Bombay High Court
Dhairasheel S.Phalake And Ors vs Shri.B.S.Bhadange And Ors on 4 February, 2025
2025:BHC-AS:5248
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.1284 OF 2002
WITH
CIVIL APPLICATION (STAMP) NO.20947 OF 2006
WITH
CIVIL APPLICATION NO.528 OF 2011
WITH
INTERIM APPLICATION (STAMP) NO.32663 OF 2024
1. Dhairyasheel S. Phalake
(since deceased through LRs)
At-Padali, Post Satara,
District: Satara
la. Deepa Dhairyasheel Phalke,
Adult,
Residing at 161/1, Amulya banglow,
Nalawade Colony, Shahunagar,
Satara, Maharashtra - 415001
1b. Trupti Amol Mohite,
Age: 46 years,
Residing at 9, Ajinkya Colony,
Near Kuber Vinayak, Sadar Bazar,
Satara, Maharashtra - 415001
1c. Yogesh Dhairyasheel Phalke,
Age: 44 years,
Residing at 161/1, Amulya banglow,
Nalawade Colony, Shahunagar,
Satara, Maharashtra-415001
1d. Nilesh Dhairyasheel Phalke,
Age: 42 years,
Residing at Serial no. 288 289/9,
Gulmohar Complex Shop No. 2,
New Radhika Road,
Satara, Maharashtra - 415001
2. Ravindra Ramchandra Sathe
116, Gangapuri, Wai Dist Satara
3. Shrimant Vishwashrao Honrao
61, Gangapuri, Wai Dist - Satara
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4. Shrimati Savita Avinash Sathe
w/o Late Shri Avinash N. Sathe
1019, B- Brahmanshahi, Wai
Dist - Satara
5. Arvind Tukaram Herkal,
At: Menavli Post: Bhavdhan,
Taluka: Wai Dist - Satara
6. Shri. D. K. Jamdade,
212-6, Phulenagar, Wai
Dist - Satara
7. Shri. S. S. Kshirsagar,
449, Ganapati Ali, Wai
Dist- Satara
8. Shri. V. S. Jadhav..
479, Ganapati Ali, Wai
Dist - Satara
9. Shri. R. R. Jamdade,
2191, Phulengar, Wai
Dist- Satara
10. Shri. P. A. Jadhav,
1434, Raviwar Peth, Wai
Dist- Satara
11. Shri. S. S. Bodhale,
2166, Phulenagar, Wai
Dist- Satara
12. Sou. B. A. Pandit.
1548, Raviwar Peth, Wai
Dist - Satara
13. Shri. S. A. Waikar,
Near Kisanveer College, Wai
Dist Satara
14. Sou. S. S. Talegaonkar,
529, Ganapati Ali, Wai
Dist- Satara
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15. Miss. P.B. Khandkar
since deceased
57, Gangapuri, Wai
Dist - Satara
15a. Mr. Kashinath Bapurao Khandkar
Age 81 years, residing at City
Survey No.59/A, Wai, Tal. Wai,
Dist. Satara
16. Miss. A.D. Ranganekar.
60, Gangapuri, Wai
Dist - Satara
17. Shri. M. B. Kadam,
At Post Bavdhan,
Tal. Wai Dist- Satara.
18. Shri. B. D. Sutar,
At Post. Kavath,
Taluka Wai Dist - Satara
19. Shri. R. L. Anapat,
117, Gangapuri, Wai
Dist Satara ....Petitioners
VERSUS
1. Shri. B. S. Bhadange
Member Industrial Court
Satara.
2. Pramukh Sampadak,
Marathi Vishwakosh, Wai
Dist - Satara
3. The Secretary,
Maharashtra Rajya Marathi
Vishwakosh Nirmiti Mandal,
'D' Block Ensahutment,
Azad Maidan, Bombay - 1.
4. The Secretary,
Education Department,
Government of Maharashtra,
Mantralaya. Bombay
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5. Shri.R.K. Dalvi
1194, Ramdoha Ali,
Wai, Dist. Satara ....Respondents
_________
Dr. Uday P. Warunjikar for the Petitioners.
Mr. S.S. Pakale, Senior Advocate with Ms. Vaishali Nimbalkar,
AGP for Respondents/State.
__________
CORAM : SANDEEP V. MARNE, J.
RESERVED ON : 23 JANUARY 2025.
PRONOUNCED ON: 04 FEBRUARY 2025.
J U D G M E N T:
1. Petitioners have filed this Petition challenging judgment and
order dated 14 August 2001 passed by the learned Member, Industrial
Court, Satara dismissing Complaint (ULP) Nos. 12 to 17 of 1990 and
156 to 169 of 1990. The Complaints were filed under Items 6, 9 and 10
of Schedule IV of the Maharashtra Recognition of Trade Unions and
Prevention of Unfair Labour Practices Act, 1971 (MRTU & PULP
Act) seeking declaration that Petitioners have acquired status of
permanent employees of Respondents with all consequential benefits.
2. Briefly stated, facts of the case are that the Government of
Maharashtra had declared a policy for encouraging studies in Marathi
literature and other fields by taking suitable measures. In his speech
made on 6 July 1960, the then Governor of Maharashtra had made an
announcement that the State would declare policy for encouragement
of research in the fields of literature, history and culture of
Maharashtra. Accordingly, the State Government decided to establish
State Board for Literature and Culture and accordingly issued
Government Resolution dated 19 November 1960, by which State
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Board of Literature and Culture was established for initial tenure of
5 years. The Government Resolution provided for functions of the
State Board and various other related matters. One of the functions of
the State Board was to initiate assist and undertake scheme for
preparation and publication in Marathi language of different
literature such as bibliographies, encyclopedia, dictionaries etc.
