Bombay High Court
University Of Mumbai Thr. Registrar vs Parag Bhaskar Ghag And Ors on 9 May, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:21727
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SSP
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6932 OF 2022
University of Mumbai ..Petitioner
Through its Registrar,
Having Office at M.G. Road,
Mumbai 400 032.
Versus
1. Parag Bhaskar Ghag ...Respondent
R/o. 23, Sayyad Jainabi Chawl,
Meghwadi, Jogeshwari (E),
Mumbai 400 060.
2. Sandeep Shirish Sawant
R/o. B-40/159, Siddharth Naar,
Near Ozone Swimming Pool,
Road No.17, Goregaon (W),
Mumbai - 400 062.
3. Prashant Anant Mayekar,
R/o. 2/25, Mayur Building, MTNL Lane,
Dadar (W), Mumbai - 400 028.
4. Rajesh Keshrinath Deorukhkar,
R/o. Flat No. 413, 4th Floor,
'B' Wing, Silver Coin Co-op. Housing
Society Ltd., Bhagat Singh Road,
Near Saraswat Bank, Dombivali (E),
Thane - 421 202.
5. Ajay Vinodbhai Solanki,
R/o. 104, Shivsai Kutir, Bolinj Road,
Opp. Padmavati Hall, Virar (W),
Thane - 401 303.
6. Prajakta Nilesh Bendal,
R/o. C/52, Mahindra & Mahindra Colony,
Near Ganesh Mandir, Borivali (E),
Mumbai - 400 066.
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7. Trupti Atmaram Gurav,
R/o. Room No.3, Baban Pujari Chawl,
Data Tekdi, U Link Road,
Jogeshwari (E), Mumbai 400 060.
8. Sharad Kashiram Pujare,
R/o. Janata Nagar Rahiwashi Sangh,
Bihari Tekdi, Kandivali (E),
Mumbai - 400 101.
9. Suchit Shridhar Sawant
R/o. A/3 Wing, Fourth Floor,
Room No. 9, Bhawani Mata Society,
N.M. Joshi Marg, Lower Parel,
Mumbai - 400 013.
10. Rupali Pralhad Sawant,
R/o B/8, Sunrise Coop Housing Society,
Femina Apartment, Gupte Cross Road,
Dombivali (W), Thane - 421 202.
11. Namdev Shama Jadhav,
R/o. Adarsh Co-op Housing Society,
3/3, Vijaynagar, Gawlinagar,
Kalyan (E), Thane.
12. Tejasvi Baban Waykul,
R/o Karina Nagar, Golibar Road,
Maratha Colony, Santacruz (E),
Mumbai 400 055.
13. Swati Vijay Parab,
R/o. Shivaji Nagar, 12/13, Kherwadi
Road, Bandra (E), Mumbai - 400 051.
14. Vandana Dattatray Gaikar
R/o. 3/501, Shyamsunder Co-op
Society, Keshavraon Kadam Marg,
Mumbai Central, Mumbai - 400 008.
15. Sandeep Anant Mhatre,
R/o. Sai Vihar Co-op Hsg. Society,
Building C-47/2:12, Sector-24,
Juinagar, Navi Mumbai - 400 706.
16. Sandhya Vishnu Sontate,
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R/o. Shivraj Bhavan No. 2/151, 4th Floor,
B.M. Marg, Elphistone Road,
Mumbai - 400 013.
17. Meena Sampat Ingale,
R/o. Mukund Niwas, Kolsewadi,
Ganeshwadi, Kalyan (E), Thane.
18. Preeti Tushar Chavan,
R/o. C/13, Vijetha Co-op Hsg. Society,
1st Floor, Near Thakurli Station,
Thakurli (E), Dombivali,
Thane - 421 201.
19. Jayesh M. Sawant,
R/o. F/4, Hind Nagar Colony,
Natwar Nagar, Room No. 5,
Jogeshwari (E), Mumbai - 400 060.
20. Smita Kashinath Panchal,
R/o. Room No. 9, Nilgiri CHS,
Plot No. 79, Sector - 18-A,
Near Talave, Nerul (W),
Navi Mumbai - 400 707.
Mr. J.P. Cama, Senior Advocate, with Rui Rodrigues & Jainendra
Sheth, for the Petitioner.
Mr. S.C. Naidu, with G.R. Naik, Pradeep Kumar, Divya Yajurvedi,
Sudeshkumar Naidu and Uresh U. Sawant, i/b M/s G.R. Naik
& Co, for the Respondents.
CORAM: N. J. JAMADAR, J.
JUDGMENT RESERVED ON : 9th JANUARY 2025
JUDGMENT PRONOUNCED ON : 9th MAY 2025
P.C.:
1. Rule. Rule made returnable forthwith, and, with the consent of
the learned Counsel for the parties, heard finally.
2. This Petition under Article 227 of the Constitution of India assails
the legality, propriety and correctness of a judgment and order dated
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30th October 2021 passed by the learned Member, Industrial Court,
Mumbai in Complaint (ULP) No. 313 of 2015, whereby the complaint
came to be partly allowed and it was declared that the Respondents
have engaged in unfair labour practices under Items 5, 6 and 9 of
Schedule IV of the Maharashtra Recognition of Trade Unions and
Prevention of Unfair Labour Practices Act, 1971 ("the Act of 1971"), the
Respondents were directed to cease and desist from engaging in unfair
labour practices, grant permanency to the employees, and pay arrears
of salaries at par with the similarly placed permanent employees from
the date of their joining, the order of termination of the complainants
dated 31st October 2015 was quashed and set aside and the
Respondents were further directed to provide all statutory benefits and
revised salaries to the complainants after granting permanency to
them.
3. The backgrounds facts leading to this Petition can be stated in
brief as under:
3.1 For the sake of convenience and clarity the parties are
hereinafter referred to in the capacity in which they were arrayed
before the Industrial Court in the Complaint.
3.2 Mumbai University (R1) has been established under the Bombay
University Act 1884. Respondent No.2 is the Vice Chancellor and
Respondent Nos. 3 is the Registrar of Respondent No.1.
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3.3 The Respondent No.1 has since been governed by the
provisions contained in Maharashtra Universities Act 1994 applicable to
the Non-agricultural Universities in the State of Maharashtra.
3.4 The Complainant Nos. 1 to 20, the Respondents herein, claim
that they were working with the Respondent since 10 to 21 years, prior
to the filing of the complaint. They fall within the category of workman
defined under Section 2(s) of the Industrial Disputes Act 1947 ("the ID
Act). The University is an industry within the meaning of Section 2(j) of
the ID Act.
3.5 Complainant Nos. 1 to 3, 5, 7, 8, 11, 13, 16, 17, 19 and 20 were
appointed as Junior Clerks and the Complainant Nos. 4, 6, 9, 10, 12,
14, 15 and 18 were appointed as Data Entry Operators, after following
due process.
3.6 Each of the Complainants have completed 240 days in every
calender year; year after year. The Respondents adopted the device of
issuing fresh appointment orders from time to time showing an artificial
break. However, Complainants have been working with the
Respondents without any break. Initially, the Complainants were paid
consolidated remuneration. Later on the Complainants were appointed
in the pay scale prescribed for the concerned posts.
3.7 The Complainants averred that, they were appointed after
following the procedure of recruitment. They are working on clear and
permanent posts. There is sufficient workload. The services of the
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Complainants are regularly and permanently required by the
Respondents.
3.8 The Complainants have referred to the recommendations of
Sonawane Committee and two Circulars dated 4th July 1997 and 30th
May 2015, directing the appointment of the employees who are
working on the establishment of the University for a long time on daily
wage basis and non-approved posts, on the newly created posts.
Reference is made to another Circular dated 13 th March 2015 whereby
the University was directed by the State Government to make the
employees working on contract and temporary basis, permanent.
3.9 Despite having worked on the clear and vacant permanent posts
in the range of 10 to 21 years, without any break, and having
completed 240 days in each calender year, the Respondents have
denied the Complainants the benefit of permanency and all other
benefits which are admissible to the similar circumstanced permanent
employees.
3.10 The University has 1300 clerical cadre employees working on
clear and permanent posts. Yet, they are shown temporary employees.
The work discharged by the Complainants is of permanent nature. The
Respondents have shown them as temporary with the object of
depriving them of the status and privileges of the permanent employee.
3.11 The Complainants further asserted that on the basis of an
incorrect legal opinion they had filed Writ Petition Nos. 1492 of 2013
and 2615 of 2013, seeking regularization of their services. The said
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Petition came to be dismissed by an order dated 6th January 2015, on a
technical ground. The Complainants ought to have approached the
Industrial Court for permanency. The Complainants assert, taking
undue advantage of the order passed in the said Writ Petition and
Special Leave Petition, preferred thereagainst, the Respondents were
threatening to terminate their services, without following due process of
law. The Respondents thus committed Unfair Labour Practices under
Item Nos. 5 and 6 of Schedule IV of the Act of 1971. Thus, the
Complainants filed the Complaint seeking declarations and directions
to the Respondents to grant permanency benefit to the Complainants
and provide all statutory benefits and revised salaried to the
Complainants.
