1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.443 OF 2010
Mr.Ramesh Vitthal Patil & Ors. ....Petitioners V/s.
Kalyan Dombivali Municipal Corporation & Ors. ....Respondents
Mr.Y.M. Pendse for the Petitioners.
Mr.A.S. Rao for the Respondents.
Mrs.Gayatri Singh for the Intervenor - Municipal Karmachari Kamgar Sena.
WITH
WRIT PETITION NO.565 of 2010
Kalyan Dombivli Municipal Corporation & Anr. ....Petitioners V/s.
Shri Ramesh Vithal Patil & Ors. ....Respondents
Mr.A.S. Rao for the Petitioners.
Mr.Y.M. Pendse for the Respondents.
Mrs.Gayatri Singh for the Intervenor - Municipal Karmachari Kamgar Sena.
WITH
WRIT PETITION NO. 901 OF 2010
2
Kalyan Dombivli Municipal Corporation & Anr. ....Petitioners V/s.
Shri Maruti Shrirang Nikam & Ors. ....Respondents
Mr.A.S. Rao for the Petitioner.
Mr.Y.M. Pendse for the Respondents.
CORAM : S.J. VAZIFDAR, J.
DATE : 7TH JUNE, 2010.
ORAL JUDGMENT :-
1. The first two matters are cross Writ Petitions. The 25
petitioners in Writ Petition No.443 of 2010 are the respondents in
Writ Petition No. 565 of 2010. The petitioners in Writ Petition Nos.
565 of 2010 and 901 of 2010 viz. The Kalyan-Dombivali Municipal
Corporation and its Commissioner respectively, are respondent
Nos. 1 and 2 in Writ Petition No. 443 of 2010. I will for convenience
refer to the petitioners in Writ Petition Nos. 443 of 2010 as the
complainants and to respondent No.1 therein i.e. the petitioner in
Writ Petition Nos. 565 of 2010 and 901 of 2010 as the
Corporation.
The counsel agree that the decision in Writ Petition No.
901 of 2010 will follow the decision in the other Writ Petitions. 3
2. The petitioners in all the writ petitions have challenged
the order passed by the learned Member of the Industrial Court,
Thane in the complaint filed by the complainants under the
Maharashtra Recognition of Trade Unions and Prevention of Unfair
Labour Practices Act, 1971. The Corporation has challenged the
order in so far as it allows the complaint filed by the workers
granting them permanency and the benefits of permanency and
all other consequential benefits arising therefrom. The
complainants have challenged the said order in so far as the
reliefs granted are only with effect from the date of the filing of
the complaint.
The Complaint :
3. The complainants filed the complaint under sections
28 and 30 read with items 5, 6, 9 and 10 of Schedule IV of the
Maharashtra Recognition of Trade Unions and Prevention of Unfair
Labour Practices Act, 1971. They sought a declaration that the
Corporation had engaged in and was engaging in unfair labour
practices as defined under the said provisions and an order
directing them to cease and desist from doing so and to confer
upon them the status of permanency and benefits and privileges
thereof. As consequential reliefs they sought a declaration that
they are the permanent employees of the Corporation and an
order directing the Corporation not to discontinue their 4
employment.
4. The complaint alleged that the complainants had been
in the employment of the Corporation since 1997; that they had in
response to an advertisement issued by the Corporation under the
signature of the Commissioner applied for employment and that
they were accordingly appointed pursuant to and in accordance
with the advertisement. The complaint states that their service
conditions are governed by various settlements under the
provisions of the Industrial Disputes Act and the Model Standing
Orders framed under the Industrial Employment (Standing Orders)
Act, 1946 in its application to the State of Maharashtra. It is
alleged that though the complainants are appointed on a
temporary basis the nature of their work is permanent and
perennial in nature and that they are entitled for permanency as
the posts in which they are appointed are sanctioned posts. It is
also averred that even assuming that the workmen are
discharging the work which is of temporary nature they are
entitled to permanency by virtue of Model Standing Order 4C. It is
further alleged that the complainants had entered into a
settlement with the union whereby an employee who is appointed
on a temporary basis is entitled for permanency after completion
of five years of employment. The complainants alleged that they
had completed 240 days or more in any preceding 12 calendar 5
months. The Corporation not having granted them permanency
despite these facts is, according to them, guilty of unfair labour
practices as alleged. The workers have averred that all the posts
on which they have been appointed have been sanctioned by the
state government. Therefore, according to them their
engagement on a temporary basis itself indicates that they were
intentionally kept as temporary with the sole intention of
depriving them the benefits, privileges and status of permanent
employees. For that reason too it is alleged that the Corporation
had engaged in unfair labour practices under item 6 of schedule IV
of the MRTU and PULP Act.
The Corporation's written statement :
5. The Corporation in its Written Statement denied all the
averments and submissions in the complaint. The Corporation
challenged the jurisdiction of the industrial court constituted under
the MRTU & PULP Act. It is contended that the the Corporation is
established by the Government of Maharashtra under the Bombay
Provincial Municipal Corporation Act, 1949 (hereinafter referred to
as the BPMC Act); that they had to carry on their affairs within the
framework laid down under this Act and as per the orders,
guidelines or directives issued by the Government of Maharashtra
from time to time; that as per the provisions of the BPMC Act
every corporation may make rules prescribing qualifications 6
required for each post and the procedure for recruitment in
respect thereof; that they had made draft rules and sent the same
for approval to the State Government; that the State Government
raised various queries and directed them to rectify the same and
that the respondents withdrew those rules with an intention to
resubmit fresh/modified rules. It is submitted that permanent
appointments can be made only on the posts approved by the
government; that they sent the establishment personnel schedule
for sanction to the State Government on 30.5.1997 and the same
was sanctioned on 9.12.1999. Thus the appointments of the said
workmen were not based on the sanctioned establishment
schedule and their appointments were made purely on
temporary/ad hoc basis without following the due process as
prescribed by the BPMC Act and the rules made thereunder as
applicable to the Corporation. Moreover, it was submitted, that as
per the report of the Jha Committee, personnel expenses of the
Corporations are not to be more than 35% but that as of date this
limit has been exceeded by the Corporations. It is submitted that
as and when the Corporation finds that there is permanent
increase in the work and/or posts are sanctioned by the
government the same are filled up by recruitment and/or
promotions as per the recruitment policy, reservation policy,
roster, recruitment/selection procedure and merit-cum-seniority. 7
The corporation then publishes an advertisement giving details of
the vacancies to be filled up for permanent positions setting out
therein the requirements as per the recruitment policy. Eligible
candidates are accordingly appointed after following the entire
procedure. In the case of the present workmen it is alleged that
the procedure was not followed and that they were recruited and
appointed only on a temporary and an ad-hoc basis. It is averred
that under the provisions of the BPMC Act the Commissioner does
not have power to appoint a person for a period exceeding six
months. The Commissioner has to prepare an establishment
schedule from time to time which has to be submitted to the
standing committee and the Corporation for approval. The
establishment schedule has thereafter to be sanctioned by the
State Government. The appointments for the various posts are
also required to be approved by the Corporation.
6. It appears that the respondents noticed various
irregularities and illegalities in the matter of appointments to
various posts. The government accordingly issued an order dated
1.1.1998 directing that the appointments made in violation of the
provisions of the BPMC Act should not continue in excess of six
months. The respondents accordingly scrutinized the
appointments made.
According to the Corporation the employees have 8
been working as ad-hoc Kamgars (workers) with the Corporation
purely on a temporary basis. Their last appointments from
18.7.2006 to 17.1.2007 were again for the fixed period of six
months on a temporary ad-hoc basis as Kamgars. The same was
renewed from 20.1.2007 to 19.7.2007. In the year 1997, the
Corporation gave a notice affixed on the notice board which did
not mention the post of Kamgar or garden worker (Bag kamgar).
One post in this notice was mentioned as the post of workman
(helper-cum-gardener) at serial No.35 with a specified pay scale.
The notice did not mention the post of Kamgar. The notice
mentioned the post of workman. It was therefore contended on
behalf of the Corporation that the post was only for helper. A few
of the workmen are stated to have been appointed as gardening
workmen (Bagkam Kamgars) from 23.5.1997 purely on a
temporary ad-hoc basis for the period of one month as stipulated
in the appointment orders dated 23.5.1997. Thus the
appointments of these particular workers have nothing to do with
the said notice. Sixteen other complainants had been appointed
since the beginning as Kamgars only i.e. to a post not mentioned
in the said notice. It was contended therefore that the
complainants had failed to show any connection between their
appointments and the said notice. The appointments, therefore, it
was further contended, were not in accordance with the statutory 9
provisions/procedure.
7. The Corporation and the Complainants examined one
witness each.
Complainant's witness :
On behalf of the Complainants, one Dinesh Dharya, a
Complainant himself was examined by filing his affidavit in lieu of
examination-in-chief dated .........11.2008. He stated that the
employees had applied for the post of workers in response to an
advertisement published in a local newspaper on 28.5.1997. It is
pertinent to note at this stage that the appointment of these
workers was prior thereto on 23.5.1997. It was contended on
behalf of the complainants that there were in fact advertisements
even prior thereto. It is further stated by the witness that the
workers had applied for the post in the manner prescribed by the
advertisement and that the employment of each of the
complainants was continued by passing various orders and giving
a one day artificial break each time. He stated that as per the
advertisements, the posts were sanctioned on 9.12.1999; that
they were appointed on permanent sanctioned posts; that each of
the workers had completed 240 days continuous service and
were therefore entitled to the benefit of the provisions of the
M.S.O. 4-C by which the Corporation is governed. It is alleged that
certain employees even junior to these workmen had been made 10
permanent with consequential benefits.
In the further examination-in-chief, the witness
produced the advertisement dated 28.5.1997 as well as other
documents.
8. In cross-examination, the witness stated that the said
workers' initial appointment was on the post of labour/Kamgar and
that some of the employees were initially employed as labourers
in the garden (Bagkam). He admitted that the roster and
reservation policy is applicable to the Corporation and that their
employment can be regularized only upon the availability of
sanctioned posts and not merely upon completion of 240 days.
Pausing here, this however would depend upon the interpretation
of law by the Court and would not be established merely by the
evidence/cross-examination of a witness. The witness upon
perusing the newspaper advertisement dated 28.5.1997 and the
notice, admitted that the same did not mention the post of
Bagkam Kamgar but that it mentioned at serial No.35 "helper
gardner". He further stated that as per the appointment order
dated 23.5.1997, some of the workmen were appointed as helper
gardner, whereas each of the others were appointed as a
workman/labour. He denied that the appointment to the post of
the workman/labour is not related to the said advertisement.
In his cross-examination, the witness denied that prior 11
to their appointment, the workers had not filed any application for
employment and were not interviewed and did not go through the
selection process. He agreed that the initial appointment was for
a temporary period of only six months (in fact it was only for one
month). He denied the suggestion that the advertisement was
published in the year 1997 and that the workmen had been
appointed by the Corporation in the year 1999.
Corporation's witness :
9. On behalf of the Corporation, one Dhanaji Kalu Parmar
was examined by filing his affidavit in lieu of examination-in-chief.
He stated that the Corporation had been established with effect
from 1.10.1993 and was bound to carry on its affairs within the
frame laid down in the B.P.M.C. Act and as per the orders,
guidelines and the directives issued by the Government of
Maharashtra from time to time. He reiterated all other averments
and submissions in the Written Statement filed on behalf of the
Corporation.
It would be convenient to set out a part of the cross-
examination of this witness relied upon by Mr.Pendse, for reasons
I shall indicate later, which reads as under :-
"11. ...................................... It is correct to say that in the sanctioned post, there is also a post of Labourer. I know all the complainants in the present complaint. It is correct to say that all the complainants are working on sanctioned posts. It 12
is correct to say that whenever advertisement for recruitment used to be published in the daily newspaper, the said recruitment process used to be carried out and completed by following due procedure, which is required to be followed and the said procedure and process was adopted while recruitment as per advertisement dated 28th May 97. It is correct to say that all the complainants are in the employment of the resp corpn since 1997 till date. It is also correct to say that there are also other workers, like the present complainants who are getting the wages, as per wage scale. It is also correct to say that and there is a difference in the benefits awarded to the said employee and the present complainants and there is difference in the respective benefits. The resp corpn is not maintaining the seniority list of casual or temporary employees. It is correct to say that in the year 2006, some temporary employees, were regularized by the resp. corpn. It is not correct to say that the said employees are not regularized as per seniority list. It is not correct to say that I have no personal knowledge regarding which I have stated above. It is correct to say that when the temporary employees regularized in the year 2006, cases of the present complainants, were not considered for regularization. It is correct to say that the respondents use to issue, the orders of appointment, to all the said complainants every year by giving one day break. It is correct to say that I have filed the present affidavit in lieu of examination in chief i.e. exh. C-12 as directed by the resp. corpn. It is not correct to say that I have filed a false affidavit."
10. The following questions arise for consideration :-
(I) Whether the Industrial Employment (Standing
Orders) Act, 1946 applies to the Corporation.
(II) Whether the complainants were appointed in
accordance with the provisions of the B.P.M.C. Act. 13
(III) Whether the appointments were made against
sanctioned posts.
(IV) Whether the complainants are entitled to the
benefits of permanency even if they were not appointed in
accordance with the provisions of the B.P.M.C. Act.
(V). Whether the Corporation, having continued to
appoint the complainants over the years, can be said to
have indulged in unfair labour practices under the
provisions of the MRTU & PULP Act.
