Bombay High Court
Shri. Ajinath Mahadeo Ghodase vs The Deputy Director, Social Forestry ... on 20 September, 2024
2024:BHC-AS:37299
Neeta Sawant WP-3373-2002+group-JR-FC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3373 OF 2002
The Deputy Director and Ors. } ....Petitioners
: Versus :
Vijaya Balbhim Mali }....Respondent
ALONGWITH
WRIT PETITION NO. 3374 OF 2002
The Deputy Director, Social Forestry
Division and anr. } ....Petitioners
: Versus :
Ramjan Daud Mulani }....Respondent
ALONGWITH
WRIT PETITION NO. 3377 OF 2002
The Deputy Director, Social Forestry
Division and Ors. } ....Petitioners
: Versus :
Dhanaji S. Deshmukh }....Respondent
ALONGWITH
WRIT PETITION NO. 3379 OF 2002
The Deputy Director, Social Forestry
Division and Ors. } ....Petitioners
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: Versus :
Mahadeo Bhimrao Bobade }....Respondent
ALONGWITH
WRIT PETITION NO. 3538 OF 2002
The Deputy Director, Social Forestry
Division and Ors. } ....Petitioners
: Versus :
Ramahari J. Pawar }....Respondent
ALONGWITH
WRIT PETITION NO. 3537 OF 2002
The Deputy Director, Social Forestry
Division and Ors. } ....Petitioners
: Versus :
Dada R. Mane }....Respondent
ALONGWITH
WRIT PETITION NO. 3376 OF 2002
The Deputy Director, Social Forestry
Division and Ors. } ....Petitioners
: Versus :
Raju Mohammad Shaikh }....Respondent
ALONGWITH
WRIT PETITION NO. 3536 OF 2002
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The Deputy Director, Social Forestry
Division and Ors. } ....Petitioners
: Versus :
Jagdish S. Gunge }....Respondent
ALONGWITH
WRIT PETITION NO. 3535 OF 2002
WITH
CIVIL APPLICATION NO. 1325 OF 2016
The Deputy Director, Social Forestry
Division and Ors. } ....Petitioners
: Versus :
Ajinath Mahadev Godase }....Respondent
ALONGWITH
WRIT PETITION NO. 3534 OF 2002
The Deputy Director, Social Forestry
Division and Ors. } ....Petitioners
: Versus :
Rajaram S. Raichure }....Respondent
ALONGWITH
WRIT PETITION NO. 3375 OF 2002
The Deputy Director, Social Forestry
Division and Ors. } ....Petitioners
: Versus :
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Manik Vithoba Khankal }....Respondent
ALONGWITH
WRIT PETITION NO. 3378 OF 2002
The Deputy Director, Social Forestry
Division and Ors. } ....Petitioners
: Versus :
Gangadhar A. Jadhav }....Respondent
ALONGWITH
WRIT PETITION NO. 3533 OF 2002
The Deputy Director, Social Forestry
Division and Ors. } ....Petitioners
: Versus :
Shivaji Ramchandra Oval }....Respondent
ALONGWITH
WRIT PETITION NO. 3380 OF 2002
The Deputy Director, Social Forestry
Division and Ors. } ....Petitioners
: Versus :
Parmeshwar Vishnu Gaikwad }....Respondent
ALONGWITH
WRIT PETITION NO. 3532 OF 2002
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The Deputy Director, Social Forestry
Division and Ors. } ....Petitioners
: Versus :
Hanamant Vasant Patil }....Respondent
ALONGWITH
WRIT PETITION NO. 3371 OF 2002
The Deputy Director, Social Forestry
Division and Ors. } ....Petitioners
: Versus :
Bhagwat Pandhari Gaikwad }....Respondent
ALONGWITH
WRIT PETITION NO. 3372 OF 2002
The Deputy Director, Social Forestry
Division and Ors. } ....Petitioners
: Versus :
Subhash Ramchandra Mane }....Respondent
_____________
Mr. Vaishali S. Nimbalkar, AGP for the State-Petitioners.
Mr. Drupad Patil with Mr. B.G. Ligade for the Respondents in WP-3374-2002,
3377-2002, 3379-2002, 3538-2002, 3537-2002, 3376-2002, 3536-2002, 3535-2002,
3534-2002, 3375-2002, 3378-2022, 3533-2022 and 3532-2002.
Mr. Rajaram V. Bansode, with Ms. Sheetal M. Ubale, for Respondents in WP-
3371-2002 and WP-3380-2002.
______________
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CORAM : SANDEEP V. MARNE, J.
Judgment Reserved on : 12 September 2024.
Judgment Pronounced On : 20 September 2024.
JUDGMENT :
1) These petitions are filed by Petitioner No.2 through the
Deputy Director, Social Forestry Division, Solapur challenging the
Judgment and Order dated 31 March 2001 passed by the Industrial
Court, Solapur, by which complaints filed by the Respondents have
been partly allowed and Petitioners are directed to consider the length
of continuous services put by them till amendment of complaints on
21 July 1999 for the purpose of grant of benefit of permanency.
Petitioners are accordingly directed to issue orders for permanency of
the Respondents with continuity of service i.e. consequential benefits,
without backwages.
2) Afforestation of barren lands is a program undertaken by
the Government of India, which later assumed the name 'Social
Forestry'. The program was soon implemented by various State
Governments, including the State of Maharashtra through its
Department of Revenue and Forests. The scheme for social forestry
included inter-alia the activity of plantation on the lands made
available by Gram Panchayats, Public Works Department and other
private institutions. For the purpose of undertaking the work of
plantation, grass cutting and maintenance of trees/plants, workers
were engaged on daily wage basis, as and when needed. Under the
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program, Petitioners implemented Social Forestation Scheme on the
concerned land for three years, whereafter the land was returned to
the respective owners.
3) In the above background, Respondents were engaged as
daily wage workers under the social forestry program during various
years ranging from 1985 to 1991. In the year 1992, Petitioner issued
orders transferring the services of Respondents from one village to
another. In case of Respondent-Vijaya Balbhim Mali (Writ Petition No.
