Bombay High Court
The Executive Engineer-Maharashtra ... vs Suchita Vijay Survey on 9 October, 2024
2024:BHC-AS:39963
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5239 OF 2005
The Executive Engineer
Maharashtra Rajya Vidyut Mandal
having office at Construction and
Sanchalan Parirakshan Vibhag,
Nachane Road, Ratnagiri ....Petitioner
V/S
Suchita Vijay Survey
r/o 1708, Teli Ali, Patliwadi,
Ratnagiri ....Respondent
WITH
INTERIM APPLICATION NO.3545 OF 2022
IN
WRIT PETITION NO.5239 OF 2005
Suchita Vijay Surve
Age 58 years, Occ. -
R/at A1, Shree Smarth Siddhi
Apartment, Opp. M.I.D.C. Post Office,
near J.K. Files, Ratnagiri ....Applicant
IN THE MATTER BETWEEN
The Executive Engineer
Maharashtra Rajya Vidyut Mandal
presently known as Maharashtra
State Electricity, office at Operation
and Maintenance Division,
Nachane Road, Ratnagiri Kazi ....Petitioner
V/S
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Suchita Vijay Survey
r/o 1708, Teli Ali, Patliwadi,
Ratnagiri ....Respondent
_________
Mr. A.R.S. Baxi, for the Petitioner.
Mr. Rahul Nerlekar with Mr. Sachindra B. Shetye and
Mr. Akshay Pansare for Respondent.
__________
CORAM : SANDEEP V. MARNE, J.
RESERVED ON : 03 OCTOBER 2024.
PRONOUNCED ON: 09 OCTOBER 2024.
J U D G M E N T:
1. Petitioner-Electricity Board has filed this Petition challenging
the Award dated 31 March 2005 passed by Presiding Officer,
Labour Court, Ratnagiri in Reference (IDA) No.3 of 1997. The
Labour Court has answered the Reference partly in the affirmative
and has directed Petitioner to reinstate Respondent on the post of
regular Typist with 50% back-wages. Petitioner- Board is also
directed to confer status and privileges of permanent employee on
Respondent from the date of completion of 240 days of
uninterrupted service in a period of 12 calendar months with
further direction to pay resultant benefits.
2. Respondent was engaged in the Divisional Office of
Petitioner-Electricity Board to perform the job of Typist by letter
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dated 15 January 1987 on remuneration of Rs.10/- per 1,000 words.
According to Respondent, she was terminated from service by oral
order on 1 July 1993. She therefore approached the Conciliation
Officer, Ratnagiri and filed demand application. Since Conciliation
proceedings resulted in failure, Reference was made to Labour
Court, Ratnagiri which was registered as Reference (IDA) No.3 of
1997. Respondent filed her Statement of Claim not only challenging
termination but she also sought permanency in service. The
Statement of Claim was resisted by Petitioner-Electricity Board by
filing Written Statement. Both parties led evidence in support of
their respective claims. After considering the pleadings,
documentary and oral evidence, Labour Court answered the
Reference partly in the affirmative directing Respondent's
reinstatement in service with 50% back-wages. Petitioner-Board is
further directed to confer status and privileges of permanent
employee on the Respondent on completion of 240 days of service in
a period of 12 calendar months with necessary consequential
benefits. Aggrieved by Award dated 31 March 2005, the present
Petition is filed.
3. The Petition came to be admitted by this Court by order dated
23 February 2006 by which time amount of 50% back-wages of
Rs.64,776/- was already deposited by Petitioner-Board in the lower
Court. This Court permitted Respondent to withdraw the said
amount on furnishing the necessary security. This Court granted
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interim relief in terms of prayer clause (c) by which further
proceedings pursuant to the impugned Award were stayed.
Respondent filed Civil Application No.1301 of 2006 in which order
was passed on 29 August 2006 observing that the amount of
Rs.64,776/- did not represent 50% of back-wages as payable to
regularly appointed Clerk cum Typist. This Court therefore
directed deposit of balance amount of backwages. Petitioner-Board
later realized that grant of interim relief in terms of prayer clause
(c) did not amount to stay of the Award and therefore filed Civil
Application No.1325 of 2008 for staying the Award dated 31 March
2005. Since this Court passed order granting stay to the impugned
Award. It appears that Petitioner-Board has paid to the
Respondent last drawn wages of Rs.776/- per month under
provisions of section 17B of the Industrial Disputes Act (ID Act)
till the age of attaining superannuation.
4. Ms. Baxi, the learned counsel appearing for Petitioner-
Electricity Board would submit that Respondent was never
appointed in the service of Petitioner-Board and her services were
utilized only based on quantum of work by paying remuneration of
Rs.10/- per 1,000 words. That the engagement letter itself made it
clear that award of such work would not confer any right on
Respondent to claim service or appointment with Petitioner-Board.
