[Cites 12, Cited by 0]
Bombay High Court
Smt. Devubai Bhagwan Kharat vs The State Of Maharashtra, Through ... on 2 April, 2026
Author: Amit Borkar
Bench: Amit Borkar
2026:BHC-AS:15574
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AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.642 OF 2013
ATUL 1. The State of Maharashtra,
GANESH
KULKARNI through the Executive Engineer,
Digitally signed by
ATUL GANESH
KULKARNI
Thane Khadi Pool Vibhag No.1,
Date: 2026.04.02
12:45:03 +0530
Konkan Bhavan, Navi Mumbai
2. The Superintending Engineer,
Mumbai Bandkam Mandal, Public
Works Division, New Administrative
Building, 2nd Floor, R.C. Road,
Chembur, Mumbai 400 071
3. The Karyasan Adhikari (Seva 5),
Public Works Division,
Mantralaya Mumbai ... Petitioners
Vs.
Devubai Bhagwan Kharat,
Balaram Patil Chawl,
Near Gaondevi Mandir, Sanpada,
Sector 5, Navi Mumbai ... Respondent
WITH
INTERIM APPLICATION NO.12675 OF 2024
IN
WRIT PETITION NO.642 OF 2013
Devubai Bhagwan Kharat ... Applicant
In the matter between
The Executive Engineer & Others ... Petitioners
V/s.
Devubai Bhagwan Kharat ... Respondent
1
::: Uploaded on - 02/04/2026 ::: Downloaded on - 02/04/2026 21:41:49 :::
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Mrs. V.S. Nimbalkar, AGP for the petitioners-State.
Mr. Ravindra Nair with Mr. C.M. Lokesh for the
respondent.
CORAM : AMIT BORKAR, J.
RESERVED ON : MARCH 26, 2026.
PRONOUNCED ON : APRIL 2, 2026
JUDGMENT:
1. By the present writ petition filed under Articles 226 and 227
of the Constitution of India, the petitioners have assailed the
legality and correctness of the Judgment and Order dated 23 July
2012 passed by the Industrial Court at Thane in Complaint (ULP)
No. 117 of 2010. The said complaint was instituted under Items 5
and 9 of Schedule IV of the Maharashtra Recognition of Trade
Union and Prevention of Unfair Labour Practices Act, 1971.
2. The factual background giving rise to the present writ
petition, in brief, is as follows. The respondent instituted a
complaint of unfair labour practice on 23 August 2009, asserting
that her deceased husband had been in employment with
petitioner No. 1 since the year 1988 as a Mazdoor. It was alleged
that his services came to be terminated with effect from 1 October
1990. According to the respondent, the petitioners had artificially
created breaks in the service of her deceased husband and
similarly situated workmen. It was further contended that,
pursuant to discussions held before the Assistant Commissioner of
Labour, employment was extended to about 15 workers, including
the respondent's deceased husband. Out of these, 13 workers were
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granted permanency. However, the respondent's deceased husband
was neither regularised nor brought on the permanent muster roll.
As a consequence, he was deprived of the benefits flowing from
the Kalelkar Award. The respondent, therefore, alleged that such
conduct on the part of the petitioners constituted unfair labour
practice under Items 5 and 9 of Schedule IV of the said Act.
3. The petitioners resisted the complaint by filing their written
statement, wherein they denied the entitlement of the respondent
to claim permanency and consequential benefits. It was further
contended that the complaint was deficient, inasmuch as it did not
specifically disclose the names of persons alleged to have engaged
in unfair labour practices, nor did it clearly set out the material
particulars of the alleged acts. The petitioners further stated that
the respondent's deceased husband, along with other workmen,
had been discontinued from service with effect from 1 October
1990. Thereafter, the workmen approached the office of the
Labour Commissioner. Pursuant to the intervention of the Assistant
Commissioner of Labour, directions were issued to reappoint those
workers who had completed more than 240 days of service in a
year. In compliance thereof, the respondent's deceased husband
was reappointed on a nominal muster roll on 20 February 1996. It
was further contended that, in view of the Government Resolution
dated 24 April 2001, which required completion of five years of
continuous service prior to 31 December 1998, the respondent's
deceased husband did not satisfy the eligibility criteria and,
therefore, could not be conferred the status of a regular temporary
worker or be made permanent.
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4. The Industrial Court, upon appreciation of the oral and
documentary evidence adduced by the parties, partly allowed the
complaint. It recorded a finding that the petitioners had engaged
in unfair labour practice under Item 9 of Schedule IV of the MRTU
& PULP Act, 1971. Consequently, the Industrial Court directed the
petitioners to extend to the respondent the benefits admissible to a
temporary worker and to accord the status of a Regular Temporary
Worker in terms of the Kalelkar Award, upon completion of five
years of service by the respondent's deceased husband. Being
aggrieved by the said Judgment and Order, the petitioners have
invoked the writ jurisdiction of this Court.
