[Cites 2, Cited by 0]
Bombay High Court
Maharashtra Rajya Sarvajanik ... vs Public Works Department And Ors. on 19 December, 2025
Author: Amit Borkar
Bench: Amit Borkar
2025:BHC-AS:56221
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AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.497 OF 2015
Maharashtra Rajya Sarvajanik
Bandhkan Karmachari Sangh,
Neelkanth Apartment, Mahagiri,
Thane (West) 400 601 ... Petitioner
V/s.
ATUL
GANESH
KULKARNI
Digitally signed by
1. Public Works Department,
ATUL GANESH
KULKARNI
Date: 2025.12.19
Government of Maharashtra, 2nd Floor,
11:47:53 +0530
Mantralaya, Mumbai 400 032
2. Secretary (Roads), Public Works
Department, Government of
Maharashtra, Mantralaya,
Mumbai - 400 032
3. Chief Engineer, Public Works
Department, Regional Zone (Konkan
Region), Marzaban Road,
Mumbai 400 001
4. Superintendent Engineer,
Public Works Department, Mumbai
Circle, Marzaban Road, Mumbai 1.
5. Executive Engineer, P.W.D.,
Government of Maharashtra,
Presidency Division, 3rd Floor,
Old Custom House, Fort,
Mumbai 400 023.
6. Superintendent, M.L.A Hostel,
P.W.D., Government of Maharashtra,
MLAs Hostel, H.T. Parekh Marg,
Mantralaya, Mumbai ... Respondents
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WITH
WRIT PETITION NO.13882 OF 2018
Maharashtra Rajya Sarvajanik
Bandhkan Karmachari Sangh,
Neelkanth Apartment, Mahagiri,
Thane (West) 400 601 ... Petitioner
V/s.
1. Secretary, Public Works Department,
Government of Maharashtra, 2nd Floor,
Mantralaya, Mumbai 400 032
2. The Chief Engineer, Government of
Maharashtra, Public Works
Department (Electrical), Administrative
Building, Chembur, Mumbai,
presently having address at Bandhkam
Bhavan, Marzban Road, Mumbai 1
3. Superintendent Engineer,
Government of Maharashtra
Public Works Department Electrical
3rd Floor, Administrative Building,
Chembur, Mumbai 400 071
presently having address, Pune
Pradeshik (Electric) Division, Date
Bungalow, Government Dudh Yojana,
Khadki, Pune 411 003.
4. Executive Engineer, P.W.D. (Electric),
Government of Maharashtra,
Krushi Bandhkam Vidyut Vibhag No.5,
Matru Dudgh Shala (Kurla Dairy
Premises), Nehru Nagar, Kurla (East,
Mumbai 400 024, presently having
2
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address, Division No.5, 5th Floor,
Bandhkam Bhavan, Marzaban Road,
Mumbai 400 001.
5. Deputy Engineer, PWD (Electric),
Government of Maharashtra,
Project Electric Depot,
P.W.D. MLA Hostels, Manora,
Mumbai 400 021, presently having
address MLA Hostel, Free Press Journal
Marg, Nariman Point, Mumbai 400 021 ... Respondents
Mr. Bhavesh Parmar with Reshma Nair, Rajesh Sahani,
Devmani Shukla, Vivekanand Akshali, & Vijayprakash
Yadav i/by Devmani Shukla for the petitioner.
Mr. P.G. Sawant, AGP with Smt. M.S. Srivastava for
respondent Nos.1 to 6-State.
CORAM : AMIT BORKAR, J.
RESERVED ON : DECEMBER 12, 2025
PRONOUNCED ON : DECEMBER 19, 2025
JUDGMENT:
1. The petitioner Union has invoked the writ jurisdiction of this
Court to challenge the Judgment and Order dated 17 February
2014 passed in Complaint (ULP) No.605 of 2008 and the
Judgment and Order dated 15 October 2016 passed in Complaint
(ULP) No.98 of 2008 by the Industrial Court. By the said orders,
the Industrial Court rejected the reliefs sought by the Union for a
declaration that the concerned workmen be treated as permanent
on completion of the requisite period of service and be granted
consequential monetary benefits.
