Bombay High Court
Secretary Agricultural Animal ... vs Shakuntalabai Tukaram Ahire on 28 March, 2025
2025:BHC-AS:14668
Neeta Sawant WP-6080-2024-FC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6080 OF 2024
1) Secretary,
Agricultural Animal Husbandry & Dairy
Development and Fishery Department,
Maharashtra State, Mantralaya, Mumbai-32.
2) Agricultural Commissioner,
Directorate of Agricultural,
New Administrative Building, Pune-1.
3) Assistant Agricultural Director,
Near Commissioner Officer, Main Building,
Jail Road, Nashik Road, Nashik.
4) District Agricultural Officer,
Nashik Division, Shalimar Chauk,
Nashik.
5) Dy. Divisional Agricultural Officer,
Malegaon, Near Thakare Hospital,
Malegaon Camp Road, Dist. Nashik-423 105.
6) Plantation Officer,
Taluka Nursery Center, Nilgavhal,
Tal. Malegaon, Dist. Nashik. ....Petitioners
(Original Respondents)
-Versus-
1) Sau. Shakuntalabai Tukaram Ahire,
Age- Major, Occ -Labourer.
2) Sau. Sajarabai Nimba Shelar,
Age- Major, Occ -Labourer.
3) Smt. Mangalabai Shantaram Shelar,
Age- Major, Occ -Labourer.
4) Smt. Ranjanabai Nimba Shelar,
Age- Major, Occ -Labourer.
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5) Smt. Lalabai Ptabhakar Shelar,
Age- Major, Occ -Labourer.
6) Smt. Jijabai Mohan Jadhav,
Age- Major, Occ -Labourer.
All Respondents are R/o. Bhaygaon,
Tal. Malegaon, Dist. Nashik-423 203 .... Respondents
(Original Complainant)
Mrs. R. A. Salunkhe, AGP for Petitioner-State.
Ms. Seema Sarnaik, Senior Advocate i/b Ms. Sangeeta Salvi, for the
Respondent.
CORAM : SANDEEP V. MARNE, J.
Reserved On : 20 March 2025.
Pronounced On : 28 March 2025.
JUDGMENT :
1) Rule. Rule made returnable forthwith. With the consent of
the learned counsel appearing for parties, the Petition is taken up for
hearing and disposal.
2) This petition is filed challenging the judgment and order
dated 28 March 2023 passed by the Member, Industrial Court, Nashik
in Complaint (ULP) No.42/2015. The Industrial Court has partly
allowed the Complaint and has directed the Petitioners to give benefits
of permanency to the Respondents from the date of filing of the
Complaint with all consequential benefits attached to the post of
Labourers. Since Respondent Nos.2 and 6 have crossed the age of
retirement, the Industrial Court has directed grant of benefit and status
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of permanency to them from the date of filing of the Complaint till the
age of their retirement.
3) Facts of the case, in brief, are that the Respondents were
engaged as daily wage labourers intermittently who worked seasonally
and temporarily in the Nursery of Petitioner No.6 (Taluka Nursery
Centre, Nilgavhal, Taluka-Malegaon, District-Nashik) since the year
1985. It is the case of the Petitioners that after the year 2001, they
worked on contract basis as per G.R. dated 10 September 2001. After the
year 2001, individual contracts were issued to the Respondents to
perform the allotted work and payments were made to them for
execution of the allotted work. It is the case of the Petitioners that they
were not paid salaries or wages after the year 2001 but drew contractual
amounts depending on the work performed by them. According to the
Petitioners, none of the Respondents worked for 240 days in any
calendar year. Respondents filed Complaint (ULP) No. 42/2015 before
the Industrial Court, Nashik claiming the benefit of permanency on
completion of five years of service or from the year 1991. Respondents
relied on Kalelkar Award for grant of benefit of permanency on
completion of temporary services of five years. The Complaint was
resisted by the Petitioners by filing Written Statement. Both the parties
led evidence in support of their respective claims. The Industrial Court
has partly allowed the Complaint by judgment and order dated 28
March 2023 directing the Petitioners to give the benefit and status of
permanency to the Respondents from the date of filing of the
Complaint with all consequential benefits attached to the post of
labourers. Since Respondent Nos.2 to 6 have retired, the benefit is
directed to be extended to them till the dates of their retirement.
Petitioners are aggrieved by the judgment and order dated 28 March
2023 and have filed the present petition.