3373 of 2002) who was working since the year 1990, transfer order was
issued on 30 January 1992 from Matsya Beach to Akole Budruk.
Respondents got aggrieved by their respective transfer orders and
instituted complaints of unfair labour practice before the Industrial
Court, Solapur challenging the transfer order. In their complaints,
Respondents filed applications for temporary injunction. The
complaint as well as application for temporary injunction were
resisted by Petitioners by filing their Written Statement contending
that Respondents were engaged merely as 'seasonal workers' during
monsoon season for undertaking the work of plantation, grass cutting
and maintenance of plants. That the work is not of regular nature. The
Industrial Court passed interim order dated 17 February 1992
directing Petitioners to maintain status-quo in respect of the services
of the Respondents until further orders.
4) It appears that though the complaints were filed challenging
mere transfer orders, that too of temporary workers, the complaints
remained pending for a considerable period of time and in the
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meantime, services of the Respondents were continued. It appears
that Respondents sought inspection of records relating to their
services. Accordingly, the person appointed by the Court to carry out
inspection and submitted his report in respect of each of the
complainants to certify their services prior to filing of complaints. On
21 July 1992, Respondents filed applications for amendment of
Complaints by incorporating their grievances relating to grant of
permanency. The amendment was allowed by order dated 12 January
2000. Thus, Respondents claimed the relief of permanency in the
amendment application on the strength of completion of 240 days of
service, from the year of initial engagement.
5) Both the sides led evidence in support of their respective
claims. After considering the pleadings, documentary and oral
evidence, the learned Member, Industrial Court proceeded to allow the
complaint partly directing consideration of services of the
Respondents upto the date of filing of application for amendment
dated 21 July 1999 for grant of permanency in service. The Industrial
Court has accordingly directed Petitioners to issue orders granting
permanency with continuity of service and consequential benefits
without backwages. Aggrieved by judgment and order dated 31 March
2001 passed by the Industrial Court, Petitioners have filed the present
petition. By order dated 22 July 2002, this Court has admitted the
petitions by granting stay to the order passed by the Industrial Court.
6) Ms. Nimbalkar, the learned AGP appearing for the
Petitioner would submit that the Industrial Court has erred in
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allowing the complaints by granting the relief of permanency in
Respondents' favour. She would submit that Respondents did not
work against any sanctioned posts and were utilized only as per need
during monsoon season. That the project itself did not contemplate
permanent engagement of staff. That the land on which plantation
program is implemented is ultimately returned to the concerned
Gram Panchayat or the landowner and that therefore it cannot be
stated that any particular personnel is needed on a permanent basis
for implementation of the program. That the initial engagement of
Respondents was not made after following process of selection. That
they do not fulfill any of the criteria for grant of permanency. That
the Industrial Court erred in not appreciating that none of the
Respondents had completed continuous service of five years before
filing of the complaint. Their services rendered during pendency of
the complaint on account of grant of interim order by the Industrial
Court cannot be a reason for treating their employment as continuous
and such services, which are attributable to interim order, are
required to be ignored. That each of the Respondents have been paid
compensation at the time of termination of their service and such
compensation amounts have been accepted by them. That therefore
no case was made out for grant of any relief to the Respondents. Ms.
Nimbalkar would further submit that Respondents have otherwise not
put in continuous service and are not entitled to be granted benefit
under the Kalelkar Award. She would rely upon judgment of this
Court in Yeshwant Shripad Patil Versus. Plantation Officer1. She would
accordingly pray for setting aside the impugned Judgment and Order
passed by the Industrial Court.
Writ Petition No.180 of 2005 decided on 11 May 2018.
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7) Mr. Drupad Patil, the learned counsel appearing for the
Respondents in Writ Petition Nos. 3374 of 2002, 3377 of 2002, 3379 of
2002, 3538 of 2002, 3537 of 2002, 3376 of 2002, 3536 of 2002, 3535 of
2002, 3534 of 2002, 3375 of 2002, 3378 of 2022, 3533 of 2022 and 3532 of
2002 would oppose the petitions and support the order passed by the
Industrial Court. He would submit that the Industrial Court has
rightly awarded the relief of permanency in favour of the
Respondents who have rendered more than five years of continuous
service without intervention by the Court. He would submit that the
interim order of status-quo granted by the Industrial Court was qua
transfers and that the same did not restrain Petitioners from
terminating services of Respondents. That services of Respondents
were continued by Petitioners on their own because of their need and
such continuation was not attributable, in any manner, to the interim
order of status-quo granted by the Industrial Court. That the
Petitioners were well aware of the fact that the interim order of
status-quo did not contemplate continuation of services of the
Respondents, which is the reason why their services were terminated
during pendency of complaints. He would therefore submit that
Petitioners are entitled to be granted permanency for having
completed more than five years of service as rightly directed by the
Industrial Court. He would submit that if the total length of service of
Respondents is taken into consideration, it is clear that some of them
have rendered services in excess of 15-16 years. That Petitioners
cannot exploit the services of the Respondents without granting them
the benefit of permanency. He would rely upon judgment of this Court
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in State of Maharashtra and others Vs. Ramesh Dhadu Dhangar 2, which,
according to Mr. Patil, fully covers the present case. He would
therefore pray for dismissal of the petitions.
8) Mr. Bansode, the learned counsel appearing for the
Respondents in Writ Petition Nos. 3371 of 2002 and 3380 of 2002 would
adopt the submissions of Mr. Patil. Additionally, he would rely upon
judgment of this Court in Conservator of Forest, North Division Forest,
Chandrapur Versus. Shri. Umeshwar Keshav Kathwate3.
9) Rival contentions of the parties now fall for my consideration.
