (original complainants) filed the

complaint under section 28 read with Items 5, 6 and 9 to Schedule

IV of the Maharashtra Recognition of Trade Unions and Prevention

of Unfair Labour Practices Act, 1971 (In short "Act of 1971"). The

grievance of the respondents was that they had been appointed on

various dates from 1985 onwards and that they had been

continued on temporary basis, although work of permanent

nature was taken from them by the petitioners. The respondents

claimed that the petitioners had committed unfair labour practices

under Item 5 (pertaining to favourtism or partiality between set of

workers), Item 6 (Employing persons as badlis, casuals or

temporaries and continuing them as such for years with the object

of depriving them of the status and privileges of permanent

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employees) and Item 9 (pertaining to failure to implement award,

settlement or agreement) of Schedule IV of the Act of 1971. It

was the case of the respondents that while work was taken

continuously from them for number of years, they were deprived

of the status and privileges of permanent employees. The

respondents prayed for a direction to the petitioners to grant them

status of permanency when their juniors were made permanent

and to give all consequential benefits.

5. The petitioners filed their reply to the said complaint and

stated that the respondents were employed for some periods due

to exigency of work and that too on part time basis and therefore,

the respondents could not claim right of permanency. It was

submitted that there was no material to indicate any unfair labour

practice on the part of the petitioners. In fact, it was also claimed

that the complaint itself was not maintainable, for the reason that

the Act of 1971 was not applicable as petitioner No.1 was a society

running schools and other institutions, which could not be termed

to be an industry. On 24/09/2008, the Industrial Court allowed

the complaint of the respondents and reliefs as claimed by the

respondents were granted to them.

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6. Aggrieved by the same, the petitioners filed Writ Petition

No.5263 of 2008 before this Court. By judgment and order dated

03/02/2015, the said writ petition was allowed. Although, this

Court held in favour of the respondents on the question as to

whether the petitioners could be termed to be an industry and on

the aspect of employer and employee relationship between the

parties, it was held that the Industrial Court had erred in failing to

address the questions as to whether posts were required to be

sanctioned and whether the facts and circumstances of the present

case indicated that the Court was concerned with public

employment. It was also held that the Industrial Court failed to

address the questions as to whether Model Standing Orders were

applicable and whether there was enough material on record to

show that the respondents had continuously worked for a long

period of time. This Court allowed the writ petition, set aside the

judgment and order of the Industrial Court and remitted the

matter back for fresh consideration to address the aforesaid

questions. The parties were granted liberty to amend their

pleadings and to lead evidence on the said questions.

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7. Consequently, the respondents amended their complaint

and in response the petitioners also amended their reply. The

petitioners by way of amendment claimed that some of the schools

run by petitioner No.1 were receiving aid from the Government

and therefore, it was a case of public employment. It was further

submitted that in any case, appointments in the schools were

governed by the provisions of the Maharashtra Employees of

Private Schools (Conditions of Service) Regulation Act, 1977 (In

short "MEPS Act") and therefore, since the appointment of the

respondents was not in terms of procedure prescribed under the

MEPS Act, their appointments were backdoor entries, not made

on any sanctioned posts and therefore, there was no question of

grant of regularization.

8. The respondents led evidence in support of their

pleadings. They supported the claim made in the complaint that

they had worked for number of years from the year 1985 till filing

of the complaint and that they had been wrongly denied benefit

and status of permanent employees. The witnesses of the

petitioners were former and current employees of the schools,

who deposed in support of the claim of the petitioners that the

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respondents had been appointed occasionally, only for part time

work. In cross-examination, the witnesses of the petitioners did

concede to the existence of certain documents relied upon by the

respondents. It was also conceded in cross-examination by some

of the witnesses of the petitioners that the respondents (original

complainants) who were granted relief by the Industrial Court in

the impugned judgment and order, were indeed working with the

petitioners.