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2. The facts leading to the filing of the present writ petitions
may be stated thus. The petitioner Union filed Complaint (ULP)
Nos.605 of 2008 and 98 of 2008 before the Industrial Court,
Mumbai, alleging that the respondents had engaged in unfair
labour practices under Items 5, 6, and 9 of Schedule IV of the
MRTU and PULP Act, 1971. These complaints were filed in a
representative capacity on behalf of the concerned workmen. A list
of such workmen was annexed, setting out the dates of their initial
engagement, their induction on daily wage basis, and the dates on
which permanency was claimed.
3. The case of the petitioner Union is that the concerned
workmen were engaged by the respondent establishment during
the period from 1996 to 2000 on different dates. It is asserted that
they rendered continuous service for five years, satisfying the
requirement of minimum days of work in each year. On that basis,
the Union claims that the workmen became entitled to benefits
under the Kalelkar Award from the date of their initial
appointment. It is further asserted that the work performed by
them was of a permanent nature and that they were deliberately
continued on daily wages for years together, thereby depriving
them of permanency and attendant benefits.
4. The respondents filed their reply contending that the
workmen were engaged in various establishments such as MLA
Hostels and Government residential premises. The engagement
was through the Public Works Department of the State of
Maharashtra. According to the respondents, the appointments
were purely temporary and for a period of fifteen days at a time.
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After completion of fifteen days, another set of workmen was
deployed and thereafter the earlier set was again engaged. On this
basis, it was contended that each workman worked only for fifteen
days in a month. The respondents further asserted that the
workmen did not complete 240 days of work in a year for five
continuous years and, therefore, were not entitled to benefits
under the Kalelkar Award. It was also contended that no
sanctioned posts were available at the relevant time. Reference
was made to the Government Resolution dated 16 September
2005, whereby 508 daily wage workers of the Public Works
Department were absorbed on the rozandhari establishment.
Further reliance was placed on the subsequent Government
Resolution dated 13 February 2014, by which 378 such workers
were granted permanency with effect from 21 September 2010.
On these grounds, dismissal of the complaints was sought.
5. By orders dated 17 February 2014 and 15 October 2016, the
Industrial Court, after recording evidence of both sides, dismissed
both complaints. The Industrial Court held that the petitioner
Union failed to establish favoritism or partiality on the part of the
respondents and, therefore, no case of unfair labour practice under
Item 5 of Schedule IV was made out.
6. The Industrial Court also rejected the complaints under
Items 6 and 9 of Schedule IV. It accepted the contention of the
respondents that the workmen had not completed 240 days of
continuous service in a year for five years from the date of initial
engagement. It was held that the workmen were engaged on a
daily wage basis and, in the absence of sanctioned posts, the
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respondents had no authority to grant permanency. The Industrial
Court further relied upon the Government Resolution dated 16
September 2005 and the subsequent Resolution dated 13 February
2014 granting permanency benefits in terms of the Kalelkar
Award. On this reasoning, it concluded that no unfair labour
practice was established. Being aggrieved, the petitioner Union has
approached this Court.
7. Learned Advocate for the petitioner submitted that consent
terms were filed on 7 March 2005 in Complaint (ULP) No.343 of
2000 before the Industrial Court, Mumbai. Under the said consent
terms, the parties agreed to comply with the Kalelkar Award. It is
submitted that thereafter, in the year 2008, Complaint (ULP)
No.98 of 2008 was filed in respect of workmen in the civil
department and Complaint (ULP) No.605 of 2008 was filed in
respect of workmen in the electrical department, seeking the
reliefs prayed therein.
8. It is further submitted that on 13 February 2014, the Public
Works Department issued an order in compliance with Rule 28 of
the Kalelkar Award. By the said order, benefits of temporary
workmen were extended to daily wage workers with effect from 16
September 2010 in respect of sixty workers mentioned in
Annexure A and with effect from 21 September 2010 in respect of
378 workers mentioned in Annexure B.
9. It is pointed out that on 17 February 2014, the Industrial
Court rejected the reliefs sought in Complaint (ULP) No.605 of
2008. Against the said order, Writ Petition No.497 of 2015 was
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filed before this Court, wherein rule was issued on 27 July 2015
and the matter was directed to be heard finally.