3.12 The Complainants had also filed an Application for interim relief.
The notices of the said Application were served on the Respondents.
They appeared and filed an Affidavit in Reply to the Interim Application
on 4th September 2015. The Interim Application was listed for hearing
on 16th November 2015 before the Industrial Court. However, on 31 st
October 2015, the Respondents allegedly illegally terminated the
services of the Complainants without following due process of law.
3.13 Thereupon, the Complainants amended the Complaint and
raised ground that the termination by the Respondents was illegal and
in breach of the provisions contained in Section 25-F and 25-G of the
ID Act. Their services were terminated without complying with Rule 81
of the Industrial Disputes Maharashtra Rules 1957 and Section 25-F
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and 25-G of the ID Act. That itself constitutes unfair labour practice
under the Act of 1971. The Complainants services were terminated for
the sole reason that they were claiming permanency. Thus, declaration
was sought that the Respondents illegally terminated the services of
the Complainants and a direction to reinstate the Complainants with full
back wages and continuity of service with effect from 31 st October 2015
with all consequential benefits including permanency.
3.14 Respondent No.1 resisted the complaint by filing a Written
Statement. The tenability of the complaint was assailed on the ground
that a statutory mechanism was provided under Section 57 of the
Universities Act 1994, under which a Grievance Committee was to be
constituted for the redressal of the grievances and complaints of the
employees of the Universities which did not fall within the jurisdiction of
the Tribunal constituted under the said Act.
3.15 Secondly, the Industrial Court has no jurisdiction to entertain and
try the complaint under the provisions of the Act 1971 as the
Maharashtra Civil Services Rules had been made applicable to the
employees of the University. Moreover, the University was not an
industry within the meaning of Section 2(S) of the ID Act 1948.
Therefore the complaint could not have been entertained under the
provisions of the Act of 1971.
3.16 It was further contended that since the services of the
Complainants were already terminated, the Industrial Court would have
no jurisdiction to entertain and try the Complaint.
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3.17 The Respondent categorically denied the claim of the
Complainants that the Respondent had engaged in unfair labour
practices, especially under Items 5, 6 and 9 of Schedule IV of the Act,
1971. The Complainants were working on a purely temporary basis.
The services of the Complainants were terminated in accordance with
the terms of their appointment. Thus, the Complainants had no right to
seek permanency and continuity in employment. The Respondent
disputed the claim of the Complainants that they were appointed by
following due process of recruitment. The claim of the Complainants
that they had rendered services in the range of 10 to 21 years was also
put in contest. It was denied that each of the Complainants had put in
240 days of service every year; year after year.
3.18 The Respondent contended that the Respondent University was
not governed by the Model Standing Order. Therefore, the claim for
permanency based on the said service of 240 days every year was
wholly unfounded. The complaint was explicitly stated to be barred by
res-judicata as for the very same reliefs, the Complainants had filed
WP Nos.1492 of 2013 and 2615 of 2013. Both the Petitions were
dismissed by the Division Bench of this Court on merits. The challenge
thereto before the Supreme Court also failed. Therefore, as the reliefs
in the said Petitions and the instant Complaint were identical, the
Complaint was barred by principle of res-judicata.
3.19 Lastly, the Respondent sought to justify the termination of the
complainants. Since the appointments were purely temporary,
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according to the Respondent, in accordance with the terms of the
employment, the services of the Complainants were validly terminated.
The contract of employment had come to an end by efflux of time.
Therefore, the challenge to the termination order was devoid of
substance.
4. In the wake of the aforesaid pleadings, learned Member,
Industrial Court, settled the issues, including that of maintainability of
the Complaint and the bar to the jurisdiction of the Industrial Court.
Mr. Suchit Shridhar Sawant, Complainant No.9, entered into the
witness box to substantiate the allegations of unfair labour practices.
Number of documents were also tendered in support of the claim of the
Complainant. In the rebuttal, the University (R1) examined Ashok
Hema Ferde, the then Deputy Registrar.
5. By the impugned order, the learned Member, Industrial Court,
was persuaded to partly allow the Complaint and issue negative and
affirmative directions, as indicated above. In the process, the learned
Member returned findings that the Industrial Court had the jurisdiction
to entertain, try and determine the Complaint and it was maintainable.
6. I have heard Mr. J.P.Cama, learned Senior Advocate for the
Petitioner - employer and Mr. S.C.Naidu, learned Counsel for the
Respondents - employees. With the assistance of the learned
Counsel for the parties, I have perused the pleadings, evidence and
the material on record.
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7. At the outset, Mr. Cama would urge that the impugned judgment
and order suffers from manifest infirmities and irreconcilable
inconsistencies in the reasoning. Learned Member, Industrial Court,
did not correctly appreciate the issue of jurisdiction of the Industrial
Court to entertain and try the Complaint, when admittedly the
Complainants had already been terminated. Likewise, the bar of res-
judicata was not appreciated in a correct perspective and in the light of
the order passed by this Court in WP No.1318 of 2016 clearly spelling
out the inquiry that was expected of the Industrial Court in determining
the issue of res-judicata.
8. Since the aforesaid challenges were pressed into service by Mr.
Cama as the pivotal issues which go to the root of the matter, it may be
expedient to first deal with these two issues.
STATUTORY REGIME
9. A brief resume of the object of the Act, 1971 and relevant
provisions thereof would be apposite. The object of MRTU and PULP
Act, 1971 is, inter alia, to define as to what constitutes unfair labour
practices and to provide for the prevention of certain unfair labour
practices, as enumerated in the Schedule II, III and IV of the said Act,
1971. For this purpose, the Act provides for the constitution of the
Courts for enforcing the provisions relating to the unfair practices.
Under Section 3(16) "unfair labour practices" means unfair labour
practices as defined in Section 26, which in turn, provides that, unless
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the context requires otherwise, "unfair labour practices" mean any of
the practices listed in Schedules II, II and IV.
10. In the context of the controversy at hand, it may be appropriate
to extract the relevant part of Items 1, 5, 6 and 9 of Schedule IV
appended to the Act. Those Items read as under :
SCHEDULE IV
General Unfair Labour Practices on the part of employers
1. To discharge or dismiss employees -
(a) by way of victimisation;
(b)not in good faith, but in the colourable exercise of the
employer's rights;
(c) by falsely implicating an employee in a criminal case on
false evidence or on concocted evidence;
(d)for patently false reasons;
(e)on untrue or trumped up allegations of absence without
leave;
(f) in utter disregard of the principles of natural justice in the
conduct of domestic enquiry or with undue haste;
(g)for misconduct of a minor or technical character, without
having any regard to the nature of the particular misconduct
or the past record of service of the employee, so as to
amount to a shockingly disproportionate punishment.
.........
5. To show favouritism or partiality to one set of workers,
regardless of merits.
6. To employ employees as "badlis", casuals or temporaries
and to continue them as such for years, with the object of
depriving them of the status and privileges of permanent
employees.
9. Failure to implement award, settlement or agreement."
11. The Act of 1971 provides for two Courts to deal with the
complaints of unfair labour practices. Under Section 5 of the said Act,
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1971, it shall be the duty of the Industrial Court (constituted under
Section 4), inter alia, to decide the Complaints relating to unfair labour
practices, except unfair labour practices falling under Item 1 of
Schedule IV. Section 7 of the Act, 1971 provides that it shall be the
duty of the Labour Court (constituted under Section 6) to decide
Complaints relating to unfair labour practices described in Item 1 of
Schedule IV and to try offences punishable under the said Act, 1971.
12. The powers of the Courts are provided in Chapter VII of the Act,
1971. In addition to declaration that a person is engaged in or is
engaging in unfair labour practices, the Courts have been empowered
to direct affirmative actions under clause (b) of Section 30 of the said
Act, 1971. Sub-section (2) of Section 30 empowers the Courts to
grant interim orders. Under Section 32, the Court is empowered to
decide all matters arising out of any application or a complaint referred
to it for the decision under any of the provisions of the said Act, 1971.
JURISDICTION
13. Keeping in view the aforesaid broad statutory regime, the
challenge to the jurisdiction forcefully mounted by Mr. Cama, deserves
to be appreciated. Mr. Cama would urge that, indisputably the
services of the Complainants were terminated. Once there was
termination of the services of the Complainants, unfair labour practice,
if any, would fall within the ambit of Item 1 of Schedule IV. In view of
the provisions contained in Sections 5 and 7 of the Act, 1971, such a
complaint was required to be entertained and tried by the Labour Court
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exclusively. The Industrial Court would have no jurisdiction to entertain
the Complaint of such nature. In the instant case, the Industrial Court
has resorted to a convulated process of reasoning to exercise the
jurisdiction which it did not possess. Such attempt to confer jurisdiction
on the Industrial Court has been expressly repelled by the Supreme
Court in the case of Rajneesh Khajuria V/s. Wockhardt Limited and
Anr.1. In the said case, Mr. Cama would urge, the Supreme Court has
enunciated in clear and explicit terms that the dispute regarding
termination as act of victimisation falls within the exclusive jurisdiction
of the Labour Court and the provisions contained in Section 32 of the
Act, cannot be resorted to.