9. It is significant that the respondents placed on record

copies of certain documents showing payments made to them by

the petitioners at different points in time. It was submitted that

the original documents were with the petitioners and that

therefore, if entire documents were brought before the Court, the

claims of the respondents would be supported regarding

continuous employment over a long period of time. It is

significant that the respondents had placed on record a list of

documents at Exhibit-26, which were photocopies of documents

like payment of provident fund in the case of some of the

respondents, communications exchanged between the petitioner

School Authorities and Education Department, mentioning

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payments made to some of the respondents and other such

documents. The respondents had moved an application at

Exhibit-74 for a direction to the petitioners to produce original

documents mentioned in the list at Exhibit-26. The said

application was marked as Exhibit-74 and by order dated

04/02/2016, the Industrial Court gave a direction to petitioner

No.1 to issue certified copies of documents shown in the list at

Exhibit-26 and also extract of attendance register from the months

of August, 1986 till 14/02/2005 i.e. till the date of filing of the

complaint. The respondents were also permitted to approach

petitioner No.1 with an application for certified copies of extract

of muster register from the month of August, 1986 till

14/02/2005. It is an admitted position that the petitioners did

not abide by the said directions given by the Industrial Court.

10. The respondents had also moved an application for grant

of permission to adduce secondary evidence (at Exhibit-80) to

prove the photocopies of documents already placed on record. By

order dated 04/07/2016, the Industrial Court allowed the

application and granted permission to the respondents to adduce

secondary evidence in respect of documents described in Exhibit-

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78. Therefore, it becomes clear that the respondents produced

whatever documentary evidence they had, in support of their

claims, apart from their oral evidence. It is also an admitted

position that the petitioners failed to abide by directions given by

the Industrial Court to produce muster rolls, attendance registers

and other such documents, which could have assisted the

Industrial Court in verifying the claims of continuous full-time

service made on behalf of the respondents.

11. It is in the backdrop of such oral and documentary

evidence, as also the pleadings and other material on record that

the Industrial Court passed the impugned judgment and order

dated 21/08/2018, partly allowing the complaint of the

respondents. Relief in the aforesaid nature was granted to

respondent Nos.1 to 4 and 6 to 8 herein (original complainant

Nos.1 to 4 and 7 to 9). The Industrial Court took into

consideration the oral and documentary evidence on record. The

documentary evidence placed on record by the respondents was

referred to and appreciated by the Industrial Court and an adverse

inference was drawn against the petitioners on account of their

failure to produce documents like muster rolls, attendance

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registers and other such documents. The Industrial Court found

that when specific directions had been issued to the petitioners to

produce such documents, failure on their part must lead to an

adverse inference, as a consequence of which all the claims of the

respondents regarding continuous full-time service for number of

years deserved to be accepted. The Industrial Court found that

the pleadings and evidence led on behalf of the petitioners were

vague. It was also found that the petitioners could not be allowed

to take a somersault after having taken continuous work of full-

time nature from the respondents for number of years. It was

held that the petitioners could not be allowed to turn around and

claim that since the initial appointments of the respondents were

illegal, not in consonance with the MEPS Act, and backdoor

entries, they did not deserve any relief. The Industrial Court

rejected the contentions raised on behalf of the petitioners on the

basis of provisions of the MEPS Act and the Rules framed

thereunder. It was held that the petitioners had indulged in unfair

labour practice under Items 5, 6 and 9 of Schedule IV of the Act of

1971. On this basis, the complaint filed by the respondents stood

allowed in the aforesaid terms.

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12. Mr. P. D. Meghe, learned counsel appearing for the

petitioners submitted that the findings rendered by the Industrial

Court in the impugned judgment and order were unsustainable

for various reasons. It was submitted that the Industrial Court

itself had held that the Model Standing Orders were not applicable

to the respondents and therefore, there was no basis for granting

relief of regularization or permanency on the basis that the

respondents had worked for number of years with the petitioners.

It was submitted that material was available on record to indicate

that there were no sanctioned posts on which the respondents

could be appointed and further that the respondents had

miserably failed to show that their appointments were made in a

regular manner, in consonance with the procedure prescribed

under the MEPS Act and the Rules framed thereunder. It was

further submitted that the petitioners had specifically pleaded and

placed material on record to indicate that the respondents at best

had worked on part time basis and therefore, it could not be said

that the petitioners had indulged in any unfair labour practices. It

was further submitted that in the case of original complainant

No.7 i.e. respondent No.6 herein, the Industrial Court itself had

found that there was no documentary evidence to support the

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claim of the said respondent and yet even he was granted relief

along with other respondents. It was submitted that the

applicability of the MEPS Act and the Rules was not appreciated in

the correct perspective by the Industrial Court while passing the

impugned judgment and order.