I have answered the first question in the affirmative,
against the Corporation and the remaining questions in the
negative, in favour of the Corporation. Questions IV and V have
been answered purely on precedent and not on principle as I find
myself bound by the judgments of the Supreme Court and of this
Court.
11. Mr.Rao submitted that the Industrial Employment
(Standing Orders) Act, 1946 ("I.E. Act") is not applicable to the
Corporation.
12. The submission is not well founded for at least two
reasons.
(A). Section 2(e)(i) of the I.E. Act reads as under :-
"2. Interpretation.--In this Act, unless there is anything repugnant in the subject or context-- 14
(e) "industrial establishment" means--
(i) an industrial establishment as defined in clause (ii) of Section 2 of the Payment of Wages Act, 1936, or"
Section 2 (ii) (g) of the Payment of Wages Act, 1936,
reads as under :-
2. Definitions.--In this Act, unless there is anything repugnant in the subject or context,-- (ii) "industrial or other establishment" means] any--
(g) establishment in which any work relating to the construction, development or maintenance of buildings, roads, bridges or canals, or relating to operations connected with navigation, irrigation, or the supply of water, or relating to the generation, transmission and distribution of electricity or any other form or power is being carried on;"
The Corporation is an industrial or other
establishment, within the meaning of that expression in Section
2(ii)(g) of the Payment of Wages Act, as it admittedly does the
work relating inter-alia to supply of water and the maintenance of
roads. It is accordingly also an industrial establishment within the
meaning of Section 2(e)(i) of the I.E. Act.
(B). Further there is no dispute that the Bombay Shops and
Establishments Act, 1948 ("B.S.E. Act.") applies to the
Corporation. Section 38-B of the B.S.E. Act reads as under :- 15
"38-B. Application of Industrial Employment (Standing Orders) Act to establishment. - The provisions of the Industrial Employment (Standing Orders) Act, 1946, in its application to the State of Maharashtra (hereinafter in this section referred to as "the said Act"), and the rules and standing orders (including model standing orders) made thereunder from time to time, shall, mutatis mutandis, apply to (all establishments wherein fifty or more employees are employed and) to which this Act applies, as if they were industrial establishment within the meaning of the said Act."
13. There are more than fifty employees of the
Corporation. Thus in view of Section 38-B of the B.S.E. Act also
the I.E. Act applies to the Corporation.
Whether the complainants were appointed in
accordance with the provisions of the B.P.M.C. Act.
14. Mr.Rao submitted that the employment with the
Corporation is a public employment. The appointments are,
therefore, governed by the provisions of the B.P.M.C. Act. Mr.Rao
submitted that the appointments were not made in accordance
with the B.P.M.C. Act and in particular Sections 51 to 54 thereof as
well as Schedule-D, Chapter-III thereto.
Mr.Pendse denied that the appointments were not in
accordance with the provisions of the B.P.M.C.Act. He further
submitted that even if the appointments were not in accordance
with the provisions of the B.P.M.C. Act, the complainants are
entitled to the benefit of permanency in view of MSO 4-C. 16
15. The first question that arises, therefore, is whether the
complainants were appointed in accordance with the provisions of
the B.P.M.C. Act. If they are found not to have been appointed in
accordance with the provisions of the B.P.M.C. Act, Mr.Pendse's
submissions on behalf of the workmen would require
consideration. I find Mr.Rao's submission that the complainants
were not employed in accordance with the provisions of the
B.P.M.C. Act is well founded.
16. Sections 51 to 54 and Schedule D, Chapter III of the
B.P.M.C. Act are as under :-
"51. No., designations, grades
etc. of other municipal officers and
servants. - (1) Subject to the provisions of sub- section (4), the Standing Committee shall from time to time determine the No., designations, grades, salaries, fees and allowances of auditors, assistant auditors', officers, clerks and servants to be immediately subordinate to the Municipal Chief Auditor and the Municipal Secretary respectively.
(2) The Commissioner shall, from time to time, prepare and bring before the Standing Committee a statement setting forth the No., designations and grades of the other officers and servants who should in his opinion be maintained, and the amount and nature of the salaries, fees and allowances which he proposes should be paid to each.
(3) The Standing Committee shall, subject to the provisions of sub-section (4), sanction such statement either as it stands or subject to such modifications as it deems expedient.
17
(4) No new permanent office with a
minimum monthly salary, exclusive of allowances, of one hundred rupees or more shall be created without the sanction of the
Corporation and no new office with a minimum monthly salary exclusive of allowances, of five hundred rupees or more or with a maximum monthly salary exclusive of allowances, of eight hundred rupees or more shall be created without the sanction of the (State) Government.
(5) Nothing in this section shall be
construed as affecting the right of the Corporation or of the Commissioner to make any temporary appointment which it or he is empowered to make under section 53.
Explanation.- An increase in the salary of any permanent office shall be deemed, for the purpose of sub-section (4), to be the creation of a new office, if by reason of such increase, the minimum monthly salary, exclusive of allowances, amounts to one hundred rupees or more or five hundred rupees or more, as the case may be or the maximum monthly salary,
exclusive of allowances, amounts to eight hundred rupees or more.
52. Restriction on employment of
permanent officers and servants .- No
permanent officer or servant shall be entertained in any department of the municipal administration unless he has been appointed under section 40 or 45, or his office and emoluments are covered by sub-section (1) of section 51 or are included in the statement sanctioned under sub-section (3) of section 51 and for the time being in force.
53. Power of appointment in whom to
vest.- (1) The power of appointing, municipal officers, whether temporary or permanent, whose minimum monthly salary exclusive of allowances is or exceeds four hundred rupees shall vest in 18
the Corporation ;
Provided that, temporary, appointments for loan works carrying a monthly salary of rupees four hundred or more, exclusive of allowances, may be made for a period of not more than six months by the Commissioner with the previous sanction of the Standing Committee on condition that every such appointment shall forthwith be reported by the Commissioner to the Corporation and no such appointment shall be renewed on the expiry of the said period of six months without the previous sanction of the Corporation.
(2) Save as otherwise provided in sub- section (1), the power of appointing Municipal Officers and servants, whether temporary or permanent, under the immediate control of the Municipal Chief Auditor and the Municipal Secretary shall vest in the Municipal Chief Auditor or the Municipal Secretary, as the case may be, subject, in either case, to the approval of the Standing Committee unless the said Committee in any particular case or class of cases dispenses with the requirement.
(3) Save as otherwise provided in this Act, the power of appointing Municipal officers and servants whether permanent or temporary vests in the Commissioner :
Provided that, such power in respect of permanent appointments shall be subject to the statement for the time being in force prepared and sanctioned under section 51 :
Provided further that, no temporary
appointment shall be made by the Commissioner for any period exceeding six months and so such appointment carrying a monthly salary of more than one hundred rupees exclusive of allowances shall be renewed by the Commissioner on the expiry of the said period of six months without the previous sanction of the Standing Committee. 19
54. Manner of making appointments.
- (1) There shall be a Staff Selection Committee consisting of the Commissioner or any other officer designated by him in this behalf, the Municipal Chief Auditor, the Head of the Department concerned and not more than one other officer nominated by the Commissioner.
(2) The Staff Selection Committee shall, in the manner prescribed in the rules, select candidates for all appointments in the municipal service other than appointments referred to in sub-section (1) of section 53 and other than those which the Corporation may, with the previous approval of the (State) Government, by order specify in this behalf, unless it is proposed to fill the appointment from amongst persons already in municipal service or unless the appointment is of a temporary character and is not likely to last for more than six months.
(3) Every authority competent to make
appointments in the municipal service shall make appointments of the candidates so selected in accordance with the directions given by the Staff Selection Committee.
(4) With reference to officers and
servants appointed under Chapter XX the provisions of this section shall apply as if for the word "Commissioner" the words "Transport Manager" had been substituted.
(5) Subject to the provisions of this section, any appointment of a municipal officer or servant shall be made in the manner prescribed in the rules, save as expressly provided therein.
CHAPTER III (OF SCHEDULE D)
METHOD OF APPOINTMENT OF CERTAIN
MUNICIPAL OFFICERS AND SERVANTS AND
THEIR DUTIES AND POWERS
1. METHOD OF APPOINTMENT
20
1.Manner of making appointment. - Save in the case of temporary appointment made under sub-section (7) of section 45 and in the case of acting appointments made under section 58 no person shall be appointed to any of the posts the power of appointment to which vests in the Corporation unless he possesses the qualifications prescribed in this behalf under rule
3.
2.Before making an appointment to any post referred to in rule 1 applications shall be invited for such post by advertisement in the local newspapers and the applications received shall be scrutinized by the Commissioner who shall submit to the Corporation, through a committee if so required by the Corporation a list arranged in order to preference of such persons out of those who have applied as he considers qualified for the post :
Provided that, if the Corporation is of the opinion that any officer in municipal service possessing the qualifications prescribed under rule 3 is a fit person to be appointed to the post, it may appoint such officer to the post without following the procedure prescribed in this rule.
3. Subject to the provisions of this Act, the Corporation shall from time to time prescribe the qualifications required for each post, the power of appointment to vest in the Corporation, with the approval of the (State) Government, who may, in granting such approval make such modifications, in, or additions to the qualifications prescribed by the Corporation as it deems fit."
17. Firstly, I do not find the complainants to have been
appointed pursuant to an advertisement, as required by Rule 2 of
Schedule-D Chapter-III of the B.P.M.C. Act. The same mandates 21
that before making an appointment to any post referred to in Rule
1, which includes the said posts, applications shall be invited by
advertisements in the local newspapers. The complaint merely
states in paragraph 3(iii) that the complainants had been
appointed by virtue of the advertisement issued by the
Corporation. There are no particulars as to the advertisement. In
his examination-in-chief, the complainants' witness stated that the
employees had applied for the post in response to an
advertisement dated 28.5.1997.
This however, as Mr.Rao rightly pointed out, could not
have been so as the said workmen had been appointed prior
thereto viz. on 23.5.1997. The appointment orders were prior to
the date of the advertisement viz. 28.5.1997 and that therefore, it
cannot be stated that the said workmen had been employed
pursuant to the said advertisement.
18. Faced with this, it was contended that the
advertisement dated 28.5.1997 was actually only reissued and
that the advertisements inviting the applications were issued even
prior thereto. This contention was sought to be supported on the
basis of a news item on the same page as the advertisement to
this effect. It was also contended that this case was not put to the
complainants witness. It was further submitted that even
assuming the argument to be correct, it would at the highest 22
indicate that the first letter of appointment was not pursuant to
the advertisement. Admittedly, thereafter for ten years fresh
letters of appointment albeit for six months each had been issued
with a break of one day between each of them.
19. Even assuming this to be so, it would not advance the
complainants case for in any event the appointments being on a
temporary basis, could not have been for more than a period of
six months in view of the provisions of Section 53 of the B.P.M.C.
Act. In view of the above provisions of the B.P.M.C. Act, a
temporary appointment could not be for more than six months.
Any extension beyond the period therefore would be void. Even if
each appointment is considered to be a fresh appointment, it
would not support the complainants case for every such
appointment is then merely on a temporary basis.
20. The appointments could never be considered valid on
a regular basis for every appointment must be made not merely
pursuant to an advertisement but also in accordance with the
other provisions of the B.P.M.C. Act set out above, especially
Section 54 read with Chapter-III of Schedule-D. There was no Staff
Selection Committee. The question therefore of the selection of
the complainants being as per the manner prescribed in the rules
made by the Staff Selection Committee does not arise. The
appointment orders were not given by the Corporation but by the 23
Commissioner. There were no interviews. Nor were their names
recommended by the Employment Exchange.
21. The effect of such appointments on the claim for
regularization is another matter which I will deal with later. Suffice
it to note at this stage that the appointments were not in
accordance with the provisions of the B.P.M.C. Act.
Whether the appointments were made against
sanctioned posts.
22. In support of this contention, Mr.Pendse placed
considerable reliance upon the statement in the cross-
examination of the Corporation's witness that : "It is correct to say
that all the complainants are working on sanctioned posts".
23. The sentence must be read in the context of all the
facts, pleadings and the entire evidence and not in isolation.
When the appointments were made, the question of their being
appointed to the sanctioned posts did not even arise. The
Corporation sent the establishment personnel schedule for
sanction to the State Government only on 30.5.1997 and the same
was sanctioned thereafter on 9.12.1999. Thus when the said
employees were appointed i.e. before 9.12.1999, there were no
sanctioned posts, as the provisions of Section 51 had not even
been implemented. All that the cross-examination establishes is
that there were such sanctioned posts as of the date of his 24
evidence. That, however, does not ipso-facto entitle the
complainants to be made permanent in respect thereof. As stated
earlier, the Corporation has in fact denied even the existence of
such sanctioned posts.
24. The Complainants cannot therefore be said to have
been appointed against sanctioned posts.
Whether the complainants are entitled to the
benefits of permanency even if they were not appointed in
accordance with the provisions of the B.P.M.C. Act.
25. The next question is the effect of such appointments.
The complainants claimed a declaration that they are permanent
employees of the Corporation and for an order directing the
Corporation to confer upon them the status of permanency. This
case is based on the provisions of M.S.O. 4-C.
26. Section 15 of the I.E. Act confers power upon the
appropriate Government to make rules to carry out the purposes
of the Act. Sub-section 2(b) thereof provides that without
prejudice to the generality of this power, such rules may set out
Model Standing Orders for the purpose of the Act. Rule 3 of the
Bombay Industrial Employment (S.O.) Rules, 1959 provides that
the Model Standing Orders for the purposes of the I.E. Act, shall be
those set out in Schedule-I appended to the Rules. Clause 4-C of
Schedule-I reads thus :-
25
"4-C. A badli or temporary workman who has put in 190 days' uninterrupted service in the aggregate in any establishment of seasonal nature or 240 days "uninterrupted service" in the aggregate in any other establishment, during a period of preceding twelve calendar months, shall be made permanent in that establishment by order in writing signed by the Manager, or any person authorized in that behalf by the Manager, irrespective of whether or not his name is on the muster roll of the establishment throughout the period of the said twelve calendar months.