That she was merely appointed on contract basis depending on the
availability of work and no right was created in her favour to
continue to remain in service. That her contract was discontinued
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when work was not available. That she was not appointed after
following process of selection nor she worked against any regularly
sanctioned post. Ms. Baxi would therefore submit that Respondent
did not have right to remain in service of Petitioner-Board nor
could have claim permanency. She would submit that Labour Court
has erred in directing the reinstatement and permanency. She
would pray for setting aside the impugned Award.
5. The Petition is opposed by Mr. Nerlekar, the learned counsel
appearing for Respondent. He would submit that Respondent was
illegally terminated without following due process of law despite
completion of more than 240 days of service in each year. That she
rendered continuous service with Petitioner-Board from the year
1987 till her termination on 1 July 1993. That therefore Labour
Court has rightly directed reinstatement in service. So far as the
relief of permanency is concerned, Mr. Nerlekar would submit that
Model Standing Orders formulated under provisions of Industrial
Employment (Standing Orders) Act, 1946 would clearly apply to the
Petitioner-Board and therefore on completion of 240 days of service,
Respondent become entitled for grant of benefit of permanency. He
would rely upon judgment of the Apex Court in Bharatiya
Kamgar Karmachari Mahasangh vs. Jet Airways Ltd., 2023
SCC OnLine SC 872 in support of his contention that permanency
is required to be granted as per the Model Standing Orders. He
would draw my attention to the orders passed by this Court on 28
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November 2005 and 2 January 2006 by which Petitioner-Board was
directed to disclose on oath availability of vacancies. That vacancies
of Clerk-cum-Typist existed at the relevant time and Respondent-
employee deserves to be regularized in service against such
available vacant posts. Mr. Nerlekar would therefore pray for
dismissal of the Petition.
6. After having considered the submissions canvassed by the
learned counsel appearing for parties, it is seen that Respondent
was not really appointed in the service of Petitioner-Board. She was
engaged on contract basis to perform the work of typing. She did
not draw any salary either on daily or monthly basis. On the
contrary, she was paid in accordance with the volume of work
performed. It would be apposite to reproduce the initial
engagement letter dated 15 January 1987 which reads thus:
आस्थापना/२९/२४४ दि . १५-१-८७
प्रति ,
डी. डी. फटकरे,
कु. vsl. डी. शिं े,
रत्नादि री.
दि षयः टायपिंप काम करण्याबाब
महाशय,
आपणास संचलन सुव्य स्था उभारणी दि भा ीय काया2लय महाराष्ट्र राज्य दि द्यु
मंडळ, रत्नादि री येथील टक्लेखनाचे काम प्र ी हजार शब् ास हा रुपये या मोब ल्या ेण्या ये
आहे. स र कामाची मु अदिनतिA रादिहल या कामाचा आपणास मंडळा नोकरी ेण्याशी
कोणत्याही प्रकारचा संबंध राहणार नाही याची नों घ्या ी.
आपला दि श्वासू,
सही/-
काय2 कारी अभिभयं ा
रत्नादि री
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7. Thus, there was no appointment of Respondent in the service
of the Petitioner-Board. She was not under obligation to attend
duties at specified time. No supervisory or disciplinary powers were
to be exercised on her by any particular officer. She was not to
perform duties as an employee of the Petitioner-Board. She was
merely called upon to perform typing work and was to be paid
remuneration based on volume of work performed, which was
Rs.10/- per 1,000 words. The letter dated 15 January 1987 itself
made it clear that award of work to her would not amount to grant
of appointment in the service of Respondent.
