The State Of Maharashtra Thru The ... vs Shri. Prakash Rajaram Holkar
2021 Latest Caselaw 15151 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CIVIL APPELLATE JURISDICTION

                       WRIT PETITION NO.2294 OF 2021

The State of Maharashtra
(Through District Civil Surgeon,
Sindhudurg.)                                           ...Petitioner
           vs.
Prakash Rajaram Holkar                                 ...Respondent

Mr. S.H. Kankal, AGP, for the Petitioner-State.
Mr. Manoj Patil, for the Respondent.

                                     CORAM :       N.J. JAMADAR, J.

                   JUDGMENT RESERVED ON :          27th AUGUST, 2021
                   JUDGMENT PRONOUNCED ON:         21st OCTOBER, 2021
                                 ---------------


JUDGMENT : (Per N.J.Jamadar, J.)

1. Rule. Rule made returnable forthwith and, with the consent

of the counsels for the parties, heard fnally.

2. This petition under Article 227 of the Constitution of India

assails the legality, propriety and correctness of the judgment and

order dated 2nd July, 2018 passed by the learned Member,

Industrial Court, Kolhapur in Complaint (ULP) No.135 of 2014

whereby the appellant was directed to cease and desist from

engaging in unfair labour practice and to grant status and

privileges of permanent employee to the respondent-complainant

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in class IV post with all consequential benefts, with effect from 8 th

October, 2014 within a period of two months thereof.

3. Shorn of superfuities, the background facts leading to this

petition can be stated as under:

a] The respondent/complainant approached the learned Member,

Industrial Court, with a complaint, under section 28 (1) read with

Items Nos. 5, 6, 9 and 10 of Sch-IV of Maharashtra Recognition of

Trade Unions & Prevention of Unfair Labour Practices Act, 1971

(the Act,1971), contending, inter alia that the complainant has

been working with the respondent/employer since 5 th July, 1997

as a 'Sweeper'. While making initial appointment, the name of the

complainant was called from the offce of Employment Exchange

and, post interview, the complainant was appointed initially for a

period of 29 days. Subsequently, the services of the complainant

were continued by issuing orders from time to time on varying

posts of sweeper, peon, word boy. Complainant has been working

on a clear vacant post. The work performed by the complainant

was of perennial nature. In fact, the complainant has worked for

more than 240 days, in each of the calendar years, with artifcial

breaks, which were given with a view to deprive the complainant

form the status and privileges of permanent employee.

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b] The employer resisted the claim of the complainant. Thrust of

the resistance was that the services of the complainant were

availed for specifc period during leave vacancy of regular

employees, temporarily, and subject to conditions stipulated in the

appointment orders. Those appointments were, thus, purely

temporary and contractual. It was denied that the complainant

had rendered 240 days of uninterrupted service in each of the

calendar years, since the date of initial appointment. The

complainant is thus not entitled to the beneft of permanency.

c] The learned Member, Industrial Court, Kolhapur after

evaluating the material on record, especially the evidence of

employer's witnesses, was persuaded to hold that the complainant

was initially appointed on a class IV post in the year 1997 in

accordance with the then prevailing rules. The employers' witness

admitted, during the course of cross examination, that since the

year 1997, the complainant has been in employment on a clear

vacant post and the complainant had completed 240 days of

service in each calendar year. Thus, the continuation of the

complainant as a temporary employee for years together, despite

availability of the post and work, was held to be an unfair labour

practice under item 6 of the schedule IV of the Act,1971.

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d]       Holding thus, the complaint came to be partly allowed with

direction to the respondent to grant status and privileges of a

permanent employee to the complainant in class IV post with

effect from 8th October, 2014 with all consequential benefts.

e] Being aggrieved, the employer/State has invoked the writ

jurisdiction of this Court.

4. I have heard Mr. S.H. Kankal, AGP, for the Petitioner-State

and Mr. Manoj Patil, the learned counsel for Respondent

/complainant. With the assistance of the learned counsels for the

parties, I have perused the material on record.

5. Mr. Kankal, learned AGP made an endevour to impress upon

the Court that since the initial appointment of the complainant

was against the leave vacancy, the learned Member, Industrial

Court, committed a grave error in granting the beneft of

permanency. Reliance was placed on a number of appointment

orders whereby the tenure of service of the of the complainant

was expressly limited by prescribing the duration thereof. In the

face of such appointment orders, the learned Member could not

have held that the employer indulged in unfair labour practices

and granted the relief to the complainant, urged Mr. Kankanl.

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6. As a second limb of the submission, Mr, Kankal, learned AGP

would urge that the principle of public employment is applicable

in the case at hand, as the Government hospital is not an industry,

and, therefore, the complainant could not lay claim over a post for

which the appointment has not been made in accordance with the

recruitment rules.