14. Mr. Naidu countered the submissions of Mr. Cama. At the
threshold, it was submitted that the challenge to the jurisdiction of the
Industrial Court is without any foundation in the pleadings. In the
written statement, filed on behalf the respondents to the compliant, the
jurisdiction of the Industrial Court was not assailed on the ground now
sought to be canvassed before this Court. Nor a specific ground of lack
of jurisdiction has been raised in the instant petition. Therefore,
according to Mr. Naidu, the said contention of lack of jurisdiction
deserves to be rejected outright. To this end, Mr. Naidu placed reliance
on a judgment of the Supreme Court in the case of Union of India vs.
Dinesh Prasad2.
1 (2020) 3 SCC 86
2(2012) 12 SCC 63.
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15. On the merits of the objection, Mr. Naidu would urge the
circumstances in which the complainants were unlawfully terminated
are rather incontestable. The complaint was filed on 24th August, 2015.
The Respondents appeared and filed affidavit-in-reply to the interim
application on 4th September, 2014. To the knowledge of the
Respondents, the interim application was listed for hearing on 16 th
November, 2015. Yet, on 31st October, 2015, the respondents brazenly
terminated the services of the complainants in clear breach of the
provisions contained in Section 25-F and 25-G of ID Act, 1971. Such
egregiously highhanded action on the part of the Respondents -
employer, in itself, amounted to unfair labour practice under Item 9 of
the Schedule-IV. To buttress this submission Mr. Naidu placed reliance
on a decision of a learned Single Judge of this Court in the case of
Dattatray S. Kharde vs. Executive Engineer, Chief Gate Erection
Unit No.2, Nagpur3.
16. Mr. Naidu further submitted that a complaint of illegal termination
can be legitimately entertained by the Industrial Court where the
employer attempts to overreach the Court and terminates the services
of the employee. A very strong reliance was placed by Mr. Naidu on
the judgments of this Court in the cases of Neena B. Ranganekar vs.
Shardashram Vidyamandir Trust and ors.4 and Municipal Council
vs. Manu Sudesh Malik5.
3(1992) SCC OnLine Bom 440.
4WP/242/2019 dtd.13/2/2023.
52008(3) Bom. C.R.832.
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17. Mr. Cama joined the issue by canvassing a submission that the
decision in the case of Neena Rangnekar (supra) does not command
any precedential value as the said judgment is per incuriam the
judgment of the Supreme Court in the case of Rajneesh Khajuria
(supra). Moreover, the learned Member, Industrial Court, has not
recorded a finding that there was a breach of Item 9 Schedule IV of the
ID Act, 1971.
18. The provisions contained in Sections 5 and 7 of the ID Act, 1971
are abundantly clear. Except a complaint of unfair labour practice within
the meaning of Item 1 of Schedule IV, all other complaints of unfair
labour practices are within the jurisdictional competence of the
Industrial Court. However, the circumstances in which the termination
of services occurs cannot be said to be wholly inconsequential.
19. The submission of Mr. Cama that the reasons for termination are
of no significance and it is the effect of the action of the employer that
is determinative, cannot be acceded to readily. The circumstances in
which the termination occurs must enter the adjudication. If an
employee is terminated while the Industrial Court is in the seisin of a
complaint of unfair labour practice, under other items of Schedule-IV,
the Industrial Court cannot be rendered functus officio by an order of
the employer to terminate the employee, howsoever unlawful and
brazen it may be. Such an interpretation would give a long leash to an
employer, who swiftly terminates the services of an employee, who has
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approached the Industrial Court with a complaint of unfair labour
practices falling under other items of Schedule-IV.
20. In the case at hand, as noted above, the services of the
complainants were terminated on 31st October, 2015, after the affidavit-
in-reply came to be filed and the matter was posted for hearing on
application for interim relief. The day on which the complaint was filed,
the complainants were very much in the employment of the University
(R1).
21. A profitable reference, in this context, can be made to the
decision of a learned Single Judge of this Court in the case of Manu
Malik (supra), wherein the employee had lodged a complaint of unfair
labour practice before the Industrial Court on 21 st October, 2003 and
the employer hastily terminated the services on 10th November, 2003.
In that context, the learned Single Judge observed, the cause of action
for filing the complaint, does not come to an end merely because the
employer played trickery and terminated the services of the employee
after filing of complaint for permanency. The Industrial Court is
required to declare unfair labour practice on the date of filing of
complaint. And, therefore, the contention advanced on behalf of the
employer was misconceived and misplaced in law. Despite termination
of services, admittedly, after filing of the complaint, the complaint still
has to be decided on merits. It would be a mockery of justice if in such
a background complaints are dismissed as the employer would
terminate the service of employee after the complaint of permanency is
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filed and then raise a preliminary objection to maintainability of
complaint for permanency before the Industrial Court.
22. In the case of Neena Rangnekar (supra), the employee was
terminated two days after service of notice of the complaint. In the
wake of the challenge to the jurisdiction of the Industrial Court, the
learned Single Judge observed that it would be required to be held that
as an act of retrenchment falls outside the purview of Item-1 of
Schedule-IV of the Act, 1971, it would necessarily be an incidence
falling under the other items under Schedule-IV. Holding thus, the
Industrial Court, was directed to adjudicate the complaint of the
petitioner therein on merits.
23. At this stage, reference to the facts in the case of Rajneesh
Khajuria (supra), on which a very strong reliance was placed by Mr.
Cama, becomes necessary. In the said case, the employee was
transferred and, eventually, terminated for not joining the place of
transfer. The employee filed a complaint of unfair labour practice. A
submission was canvassed on behalf of the employer therein that,
since the employee was terminated the said order could be assailed
before the Labour Court only in terms of Section 7 read with Item 1 of
Schedule IV of the ID Act, 1971 and not before the Industrial Court. The
said contention was sought to be met by the Counsel for the employee
by urging that the termination was ancillary to the order of transfer or
consequence of not joining the transferred station. And, therefore, in
terms of Section 32 of the Act there need not be any separate
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challenge to the termination.
24. Repelling the aforesaid contention on behalf of the employee,
the Supreme Court postulated as under:
"25. We do not find any merit in the arguments
raised by the learned counsel for the appellant. The
jurisdiction of the Industrial Court is, inter alia, to decide
complaints relating to unfair labour practices except
unfair labour practices falling under Item 1 of Schedule
IV. The unfair labour practices mentioned in Item 1 of
Schedule IV fall within the jurisdiction of the Labour
Court (See Section 7). In view of the specific provision
that the complaint relating to unfair labour practices
described in Item 1 of Schedule IV fall within the
jurisdiction of the Labour Court, therefore, the Industrial
Court will not have jurisdiction to examine the question
of termination as a consequence of the order of transfer.
Since the statute creates a forum for redressal of
grievances in respect of termination of services, it is the
said forum alone which can be invoked for redressal of
grievances. The jurisdiction of a forum can be invoked
only in accordance with the statutory provisions.
Therefore, alleging termination as a consequence of
non-joining on the transferred post will not confer
jurisdiction on the Industrial Court. The dispute
regarding termination as act of victimization falls
exclusively within the jurisdiction of the Labour Court.
Consequently, we do not find that the appellant has
made out any case for interference against an order
passed by the High Court in the present appeal.
Therefore, the Labour Court alone was competent to
decide the issue of alleged unlawful termination of the
appellant." (emphasis supplied)
25. There can be no duality of opinion on the point that in the face of
clear and explicit language of Section 7 read with Item 1 of Schedule IV
of the Act, 1971, a dispute regarding termination as an act of
victimization falls exclusively within the jurisdiction of the Labour Court.
Terming the termination as a consequence of failure to join the
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transferred post would not confer the jurisdiction on the Industrial
Court. However, the aforesaid decision is required to be appreciated in
the backdrop of the facts therein. In the said case the services of the
employee were terminated on 15th April, 2005 and, thereafter, the
complaint was filed on 30th April, 2005 before the Industrial Court. At
that stage, the act of termination was complete. Such termination must
be challenged before the Labour Court if it was alleged to be by way of
victimization.
26. The decision of Rajneesh Khajuria (supra), in my considered
view, cannot be applied to a case where the employee has already
invoked the jurisdiction of the Industrial Court by filing complaint of
unfair labour practices falling within the jurisdictional province of the
Industrial Court and, thereafter, the employer terminates the services of
the employee. To accede to the jurisdictional challenge, in such a
situation, would amount to give a carte blanche to the employer and
put a premium on the alleged wrongful act of the employer. Viewed
through this prism, the decision in the case of Manu Malik (supra)
appears to lay down the correct position in law. I am, therefore, not
persuaded to agree with the submission on behalf of the employer that
the Industrial Court lacked jurisdiction to entertain, try and decide the
complaint.