13. The learned counsel for the petitioners referred to number

of judgments of the Hon'ble Supreme Court and this Court to

contend that the facts of the present case did not justify the relief

granted to the respondents in the impugned judgment and order.

It was submitted that in the absence of availability of any

sanctioned posts and in the face of admitted facts indicating that

entry of the respondents into service was backdoor and hence

illegal, clearly demonstrated that the position of law was

absolutely against the respondents and no relief could have been

granted to them. The learned counsel for the petitioners also

referred to certain documents on record showing that from the

year 2010 onwards there was a complete ban on appointments

imposed by the Government and that this factor was not taken

into consideration by the Industrial Court while passing the

impugned order. On this basis, it was submitted that the

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impugned judgment and order deserved to be set aside.

14. On the other hand, Mr. V. K. Paliwal, learned counsel

appearing for the respondents, submitted that relief granted by

the Industrial Court was fully justified in the facts and

circumstances of the present case. It was submitted that when the

petitioners had deliberately suppressed relevant material, which

would have justified the claims of the respondents, the adverse

inference drawn by the Industrial Court was fully justified. It was

claimed that the respondents were class-IV employees and they

had placed on record whatever documentary evidence they could

gather in support of their claims. In such a situation, when the

petitioners had failed to abide by specific orders of the Industrial

Court passed on Exhibits-74 and 80 for producing muster rolls,

attendance registers and other such documents on record, the

Industrial Court had correctly accepted the contentions on facts

raised on behalf of the respondents. It was submitted that when

such conclusion rendered by the Industrial Court could not be

interfered with, grant of relief to the respondents was a logical

fallout, which did not deserve any interference.

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15. It was submitted that the emphasis placed on MEPS Act and

the Rules on behalf of the petitioners was correctly dealt with by

the Industrial Court and that the petitioners could not be allowed

to now hide behind their own misdeeds of appointing the

respondents allegedly in a procedurally flawed manner and then

taking full time work from them for number of years. It was

submitted that the reliance on Government directions pertaining

to ban on appointments was also misplaced, because the alleged

ban came only in the year 2010, while the respondents were

appointed in the year 1985 onwards and the complaint itself was

filed way back in the year 2005. It was submitted that the

position of law on which the petitioners were placing reliance,

could not be interpreted to do injustice to the respondents and

that in the present case, there was clear violation of their rights,

which justified the directions given in the impugned judgment and

order passed by the Industrial Court. It was submitted that

therefore, the writ petition deserved to be dismissed.

16. It is relevant that when the writ petition was listed for the

first time on 01/04/2019, this Court while issuing notice stayed

the impugned judgment and order, subject to the petitioners not

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removing the respondents from service without following due

procedure of law. It is an admitted position that the respondents

have continued in service of the petitioners during the pendency

of the writ petition.

17. Mr. A. R. Chutake, learned A.G.P., who appeared on behalf

of respondent No.9-Education Officer, submitted that the

documents in the form of Government Resolutions placed on

record correctly indicated the ban imposed on appointments since

the year 2010. It was also submitted that the position regarding

sanctioned posts was correctly placed on record on behalf of the

petitioners and it was submitted that there was no material on

record to indicate that the entry into service of the respondents

was by way of any procedure known to law.

18. In view of the material on record and the contentions

raised on behalf of the rival parties, it becomes clear that the

petitioners in the present case completely failed to support their

stand by placing on record cogent evidence. The witnesses, who

appeared on behalf of the petitioners, merely orally stated that

part time work was taken from the respondents during exigencies

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and in some cases, the respondents were even appointed through

contractors. None of these claims could be supported by the

petitioners with documentary evidence or material. It is also an

admitted position on record that when specific directions were

issued by the Industrial Court while allowing Exhibits-74 and 80,

for producing the record pertaining to muster rolls, attendance

registers and other such documents for the period between

August, 1986 to the date of filing of the complaint i.e.

14/02/2005, the petitioners failed to abide by such directions. As

a consequence, it cannot be said that the Industrial Court

committed any error in drawing an adverse inference against the

petitioners. This was because documentary material and evidence,

which was in possession of the petitioners themselves, in the usual

course of their business and conduct, that could have supported

their claims, was not produced before the Court despite clear

directions of the Court. Therefore, there was no alternative for

the Industrial Court but to draw an adverse inference.