10) The Industrial Court has granted the relief of permanency in
Respondents' favour by considering of five years of service rendered
by them prior to the date of filing of application for amendment i.e. 21
July 1999 for the purpose of grant of relief of permanency. It must be
observed at the very outset that the judgment of the learned Member
of the Industrial Court is not very happily worded, and this Court has
at times found it slightly difficult to comprehend the exact reasoning
adopted by the learned Member while granting the relief in
Respondents' favour. While directing computation of five years of
service for permanency, the learned Member has not even clarified
the exact significance of completion of five years of service for grant
of relief of permanency. Furthermore, why 5 years of service prior to
date of filing of amendment application (21 July 1999) is directed to be
computed is again not clarified. Be that as it may. Since the length of
Writ Petition No. 657 of 2001 decided by Bench at Aurangabad on 27 June 2019.
Letters Patent Appeal No.380 of 2010 and 381 of 2010 decided on 27 November 2017 (Nagpur Bench)
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service of 5 years is directed to be considered, it appears that the
same is done in the context of para 28 of the Kalelkar Award, which
reads thus:
"28. The benefits available to the daily rated employees under the
Kalelkar Agreement (regarding availability of definite
appointments on definite establishment). Such of the workmen on
daily wages who have been working continuously for five years on
such establishment shall be entitled, upon completion of five
years, to have the posts held by them converted into posts on
temporary establishment and such daily rated workmen shall be
appointed on such converted posts. The post created on the
converted establishment shall be personal to the incumbent and if
the incumbents, for any reason leaves services, such post shall
come to an end. Upon appointment on the converted temporary
establishment, the workmen shall be covered by the Bombay Civil
Service Rules."
11) Thus, para-28 of the Kalelkar Award contemplates grant of
status as 'Converted Regular Temporary Establishments' (CRTE) on
completion of five years of continuous service. The grant of CRTE
status under Kalelkar Award cannot be equated with grant of
permanency in government service. In fact, Kalelkar Award has
created special mechanism for conferring CRTE status on daily wages
workers on account of absence of posts for grant of permanency to
them. Therefore, instead of directing creation of posts for grant of
permanency to such daily wage workers, the Award contemplates
creation of posts personally to the workers which lapse with their
retirement. This is the concept of award of CRTE status to the
concerned daily wage workers. However, the Industrial Court in the
present case, while adopting the criteria of completion of 5 years'
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service under Kalelkar Award, appears to have directed grant of
permanency and not grant of CRTE status.
12) I now proceed to decide whether Respondents made out any
case before the Industrial Court for grant of either CRTE status or
permanency in government service on the strength of daily wage
services rendered by them. Ms. Nimbalkar has placed on record chart
relating to the service details as well as the present status of
Respondents. It would be relevant to reproduce the said chart as
under :
अ. मजुरांचे कधीपासुन वय कामाचा औद्योगि!क WRIT औद्योगि!क शेरा
क्र. नाव कामावर प्रकार न्यायालय PETITIO न्यायालय
घेण्यात सध्या केस नं N NO. आदेशाचा
आले (22 (ULP गिदनांक
कायवाही NO.)
नुसार)
1 गिवजय 1/9/1990 56 सध्या 43/1992 3373/2002 31/03/2001 डी. डी. क.
बलभीम वर्ष कामावर 645254 गिदनांक
माळी नाही 15.02.01 अन्वये
रुपये 9711/-
नुकसान भरपाई
देवून कमी केले
सबब अपात्र.
2 सुभार्ष 1/5/1989 68 सध्या 49/1992 3372/2002 31/03/2001 डी. डी.
रामचंद्र वर्ष कामावर क्र 550233
माने नाही गिदनांक 15.02.01
अन्वप रुपये
10458/ नुकसान
भरपाई देवून कमी
केले सबब अपात्र.
3 रमजान 1989 56 सध्या 44/1992 3374/2002 31/03/2001 डी. डी.
दाऊद वर्ष कामावर क्र.645258
मुलाणी नाही गिदनांक 15.02.01
अन्यये रुपये
8964/- नुकसान
भरपाई देवून कमी
केले सबब अपात्र.
4 माणिणक 1989 62 सध्या 51/1992 3375/2002 31/03/2001 डी. डी.
गिवठोबा वर्ष कामावर क्र.645256
खंकाळ नाही गिदनांक 15.02.01
अन्यये रुपये
9711/- नुकसान
भरपाई देवून कमी
केले सबब अपात्र.
5 राजु 1991 58 सध्या 45/1992 3376/2002 31/03/2001 डी. डी.
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मोहम्मद वर्ष कामावर क्र.645260
शेख नाही गिदनांक 15.02.01
(मयत) अन्यये रुपये
8964/- नुकसान
भरपाई देवून कमी
केले सबब अपात्र.
6 धनाजी 1985 55 सध्या 50/1992 3377/2002 31/03/2001 दैनंगिदन मजुरांचे
श्रीरं! वर्ष कामावर कामाचे गिदवस
देशमुख नाही कमी वर्ष भरल्याने
त्यांना नुकसान
भरपाई देण्यात
आलेली नाही.
7 !ं!ाधर 1988 62 सध्या 46/1992 3378/2002 31/03/2001 दैनंगिदन मजुरांचे
अनंत वर्ष कामावर कामाचे
जाधव नाही गिदवस/कमी वर्ष
भरल्याने त्यांना
नुकसान भरपाई
देण्यात आलेली
नाही.
8 भा!वत 1990 57 सध्या 47/1992 3371/2002 31/03/2001 दैनंगिदन मजुरांचे
पंढरी वर्ष कामावर कामाचे
!ायकवाड नाही गिदवस/कमी वर्ष
भरल्याने त्यांना
नुकसान भरपाई
देण्यात आलेली
नाही.
9 परमेश्वर 1989 54 सध्या 48/1992 3380/2002 31/03/2001 दैनंगिदन मजुरांचे
गिवष्णु वर्ष कामावर कामाचे
!ायकवाड नाही गिदवस/कमी वर्ष
भरल्याने त्यांना
नुकसान भरपाई
देण्यात आलेली
नाही.
10 दादा 1989 57 सध्या 54/1992 3537/2002 31/03/2001 डी. डी.
रामचंद्र वर्ष कामावर क्र.645257
माने नाही गिदनांक 15.02.01
अन्यये रुपये
9711/- नुकसान
भरपाई देवून कमी
केले सबब अपात्र.