10. Similarly, on 15 October 2016, the Industrial Court rejected
the reliefs sought in Complaint (ULP) No.98 of 2008. This order
was challenged by filing Writ Petition No.13882 of 2018, in which
rule was issued by this Court on 6 May 2022 and the matter was
kept for final hearing.
11. Learned Advocate for the petitioner further submitted that
an important legal issue involved in both complaints was not
brought to the notice of the Industrial Court. It is contended that
the issue is squarely covered by the judgment of this Court dated
18 October 1991 in State of Maharashtra v. M.V. Ghalge 1991 Mah
LJ 1557. Particular reliance is placed on paragraphs 9, 10, and 12
of the said judgment, which deal with the interpretation of Rule 28
of the Kalelkar Award.
12. It is urged that the reasoning accepted by the Industrial
Court, namely that the requirement of five years of continuous
employment would not apply since the workmen were engaged
only for fifteen days at a time, is directly contrary to the law laid
down in the judgment dated 18 October 1991. On this basis, it is
contended that the petitioner workmen are entitled to the reliefs
sought in the complaints.
13. Per contra, learned AGP appearing for the respondents
submitted that the Industrial Court has, in paragraphs 22 and 27
of the impugned judgment, recorded a clear finding of fact that
none of the concerned workmen had rendered continuous service
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for five years by completing 240 days of work in any calendar year.
It is specifically noted that the workmen were engaged only for
fifteen days in a month, followed by a break of fifteen days, and
thereafter re-engaged for another spell of fifteen days. On this
factual foundation, the Industrial Court concluded that there was
no continuity of service. Consequently, the workmen were not
entitled to claim the benefit of the Kalelkar Award from the date of
their initial engagement as daily wage workers.
14. Learned AGP for the respondents further submitted that, in
paragraph 23 of the judgment in Complaint (ULP) No.605 of 2008,
the Industrial Court has recorded that, pursuant to the
Government Resolution dated 16 September 2005, a total of 508
workmen were absorbed on the daily establishment on rozandhari
basis. It is further recorded in paragraph 25 that, by a subsequent
Government Resolution dated 13 February 2014, the Government
of Maharashtra, Public Works Department, created 378 posts and
granted the benefit of permanency under the Kalelkar Award with
effect from 21 September 2010 to the workmen whose names are
included in Annexure-B to the said Resolution. It is, therefore,
contended that the concerned workmen covered by the complaints
have already been extended the benefit of permanency from the
said date and, as such, no surviving grievance remains for
adjudication in the complaints.
15. I have considered the record, the judgments under challenge,
and the rival submissions. I have also perused the authoritative
decision relied upon by the petitioner in M.V. Ghalge.
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16. The short questions are these. Did the Industrial Court err in
holding that the workmen never rendered continuous service of
240 days in a year for five years? Did the Court misapply Rule 28
of the Kalelkar Award and the relevant law? Do the Government
Resolutions cited by the respondents extinguish the individual
claims of the workers for earlier entitlement?
17. The petitioner Union contend that the workmen were
engaged between 1996 and 2000. The Union says each workman
completed the qualifying period and days as required by the
Kalelkar Award. The Union relies on the judgment in M.V. Ghalge
for the legal test under Rule 28. The respondents conten that the
workmen were engaged in short spells of 15 days and then kept
idle for 15 days. The respondents say this pattern shows no
continuity. They rely on Government Resolutions of 16 September
2005 and 13 February 2014. They say many workers were
regularised by those GRs and that removes any live grievance.
18. The Industrial Court recorded that no worker worked 240
days in any year for five continuous years. It accepted the 15-days-
on, 15-days-off pattern as demonstrating lack of continuity. The
Court also referred to the GRs and found that many of the workers
were absorbed or given permanency effective from dates specified
in those GRs. On that basis the Industrial Court dismissed the
complaints.
19. Rule 28 of the Kalelkar Award sets the qualifying test for
absorption of temporary or daily wage workmen into
establishment service. The proper question is whether, on the
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materials, an individual workman satisfies the statutory or award
criterion for each relevant year. The nature of the work matters.
The legal tests are twofold. First, factual proof of qualifying days in
each relevant year. Second, whether the character of the job was
essentially perennial and permanent in nature. The decision in
M.V. Ghalge clarifies the correct approach to Rule 28. The Court
there required an analysis of attendance and of the actual pattern
of engagement. The Court emphasised substance over form. Where
the work is perennial and the worker, by the nature and continuity
of engagement, meets the award requirement, technical gaps
ought not to defeat entitlement. The principles in that decision
must guide the present adjudication.