19. If the material produced on record on behalf of the

respondents is considered, it is found that the respondents in their

pleadings and oral evidence clearly stated that they were

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appointed from the year 1985 onwards and that they had worked

continuously, performing full time work. The respondents had

also produced whatever copies of documents were available with

them in support of their claims. It is extremely important to

realize that the respondents are class-IV employees, who were

performing duties of peons and that they had produced whatever

material was available with them, which was relevant, to support

their claims. This included communications exchanged between

the petitioners and the Education Department, indicating

payments made to some of the respondents, documents indicating

provident fund amount paid in respect of some of the

respondents, receipts showing payments of monthly amounts to

some of the respondents and other such documents. In the face of

such oral and documentary material placed on record by the

respondents and the suppression of material on behalf of the

petitioners, the Industrial Court was justified in accepting the

claims of the respondents regarding continuous full- time work

performed by them from the year 1985 onwards till the filing of

the complaint. Therefore, no error can be attributed to the

Industrial Court in that regard.

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20. The other important aspect of the present case is, as to

whether the appointments of the respondents can be said to be in

accordance with the procedure prescribed under the MEPS Act

and the Rules. There can be no denial about the fact that the

MEPS Act and the Rules are applicable to the respondents. In this

regard, there can be no dispute about the fact that the

appointments of the respondents were not in pursuance of the

procedure involving issuance of advertisement, calling for

applications and a selection process being undertaken.

21. In this regard, it was emphasized on behalf of the

petitioners that even the procedure prescribed in Rule 9 of the

MEPS Rules was also not followed when the respondents made

entry into the service. Rule 9(3) of the MEPS Rules specifies that

when appointments are to be made on non-teaching posts, as in

the present case, the candidates eligible for appointment are

required to make an application in writing giving full details

regarding their names, addresses, dates of birth, educational and

professional qualifications and experience, etc. along with true

copies of original certificates. It is undisputed that the respondents

could not place on record any material that such requirement of

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Rule 9(3) of the MEPS Rules was followed in their case. In fact, it

was not even the case of the respondents that they had ever

followed such a procedure.

22. But, in this regard, the Industrial Court held that even if

the said Rule was to be taken into consideration, once the

petitioners had admitted that the respondents were employed

with them, it was for the petitioners to have asked the

respondents to submit such applications and other particulars. The

Industrial Court held that it would be a travesty to hold against

the respondents on the basis of Rule 9(3) of the MEPS Rules

because it would amount to permitting the petitioners to take a 'U'

turn, only to deprive the respondents of their rightful claim. This

approach of the Industrial Court appears to be erroneous for the

reason that the material on record certainly indicated that no

procedure at all was followed while appointing the respondents.

It appears from the scheme of the MEPS Act and the Rules that

even if a school is not enjoying government aid, still the procedure

as prescribed under the MEPS Act and the Rules needs to be

followed while making appointments. Therefore, although the

respondents did succeed in supporting their claim that they were

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working full time as Class-IV employees with the petitioners for a

number of years, it could not be said that their appointments

were made in terms of the procedure prescribed under the

relevant law.

23. At this juncture, it becomes necessary to consider the

various judgments that were relied upon by the learned counsel

appearing for the petitioners. In the case of Maharashtra State

Road Transport Corporation v. Castribe Rajya Parivahan

Karmachari Sanstha, reported in (2009) 8 SCC 556, the Hon'ble

Supreme Court has categorically held that the Industrial Court and

Labour Courts under the provisions of the Act of 1971, have wide

powers to direct the employer to take affirmative action in a case

of unfair labour practice, including the power to order

regularization or permanency. It was held that the decision of the

Constitution Bench of the Hon'ble Supreme Court in the case of

Secretary, State of Karnataka v. Uma Devi, reported in (2006) 4

SCC 1, limited the scope of powers under Articles 32 and 226 of

the Constitution of India to issue directions for regularization in

the matter of public employment. But, it was further clarified that

there was no doubt that creation of posts would not lie within the

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domain of judicial functions and that the status of permanency

cannot be granted by the Court where no posts exist.

