[Cites 17, Cited by 0]
Bombay High Court
Army Institute Of Technology Thr Its ... vs Nilesh Sitaram Sawant on 6 March, 2026
Author: Amit Borkar
Bench: Amit Borkar
2026:BHC-AS:10964
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AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
ATUL WRIT PETITION NO.9709 OF 2023
GANESH
KULKARNI Army Institute of Technology,
Digitally signed by
ATUL GANESH
An Engineering College affiliated to
KULKARNI
Date: 2026.03.06 Savitribai Phule Pune University,
11:46:45 +0530
Dighi Hills, Taluka Haveli, District Pune
(Through it's Director Brig. Abhay A.
Bhat (Retired)) ... Petitioner
V/s.
Satish Shivaji Jagtap,
S. No.3, Gaikwad Nagar,
Infront of Bhagini Nivedita Pratishthan,
Dighi, Pune 411 015 ... Respondent
WITH
WRIT PETITION NO.9710 OF 2023
Army Institute of Technology,
An Engineering College affiliated to
Savitribai Phule Pune University,
Dighi Hills, Taluka Haveli, District Pune
(Through it's Director Brig. Abhay A.
Bhat (Retired)) ... Petitioner
V/s.
Nilesh Sitaram Sawant,
A.I.T, Dighi Hills, Pune 411 015 ... Respondent
WITH
WRIT PETITION NO.9711 OF 2023
Army Institute of Technology,
An Engineering College affiliated to
Savitribai Phule Pune University,
1
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Dighi Hills, Taluka Haveli, District Pune
(Through it's Director Brig. Abhay A.
Bhat (Retired)) ... Petitioner
V/s.
Ganesh Anand Sargade,
A.I.T, Dighi Hills, Pune 411 015 ... Respondent
WITH
WRIT PETITION NO.9711 OF 2023
Army Institute of Technology,
An Engineering College affiliated to
Savitribai Phule Pune University,
Dighi Hills, Taluka Haveli, District Pune
(Through it's Director Brig. Abhay A.
Bhat (Retired)) ... Petitioner
V/s.
Madan Domaji Naik,
Quarter No.1-B, No.6,
A.I.T, Dighi Hills, Pune 411 015 ... Respondent
Mr. Dhananjay Bhanage for the petitioner.
Mr. A.S. Rao for the respondent in each WP.
CORAM : AMIT BORKAR, J.
RESERVED ON : FEBRUARY 26, 2026.
PRONOUNCED ON : MARCH 6, 2026
JUDGMENT:
1. Since all these writ petitions involve common questions of
law and fact, they are being disposed of by this common judgment
and order.
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2. By these writ petitions filed under Article 227 of the
Constitution of India, the petitioner has challenged the Judgment
and Order dated 22 August 2022 passed by the Industrial Court in
the complaints instituted by the respective respondents.
3. The facts giving rise to the present writ petitions may be
stated in brief. In Writ Petition No. 9709 of 2023, the respondent,
Satish Shivaji Jagtap, is employed with the petitioner. His father,
late Shivaji Jagtap, was serving as a driver with the petitioner and
died while on duty. Thereafter, the respondent was appointed on
compassionate grounds as a Hostel Attendant for the period from 4
July 2011 to 30 June 2014. The petitioner is a society registered
under the Maharashtra Societies Act, 1960, and employs more
than 100 employees. It is therefore the case of the respondent that
all labour legislations are applicable to the petitioner
establishment. The petitioner has also allotted a residential quarter
to the respondent. According to the respondent, he was assured
that he would be granted permanency in service. However, no such
benefit has been extended to him till date, though he claims to be
working against a clear and vacant post. It is further alleged that
he is being paid wages lower than those paid to permanent
employees performing similar duties and even less than the
prescribed minimum wages. He asserts that no other service
benefits have been extended to him. According to him, he has been
continued as an ad hoc employee only to deny him the benefits of
permanency, despite the existence of sanctioned vacant posts. He
contends that he has completed 240 days of continuous service in
each year and has, therefore, filed the complaint seeking
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permanency and consequential service benefits.
4. The petitioner resisted the complaint and denied the
allegations of unfair labour practices. A preliminary objection was
raised regarding the maintainability of the complaint before the
Industrial Court. It is contended that the petitioner is an
Engineering College established for the children of Army personnel
and is affiliated to Pune University. The institution is managed and
controlled by the Army Welfare Education Society, New Delhi.