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4) Ms. Salunke, the learned AGP appearing for the Petitioners
would submit that the Industrial Court has grossly erred in granting
the benefit of permanency to the Respondents without appreciating the
fact that they were working merely on contract basis since the year
2001. She would invite my attention to the G.R. dated 10 September
2001 in support of her contention that the Respondents worked merely
as Contractors after the year 2001. She would then take me through the
Chart showing the number of days of service put in by each of the
Respondents to demonstrate that none of them had completed 240 days
of service in any calendar year. She would submit that the Respondents
were engaged seasonally as per availability of work at the nursery. That
their engagement was never continuous. That they have not worked
against sanctioned posts. Their engagements were not after following
any selection process. That therefore the benefit of permanency could
not have been extended to them by the Industrial Court. In support of
her contention that it is impermissible to regularize temporary
labourers on the strength of completion of 240 days of service in the
Government, she would rely upon Division Bench judgment of this
Court in Municipal Council, Tirora Versus. Tulsidas Baliram Bindhade 1. She
would submit that this Court has repeatedly frowned upon Labour and
Industrial Courts directing regularization of services merely on the
strength of completion of 240 days of service. In support, she would
rely upon judgments of this Court in The Deputy Director and Ors Versus.
Vijay Balbhim Mali2, Medical Superintendent, Rural Hospital and another
Versus. Rajashree Lakshman Yadav3 and Raigad Zilla Parishad and others
Versus. Kailash Balu Mhatre and others 4. She would accordingly pray for
setting aside the order passed by the Industrial Court.
2016 (6) Mh.L.J. 867.
2024 SCC OnLine Bom 3029
2024 SCC Online Bom 1929
2022 (2) Mh.L.J. 146
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5) The petition is opposed by Ms. Sarnaik, the learned Senior
Advocate appearing for the Respondents. She would submit that the
Industrial Court has rightly appreciated the position that the services of
the Respondents were being exploited by the Petitioners since the year
1985. That some of the Respondents have been working for the last 40
long years and have been deprived of the benefit of permanency. She
would rely upon para-28 of the Kalelkar Award in support of her
contention that every temporary worker must be brought on Converted
Regular Temporary Establishment (CRTE) on completion of 5 years of
continuous service. She would rely on judgment of this Court in State of
Maharashtra Versus. M.V. Ghalge and another5 in support of her contention
that it is not necessary to complete 240 days of service for the purpose
of extension of benefit of para-28 of the Kalelkar Award. She would
submit that what needs to be proved is mere continuation of the work
for a period of 5 years. That even if there is break in service but the
engagement is for five years, the benefit of Kalelkar Award must
necessarily be extended to the temporary workers. She would submit
that though Petitioners are actually entitled to CRTE from 1991, the
Industrial Court has thought it appropriate to grant the benefit of
permanency from the date of filing of the complaint i.e. w.e.f. 20 July
2015. She would submit that the Industrial Court has already denied
the benefit of permanency or atleast CRTE to the Respondents from the
year 1991 and therefore there is absolutely no warrant for interference
in the impugned order passed by the Industrial Court.
6) Ms. Sarnaik would submit that the factum of continuous
engagement of Respondents from the year 1995 is itself indicative of the
fact that they are performing the work of perennial nature. She would
invite my attention to the order passed by this Court in State of
1991 Mh.L.J. 1557
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Maharashtra& Ors. Versus. Smt. Jagan Hiraman Gaware 6 in support of her
contention that similar workers engaged in another Nursery have
already been regularized in service by creation of supernumerary posts.
She would submit that several posts are available for grant of
permanency to the Respondents and in the event of non-availability of
vacancies, supernumerary posts can be directed to be created for grant
of permanency. She would submit that after having rendered several
years of service, the least that the Respondents expect is grant of
pensionary benefits for the service that they have rendered with the
Petitioners.
7) Rival contentions of the parties now fall for my
consideration.
8) It appears that the Petitioners operate a Nursery at
Nilgavan, Taluka-Malegaon, District- Nashik. For execution of works at
the Nursery, it appears that the Plantation Officer at the Nursery has
utilized several labourers from time to time. Petitioners have placed on
record number of years of service put in by each of the Respondents
during 1985 to 2001. The details of engagement of Respondents during
1985 to 2001 are as under :
Total Days Name of the Labourer
present from 1
January 1985 -
31 December
Sajarabai Ranjanabai Jijabai Mangalabai Lalabai Shakuntalabai
Nimba Nimba Mohan Shantaram Prabhakar Tukaram
Shelar Shelar Jadhav Shelar Shelar Ahire
Writ Petition No. 3038 of 2007 decided on 2 July 2007.