8. Another letter dated 26 June 1992 is produced on record by
which contractual work of typing was awarded to Respondent for
the period from 1 July 1992 to 30 June 1993. Again, the
remuneration was Rs.10/- per 1,000 words. The letter once again
provided that award of work could not mean appointment of
Respondent in service. Letter dated 26 June 1996 reads thus:
ß26 tqu 1992
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lat; fuokl] 657 ßdÞ
fFkack iWysl ekxs] ,l-Ogh- jksM]
jRukfxjh-
2½ LkkS- lqfprk fot; lqosZ]
1708] rsyh vkGh ¼ikVhyokMh½
jRukfxjh-
fo"k;%& foHkkxh; dk;kZy;] jRukfxjh ;sFkhy Vadys[kukps dke da=kVh i/nrhus
dj.;kckcr------
&&&&
k 8/13 7_wp_5239.05_as.doc
egksn;@egksn;k]
vkiY;k fn-22&6&92 P;k vtkZpk fopkj d:u foHkkxh; dk;kZy;] jRukfxjh ;sFkhy Vadys[kukps dke
da=kVh rRokoj ns.;kr ;sr vlwu R;kps nj [kkyhyizek.ks vlrhy%
izrh 1000 ''kCnkaps Vadys[ku dj.ks %& 10 :- izfr gtkjh-
lnjP;k dkeklkBh ykx.kkjk dkxn rlsp e'khu dk;kZy;kps vlsy-
lnjps dke gs fn-1&7&92 rs 30&6&93 ;k dkyko/khdfjrk ns.;kr ;sr vlwu lnjps da=kV dks.krhgh
iwoZ lwpuk u nsrk jn~n dj.;kps vf/kdkj [kkyhy lgh dj.k&;kauk jkgrhy-
lnjps dke gs dk;kZy;hu osGse/;s dk;kZy;kr clwu dj.ksps vkgs ¼ldkGh 10&30 rs 17&30½
lnjp da=kVh dkek uarj fo|qr eaMGkP;k lsose/;s lekowu ?ks.;kl dks.krhgh geh fo|qr eaMG nsÅ
'kdr ukgh- rlsp fo|qr eaMGkP;k lsose/;s lekowu ?ks.;kfo"k;h dks.kR;kgh izdkjpk gDd lkaxrk ;s.kkj ukgh-
vkiyk Lusgkafdr
lgh&
dk;Zdkjh vfHk;ark] jRukfxjh^^
9. In my view therefore, Respondent was never treated as an
employee of Petitioner-Board. She was never appointed in service
even on temporary basis. Therefore, there is no question of her
termination from service. Hence issue as to whether termination
was valid or otherwise becomes entirely irrelevant. Only an
employee, who is appointed in service, can be terminated. A person
who is awarded work on quantum basis without any obligation to
attend duties for specified time cannot be treated as in employment
of the employer. In my view therefore the Labour Court has erred
in assuming that Respondent was employed in service of the
Petitioner-Board. The Labour Court has erred in recording
following findings in paragraph 8 of the Award:
8. Before proceeding further I must note that second party employee has
made out a specific case and alleges that she is in employment of first
party since 1986. This fact is nowhere specifically denied by the first
party. On the contrary the written statement para 2a. indicates that
first party admits the facts that she was in the employment for the
period 16.4.1986 to 30.6.1986. In such circumstances it was incumbent
on part of the first party employer to place on record all appointment
orders issued by the employer in favour of the employee. The first party
has placed on record a single order dated 26.06.1992.
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10. The above finding of the Labour Court is perverse as
Petitioner-Board had specifically pleaded in the Written Statement
that Respondent was never in the employment of the Petitioner-
Board. The relevant averment in this regard is to be found in
paragraph 4 of the Written Statement which reads thus:
Without prejudice to the foregoing, it is respectfully submitted that the
First Party was not in the Second Party Board's employment, as she
was not given an written Appointment Order.
11. Petitioner-Board further contended that it did not have any
control on Respondent, she had no fixed working hours and that
she was paid as per the bills submitted by her at the rate of Rs.10/-
per 1,000 words. The relevant averments in this regard are
reproduced below:
(c) It is respectfully submitted that the First Party did not have any
control over the Second Party whatsoever. She was assigned some
typing work and she had to complete it. No working hours were fixed for
her. She had to complete the assigned work using the Typewriter and
Papers provided by the First Party. However, as some confidential
reports were required to be typed and some of the work was required to
be done as per the instructions of the Officers she was asked to work
when the officers are present in the Office.
(d) Second Party was paid as per the bill submitted by her. The
remuneration was fixed at Rs. 10/- (Rupees Ten only) per thousand
words. She was paid by account payee cheque.
12. The Labour Court did not appreciate the position that
Respondent was like a contractor, who used to raise bills in respect
of work performed by her and the said bill used to get paid after its
certification. Considering the above facts, the Labour Court has
completely erred in holding that Respondent was an employee of
the Petitioner-Board. Her discontinuation after 30 June 1993 was
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on account of non-availability of work. The relevant averment in
this regard is to be found in paragraph 2(e) of the Written
Statement, which reads thus:
(e) The contractor for the service with the Second party was not
renewed after 30/06/1993 for the reason that sufficient work was not
available with the First Party. The Second Party, however, mistakenly
assumed that she is in the employment of the Respondent and further
took the non-renewal of the contract as her dismissal. Which is not the
case in fact.