Towards performance of its function for compiling encyclopedia, the
State Board decided to compile a Marathi Vishwakosha. The State
Government issued Government Resolution dated 6 June 1963
thereby authorizing the Secretary of the State Board to secure as
Visiting Editors services of upto 6 senior professors, research
scholars, etc. attached to various universities/colleges for expert
writing and other work in the Vishwakosha Unit during vacation
times or otherwise as may be available. The Government Resolution
provided for payment of honorarium of Rs.25/- for each full day of
actual work. It appears that the State Government later decided to
reorganize the State Board and to bifurcate the same. Accordingly,
Government Resolution dated 28 November 1980 was issued thereby
establishing Maharashtra Rajya Marathi Vishwakosha Nirmiti
Mandal, (Vishwakosha Mandal) with effect from 1 December 1980,
with its headquarters at Wai, District Satara. The Vishwakosha
Mandal was initially established for a period of three years. After
separation of Vishwakosha Mandal from the ambit of State Board,
the reorganized Maharashtra State Board for Literature and Culture
was reconstituted by the same Government Resolution dated 28
November 1980.
3. For carrying out the activities of compilation of Marathi
Vishwakosha, the Vishwakosha Mandal drew services of various
personnel by engaging them as Visiting Editors from time to time.
Such engagements were made on honorarium basis for the tenures
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specified in each of the engagement letters. In the aforesaid manner,
the Petitioners came to be engaged as Visiting Editors in the
Vishwakosha Mandal on various dates. According to Petitioners they
continued to work uninterruptedly and performed duties as if they
were regular employees of Vishwakosha Mandal.
4. After rendering services for a substantial period of time as
Visiting Editors, Petitioners instituted Complaints of unfair labour
practices under Items 6, 9 and 10 of Scheduled IV of MRTP & PULP
Act before Industrial Court, Kolhapur, seeking permanency in
services. The Complaints were opposed by the Respondents by filing
Written Statements denying existence of employer-employee
relationship and contended that the Vishwakosha Mandal is a purely
body of honorary reputed and learned persons nominated by the State
Government and that Petitioners were never employed as employees.
The Respondents also questioned the status of Vishwakosha Mandal
as industry and contended that the Complaints were not
maintainable. By order passed on Exhibit-U6 on 19 April 1991, the
Industrial Court granted interim relief in favour of the Complainants
protecting their services till decision of the Complaints on merits.
Respondents filed applications for review of interim order dated 19
April 1991 and the review applications were dismissed by order dated
27 June 1994. The Industrial Court thereafter proceeded to decide
the Complaints and by judgment and order dated 5 September 1994
the Complaints were allowed holding that Respondents have engaged
in unfair labour practices under Item 6 of the Schedule IV of the
MRTU and PULP Act. The Industrial Court directed the Respondents
to grant status and privileges of permanent employees including
regular pay-scales and further ancillary benefits to the Petitioners on
completion of continuous services of five years.
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5. Respondents challenged the judgment and order dated 5
September 1994 passed by the Industrial Court by filing Writ Petition
No.3423 of 1995 in this Court. The Petition came to be partly allowed
by order dated 23 February 2001 remanding the Complaints for fresh
decision in accordance with law after giving opportunity to both the
parties. This Court recorded a statement on behalf of the
Respondents that it was not seriously disputing status of Vishwakosh
Mandal as industry. However, this Court did not approve the finding
of the Industrial Court that Petitioners are working journalists and
held that the material produced before it was not considered while
deciding the issue of their status as workmen. This Court therefore
remanded the Complaints for fresh decision for re-examination of
evidence on record.
6. After remand order was passed by this Court, the Complaints
were heard afresh by the Industrial Court and by impugned judgment
and order dated 14 August 2001, all the 20 Complaints have been
dismissed holding that there is no employer-employee relationship
between Petitioners and Respondents. Petitioners are aggrieved by
the judgment and order dated 14 August 2001 passed by the
Industrial Court dismissing their Complaints and are accordingly
filed the present Petition. The Petition came to be admitted by this
Court by order dated 28 March 2002. However interim relief in favour
of the Petitioners was rejected. Petition is called out for final hearing.
7. Dr. Warunjikar, the learned counsel appearing for the
Petitioners would submit that the Industrial Court has erred in
dismissing the Complaints filed by the Petitioners. He would submit
that once the status of Respondent-Board is accepted as industry, the
status of Petitioners as workmen ought to have been upheld. He
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would invite my attention to findings recorded by the Industrial Court
in paragraph 5(ii) of the judgment that the work performed by the
Petitioners conforms to the definition of the term 'workmen' under
section 2(s) of the Industrial Disputes Act, 1947. He would submit
that once Respondent Board is held as industry and Petitioners are
held as workmen, the Industrial Court erred in holding that there is
no employer-employee relationship between the parties. He would
submit that Petitioners have been working continuously with the
Respondent-Board since the year 1982 and it cannot be contended
that they are not employees of the Board. That Petitioners performed
work of regular nature thereby raising an inference that they are
employees of the Respondent-Board. That the Industrial Court has
erred in laying emphasis on the language in which the appointment
orders are couched. That the Petitioners though labelled as Visiting
Editors, performed work of stenographers, typists, tracers, etc. He
would submit that mere nomenclature given by the Respondent-Board
to wages paid to Petitioners cannot determine their status and even a
person drawing honorarium can also be treated as an employee. He
would submit that there is direct admission given by the witnesses of
the Respondent-Board about completion of 240 days of service by
Petitioners. He would also take me through various statements filed
on record of the Industrial Court for demonstrating that Petitioners
have completed more than 240 days of service in each of the years. He
would therefore submit that Petitioners deserve to treated as regular
employees of the Respondent-Board considering continuous and
uninterrupted services rendered by them with the Board during past
several decades. He would submit that the Vishwakosh Mandal is still
functioning as it carrying on permanent work of compiling
information and it has now undertaken the work of compiling
encyclopedia for children (Kumar Vishwakosh). He would submit that
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information relating to encyclopedia requires updation of information
and it cannot be contended that the activities of the Vishwakosh
Mandal can come to an end. He would also submit that the
Respondent-Board has several other regular employees on
establishment and that therefore Petitioners also deserve to be made
permanent. Dr. Warunjikar accordingly pray for setting aside the
impugned judgment and order of the Industrial Court and for
allowing the Complaints filed by the Petitioners.