24. The said judgment of the Constitution Bench of the

Hon'ble Supreme Court in the case of Secretary, State of Karnataka

v. Uma Devi (supra) and the aforesaid subsequent judgment in the

case of M.S.R.T.C. v. Castribe (supra) were reconciled in the

judgment of the Hon'ble Supreme Court in the case of Harinandan

Prasad v. Employer I/R to Management of Food Corporation of

India, reported in (2014) 7 SCC 190. It was held in the said

judgment that insofar as public employment was concerned,

selection and appointment had to be made through regular

process of advertisement and inviting applications so that

thousands who were waiting for employment were given a fair

opportunity to compete and that persons who had somehow got

into public employment and then started litigating, ought not to

be granted relief on the ground of sympathy.

25. In the case of Sandip Baliram Sandbhor and others v.

Pimpri Chinchwad Municipal Corporation and others, reported in

2016 (3) Mh.L.J. 562, this Court referred to the aforesaid

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judgment of the Hon'ble Supreme Court in the case of Harinandan

Prasad v. Employer I/R to Management of Food Corporation of

India (supra) and held that there could be cases of exploitation of

work force by a public body by keeping such workers temporary

for years with an object of depriving them the status of

permanency. It was held that such an unfair labour practice under

Item 6 of Schedule IV of the Act of 1971 itself negated Article 14

of the Constitution of India and that once such exploitation was

proved, it was within the power of the Industrial Court to take

affirmative action. It was further held that the question as to

whether an order of regularization would advance justice or

defeat it, would depend upon the facts of the case. It was held that

balance will have to be achieved between the rights of citizens for

access to public employment viz-a-viz the need to prevent

exploitation of the work force and that decisions taken by the

Industrial Court should be in furtherance of the doctrine of equity.

26. The learned counsel for the petitioners emphasized on the

judgment of this Court in the case of Priyadarshini Education Trust

v. Rafis (Rafia) Bano and others, reported in 2007 (6) Mh.L.J. 667,

to contend that the procedure of issuance of advertisement and

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inviting of applications for appointment to even non-teaching staff

under the MEPS Act and the Rules was held to be mandatory and

that any appointment made without following such procedure was

held to be a backdoor entry. In the case of Chief Conservator of

Forest v. Ashikque s/o Jabbar Sheikh and others, reported in 2012

(3) Mh.L.J. 478, this Court referred to the aforementioned

judgment of the Hon'ble Supreme Court and held that in the

absence of any pleading or material to show that permanent

sanctioned posts or vacancies were available to grant status and

the privileges of permanency to employees like the complainants,

no such relief could be granted. Such an approach was reiterated

in judgment of this Court in the case of Rashtrasant Tukadoji

Maharaj Nagpur University and another v. Hon'ble Member,

Industrial Court, Maharashtra, Nagpur Bench and others, reported

in 2016 (2) Mh.L.J. 454.

27. Attention of this Court was invited to an order passed by

the Hon'ble Supreme Court in the case of Oil and Natural Gas

Corporation v. Krishan Gopal and others reported in 2020 SCC

OnLine SC 150, wherein the Hon'ble Supreme Court has referred

to an earlier judgment in the case of Oil and Natural Gas

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Corporation Limited v. Petroleum Coal Labour Union and others,

reported in (2015) 6 SCC 494, for reconsideration on the aspect of

the approach to be adopted by the Court while directing

regularization. The relevant portion of the said judgment and

order reads as follows:

"34. The following propositions would emerge upon analyzing the above decisions:

(i) Wide as they are, the powers of the Labour Court and the Industrial Court cannot extend to a direction to order regularisation, where such a direction would in the context of public employment offend the provisions contained in Article 14 of the Constitution;

(ii) The statutory power of the Labour Court or Industrial Court to grant relief to workmen including the status of permanency continues to exist in circumstances where the employer has indulged in an unfair labour practice by not filling up permanent posts even though such posts are available and by continuing to employ workmen as temporary or daily wage employees despite their performing the same work as regular workmen on lower wages;

(iii) The power to create permanent or sanctioned posts lies outside the judicial domain and where no posts are available, a direction to grant regularisation would be impermissible merely on the basis of the number of years of service;

(iv) Where an employer has regularised similarly situated workmen either in a scheme or otherwise, it would be open to workmen who have been deprived of the same benefit at par with the workmen who have been regularised to make a complaint before the Labour or Industrial Court, since the deprivation of the benefit would amount to a violation of Article 14; and