Analysis of the rival contentions:
20. The applicants bear the burden to prove days worked and
the nature of the employment. Proof must come from attendance
records, muster rolls, wage sheets and witnesses. Where such
primary documents are available, they must be examined in detail.
The Industrial Court recorded evidence. The findings must rest on
that evidence and the correct legal test.
21. A bare statement that workmen were engaged in alternate
fifteen-day spells does not end the inquiry. The proper test is
whether, despite such patterns, the workman accrued the requisite
days in each year. The Industrial Court erred if it refused to
compute and compare aggregate days in each year. The Court must
count days, not assume denial of continuity purely from a roster
description.
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22. Many of the tasks described by respondents, attendant,
sweeper, liftman, electrician, carpenter, plumber, are of perennial
kind in institutional settings. If the work recurs and is necessary to
the functioning of the establishment, this factor supports
absorption. The Industrial Court ought to have examined whether
the institutional need and sustained engagement rendered the
employment permanent in substance.
23. The GR of 16 September 2005 and the GR of 13 February
2014 regularised certain categories of workers with retrospective
effect to specific dates. Those GRs will extinguish live claims only
for the persons and periods covered by them. Where a GR
expressly covers a named employee and grants permanency with
an effective date, that employee cannot claim a separate remedy
for the same period. However the GR cannot be used to deny an
entitlement for a person not covered by it, or to deny back benefits
for periods prior to the effective date where the worker satisfies
Rule 28. The Industrial Court should not treat the GRs as a blanket
bar to all individual claims.
24. If records show that a worker met the award requirement in
a year, the worker should get the benefit from the date of
entitlement. The State may adjust payments for any sums already
paid. Equity and public law require that regularisation follow the
legal test and not administrative convenience.
25. The Industrial Court fell into error in law and in approach in
the following respects.
a) It reached a broad conclusion of absence of continuity
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without undertaking the necessary granular computation of
days for each workman for each year. The correct approach
requires counting qualifying days year by year and
comparing them with the Kalelkar threshold.
b) It over-emphasised the roster narrative of 15-days-on
and 15-days-off while neglecting documentary proof which
the petitioners placed before it. Where records show
qualifying days, the pattern alone cannot defeat entitlement.
c) It treated the Government Resolutions as if they erased
all live grievances. That view is correct only to the extent a
GR covers the concerned worker and the period in question.
A GR does not displace the legal right of an individual who
satisfies Rule 28 but who is not covered by that GR.
26. For these reasons the impugned orders of the Industrial
Court dated 17 February 2014 and 15 October 2016 cannot stand
to the extent they reject the claims without applying the legal test
in Ghalge and without examining the documentary evidence
worker by worker.
27. Hence, following order is passed:
(a) I allow these writ petitions in part. I set aside the
conclusions of the Industrial Court that there was no
continuity across the board.
(b) I direct the Industrial Court to re-adjudicate the
complaints in Complaint (ULP) Nos.605 of 2008 and 98 of
2008. The Industrial Court shall consider evidence and
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examine the attendance registers, muster rolls, wage sheets
and other primary records. The Court shall compute
qualifying days year by year for each listed workman. The
Court shall apply the legal principles in State of Maharashtra
v. M.V. Ghalge and determine, for each individual, whether
the Kalelkar Award entitlement is made out.
(c) If the Industrial Court finds an individual to be entitled
under Rule 28, it shall direct appropriate relief. Relief shall
include declaration of entitlement to permanency from the
date on which the worker first satisfied the Award condition,
along with monetary benefits for the relevant period. Any
amounts already paid by the State shall be set off against the
award.
(d) If the Industrial Court finds a worker is covered by the
Government Resolution and that the GR already granted the
relief claimed for the same period, the claim of that worker
shall be treated as satisfied to the extent of the GR.
(e) The Industrial Court shall state its reasons in clear
terms and address each listed workman separately.
(f) The Industrial court shall decide the dispute within 6
months from the date submission of this order.
(g) No order as to costs.
(AMIT BORKAR, J.)