According to the petitioner, the provisions of the Maharashtra
Universities Act govern the service conditions of its employees. It is
asserted that the institution is not an industrial establishment and
that the respondent has an alternative remedy of approaching the
Grievance Committee constituted under the said Act. On this basis,
it is contended that the Industrial Court has no jurisdiction to
entertain the complaint under the MRTU and PULP Act.
5. The petitioner has further contended that the complainant
was appointed on an ad hoc basis and that he accepted the said
terms and conditions of appointment. It is submitted that having
accepted the ad hoc appointment, he cannot subsequently
challenge the same as illegal. It is admitted that he was working as
a Hostel Attendant, but strictly for the period specified in the
appointment order. It is therefore contended that he is not entitled
to claim the benefits sought in the complaint. The petitioner has
denied that the complainant was employed continuously for
several years beyond the stipulated period. It is urged that even if
he has completed 240 days of service, such completion does not
confer any right to permanency, particularly when the appointment
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was for a fixed tenure accepted by him.
6. The petitioner has also raised an additional contention by
way of amended pleadings. It is contended that under Section 59
of the Maharashtra Universities Act, 1994 and Section 81 of the
Maharashtra Public Universities Act, 2016, a specific forum has
been provided for redressal of grievances of employees. On this
basis, it is submitted that the provisions of the MRTU and PULP Act
are not applicable. It is further contended that the complainant
does not fall within the category of non-teaching staff of the
college and therefore cannot invoke the jurisdiction of the
Industrial Court. According to the petitioner, the complainant
cannot compare his service conditions with those of regular non-
teaching employees. It is also contended that the provisions of the
Industrial Employment (Standing Orders) Act, 1946 and the Model
Standing Orders framed thereunder are not applicable to the
petitioner institution. The complainant was appointed on a
contractual and ad hoc basis for a specified period and cannot be
treated as a temporary workman within the meaning of the Model
Standing Orders. The complaint was filed before the expiry of the
contractual period. It is urged that regularization of his service
would disturb the sanctioned staffing pattern, salary structure, and
recruitment policy of the institution.
7. The respondent filed a rejoinder opposing the additional
pleadings. No fresh oral evidence was led by the respondent, and
he relied upon the evidence recorded during the earlier
proceedings. The petitioner also did not lead any oral evidence,
but filed an application at Exhibit C-23 seeking to recall the
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respondent for cross-examination.
8. The Industrial Court framed three issues for determination.
Both parties led oral as well as documentary evidence in support of
their respective cases. Upon consideration of the material on
record, the Industrial Court allowed the complaints. Aggrieved
thereby, the petitioner has filed the present writ petitions.
9. Mr. Bhanage, learned counsel for the petitioner, submitted
that the admitted factual position clearly demonstrates that the
concerned employees were not appointed as temporary, badli or
casual workmen with a view to deprive them of the benefits of
permanency within the meaning of Item 6 of Schedule IV of the
MRTU and PULP Act. He contended that no evidence has been
adduced in any of the complaints to establish such an allegation. It
was further submitted that no material was placed on record to
show that the duties of a hostel attendant were identical to those
of any other category of non-teaching staff. According to him,
there is no evidence to indicate that the alleged vacancy was of a
permanent nature. He also pointed out that no evidence was led to
substantiate any allegation of partiality or favoritism irrespective
of merit in favour of any other class of employees. In substance, it
is urged that except for the interested oral testimony of the
complainants themselves, no independent or documentary
evidence has been produced.
10. Learned counsel for the petitioner further submitted that the
legal position is well settled that the Model Standing Orders do not
apply to educational institutions. It is also settled that Clause 4(C)
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of the Model Standing Orders cannot be invoked in the absence of
an available permanent post against which an employee can be
regularized. In support of these submissions, reliance is placed on
the judgments in Rashtrasant Tukadoji Maharaj Nagpur University
Vs Hon'ble Member, 2015 (3) CLR 811; Mumbai Vidyapeeth
Kamgar Sanghatana Vs University of Mumbai, 2020 (2) MhL.J
637, particularly paragraph 51; Pune Municipal Corporation Vs
Dhananjay Prabhakar Gokhale, 2006 (2) CLR 105; and State of
Maharashtra Vs Indira General Kamgar Sanghatana, 2015 II CLR
869.