(v) In order to constitute an unfair labour practice under Section 2(ra) read with Item 10 of the Vth Schedule of the ID Act, the employer should be engaging workmen as badlis, temporaries or casuals, and continuing them for years, with the object of depriving them of the benefits payable to permanent workmen. 24 The decision in PCLU needs to be revisited in order to set the position in law which it adopts in conformity with the principles emerging from the earlier line of precedent. More specifically, the areas on which PCLU needs reconsideration are:

(i) The interpretation placed on the provisions of clause 2(ii) of the Certified Standing Orders;

(ii) The meaning and content of an unfair labour practice under Section 2(ra) read with Item 10 of the Vth Schedule of the ID Act; and

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(iii) The limitations, if any, on the power of the Labour and Industrial Courts to order regularisation in the absence of sanctioned posts. The decision in PCLU would, in our view, require reconsideration in view of the above decisions of this Court and for the reasons which we have noted above."

28. The learned counsel for the petitioners also referred to a

recent judgment and order passed by this Court in the case of

Chief Executive Officer, Zilla Parishad Gondia and others v.

Sangita Madavi and others and connected writ petitions passed by

this Court, wherein the relief of regularization granted by the

Industrial Court was set aside. But, the aforesaid judgment is

distinguishable on the ground that in the said case appointments

were specifically made for two years on bonded service and the

relevant Government Resolution did not grant any scope for relief

of regularization in cases of the employees.

29. Yet, the aforementioned judgments relied upon by the

learned counsel appearing for the petitioners, do indicate that

continuous service for number of years cannot be the sole basis for

grant of relief of regularization, as long as there is absence of

availability of sanctioned permanent posts. A few instances sought

to be highlighted by the respondents regarding grant of

employment to some similarly situated persons who were junior

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to them, appears to be refuted by the evidence brought on record,

on behalf of the petitioners. If the evidence of the witnesses, who

appeared for the petitioners, is perused it would show that there

were specific number of sanctioned posts of peons available in the

schools run by petitioner No.1. There is nothing to show that

when such sanctioned posts were filled through procedure known

to law, any of the respondents had applied for the same. It is also

deposed on behalf of the petitioners that whenever sanctioned

vacancies would be available, the respondents could certainly

apply against such vacancies. Therefore, there is absence of

material on record to indicate that there were sanctioned posts of

class-IV category available in the schools run by petitioner No.1

and yet the respondents were kept employed on temporary basis

throughout. This becomes crucial in the light of the aforesaid

position of law regarding the manner in which the prayers for

permanency and regularization need to be considered.

30. In fact, it would be appropriate to enumerate the admitted

facts that appear from the record of the present case. These facts

are as follows:

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(i) The respondents were able to place on record oral and documentary evidence to support their claim that they had been working from 1985 and onwards continuously till filing of the complaint in the year 2005.

(ii) The petitioners failed to produce on record material such as muster rolls, attendance registers, etc. despite specific directions by the Industrial Court, thereby correctly inviting an adverse inference against them.

Consequently, the claims of continuous full-time service rendered by the respondents deserved to be accepted.

(iii) The material on record clearly indicates that no procedure of advertisement, inviting of applications, much less specific procedure prescribed under the MEPS Act and the Rules, was followed when the respondents entered service.

(iv) There is no material on record to show that there were sanctioned posts available with the schools run by petitioner No.1 and yet the respondents were continued on temporary basis throughout.

(v) There is nothing to show that the respondents ever made any effort to apply for appointments in pursuance of issuance of advertisement for sanctioned posts of class-IV category.

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(vi) The Industrial Court gave a finding that the Model Standing Orders do not apply to the respondents herein.

(vii)There is material on record to indicate that the Government imposed a ban on recruitment in the year 2010. This was supported by the learned AGP appearing on behalf of respondent No.9-Education Officer.

(viii)There is nothing to show that any scheme of regularization or process of such nature was undertaken by the petitioners where other similarly situated employees were granted regularization and the respondents were deprived of such relief.