Res-judicata:
27. Mr. Cama would urge, with a degree of vehemence, that the
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essence of cause of action for filing WP/1492/2013 and
WP/2615/2013, wherein the complainants had sought regularization
and the instant complaint is one and the same, namely, long service
justifying the claim of permanency. By a reasoned order dated 6 th
January, 2015, a Division Bench of this Court dismissed the petitions
clearly recording that if due procedure of recruitment was not followed
by the respondent - University, the petitioners (complainants herein)
cannot seek their regularization in view of the decisions in the cases of
Ramkrishna Chauhan vs. Seth D M High School 6, State of Orissa
and another vs. Mamata Mohanty7 and Renu and others vs. District
and Sessions Judge, Tis Hazari8. The Division Bench also, in terms,
observed that the judgment in the case of Secretary, State of
Karnataka and others vs. Umadevi (3) and others9 cannot be made
applicable to the complainants. The said decision, which was affirmed
by the Supreme Court in Special Leave to Appeal (C) No.4986/2015 by
an order dated 17th February, 2015, clearly operates as res-judicata,
urged Mr. Cama.
28. As a second limb of the submission, Mr. Cama would urge
having adopted one remedy i.e. of regularization, and failed therein,
upto the Supreme Court, the complainants where barred from pursuing
another remedy i.e. permanency. The endeavour made by the learned
62013 (3) ALL MR 1.
72011 AIR 1332.
8(2014) 2 Scale 262.
9(2006) 4 SCC 1.
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Member, Industrial Court, to sidestep the bar of res-judicata by
observing that the Division Bench had not dealt with the issue of
tenability of the claim for permanency, in view of the decision of the
Supreme Court in the case of Maharashtra State Road Transport
Corporation & Another vs. Casteribe Rajya Parivahan Karmachari
Sanghatana10, according to Mr. Cama, does not commend itself.
29. It was submitted that once the Industrial Court held in clear and
explicit terms, that the reliefs claimed in the writ petitions and in the
instant complaint were 'no doubt identical', it was not open for the
learned Member to return a finding that the complaint was not barred
by the principles of res-judicata. Mr. Cama heavily banked upon the
decision of the Supreme Court in the case of Chairman and
Managing Director, the Fertilizers And Chemicals Tranvancore Ltd.
& Anr. vs. General Secretary FACT Employees Association &
Ors.11.
30. Mr. Naidu would urge there is no substance in the ground of bar
of res-judicata. It was submitted that the premise of the writ petitions
was completely different. The complainants were constrained to
approach the High Court as the respondent - University had published
an advertisement on 18th March, 2013 and called for applications to fill
up the posts on which the complaints were employed. Therefore, the
complainants had challenged the recruitment process and prayed for
10(2009) 8 SCC 556.
11(2019) 11 SCC 323.
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regularization of their services as vacant posts were available. In
contrast, the substance of the instant complaint is the unfair labour
practice resorted to by the respondents with the object of depriving the
complainant the status and privilege of permanent employees. In that
backdrop, the learned Member, Industrial Court, was well within his
rights in negativing the bar of res-judicata by placing reliance on the
judgment of the Supreme Court in the case of MSRTC vs. Castribe
(supra).
31. Mr. Naidu would further urge the claim for regularization was
decided by the Division Bench on the basis of a submission that
University had not followed the regular recruitment process. With the
development in law to the effect that, the essence of employment and
rights cannot be determined merely on the basis of initial terms of
appointment when the course of employment has evolved for a period
of time, the complainants cannot be non-suited for having invoked the
writ jurisdiction of the High Court. Reliance was placed by Mr. Naidu
on an order passed by the Supreme Court in the case of Vinod Kumar
& ors. Etc. vs. Union of India and ors.12.
32. The question as to whether the principles of res-judicata apply to
the proceedings before Industrial Adjudicator is no longer res integra.
Section 11 of the Code may not, in terms, apply to the proceedings
before the Industrial Adjudicator as it is not a Court in the strict sense of
the term. Nonetheless, the general principles of res-judicata apply to
12 Civil Appeal Nos.5153-5154 of 2024 dtd.30/1/2024.
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the proceedings before the Industrial Adjudicator. In the case of
Fertilizers And Chemicals Tranvancore Ltd. (supra), on which
reliance was placed by Mr. Cama, after tracing the pronouncements
which enunciate that the principles of res-judicata apply to the
proceedings before the Labour Courts, the Supreme Court extracted
the observations in the case of State of UP vs. Nawab Hussain 13 as
under:
"24. .....
[I] It may be that the set of facts may give rise to two or
more causes of action. If in such a case a person is
allowed to choose and sue upon one cause of action at
one time and to reserve the other for subsequent
litigation, that would aggravate the burden of litigation.
Courts have therefore treated such a course of action
as an abuse of its process."
(emphasis supplied)
33. There can be no quarrel with the aforesaid proposition of law.
However, the situation which emerges on account of the provisions
contained in the Special enactments, like the Act, 1971, cannot be lost
sight of. The decision in the case of Umadevi (supra) is essentially an
authority for the proposition that there cannot be a backdoor entry and
illegal appointments cannot be regularized by circumventing the
constitutional norms. The import of the decision in the case of
Umadevi (supra) vis-a-vis the power of the Courts constituted under
the Act, 1971 was considered by the Supreme Court in the case of
MSRTC vs. Castribe (supra). After adverting to the purpose and
13(1977) 2 SCC 806.
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object of the Act, 1971, the Supreme Court enunciated that Umadevi
(supra) does not denude the Industrial and Labour Court of their
statutory power under Section 30 read with Section 32 of the Act, 1971
to order permanency of the workers who have been victims of unfair
labour practices. The observations of the Supreme Court in
paragraphs 33, 35 and 36 are instructive and hence extracted below:
"33. The provisions of the MRTU and PULP Act
and the powers of the Industrial and Labour Courts
provided therein were not at all under consideration in
Umadevi (Supra). As a matter of fact, the issue like the
present Unfair labour practice on the part of the
employer in The provisions of MRTU & PULP Act and
the powers of Industrial and Labour Courts provided
therein were not at all under consideration in the case
of Umadevi (Supra). As a matter of fact, the issue like
the present one pertaining to unfair labour practice was
not at all referred, considered or decided in Umadevi1.
Unfair labour practice on the part of the employer in
engaging employees as badlis, casuals or temporaries
and to continue them as such for years with the object
of depriving them of the status and privileges of
permanent employees as provided in Item 6 of
Schedule IV and the power of Industrial and Labour
Courts under Section 30 of the Act did not fall for
adjudication or consideration before the Constitution
Bench.
.......
35. Umadevi (supra) is an authoritative
pronouncement for the proposition that Supreme Court
(Article 32) and High Courts (Article 226) should not
issue directions of absorption, regularization or
permanent continuance of temporary, contractual,
casual, daily wage or ad-hoc employees unless the
recruitment itself was made regularly in terms of
constitutional scheme.
36. Umadevi (supra) does not denude the
Industrial and Labour Courts of their statutory power
under Section 30 read with Section 32 of MRTU &
PULP Act to order permanency of the workers who
have been victim of unfair labour practice on the part of
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the employer under item 6 of Schedule IV where the
posts on which they have been working exists.
Umadevi cannot be held to have overridden the powers
of Industrial and Labour Courts in passing appropriate
order under Section 30 of MRTU & PULP Act, once
unfair labour practice on the part of the employer under
item 6 of Schedule IV is established."
(emphasis supplied)
34. It would be contextually relevant to note that in the case of Hari
Nandan Prasad and another vs. Employer I/R to Management of
Food Corporation of India and another14, a two Judge Bench of the
Supreme Court considered the pronouncements in the cases of
Umadevi (supra) and MSRTC vs. Castribe (supra) and clarified the
position in law as under:
"34. A close scrutiny of the two cases, thus, would
reveal that the law laid down in those cases is not
contradictory to each other. In U.P. Power Corporation,
this Court has recognized the powers of the Labour
Court and at the same time emphasized that the Labour
Court is to keep in mind that there should not be any
direction of regularization if this offends the provisions
of Art.14 of the Constitution, on which judgment in
Umadevi is primarily founded. On the other hand, in
Bhonde case, the Court has recognized the principle
that having regard to statutory powers conferred upon
the Labour Court/Industrial Court to grant certain reliefs
to the workmen, which includes the relief of giving the
status of permanency to the contract employees, such
statutory power does not get denuded by the judgment
in Umadevi's case. It is clear from the reading of this
judgment that such a power is to be exercised when the
employer has indulged in unfair labour practice by not
filling up the permanent post even when available and
continuing to workers on temporary/daily wage basis
and taking the same work from them and making them
some purpose which were performed by the regular
workers but paying them much less wages. It is only
14(2014) 7 SCC 190.
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when a particular practice is found to be unfair labour
practice as enumerated in Schedule IV of MRTP and
PULP Act and it necessitates giving direction under
Section 30 of the said Act, that the Court would give
such a direction." (emphasis supplied)
35. In the case of Vinod Kumar (supra), on which reliance was
placed by Mr. Naidu, the Supreme Court observed inter alia as under:
"5. Having heard the arguments of both the sides,
this Court believes that the essence of employment
and the rights thereof cannot be merely determined
by the initial terms of appointment when the actual
course of employment has evolved significantly over
time. The continuous service of the appellants in the
capacities of regular employees, performing duties
indistinguishable from those in permanent posts, and
their selection through a process that mirrors that of
regular recruitment, constitute a substantive
departure from the temporary and scheme-specific
nature of their initial engagement. ....."