11. On the basis of the aforesaid legal position, it is submitted
that the complaints ought to have been dismissed. According to the
petitioner, mere completion of 240 days of service does not
automatically entitle the complainants to permanency. It is
contended that once it is held that the college or university is not
an industrial establishment within the meaning of the Standing
Orders Act, the Model Standing Orders would have no application
and the Industrial Court ought to have dismissed the complaints
on that ground alone.
12. It is further contended that the Industrial Court has failed to
consider the issue of non-applicability of Clause 4(C) of the Model
Standing Orders and has erroneously invoked Item 6 of Schedule
IV of the MRTU and PULP Act in the absence of specific pleadings
and cogent evidence to attract the said provision. The finding that
Item 6 is attracted is assailed as perverse and unsustainable.
According to the petitioner, the appointments in question were
contractual and for specified periods. Such appointments, even if
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made at the institutional level, cannot be equated with
appointments as badli, casual or temporary workmen. It is
submitted that the employees were not continued for years
together with the object of depriving them of permanency. The
petitioner relies on the settled legal position that Item 6 of
Schedule IV is attracted only when there is clear and substantive
evidence, both oral and documentary, to establish an intention to
deprive employees of the status and benefits of permanent
employment. The burden of proving such intention lay upon the
complainants, which, according to the petitioner, they have failed
to discharge. It is emphasized that there is no evidence to show
that the appointments were made with the object of denying
permanency, which is an essential ingredient of Item 6.
13. In support of these submissions, reliance is placed upon the
judgments in Punjabrao Krushi Vidyapeeth Vs General Secretary
KVK Union, 1993 (2) MhL.J 1394; Maharashtra Association of
General Workers Vs Steelage Industries, 2005 (4) MhL.J 67; Patel
Engineering Works Vs Santosh Kumar Rawool, 2001 (3) MhL.J
439; Municipal Council Vs Tulsidas Baliram Bindade, 2016 (6)
MhL.J 867; Gangadhar Pillai Vs M/s Siemens Ltd, 2007 (1) SCC
533; Regional Manager, State Bank of India Vs Rajaram, 2004 (8)
SCC 164; and Regional Manager, SBI Vs Mahatma Mishra, 2006
(13) SCC 727.
14. It is the principal contention of the petitioner, as reflected in
the written statement, that the concerned employees were
appointed purely on contractual basis as hostel attendants for
specified periods. It is asserted that such appointments were made
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at the institutional level and not by the parent body, and that the
post of hostel attendant does not form part of the sanctioned
staffing pattern. According to the petitioner, these appointments
were therefore made strictly on contractual terms. The additional
contentions that running of a hostel is not mandatory, that the
requirement of hostel attendants depends upon the occupancy of
the hostel, and that the nature of duties of hostel attendants differs
from those of regular non-teaching staff, are stated to be ancillary
submissions explaining the basis of contractual engagement.
Reference is made to paragraphs 6A and 7 of the written statement
to show that the appointments were for fixed terms and not
against any permanent vacancy. It is also pointed out that the
contractual nature of the appointments has been admitted by the
respondents.
15. It is submitted that the Industrial Court has overlooked these
substantive pleadings. The Industrial Court has relied upon two
documents, namely a letter dated 30 June 2009 transferring a
hostel attendant to the IT Department and a notice dated 19
October 2019 regarding working hours of the boys' hostel, to
conclude that the post of hostel attendant is permanent in nature.
According to the petitioner, no evidence was led by the
complainants to establish that they were appointed against any
sanctioned post of hostel attendant. It is contended that the said
documents do not demonstrate the existence of permanent posts.
A distinction is drawn between availability of work and existence
of a sanctioned post. Mere availability of work does not imply that
a permanent post exists. It is further submitted that no evidence
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was adduced to show that permanent posts were available or
required against which the complainants could have been
appointed. In any event, the claim based on completion of 240
days under Clause 4(C) of the Model Standing Orders is stated to
be untenable, as the said clause itself is inapplicable. Even
otherwise, it is contended that Clause 4(C) cannot be invoked in
the absence of a permanent post.