31. In view of the said admitted facts, it becomes difficult to

accept that the respondents were entitled to the relief of grant of

regularization from the date of filing of the complaint and for

reliefs of continuity of service and consequential reliefs granted by

the Industrial Court. The only aspect that requires to be addressed

is, as to whether the petitioners can be allowed to take advantage

of their own misdeeds. This Court is of the opinion that the

respondents were clearly able to show before the Industrial Court

that they had continued to render full time service in class-IV

category with the petitioners for number of years. Therefore, it

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was an unfair labour practice on the part of the petitioners to have

taken such work from the respondents for number of years and to

have deprived them of wages that ought to have been paid to

them for the nature of full-time work rendered by them. To that

extent, the grievance of the respondents needs to be addressed.

Although, the respondents cannot be said to be entitled for

regularization or grant of permanency from the date of filing of

complaints in the absence of any sanctioned posts, it does not

mean that the unfair treatment meted out to them by the

petitioners can be ignored by this Court.

32. This Court has already noted herein above the position of

law regarding limitation in exercising judicial power to create

permanent or sanctioned posts. It is also noted that in the facts

and circumstances of the present case, there is nothing to show

that even though sanctioned posts were available throughout from

the year 1985 onwards, the respondents herein were given work

as Class-IV employees and such posts were filled. Even in the

judgment of the Hon'ble Supreme Court in the case of Oil and

Natural Gas Corporation Limited v. Petroleum Coal Labour Union

(supra), the Court was concerned with certified standing orders

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conferring right of regularization of workmen subject to certain

conditions being satisfied. In the present case, the Industrial

Court itself found that the Model Standing Orders were not

applicable to the respondents herein. There is also no material on

record to show that there was any scheme of regularization

operated by the petitioners wherein other similarly situated

persons were granted the relief of regularization and the

respondents were deprived of such relief. Therefore, a direction to

accord status and privileges of permanent employees to the

respondents along with other reliefs of monetary benefits and

continuity of service, could not have been granted in the facts and

circumstances of the present case.

33. At the same time, the finding of fact given by the Industrial

Court that the respondents had been able to prove their continued

work with the petitioners for years together cannot be found fault

with. There is also no material on record to show that any effort

was made by the petitioners to apply to the competent authority

for sanctioning of additional posts in Class-IV category, considering

the availability of work, which was in fact being taken from the

respondents herein. It was not as if the petitioners made efforts

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for sanctioning of such posts and the competent authority was

delaying the matter and in such a situation, the petitioners were

constrained to take work from the respondents. Such a factual

backdrop, does indicate that the petitioners indulged in unfair

labour practice as specified in Item 6 of Schedule IV of the Act of

1971. The respondents were continued as casual or temporaries

and they were deprived the status and privileges of permanent

employees. Hence, even if the direction of granting continuity of

service and consequent monetary benefits with relief of

regularization, may not be sustainable, once a finding is rendered

that the petitioners did indulge in unfair labour practice as

defined under Item 6 Schedule IV of the Act of 1971, the Court

could certainly exercise power under section 30 of the Act of

1971, in the form of affirmative action, including payment of

reasonable compensation to the employees affected by such unfair

labour practice.

34. Thus, the said grievance of the respondents can be

addressed by appropriately compensating them. But, even for

granting such relief, it needs to be realized that insofar as

respondent Nos.6 and 7 (original complainant Nos.7 and 8) are

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concerned, such relief cannot be granted to them. This is for the

reason that the Industrial Court itself found on facts that the

respondent Nos.6 (original complainant No.7), had failed to

produce any documentary evidence in support of his claim. In the

case of respondent No.7 (original complainant No.8), it is

undisputed that he died during the pendency of the complaint and

his legal representative was brought on record. There was only

one document on the basis of which the claim of the said

respondent was sought to be supported, but at the same time, it is

also a fact that no one entered the witness box to lead evidence in

support of whatever document was placed on record in support of

the claim of the said respondent. Therefore, the Industrial Court

committed an error, insofar as granting relief to respondent Nos.6

and 7 (original complainant Nos.7 and 8). Thus, even on the

question of compensation, only respondent Nos.1 to 4 and

respondent No.8 (original complainant Nos.1 to 4 and 9) would

be entitled to relief.

35. It would be appropriate to refer to the aforesaid judgment

of the Hon'ble Supreme Court in the case of Harinandan Prasad v.