(emphasis supplied)
36. The aforesaid being the position in law, the broad submission
sought to be canvassed by Mr. Cama that once the complainants
availed one remedy i.e. of regularization, they were precluded from
availing the other remedy i.e. permanency, does not merit acceptance
unreservedly. The Industrial Court was required to examine whether
the allegations of unfair labour practices were maintainable within the
framework of the Act, 1971. In view of the decision of the Supreme
Court in the case of MSRTC vs. Castribe (supra), as clarified in Hari
Nanda Prasad (supra), the Industrial Court could justifiably examine
whether the employer had subjected the complainants to unfair labour
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practices, and whether a case for the action, as envisaged by Section
30 of the Act, 1971, was made out. If it is held that Umadevi (supra)
does not override the powers of the Industrial and Labour Court to pass
appropriate order, statutorily conferred under the Act, 1971, then a
decision by the Writ Court that the complainants were not entitled to
regularization on the premise that the initial appointment was not by
following the regular recruitment process, cannot preclude the
Industrial and Labour Court from examining the aspect of unfair labour
practices and redress the grievances, if found genuine. The decision
by a writ court and the decision by an Industrial Adjudicator, in such a
situation, may be based on distinct parameters. It cannot be said that
the issues which directly and substantially arose for determination in
the writ petition also arose for adjudication by the Industrial Court.
Therefore, it would be difficult to accede to abstract proposition of law
that the employee must elect either of the two remedies, i.e.
regularization or permanency.
37. In the facts of the case at hand, the allegations in the complaint
were not such that the claim for permanency could be jettisoned away
by making a reference to the order passed by the Division Bench in
Writ Petition Nos.1492 and 2615 of 2023. Moreover, I find substance in
the submission on behalf of the complainants that the context in which
the writ petitions were filed before this Court was materially distinct. To
hold that the complainants who had put in services in the range of 10 to
21 years be precluded from seeking redressal before the statutory
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forums for having made an abortive attempt to seek regularization, may
not be in consonance with the objective of public justice, which the
principle of res-judicata is meant to advance.
38. I am, therefore, impelled to held that the complaint was not
barred by the principle of res-judicata and the learned Member,
Industrial Court, was justified in determining the issue of unfair labour
practices on merit.
PERMANENCY
A. To terminated employees
39. This takes me to the thrust of the submission on behalf of the
employer that under no circumstances, the benefit of permanency
could have been granted to the complainants. Amplifying the
submission, Mr. Cama would urge that the Industrial Court has
rendered mutually inconsistent findings. The learned Member,
Industrial Court has, on the one hand, set aside the termination. And,
on the other hand, granted benefit of permanency to the complainant.
Permanency can be granted to only those employees, who were still in
the employment and not terminated. A very strong reliance was placed
by Mr. Cama on the judgment of the Supreme Court in the case of
Oshiar Prasad and others vs. Employers In Relation to
Management of Sudamdih Coal Washery of M/s. Bharat Coking
Coal India Dhanbad, Jharkhand15 to bolster up the case that
15(2015) 4 Supreme Court Cases 71.
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permanency cannot be granted to a workman whose services were
terminated.
40. In the said case, the Supreme Court enunciated that it is a
settled principle of law that absorption and regularization in service can
be claimed or/and granted only when the contract of employment
subsists and is in force inter se employee and the employer. Once it
comes to an end, either by efflux of time or as per the terms of the
contract of employment or by its termination by employmer then in
such event the relationship of employer and employee comes to an
end and no longer subsists except for the limited purpose to examine
the legality and correctness of its termination. Applying the aforesaid
principle, in the facts of the said case, the Supreme Court held that
since the appellants services were discontinued or/and retrenched
(whether rightly or wrongly) long back, the question of their absorption
or regularization in the services of the employer did not arise nor could
have been gone into.
41. Mr. Cama forcefully urged that, with the termination of the
services of the complainants by 31st October, 2015, the question of
permanency could not have been examined by the learned Member,
Industrial Court. For that purpose the termination was required to be
set aside and the complainants reinstated in service first. Realizing the
said difficulty, on account of the jurisdictional competence, in the case
at hand, the learned Member, Industrial Court, attempted to by-pass
the issue by recording that the question of reinstatement with full back-
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wages and continuity of service with effect from 31 st October, 2015
alongwith consequential benefits was not an issue before the Industrial
Court and, yet, went on to quash and set aside the order of termination
of the complainants as illegal, Mr. Cama would urge, without ascribing
any justifiable reason. On this count alone the impugned order
deserves to be quashed and set aside, submitted Mr. Cama.
42. Mr. Naidu would urge that, the aforesaid submissions do not
govern the facts of the case at hand. There is an essential distinction
between a situation where the termination had occurred prior to filing of
the complaint of unfair labour practices and an illegal termination after
the employees have invoked the jurisdiction of the Industrial Court
under the Act of 1971. The adjudicatory machinery under the Act of
1971, once set in motion, cannot be scuttled by an act of illegal
termination and thereby frustrate the object of the Act of 1971.
43. Mr Naidu would urge that, the Industrial Court had in effect held
that the termination was void-ab-initio. Consequently, the order of
termination was non-est in the eye of law and, as a necessary corollary,
the parties stood restored to the position status-quo ante the filing of
the compliant. Mr. Naidu attempted to draw support to the aforesaid
proposition from the judgment of the Supreme Court in the case of
Surendra Kumar Verma & Ors Vs Central Government Industrial
Tribunal-cum-Labour Court, New Delhi & Anr 16 and Trustees of
16 (1980) 4 SCC 443.
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Swati Education Trusts J.B. Khot High School No.2 Vs Meenaxi
Prasade & Ors.17
44. In the case of Surendra Kumar Verma (Supra) it was
enunciated that where legislation is designed to give relief against
certain kinds of mischief, the court is not to make inroads by making
etymological excursions. 'Void ab initio', 'invalid and inoperative' or call
it what you will, the workmen and the employer are primarily concerned
with the consequence of striking down the order of termination of the
services of the workmen. Plain common sense dictates that the
removal of an order terminating the services of workmen must
ordinarily lead to the reinstatement of the services of the workmen.
45. Mr. Naidu by making reference to the decision in the case of
Manu Sudesh Malik (Supra) reiterated that a complaint of
permanency is maintainable even if the complainant is terminated
pending the complaint. Since the Tribunal has recorded a categorical
finding that Respondent No.1-University engaged in unfair labour
practices under Item 6 of Schedule IV, the relief of permanency was in
order and cannot be assailed by canvassing a self-serving submission
that since the employees were terminated permanency could not have
been granted to them.
46. In my considered view, the challenge to the jurisdiction of the
Industrial Court premised on the tenability of the complaint of unfair
labour practice under Item 1 of Schedule IV, which has been
17 2023 SCC OnLine Bom 637.
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considered, is inextricably intermingled with the challenge to the order
of granting permanency on the ground that the employees were
already terminated.
47. Therefore, the aforesaid reasons govern the instant challenge as
well. It is true, ordinarily, the claim of permanency can be made by a
person who is already in the employment of the employer. If the
employer and employee relationship has ceased at an anterior point of
time, the relief of permanency cannot be claimed unless the order of
termination is set aside. However, this principle cannot be permitted to
be used by the employer as a weapon to undercut the complaint of
unfair labour practices falling under Item 6 of Schedule IV, after the
aggrieved employee has already filed the complaint.
48. Any other view, in a situation of the present nature, would defeat
the very legislative object of enacting the Act of 1971. An employer can
simply terminate the service of an employee who has sought
permanency and then urge that the benefit permanency cannot be
granted, as the employee has ceased to be in the employment. If the
rights and obligations of the parties were to be determined on the basis
of the position as of the date of institution of the complaint of unfair
labour practices, then, a party cannot be permitted to take advantage
of its own wrong.
B. No vacant Posts
49. Another ground connected with the aspect of permanency, urged
with tenacity by Mr. Cama, deserves consideration at this stage. Mr.
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Cama assiduously submitted that permanency can only be granted in
existing permanent vacancies. It has been the consistent case of the
University (R1) that there were no permanent vacancies to which the
Complainants could have been appointed by the University (R1). The
University has no power to create the posts without the approval of the
State Government. In the service jurisprudence, the legal principle is
deeply entrenched that the Courts, in exercise of the power of judicial
review or otherwise, cannot direct creation of posts. It is for the
Appropriate Government or the Competent Authority to take a policy
decision on the matter of creation of posts. If there are no existing
vacancies, the impugned order, according to Mr. Cama, cannot be
enforced against the University (R1) as it has made earnest efforts to
get the posts created for the complainants and failed. This factor,
according to Mr. Cama, singularly dismantles the case of unfair labour
practices qua University (R1).