16. It is lastly submitted that the judgment of this Court in
Mumbai Vidyapeeth Kamgar Sanghatana Vs University of Mumbai,
2020 (2) Mh.L.J. 637, relied upon by the respondents, in fact
supports the petitioner's case. In that judgment, it has been
specifically held that Clause 4(C) of the Model Standing Orders
does not apply to universities and colleges. It is pointed out that
Item 6 of Schedule IV was held to be attracted in that case in view
of the specific factual matrix. In the present case, it is contended
that there were neither pleadings invoking Item 6 nor evidence
establishing its essential ingredients. The burden of proof lay upon
the respondents-complainants, and in the absence of discharge of
such burden, the complaints ought to have been dismissed.
17. Mr. Rao, learned counsel appearing for the respondents in
the respective writ petitions, submitted that the dates of initial
appointment clearly demonstrate long and continuous service. He
pointed out that the respondent in Writ Petition No. 9712 of 2023
was appointed in the year 2003; the respondent in Writ Petition
No. 9711 of 2023 was appointed on 4 April 2005; the respondent
in Writ Petition No. 9710 of 2023 was appointed in 2004; and the
respondent in Writ Petition No. 9709 of 2023 was appointed in
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2011. It was contended that in none of the petitions did the
present petitioner effectively cross-examine the respondents on the
issue of their initial appointment. Consequently, the statements
made on oath by the respondents remained unshaken and
uncontroverted. With regard to the alleged admission concerning
appointment in 2011, he submitted that the appointment orders of
2011 were shown to the respondents along with the application
forms, which were accepted by them. However, such acceptance
does not amount to an admission that they commenced service
only from the year 2011, nor does it displace their assertion of
earlier engagement.
18. Inviting attention to paragraph 25 of the judgment of the
Industrial Court, learned counsel submitted that the Court has
relied upon the decision of this Court in Mumbai Vidyapeeth
Kamgar Sanghatana vs University of Mumbai, 2019 SCC OnLine
801. In the said decision, it has been held that the University is not
an industrial establishment within the meaning of Section 2(e) of
the Industrial Employment (Standing Orders) Act, 1946. He
submitted that the Industrial Court has correctly taken note of the
said legal position while adjudicating the present complaints.
19. Learned counsel further placed reliance upon the judgment
of this Court in Balasaheb Dagadu Yeole vs Sangamner Taluka
Vikas Pratishthan Bhairavnath Madhyamik Vidyalaya, 2017 (2)
Bom C.R. 134. In the said decision, it has been held that matters
relating to transfer, continuation of workmen on daily wages as
temporaries or badlis for years together, and other issues falling
under Schedule II, Schedule III and Items 2 to 10 of Schedule IV of
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the MRTU and PULP Act would continue to be within the
jurisdiction of the Industrial Court. It was observed therein that no
specific remedy has been provided under the Maharashtra
Employees of Private Schools (Conditions of Service) Regulation
Act, 1977 in respect of such grievances of non-teaching employees
in private schools. On that basis, it is submitted that the Industrial
Court was justified in entertaining and deciding the complaints.
20. Drawing attention to paragraphs 43 to 45 of the Industrial
Court's judgment, learned counsel submitted that the Court has
rightly recorded a finding that the respondents were continued in
service for several years without being conferred the status and
privileges of permanent employees. It has also been recorded that
the petitioner failed to establish any material difference in the
nature of duties or job profile between hostel attendants engaged
for fixed periods and those appointed on a permanent basis. On
that basis, the Industrial Court concluded that the petitioner
intended to continue the respondents as fixed-term employees
without extending the benefit of permanency, despite the work
being perennial and continuously available in the institution. It
was further submitted that the respondents had specifically
deposed that certain employees, namely Dilip Shinde, Sattar
Shaikh and one Chavan, were granted permanency, and this
assertion was not rebutted by the petitioner by leading any
contrary evidence. In these circumstances, it is contended that the
Industrial Court was justified in directing that the respondents be
granted permanency with all consequential benefits from the date
of filing of the complaints. Accordingly, dismissal of the writ
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petitions is sought.