11 हनुमंत 1988 62 सध्या 53/1992 3532/2002 31/03/2001 डी. डी.
वसंत वर्ष कामावर क्र.645255
पाटील नाही गिदनांक 15.02.01
अन्यये रुपये
9711/- नुकसान
भरपाई देवून कमी
केले सबब अपात्र.
12 णिशवाजी 67 सध्या 56/1992 3533/2002 31/03/2001 डी. डी.
रामचंद्र वर्ष कामावर क्र.645259
ओवाळ नाही गिदनांक 15.02.01
अन्यये रुपये
8964/- नुकसान
भरपाई देवून कमी
केले सबब अपात्र.
14 राजाराम 1/7/1987 76 सध्या 59/1992 3534/2002 31/03/2001 डी. डी.
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बाबुराव वर्ष कामावर क्र.550225
रायचुरे नाही गिदनांक 15.02.01
अन्यये रुपये
11205/- नुकसान
भरपाई देवून कमी
केले सबब अपात्र.
15 ज!दीश 1992 54 सध्या 57/1992 3536/2002 31/03/2001 डी. डी.
एस. !ुं!े वर्ष कामावर क्र.550232
नाही गिदनांक 15.02.01
अन्यये रुपये
10458/- नुकसान
भरपाई देवून कमी
केले सबब अपात्र.
16 रामहरी 1/4/1988 55 सध्या 58/1992 3538/2002 31/03/2001 डी. डी.
ज्योतीराम वर्ष कामावर क्र.557229
पवार नाही गिदनांक 15.02.01
अन्यये रुपये
11205/- नुकसान
भरपाई देवून कमी
केले सबब अपात्र.
17 महादेव 1/12/1988 64 सध्या 52/1992 3379/2002 31/03/2001 डी. डी.
णिभमराव वर्ष कामावर क्र.550237
बोबडे नाही गिदनांक 15.02.01
अन्यये रुपये
11205/- नुकसान
भरपाई देवून कमी
केले सबब अपात्र.
13) Thus, Respondents joined services during various years from
1985 onwards and had approached the Industrial Court with regard to
their limited grievance relating to their transfers. At the time when
their respective ULP complaints were filed, the Respondents did not
desire the relief of permanency. They were only aggrieved by orders
transferring them from one place to another. In the context of the
said grievance relating to transfer, interim reliefs were sought by
Respondents in their respective Complaints seeking stay on transfers.
The Industrial Court passed orders granting status-quo in each of the
complaints. It would be relevant to reproduce one such interim order
passed in the case of Vijay Balbhim Mali (Complaint ULP No.43/1992) :
(O R D E R)
I) The Respondents shall maintain status-quo as to the service
of Complainant, until further order.
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II) The notices also be issued to the Respondents.
14) Thus, on 17 February 1992, status-quo was granted with regard
to the transfers of Respondents. Since there was neither any
termination nor relief of permanency was sought, the interim order
of status-quo was essentially restricted with regard to the place of
posting of each of the Respondents. Though, Ms. Nimbalkar has
sought to suggest that continuation of services of Respondents after
17 February 1992 was owing to status-quo order granted by the
Industrial Court, I am unable to accept the said contention. The
status-quo order was only with regard to the transfer of Respondents
and did not prohibit Petitioners, in any manner, from terminating or
discontinuing their services. This is clear from the fact that during
pendency of the Complaints, Petitioners discontinued services of
Respondents on 15 February 2002, during operation of order of status-
quo. Petitioners thus rightly understood the exact effect of status-quo
order and continued services of Respondents for their own benefit.
15) This is how services of Respondents were continued till
February 2002 during pendency of their respective complaint. The
complaints came to be amended by order dated 12 January 2000
whereby grievance relating to permanency came to be incorporated
in the pending complaints. Ordinarily, the cause of action relating to
transfer was distinct and independent from the cause of action of
permanency and it was not advisable to mix the two independent
causes of action in one complaint. However, the orders granting
amendment have attained finality and the same were not questioned
by the Petitioners. This is how in complaints, which were pending
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since the year 1992 and which were restricted only with regard to the
transfers, were amended in the year 2000 by incorporating the
grievance relating to permanency.
16) Respondents thus continued working for Petitioners from the
dates of their initial engagements till they were terminated on 15
February 2002. Thus, each of the Respondents rendered more than 10
years of service with the Petitioners. Infact one of the Respondents,
Dhanaji Shrirang Deshmukh worked since 1985 till 2002 and rendered
about 17 years of service. The issue for consideration is whether the
Industrial Court is justified in granting the relief of permanency to
the Respondents?
17) Since issue involved in the present Petitions relate to grant of
permanency in Government service, reference to the landmark
judgment of the Constitution Bench in Secretary, State of Karnataka &
Ors. V/s. Umadevi4, which marks a watershed moment in development
of law relating to regularization, would be necessary. The Constitution
Bench held that mere continuance of an employee for a long period
does not create any right of regularisation in the service. It is held
thus:
43.Thus, it is clear that adherence to the rule of equality in
public employment is a basic feature of our Constitution and
since the rule of law is the core of our Constitution, a Court
would certainly be disabled from passing an order upholding a
violation of Article 14 or in ordering the overlooking of the
need to comply with the requirements of Article 14 read with
(2006) 4 SCC 1
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Article 16 of the Constitution. Therefore, consistent with the
scheme for public employment, this Court while laying down
the law, has necessarily to hold that unless the appointment is
in terms of the relevant rules and after a proper competition
among qualified persons, the same would not confer any right
on the appointee. If it is a contractual appointment, the
appointment comes to an end at the end of the contract, if it
were an engagement or appointment on daily wages or casual
basis, the same would come to an end when it is discontinued.
Similarly, a temporary employee could not claim to be made
permanent on the expiry of his term of appointment. It has also
to be clarified that merely because a temporary employee or a
casual wage worker is continued for a time beyond the term of
his appointment, he would not be entitled to be absorbed in
regular service or made permanent, merely on the strength of
such continuance, if the original appointment was not made by
following a due process of selection as envisaged by the relevant
rules. It is not open to the court to prevent regular recruitment
at the instance of temporary employees whose period of
employment has come to an end or of ad hoc employees who by
the very nature of their appointment, do not acquire any right.