50. To fortify the submission that the Courts cannot give direction to
create posts and, in such a situation, the University (R1) which has no
power to create the posts cannot be said to have committed an unfair
labour practice in not granting permanency, Mr. Cama placed a very
strong reliance on the decisions of this Court in the case of Punjabrao
Krishi Vidyapeeth, Akola Vs General Secretary, Krishi Vidyapeeth
Kamgar Union & Ors,18 Government of Maharashtra, Agricultural
And Co-operate Department (though Secretary) & Ors Vs
18 1994 I CLR 913 Bom.
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Mohanrao Dhondiba Sonawane19 and the decision of the Supreme
Court in the case of Mahatma Phule Agricultural University & Ors
Vs Nashik Zilla Sheth Kamgar Union & Ors20
51. Mr. Naidu joined the issue by submitting that the aforesaid
contention is again a smokescreen and does not apply to the facts of
the case at all. It was urged that, nowhere the complainants have
sought the creation of posts. Complainants were seeking permanency
in existing sanctioned posts which were vacant. Mr. Naidu made an
endeavour to draw home the point that the material on record
unmistakably indicates that the complainants were, in fact, appointed
on clear vacant posts, albeit on temporary basis, and had worked on
those posts in the range of 10 to 23 years and discharged the duties of
the permanent employees and the deprivation of the complainants from
the benefits of permanency, therefore, constitutes an egregious unfair
labour practice. Mr. Naidu urged that, an identical submission was
repelled by this Court in the case of Mumbai Vidyapeeth Kamgar
Sanghatana and Ors Vs University of Mumbai Through Registrar
and Ors.21
52. At the outset, it is necessary to note that the complainants were
explicitly seeking permanency in the University posts. The two sources
from which the University draws the staff assume critical salience. In
consonance with the autonomous status of a University, the Act of 1994
19 2019 I CLR 59 Bom.
20 (2001) 7 SCC 326.
21 2019-III-LLJ-308 (Bom).
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conferred on the University and its Authorities certain powers, which
mirror the powers of the State to create the posts.
53. Mr. Cama would urge that the statutory scheme of the Act of
1994 would indicate that the University had no independent power to
create the posts. Mr. Naidu countered by making a reference to the
provisions of the Act of 1994. As this issue goes to the root of the
matter, a brief recourse to the provisions of the Act of 1994 may be
advantageous.
54. Section 5(11) of the Act of of 1994 reads as under:
"5. Powers and duties of university.
(1) ... ... ...
(11) to create non-teaching skilled, administrative,
ministerial and other posts and prescribe the
qualifications and pay-scales with prior approval of the
State Government and to make appointments thereto;"
55. Section 8 of the Act of 1994 which provides for the control of the
State Government, inter alia, provides that without prior approval of the
State Government, the University shall not create new posts of
teachers, officers or other employees.
56. Section 28 of the Act of 1994 which provides for the powers and
duties of Management Council, inter alia, provides that the
Management Council may create posts of officers and other employees
of the University subject to the prior approval of the State Government
(Clause S).
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57. Heavily banking upon these provisions, Mr. Cama would urge
that, the University (R1) could not have created the posts on which the
complainants were appointed for specified period.
58. It must be noted that there is another end of the spectrum, which
consistent with the autonomous nature of the University, enables the
University to create posts and pay salaries and remuneration. Section
102 of the Act 1994 mandated the University to establish funds
including the salary funds,
(i) for all posts approved by the State Government only; and,
(ii) for all other posts separately.
59. Sub-section (3) of the Section 102 provides that the salary fund
shall consist of amount received from the State Government, Central
Government or University Grants Commission towards full or part
payment of the salary and allowances. No amount from the said fund
shall be utilized for the purpose other than payment of salary and
allowances.
60. It would be contextually relevant to note the provisions contained
in Section 8(2)(e) which read as under:
"8.Control of State Government and universities.
1. ... ... ...
2. ... ... ...
(e) development fund, if any, established by the
university for the purposes of-
(i) creation of posts in various categories for specific
period;
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(ii)granting pay, allowances and other benefits to the
posts created through its own funds provided those
posts are not held by such persons, who are holding
the posts for which Government contribution is
received;
..............
without referring the matter for approval of the State
Government, provided there is no financial liability,
direct or indirect, immediate or in future on the State
Government."
61. Under the Maharashtra Public University Act 2016, more wide
powers seem to have conferred upon the University and its Authorities
as under Section 31(w) of the Act of 2016, the Management Council
has the power to create the posts of officers, non-teaching skilled,
administrative, ministerial staff and other posts from the funds of the
university and from the funds received from other funding agencies, as
and when required, and prescribe their qualifications, experience and
pay-scales.
62. The aforesaid statutory provisions indicate that the matter of
creation of posts does not entirely rest with the State Government. The
University is statutorily empowered to create the posts and make
provision for the salary and allowance of the persons appointed to
those posts from its own funds. The two streams of employee were,
however, to be kept separate. Therefore, the submission on behalf of
the University (R1), that it had no power to create the posts and since
the posts were not sanctioned by the State Government, it could not
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have been attributed with any mala fide or unfair labour practices,
strictly speaking, does not merit acceptance.
63. The aforesaid contention canvassed on behalf of the University
is also required to be appreciated, in the factual backdrop of the case.
The question of creation of posts would arise, even if the case of Mr.
Cama is taken at par, only when it can be demonstrated that there
were no vacant posts. In that event, the submission on behalf
Respondent No.1 that in the absence of sanctioned posts it could not
have granted permanency but for the creation of additional posts by the
State Government would carry some substance. To put it in other
words, the principle that the Courts cannot issue mandate to create
posts to absorb the temporary employees, cannot be urged where
despite existence of the vacant posts, the employer continues to
extract the work from temporary employees, years after years.
64. At this juncture, a brief recourse to the facts and evidence which
has been adduced by the parties becomes necessary. The learned
Member, Industrial Court tabulated the relevant information qua each of
the complainants in a chart, over which there was not much
controversy. To retain emphasis and appreciate the claim of the
complainants at a glance, it may be appropriate to extract the said
chart :
Sr. Employee Name Date of No. of Present Present
No. Joining service in Post Department
years
1 Parag Bhaskar 28.04.97 18 Jr. Clerk Publication
Ghag Dept.
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2 Sandeep Shirish 17.04.96 16 Jr. Clerk Exam House
Sawant Account
Dept.
3 Prashant Anant 06.08.01 14 Jr. Clerk Exam House
Mayekar Dispatch
Dept.
4 Rajesh Keshrinath 20.10.92 23 Data Entry Enrollment
Deorukhkar Operator Dept.
5 Ajay Vinodbhai 08.09.05 10 Jr. Clerk Exam
Solanki House,
Marksheet &
Cert. Dept.
6 Mrs. Prajakta 02.04.97 18 Data Entry CCF Dept.
Nilesh Bendal Operator
7 Mrs. Trupti 01.03.97 17 Jr. Clerk Firoz Shah
Atmaram Gurav Mehta
8 Sharad Kashiram 24.04.97 20 Jr. Clerk IDOL Exam
Pujare Dept.
9 Suchit Shridhar 01.09.04 11 Data Entry CCF Dept.
Sawant Operator
10 Kum. Rupali 07.04.97 18 Data Entry CCF Dept.
Pralhad Sawant Operator
11 Namdev Shama 21.07.01 15 Jr. Clerk Exam House
Jadhav CAP Dept.
12 Kum. Tejasvi Banan 29.03.00 15 Data Entry CCF Dept.
Waykul Operator
13 Mrs. Swati Vijay 16.05.00 15 Jr. Clerk Biotechnolog
Parab y Dept.
14 Ms. Vandana 21.05.04 11 Data Entry CCF Dept.
Dattatray Gaikar Operator
15 Sandeep Anant 11.04.05 10 Data Entry CCF
Mhatre Operator Dept.
16 Kum. Sandhya 10.10.97 18 Jr. Clerk UCC Dept.
Vishu Sontake
17 Kum. Meena 01.12.96 16 Jr. Clerk Biotechnolog
Sampat Ingale y Dept.
18 Mrs. Priti Tushar 12.05.03 12 Data Entry CCF Dept.
Chavan Operator
19 Jayesh Manohar 06.10.01 14 Jr. Clerk P. G. Section
Samant
20 Mrs. Smita 23.03.02 13 Jr. Clerk Publication
Kashinath Panchal Dept.
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65. A bare perusal of the aforesaid chart would indicate that almost
12 out of the 20 complainants had rendered service for over 15 years.
The highest being 23 years; by the Complainant No. 4. The rest
rendered services in the range of 10 to 14 years. The submission of Mr.
Cama that, the complainants were making a generalized statement that
they had rendered services in the range of 10 to 20 years, yet, most of
them had not rendered that length of service, is belied by the aforesaid
chart. By no standard, it can be urged that the period of service
rendered by the complainants as the temporary employees is non-
significant. It is true, the period of appointment varied with each
appointment order. However, the element of continuity in the service
rendered by the complainants is borne out not only by the evidence
tendered by the complainants but also by the correspondence
addressed by the officers of the University (R1).