Explanation . - For purpose of this clause any period of interrupted service, caused by cessation of work which is not due to any fault of the workman concerned, shall not be counted for the purpose of computing 190 days or 240 days, or , as the case may be, for making a badli or temporary workman permanent."
27. It was contended on behalf of the complainants that
each of them had put in 240 days of uninterrupted service in the
aggregate as required by M.S.O. 4-C and that they were therefore
entitled to be made permanent in the Corporation.
I will assumed that the workmen met the requirement
under the M.S.O. 4-C of 240 days of uninterrupted service. The
question is whether in view thereof they are entitled to
permanency under M.S.O. 4-C despite the fact that their
appointments were not made in accordance with the B.P.M.C. Act.
28. Mr.Rao, in the first instance based his case opposing
this submission upon the judgment of the Constitution Bench of
the Supreme Court in Secy. State of Karnataka & ors. v. Umadevi, 26
(2006) 4 SCC 1. The Supreme Court held as under :-
4. But, sometimes this process is not adhered to and the constitutional scheme of public employment is bypassed. The Union, the States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commissions or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post. It has also led to persons who get employed, without the following of a regular procedure or even through the backdoor or on daily wages, approaching the courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the posts concerned. The courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called "litigious employment", has risen like a phoenix seriously impairing the constitutional scheme. Such orders are passed apparently in exercise of the wide powers under Article 226 of the Constitution. Whether the wide powers under Article 226 of the Constitution are intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognised by our
Constitution, has to be seriously pondered over. It is time, that the courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing 27
directions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance tends to defeat the very constitutional scheme of public employment. It has to be emphasised that this is not the role envisaged for the High Courts in the scheme of things and their wide powers under Article 226 of the Constitution are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten.
12. In spite of this scheme, there may be occasions when the sovereign State or its instrumentalities will have to employ persons, in posts which are temporary, on daily wages, as additional hands or taking them in without following the required procedure, to discharge the duties in respect of the posts that are sanctioned and that are required to be filled in terms of the relevant procedure established by the Constitution or for work in temporary posts or projects that are not needed permanently. This right of the Union or of the State Government cannot but be recognised and there is nothing in the Constitution which prohibits such engaging of persons temporarily or on daily wages, to meet the needs of the situation. But the fact that such engagements are resorted to, cannot be used to defeat the very scheme of public employment. Nor can a court say that the Union or the State Governments do not have the right to engage persons in various capacities for a duration or until the work in a particular project is completed. Once this right of the Government is recognised and the mandate of the constitutional requirement for public employment is respected, there cannot be much difficulty in coming to the conclusion that it is ordinarily not proper for the Courts whether acting under Article 226 of the Constitution or under Article 32 of the Constitution, to direct absorption in permanent 28
employment of those who have been engaged without following a due process of selection as envisaged by the constitutional scheme.
13. What is sought to be pitted against this approach, is the so-called equity arising out of giving of temporary employment or engagement on daily wages and the continuance of such persons in the engaged work for a certain length of time. Such considerations can have only a limited role to play, when every qualified citizen has a right to apply for appointment, the adoption of the concept of rule of law and the scheme of the Constitution for appointment to posts. It cannot also be forgotten that it is not the role of the courts to ignore, encourage or approve appointments made or engagements given
outside the constitutional scheme. In effect, orders based on such sentiments or approach would result in perpetuating illegalities and in the jettisoning of the scheme of public employment adopted by us while adopting the Constitution. The approving of such acts also results in depriving many of their opportunity to compete for public employment. We have, therefore, to consider the question objectively and based on the constitutional and statutory provisions. In this context, we have also to bear in mind the exposition of law by a Constitution Bench in State of Punjab v. Jagdip Singh. It was held therein: (SCR pp. 971-72)
"In our opinion where a government servant has no right to a post or to a particular status, though an authority under the Government acting beyond its competence had purported to give that person a status which it was not entitled to give he will not in law be deemed to have been validly appointed to the post or given the particular status."
43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order 29
upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. ................
45. While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, 30
is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain - not at arms length -- since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was 31
aware of the nature of the employment when he first took it up, is not (sic) one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution."
Mr.Rao submitted therefore that the appointments on
a permanent basis can be made by the Corporation only in terms
of and in accordance with the provisions of the B.P.M.C. Act and
not otherwise. The said appointments having been made contrary
to the provisions of the B.P.M.C. Act and in any event not in
accordance therewith are illegal, contrary to the constitutional
scheme made and therefore the complainants are not entitled to
the benefit of permanency in respect of the said posts or any
post.
29. Mr.Pendse, the learned counsel appearing on behalf of
the complainants and Ms.Gayatri Singh, the learned counsel
appearing on behalf of the Intervenors however submitted that
the judgment in Umadevi's case must be read subject to other
laws in force in India. They submitted that if the employee is
entitled to permanency under any other law in force, they cannot
be denied the same on the basis of the judgment of the Supreme
Court in Umadevi's case. They in fact submitted that Umadevi's
case does not derogate the statutory right conferred by or under 32
any other law. In this regard they relied upon the Model Standing
Order 4-C. According to them, if the circumstances, prescribed in
M.S.O. 4-C are satisfied, the employee would be entitled to the
benefit of permanency conferred thereby as a matter of course,
without anything more. Umadevi's case, they submitted, would
not bar relief under M.S.O. 4-C.
30. A workman does not have an absolute right of
permanency under M.S.O. 4-C irrespective of the nature of his
appointment. An employer is entitled to make temporary
appointments depending upon the exigencies of a situation. It
may be necessary for an employer to engage the workmen on a
temporary basis in view of its urgent requirements and till the
employer is able to make a regular employment in accordance
with the provisions of the Constitutional mandate. In these
circumstances, an employer may even relax the prescribed
qualifications if the urgent necessity justifies the same. It may be
necessary to appoint workers for a particular scheme. There
would be no right to permanency even under the Industrial
Disputes Act ("I.D. Act") in such a case. Nor would such employees
be entitled even to the benefits of section 25-F of the I.D. Act in
view of the provisions of Section 2(oo)(bb) of the I.D. Act. It would
be incongruous to hold that whereas a workman is not entitled
even to the benefit of Section 25-F of the I.D. Act in a case 33
covered by Section 2(oo)(bb), they would nevertheless be entitled
to permanency under M.S.O. 4-C.
31. There is however, no contradiction or conflict between
the provisions of the I.D. Act and the Model Standing Orders.
Where a person is appointed only under a scheme, the provisions
can be easily reconciled. The benefits of M.S.O. 4-C would apply
only in cases where the concerned person is duly qualified,
subject of course to the power to relax the stipulated
qualifications, was appointed in accordance with the rules and so
long as a permanent post exists. The right conferred by M.S.O. 4-C
is not absolute. M.S.O. 4-C does not operate either independently
or in derogation of all other laws. In fact it is the converse. This is
clear from M.S.O. 32 which reads as under :-
"Nothing contained in these Standing Orders shall operate in derogation of any law for the time being in force or to the prejudice of any right under a contract of service, custom or usage or an agreement, settlement or award applicable to the establishment."
32. Clause 32 is in two clearly distinct parts as follows :-
i). "Nothing contained in these Standing Orders shall operate in derogation of any law for the time being in force ,
ii) Nothing contained in these Standing Orders shall operate to the prejudice of any right under the contract of service, custom or usage or an agreement, settlement or award applicable to the establishment."
34
The first part provides that nothing contained in the
Standing Orders shall operate in derogation of any law for the
time being in force. The Standing Orders are thus, made subject
to the provisions of any law for being in force. The provisions of
the B.P.M.C. Act are therefore not affected by the Standing
Orders. To hold otherwise, would operate the Standing Orders in
derogation of the provisions of the B.P.M.C. Act, which is contrary
to the provisions of Clause 32.
Secondly, Clause 32 provides that nothing contained in
the Standing Orders shall operate to the prejudice of any right
under a contract of service, custom or usage or any agreement,
settlement or award applicable to the establishment. The two
parts have nothing to do with each other. The second part of
Clause 32 pertains to saving any benefit that a workman may be
entitled to under a contract of service, custom, or usage or an
agreement, settlement or award applicable to the establishment.
In other words, in the event of a workman being entitled to any
higher or better rights under a contract of service, agreement,
settlement etc. than that provided in the Standing Orders, the
Standing Orders shall not deprive the workman of the same.
33. The judgment of a learned single Judge of this Court
cited by Mr.Pendse in The Indian Tobacco Co. Ltd. v. The Industrial 35
Court & Ors. (1990) 1 CLR 88 is an authority only for the second
part of clause 32 and not the first. This is clear from paragraph 19
of the judgment relied upon by Mr.Pendse. What fell for the
consideration of the learned Judge was not the M.S.O. qua any
legislation but qua a contractual provision. The learned Judge did
not even observe that the M.S.O's. shall operate in derogation of
or contrary to an existing enactment. Paragraph 19 of the
judgment reads thus :-
19. Obviously, therefore, the contract of service entered into between the parties can also be well described as inconsistent with the Model Standing Orders and the Standing
Orders must prevail over the contract of employment. At this stage, it would be relevant even to refer to Standing Order No.32 of the Model Standing Orders on which reliance was also placed on behalf of the petitioner Company. It reads as follows :-
"S.O. No.32:- Nothing contained in
these Standing Orders shall
operate in derogation of any law
for the time being in force or to the
prejudice of any right under the
contract of service, custom or
usage or an agreement, settlement
or award applicable to the
establishment."
The provisions contained in the Standing Orders shall not operate to the prejudice of any right under the contract of service, custom or usage or agreement, settlement or award. The prohibition is hence cast against the operation of Standing Orders only when better rights acquired by an employee under the contract of service are likely to be prejudiced. In the 36
present case, it cannot be said that the contract of employment offers better rights to respondent No.2 in respect of period of probation in comparison to what is contained in Model Standing Order No.4-A. Therefore, it is not possible to accept the submission as canvassed on behalf of the petitioner that the contract of employment is saved by Model Standing Order No.32. Even otherwise, if any other interpretation is possible, which will affect or is inconsistent with Standing Order No.4-A as contained in the Model Standing Order, then such Standing Order like Standing Order No.32 is also invalid and incapable of being enforced for reasons stated in the decision of the Supreme Court in the case of Western India Match Company Limited (cited supra)."
34. I am also supported in this view by the judgment of a
Division Bench of this Court in Pune Municipal Corporation v.
Dhananjay Prabhakar Gokhale, (2006) 7, LJ Soft, page 107 =
(2006) 3 ALL MR, page 449. After referring to the judgment of the
Supreme Court, the Division Bench held in paragraphs 8 and 9 as
under :-
"8. It obviously shows that merely because an employee continued to render service for 240 days in a year, that by itself will not be sufficient for him to claim permanency in the post, unless he is able to establish that such a permanent post duly approved by the competent authority is vacant and the claimant is duly eligible for being appointed in such post. Mere completion of 240 days of service by itself is not a carte blanche to an employee to claim
permanency in the service of his employer. The law on this point is well-settled. No fault can be found with the contention sought to be raised on behalf of the appellants that the Industrial Court 37
as well as the learned single Judge erred in ignoring this well-settled law while holding that the appellants had indulged in unfair labour practice under Item No.6 of Schedule-IV of the said Act in relation to the respondent.
9. It is then sought to be contended that the Model Standing Orders clearly provide under Clause 4-C that the employees who have
completed 240 days of uninterrupted service would be entitled for permanency in service. Undisputedly, inspite of this Clause 4-C of the Model Standing Orders, the employees' Union of which the respondent was a member, had
entered into a settlement being settlement of September, 1989 and in terms thereof it was agreed that the claim of permanency would be available to the employees only on completion of continuous service of five years. It is also not in dispute that all other employees who have completed five years continuous service have been granted permanency in accordance with the settlement of September, 1989 as and when permanent vacant post duly approved by the competent authority had become available with the appellants. Besides, the Clause 4-C of the Model Standing Orders cannot be read disjunctively and ignoring the well-settled law repeatedly reiterated by the Apex Court in various decisions. Once it is settled principle of law that mere completion of 240 days in service, in the absence of availability of permanent vacant post duly approved by the competent authority, would not be sufficient to claim permanency, and at the same time one cannot ignore the lawful settlement of September, 1989, arrived at between the parties. Besides, the Clause 32 of the same Standing Orders clearly provides:
"Nothing contained in these Standing Orders shall operate in derogation of any law for the time being in force or to the prejudice of any right under a contract of service, custom or usage or an agreement, settlement or award applicable to 38
the establishment."
Once it is not in dispute that under the valid and lawful settlement of September, 1989, the employees had agreed with the appellants that their claim for permanency would be available only on completion of five years of continuous service and depending upon the availability of permanent vacant post duly approved by the Government, no claim under Clause 4-C of the Standing Orders ignoring the settlement arrived at can be entertained."
35. Mr.Pendse submitted that the judgment is per-
incuriam, as it did not consider the question as to whether the I.E.
Act and the Model Standing Orders would override the provisions
of the B.P.M.C. Act. I however, find no conflict between the two.