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1994 101 97 149.5 126.5 0 155.5
1996 0 20 16.5 22 0 17.5
9) Thus, though a tall claim of engagement since 1985 is made
in respect of the Respondents, none of them have rendered any
substantial period of service during 1985 to 2001. If we take up the case
of Respondent No.1 -Shakuntalabai Tukaram Ahire, she was engaged
from the year 1990. During 1997, she was not engaged even for a single
day. Between 1990 to 1996 and 1998 to 2001, she was engaged
intermittently. In the year 1996, her engagement was only for 17.5
days. Throughout the year during 2001, she was engaged only for 59
days. In none of the years, she completed 240 days of service. Similar is
the case of the other Respondents. To take up the case of Respondent
No.5-Lalabai Prabhakar Shelar, she was engaged in the year 1987 for
only 76.5 days and in 1988 only for 7 days. Thereafter, for next 9 long
years, she was not engaged at all and the Plantation Officer utilized her
services directly in the year 1998 for 119 days.
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10) The position after the year 2001 is also not very
encouraging. Alongwith the reply, the Respondents have placed on
record, details of engagement after the year 2001 which again shows
engagement for very few days every year. The position is as under :
Total Days Name of the Labourer
present from 1
April 2001 -
31 December
Sajarabai Shakuntalabai Mangalabai Lalabai Ranjanabai Jijabai
Nimba Tukaram Shantaram Prabhakar Nimba Mohan
Shelar Ahire Shelar Shelar Shelar Jadhav
31 March 2002
31 March 2003
31 March 2006
31 December
11) The Petitioners have come out with a case that after the
year 2001, Respondents were never paid salary or wages but were
engaged as contractors. To illustrate, my attention is invited to the
manner in which the contracts were awarded to various persons. It
appears that bids were invited for various activities such as ploughing
of fields, plucking of fruits, watering of plants, digging of pits, removal
of grass etc. and rates were invited. The contract was awarded to
person quoting the lowest rates. Contracts were awarded depending on
the rates quoted. It is the contention of Ms. Sarnaik that the system of
awarding contracts was deliberately implemented to avoid
responsibility of paying wages despite extracting work of regular
nature.
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12) Perusal of the impugned order passed by the Industrial
Court would indicate that the learned Presiding Officer has not applied
his mind to the number of days put in by each of the Respondents and
has proceeded to accept the bald averment that they were working
since 1985. The findings recorded by the Industrial Court for allowing
the Complaint are as under :
8. I have gone through the evidence of complainant's witnesses viz. AW No. 1
Sau. Shakuntala Ahire Exh. U-15, AW No. 2 Ranjanabai Shelar Exh. U-16, AW
No. 3 Sharadabai Shelar Exh. U-17, AW No. 4 Latabai Shelar Exh. U-18, AW
No. 5 Jijabai Jadhav Exh. U-19 and AW No. 6 Mangalabai Shelar Exh. U-20.
They have reiterated the facts as per their complaint. In the cross
examination, bare denial is put to them. The witnesses answered the question
in negative. No candid evidence is brought on record, which destroyed their
testimony before the court. After going through the written statement, it is
established that, respondents admitted that, complainants are in service since
2001. It is the case of the respondents that, complainants are working on
contract basis. There is no iota of evidence brought on record, which states
that, complainants are working on contract basis since 2001. After going
through the documents submitted alongwith Exh. C-8 at Sr. No. 5, on the
contrary it is established that, since 1985 complainants are in service with
respondents. It is the case of the respondents that, complainants have never
worked for 240 days in the last calendar year continuously and
uninterruptedly. It is mentioned here that, on perusal of document at Exh. C-
8/5, it is appeared that, it is the record prepared by the respondents. The
basis from which such record is prepared is not produced before the court.
Respondents even not step-up in the witness box and deposed about such
documents, consequent upon it is established that, complainants are in
service with respondents since 1985. It is mentioned here that, in the written
statement, there is bear denial to the version of the complainants. It is settled
law that, employer will keep the record of his employee, and thus,
admittedly they have all the attendance record and other ancillary record of
the employees. No evidence to that effect is brought on record by
respondents. No oral testimony even is adduced to that effect before the
court.
9. On perusal of the documents at Exh. U-24 to Exh. U-29, it is established
that, respondents have passed various resolutions as well as Government has
passed various notifications and directed to give the status and benefits of
permanency, even to the contract employees, who are in the service for more
than 5 years. In the report of Kalelkar Award, it has also directed to
implement the policy of the government scrupulously. There are no efforts on
the part of the respondents to implement the Government resolutions as well
as the notifications and the Award of Kalelkar committee. From the perusal
of the document Exh. U-26, it is established that, there is a permanent post
vacant for the category, which is claimed by complainants.