7. Mr. Manoj Patil, learned counsel for the respondent

/complainant, joined the issue by canvassing a submission that

the claim of the employer that the complainant was appointed

against a leave vacancy is belied by the series of appointment

orders from the year 1997 to year 2014. Moreover, the employer's

witness has conceded in clear and unequivocal terms that the

complainant has been continued in the employment since the year

1997 and discharged the duties of perennial nature and that there

was a clear and vacant post against which the complainant could

have been appointed. Mr. Patil, would further urge that the

reliance sought to be placed by the employer on the judgment in

the case of Secretary, State of Karnataka and Ors. vs. Umadevi

and Ors.1 is not well founded as the said judgment does not denude

the authorities under MRTU and PULP Act, 1979 of their

statutory powers under sec.30 and 32 of the Act, 1971 to grant

1 (2006) 4 SCC 1.

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permanency to the workers who have been victims of unfair

labour practices on the part of the employers under item 6 of the

schedule IV.

8. Indisputably, the complainant was initially appointed to

class IV post at Civil Hospital, Oras, Tal. Kudal, Dist. Sindhudurg

for a period of 29 days. It was specifcally mentioned in the

appointment order that the appointment was against a leave

vacancy. However, the subsequent orders, the copies of which are

placed on record, indicate that, time and again, the appointment

orders were issued and the complainant continued to work in

class IV post of varying description. The nature of the

appointment orders also underwent signifcant change. The later

orders (dated 30th November, 2006, 7th November, 2007, 20th

June, 2008, 1st October, 2012, 10th May, 2013 and 26th August,

2014, by way of illustration) indicate that the appointments were

made on temporary basis for a specifc period (a month or two)

without any reference to leave vacancy.

9. It would be contextually relevant to note that in the written

statement itself the employer admitted that, while making initial

appointment, the name of the complainant was called from the

Employment Exchange, and appointment was given after holding

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interview. The employer's witness conceded in the cross

examination that the complainant's name found mention in the

list maintained by the Employment Exchange since 1994. His

name was forwarded by the Employment Exchange. The

complainant was appointed after considering his eligibility and

performance in the interview, as per the rules. The said witness

went on to admit that the complainant has been in employment

with the respondent's hospital since 1997 on a clear and vacant

post. Nature of work performed by the complainant was of

permanent and perennial nature.

10. In the light of the aforesaid facts, the learned Member,

Industrial Court, Kolhapur was within her rights in arriving at

the conclusion that the employer engaged in unfair labour

practice under Item-6 of Schedule IV of the Act, 1971 in

continuing to employ the complainant as a temporary employee,

and to continue him as such almost two decades with the object of

depriving him of the status and privileges of a permanent

employee. In the backdrop of the nature of the work performed by

the complainant, it can hardly be disputed that the work was of

permanent and perennial nature.

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11. Mr. Kankal, learned AGP attempted to salvage the position

by canvassing a submission that the complainant's services were

not availed at one place and he was employed at different

hospitals /health centers, within the district. In my considered

view, if that was the case, the practice indulged in by the

respondent was even more unfair. It implies that the complainant

was made to serve at a different establishments and discharge the

duties of multiple posts by giving temporary appointment orders

for years together.

12. The submission on behalf of the petitioner /State that the

complainant was not appointed in conformity with the

recruitment rules and therefore he is not entitled to the beneft of

the permanency, does not merit countenance. On facts, it could

not be established that the initial appointment was made in

violation of governing rules. On the contrary, the employer's

witness has admitted that names were called from Employment

Exchange and appointment was made post interview. In any

event, no charge of back door entry can be attributed to the

complainant.

13. In law, the learned Member, Industrial Court was justifed in

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repelling the said contention based on the pronouncement of the

Supreme Court in the case of Umadevi (supra) by placing reliance

on the judgment of the Supreme Court in the case of Maharashtra

State Road Transport Corporation and Anr. Vs. Casteribe Rajya

Parivahan Karmachari Sanghatana2 wherein in paragraph Nos.

30 to 36 the following observations were made:

30. 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 Umadevi1. In our judgment, it is not.

31. The purpose and object of MRTU & PULP Act, inter alia, is to defne 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 affrmative 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.

32. The power given to the Industrial and Labour Courts under Section 30 is very wide and the affrmative 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 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.

33. The provisions of MRTU & PULP Act and the powers of

2 (2009) 8 SCC 556.

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Industrial and Labour Courts provided therein were not at all under consideration in the case of Umadevi1. 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 Umadevi1. Unfair labour practice on the part of the employer in engaging employees as 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 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.

34. It is true that the case of Dharwad District PWD Literate Daily Wage Employees Assn. 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 Umadevi1 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.

35. Umadevi1 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-hoc employees unless the recruitment itself was made regularly in terms of constitutional scheme.

36. Umadevi1 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 victims 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.

(emphasis supplied)

14. In view of the aforesaid exposition of law, no fault can be

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found with the impugned order passed by the learned Member,

Industrial Court. Hence, in exercise of the extraordinary writ

jurisdiction, I am not persuaded to interfere with the impugned

order. The petition thus deserves to be dismissed.

Hence, the following order.

                                 ORDER

a]       The petition stands dismissed.

b]       Rule discharged.



                                              (N.J. JAMADAR, J.)




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