5. Smt. Nimbalkar, learned Assistant Government Pleader
appearing for the State, submitted that the Industrial Court has
failed to take into due consideration the Government Resolution
dated 24 April 2001, which governs the absorption of temporary
employees in the Converted Regular Temporary Establishment. It
was contended that the deceased husband of the respondent had
not completed five years of continuous service as on 31 December
1998, and, therefore, did not satisfy the eligibility criteria
prescribed under the said Government Resolution for conferment
of permanency. It was further urged that the initial engagement of
the respondent's deceased husband was purely on a temporary
basis. According to the learned AGP, the deceased workman did not
fulfil the requisite conditions for conversion into a Converted
Regular Temporary employee in terms of the Kalelkar Award as
implemented through the said Government Resolution.
6. It was further submitted that the Industrial Court has
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erroneously recorded a finding that the respondent's deceased
husband had completed continuous service of 240 days so as to
qualify for benefits under the Kalelkar Award. The learned AGP
pointed out that the services of the deceased workman had been
discontinued with effect from 1 October 1990, and it was only
pursuant to the directions issued by the Assistant Labour
Commissioner that he came to be reappointed on the Nominal
Muster Roll on 20 February 1996. It was submitted that the
proposal for his absorption on the regular establishment was
considered by the State Government and came to be rejected on
the ground that he had not completed five years of continuous
service prior to 31 December 1998, as required under the
applicable policy.
7. Per contra, Mr. Nair, learned Advocate appearing for the
respondent, opposed the submissions advanced on behalf of the
State. He contended that the respondent's entitlement to the
benefits under the Kalelkar Award cannot be denied merely on the
ground that the deceased workman had not completed five years
of continuous service as on 31 December 1998. According to him,
the essential requirement under the Kalelkar Award is the
completion of five years of service, irrespective of the cut-off date
stipulated in the Government Resolution dated 24 April 2001. It
was submitted that the said Government Resolution does not
curtail or override the rights flowing from the Kalelkar Award, and
that the respondent is entitled to the benefits on the basis of
completion of the requisite period of service as contemplated
under the Award itself.
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8. In support of the aforesaid submissions, reliance was placed
on the judgment of this Court in State of Maharashtra vs. M. V.
Ghalge & Another, reported in 1992 LAB I.C. 748 : 1991 Mh. L.J.
1557. In the said case, the concerned workman had rendered
service from 5 June 1976 to 16 October 1978 and thereafter up to
24 December 1981. This Court, while accepting the claim of the
employee, interpreted Clause 28 of the Kalelkar Award to hold that
the benefit of conversion of posts is available to those workmen
who have rendered continuous service of five years or more on
daily rated establishment. Emphasis was placed on Clause 28 of
the Kalelkar Award, which provides that daily rated workmen who
have completed five years of continuous service are entitled, upon
such completion, to have the posts held by them converted into
posts on temporary establishment, with such posts being personal
to the incumbent and governed thereafter by the Bombay Civil
Services Rules.
9. Learned counsel for the respondent also relied upon the
judgment of this Court in Zilla Parishad, Aurangabad & Another vs.
State of Maharashtra & Another, reported in 2017 (2) Mh. L.J.
837. It was submitted that in the said decision, while considering
the benefits flowing from the Kalelkar Award in conjunction with
the recommendations of the Bhole Commission, the coordinate
Bench referred to an earlier Division Bench judgment in Writ
Petition No.5324 of 2009, which dealt with similarly situated
workmen. It was observed therein that daily rated employees are
not required to establish completion of 240 days in each calendar
year for five consecutive years in order to claim benefits under the
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Kalelkar Award. On the strength of these pronouncements, it was
urged that the present writ petition is devoid of merit and liable to
be dismissed.
10. In rejoinder, the learned AGP reiterated that the deceased
Bhagwan Bhikaji Kharat had been appointed only on a temporary
basis as a Mazdoor on Nominal Muster Roll, and that mere
reliance on the Kalelkar Award, without satisfying the conditions
prescribed under the Government Resolution implementing the
same, would not confer any enforceable right upon the
respondent. It was further submitted that the services of the
deceased workman had been discontinued on 1 October 1990 and
that he was subsequently reappointed in the year 1996. The
proposal seeking his absorption was rejected by the State
Government on 23 December 2004. It was pointed out that during
his lifetime, the deceased workman did not challenge the said
rejection, and that the present complaint came to be filed by the
respondent only in the year 2010. On these grounds, it was prayed
that the impugned Judgment and Award be set aside.