Employer I/R to Management of Food Corporation of India,

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(supra), wherein the Hon'ble Supreme Court has considered

power of the Labour and Industrial Court to grant directions in

such disputes between employer and employee, wherein it is

found that an unfair labour practice has been committed. The

Hon'ble Supreme Court has held that a fine balance between the

rights of the employer and employee needs to be maintained by

the Courts while considering such question. After referring to the

earlier judgment in the case of M.S.R.T.C. v. Castribe Rajya

Parivahan Karmachari Sanstha (supra), in the said judgment, the

power of the Labour and Industrial Court to issue appropriate

directions under section 30(1)(b) of the Act of 1971, was

emphasized and it was laid down that appropriate affirmative

action can certainly be taken by the Courts under the said

provision.

36. In the facts of the present case, although the directions

given by the Industrial Court in favour of the respondents may not

be sustainable, yet appropriate directions for affirmative action

can certainly be granted, as the finding of unfair labour practice

committed by the petitioners under Item 6 Schedule IV of the Act

of 1971 is being confirmed by this Court. The findings of fact

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rendered by the Industrial Court regarding initial entry of the

respondents in service of the petitioners and their rendering

continuous service are also being confirmed by this Court. Such

findings indicate that respondent Nos.1 to 4 and 8 herein (original

complainant Nos.1 to 4 and 9) had rendered continuous service

for a number of years and they were paid amounts far less than

employees in Class-IV category with the petitioners who were

regularly appointed.

37. The findings rendered by the Industrial Court show that

respondent No.1 (complainant No.1) was working from 1986-87,

respondent No.2 (complainant No.2) was working since 1988,

respondent No.3 (complainant No.3) was working since 1985,

respondent No.4 (complainant No.4) was working since 1989 and

respondent No.8 (complainant No.9) was working since 1996.

Thus, regular work was taken from the said respondents for

number of years and they were paid paltry sums of money. In this

context affirmative action under section 30(1)(b) of the Act of

1971, could have been taken by the Industrial Court by directing

adequate payment of compensation. This Court is of the opinion

that instead of giving scope for another round of litigation for

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determining the amount of compensation payable to the

respondents, who were already burdened with litigation expenses

despite being Class-IV employees, it would be appropriate that this

Court exercises its writ jurisdiction to grant reasonable

compensation to them and to modify the relief granted to them in

the facts and circumstances of the present case.

38. In view of the above, the writ petition is partly allowed.

Although the finding regarding unfair labour practice committed

by the petitioners under Item 6 Schedule IV of the Act of 1971 is

upheld, it is found that the specific directions given by the

Industrial Court in the impugned judgment and order are not

sustainable. Accordingly, the directions given in the operative

portion of the impugned judgment and order are set aside.

39. Considering the findings of the Industrial Court, upheld by

this Court in the context of the entry into service of respondent

Nos.1 to 4 and 8 with the petitioners from 1985 onwards, on the

basis of the pleadings and oral as well as documentary evidence

produced on record, as also the adverse inference drawn against

the petitioners for failing to produce record despite positive

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directions given by the Industrial Court, it is held as follows:

(i) The complaint filed by the respondents is partly allowed.

(ii) It is declared that the petitioners engaged in unfair labour practice as per Item 6 Schedule IV of the Act of 1971.

(iii) It is held that respondent Nos.6 and 7 (original complainant No.7 and 8) are not entitled to any relief.

(iv) It is held that respondent Nos.1 to 4 and 8 (original complainant No.1 to 4 and 9) are entitled to relief of compensation.

(v) The petitioners shall pay compensation to respondent Nos.1 and 3 (original complainant Nos.1 and 3) of ₹5,00,000/- each. The petitioners shall pay5,00,000/- each. The petitioners shall pay compensation to respondent Nos.2 and 4 (original complainant Nos.2 and 4) of ₹5,00,000/- each. The petitioners shall pay4,50,000/- each. The petitioners shall pay compensation to respondent No.8 (original complainant No.9) of ₹5,00,000/- each. The petitioners shall pay4,00,000/-.

(vi) The aforesaid amounts shall be paid by the petitioners to the said respondents within a period of three months from today, failing which the amount shall be paid along

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with interest at the rate of 9% per annum.

(vii) It is made clear that the aforesaid compensation amounts shall be paid by the petitioners and no burden shall be placed on the State Exchequer for the same.

40. Rule is made absolute in the above terms. No order as to

costs.

JUDGE

Ghanshyam Khunte Digitally signed by Ghanshyam Khunte Date: 2021.01.06 17:33:21 +0530

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