8. The Petition is opposed by Mr. Pakale, the learned Senior
Advocate appearing for the Respondents. He would submit that the
Industrial Court has rightly dismissed the Complaints by holding
that there is no employer-employee relationship between the parties.
Inviting my attention to the appointment orders, he would submit
that Petitioners were merely invited to volunteer as Visiting Editors
as per their convenience. That there were no fixed duty hours for
them and that they had choice of attending the office as per their
convenience. That there is no contract of service under which
Petitioners were employed. That they were paid honorarium on per
day basis for voluntary services rendered by them for compilation of
Vishwakosh. That the Industrial Court has rightly taken into
consideration the arrangement by not treating Petitioners as
employees of the Board.
9. Mr. Pakale would further submit that the Industrial Court
otherwise did not have jurisdiction to decide the issue of existence of
employer-employee relationship. He would further submit that even if
Petitioners were to be treated as employees of the Respondent-Board,
they do not have any right to seek permanency in the services of the
Board merely on the strength of completion of 240 days of service. He
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would submit that conferring status of permanent employees to
Petitioners would tantamount to creation of posts which is
impermissible as held by Division Bench of this Court in Municipal
Council, Tirora vs. Tulsidas Baliram Bindhade1. He would also
rely upon judgments of this Court in Mukhyadhikari, Nagar
Parishad Tuljapur vs. Vishal Vijay Amrutrao and others 2, and
Medical Superintendent, Rural Hospital and another vs.
Rajashree Laxman Yadav3 .
10. Mr. Pakale would submit that the activities of Vishwakosha
Mandal have otherwise come to an end after preparation of
Vishwakosha and it is otherwise not possible to accommodate
Petitioners in services. He would pray for dismissal of the Petition.
11. Rival contentions of the parties now fall for my consideration.
12. The manner in which Vishwakosha Mandal came to be
established has been discussed above. Its establishment has it seeds
in Government Resolution dated 19 November 1960, whereby initially
State Board for Literature and Culture was established for a tenure of
five years and one of the functions it was supposed to perform was
compilation of encyclopedia. It appears that the State Board for
Literature and Culture undertook the task of compilation of
Vishwakosha and accordingly State Government permitted the Board
to secure services of senior professors, research scholars etc. from
various Universities and Colleges as Visiting Editors for expert
writing and other work for compilation of Vishwakosha. However,
procuring services of Visiting Editors was not to be confused with
1 2016 (6) Mh.L.J. 867
2 2016 (3) AllMR 113
3 Writ Petition No.8801 of 2003 decided on 26 June 2024
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appointments as employees, as their engagement was to be done only
during vacation times or otherwise as per their availability. This is
clear from paragraph 2 of the Government Resolution dated 6 June
1963 which reads thus:
"State Board for Literature & Culture
Provision of Visiting Editors for the
Vishwakosha Unit of the ---
GOVERNMENT OF MAHARASHTRA
General Administration Department,
Resolution No. VKU 1963(f)-BLC,
Sachivalaya, Bombay-32, 6th June, 1963.
RESOLUTION: The question of securing the services of senior Professors,
research scholars attached to various Universities/ Colleges for specific
writing and other expert assignments in connection with the compilation of
the proposed vishwakosha by the State Board for Literature and Culture
was engaging the attention of Government for some time past. The
Government has carefully considered the question and feels that the
services and knowledge of these professors/research Scholars can be
gainfully utilised for the Vishwakosha work by inviting them to work in the
Vishwakosha Unit, Wai for short periods during vacation times and by
paying them a suitable honorarium.
2. Government accordingly authorises the Secretary of the State Board
for Literature and Culture to secure as Visiting Editors, the services of
senior professors, research scholars etc. not exceeding six at any time,
attached to various Universities/Colleges, for expert writing and other work
in the Vishwakosha Unit during vacation times or otherwise as may be
available. In consultation with the Chairman of the State Board for
Literature and Culture. Government further directs that each such Visiting
Editor should be paid an honorarium of Rs.25/- for each full day of actual
work and professor, research scholars from Government collages who may
be invited to work as Visiting Editors at the Vishwakosha Unit would be
allowed to retain the full amount of honorarium that may be payable to
them at the above rate. These Visiting Editors will not be entitled to any
Travelling Allowance and Daily Allowance for any journey undertaken to
and from the office of the Vishwakosha Unit, at Wai. Government also
directs that University/College professors/research scholars who have
already workes as Visiting Editors in the Vishwakosha Unit during the
academic year 1962-63 should be entitled to the honorarium that may be
admissible to them at the rate sanctioned above.