REASONS AND ANALYSIS:
11. I have considered the rival submissions with care. The issue
is not a small one. The matter turns on the true nature of the
Kalelkar Award, the effect of the Government Resolution dated 24
April 2001, and the right of a daily wager to claim benefit before
the Labour Court or the Industrial Court. The petitioners argue
that the Industrial Court travelled beyond the law because the
deceased husband of the respondent had never completed five
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years of continuous service as on 31 December 1998, and therefore
he could not be treated as a worker entitled to conversion into the
Converted Regular Temporary Establishment. The respondent
contends that the right flows from the Award itself. According to
her, the Government Resolution cannot cut down the benefit which
the Award already gives.
12. The main question which comes for consideration in the
present matter is about the legal position of what people generally
call as Kalelkar Award. The further question is whether a daily
wage-worker working under the State of Maharashtra can go
before the Labour Court or Industrial Court and claim benefits
under this Award, even if there is no Government Resolution in
force at that time supporting such benefit. Without understanding
these aspects properly, the controversy cannot be decided in a
correct way.
13. At the beginning, it is necessary to see what is the nature of
this Kalelkar Award. The State Government had at the relevant
time taken a conscious step to deal with an industrial dispute. The
dispute had arisen because workmen employed in the Irrigation
and Power Department and also in the Building and
Communication Department had jointly raised a charter containing
thirteen demands. These demands were related to conditions of
service affecting a large body of workers. In such a situation
instead of leaving the matter to remain unresolved the State
Government exercised its power under Section 5 of the Industrial
Disputes Act, 1947 and constituted a special Board of Conciliation.
The Board so constituted was chaired by Shri Kalelkar. Because of
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his chairmanship the outcome came to be known as the Kalelkar
Award. However, it is necessary to understand that this was not an
award imposed unilaterally after adversarial adjudication. It was
the result of negotiations and persuasion carried out before the
Board. The Board brought both sides together. The workmen
placed their demands. The State placed its stand. After
deliberations, a settlement was reached. This settlement was the
outcome of conciliation proceedings where both sides agreed to
terms so that industrial peace could be maintained. This settlement
was recorded under Section 13(2) of the Industrial Disputes Act
which contemplates a report of settlement arrived at in the course
of conciliation proceedings. Such a settlement is arrived at with
the assistance of a statutory authority. In the present case, the
settlement was also given retrospective effect from 1 October
1966. This indicates that the parties intended that the benefits and
obligations under the settlement should relate back to an earlier
date. It further appears that the settlement was published in the
Official Government Gazette under Section 17 of the Act.
Publication marks the stage from which the settlement attains
enforceability. Once published it is no longer confined to the
parties who signed it. It acquires a binding character as provided
under the Act.
14. Section 18(3) of the Industrial Disputes Act states that a
settlement arrived at in the course of conciliation proceedings shall
be binding not only on the parties who actually appeared before
the Board, but also on all persons who are employed in the
establishment or who subsequently become employed. In other
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words the binding nature of such a settlement is compulsory. It is
not open to one party to treat it as optional.
15. The duration and continuation of such a settlement is
governed by Section 19 of the Act. Under that provision a
settlement remains in operation for the period agreed upon. Even
thereafter it continues to be binding until it is terminated in the
manner provided. Termination requires a notice by either party
expressing intention to terminate. Even after such notice the
settlement continues to bind for a period of two months.
16. In this background, the position becomes clear that if the
State Government desired to alter, modify, or withdraw any part of
the Kalelkar Award, it could not have done so by issuing
administrative instructions or circulars. The law prescribes a
method for changing service conditions which are governed by an
industrial settlement. Section 9-A of the Industrial Disputes Act
requires that before any change in conditions of service in respect
of matters specified in the Schedule the employer must give a
notice of change to the workmen. This gives an opportunity to the
workmen to raise an industrial dispute regarding the proposed
change. After issuing such notice the matter must proceed in
accordance with law. If the parties do not agree the dispute may be
referred for adjudication. Only through such process can an
settlement be modified or replaced. Therefore, when the Kalelkar
Award is seen in this scheme it becomes evident that it has a
statutory force. The rights created under such a settlement
continue to operate so long as they are not altered in the manner
recognised by the statute.
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17. Because of this character, Courts have always treated it as
binding. It lays down a proper procedure by which a worker, who
starts at a low level can move ahead in service after putting in long
years of work. The scheme under this Award is also required to be
understood in a proper way. It proceeds step by step. First a person
comes as a daily wager. After working for five years he becomes
entitled to be placed in what is called "Converted Regular
Temporary Establishment". This stage does not make him fully
permanent, but still it gives him better status, better wages and
some protection in service. After that depending on availability of
posts and other service conditions he may move further towards
regular establishment.