They can be reconciled. As I have already indicated, a worker
would be entitled to the benefit of M.S.O. 4-C if he fulfills the
conditions stipulated therein, provided however there exists a
sanctioned post, he is duly qualified and in the case of public
employment he is appointed in accordance with law. The
judgment may be per incuriam only to the extent of the finding in
paragraph 9 after the quotation of clause 32 of the MSO in view of
the judgment of the Supreme Court in Western India Match Co.
Ltd. vs. Workmen (1974) 3 SCC 330 as I will presently indicate.
However, the rest of the judgment is not affected thereby and
clearly supports the Corporation's case. 39
36. Mr.Pendse submitted that the judgment is per-
incuriam also for the reason that it did not consider the judgment
of the Supreme Court in Western India Match Co. Ltd. v. Workmen,
(1974) 3 SCC 330.
This judgment of the Supreme Court is of no
assistance to the workmen as it dealt with a case entirely different
from the ones before me. In that case, the workman's letter of
appointment stated, he would be on probation for a period of six
months. He however, continued to serve on his post as a
watchman even after the expiry of this period. Thereafter the
Company discharged him for the reason that his services were no
longer required by the Company. The Union contended that his
employment on probation for six months was in contravention of
the Standing Order which provided a two month probation period
and that he automatically became a permanent workman on the
expiry of two months. According to the Standing Order, the
workman was not to be kept on probation for more than two
months. If he had worked during these two months to the
satisfaction of the Company, he became permanent. Thus, as
observed by the Supreme Court, the Standing Orders stated
"confirm him on the expiry of two months", whereas the
agreement stated, "no, wait till the expiry of six months." There
was thus a conflict between the agreement and the Standing 40
odder. The Supreme Court held that the two could not co-exist
and that the agreement was inconsistent with the Standing Order
to the extent of an additional four months probation. The Supreme
Court held that the terms of the employment specified in the
Standing order would prevail over the corresponding terms in the
contract of service in existence on the date of the enforcement of
the Standing order. It was however, held that while the Standing
orders were in force, it would not be permissible to the employer
to seek statutory modification of them so that there may be one
set of Standing Orders for some employees and another set for
the rest of the employees. The Supreme Court therefore, held that
the Standing Orders will prevail over the provisions of an
agreement inconsistent with the Standing Orders. The Supreme
Court did not consider the effect of the Standing Orders qua any
legislative enactment.
In view thereof, it cannot be held that the workman is
entitled to benefit of permanency under M.S.O. 4-C contrary to or
in derogation of the provisions of the B.P.M.C. Act.
37. Having said that, the judgment in Pune Municipal
Corporation vs. Dhananjay Prabhakar Gokhale appears to be per
incuriam to the extent of the last portion in paragraph 9 after
clause 32 of the MSO is set out in view of the judgment of the
Supreme Court in Western India Match Co. Ltd. The Division 41
Bench held that in view of the Settlement of September, 1989
between the employees and the appellants the claim for
permanency could only be on completion of five years of
continued service and in accordance with clause 4-C of the
Standing Orders. The judgment of the Supreme Court in Western
India Match Co. Ltd., however, makes it clear that in the event of
there being a conflict between the provisions of the Standing
Orders and any agreement, the provisions of the Standing Orders
would prevail. The attention of the Division Bench was not invited
to the judgment of the Supreme Court. However, as I have
already noted, the rest of the judgment in Pune Municipal
Corporation vs. Dhananjay Prabhakar Gokhale is good law and is
not affected by the judgment in Western India Match Co. Ltd.
38. In Oil and Natural Gas Ltd. v. Eng. Doorman Sang,
(2007) 1 SCC, 250, the O.N.G.C. carried out certain surveys for
exploration of petroleum. The work was seasonal, confined to only
a part of the year. On the commencement of the season, the
O.N.G.C. recruited the workmen for specific periods and
terminated their services at the end of the season. The practice
had continued since inception. The Union raised an industrial
dispute demanding regularization of such workmen. The Tribunal
came to a finding that only a temporary workman who had put in
not less than 240 days of attendance in a period of twelve 42
consecutive months was entitled to be considered for conversion
as a regular employee. The Tribunal observed that keeping
workmen on casual/badli or temporary basis over long spells of
time amounts to unfair labour practice and observed that there
had to be some scheme for regularizing such workmen. The
Tribunal took recourse to the Certified Standing Orders which
governed the parties. Rule 2 thereof provided inter-alia that a
temporary workman who had been on the rolls of the O.N.G.C.,
who had put in not less than 240 days of attendance in any period
of twelve consecutive months and who possessed the minimum
qualifications prescribed by the Commission, may be considered
for conversion as a regular employee.
The O.N.G.C. challenged the order before the Gujarat
High Court. The High Court observed that though regularization
could not be effected in the absence of availability of permanent
posts, the availability of a permanent post is a fortuitous
circumstance and consequential confirmation is, therefore,
uncertain, but that there was no ban against treating a person to
be regular even if a permanent post was not available. Directions
were therefore issued modifying the order of the Tribunal inter-
alia by providing that the relief granted would also be available to
all the employees who fulfilled the requirements of completion of
240 days or more and that such employees should be considered 43
on par with regular employees for the benefits. This relief was
granted even without waiting for the availability of vacancies to
regular posts. The Division Bench further directed that the said
workmen should be notionally treated as regularized. The
Supreme Court held as under :-
"14. We have carefully considered the submissions made on behalf of the respective parties and we are unable to agree with the reasoning both of the learned Single Judge as well as the Division Bench of the High Court in firstly directing that the 153 workmen concerned be treated on a par with regular employees as far as all benefits are concerned, except for being given permanent status and the subsequent direction of the Division Bench directing that they be treated as having been notionally regularised with effect from 1-5-1999. Having regard to the nature of employment and the period during which these field workers are employed, it would create various difficulties if the seasonal workmen were to be treated on a par with regular employees as directed by the learned Single Judge. It would be even more difficult for the appellant to adjust the workmen in permanent employment when the need for them was only seasonal. Admittedly, these workmen who are employed for field survey work are employed for about six months in a year between November and May. If at all they are to be regularised, the appellant will have to find work for them during the months when their services would otherwise have not been required. As pointed out by Mr Salve, previously the appellant had monopolistic control over geological survey work for oil and natural gas but today the scene has changed and it is just another competitor along with others, notwithstanding the fact that they are a government company. The appellant is now required to compete with others in securing exploration work and can only recruit field workers as and when required. Even then the 44
learned Tribunal found a via media in directing that the 153 workmen who had admittedly completed 240 days and had acquired a
temporary status be regularised against vacancies as and when such vacancies became available. "
These observations assist the Corporation's case.
Thereafter the Supreme Court passed the following directions :-
"15. We are of the view that the directions given by the learned Tribunal are reasonable and should be allowed to stand as against the directions given by the High Court, firstly to treat the said 153 workmen on a par with the regular employees and thereafter to treat their services as having been notionally regularised from 1-5-1999. We can, of course, add a few further safeguards in order to protect the interests of the said 153 workmen so that they are assured of employment as before.
16. We, accordingly, dispose of this appeal by setting aside the judgments and orders of both the learned Single Judge and the Division Bench of the High Court and restoring the judgment and order passed by the Tribunal. We, however, add that till such time as these 153 workmen are not absorbed against regular vacancies in the category concerned no
recruitment from outside will be made by the appellant. Furthermore, even in matters of seasonal employment, the said 153 workmen or the Nos. that remain after regularisation from time to time, shall be first considered for employment before any other workmen are engaged for the same type of work in the field. The appellant should make a serious attempt to regularise the services of the workmen concerned, in terms of the order passed by the Tribunal, as quickly as possible, but preferably within a period of two years from the date of this order. There will be no order as to costs." 45
These directions passed by the Supreme Court do not
deal with the questions that arise in the present Writ Petitions.
39. Mr.Rao relied upon the judgment of a Division Bench
of this Court in State of Maharashtra and Anr. v. Pandurang
Sitaram Jadhav, (2008) 10 LJ Soft, 53 = (2008) 3 LLJ 963. The
Respondents in this appeal were appointed as daily wagers and
had been in service for various periods ranging from twelve to
twenty years. They filed a complaint under Items 5, 6 and 9 of
Schedule-IV of the M.R.T.U. & P.U.L.P. Act, 1971, alleging that they
had not been granted permanency with an object to deprive them
of the benefits of permanency which constituted unfair labour
practices. The employees claimed permanency on account of their
having put in 240 days of service in the preceding years. One of
the contentions raised on behalf of the Appellants was that the
Model Standing Orders are subject to the constitutional scheme of
public employment. It was submitted that the Respondents had
no legal right to the post as they could not be deemed to have
held any post in view of their having been appointed without
undergoing a selection process. The Division Bench formulated
the following issues :-
"9. Before we proceed to deal with the submissions made by the learned counsel for the respective parties, it would be appropriate to formulate the legal issues that emerge for consideration:
46
a) Whether the Constitutional scheme of public employment contained in Articles 14, 16 and the rules framed under Article 309 of Constitution of India regulate the appointments in the Government Milk Scheme? and if yes, what is the effect of non-compliance thereof on the appointments of the respondents ?
b) Whether the provisions of the Model Standing Orders, which regulate the terms and conditions of service are subject to the Rules regulating the selection and appointment contained in the scheme of "Public Employment"?
c) Whether "Daily Wagers" have any legal right to claim permanency more so in the absence of `sanctioned vacant post' in the establishment ?"
The Division Bench relying upon various judgments of
the Supreme Court, held that a daily wager does not hold the post
or derive any legal right in relation thereto unless he is appointed
against the duly sanctioned vacant post and upon following the
statutory law operating in the field. It was further held that if the
appointment is made in contravention of either of the two
requirements, such appointment would be void and such
appointment does not confer any legal right on the appointee.
Referring to the judgments of the Supreme Court in M.P. Housing
Board and Anr. v. Manoj Shrivastava, (2006) 2 SCC 702, and
Mahendra L. Jain & Ors. v. Indore Development Authority & Ors, 47
(2005) 1 SCC 639, it was held that the Standing Orders governing
the terms and conditions of service must be read subject to the
constitutional limitations wherever applicable and that if the
provisions are not followed, no permanency can be granted. The
Division Bench held :-
"14. The next judgment on which reliance is placed by the learned AGP is in the case of M.P. State Agro Industries Development Corpn.Ltd. & anr. Vs. S.C. Pandey reported in 2006 (2) SCC
716. This judgment reiterates that completion of 240 days continuance service does not by itself confer any legal right for permanency. It is also considered in the said judgment that if two statues are governing the employment, one dealing with selection and appointment and the other relating to the terms and conditions of service, an endeavour should be made to give effect to both the statutes. However, it is clarified that daily wager does not hold any post as he is not appointed in terms of the provisions of the Act and the Rules framed thereunder and in that view of the matter, he does not derive any legal right. The Supreme Court has held in paragraphs 17, 18 and 22 thus:
"17. The question raised in this appeal is now covered by a decision of this Court in M.P. Housing Board V. Manoj Shrivastava wherein this court clearly opined that : (1) when the conditions of service are governed by two statutes: one relating to selection and appointment and the other relating to the terms and conditions of service, an endeavour should be made to give effect to both of the statutes: (2) A daily wager does not hold a post as he is not appointed in terms of the provisions of the Act and the Rules framed thereunder and in that view of the matter he does not derive any legal right : (3) only because an employee had been working for more 48
than 240 days that by itself would not confer any legal right upon him to be regularised in service; (4) if an appointment has been made contrary to the provisions of the statute the same would be void and the effect thereof would be that no legal right was derived by the employee by reason thereof."
"18. The said decision applies with all force to the facts of this case. In Mahendra L. Jain this court has categorically held that the Standing Orders governing the terms and conditions of service must be read subject to the constitutional and statutory limitations for the purpose of appointment both as a permanent employee or as a temporary employee. An appointment to the post of a temporary employee can be made where the work is essentially of temporary nature. In a case where there existed a vacancy, the same was required to be filled up by resorting to the procedures known to law i.e. Upon fulfilling the constitutional requirements as also the provisions contained in the 1976 Regulations. No finding of fact has been arrived at that before the respondent was appointed, the constitutional and statutory requirements were complied with."
"22. Such appointments in our opinion, having regard to the decisions in Mahendra L. Jain and Manoj Shrivastava must be made in
accordance with extent rules and regulations. It is also a well settled legal position that only because a temporary employee has completed 240 days of work, he would not be entitled to be regularised in service. Otherwise also the legal position in this behalf is clear as would appear from the decision of this Court in Dhampur Sugar Mills Ltd. Vs. Bhola Singh apart from Mahendra L. Jain."
Placing reliance on the Supreme Court judgments referred to herein above, the learned counsel for the Appellant has contended that the Respondent's complaint filed before the Industrial Court is conspicuously silent in regard to the 49
mode and manner of appointment. It is pointed out that the Respondents did not even aver much less establish that they were appointed in conformity with the prescribed procedure after undergoing a process of selection. This aspect of the matter has neither been considered by the Industrial Court nor the learned Single Judge. According to the Appellant, daily wagers are never appointed by following the prescribed procedure.
17. Reverting back to the facts in the present case, it is crystal clear that there are no sanctioned posts and vacancies in existence in the petitioner's concerned department. Hence the claim for permanency could not have been granted by the Industrial Court. By observing that sanction for the posts could be asked for and obtained from the State by the authority concerned clearly indicate absence of sanctioned vacant posts. No finding has been recorded either by the Industrial Court or by the Learned Single Judge that the respondents were appointed in adherence to the rules regulating appointment. The Respondents did not even claim that they were appointed in adherence to the procedure prescribed for appointments. From the very nature of appointment as 'daily wagers', it is obvious that the respondents have not been appointed in compliance of the procedure prescribed for making the appointments. As the respondents have failed to demonstrate that their appointments were made in accordance with the procedure prescribed for selection and appointment and as they have further failed to establish that there exists sanctioned vacant posts, it would be wholly unjust to direct the appellants to grant permanency to the respondents.