3. The expenditure on account of the proposal sanctioned in para 2
above should be debited to the Head "19-General Administration-C-
Secretariate and Attached Offices K-Civil Secretariate K-18-Schemes in the
Third. Five Year Plan-(1) State Board for Literature and Culture" and
should be met from the provision made hereunder in the current year's-
Budget.
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4. This Resolution issues with the concurrence of the Finance
Department (vide that Department unofficial reference No.726 V dated the
29th May, 1963)
By order and in the name of the Governor of Maharashtra.
Sd/-
(D.S. KASBEKAR)
Assistant Secretary to the Govt. of Maharashtra
General Administration Department."
13. As the activities of compilation of Vishwakosha gathered speed,
the State Government decided to carve out functions related to
compilation of Vishwakosha from State Board of Literature and
Culture and to form separate Board dedicated for compilation of the
Vishwakosha. This is how Marathi Vishwakosha Nirmiti Mandal was
established by Government Resolution dated 28 November 1980.
Establishment of Vishwakosha Mandal was initially for a period of
three years from 1 December 1980 and eminent authors and persons
engaged in Marathi literature were appointed as its members. By that
Government Resolution, only one post of Secretary was created in the
pay-scale of Rs.1000-50-1500 which was Class-I Gazetted post.
14. After establishment of Vishwakosha Mandal vide Government
Resolution dated 28 November 1980, the Board decided to procure
services of various personnel for completing large volume of work
relating to compilation of Vishwakosh. This is how services of the
Petitioners came to be procured by the Respondent-Board. Petitioners
were apparently invited to participate in compilation of encyclopedia
and invitation letters were issued to them. In this regard the first
invitation letter issued to one of the Petitioners' Shri Avinash Sathe
was on 28 December 1981 reads thus:
"१- आपणास मराठी वि श्वकोश कार्याात खाली नमूद केले ल्र्याा वि षर्यााच्र्याा ले खन]
संपादन ा चि त्रकामाकरिरता अभ्र्याागत संपादक र्याा श्रेणीत काम करण्र्याासाठी र्याा पत्राने
विनमंत्रण विदले जात आहे- र्याा कामाबद्दल कामाच्र्याा प्रत्र्याेक विद सास खाली विनर्दिदष्ट
केल्र्यााप्रमाणे मानधन विमळे ल- अभ्र्याागत संपादकांना प्र ासभत्ता विदला जात नाही-
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२- आपण उपस्थि67त राहणाऱ्र्याा तारखेस संबंचिधत कक्षप्रमुख तसे कळ ा े- ले खन]
संपादन ा चि त्रकामासंबंधी े पुढील मागदशन संबंचिधत कक्षप्रमुख करतील- संबंचिधत
कक्षप्रमुख आपणाकडे जे काम सोप तील ते पूण होणे आ श्र्याक आहे-
३- अभ्र्याागत संपादकांनी आपले काम संप ून जाताना वि श्वकोश ग्रं7ालर्याातून
घेतले ली पु6तके विनर्यातकालिलके इत्र्याादी साविहत्र्या ग्रं7ालर्याात परत करणे आ श्र्याक आहे-
४- तरी आपण खाली दशवि ले ल्र्याा मुदतीत ाई र्याे7ील मराठी वि श्वकोश कार्याालर्याात
अभ्र्याागत संपादक र्याा श्रेणीत काम करा े ही वि नंती- आपण र्याेत असल्र्याा ी कृपर्याा
पू सू ना द्या ी-
५- तपशील %
अ) वि षर्या % नकाशाकाम
ब) मुदत % विदनांक १ ते ३१ मे १९८८ अखेर कोणतेही २२ विद स-
क) मानधन (प्रत्र्याेक विद सास) % :- ३५@& (रु- प6तीस फक्त)
कळा े-"
(emphasis added)
15. In similar manner invitation letters were issued to all the
Petitioners to volunteer as Visiting Editors. Perusal of the letter
dated 28 December 1981 issued to Shri Avinash Sathe would indicate
that he was merely 'invited' to work as Visiting Editor on payment of
daily honorarium of Rs.25/-. The engagement was from 1 January
1982 to 28 February 1982 and during that period, he was to work on
any of the 20 days of his choice. At the end of first month tenure, fresh
order was issued on 30 January 1982 containing similar terms. This
is how invitation letters were issued to Shri Avinash Sathe for each
month. It appears that Shri Avinash Sathe was also asked to
volunteer in the work of compilation of encyclopedia during 1975 to
1994. The details of his volunteering is as under:
1982 212, 1983 183, 1984 213,
1985 223, 1986 201, 1987 148,
1988 197, 1989 190, 1990 156,
1991 149, 1992 85, 1993 24,
16. The above details of engagement of Shri Avinash Sathe would
indicate that the services rendered by him towards compilation of
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Marathi Vishwakosh were not continuous or regular in any manner.
He actually did not complete even 240 days of service in any calendar
year and relied upon services rendered between August 1984 to July
1985 to claim completion of 240 days of service.
17. When the Petitioners filed complaints of unfair labour
practices, Respondents adopted specific defence that Petitioners were
not their employees. In this regard relevant pleadings in the Written
Statement are as under:
"(1) At the outset the respondent Nos.1 and 2 state that the complaint
made by the complainant hereinabove is without jurisdiction as
complainant is not "employee" of the respondents. Complainant was
requested to give his assistance on "honorarium" and the complainant has
given his assistance purely on the payment of "honorarium". He is not
"employee" of the respondents and therefore this complaint itself is not
tenable and it is liable to be dismissed with cost."