High Courts acting under Article 226 of the Constitution of
India, should not ordinarily issue directions for absorption,
regularization, or permanent continuance unless the
recruitment itself was made regularly and in terms of the
constitutional scheme. Merely because, an employee had
continued under cover of an order of Court, which we have
described as 'litigious employment' in the earlier part of the
judgment, he would not be entitled to any right to be absorbed
or made permanent in the service. In fact, in such cases, the
High Court may not be justified in issuing interim directions,
since, after all, if ultimately the employee approaching it is
found entitled to relief, it may be possible for it to mould the
relief in such a manner that ultimately no prejudice will be
caused to him, whereas an interim direction to continue his
employment would hold up the regular procedure for selection
or impose on the State the burden of paying an employee who is
really not required. The courts must be careful in ensuring that
they do not interfere unduly with the economic arrangement of
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its affairs by the State or its instrumentalities or lend
themselves the instruments to facilitate the bypassing of the
constitutional and statutory mandates.
18) The sound exposition of law by the Apex Court in Umadevi now
renders regularization of casual, ad-hoc, temporary or contractual
employees impermissible even if they have rendered long years of
service. However a one-time exception has been carved out by Apex
Court in Umadevi for regularisation of irregularly appointed
employees against sanctioned posts completing 10 years of service, In
Umadevi period of 10 years' service is prescribed for one time
exception only if the same is without intervention by
Courts/Tribunal. Para 53 of judgment in Umadevi reads thus:
53. One aspect needs to be clarified. There may be cases where
irregular appointments (not illegal appointments) as explained
in S.V. Narayanappa and referred to in para 15 above, of duly
qualified persons in duly sanctioned vacant posts might have
been made and the employees have continued to work for ten
years or more but without the intervention of orders of the
courts or of tribunals. The question of regularisation of the
services of such employees may have to be considered on merits
in the light of the principles settled by this Court in the cases
above referred to and in the light of this judgment. In that
context, the Union of India, the State Governments and their
instrumentalities should take steps to regularise as a one-time
measure, the services of such irregularly appointed, who have
worked for ten years or more in duly sanctioned posts but not
under cover of orders of the courts or of tribunals and should
further ensure that regular recruitments are undertaken to fill
those vacant sanctioned posts that require to be filled up, in
cases where temporary employees or daily wagers are being now
employed. The process must be set in motion within six months
from this date. We also clarify that regularisation, if any already
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made, but not subjudice, need not be reopened based on this
judgment, but there should be no further bypassing of the
constitutional requirement and regularising or making
permanent, those not duly appointed as per the constitutional
scheme.
19) Since the Petitions arise out of Orders passed by the Industrial
Court, a brief reference to the powers and jurisdiction of an industrial
adjudicator to grant regularisation de horse the judgment of
Constitution Bench in Umadevi would also be necessary. The issue
arose before the Apex Court in MSRTC Vs. Casteribe Rajya Parivahan
Karmachari Sanghatana5. In MSRTC (supra), the Apex Court held that
the judgment in Umadevi does not denude the Industrial and Labour
Courts of their statutory power under 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. It further held that the provisions of
MRTU and PULP Act enables an industrial adjudicator to give
preventive as well as positive direction to an erring employer. In
MSRTC the Apex Court has held in paragraph 32, 33 and 36 as under:-
"32. The power given to the Industrial and Labour Courts under
Section 30 is very wide and the affirmative action mentioned therein
is inclusive and not exhaustive. Employing badlis, casuals or
temporaries and to continue them as such for years, with the object
of depriving them of the status and privileges of permanent
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.
(2009) 8 SCC 556
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33. The provisions of the MRTU and PULP Act and the powers of
the Industrial and Labour Courts provided therein were not at all
under consideration in Umadevi (3). As a matter of fact, the issue like
the present one pertaining to unfair labour practice was not at all
referred to, considered or decided in Umadevi (3). Unfair labour
practice on the 9 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 the Industrial and Labour Courts under Section 30 of the Act
did not fall for adjudication or consideration before the Constitution
Bench.
36. Umadevi (3) 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
under Item 6 of Schedule IV where the posts on which they have been
working exist. Umadevi (3) 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 the PULP Act, once unfair
labour practice on the part of the employer under Item 6 of Schedule
IV is established."
(emphasis supplied)
20) In Hari Nandan Prasad and another Vs. Employer I/R to Management
of Food Corporation of India and another,6 the Apex Court took note of its
judgments in UP Power Corporation vs. Bijli Mazdoor Snagh & Anr. 7 and
MSRTC and held that in absence of post, regularization cannot be
directed. The Apex Court however has carved out certain exceptions
to this general principle. The Apex Court in Hari Nandan Prasad
proceeded hold in paragraph 34, 35, 39 and 40 as under:
(2014) 7 SCC 190
2007 5 SCC 755
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34 A close scrutiny of the two cases, thus, would reveal that the
law laid down in those cases is not contradictory to each other. In
U.P. Power Corpn.8, this Court has recognised the powers of the
Labour Court and at the same time emphasised that the Labour
Court is to keep in mind that there should not be any direction of
regularisation if this offends the provisions of Article 14 of the
Constitution on which the judgment in Umadevi (3) is primarily
founded. On the other hand, in Bhonde case the Court has
recognised the principle that having regard to the statutory
powers conferred upon the Labour Court/Industrial Court to grant
certain reliefs to the workmen, which includes the relief of giving
the status of permanency to the contract employees, such
statutory power does not get denuded by the judgment in
Umadevi (3) case. It is clear from the reading of this judgment
that such a power is to be exercised when the employer has
indulged in unfair labour practice by not filling up permanent
posts even when available and continuing to employ workers on
temporary/daily-wage basis and taking the same work from them
and making them do some purpose which was being performed by
the regular workers but paying them much less wages. It is only
when a particular practice is found to be unfair labour practice, as
enumerated in Schedule IV of the MRTP and PULP Act, and it
necessitates giving direction under Section 30 of the said Act, that
the court would give such a direction.