10. In defence, respondents submitted that, complaint is barred by limitation.
It is mentioned here that, complainants are in service with respondents on the
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date of filing of the complaint. Accordingly, the cause of action is continuing
in nature. It is also argued that, respondents are the government entity. My
attention is brought towards the case law submitted alongwith Exh.U-30/1. It
is the judgment of the Hon'ble High Court passed against present
respondents. Further more, on perusal of letter Exh. U26, it is established
that, previously judgments are passed against respondents. Thus, the defence
raised that, respondents are the governments entity is not tenable. It is
argued that, respondents are not an industry and the provisions of the I. D.
Act, 1947 is not applicable. I here studied the judgment passed by the Hon'ble
High Court in W. P. No. 3038 of 2007 between the State of Maharashtra V/s.
Jagan Gaware and others. Said judgment is passed against present
respondents. In the said judgment, the defence of respondents that, they are
not industry is already rejected by the Hon'ble High Court. Accordingly, said
defence is not tenable in the eyes of law.
11. There is evidence on the part of the complainants that, they are in the
service with respondents since 1985. They are giving their services
continuously and uninterrupted. There is no contrary evidence that,
complainants have not worked fore more than 240 days in the said years.
Even if it is assumed that, complainants are the contract employees since
2001, as per the Government notification Exh. U-24 to Exh. U-29, as they have
worked for more than 5 years, their services needs to make permanent. Apart
to this, there is no evidence that, respondents have availed the services of the
complainants on contract basis. Thus, on the basis of preponderance of
probabilities, complainants have established their case that, there are vacant
posts to the claims made by them. In the course of argument, it is also
mentioned that, complainant No. 2 and 6 have attended the age of retirement
on superannuation. Accordingly, there is an unfair labour practices falling /
comprising under Item No. 5, 6, 9 & 10 of Sch-IV of the MRTU & PULP Act,
1971 is exercised, which needs to be impeded. Accordingly, issues are
answered and I proceed to pass the following order :
ORDER
1) Complaint is partly allowed.
2) It is hereby declared that, the respondents have indulged into the
act of an unfair labour practices under Item Nos. 5, 6, 9 & 10 of Sch-IV
of the Act, 1971 and they are directed to cease and desist the same, in
the future.
3) Respondents are directed to give the benefits permanency to the
complainants from the date of filing of the complaint, with all
consequential benefits attached to the post of labourers. Complainant
No. 2 and 6 are entitled the benefits and status of permanency, with
all consequential benefits from the date of filing of the complaint, till
their respective date of retirement.
4) The judgment and order be complied with within a month from the
date of this order.
5) Both the parties shall bear their own costs.
13) Thus, though specific contention was raised that
Respondents never worked for 240 days in any calendar year, the
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Industrial Court has recorded a perverse finding that the burden was
on Petitioners to prove that Respondents had not completed 240 days of
service. Since the Respondents filed complaint of unfair labour practice,
the burden was on them to prove completion of 240 days of service.
Even if the finding of the Industrial Court about burden put on the
Petitioners is to be momentarily accepted as correct, still the said
burden was discharged by producing details of engagement of each of
the Respondents showing thereby that none of them have remotely
completed 240 days of service. The engagement of the Respondents was
seasonal and as per the availability of work. None of them have
continued throughout the year even once since the year 1985. They
were utilized intermittently as per availability of work. It therefore
becomes difficult to believe that they performed work of perennial
nature or that there was any need for creation of permanent posts for
the work handled by the Respondents.
14) Even if Respondents were to complete service of 240 days
in any calendar year, the law is now well settled that mere completion
of 240 days of service does not make a temporary employee entitled to
grant of status of permanency. The law in this regard is expounded by
Division Bench judgment in Municipal Council, Tirora (supra) in which it
is held 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
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Act. 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 vs.
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 vs. 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. vs. Praful Warade and ors. (supra) which
again needs to be distinguished for the same reasons. The judgment of
learned Single Judge in case of Indian Tobacco Company Ltd. vs.
Industrial Court and ors. (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 vs. Indore
Development Authority and others (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 vs. Voltas Limited and anr. does not advance the cause of
workmen. The Division Bench of this Court in May and Baker Ltd. vs.
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.
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20. In Vice-chancellor, Lucknow University vs. Akhilesh Kumar Khare
and anr. (supra) relied upon by Adv. Parihar, Hon'ble Apex Court
follows its 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 vs. General Secretary, Krishi Vidyapeeth
Kamgar Union and anr. (supra) is already considered above. The
Division Bench of this Court in State of Maharashtra and anr. vs.