The learned Single Judge has concluded the issue by placing reliance on the Model Standing Orders which regulates the terms and conditions of service in the matter of grant of permanency on 50
completion of 240 days of service without dealing with the effect of non availability of sanctioned posts and the requisite vacancies. In our considered view, the order passed by the learned Single Judge cannot be sustained. Provisions of Model Standing Order by themselves cannot and does not confer any right of permanency unless and until the other two prerequisites are satisfied i.e. (1) appointment being in conformity with the rules relating to appointment and (2) permanent sanctioned vacant posts being in existence.
18. In the above premise, we conclude that the Appellant State is obliged to make appointments in adherence to the constitutional scheme of Public employment which regulate the appointments in the Government's Milk Scheme. We also hold that as the Respondents/'Daily Wagers' were appointed without following the prescribed procedure for selection by passing public participation, they do not acquire any legal right to claim permanency. We also hold that the provisions of Model Standing Orders are subject to the Rules regulating selection and appointment so also subject to the constitutional scheme of public employment."
The judgment supports Mr. Rao's submissions. The
provisions of the B.P.M.C. Act and in particular Sections 51 to 54
were not followed while appointing the workmen. The
appointments were not against sanctioned posts. In view of the
judgment of the Division Bench and the judgments referred to
therein, the claim for permanency cannot be granted.
40. Mr.Pendse however, submitted that the judgment of
the Division Bench and the judgments of the Supreme Court 51
referred to therein are not good law and are per-incuriam as they
failed to consider the judgment of the Supreme Court in U.P. State
Electricity Board v. Harishankar Jain, (1978) 2 LLJ 399.
41. The submission is not well founded. The question
which arises in the present case and which arose before the
Division Bench did not arise for the consideration of the Supreme
Court in U.P. State Electricity Board v. Harishankar Jain. In that
case the Respondent was originally employed by partners who
were licensees for the distribution of electricity under the Indian
Electricity Act, 1910. There were certified standing orders for this
industrial establishment which did not prescribe any age of
superannuation. The electricity undertaking of the firm was
purchased by the Appellant under the Electricity (Supply) Act,
1948, as a result whereof the workmen became the employees of
the U.P.S.E.B. It was conceded that the Standing Orders as
applicable to the said firm continued to apply to the U.P.S.E.B. The
U.P.S.E.B. itself did not get certified any Standing Orders.
Thereafter the Governor of U.P. notified under Section 13-B of
the I.E. Act a regulation under Section 79(c) of the Electricity
(Supply) Act, 1948 fixing the age of superannuation at 55 years.
Thus whereas the Standing Orders fixed no age of
superannuation by virtue of which it was contended that the
workmen could continue to work as long as they were fit and able 52
to discharge their duties, the notification fixed the age of
superannuation at 55 years. The Supreme Court held that the I.E.
Act is a special law in regard to the matters enumerated in the
Schedule and regulations made by the Electricity Board with
respect to any of those matters are of no effect unless such
regulations are either notified by the Government under Section
13-B or certified under the I.E. Act.
42. The judgment is not relevant in this case. There is no
conflict between the provisions of the B.P.M.C. Act and M.S.O. 4-C.
M.S.O. 4-C does not stipulate the provisions for recruitment.
M.S.O. 4-C, as held above, does not operate in derogation of any
other law.
43. In Mahendra L. Jain v. Indore Development Authority
and others, (2005) 1 SCC 639, the Petitioners having come to
learn of the existence of the vacancies in the Respondent, applied
although no advertisement was issued. They were appointed and
posted to an overseas project implemented through the Overseas
Development Authority on daily wages. The Respondent deducted
the provident fund and also granted them benefit of leave. As
their services were not being regularized, they raised an industrial
dispute which was referred for adjudication to the Labour Court. It
was contended on behalf of the Petitioners that as the vacancies
were available and as the Petitioners had worked for more than 53
six months, they became permanent employees in terms of the
Madhya Pradesh Industrial Employment (Standing Orders) Act,
1961 and the rules framed thereunder known as the M.P.
Industrial Employment (Standing Orders) Rules, 1963. Clause 2(4)
of the Standard Standing Orders provided that in case a
temporary employee is required to work continuously for more
than six months, he shall be deemed to be a permanent
employee within the meaning of that term in clause 1 thereof. The
Respondent had been constituted under the Madhya Pradesh
Nagar Tatha Gram Nivesh Adhiniyam, 1973. Section 47 thereof,
provides that all the appointments to the posts of officers and
servants, specified therein which included the Petitioners' posts,
must be made by the State Government and the appointments to
the posts of officers and servants included in the local cadre in the
said services by the Town and Country Development Authority
concerned. The proviso to Section 47 mandates that no posts shall
be created by any authority without the prior sanction of the State
Government.
The Supreme Court held as under :-
"18. The posts of Sub-Engineers in which the appellants were appointed, it is nobody's case, were sanctioned ones. Concededly, the respondent Authority before making any appointment neither intimated the employment exchange about the existing vacancies, if any, nor issued any advertisement in relation thereto. 54
Indisputably, the conditions precedent for appointment of the officers and servants of the Authority, as contained in the Service Rules had not been complied with. The appointments of the appellants were, therefore, void ab initio being opposed to public policy as also violative of Articles 14 and 16 of the Constitution.
27. No notification has been brought to our notice that the Standard Standing Orders had been made applicable to the appellants. It is furthermore not in dispute that the Adhiniyam came into force in 1973. The statute, rules and regulations framed by the State govern the terms and conditions of service of the employees of the respondent. The terms and conditions of service contained in the 1973 Act and the 1987 Rules are not in derogation of the provisions contained in the Schedule appended to the 1961 Act.
28. The 1961 Act provides for classification of employees in five categories. The 1973 Act, as noticed hereinbefore, clearly mandates that all posts should be sanctioned by the State Government and all appointments to the said cadre must be made by the State Government alone. Even the appointments to the local cadre must be made by the Authority. The said provisions were not complied with. It is accepted that no appointment letter was issued in favour of the appellants. Had the appointments of the appellants been made in terms of the provisions of the Adhiniyam and the Rules framed
thereunder, the respondent Authority was statutorily enjoined to make an offer of appointment in writing which was to be accepted by the appellants herein. Who made the
appointments of the appellants to the project or other works carried on by the Authority is not known. Whether the person making an appointment had the requisite jurisdiction or not is also not clear. We have noticed hereinbefore that in the case of Om Prakash Mondloi, the CEO made an endorsement to the effect that he may be tried in daily wages and should be entrusted with the work of progress collection of ODA work. 55
The said order is not an "offer of appointment" by any sense of the term.
33. For the purpose of this matter, we would proceed on the basis that the 1961 Act is a special statute vis-à-vis the 1973 Act and the Rules framed thereunder. But in the absence of any conflict in the provisions of the said Act, the conditions of service including those relating to recruitment as provided for in the 1973 Act and the 1987 Rules would apply. If by reason of the latter, the appointment is invalid, the same cannot be validated by taking recourse to regularisation. For the purpose of regularisation which would confer on the employee concerned a permanent status, there must exist a post. However, we may hasten to add that
regularisation itself does not imply permanency. We have used the term keeping in view the provisions of the 1963 Rules."
44. The position is similar in the present case. There is no
conflict between the provisions of M.S.O. 4-C and the provisions of
the B.P.M.C. Act. The B.P.M.C. Act regulates the mode of
appointment only. In the event of the appointment having been
made validly would the provisions of M.S.O. 4-C apply. A view to
the contrary would result in regularizing/validating a void act.
M.S.O. 4-C neither permits nor contemplates the same. As held
in the above judgments, if the appointment is not made in
accordance with the constitutional scheme it is void ab-initio and,
therefore, there can be no claim to regularization in any manner.
Moreover M.S.O. 32 expressly provides that the Standing Orders
are not in derogation of any other law. 56
45. In M.P. Housing Board and another v. Manoj
Shrivastava, (2006) 2 SCC 702, the Supreme Court held as
under :-
"8. A person with a view to obtain the status of a "permanent employee" must be appointed in terms of the statutory rules. It is not the case of the respondent that he was appointed against a vacant post which was duly sanctioned by the statutory authority or his appointment was made upon following the statutory law operating in the field.
9. The Labour Court unfortunately did not advert to the said question and proceeded to pass its award on the premise that as the respondent had worked for more than six months satisfactorily in terms of clause 2(vi) of the Standard Standing Orders, he acquired the right of becoming permanent. For arriving at the said conclusion, the Labour Court relied only upon the oral statement made by the respondent.
15. A daily-wager does not hold a post unless he is appointed in terms of the Act and the Rules framed thereunder. He does not derive any legal right in relation thereto.
17. It is now well settled that only because a person had been working for more than 240 days, he does not derive any legal right to be regularised in service. (See Madhyamik Shiksha Parishad, U.P. v. Anil Kumar Mishra; Executive Engineer, ZP Engineering Divn. v. Digambara Rao; Dhampur Sugar Mills Ltd. v. Bhola Singh; Manager, Reserve Bank of India v. S. Mani and Neeraj Awasthi.)"
46. In Mahatma Phule Agricultural University and others v.
Nasik Zilla Sheth Kamgar Union and others, (2001) 7 SCC 346, the
Supreme Court held in paragraphs 13 and 14 as under :- 57
"13. To be seen that, in the impugned judgment, the High Court notes that, as per the law laid down by this Court, status of permanency could not be granted. In spite of this the High Court indirectly does what it could not do directly. The High Court, without granting the status of permanency, grants wages and other benefits applicable to permanent employees on the specious reasoning that inaction on the part of the Government in not creating posts amounted to unfair labour practice under Item 6 of Schedule IV of the MRTU & PULP Act. In so doing the High Court erroneously ignores the fact that approximately 2000 workmen had not even made a claim for permanency before it. Their claim for permanency had been rejected by the award dated 20-2-1985. These workmen were only seeking quantification of amounts as per this award. The challenge, before the High Court, was only to the quantification of the amounts. Yet by this sweeping order the High Court grants, even to these workmen, the wages and benefits payable to other permanent workmen.
14. Further, Item 6 of Schedule IV of the MRTU & PULP Act reads as follows:
"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."
The complaint was against the Universities. The High Court notes that as there were no posts the employees could not be made permanent. Once it comes to the conclusion that for lack of posts the employees could not be made permanent, how could it then go on to hold that they were continued as "badlis", casuals or temporaries with the object of depriving them of the status and privileges of permanent employees? To be noted 58
that the complaint was not against the State Government. The complaint was against the Universities. The inaction on the part of the State Government to create posts would not mean that an unfair labour practice had been committed by the Universities. The reasoning given by the High Court to conclude that the case was squarely covered by Item 6 of Schedule IV of the MRTU & PULP Act cannot be sustained at all and the impugned judgment has to be and is set aside. It is however clarified that the High Court was right in concluding that, as per the law laid down by this Court, status of permanency could not be granted. Thus all orders wherein permanency has been granted (except award dated 1-4-1985 in IT No. 27 of 1984) also stand set aside."
47. These judgments clearly support Mr.Rao's submissions
as in the present case also the statutory scheme was not followed
in making the appointments. The appointments were only on a
temporary basis. There were no sanctioned posts to which the
appointments were made.
48. Mr.Pendse's reliance upon the judgment of a learned
single Judge in Pyarelal v. Municipal Council, Ramtek and another,
(1992) 1 CLR 327,is not well founded. Mr.Pendse relied upon the
judgment in support of his submission that between the Municipal
Law and Industrial Law, it is the Industrial Law, which has to be
treated as a special law and therefore, must prevail over the
general law namely the Municipal Law.
In that case, the validity of the Petitioner's 59
appointment on a temporary basis for three months was not
disputed. He was appointed on 13.12.1994 on a temporary basis.
The Petitioner had joined the services of Respondent No.1 as a
Safai Mazdoor (Sweeper) in the year 1969. By the end of 1984, the
post of Safai Jamadar fell vacant and the Petitioner was appointed
to that post by an order dated 13.12.1984 for the period of three
months on an experimental basis. It was clarified that if his
services were found satisfactory, he would be deemed to be fit
for the post of Safai Jamadar and he would be paid the salary
accordingly. There were no complaints about him. He was
reverted by an order dated 30.7.1984. The Petitioner challenged
the order by filing a Complaint under Items 5, 7 and 9 of Schedule-
IV of M.R.T.U. & P.U.L.P. Act. The learned Judge found that there
were no complaints whatsoever about his working. There was a
resolution passed by the Standing Committee after seven months
of his appointment expressing a view that a Safai Jamadar should
be a matriculate. The Petitioner was governed by the Model
Standing Order, wherein the period of probation was three
months. The learned Judge held that he ought to have been made
permanent after having completed that period satisfactorily. It
was contended on behalf of the Respondent that the municipal
employee was governed by the Municipal Laws wherein the
probation period was of two years. It is in this context that the 60
learned Judge held that as between the Municipal Law and the
Industrial Law regarding conditions of service, it is the Industrial
Law which has to be treated as a special Law.
There was a clear conflict between the provisions of
the Standing Orders applicable in that case and the Municipal
Laws. In the above Writ Petitions, there is no conflict - whereas
the B.P.M.C. Act stipulates the conditions of appointment, M.S.O.