35. We are conscious of the fact that the aforesaid judgment is
rendered under the MRTP and PULP Act and the specific
provisions of that Act were considered to ascertain the powers
conferred upon the Industrial Tribunal/ Labour Court by the said
Act. At the same time, it also hardly needs to be emphasised that
the powers of the industrial adjudicator under the Industrial
Disputes Act are equally wide. The Act deals with industrial
disputes, provides for conciliation, adjudication and settlements,
and regulates the rights of the parties and the enforcement of the
awards and settlements. Thus, by empowering the adjudicator
authorities under the Act to give reliefs such as reinstatement of
wrongfully dismissed or discharged workmen, which may not be
permissible in common law or justified under the terms of the
contract between the employer and such workmen, the legislature
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has attempted to frustrate the unfair labour practices and secure
the policy of collective bargaining as a road to industrial peace.
39. On a harmonious reading of the two judgments discussed in
detail above, we are of the opinion that when there are posts
available, in the absence of any unfair labour practice the Labour
Court would not give direction for regularisation only because a
worker has continued as daily-wage worker/ad hoc/temporary
worker for number of years. Further, if there are no posts
available, such a direction for regularisation would be
impermissible. In the aforesaid circumstances giving of direction
to regularise such a person, only on the basis of number of years
put in by such a worker as daily-wager, etc. may amount to back
door entry into the service which is an anathema to Article 14 of
the Constitution. Further, such a direction would not be given
when the worker concerned does not meet the eligibility
requirement of the post in question as per the recruitment rules.
However, wherever it is found that similarly situated workmen are
regularised by the employer itself under some scheme or
otherwise and the workmen in question who have approached the
Industrial/Labour Court are on a par with them, direction of
regularisation in such cases may be legally justified, otherwise,
non-regularisation of the left-over workers itself would amount to
invidious discrimination qua them in such cases and would be
violative of Article 14 of the Constitution. Thus, the industrial
adjudicator would be achieving the equality by upholding Article
14, rather than violating this constitutional provision.
40. The aforesaid examples are only illustrative. It would depend
on the facts of each case as to whether the order of regularisation
is necessitated to advance justice or it has to be denied if giving of
such a direction infringes upon the employer's rights.
21) Thus, in Hari Nandan Prasad, the Apex Court ruled that if posts
are not available, issuance of directions for regularisation would be
impermissible and that such directions cannot be issued only on the
basis of number of years put in by a daily wager. However the Apex
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Court did carve out some exceptions such as similarly situated
workmen being regularised in terms of a scheme. It thus held that by
ordering regularization of similarly placed employee the industrial
adjudicator would be achieving the equality by upholding Article 14,
rather than violating this constitutional provision. Thus, once an
employer formulates a scheme for regularization and regularizes
similarly placed employees in accordance with that Scheme, it is
permissible for an industrial adjudicator to direct regularization of
casual/daily wage worker who fulfills the criteria prescribed in the
Scheme.
22) Thus an industrial adjudicator can grant the relief of
permanency in terms of scheme formulated by the employer. It would
therefore be necessary to consider whether any such scheme for
regularization has been formulated by the State Government, under
which Respondents can claim permanency.
23) The Forest Department has been engaging daily rated workers
for implementation of various schemes including carrying out various
activities inside forests. Large number of such daily rated workers
were engaged by the Forest Department and the issue of granting
them permanency was under consideration of the State Government.
On 6 October 1995, the State Government created 10,160
supernumerary posts in respect of daily wage workers who had
completed five years of continuous service as on 1 November 1994. On
31 January 1996, G.R. was issued by which, out of 10,160
supernumerary posts, 8038 posts came to be regularised w.e.f. 1
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November 1994. Thus, as per the G.R. dated 31 January 1994, the State
Government regularised the services of daily rated forest workers
who had completed five years of continuous service as on 1 November
1994. For counting five years of continuous service, it was mandatory
to render minimum 240 days of service in each year without
considering the services rendered under the Employment Guarantee
Scheme. The daily rated forest workers who were so regularised, were
designated as 'Van Majur' (Forest Labourers).
24) Thereafter, several Government Resolutions were issued on 16
March 1998, 29 January 2000 etc. granting absorption to additional
daily rated forest workers. The State Government later decided to
advance the cut-off date of '1 November 1994' and fix the new date as
'30 June 2004' for determining the eligibility of daily rated forest
workers for absorption in service. On 16 October 2012, G.R. was issued
directing absorption of daily rated forest workers completing five
years of service during the period from 1 November 1994 to 30 June
2004. Accordingly, the daily rated workers who were in service as on 1
June 2012 but who had completed five years of service during 1
November 1994 to 30 June 2004 were absorbed in service. This is how,
those 546 daily rated workers came to be absorbed in service from 1
June 2012. It was found that additional daily rates workers were
eligible for being absorbed but were left out and accordingly G.R.
dated 10 May 2018 was issued directing absorption of 569 daily rated
forest workers who had completed five years of service during 1
November 1994 to 30 June 2004.
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25) As seen above, the daily rates workers in the Forest Department
have been progressively absorbed in service. The criteria applied for
their absorption is completion of five years of service. The earlier cut-
off date was 1 November 1994 which was later advanced to 30 June
2004. However, for absorption of workers covered by cut-off date of 30
June 2004, other criteria made applicable was their continuance in
service as on 1 June 2012. Perusal of the above Government
Resolutions would show that the same were made applicable to
various schemes implemented by the Forest Department including the
Scheme of Social Forestry. In that view of the matter, the Government
Resolutions would apply to the Respondents as well who have
rendered services under the schemes implemented by the Social
Forestry Scheme.
26) The Industrial Court has apparently not considered the G.R.
dated 31 January 1996 while passing the impugned judgment and
order dated 31 March 2001. It appears that the Industrial Court has
taken into consideration the provisions of Kalelkar Award and has
accordingly directed grant of permanency by taking into
consideration five years of service prior to 21 July 1999 (amendment
of complaint) for granting the benefit of permanency.