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 period 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 and anr. vs. Pandurang Sitaram Jadhav as also
Pune Municipal Corporation vs. Dhananjay Prabhakar Gokhale
(supra) on one hand and Ballarpur Industries Limited vs. 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.
15) This Court has reiterated the principles of impermissibility
to confer the benefit of permanency in terms of Clause-4C of the Model
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Standing Orders in service of State Instrumentalities on mere
completion of 240 days of service in Medical Superintendent, Rural
Hospital Versus. Rajashree Lakshman Yadav (supra) and The Deputy
Director Versus. Vijay Balbhim Mali (supra).
16) In Raigad Zilla Parishad (supra), the Coordinate Bench of
this Court had encountered a situation where temporary workers were
engaged by Zilla Parishad for over 30 years and were granted the
benefit of permanency by the Industrial Court. This Court followed the
dictum in Municipal Council, Tirora and held that grant of permanency
cannot be automatic in absence of availability of sanctioned posts. This
Court therefore adopted the mechanism of directing consideration of
proposal for creation of posts for absorption of daily wagers who had
worked for Zilla Parishad for over 30 years. In The State of Maharashtra
and others Versus. The Shetkari Shetmajoor Panchayat Mah. Through Vice
President and others7, this Court repeated similar course of action of
consideration of proposal for creation of posts for absorption of
workers, who had rendered decades of service.
17) In my view, considering the nature of engagement of
Respondents and number of days of service rendered by them in each
year, it is impermissible to confer status of permanency to them. The
Industrial Court has grossly erred in directing confirmation of status of
permanency from the date of filing of the complaint. Mr. Sarnaik has
strenuously relied upon judgment of Single Judge of this Court in State
of Maharashtra Versus. M.V. Ghalge (supra) in support of her contention
that the benefit of Kalelkar Award must be given on completion of five
years of continuous service even if the workers do not complete 240
Writ Petition No. 15221 of 2017 decided on 4 July 2019 (Bench at Aurangabad)
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days of service in a calendar year. In my view, services of the
Respondents cannot be treated as continuous by any stretch of
imagination. If Ms. Sarnaik's contention is accepted, the same would
virtually mean that a worker rendering one day of service in five years
would be entitled to be brought on CRTE and would then claim
regularization. The concept of CRTE contemplates payment of all
benefits of regular employment when permanent posts are not
available. It is a unique concept under which the Government finds it
impossible to make a worker permanent in absence of availability of
vacancy. However, till vacancy becomes available, he is put on CRTE so
as to ensure that the worker gets paid on par with other regular
employees. However, what must be borne in mind is that even for
bringing the worker on CRTE, perennial work must be available. This is
because a worker brought on CRTE would draw wages in the pay-scale
of a regular employee. It is inconceivable that services of the worker are
indeed for five days in a month but he has drawn salary for the entire
month only because he is brought in on CRTE as per para-28 of the
Kalelkar Award. In my view, therefore the Respondents were not
entitled to be brought on CRTE. Considering the nature of work
performed by them, in any case, the Industrial Court has not granted
the benefit of CRTE on completion of five years of service. In my view,
therefore what can be done at the highest in the present case is to follow
the methodology adopted by the Coordinate Bench of this Court in
Raigad Zilla Parishad and The Shetkari Shetmajoor Panchayat Mah. Through
Vice President by directing consideration of proposal for creation of
posts for possible absorption of the Respondents. If the State
Government feels that services rendered by Respondents are required
at the Nursery, posts can be created for their absorption.
28 March 2025
Neeta Sawant WP-6080-2024-FC
18) I accordingly proceed to pass the following order:
(i) The judgment and order dated 28 March 2023 passed by
the Member, Industrial Court, Nashik in Complaint (ULP)
No.42/2015 is modified by directing that the Petitioner No.
6 shall send a proposal to the State Government for
creation of posts for grant of permanency to the
Respondents within 8 weeks.
(ii) The State Government shall consider and decide the
proposal sent by Petitioner No. 6 within 8 weeks of receipt
thereof.
(iii) If the proposal for sanction of posts is approved, the
Respondents shall be granted the benefit of permanency
accordingly.
19) With the above directions, the Petition is partly allowed.
Rule is made partly absolute. There shall be no orders as to costs.
Digitally
signed by
NEETA [SANDEEP V. MARNE, J.]
NEETA SHAILESH
SHAILESH SAWANT
SAWANT Date:
2025.03.29
15:51:37
+0530
28 March 2025