4-C stipulates the circumstances in which an employee is entitled
to be made permanent. Moreover that, as I have held, must be in
cases where the initial appointment is not void. There was no
dispute in that case about the validity of the Petitioner's
appointment. It was not contended that his appointment was
illegal and not in accordance with the Rules as in the above Writ
Petitions. The question that arises for consideration in the present
Writ Petition did not arise in that case.
49. Mr.Pendse's reliance upon the judgment in Divisional
Forest Officer v. Madhukar Ramji Undirwade & Ors. , (1995) 2 CLR
292 = (1995) 1 LJSOFT 63 of a learned single Judge of this Court is
not only of no assistance to the workmen but in fact supports the
Petitioners' case. Mr.Pendse relied upon this case in respect of
his contention that the I.E. Act is a special enactment whereas the
B.P.M.C. Act is a general act and that therefore the latter must
yield to the former. Mr.Pendse relied upon only paragraph 10 of 61
the judgment. It is, however, necessary to examine the facts of
the case and the judgment as a whole.
The Respondents - employees were appointed as
candidates recommended by the Employment Exchange and they
were employed on being found fit for the post of forest guards. It
was contended that by causing artificial breaks in the services and
not employing them continuously, the Petitioner had committed
unfair labour practices. The Petitioner on the other hand
contended that upon the expiry of the period of appointment, the
same automatically stood discontinued. It was thus contended
that the employee had not been working continuously. The
Petitioner contended that the work was of a temporary nature and
that the appointment orders of a period of one month every year
was made during the period from 1983 to 1987. However,
thereafter, the practice had been stopped in view of certain
Government orders. It was further contended on behalf of the
Petitioner that the appointment to the post of forest guard could
only be made by the Divisional Forest Officer on the
recommendations of the Regional Sub-ordinate Selection Board,
pursuant to a Government Resolution dated 9.2.1988.
Government Resolution dated 9.2.1988 had been made effective
from 16.12.1988. It was further contended that in exercise of
powers under Article 309 of the Constitution of India, the Governor 62
of Maharashtra made rules regulating the recruitment inter-alia
to the said post called the Officer, Forest Guard, Rank - Superior,
Supervisor, Head Clerk, Account and Clerk-cum-Typist
(Recruitment) Rules, 1987 and that in view thereof the
Respondents could not be made permanent as they were not
eligible for the same thereunder.
The learned Judge rejected the above contentions in
view of the fact that the Respondents had been appointed in the
years 1983 - 1984 and had completed 240 days of uninterrupted
service thereafter. The learned Judge held that there was
therefore, no merit in the contention that the Respondents were
not entitled to be appointed to the said post in view of the G.R.
Dated 9.2.1988 which came into effect thereafter. The learned
Judge held that on the date of the Respondents' appointment,
there was no such G.R. making it incumbent that the appointment
to the post could only be made after the selection recommended
by the Selection Board. It is important to note that it was
expressly held that the G.R. Dated 9.2.1988 "would only be
applicable to the appointments to be made on or after 16.2.1988
when the same was brought into force." It is important to note the
following observations of the learned Judge :-
"15. In view of the aforesaid facts that the complainants-employees were appointed initially in the years 1983-84, though temporarily and had 63
completed 240 days of uninterrupted service after their names were sent by the Employment Exchange and they continued to work as Forest Guards on the date of filing the complaints dated 16-12-1987, there is no merit in the contention of the learned Counsel for the employer that the Forest Guards (Class III posts) as per the Government Resolution dated 9-2-1988, effective from 16-2-1988, the appointment on regular post of Forest Guard could only be made after they have been selected and recommended by the Selection Board. Admittedly, at the time when the complainants-employees were initially appointed in the year 1983 and 1984, there was no such Government Resolution making it incumbent that appointment on the post of Forest Guard could only be made after selection and recommendation by the Selection Board. The Government Resolution dated 9-2-1988 effective from 16-2-1988 would only be applicable to the appointments to be made on or after 16-2-1988 when the said Government resolution dated 9-2-1988 was brought into force. Selection and recommendation by the Selection Board pursuant to the Government Resolution dated 9-2-1988 effective from 16-2-1988 would apply in the matter of appointment of a fresh candidate and not to the persons who have already been appointed. For making appointment of Forest Guard which is a Class-III post, after 16-2-1988, selections and recommendations of the Selection Board would be needed, but the Forest Guards who have already been appointed much earlier to coming into force of the Government Resolution dated 9-2-1988, effective from 16-2-1988, for the purposes of making them permanent, selection and recommendation of the Selection Board under the said Government Resolution is not at all required. The Government Resolution dated 9-2-1988 effective from 16-2-1988, therefore, cannot be applied to the present complainants- employees who were appointed much earlier to the coming into force of the said Government Resolution.
64
28. Even otherwise, the Forest Guard Recruitment Rules, 1987 have no application in the facts and circumstances of the present case. These Rules have been made to regulate
recruitment to the various posts in the Forest Department including the post of Forest Guard. Rules Regulating recruitment to the post of Forest Guard cannot be equated with rules governing the right of permanency claimed by a Forest Guard already appointed, though temporarily. Recruitment to the post of Forest Guard cannot be said to be a mode of making already
appointed forest guard permanent. The employees who had already been appointed as Forest Guards many years before making of Forest Guard Recruitment Rules, 1987, though their appointments were made on temporary basis, their claim of permanency would neither be governed by these Rules of 1987 nor these Rules provide for any mode of making permanent the Forest Guards who were employed on temporary basis much earlier to coming into force of these Rules. These Rules came to be published in the Official Gazette on 29-10-1987 and Rule 4 of the said Rules provides that the appointment to the post of Forest Guard in the Forest Department shall be made by nomination from amongst candidates who qualify eligibility prescribed in the said Rule. Sub-section (ii) of section 4 provides the eligibility for promotion to the post of Forester from amongst Forest Guards and Rule 10
provides that a person appointed by way of nomination under Rule 4, shall be required to pass examination in Hindi and Marathi according to rules made in that behalf unless he has already passed or is exempted from passing these examinations. Thus, after coming into force of these Rules, the appointment to the post of Forest Guard could only be made in conformity with the Forest Guard Recruitment Rules, 1987, but the said rules do not apply so far as claim of those Forest Guards is concerned who have been claiming permanency on the post of Forest Guard 65
having completed 240 days in the preceding 12 months uninterruptedly and continuously. The Forest Guard Recruitment Rules, 1987, therefore, have no application to the claim of the complainants-employees seeking permanency under Clause 4-C of the Model Standing Orders as amended in the year 1977. Even the sole witness produced by the employer, in his deposition before the Industrial Court, has admitted that those employees who were already working as Forest Guards, need not comply with the physical standard and/or required prescribed qualification for making them permanent. That was the reason that before the Industrial Court no arguments were advanced about the applicability of the Forest Guards Recruitment Rules, 1987. Even in the memo of all the writ petitions, no such ground has been set up and for the first time during the course of arguments, the learned Counsel for the employer raised argument that on coming into force of the Forest Guard Recruitment Rules, 1987 the employees could be recruited under the rules and cannot be made permanent otherwise and for the reasons stated above, the said argument has no merit and deserves to be negatived."
Thus, the facts of the case were entirely different from the facts in
the above Writ Petitions. The provisions of the B.P.M.C. Act were
applicable before the said workers were appointed. Further
M.S.O. 4-C does not deal with the recruitment of an employee but
confers upon an employee already recruited/employed, a right of
permanency upon the conditions therein being satisfied. There is
therefore, no conflict between the B.P.M.C. Act and the Model
Standing Orders. In the above case, there was a clear conflict 66
between the Government Resolution and the Rules on the one
hand and M.S.O. 4-C on the other. The present case does not
involve an operation of any rules as contemplated under Section
13-B of the I.E. Act. The provisions of the B.P.M.C. Act are
expressly saved and are applicable in view of M.S.O. 32.
50. Mr.Pendse relied upon the judgment of the Supreme
Court in Chief Conservator of Forests and Anr. v. Jagannath Maruti
Kondhare and others, 1996 SCC (L & S) 500, in support of his
contention that once the ingredients of M.S.O. 4-C are satisfied in
respect of a person employed in a sanctioned post, nothing more
is required to entitle him to the benefit of permanency. The
judgment does not support the submission.
Firstly, it does not deal with a situation where the
initial appointment is itself illegal. Secondly, it is clear from the
judgment that whether there has been any unfair labour practice,
is a question of fact to be determined in each case. There is
nothing in the judgment which indicates that the mere existence
of the ingredients of M.S.O. 4-C necessarily results in an employee
getting the benefit of permanency to the post even if it is a
sanctioned post.
51. In support of this proposition, Mr.Pendse also relied
upon the judgment of the Supreme Court in Mineral Exploration
Corporation Employees' Union v. Mineral Exploration Corporation 67
Ltd. And another, 2006 (6) SCC 310. The Supreme Court found
that the employees had been doing the work of a permanent
nature and that they were required to do work which was being
done by the skilled employees. It was further found that there was
sufficient work for them; that the Respondents transferred the
employees from one project to another and also granted them
certain benefits such as T.A., D.A. etc. Mr. Pendse placed
considerable reliance upon a sentence in paragraph 35, where the
Supreme Court observed that once the employee completes 240
days, he is deemed to be a permanent employee. It would be
incorrect to read the sentence by itself. It must be read in the
context of the entire judgment. The judgment so read does not
support the absolute proposition advanced by Mr.Pendse to the
effect that once the ingredients of M.S.O. 4-C are present
permanency follows. Apart from the above findings, the Supreme
Court also found that it was the usual practice of the Respondent
to keep such workmen for long duration of time and offer regular
employment periodically which had abruptly stopped due to the
unfair attitude of the Management. Despite all these findings, the
Supreme Court in paragraph 38 held that the worker in order to
succeed would have to substantiate their claim as per established
principles of law. In paragraph 39, the Supreme Court held as
under:-
68
"39. We, therefore, direct the Tribunal to decide the claim of the workmen of the Union strictly in accordance with and in compliance with all the directions given in the judgment by the Constitution Bench in Secy., State of Karnataka v. Umadevi (2006) 4 SCC 1 and in particular, paras 53 and 12 relied on by the learned Senior Counsel appearing for the Union. The Tribunal is directed to dispose of the matter afresh within 9 months from the date of receipt of this judgment without being influenced by any of the observations made by us in this judgment. Both the parties are at liberty to submit and furnish the details in regard to the names of the workmen, nature of the work, pay scales and the wages drawn by them from time to time and the transfers of the workmen made from time to time, from place to place and other necessary and requisite details. The above details shall be submitted within two months from the date of the receipt of this judgment before the Tribunal."
There is nothing in the judgment which suggests that
if the initial employment is illegal, the provisions of M.S.O. 4-C
would still be applicable. In fact the observations in paragraph 39
are to the contrary. This is evident from the fact that the
directions for regularization in paragraph 38 were to be in
accordance with and in compliance with all the directions in Secy.,
State of Karnataka v. Umadevi. On the aspect under consideration
in the present Writ Petition, the judgment in fact supports the
Petitioners' case.
52. Mr.Pendse relied upon the judgment of the Supreme
Court in U.P. State Electricity Board v. Pooran Chandra Pandey & 69
others, (2007) 11 SCC 92, and in particular the following orders in
paragraph 11, which reads as under :-
"11. Learned counsel for the appellant has relied upon the decision of this Court in Secy., State of Karnataka v. Umadevi and has urged that no direction for regularisation can be given by the Court. In our opinion, the decision in Umadevi case is clearly distinguishable. The said decision cannot be applied to a case where regularisation has been sought for in pursuance of Article 14 of the Constitution."
After referring to various decisions, which hold that a
decision is only authority for what was actually decided, the
Supreme Court held as under :-
"16. We are constrained to refer to the above decisions and principles contained therein because we find that often Umadevi case is being applied by courts mechanically as if it were a Euclid's formula without seeing the facts of a particular case. As observed by this Court in Bhavnagar University and Bharat Petroleum Corpn. Ltd. a little difference in facts or even one additional fact may make a lot of difference in the precedential value of a decision. Hence, in our opinion, Umadevi case cannot be applied mechanically without seeing the facts of a particular case, as a little difference in facts can make Umadevi case inapplicable to the facts of that case.
17. In the present case the writ petitioners (the respondents herein) only wish that they should not be discriminated against vis- à-vis the original employees of the Electricity Board since they have been taken over by the Electricity Board "in the same manner and position". Thus, the writ petitioners have to be deemed to have been appointed in the service of 70
the Electricity Board from the date of their original appointments in the Society. Since they were all appointed in the Society before 4-5-1990 they cannot be denied the benefit of the decision of the Electricity Board dated 28-11-1996 permitting regularisation of the employees of the Electricity Board who were working from before 4-5-1990. To take a contrary view would violate Article 14 of the Constitution. We have to read Umadevi case in conformity with Article 14 of the Constitution, and we cannot read it in a manner which will make it in conflict with Article 14. The Constitution is the supreme law of the land, and any judgment, not even of the Supreme Court, can violate the Constitution.
18. We may further point out that a seven-Judge Bench decision of this Court in Maneka Gandhi v. Union of India has held that reasonableness and non-arbitrariness is part of Article 14 of the Constitution. It follows that the Government must act in a reasonable and non- arbitrary manner otherwise Article 14 of the Constitution would be violated. Maneka Gandhi case is a decision of a seven-Judge Bench, whereas Umadevi case is a decision of a five- Judge Bench of this Court. It is well settled that a smaller Bench decision cannot override a larger Bench decision of the court. No doubt, Maneka Gandhi case does not specifically deal with the question of regularisation of government employees, but the principle of reasonableness in executive action and the law which it has laid down, in our opinion, is of general application."