27) Perusal of various Government Resolutions discussed above
would indicate that each G.R. refers to creation of particular number
of posts for grant of benefit of absorption. It is therefore not known
whether the Respondents were taken into consideration while
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sanctioning various posts for their absorption in service. It appears
that since complaints of Respondents were pending, their cases were
not taken into consideration while sending proposals for sanctioning
of posts for absorption of Van Majurs. The aforesaid Government
Resolutions have been taken into consideration by this Court in its
judgment in State of Maharashtra Vs. Dhanu Rama Ratod and State of
Maharashtra Versus. Sitaram Lakaji Kamble8. The said judgment has been
reproduced by this Court in State of Maharashtra Vs. Ramesh Dhadu
Dhangar (supra). It would therefore be appropriate to reproduce the
entire judgment in Ramesh Dhadu Dhangar as under:
1. The petitioner-Social Forestry Division, Jalgaon, is aggrieved by
the judgment delivered by the Industrial Court, Jalgaon, dated 4th
September, 2000, vide which, Complaint (ULP) No. 852/1999 (old
No. 210 of 1993) has been allowed and the respondent has been
granted permanency on the post of Labour from the date of filing
of the complaint.
2. This Court has dealt with identical matters, vide judgment dated
6th May, 2019 delivered in Writ petitions No. 2182 of 1999 and 2183
of 1999, the State of Maharashtra and another Vs. Dhanu Rama
Ratod and, Sitaram Lakaji Kamble. It is observed in the said
judgment in paragraphs No. 1 to 12 as under:
" 1. In both these petitions, the petitioner State and the Department
of Social Forestry are aggrieved by the judgment and order dated
03/12/1998 delivered by the Industrial Court in complaint (ULP) Nos.
408 and 409 of 1991. By the impugned judgments, the Industrial
Court has granted permanency to the original complainant workers
with immediate effect after completion of 240 days in continuous
employment.
Writ Petition No. 2182 and 2183 OF 1999 decided on 6 May 2019.
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2. I have considered the strenuous submissions of the learned AGP on
behalf of the petitioners and Shri Awate learned Advocate appearing
for the identically placed respondent - original complainants.
3. In both these cases, the original complainants who were working on
daily wages from 01/11/1985 and 01/07/1987, respectively, as
watchman cum labourer. Both of them approached the Industrial
Court by filing their ULP complaints invoking Items 5, 6, 9 and 10 of
Schedule IV of the MRTU and PULP Act, 1971. They also invoked
Standing Orders 4C and 4D of the Industrial Employment (Standing
Orders) Act, 1946 seeking regularization on the principle of deemed
permanency after completing 240 days in continuous employment. On
the basis of the oral and documentary evidence and the pleadings of
the parties, the Industrial Court concluded that these workers were
entitled to be granted regularization as they had attained the deemed
status of permanency on completing 240 days in continuous
employment.
4. The learned Advocate for the respondent workers has strenuously
supported the impugned judgments, notwithstanding the fact that
this Court had stayed the impugned judgments by order dated
15/06/1999 and by a subsequent order dated 24/08/1999, the petitions
were admitted. However, the services of the respondent workers were
protected by the order of this Court.
5. The issue as to whether the deeming fiction of permanency under
Standing Order 4C and 4D would be applicable to the state or the
instrumentalities of the State, is no longer Resintegra. It has been
held in the matter of Municipal Council, Tuljapur Vs. Baban Hussain
Dhale in WP No. 1843/2015 and connected matters, decided on
26/02/2015, Mukhyadhikari, Nagar Parishad, Tuljapur Vs. Vishal
Vijay Amrutrao and others, 2015 (5) Mh.L.J. 75, that the deeming
fiction of permanency, on completion of 240 days in continuous
employment, is not applicable to state instrumentalities. The power
to create posts and grant financial sanctions is with the State.
Merely because an employee completes 240 days in continuous
employment, would not entitle him to regularization in the absence
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of permanent posts. This deeming fiction flowing from the Industrial
Employment (Standing Orders) Act, 1946 is applicable only to private
sector industries or even some of the public sector industries who
have adopted these standing orders.
6. Considering the conflict of views amongst two learned Single
Judges of this Court at the Nagpur Bench, the matter was referred to
the learned Division Bench at Nagpur in the Municipal Council
Tirora and anr. Vs. Tulsidas Baliram Bindhade, 2016 (6) Mh.L.J.867.
The learned Division Bench concluded that in the case of state
instrumentalities, when the role of the Government is decisive in
creating posts and adopting a procedure for regularization, Standing
Orders 4C and 4D would not be applicable.
7. In so far as the issue as to whether Social Forestry Department is
an industry or not, for the present, is a settled position, in so far as
this Court is concerned. There is no dispute that the matter is
referred to a larger bench in the case of State of U.P. Vs. Jai Bir Singh
(2005) 5 SCC 1 for consideration as to whether Social Forestry
Department could be termed as being an 'industry' under section 2(s)
of the Industrial Disputes Act, 1947. As the legal position stands
today, I am not required to consider the contention of the learned
AGP that because the issue is pending before the Hon'ble Apex Court
for the last 14 years and as a larger bench is still not constituted,
this petition, alongwith many similar petitions, which are pending
for final hearing for 13 years and the litigation dates back to 1988,
should be kept pending. Nevertheless, the learned Division Bench of
this Court (Coram : A. S. Oka and M.S. Sonak, JJ) have held that the
Forest department is an industry, in Chief Conservator of Forests,
Pune (T) and another Vs. Janabai Sonaba Sarpale, 2019 II CLR 28.
8. Notwithstanding the above, the State of Maharashtra has
introduced two resolutions, dated 19.10.1996 and 16.8.2012. By the
first G.R., all those daily wagers who have been working for 5
consecutive years with the Social Forestry Department, under any of
its schemes, have been held eligible to be brought on regular
establishment. Those workmen, in the instant case, who have
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succeeded before the Industrial Court vide the impugned judgment,
are held to have worked for 240 days in continuous employment, are
in service and would be eligible for the benefits of the first G.R.