66. The fact that the complainants were appointed against the
vacant posts is borne out by an office order dated 28th December 2012.
The said office order, inter alia, records that the Complainant Nos. 5, 6,
9, 10, 14 and 18 were appointed as Date Entry Operator on
consolidated salary of Rs.11,700/- p.m., against vacant posts on
temporary basis from 2nd January 2013 to 29th June 2013, with one day
break on 2nd April 2013, on the terms and conditions incorporated
therein. The table appended to the said office order clearly indicates
that those complainants were appointed against vacant posts. A
communication dated 11th September 2009 addressed by the Director
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Central Computing Facility, in terms, records that the complainants-
Data Entry Operators had been working with the University for many
years and, therefore, recommended their continuation for a period of
further three years. In the year 2012, however, as noted above, those
Data Entry Operators were again appointed on temporary basis against
the vacant posts.
67. Upon appraisal of the evidence, especially the manner in which
Mr. Ferde (PW1), fared in the cross-examination, the learned Member,
Industrial Court, recorded categorical findings that approved vacant
posts were available with the University. Such findings of facts are
ordinarily not open for interference in exercise of the supervisory
jurisdiction. From the perusal of the material on record, especially, the
evidence of Mr. Ferde (PW1), it would be rather difficult to draw an
inference that the said finding of fact is sans evidence/material.
68. Mr. Ferde (PW1) was candid enough to concede in the cross-
examination that as of that date approximately 1300 employees were
working on temporary basis with the University (R1). Though Mr. Ferde
(DW1) made an endeavour to impress upon the Court that there were
no vacant posts and the University had no power to create posts, when
he was confronted with the documents obtained under the Right to
Information Act ("the RTI Act"), Mr. Ferde attempted to wriggle out of
the situation. He feigned ignorance about a communication addressed
by the Public Information Officer of the University that for the
appointment in category "C" and "D", the University shall not be
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required to obtain sanction from the Government and the University
itself had the authority. Likewise, Mr. Ferde, attempted to explain way
another information furnished by the Public Information Officer that
there were in all 23 posts of Data Entry Operators and 14 were filled
up.
69. When confronted with Office Order, dated 28th December 2022,
referred to above, which indicates that the employees were appointed
against vacant posts, Mr Ferde (DW1) attempted to salvage the
position by asserting that it was incorrectly mentioned in the Office
Order that the appointment was against vacant posts. However, when
confronted with other Office Orders dated 20th March 2013, 14th
November 2013 and 31st August 2012, Mr Ferde (DW1) conceded that
the posts were filled against the vacant posts. Mr. Ferde (DW1)
admitted that the employees recruited by the University are given
monetary benefits from University funds.
70. Lastly, Mr. Ferde (DW1) was confronted with a list of 80
employees, which was purportedly supplied under the RTI Act, who
were allegedly appointed after the termination of the service of the 20
complainants. Mr Ferde's (DW1) response was that the said list does
not bear the stamp of either University or to show that it was supplied
under the RTI Act.
71. Referring to the evidence of Mr. Ferde (PW1), the learned
Member, Industrial Court observed that the evidence on record
indicates that out of total 1319 posts granted by the University, 240
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posts of junior clerks and 37 posts of junior typist-clerks were available
and the evidence further indicated that vacant posts were available
with the University.
72. I find substance in the submission of Mr. Naidu that in exercise of
supervisory writ jurisdiction, the aforesaid findings of facts which are
borne out by record, are not amenable to interference.
73. The aforesaid inference as regards the availability of vacant post
significantly bears upon the determination of the petition. Firstly, the
submission on behalf of the Petitioner that, as there was no vacancy,
the University (R1) could not appoint the Complainants, though it was
intent on, falls through. Consequently, the submission that the
impugned order, in effect, directs the University (R1) to create posts
and then grant permanency, does not also merit countenance.
Secondly, the aforesaid findings of fact, sustain an inference that the
University (R1) resorted to unfair labour practices.
74. As noted above, the Complainants were made to render the
services of full-time employees and despite existence of work and
necessity of their services, they were continued as temporary
employees for over 15 years, on an average. It defies comprehension
that a post would remain temporary for almost 23 years, as in case of
Complainant No.4. Thirdly, a further inference becomes sustainable
that despite existence of vacant posts and having appointed the
Complainants Nos.5, 6, 9, 10, 14 and 18 on vacant posts, by an Office
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Order dated 20 December 2012, the benefit of permanency was not
granted to the Complainants.
75. Mr. Cama would urge that, even if the case of the Complainants
of long service is taken at its face value, a pivotal issue of the
continuation of the Complainants on temporary basis with the object of
depriving them of the status and privileges of the permanent
employees has not been established. In fact, in the circumstances of
the case, according to Mr. Cama, no malafide or such devious design
to deprive the Complainants of the benefit of permanency can be
attributed to the University (R1).
76. Mr. Cama laid stress on the evidence adduced on behalf of
University (R1) to draw home the point that the object which falls within
the mischief of Item 6 of Schedule IV is singularly absent. Mr. Ferde
(DW1) deposed that, time and again the University (R1) had
approached the State Government for enhancement of the workforce in
various categories. However, the State Government did not accord
sanction. This version of Mr. Ferde (DW1), according to Mr. Cama,
has not been impeached during the course of cross-examination. In
addition, the very documents pressed into service on behalf of the
Complainants, indicate the bonafide desire of the employer to get the
posts sanctioned.
77. To buttress the submission that the malafide object on the part of
the employer is the linchpin of Item 6 of Schedule IV, Mr. Cama placed
reliance on the judgment of the Supreme Court in the case of
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Gangadhar Pillai V/s. Siemens Ltd.22. In the said case, the Supreme
Court, inter alia, observed that "only because an employee has been
engaged as a casual or temporary employee or that he had been
employed for a number of years, the same by itself may not lead to the
conclusion that such appointment had been made with the object of
depriving him of the status and privilege of a permanent employee.
Unlike other statutes, the employer does not have any statutory liability
to give permanent status to an employee on completion of a period
specified therein. What is, therefore, necessary to be considered for
drawing an inference in terms of the said provisions would be to
consider the entire facts and circumstances of the case".
78. Mr. Naidu joined the issue by canvassing a submission that filling
up vacant post to do work of permanent nature by appointing
employees on temporary post can lead to only inference of such
continuation of employees on temporary post to deprive them of status
and privileges of permanent employees, and clearly falls within the
mischief sought to be redressed by Item 6 of Schedule IV of the Act,
1971.
79. The submission of Mr. Cama that the University (R1) was making
an earnest endeavour to get the post sanctioned would have carried
some significance had the source of post was limited to the sanction by
the State Government.
22 (2007) 1 SCC 533
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80. As noted above, the Maharashtra Universities Act, 1994
empowered the University and its authorities to create posts and also
make a provision for the payment of salary and remuneration for those
posts out of the University Funds. Secondly, clear and vacant posts
were not only found to exist, but even some of the Complainants were
specifically appointed against those vacant posts. By applying the ratio
of the decision in the case of Gangadhar Pillai V/s. Siemens Ltd.
(supra), in the light of the aforesaid hard facts, continuation of the
Complainants for over 15 years, on an average, on temporary post and
extracting from the Complainants' regular and perennial work, which
permanent employees of the University (R1) were discharging, can
only lead to an inexorable inference that the action of the University
(R1) fell within the mischief of Item 6 Schedule IV of the Act, 1971.
81. In my view, what further exacerbates the situation is the brazen
act of termination of the services of the Complainants when the
Industrial Court was seized of the application for grant of interim relief.
It is pertinent to note, in the complaint, the Complainants had made
allegations that the Respondents were threatening to terminate their
services. By the own showing of the Respondents, the services of the
Complainants were required as they were discharging duties which
were regular and perennial in nature. There are documents to indicate
that the necessity of the continuation of the services of the
Complainants was repeatedly vouched for, by the Officers of the
University (R1).
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82. In this backdrop, the termination of the services of the
Complainants, after having rendered services in the range of 10 to 23
years, on the specious plea that their term of engagement came to an
end, does not hold any ground. The termination of the services was,
thus, driven by the design to get rid of the Complainants for the reason
that they sought redressal of their grievances.
83. Lastly Mr. Cama would urge, in the instant case, a crucial
question as to whether the University (R1) can be compelled to employ
persons who either did not appear or failed in the recruitment process,
arises for consideration. Mr. Cama would submit that out of 20
Complainants, two did not appear for the recruitment test, 12 failed in
the examination and the rest, though cleared the examination, did not
find themselves in the merit list. Having failed in the recruitment
process, the employees cannot turn around and seek permanency on
the strength of the long service, submitted Mr. Cama.