53. Firstly, in the present Writ Petition, the claim is not on
the basis of discrimination. Secondly, this judgment has been
expressly overruled by a larger Bench of the Supreme Court in
Official Liquidator v. Dayanand and others, (2008) 10 SCC 1.
54. Before referring to this judgment, I would refer to 71
another judgment of a Bench of two learned Judges of the
Supreme Court in General Manager, Oil and Natural Gas
Commission, Silchar v. Oil and Natural Gas Commission
Contractual Workers Union, (2008) 12 SCC 275 which though
reported after the judgment of the three Judge Bench was actually
delivered earlier on 16.5.2008. The judgment of the three Judge
Bench in Official Liquidator v. Dayanand and others, was delivered
on 4.11.2008.
55. In Oil and Natural Gas Commission, Silchar v. Oil and
Natural Gas Commission Contractual Workers Union, (2008) 12
SCC 275, a two Judge Bench held that that case was not one of
regularization simplicitor such as in the case of an ad-hoc and
casual employee claiming this privilege but the basic issue there
was the status of the workmen and whether they were the
employees of the ONGC or the contractor and in the event that
they were the employees of the O.N.G.C., a claim to be treated on
par with other such employees.
Thus this case too has no application to the petition
before me. The Writ Petitions before me do not involve an issue
as to whether the said workers are the employees of a contractor
or the Corporation. It may only be noted that in paragraph 12, this
judgment also followed the judgment in U.P. State Electricity
Board v. Pooran Chandra Pandey & others, (2007) 11 SCC 92. 72
56. A three Judge Bench of the Supreme Court in Official
Liquidator v. Dayanand and others, (2008) 10 SCC 1 dealt with a
case where the question was whether the persons appointed by
the Official Liquidator under the orders of the respective High
Courts under Rules 308 and 309 of the Companies (Court), Rule,
1959 are entitled to equal pay and regularization as the
employees appointed by the Central Government in the office of
the Official Liquidator. The Court appointed staff based their claim
on the fact that they had been discharging identical duties and
functions as the regular employees, had been continuously
working for a period ranging from twenty to twenty five years,
that they had been paid only a fixed salary without any other
benefits and that such employees appointed upto 1.7.1978 had
been regularized by the Government. The Supreme Court rejected
the contention. Paragraph 52 of the judgment reads as under :-
"52. As mentioned above, while approving the reasons and conclusions recorded by the two High Courts and dismissing the appeals, this Court not only permitted the Government of India to frame a scheme modelled on the 1978 Scheme but also stayed implementation of the orders impugned in the appeal and the one passed by itself in the transferred writ petition. If the Court intended that all members of the company-paid staff working on the date of judgment i.e. 27-8-1999 should be absorbed in the regular cadres against Group C and D posts, then a simple direction to that effect would have been sufficient and there was no occasion to stay the implementation of the orders of the High Courts 73
for six months with liberty to the Government of India to frame a new scheme within the same period. The absence of such a direction shows that the Court was very much conscious of the fact that recruitment to the regular cadres is governed by the rules framed under Article 309 of the Constitution and it would be highly detrimental to public interest to issue direction for wholesale absorption/regularisation of the company-paid staff and thereby abrogate/stultify opportunity of competition to younger generation comprising more meritorious persons who may be waiting for a chance to apply for direct recruitment. Obviously, the Court did not want to sacrifice merit by showing undue sympathy with members of the company-paid staff who joined service with full knowledge about their status, terms and conditions of their employment and the fact that they were to be paid from the company fund and not Consolidated Fund of India. In this context, we may also mention that though the Official Liquidators appear to have issued advertisements for appointing the company-paid staff and made some sort of selection, more qualified and meritorious persons must have shunned from applying because they knew that the employment will be for a fixed term on fixed salary and their engagement will come to an end with the conclusion of liquidation proceedings. As a result of this, only mediocres must have responded to the advertisements and joined as company-paid staff. In this scenario, a direction for absorption of all the company-paid staff has to be treated as violative of the doctrine of equality enshrined in Articles 14 and 16 of the
Constitution."
The Supreme Court referred to the judgment in
Umadevi's case in detail. With reference to the above judgment
of the Supreme Court in U.P. State Electricity Board v. Pooran 74
Chandra Pandey & others, (2007) 11 SCC 92, the Bench of three
learned Judges held as under :-
"75. By virtue of Article 141 of the Constitution, the judgment of the Constitution Bench in State of Karnataka v. Umadevi (3)0 is binding on all the courts including this Court till the same is overruled by a larger Bench. The ratio of the Constitution Bench judgment has been followed by different two-Judge Benches for declining to entertain the claim of regularisation of service made by ad hoc/temporary/daily-wage/casual employees or for reversing the orders of the High Court granting relief to such employees -- Indian Drugs and Pharmaceuticals Ltd. v. Workmen, Gangadhar Pillai v. Siemens Ltd., Kendriya Vidyalaya Sangathan v. L.V. Subramanyeswara, Hindustan Aeronautics Ltd. v. Dan Bahadur Singh. However, in U.P. SEB v. Pooran Chandra Pandey on which reliance has been placed by Shri Gupta, a two-Judge Bench has attempted to dilute the Constitution Bench judgment by suggesting that the said decision cannot be applied to a case where regularisation has been sought for in pursuance of Article 14 of the Constitution and that the same is in conflict with the judgment of the seven-Judge Bench in Maneka Gandhi v. Union of India.
77. We have carefully analysed the judgment of the two-Judge Bench (in Pooran Chandra Pandey case) and are of the considered view that the above reproduced observations were not called for. The only issue which fell for consideration by the two-Judge Bench was whether the daily-wage employees of the society, the establishment of which was taken over by the Electricity Board along with the employees, were entitled to be regularised in terms of the policy decision taken by the Board and whether the High Court committed an error by invoking Article 14 of the Constitution for granting relief to the writ petitioners. The question whether the Electricity Board could frame such a policy was neither raised nor considered by the High Court and this Court. The High Court simply adverted to the facts of the case and held that 75
once the daily-wage employees of the society became employees of the Electricity Board, they could not be discriminated in the matter of implementation of the policy of regularisation. Therefore, the two-Judge Bench had no occasion to make any adverse comment on the binding character of the Constitution Bench judgment in State of Karnataka v. Umadevi (3).
78. There have been several instances of different Benches of the High Courts not following the judgments/orders of coordinate and even larger Benches. In some cases, the High Courts have gone to the extent of ignoring the law laid down by this Court without any tangible reason. Likewise, there have been instances in which smaller Benches of this Court have either ignored or bypassed the ratio of the judgments of the larger Benches including the Constitution Benches. These cases are illustrative of non-adherence to the rule of judicial discipline which is sine qua non for sustaining the system. In Mahadeolal Kanodia v. Administrator General of W.B. this Court observed: (AIR p. 941, para 19)
"19. ... If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if Judges of coordinate jurisdiction in a High Court start overruling one another's decisions. If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong, itself gives effect to that view the result would be utter confusion. The position would be equally bad where a Judge sitting singly in the High Court is of opinion that the previous decision of another Single Judge on a question of law is wrong and gives effect to that view instead of referring the matter to a larger Bench. In such a case lawyers would not know how to advise their clients and all courts subordinate to the High Court would find themselves in an embarrassing position of having to choose between dissentient judgments of their own High Court." (emphasis added)
76
92. In the light of what has been stated above, we deem it proper to clarify that the comments and observations made by the two-Judge Bench in U.P. SEB v. Pooran Chandra Pandey should be read as obiter and the same should neither be treated as binding by the High Courts, tribunals and other judicial foras nor they should be relied upon or made basis for bypassing the principles laid down by the Constitution Bench."
In these circumstances, the judgment of the Supreme
Court in (2007) 11 SCC 92 is of no assistance to the Respondents
as it has been expressly overruled.
57. The last judgment relied upon by Mr. Pendse is the
judgment of a Bench of two learned Judges of the Supreme Court
in the case of Maharashtra State Road Transport Corporation and
another vs. Casteribe Rajya Parivahan Karmachari Sanghatana,
(2009) 8 SCC 556.
(A). Mr. Rao contended, in the first instance, that the
judgment is contrary to the judgment of the Constitution Bench in
Umadevi's case and is, therefore, not good law. I am not inclined
to accept this submission. The judgment in terms refers to
Umadevi's case. It refers to the same in detail. It analyzes the
judgment in Umadevi's case. It is not open, in these
circumstances, for the High Court to hold that the same is per-
incuriam. Nor is it open to the High Court, in these circumstances, 77
to hold that the judgment is not good law.
(B). The error on the part of both the learned Counsel while
construing this case, with respect, is in reading portions and even
single sentence thereof, out of context and without considering
the judgment as a whole. There is no conflict between the
judgment in Umadevi's case and this judgment. This is clear from
a reading of the judgment as a whole.
The question in MSRTC's case was whether a direction
to the appellants by the Industrial Court of giving status, wages
and all other benefits of permanency, applicable to the post of
cleaners to the complainants, was justified ? It was contended on
behalf of the appellants that permanent status to employees who
were working as casual workers/daily wagers and whose
appointments were made without following the procedure
prescribed in General Standing Order 503 on non-existent posts is
unsustainable in law. The submission was based on Umadevi's
case.
The Supreme Court held that the provisions of the
MRTU & PULP Act had not been denuded of their statutory status
by the judgment in Umadevi's case. Mr. Pendse relied upon
paragraphs 31 to 36 of the judgment, which read as under :
"31. The purpose and object of the MRTU and PULP Act, inter alia, is to define and provide for 78
prevention of certain unfair labour practices as listed in Schedules II, III and IV. The MRTU and PULP Act empowers the Industrial and Labour Courts to decide that the person named in the complaint has engaged in or is engaged in unfair labour practice and if the unfair labour practice is proved, to declare that an unfair labour practice has been engaged in or is being engaged in by that person and direct such person to cease and desist from such unfair labour practice and take such affirmative action (including payment of reasonable compensation to the employee or employees affected by the unfair labour practice, or reinstatement of the employee or employees with or without back wages, or the payment of reasonable compensation), as may in the opinion of the court be necessary to effectuate the policy of the Act.
32. The power given to the Industrial and Labour Courts under Section 30 is very wide and the affirmative action mentioned therein is inclusive and not exhaustive. Employing 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 is an unfair labour practice on the part of the employer under Item 6 of Schedule IV. Once such unfair labour practice on the part of the employer is established in the complaint, 79
the Industrial and Labour Courts are empowered to issue preventive as well as positive direction to an erring employer.
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. As a matter of fact, the issue like the present one pertaining to unfair labour practice was not at all referred to, considered or decided in Umadevi. 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 the Industrial and Labour Courts under Section 30 of the Act did not fall for adjudication or consideration before the Constitution Bench.
34. It is true that Dharwad Distt. PWD Literate Daily Wages Employees' Assn. arising out of industrial adjudication has been considered in Umadevi and that decision has been held to be not laying down the correct law but a careful and complete reading of the decision in Umadevi leaves no manner of doubt that what this Court was concerned in Umadevi was the exercise of power by the High Courts under Article 226 and this Court under Article 32 of the Constitution of India in the matters of public 80
employment where the employees have been engaged as contractual, temporary or casual workers not based on proper selection as recognised by the rules or procedure and yet orders of their regularisation and conferring them status of permanency have been passed.
35. Umadevi is an authoritative pronouncement for the proposition that the Supreme Court (Article 32) and the High Courts (Article 226) should not issue directions of absorption, regularisation or permanent continuance of temporary, contractual, casual, daily wage or ad hoc employees unless the recruitment itself was made regularly in terms of the constitutional scheme.
36. Umadevi does not denude the Industrial and Labour Courts of their statutory power under Section 30 read with Section 32 of the MRTU and PULP Act to order permanency of the workers who have been victims of unfair labour practice on the part of the employer under Item 6 of Schedule IV where the posts on which they have been working exist. Umadevi cannot be held to have overridden the powers of the Industrial and Labour Courts in passing appropriate order under Section 30 of the MRTU and PULP Act, once unfair labour practice on the part of the employer under Item 6 of Schedule IV is established."
(C). Based on these observations, Mr. Pendse contended 81
that the judgment in MSRTC's case, supports the proposition that
once the provisions of M.S.O. 4-C are satisfied, failure to regularise
the services ipso-facto amounts to an unfair labour practice and
under the provisions of the MRTU and PULP Act, the Court is bound
to grant permanency. Mr. Pendse contended that the judgment
supports the proposition that an employee is entitled to the
benefit of M.S.O. 4-C even if the appointment was void.
58. I do not read the judgment to support this wide
proposition. There is nothing in the judgment which even
remotely indicates that an appointment, which is void, must be
regularised and an employee in such circumstances must be
made permanent, merely because he completes 240 days during
the relevant period. The judgment in fact indicates the contrary.
This is clear from paragraphs 44 to 47 of the judgment which
reads as under :
45. The question now remains to be seen is whether the recruitment of these workers is in conformity with Standing Order 503 and, if not, what is its effect? No doubt, Standing Order 503 prescribes the procedure for recruitment of Class IV employees of the Corporation which is to the effect that such posts shall be filled up after receiving the recommendations from the Service Selection Board and this exercise does not seem to have been done but Standing Orders cannot be elevated to the (sic status of) statutory rules. These are not statutory in nature.