Similarly, the second G.R. indicates that those workers, who have
been working on daily wages from 1.12.1994 and who have worked for
five consecutive years and have completed 240 days in continuous
employment in each year in between 1.11.1989 to 31.10.1994, have
been held to be eligible for regularisation since the State has created
5089 posts for absorbing such daily wagers working in the Social
Forestry Department.
9. In view of the above, these petitions are rendered of an academic
interest. Nevertheless, since the issue of creation of posts was the
core issue before the Industrial Court, these petitions will have to be
partly allowed in so far as the declaration of unfair labour practices
against the department is concerned. It is settled position that when
the power to create posts vests with the State Government and until
such posts are created, the Social Forestry Department cannot grant
regularisation, there cannot be a declaration of ULP against the
department, in the absence of posts.
10. In view of the above, these petitions are partly allowed to the
extent of quashing the declaration of ULP under items 6 and 9 of
Schedule IV. So also, all those workman who have succeeded before
the Industrial Court, vide the impugned judgment, shall be
considered for service benefits, inclusive of monetary benefits and
regularization, as per the G.Rs. Dated 19.10.1996, 16.10.2012 and
10.05.2018. The petitioners shall consider their cases in the light of
the said two Government Resolutions and shall take a decision with
regard to grant of the benefits under the said two Government
Resolutions, inclusive of monetary benefits and regularization.
11. The proposals shall be prepared by the petitioners/competent
authority and shall be submitted to the appropriate department of
the State of Maharashtra on / or before 31.07.2019. Thereafter, the
department would consider the cases of each of the daily wagers, who
have succeeded before the Industrial Court, vide the impugned
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judgment and the decision shall be announced on / or before the 15th
day of October, 2019. Since there is a possibility that most of these
successful workmen before the Industrial Court would have
completed 58 years of age and may have crossed the age of
superannuation, the petitioners shall not pray for extension of time
and shall consider their cases in view of the order of this
Court,expeditiously, with promptitude and by giving highest priority.
Their age would not be an impediment.
12. The impugned judgment of the Industrial Court, therefore, stands
merged in the directions of this Court. Needless to state, all the
successful daily wagers before the Industrial Court and under the two
Government Resolutions, will be eligible for continuity of service,
monetary benefits and all benefits incidental and consequential
thereto."
3. Considering the above, this petition is partly allowed and the
directions set out in paragraphs No. 9, 10, 11 and 12, reproduced
above, shall be made applicable even to this petition.
4. In so far as paragraph no. 11 is concerned, the proposals shall be
submitted on or before 31st July, 2019, the same would be
considered and the decision will be announced on or before 15th
October, 2019.
5. Rule is made partly absolute in the above terms.
28) Thus, in Dhanu Rama Ratod and Ramesh Dhadu Dhangar, this Court
directed consideration of cases as per the G.R.s dated 19 October 1996,
16 October 2012 and 10 May 2018. In my view, similar course of action
deserves to be adopted in the present cases as well.
29) Thus, the State Government has formulated a specific scheme
for regularization of daily rated forest workers and therefore cases of
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Respondents also need to be considered in accordance with that
scheme. It therefore cannot be contended that the Respondents
cannot be considered at all for grant of permanency to them. Instead
of granting them permanency straightaway on completion of 5 years
of service as directed by the Industrial Court (possibly as per Kalelkar
Award) it would be appropriate to direct consideration of cases of
Respondents in accordance with the scheme floated bide above
referred GRs. As observed above, Kalelkar Award merely confers CRTE
status and does not contemplate grant of regularization or
permanency in contradistinction to the above referred GRs, which do
provide for regularization in service. To this limited extent, the
orders passed by the Industrial Court needs modification.
30) Accordingly, I proceed to pass the following Order :
(i) Writ Petitions are partly allowed to the extent of setting
aside the direction of Industrial Court for grant of
permanency by taking into consideration five years of
service prior to 21 July 1999.
(ii) Instead, there will be a direction for consideration of
cases of Respondents for regularisation as per the
Government Resolutions dated 19 October 1996, 16
October 2012 and 10 May 2018.
(iii) Petitioners shall accordingly consider cases of each of the
Respondents as has been directed by this Court in Dhanu
Rama Ratod and Ramesh Dhadu Dhangar.
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(iv) The proposals in this regard shall be submitted on/or
before 30 November 2024 and decision thereon shall be
taken on/or before 31 January 2025.
(v) Those Respondents who fulfill the criteria of completion
of five years of service as on 1 November 1994, prescribed
in the G.R. dated 31 January 1996, shall be considered for
absorption w.e.f. 1 November 1994. However, in the event
if it is found that some of the Respondents do not fulfill
the criteria laid down in the G.R. dated 31 January 1996,
they shall be considered for absorption in terms of the
G.R. dated 16 October 2012.
(vi) Considering the peculiar facts and circumstances of the
present case, where Respondents were terminated in
February 2002, the condition of being in service as on 1
June 2012 shall not be insisted upon in case of such
Respondents, who complete five years of service as on 30
June 2004. However, they shall be treated as having been
absorbed in service w.e.f. 1 June 2012 in the event they
fulfill the criteria of completing five years of service
during the period from 1 November 1994 to 30 June 2004.
(vii) Most of the Respondents have crossed the age of
superannuation and they/their heirs shall accordingly be
paid consequential monetary benefits with effect from
the dates of their absorption till the date of attaining the
age of superannuation. After their superannuation, they
shall be granted consequential retirement benefits.
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(viii) Within 3 months of passing orders in case of each
Respondents, the Petitioners shall pay the consequential
monitory benefits to them, by deducting the amount of
compensation already paid to them.
31) With the above directions, all the Writ Petitions are partly
allowed and disposed of. Rule is made partly absolute in all petitions.
There shall be no order as to costs.
Digitally
signed by
NEETA
NEETA SHAILESH
SHAILESH SAWANT [SANDEEP V. MARNE, J.]
SAWANT Date:
2024.09.20
17:42:22
+0530
____________________________________________________________________
20 September 2024