18. Thus, there was specific denial of existence of employer-
employee relationship between the Petitioner and the Respondent-
Board and the Board raised the plea that Petitioners were mere
invitees to volunteer as Visiting Editors.
19. By now it is well settled position of law that existence of
employer-employee relationship is a sine qua non for maintaining
complaint of unfair labour practice before Industrial Court. Once the
employer-employee relationship is disputed, the Industrial Court loses
jurisdiction and it becomes incumbent for person claiming status of
employee to first get the said dispute adjudicated in a reference made
under section 10 of the Industrial Disputes Act and thereafter file a
Complaint of unfair labour practice. The law in this regard is well
settled by the judgments of the Apex Court in Cipla Limited vs.
Maharashtra General Kamgar Union and others 4, Sarva
4 2001 (3) SCC 101
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Shramik Sangh vs. Indian Smelting & Refining Co. Ltd. and
others5. Following the law enunciated by the Apex Court in
judgments in Cipla Limited (supra) and Indian Smelting &
Refining Co. Limited and others (supra) the Industrial Court in
fact could not have undertaken an enquiry into the issue of existence
of employer-employee relationship. True it is that in Hindustan
Coca Cola Bottlings S/W (Private) Ltd. vs. Bharatiya Kamgar
Sena and others6, Division Bench of this Court has held that
existence of employer-employee relationship at some point of time
would confer jurisdiction on Industrial Court to entertain complaint
of unfair labour practice, such is not the case here. At no point of time
Respondents have ever acknowledged existence of employer-employee
relationship. This is not the case where Petitioners were initially
treated as employees and were later converted as mere invitees as
Visiting Editors. Right since inception, the Respondent-Board always
treated Petitioners as mere invitees to volunteer as Visiting Editors.
In my view therefore, it was impermissible for Industrial Court to
conduct an enquiry into employer-employee relationship.
20. Faced with the position that Industrial Court lacked
jurisdiction to enquire into existence of employer-employee
relationship, Dr. Warunjikar would rely upon order passed by this
Court while remanding the proceeding on 23 February 2001.
According to him, this Court directed such an enquiry to be conducted
and that therefore it would be unfair to criticize the Industrial Court
for undertaking an enquiry into existence of employer-employee
relationship. The relevant findings recorded by Single Judge of this
Court (His Lordship Justice A.M. Khanwilkar, as he then was) in
order dated 23 February 2001 read thus:
5 2003 (10) SCC 455
6 2002 (3) Bom. C.R. 129
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"4. In so far as the conclusion reached by the Industrial Court that the
Petitioners No.1 is an industry, Mr. Gursahani appearing for the
Petitioners has not taken serious objection thereto. According to him, the
said conclusion is based on the consistent view taken by the Apex Court
and, therefore, it is not possible to successfully assail the said conclusion.
5. Mr. Naik appearing for the Respondents fairly concedes that the
conclusion reached by the Industrial Court that Respondents were
employed as Working Journalists within the meaning of section 2 (f) of the
Working Journalists and Other Newspaper Employees (Conditions of
Service) and Miscellaneous Provisions Act, 1955 cannot be sustained.
According to him, the Respondents were not employed as working
Journalists and were in fact discharging duties which were mainly of
clerical nature.
6. Both the counsel have addressed this Court at length and referred to
various materials in support of their respective stand. However, on going
through the judgment under challenge, I find that none of the material has
been considered by the Court below while arriving at the conclusion that
the Respondents were workmen within the meaning of the said Act. The
Industrial Court has dealt with the said issue in paras 16 to 24 of the
Impugned Judgment. Both the counsel agree that the materials that are
referred to before this Court during arguments are relevant for decided the
issue as to whether the complainants are workmen, but the same have not
been referred to in the judgment under appeal. Without analysing the
relevant materials, particularly the pleadings and the evidence adduced by
both the sides, it was inappropriate for the Court below to record a finding
that Respondents were workmen within the meaning of the said Act. In
this context, it would be relevant to note that whether a person is workman
or not would much depend on the evidence with regard to the nature of
duties of the said person. If the nature of duties of each of the complainants
was separate and not common, it was imperative for the Industrial Court to
have recorded a clear finding with regard to the nature of duties of each of
the complainants. It is only thereafter that the Industrial Court could have
arrived at a conclusion as to whether the Respondents are workmen within
the meaning of the said Act. It is contended on behalf of the Respondents
that out of 20 complainants 10 were working as Tracers, 1 as Artist, 2 as
Stenographers and 7 as Proof Readers and clerical work. If this be so, it
was necessary to analyse the nature of duty of each category of employees
to find out whether they would fit into the definition of workmen. It is well
settled that whether the person is workman or not can be answered after
looking to the nature of his duties. The Tribunal obviously has failed to
examine the matter of each of the category in this context. Mr. Gursahani
has relied on the decisions to buttress his contention that the Respondents
cannot be held to be workmen. In my view, the Tribunal ought to have
examined all this aspects in details before reaching a clear finding as to
whether the Respondents are workmen or not. Further, the basis on which
the Tribunal has proceeded that the Respondents were Working Journalists
and therefore workmen is misdirected. Now the Respondents counsel
concedes that the Respondents are not claiming to be Working Journalists
as held by the Tribunal. Naturally, therefore, the reasoning of the Tribunal
for recording that the Respondents are workmen is washed out. Even for
this reason, the conclusion of the Tribunal on this issue cannot be
sustained.
k 17/24 1 wp 1284.02 J as.doc
7. Besides, the discussion on the said issue of workmen is cryptic and
unintelligible, in the sense that it does not advert to all the relevant
materials, even the issue whether the Respondents have worked for more
than 240 days, there is no satisfactory discussion in the impugned
judgment. With regard to the said aspect, the only discussion appears to be
in para 25 of the impugned judgment. There is no clear finding recorded
with regard to each of the complainants.