18. Another aspect is about the power of Labour Court and
Industrial Court. A daily wager till he becomes part of regular
establishment remains a workman. If he is denied benefit under
the Award, his grievance becomes an industrial dispute. The
Industrial Court especially in cases of unfair labour practice can
examine whether the employer has treated him differently from
others or has denied benefit without proper reason. So if a worker
completes the required period of service and still is not given
benefit of "Converted Regular Temporary Establishment" he can
approach the Labour Court or Industrial Court. In this background,
the argument of the State that absence of Government Resolution
is a defence cannot be accepted. Accepting such argument would
mean that the State can avoid its responsibility by remaining
silent. Therefore, it is held that a daily wage-worker can approach
the Labour Court or Industrial Court for claiming benefits under
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the Kalelkar Award even if there is no specific Government
Resolution in force provided he shows that his case properly fits
within the Award and he has fulfilled the required conditions.
19. In the case of M. V. Ghalge, this Court was considering writ
petitions filed under Article 227 of the Constitution of India. The
challenge was to the orders passed by the Labour Court under
Section 33C(2) of the Industrial Disputes Act, 1947. The
background of that case shows that the dispute was about daily
rated workers claiming benefits under the Kalelkar Award. Looking
to the facts of that case, it appears that the workmen were working
as casual labourers on daily wages for many years. They were not
permanent employees. Still, they were part of the establishment
continuously. They approached the Labour Court contending that
after completing five years of service on daily rated establishment,
they had a right to be converted into regular temporary employees
as per the Kalelkar Award. They also claimed all benefits flowing
from such conversion. On the other side, the State opposed this
claim. The State did not deny that the workers had worked over
the years. But it said that their service was not continuous.
According to the State, there were breaks and gaps, and because of
those breaks, the condition of five years continuous service was
not satisfied. So, according to the State, no benefit could be given.
This Court examined the scheme of the Kalelkar Award, especially
Clause 28. It noticed that the expression "continuous service" is
not defined in that clause. The Court held that a reasonable
meaning has to be given. The Court did not agree that it must
mean strict continuity. Instead, it held that if the worker remains
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on the daily rated establishment for five consecutive years in
substance, then the requirement is satisfied. It is not necessary that
he should have worked for a fixed number of days every year. The
Court further explained that this concept of continuous service
under the Kalelkar Award is different from the concept used in
retrenchment cases, where 240 days' work in a year is often
required. The Court clearly said that those standards cannot be
imported here. The Award does not say that the worker must work
for 240 days every year. What it requires is that the worker should
be part of the daily rated establishment for five years in a
continuous sense. Therefore, even if the number of actual working
days varies that alone cannot defeat the claim. After considering
all these aspects, this Court found that the Labour Court had taken
a correct view. The orders of the Labour Court were thus upheld
confirming that the workers were entitled to benefits under the
Kalelkar Award.
20. The respondent has relied upon the service book to show the
nature of employment of the complainant's deceased husband Shri
Kharat. The entries in the service book indicate that he was
working as a Rozandari Mazdoor during different periods starting
from November 1988 and continuing in parts through the year
1989 and later in the year 1990. The record shows month-wise
engagement. It is further seen from the same record that after the
earlier period the deceased husband was again taken back in
service from 20 February 1996. This re-engagement was pursuant
to the directions issued by the Assistant Commissioner of Labour.
Those directions were given because the workman had completed
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240 days of service earlier and his discontinuation had become an
issue before the labour commissioner. This shows that the
workman was already connected with the establishment and his
reappointment was in continuation of that earlier relationship.
From 20 February 1996 onwards the material placed on record
shows that Shri Kharat continued to work till 31 December 1996
and thereafter from 1 January 1997 up to 31 May 2000. This is a
continuous period. If this period is seen properly it clearly
indicates that for five years he remained in service continuously.
21. In view of the foregoing discussion and for the reasons
recorded hereinabove, the writ petition fails.
22. The impugned Judgment and Order dated 23 July 2012
passed by the Industrial Court, Thane in Complaint (ULP) No. 117
of 2010 is hereby upheld.
23. The petitioners are directed to extend to the respondent the
benefits admissible to a temporary worker and to grant the status
of Converted Regular Temporary employee in terms of the Kalelkar
Award, upon completion of five years of service of the deceased
husband of the respondent, if not already granted.
24. The aforesaid directions shall be complied with within a
period of twelve weeks from the date of this order.
25. Rule is discharged. No order as to costs.
26. In view of disposal of the writ petition, all pending interim
applications stand disposed of.
(AMIT BORKAR, J.)