REASONS AND ANALYSIS:
21. Before examining the evidence on record, it is necessary to
first understand the legal position which governs the present
dispute. In matters of this nature the Court is required to see
whether the conduct of the employer amounts to an unfair labour
practice as recognised under the law. Unless the legal framework is
clear, the evidence cannot be properly appreciated. In the present
case two main questions arise for consideration. The first question
is whether Clause 4(C) of the Model Standing Orders can be
applied to the facts of the present case and whether that clause by
itself confers a right of permanency upon the respondents. The
second question is whether the conduct alleged by the respondents
falls within the scope of Item 6 of Schedule IV of the MRTU and
PULP Act and, if so, whether the Industrial Court was justified in
granting relief by directing that the respondents be made
permanent.
22. Clause 4(C) of the Model Standing Orders deals with the
status of employees who have been working continuously for a
considerable period of time.
23. The second provision which needs consideration is Item 6 of
Schedule IV of the MRTU and PULP Act. This provision deals with
a situation where employees are engaged as temporaries, badlis or
casual workers for long periods with the intention of denying them
the benefits which ordinarily accompany permanent employment.
The Act recognises that in some cases employers may continue
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workers on temporary arrangements for years together even
though the nature of work is permanent and available throughout
the year. Such a practice, when established, is treated as an unfair
labour practice under the Act. If an employer repeatedly appoints
workers for short periods and continues this arrangement for many
years, even though the work is regular in nature, the Court may
reasonably infer that the arrangement is adopted to avoid granting
permanency. However, it is equally important to remember that the
burden of proving such a practice lies on the complainant. The
workers who allege unfair labour practice must place before the
Court some material showing that the employer has followed such
a pattern of employment. This material may consist of oral
testimony of the workers, documentary evidence such as
appointment orders or records of service, or other surrounding
circumstances which show how the employer has been engaging
the workers.
24. The petitioner has placed reliance on the judgment in the
case of Mumbai Vidyapeeth Kamgar Sanghatana which states that
universities and educational institutions are not industrial
establishments within the meaning of the Industrial Employment
(Standing Orders) Act. That judgment deals with the limited issue
whether the Standing Orders Act directly governs such institutions.
However, the MRTU and PULP Act provides a separate mechanism
for addressing unfair labour practices. Under this Act the Industrial
Court is empowered to examine complaints relating to unfair
labour practices mentioned in the various schedules of the Act,
including those in Schedule IV. Therefore, even if the Standing
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Orders Act may not strictly apply to educational institutions, it
does not automatically follow that the Industrial Court has no
jurisdiction. If the conduct complained of falls within one of the
items of Schedule IV, the Industrial Court is competent to examine
the matter. In other words, the fact that an educational institution
may not fall within the definition of an industrial establishment
under the Standing Orders Act does not mean that the employer is
immune from scrutiny under the MRTU and PULP Act.
25. Keeping this legal position in mind, the evidence on record
must now be examined. The first question that arises is whether
the respondents were working for long periods in work which can
be described as perennial in nature. The respondents entered the
witness box and gave evidence on oath regarding their
employment. They stated the year in which they were first
engaged. They also described the duties which they were
performing as hostel attendants. According to them the hostel was
functioning regularly and their duties were required throughout
the year. They also stated that they had been continuously working
for several years and had completed more than 240 days of service
in each year. The petitioner had the opportunity to cross examine
these witnesses. However, the record shows that there was either
very limited cross examination or no effective challenge on
important aspects such as the date of appointment and the
continuity of service.
26. The second question which requires examination is whether
the petitioner produced any evidence showing the existence or
absence of permanent posts of hostel attendant. According to the
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petitioner the requirement of hostel attendants depends upon the
number of students residing in the hostel and therefore the
appointments were made only for specific periods. In support of
this contention the petitioner relied upon two documents which
were also referred to by the Industrial Court. One document is a
letter dated 30 June 2009 transferring a hostel attendant to the IT
department. The other document is a notice dated 19 October
2019 regarding the working hours of the boys hostel. These
documents do indicate that the hostel was functioning in the
institution and that persons were working as hostel attendants.
However, these documents by themselves do not establish that
there were permanent posts of hostel attendants in the institution.
At the highest they show that work relating to hostel management
was being carried out.