8 In the circumstance, I find no other option but to remand the matter
to the Industrial Court to re-examine the evidence on record and after
analysing the relevant materials to record a clear finding on the issue
whether the Respondents are employees /workmen within the meaning of
the said Act and further whether each of them has worked for more than
240 days continuously as required so as to entitle them to the relief claimed
in the complainants."
21. It appears that while passing order dated 23 February 2001,
this Court did not have benefit of considering the ratio of judgment of
the Apex Court in Cipla Limited (supra) and Indian Smelting &
Refining Co. Ltd. (supra) as well as Vividh Kamgar Sabha vs.
Kalyani Steels Ltd. and another7. The judgment in Cipla Limited
(supra) was rendered by the Apex Court on 21 February 2001 i.e. two
days before passing of order dated 23 February 2001 by this Court.
Similarly, the judgment in Vividh Kamgar Sabha vs. Kalyani
Steels Ltd. (supra) was rendered by the Supreme Court on 9 January
2001. It appears that attention of this Court was not invited to the
judgments in Vividh Kamgar Sabha vs. Kalyani Steels Ltd.
(supra) and Cipla Limited (supra) at the time of passing order
dated 23 February 2001. Be that as it may. Since this Court has
directed Industrial Court to conduct enquiry into the issue as to
whether Petitioners are employees/workmen within the meaning of
the Act, in my view, it would be too iniquitous at this stage to dismiss
the present Petition only on the ground of impermissibility of
Industrial Court to decide the issue of existence of employer-employee
relationship and to relegate them to the remedy of seeking reference
7 2001 (2) SCC 381
k 18/24 1 wp 1284.02 J as.doc
under section 10 of the Industrial Disputes Act to the Labour Court
for establishment of the relationship. Therefore an unusual course of
action is being adopted in the peculiar facts and circumstances of the
case by examining correctness of finding recorded by the Industrial
Court on the issue of existence of employer-employee relationship.
22. The Industrial Court has recorded following findings for
holding that the employer-employee relationship does not exist
between the parties:
"5. REASONS:
i) It is the case of the complainants that they have worked more than
240 days continuously in each year, so they are entitled for permanency.
They were appointed as temporary employees on daily-wage basis, so they
are employees of the Respondents. Though these complainants are entitled
for permanency, still with an intention to deprive all these complainants
from the benefits of the permanency such as provident fund, gratuity,
pension etc; these complainants are kept years together as temporary
employees. To the contrary, it is the defence of the Respondent that these
complainants are not employees of the respondents. They were not
appointed as temporary or daily wage employees. These complainants are
experts in their fields. These complainants were requested to extend their
cooperation in compilation of Vishwakosh. They were issued request letters.
No fixed wage scale was given to them. No fixed days in each month were
specified. They were allowed to do the work for the days mentioned in their
request letters in each month as per their convenience. They were paid
honorarium, so due to completion of 240 days continuous service, these
complainants are not entitled for permanency. To adjudicate the above
controversy, I have gone carefully through the oral and documentary
evidence adduced by the parties. The complainants have not approached
with correct and true facts by way of narrating in their complaints. These
complainants have stated in their complaints that they were appointed as
daily-wager employees and as temporary employees. They have suppressed
material facts. They have not mentioned in their complaints that they were
getting honorarium, though they were knowing that these complainants
were paid honorarium for the work done by them. The alleged appointment
orders are filed on record. This is an admitted document by both the
parties. The alleged appointment letter which is as per the say of the
Respondent is a request letter will throw much light on the fact of the
engagement of these complainants to do the work. It is evident from this
request letter that it is not an appointment order, it is a request letter sent
to the complainants. This letter starts such as "S. N. V. V." (Saprem
Namaskar Vinanti Vishesh). This opening of the letter shows that it was a
request from the respondents to these complainants to extend their
assistance for compilation of Vishwakosha. It was a discretion of the
Complainant to accept or reject the request of the respondents. From the
k 19/24 1 wp 1284.02 J as.doc
above wording of the above letter the intention of the Respondent was not
to appoint the complainants as an employee. An inference cannot be drawn
that by such above referred invitation, these complainants were appointed
as employees of the Respondent as temporary of daily-wager employees.
These complainants cannot become as daily-wager employees because these
complainants were not paid daily-wage or rate of the daily wage was not
fixed. They were paid only honorarium, so also these complainants cannot
be treated as daily-wager employees. Furthermore facts also clearly indicate
that the contract of the employer and the employee between the present
respondents and the present complainants was not in existence. It is
evident from these request letters in pursuance to which the services of
these complainants were availed, that no fixed days of working were
prescribed in these request letters. They were requested to extend their
cooperation to do the work for ten to twenty days in each month. No days
were fixed in each month. It means that these complainants were requested
to do the work for the days on which it was possible for them to make
themselves available to the respondents for doing the work for the
respondents. It is also evident that the voluminous work for the
respondents. It is also evident that the voluminous work such as
publication of twenty parts having thousands of pages is to be done with
the help of thousands of experts. This Encyclopedia requires help of
thousands of the experts from every field. For publication of this
Encyclopedia so many experts about the thousands have worked as Visiting
Editors on honorarium basis. The complainants in their evidence have
admitted that they were paid honorarium and as like them other several
persons have worked as Visiting Editors. The respondents have filed list of
other Visiting Editors who have worked on honorarium basis. The terms
and the conditions for other Visiting Editors were also same and similar to
the terms and the conditions of these complainants. All these persons who
have worked as Visiting Editors cannot be given permanency. From the
above discussion, I come to the conclusion that these complainants and
respondents are not having relationship as employee and employer.