84. Though the submission appears attractive at the first blush, it
does not stand to scrutiny. The adjudication by the Industrial
Adjudicator cannot rest on such consideration solely. Whether the
employer had resorted unfair labour practices has to be determined on
the conspectus of the entire facts and circumstances commencing from
the initial appointment to the evolution of the employment over the
period of time. If the employer retains the employees for years
together on temporary post, though vacant posts are available and
after a long period of time, initiates the recruitment process, such an
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employer cannot be permitted to urge that the temporary employees
did not succeed in the recruitment process.
85. The approach expected of the Courts and Tribunals was
postulated by the Supreme Court in the case of Jaggo V/s. Union of
India and Ors.23 After following the pronouncement in the case of
Vinod Kumar V/s. Union of India24, the Supreme Court laid down the
law as under :
"21. The High Court placed undue emphasis on the
initial label of the appellants' engagements and the
outsourcing decision taken after their dismissal. Courts must
look beyond the surface labels and consider the realities of
employment: continuous, long-term service, indispensable
duties, and absence of any mala fide or illegalities in their
appointments. In that light, refusing regularization simply
because their original terms did not explicitly state so, or
because an outsourcing policy was belatedly introduced,
would be contrary to principles of fairness and equity.
..........
25. It is a disconcerting reality that temporary
employees, particularly in government institutions, often face
multifaceted forms of exploitation. While the foundational
purpose of temporary contracts may have been to address
short-term or seasonal needs, they have increasingly
become a mechanism to evade long-term obligations owned
to employees. These practices manifest in several ways :
Misue of "Temporary" Labels
..............
Arbitrary termination
..............
Lack of Career Progression
..........................
23 2024 SCC Online SC 3826
24 (2024) 1 SCR 1230
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Using Outsourcing as a Shield
................
Denial of Basic Rights and Benefits.
............
26. While the judgment in Uma Devi (supra) sought to curtail
the practice of backdoor entries and ensure appointments
adhered to constitutional principles, it is regrettable that its
principles are often misinterpreted or misapplied to deny
legitimate claims of long-serving employees. This judgment
aimed to distinguish between "illegal" and "irregular"
appointments. It categorically held that employees in
irregular appointments, who were engaged in duly
sanctioned posts and had served continuously for more than
ten years, should be considered for regularization as a one-
time measure. However, the laudable intent of the judgment
is being subverted when institutions rely on its dicta to
indiscriminately reject the claims of employees, even in
cases where their appointments are not illegal, but merely
lack adherence to procedural formalities. Government
departments often cite the judgment in Uma Devi (supra) to
argue that no vested right to regularization exists for
temporary employees, overlooking the judgment's explicit
acknowledgment of cases where regularization is
appropriate. This selective application distorts the judgment's
spirit and purpose, effectively weaponizing it against
employees who have rendered indispensable services over
decades." (emphasis supplied)
86. The aforesaid pronouncement applies with full force and
vigor to the facts of the case at hand. The complainants were
made to work for over decades by issuing repetitive appointment
orders, with artificial breaks. The Complainants were discharging
the very duties which the permanent employees were discharging.
It was not the case that the Complainants were not possessing
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the requisite qualifications and experience. The work was regular
and perennial. The requirement of the services of the
Complainants was repeatedly emphasised by the Officers of the
Univeristy (R1).
87. Moreover, it was the bold stand of the University (R1) that it
had time and again approached the State Government for
enhancement of workforce. This implies that the Respondent
(R1) was satisfied with the performance of the Complainants.
Conversely, as noted above, there is evidence to indicate that
number of sanctioned posts were vacant, nay, the Complainants
were appointed against the vacant posts, albeit for a temporary
period.
88. In the backdrop of these hard facts, the claim of University
(R1) that it could not grant permanency for want of sanctioned
vacant posts, was but a subterfuge.
89. Though Mr. Naidu forcefully submitted that the
Complainants are similarly circumstanced like the temporary
employees of the University in the case of Mumbai Vidyapeeth
Kamgar Sanghatana and Ors Vs University of Mumbai Through
Registrar and Ors. (supra), and are, therefore, entitled to the same
dispensation, yet, this Court considered it appropriate to independently
evaluate the case of the Complainants. Having arrived at a conclusion
that no fault can be found with the impugned order, now the
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implications of the decision in the case of Mumbai Vidyapeeth
Kamgar Sanghatana and Ors. (supra), need to be noted. In the
said case, numerous employees of the University (R1) were
temporarily appointed to varous non-teaching and administrative posts.
Some of them were appointed against the vacant posts. Identical
submissions like, absence of power to create the posts and
unavailability of vacant posts were canvassed on behalf of the
Respondent (R1). In that context, this Court observed, inter alia, as
under :
"71. There is no dispute about the fact that these persons
were appointed albeit temporarily on posts which were vacant
and have been continued to be so employed as on date of the
petition. In that sense the observation in the order of the
division bench in Rajesh Keshrinath Deorukhkar and Ors.
V/s. Mumbai University25 would not apply to such persons
and the common finding across the board which led the
Industrial Court to answer the issue No.6 in the negative would
not arise in the instant case.
72. In my view the filling up of existing vacancies in non
teaching administrative and managerial staff is clearly
permissible. It is not the respondents' case that the funds
required are always funds to be received from the State. This
could always be done from the universities own funds. In that
respect the evidence of Vikas Sudhakarrao Daware had
established that as of December, 2015 there were 177
sanctioned posts and there is a large pool of employees of
whom several have been retained over the years. In that sense
it was open to the Industrial court to exercise all its powers
under section 30 to direct the university to take affirmative
action to effectuate policy of the Act. This clearly is the power
that the Industrial Court is proceeding under section 30(1)(b) of
25 WP Nos.1492 of 2013 and 2615 of 2013
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the Act considering the ratio in the case of Jagjit Singh (supra).
No doubt that temporary workmen are entitled for equal pay for
equal work and Industrial Court having found in favour of the
employees ought not to have restricted the benefit granted to
employees in recognition of unfair labour practices been
recognised to restrict payment from date of the judgment. In my
view, there is no justification in restricting payment from date of
the judgment. The judgment recognises the fact that the
employees concerned were engaged in the same work that has
been done by the permanent employees. In fact having
concluded that unfair labour practices were involved there is no
justification in denying the benefit for the prior period, that
would be contradictory in terms.
73. The reason for the impugned order omitting to grant
relief on the basis of unfair labour practices under Item no. 5 is
not clear. The impugned order has clearly held that temporary
workers had been continued for years depriving them of the
status and privileges of permanent employees. Inherent in that
finding, is the partiality shown to one set of workers. Item nos.
5 and 6 share common elements. Item 5 by itself operates in a
space where favouritism or partiality is shown to one set of
workers. These need not be temporary workers. It will apply to
all workers. However item 6 is restricted to persons employed
as badlis, casuals or temporary employees and continuing
them for years together in that capacity with the intention of
depriving them of privileges of the permanent employees.
Persons subjected to such deprivation will include the
favourtism or partiality shown to the other set and in the facts
of the present case since there are different sets of employees
working in the same capacity some of whom are permanent
and some who are temporary. item 6 would also operate
independent of item no. 5 in respect of persons who are
engaged in as badlis and casual temporary labour and those
who have no fellow peers, viz engaged as permanent
employees. In the instant case in almost all categories of
employees, the university has permanent and temporary
persons. I am therefore of the view that the Industrial Court
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was required to find the university guilty of unfair labour
practices under item 5 as well.
74. This view finds justification in the fact that when the
complaints were filed, the employees have apparently no
considered the dual standards to be violative of their rights.
Although they may have been subjected to such unfair labour
practices from date of their engagement, I must not lose sight
of the fact that the engagement started for a short periods but
as evidence on record has shown these temporary
appointments were renewed and repeatedly over several
years. Given the fact that the employees in question are all
gainfully engaged and are not found to be excessive or in
surplus as established from the evidence led by the university,
the university must be restrained from terminating their
services except by following due process.
75. It would also be appropriate that the university fills up
the sanctioned posts by filling up vacant posts from amongst
the petitioners since in respect of the sanctioned posts it is not
necessary to await State Government approval and where
fresh recruitment has to be resorted to for this purpose, the
university should proceed to fill up these posts."
90. The aforesaid reasons which weighed with this Court in the
case of Mumbai Vidyapeeth Kamgar Sanghatana and Ors.
(supra), also apply with equal force to the case of the
Complainants, with the change that the services of the
Complainants were terminated during the pendency of the
Complaint. However, the said factor does not constitute an
impediment in granting reliefs once the unfair labour practices
were established.
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91. The upshot of aforesaid consideration is that the impugned
order does not warrant any interference in exercise of the
supervisory jurisdiction.
92. Hence, the following order :
ORDER
(i) The Writ Petition stands dismissed.
(ii) Rule discharged.
(iii) No costs.
[N. J. JAMADAR, J.]
93. At this stage, learned Counsel for the Petitioner seeks stay to the
execution and implementation of this order.
94. Mr. Naidu, learned Counsel for the Respondents, on instructions,
submits that the Respondents will not seek execution of the order
passed by the learned Member, Industrial Court, for a period of 8
weeks from today.
[N. J. JAMADAR, J.]
Designation: PS To Honourable Judge
Date: 09/05/2025 22:31:48