13. There was no employer-employee relationship between the
parties. The Petitioner-Board was not under obligation to provide
work to Respondent, even if the same was available. In my view
therefore the Labour Court has grossly erred in assuming that
services of Respondent were terminated. As a matter of fact,
Respondent was not in the service of Petitioner-Board as an
employee and did not have any right to be continued even on
contract basis.
14. In my view therefore, the Labour Court has erred in assuming
that Respondent was terminated from service. The direction for
reinstatement and for payment of 50% backwages is therefore
erroneous. The further direction for grant of permanency is also
clearly erroneous. Petitioner-Board is an instrumentality of State
and Clause 4C of the Model Standing Orders would not apply to as
held by Division Bench of this Court in The Municipal Council
Tirora & Anr. vs. Tulsidas Baliram Bindhade, Writ Petition
No.5191 of 2004 decided on 16 December 2016. Therefore, mere
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completion of 240 days of service in State instrumentality does not
create any inherent right in favour of a temporary employee to
secure permanency. Grant of permanency in services of
Government or State instrumentalists has a different connotation
as compared to private service. In private service, grant of
permanency would merely entail payment of wages on par with
regular employees as well as continuation in service till
termination in accordance with law. In the Government service
however, grant of permanency means that the permanent
Government servant cannot be removed from service unless he
commits any misconduct and he has right to continue in service till
attaining age of superannuation. Grant of regularization in
Government service or in the service of State Instrumentality
depends on availability of sanctioned posts. An industrial
adjudicator cannot direct creation of post in services of State
Instrumentality in an indirect manner by directing grant of
permanency to any temporary worker completing 240 days of
service. This is the reason why Division Bench of this Court in
Municipal Council Tirora (supra) has held that Model Standing
Order 4C would not apply in case of State Instrumentalists. The
law enunciated by Division Bench in Municipal Council Tirora
(supra) would apply with full force in the present case as well.
Respondent has never been appointed in the service of Petitioner-
Board. Even if her engagement is treated as appointment in
service, there is nothing to indicate that such engagement was
against a regularly sanctioned post. Respondent has not
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participated in selection process. She is a backdoor entrant. She
performed work as typist in contract basis hardly for six years and
does not satisfy the requirement of completion of 10 years of service
for qualifying in the one-time exception made by Constitution
Bench judgment in Secretary, State of Karnataka Vs. Umadevi
(2006) 4 SCC 1. In such circumstances, she did not have any right
to seek permanency in the service of Petitioner-Board. In my view
therefore, direction for grant of permanency to Respondent is
clearly erroneous and liable to be set aside.
15. Reliance by Mr. Nerlekar on the judgment of the Apex Court
in Bharatiya Kamgar Karmachari Mahasangh (supra) does
not cut any ice. The judgment relates to grant of permanency in
services of Jet Airways Ltd., a private entity, in accordance with
the Model Standing Orders. The debate before the Apex Court was
about superiority of Model Standing Order via-a-vis Memorandum
of Settlement. The Apex Court held that the Model Standing Order
would prevail over settlement agreement. The judgment, in my
view, has no application to the facts and circumstances of the
present case.
16. On account of pendency of the present Petition and in view
of the various interim orders passed by this Court from time to
time, Respondent has already withdrawn amount of 50% back-
wages. She is apparently paid last drawn wages under section 17B
of the ID Act till she attained the age of superannuation. Ms. Baxi
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would submit that the total amount withdrawn and paid by and to
Respondent is Rs.5,92,156/-. It appears that Respondent attained
the age of retirement in the year 2021. In such circumstances
though the Award of the Labour Court is being set aside, I am not
inclined to direct any recovery against Respondent. Thus, various
interim orders passed by this Court has resulted in payment of
amount of Rs.5,92,156/-. Even if termination of Respondent was to
be held illegal, at the highest, some compensation could have been
paid to her. In the peculiar facts and circumstances of the case,
Rs.5,92,156 can be considered as compensation payable to her. In
that view of the matter, I am not inclined to order any recovery
from Respondent though the Award passed by the Labour Court is
not found to be in order.
17. Writ Petition accordingly succeeds. Award dated 31 March
2005 passed by Labour Court, Ratnagiri in Reference (IDA) No.3 of
1997 is set aside. However, no recovery shall be effected against
Respondent in respect of any payment already made to her in
pursuance of the impugned Award. Writ Petition is accordingly
allowed. Rule is made absolute. There shall be no order as to
costs.
18. In view of the disposal of the Writ Petition, nothing would
survive in the Interim Application and the same is accordingly
disposed of.
(SANDEEP V. MARNE, J.)
Digitally
signed by
SUDARSHAN
SUDARSHAN RAJALINGAM
RAJALINGAM KATKAM
KATKAM Date:
14:06:38
+0530