ii) It is argued on behalf of the complainants that the nature of the
work done by these Complainants proves the fact that they are workmen as
defined in I. D. Act, 1947. Some of the Complainants were working as
Tracers, some of the Complainants were working as Clerks and some of the
Complainants were working as clerks and some of the Complainants were
working as Stenographers. If the nature of the duties discharged by the
Complainants is taken into consideration then it is evident that they are
workmen as defined in section 2 (S) of I. D. Act, 1947. It is true that after
considering the nature of the duties discharged by these Complainants, it is
evident that the work done by these Complainants amounts to is as like the
definition given in Section 2 (S) of I. D. Act, 1947 in respect of the workmen,
but this is not sufficient claim the relationship such as 'employees-employer'
between the complainants and the respondents."
23. I do not find any element of perversity in the above findings
recorded by the Industrial Court. Perusal of invitation letters issued
k 20/24 1 wp 1284.02 J as.doc
by the Board to the Petitioners would leave no manner of doubt, that
they have merely volunteered to work for compilation of Marathi
Vishwakosha. No employer invites any persons to work with him. For
existence of employer-employee relationship, there needs to be
'appointment' and not 'invitation'. The invitation issued to Petitioners
did not create any contract of employment. It was open for the
Petitioners not to act on the said invitation. Furthermore, the
invitation was not to work continuously as an employee, but to merely
volunteer on honorarium of Rs.25/- per day by attending the office as
per Petitioner's convenience. Out of 30/31 days in a month, Petitioners
were granted liberty to contribute to the work of compilation of
Vishwakosha on any of the 20 days of their choice. It is inconceivable
that a person appointed as employee can choose the days on which he
would work.
24. Perusal of the statement of work performed by Shri Avinash
Sathe would indicate that he has volunteered for few days in some of
the months. To illustrate, in December 1982 he volunteered only for
12 days, in October 1983 for 11 days. Except rendering 20 days of
voluntary services for six months during the year 1982, he mostly
volunteered for less than 20 days in subsequent months. What is most
glaring in position that though his invitation was for 20 days for some
of the months, he did not attend office for those 20 days. To illustrate,
though he was invited for 20 days in each of the months from March
1982 to December 1982, he volunteered for less than 20 days in most
of the months. In December 1982 despite being invited to volunteer
for 20 days, he attended office only for 12 days.
25. The convenience offered to the Petitioners while volunteering
their services for compilation of Vishwakosha would clearly take them
k 21/24 1 wp 1284.02 J as.doc
out of the concept of 'employment'. Petitioners volunteered as per
their convenience and might have been engaged in other earning
activities as there was no impediment for them from working
elsewhere. I am therefore of the view that the Industrial Court has
rightly drawn the inference of absence of employer-employee
relationship in the facts and circumstances of the present case.
26. As rightly contended by Mr. Pakale, even if existence of
employer-employee relationship was to be inferred in the present case,
mere completion of 240 days of service at any point of time otherwise
did not create any right in favour of Petitioners to claim permanency
in service. Vishwakosha Mandal is an instrumentality of State.
Therefore, granting the benefit of permanency in service would
require existence of sanctioned vacant posts. It is not even the case of
the Petitioners that they were engaged against any sanctioned vacant
posts. There is nothing to indicate that any post of Visiting Editor was
created or sanctioned at any point of time. The ratio of judgment of
the Division Bench of this Court in Municipal Council, Tirora
(supra) would apply to the present case. Division Bench of this Court,
while resolving conflict of opinions expressed by two learned Single
Judges of this Court about applicability of clause 4C of the Model
Standing Orders under the Industrial Employees (Standing Orders)
Act, held in paragraphs 19, 20 and 21 as under:
"19. In this reference, the position emerging before us is similar. There is
no conflict between the provisions of M.S.O. 4C and the provisions of the
section 76 of the 1965 Act. In the event of the appointment having been
made validly, it may be possible to invoke the provisions Cl. 4C of M.S.O.A.
view to the contrary would result in regularizing/validating a void act. Cl.
4C neither permits nor contemplates the same. As held in the above
judgments, if the appointment is not made in accordance with the
constitutional scheme, it is void ab initio and, therefore, there can be no
claim to its regularization or for grant of permanency in any manner. This
is all the more so as Cl. 32 of the M.S.O. clarifies that the Standing Orders
are not to operate in derogation of any other law i.e. section 76 of 1965 Act.
k 22/24 1 wp 1284.02 J as.doc
Definitely any interpretation of Clause 4C conducive to defeating the
Constitutional mandate is unwarranted. Violation of Clause 4C of the
MSO may tantamount to an unfair labour practice under item 9 of
Sch. IV of the 1971 Act but unless and until, other additional
factors are proved on record, finding of indulgence in an unfair
labour practice under Item 6 of Sch. IV thereof cannot be reached.
As explained by the Hon'ble Apex Court in case of Maharashtra SRTC v.
Casteribe Rajya Parivahan Karmchari Sanghatana, (supra), existence of a
legal vacancy must be established and as discussed above, the power to
recruit with the employer must also be demonstrated. In absence thereof,
workman cannot succeed in proving the commission of unfair labour
practice under Item 6 by the employer. These two ingredients, therefore,
also must be established when benefit of Cl. 4C is being claimed. Unless
availability of a vacancy is shown or then power with the employer
to create the post and to fill it is brought on record, mere
continuation of 240 days cannot and does not enable the workman
to claim permanency by taking recourse to Cl. 4C read with Item 9
of Sch. IV of 1971 Act. Clause 4C does not employ word "regularisation"
but then it is implicit in it as no "permanency" is possible without it.