27. There is an important distinction between the availability of
work and the existence of a permanent post. Work may exist even
though a formal permanent post has not been created. On the
other hand, if the employer takes a stand that no permanent posts
exist, it is expected to place some material before the Court
showing the approved staffing structure of the institution. Such
material could include a sanctioned staffing pattern, resolutions
passed by the governing body or any order issued by the
competent authority specifying the number of posts in the
establishment. In the present case the petitioner has not produced
any such document. No record has been placed before the Court to
show that the post of hostel attendant does not form part of the
permanent establishment.
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28. The third aspect which requires consideration is whether
there was any practice of granting permanency to other employees
performing similar work. During their evidence the respondents
stated that certain employees namely Dilip Shinde, Sattar Shaikh
and one Chavan were granted permanency. According to them
these employees were performing duties similar to those
performed by the respondents. Once such a statement is made on
oath it becomes necessary for the employer to explain the position.
The employer could have produced service records of those
employees or examined witnesses to show that their appointments
were materially different. However, no such evidence has been
brought on record. If it is shown that some employees doing
similar work were granted permanency while others were
continued on contractual terms, that circumstance becomes
relevant while assessing the conduct of the employer. It raises a
question why similar treatment was not given to the respondents.
29. The fourth question is whether the overall conduct of the
petitioner indicates an intention to deny permanency. The evidence
on record shows that the respondents were engaged for long
periods. They worked for several years and completed more than
240 days of service in each year. Their duties as hostel attendants
were of a continuing nature because the hostel was functioning
every year. Despite this situation the petitioner continued to
appoint them on contractual terms for limited periods. At the same
time the petitioner has not produced any document showing that
the role of hostel attendant was excluded from the permanent
staffing structure of the institution. The petitioner has also not
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shown that any regular recruitment process was undertaken for
filling permanent posts while treating the respondents'
engagement as temporary.
30. When these circumstances are viewed together a pattern
becomes visible. Workers were engaged repeatedly for many years
in work which continued year after year. In such a situation it
becomes necessary to examine whether the contractual
arrangement was adopted merely as a method to keep the
employees outside the permanent establishment.
31. It is also relevant to note that the petitioner had access to the
institutional records. If there existed a sanctioned staffing pattern
showing that hostel attendants were outside the permanent
establishment, the petitioner could easily have produced those
records before the Court. Similarly, responsible officers of the
institution could have been examined to explain the recruitment
policy and the nature of such appointments. No such evidence has
been placed on record. When relevant documents are within the
control of a party and are not produced before the Court, the
Court is permitted to draw an adverse inference.
32. The credibility of the parties must also be examined. The
respondents appeared before the Court and gave evidence on oath.
Their statements regarding the nature of their work and the
duration of their service appear consistent and natural. On the
other hand the petitioner has not produced convincing evidence to
show that the appointments were genuinely temporary or
dependent entirely upon fluctuating hostel occupancy. The
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documents relied upon by the petitioner do not establish that
hostel attendants were excluded from the permanent staffing
structure. The Industrial Court has also recorded a finding that the
petitioner failed to show any substantial difference between the
duties of fixed term hostel attendants and those of permanent non
teaching staff. On the material available on record that finding
appears reasonable.
33. On an overall consideration of the law and the evidence
placed on record, it becomes clear that the respondents were
engaged on contractual terms for long periods while performing
work which was continuous and perennial in nature. Such an
arrangement had the effect of denying them the status and
benefits normally associated with permanent employment. In these
circumstances the finding recorded by the Industrial Court that the
conduct of the petitioner attracts Item 6 of Schedule IV of the
MRTU and PULP Act appears justified. The conclusion reached by
the Industrial Court is therefore sustainable both on facts and in
law.
34. In view of the discussion made above and for the reasons
recorded in the preceding paragraphs, the following order is
passed.
35. All the writ petitions fail. The Judgment and Order dated 22
August 2022 passed by the Industrial Court in the complaints filed
by the respective respondents does not suffer from any
jurisdictional error or perversity which would require interference
in exercise of supervisory jurisdiction under Article 227 of the
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Constitution of India.
36. Accordingly, all the writ petitions stand dismissed.
37. The petitioner shall implement the directions issued by the
Industrial Court and grant the respondents the benefit of
permanency along with consequential service benefits in
accordance with law within a period of twelve weeks from the date
of this judgment.
38. Rule stands discharged. In the circumstances of the case,
there shall be no order as to costs.
(AMIT BORKAR, J.)