Conversely, it follows that when a statutory provision like section 76
disables the employer either from creating or filling in the posts, such a
claim cannot be sustained. This also nullifies the reliance upon the
judgment of learned Single Judge in case of Maharashtra Lok Kamgar
Sanghatana v. Ballarpur Industries Limited (supra) where the employer
was a private Company not subjected to such regulatory measures by any
Statute and enjoyed full freedom to create the posts and to recruit. One of
us (B.P. Dharmadhikari, J.) is party to the judgment of this Court in
Raymond UCO Denim Private Ltd. v. Praful Warade (supra) which again
needs to be distinguished for the same reasons. The judgment of learned
Single Judge in case of Indian Tobacco Company Ltd. v. Industrial Court
(supra), judgment of Hon'ble Apex Court affirming it or then judgment of
Hon'ble Apex Court reported at Western India Match Company Ltd. and
Workmen are all considered therein and are distinguishable as the same do
not pertain to the province of public employment or consider inherent
Constitutional restraints (the suprema lex-see Mahendra L. Jain v. Indore
Development Authority (supra) and Cl. 32 of the MSO. For same reasons,
law laid down by the Full Bench judgment of this Court in 2007 (1) Mh.L.J.
(F.B.) 754: 2007 (1) CLR 460 Gangadhar Balgopal Nair v. Voltas Limited
does not advance the cause of workmen. The Division Bench of this Court
in May and Baker Ltd. v. Kishore Jaikishandas Icchaporia (supra) while
construing section 10A(3) held that the expression "other law" would not
refer to the Model Standing Orders or the Certified Standing Orders since
they are laws made under the provisions of Parent Act itself and not under
any other law. The Model Standing Orders and Certified Standing Orders,
held the Division Bench, "are laws no doubt but they are laws made under
the provisions of the Act". They were held not to be provisions under any
other law. This discussion therefore shows how these words "in derogation
of any law for the time being in force" in Cl. 32 of MSO need to be
understood and does not help Adv. Jaiswal or Adv. Khan.
20. In Vice-chancellor, Lucknow University v. Akhilesh Kumar Khare
(supra) relied upon by Adv. Parihar, Hon'ble Apex Court follows its
k 23/24 1 wp 1284.02 J as.doc
Constitution Bench in Umadevi (III) and while rejecting relief of
regularization to the daily wagers who were engaged in public employment
without proper procedure, grants them compensation of? 4 Lakh each by
way of compassion. This judgment does not consider any welfare labour
legislation and, therefore, cannot provide direct answer to the reference
made. Judgment of this Court taking similar view in the light of 1971 Act
in the case of Punjabrao Krishi Vidyapeeth, Akola v. General Secretary,
Krishi Vidyapeeth Kamgar Union (supra) is already considered above. The
Division Bench of this Court in State of Maharashtra v. Pandurang
Sitaram Jadhav (supra) finds that the respondents before it were employed
as daily wagers in the establishment of the Government Milk Dairy for a
longer pеriod of 12 to 20 years. There were no sanctioned posts and
vacancies in existence in the concerned department. Respondents failed to
demonstrate that their appointments were made in accordance with the
procedure prescribed for selection. The Division Bench finds it wholly
unjust to direct the appellant State Government to grant permanency to
the respondents. It points out that the provisions of Model Standing Orders
are subject to the Rules regulating selection and appointment so also
subject to the constitutional scheme of public employment. Respondents
daily wagers are declared to possess no legal right to claim permanency.
Order passed by the learned Single Judge to the contrary have been
quashed. State Government is held obliged to make appointments in
adherence to the constitutional scheme of Public employment. Respondents
Daily Wagers appointed without following the prescribed procedure for
selection by passing public participation did not acquire any legal right to
claim permanency. It is apparent that no inconsistency exists and cannot be
worked out in State of Maharashtra v. Pandurang Sitaram Jadhav as also
Pune Municipal Corporation v. Dhananjay Prabhakar Gokhale(supra) on
one hand and Ballarpur Industries Limited v. Maharashtra Lok Kamgar
Sanghatana (supra) on the other hand. Status of employer, nature of
employment and inherent Constitutional limitation on public employer or
absence of such fetters on any private employer or absolute freedom
available to it to create post/s and recruit, are some of the distinguishing
features which prohibit this exercise.
21. Thus, in the light of this discussion, it follows that in absence
of vacant sanctioned posts with the Municipal Council, a workman
who has put in continuous service of 240 days or more in span of 12
months, cannot invoke Clause 4C of the MSO to claim either
permanency or regularization. We accordingly answer the question
referred. Registry to place the writ petitions before the learned Single
Judge as per roaster assignment for further consideration."
27. In my view therefore grant of permanency to the Petitioners
was otherwise impermissible even if they were to be treated as
employees of the Respondent-Board.
28. Considering overall conspectus of the case, I am unable to trace
any palpable error in the impugned judgment and order passed by the
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Industrial Court. Writ Petition is devoid of merits. It is accordingly
dismissed with no order as to costs.
29. In view of dismissal of the Petition, nothing would survive in
the Civil Applications and Interim Application, and the same are
accordingly disposed of.
(SANDEEP V. MARNE, J.)
SUDARSHAN SUDARSHAN
RAJALINGAM KATKAM
KATKAM Date:
2025.02.04
14:42:15 +0530