46. We find merit in the submission of Mr Shekhar Naphade, learned Senior Counsel for the employees that Standing Orders are contractual 82
in nature and do not have a statutory force and breach of Standing Orders by the Corporation is itself an unfair labour practice. The employees concerned having been exploited by the
Corporation for years together by engaging them on piece-rate basis, it is too late in the day for them to urge that procedure laid down in Standing Order 503 having not been followed, these employees could not be given status and privileges of permanency. The argument of the Corporation, if accepted, would tantamount to putting premium on their unlawful act of engaging in unfair labour practice.
47. It was strenuously urged by the learned Senior Counsel for the Corporation that the Industrial Court having found that the Corporation indulged in unfair labour practice in employing the complainants as casuals on piece- rate basis, the only direction that could have been given to the Corporation was to cease and desist from indulging in such unfair labour practice and no direction of according permanency to these employees could have been given. We are afraid, the argument ignores and overlooks the specific power given to the Industrial/Labour Court under Section 30(1)(b) to take affirmative action against the erring employer which as noticed above is of wide amplitude and comprehends within its fold a direction to the employer to accord permanency to the employees affected by such unfair labour practice."
(A). If Mr. Pendse's submission was well founded, there
was no reason for the Supreme Court to observe in paragraph 45
that the question that remained to be seen was whether the
recruitment of the workers was in conformity with Standing Order
503.
83
(B). Further if Mr.Pendse's submission is correct there was
no reason for the Supreme Court to consider the effect of the
Standing Order.
(C). Thirdly, the Supreme Court, in paragraph 45 observed
that the Standing Orders, in that case, could not be elevated to
the status of statutory rules and held that they were not statutory
in nature. The Supreme Court, in paragraphs 46 also considered
the effect of the Standing Orders and held that the same do not
have statutory force and that the breach of Standing Orders by
the Corporation was itself an unfair labour practice. It is of vital
importance to note that the Standing Orders, in that case, were
non-statutory Standing Orders. In the present Writ Petitions there
is no dispute that the provisions of B.P.M.C. Act are statutory in
nature.
(D). It must be noted that the Supreme Court has not held
that even if the Standing Orders therein had statutory force, the
employees would have been entitled to the reliefs even if they
have not been followed. In other words, the Supreme Court did
not hold that permanency must follow even if the initial
appointment is held to be void.
(E). Relying upon the observations of the Supreme Court in
paragraphs 34 and 35 of the judgment, Mr. Pendse submitted that
the embargo placed in Umadevi's judgment applies only to the 84
High Courts and the Supreme Court under Article 226 and 32 of
the Constitution of India.
I am unable to agree. The judgment does not say so.
Indeed if upheld, Mr. Pendse's submission would lead to the
curious result that whereas the Supreme Court and the High
Courts cannot grant such reliefs, the Industrial Court under the
MRTU and PULP Act can grant such reliefs.
59. Mr. Pendse's reliance upon the judgment in MSRTC
case is, therefore, not well founded.
Whether the Corporation, having continued to
appoint the complainants over the years, can be said to
have indulged in unfair labour practices under the
provisions of the MRTU & PULP Act.
60. Mr. Pendse submitted that by having continued to
appoint the complainants over the years, the Corporation had
indulged in unfair labour practices, entitling the complainants to
the reliefs claimed under the MRTU & PULP Act.
61. I have held that the complainants were not entitled to
be made permanent merely on the basis of their aforesaid
appointments on a temporary basis which was against the
provisions of law. Thus, the Corporation could not have absorbed
them/made them permanent. Mr.Rao submitted that in such cases
an employer cannot be held to have indulged in unfair labour 85
practices. The submission is well founded.
62. In Lagwad Adhikari and others v. Yasin Hamid Sayyed
and others, (2008) 2 L.J.Soft 62 = (2008) 1 Bom.C.R.527, a
learned single Judge of this Court dealt with a case where the
workmen, who were appointed as daily rated watchman, had
worked continuously for more than five years and had in every
year, completed 240 or more days of service contended that they
were entitled to permanency. They filed a complaint under items
5, 6, 9 and 10 of Schedule-IV of M.R.T.U. & P.U.L.P. Act read with
Section 28(1).
The Industrial Court held that the department was
guilty of engaging in unfair labour practices within the meaning of
items 6 and 9 of Schedule-IV of the Act. The learned Judge held as
under :-
"6. The short question this court is required to consider is, whether the findings of the Industrial Court holding the present petitioners guilty of unfair labour practices within the meaning of Items 6 and 9 of Schedule IV of the Act are justified. Items 6 and 9 of Schedule IV of the Act reads as under:-
"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."
86
It is a well settled position in law that when badlis, casuals or temporaries are continued for years together on account of non availability of permanent sanctioned posts, failure for their absorption in the respective posts either Class - D or Class - C per se, is not an act of unfair labour practice within the meaning of Item 6 of Schedule IV of the Act.
In the case of Punjabrao Krishi Vidyapeeth, Akola vs. General Secretary, Krishi Vidyapeeth Kamgar Union and ors. (1994 I CLR 913), a Single Bench of this court (Hon'ble Shri Justice V.S. Sirpurkar as His Lordship then was) considered the scope of Item 6 of Schedule IV and posed the following questions :-
"What then is the position of an employer who does not have the authority to employ such person permanently owing to a provision of law? Could it be said that an employer who is specifically prohibited from granting the status of permanency by creating posts is also covered under the language of Schedule IV, Entry 6?
In para 8 His Lordship replied these questions as under:-
"The answers to these questions will depend upon the true interpretation of this entry. Now, the plain language of entry No.6 suggests that in continuing the employees as casuals or
temporaries, there must be a definite object of depriving such workers of their rightful benefits. Then and then alone, this practice could be covered under the entry. How would that object be discerned is the question? By mere showing that there has been a practice of continuing the employees in the manner as shown above, does the complainant discharge his burden? The answer must be given in the negative. It is true that a continued practice of continuing the 87
employee for years together as a badli employee or a temporary employee may definitely raise a finger of suspicion regarding the intention of that employee. However, in order to hold such employer guilty of such unfair labour practice as described in entry 6, something more is required. There must be "tangible evidence" to show that this was deliberately done. The words "with the object of" connote intention or mens rea on the part of employer, or a certain design in his mind to achieve certain results. Without that vital intention or that certain design, the employer cannot be dragged in......"
This view has been confirmed by the Apex Court in the case of Mahatma Phule Agricultural University (Supra). In para 14 their Lordships reproduced Item 6 of Schedule IV of the Act and stated as under:-
"The complaint was against the Universities. The High Court notes, that as there were no posts the employees could not be made permanent. Once it comes to the conclusion that for lack of posts the employees could not be made permanent how could it then go on to hold that they were continued as "badlis", casuals or temporaries with the object of depriving them of the status and privileges of permanent employees. To be noted that the complaint was not against the State Government. The complaint was against the Universities. The inaction on the part of the State Government to create posts would not mean that an unfair labour practice had been committed by the Universities. The reasoning given by the High Court to conclude that the case was squarely covered by Item 6 of Schedule IV of the MRTU and PULP Act cannot be sustained at all and the impugned Judgment has to be and is set
aside......."
63. In Sudhir R. Koli and others v. Maharashtra Pollution 88
Control Board and another. (2004) 9 L.J.Soft 13 = (2004) 5
Bom.C.R. 24, the Petitioners were Data Entry Operators on fixed
term contracts. The regular procedure for recruitment was not
followed while appointing them on these fixed term contracts.
Further, there were no sanctioned posts, no advertisements were
issued before recruiting them and no requisition was submitted to
any Employment Exchange calling for the names of eligible
candidates. Contending that they had completed 240 days
service, the Petitioners sought permanency and consequential
benefits. They filed a complaint before the Industrial Court under
items 5, 6 and 9 of Schedule-IV of M.R.T.U. & P.U.L.P. Act. The
learned Judge held as under :-
"9. In view of the evidence on the record, it is not possible to accept the contention of the petitioners that they had been engaged as casual or temporaries for years with the object of depriving them of the status and privileges of permanent employees, within the meaning of Item 6 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. None of the petitioners was recruited against a substantive post borne on the establishment of the Board. No advertisement has been issued before the petitioners came to be recruited. The regular process of selection was not followed. The appointments issued to the petitioners were fixed term contract appointments at a stage when the work of computerization was in its initial stages and until the regularly recruited employees of the Board came to be trained in computers. Training and re-deploying existing regular employees on computers is a permissible course open to an employer. When 89
the employer as a part of this process engages outsiders on fixed term contracts until the regular staff is trained he cannot be regarded, in facts such as the present, to be engaging in an unfair labour practice. That being the position, no case under Items 5, 6 or 9 of Schedule IV of the Act has been established and the conclusion which has been arrived at by the Industrial Court does not warrant interference under Article 226 of the Constitution.
10. There is, similarly, no merit in the submission that the petitioners are entitled, as a matter of law, to permanency upon the
completion of 240 days' of service in the establishment of the respondents. Section 2A of the Industrial Employment (Standing Orders) Act, 1946 as amended in its application to the State of Maharashtra lays down that where the Act applies to an industrial establishment, the model standing orders for every matter set out in the Schedule as applicable to such establishment shall apply to such establishment from such date as may be notified by the State Government in the Gazette. Under the proviso, however, the section is not to affect any Standing Order finally certified under the Act and which has come into operation before the Bombay Amending Act of 1957. Sub-section (2) of section 2A then provides thus :
"2A(2) Notwithstanding anything contained in the proviso to sub-section (1) model standing orders made in respect of additional matters included in the Schedule after the coming into force of the Act referred to in that proviso (being additional matters relating to probationers or badlis or temporary or casual workmen) shall unless such model standing orders are in the opinion of Certifying Officer less advantageous to them than the corresponding standing orders applicable to them under the said proviso also apply in relation to such workmen in the establishments referred to in the said proviso from such date as the State Government may, by 90
notification in the Official Gazette appoint in this behalf."
11. Item 10-C of the Schedule deals with the employment or reemployment of probationers or badlis or temporary or casual workmen, and their conditions of service. Schedule I to the Bombay Industrial Employment (Standing Orders) Rules, 1959 lays down the Model Standing Orders. Under MSO 3, workmen have to be classified as permanent workmen; probationers; badlis or substitutes; temporary workmen; casual workmen; and apprentices. A temporary workman is defined by MSO-3(2)(d) as a workman who has been appointed for a limited period for work which is of an essentially temporary nature and who is employed temporarily as an additional workman in connection with temporary increase in work of a permanent nature. Under MSO 4-C, a badli or temporary workman who has put in 190 days' uninterrupted service in the aggregate in any establishment of a seasonal nature or 240 days' "uninterrupted service" in the aggregate in any other establishment, during the period of the preceding twelve calendar months, shall be made permanent in that establishment by an order in writing signed by the Manager. The petitioners who had been appointed under fixed term contracts in order to complete and fulfill specified items of work cannot possibly claim the benefit of permanency under Model Standing Order 4-C."
64. The ratio of these judgments apply in the present
case. I have already held that the provisions of the B.P.M.C. Act
not having been followed, the complainants are not entitled to be
regularized and to the benefit of permanency. Thus the
Corporation not having granted them the benefits which they are
in law not entitled to cannot be said to have indulged in any unfair 91
labour practice. There is nothing on record to establish that their
appointments were only to deprive them of the benefits of
permanency.
The judgments of the Industrial Court :
65. The impugned judgment and order passed by the
learned Member, Industrial Court, Thane in Writ Petition No.
443/2010 and 565/2010 sets out the pleadings and the arguments
elaborately.
66. There are three findings of fact. Firstly, that the said
employees had worked from 1997 - 1999, onwards with only a
day's technical break between successive letters of appointment.
Secondly, that the Corporation's witness admitted that all the
complainants were employed and recruited pursuant to the said
advertisement dated 28.5.1997. Thirdly, it is held that it was
admitted by the Corporation's witness that the Complainants
were working on clear vacant and sanctioned posts, "which have
been already sanctioned by the State Government in the year
1999 as per the administrative schedule which was placed before
the State Government for getting appropriate sanction".
67. The first finding is correct to the extent that the
Complainants/employees have been working since the year 1997
to 1999.
68. The Complainants/employees, according to their own 92
case, were appointed in the year 1997. I have already dealt with
the second finding, namely as to whether the complainants had
been appointed pursuant to the said advertisement dated
28.5.1997 or not. I have held that they were not and that,even if
they were, it would make no difference to the Complainants' case.
69. The third finding is correct to the extent that the posts
were sanctioned by the State Government in the year 1999 as per
the administrative schedule placed before the State Government.
That, however, would not enure to the benefit of the complainants
/employees for they were admittedly appointed prior thereto,
namely in the year 1997. They were, thus, not appointed against
the sanctioned posts. The posts being sanctioned subsequently,
cannot entitle them to permanency on the basis that the posts
were subsequently sanctioned. The posts were sanctioned in
general. They were not sanctioned for the benefit of or qua the
Complainants/employees.
The complainants have no right to the posts which
were sanctioned subsequent to their appointments, which, as I
have stated earlier, is not in accordance with law.
70. Even if the above findings in the impugned order were
in favour of the complainants, they would not be entitled to
permanency for their appointments were invalid, as they were not
made pursuant to or in accordance with the provisions of the 93
B.P.M.C. Act. I do not find the various issues which arise in this
matter, having been dealt with in the impugned Judgment. Nor
were the various authorities analyzed and applied to the facts of
the case. They have merely been mentioned in the impugned
judgment. Least I may be mistaken in this regard I must in
fairness to the learned Member, set out in extenso, the reasons
furnished. They read as under :
"11. Thus, both the rival counsels put forth their submissions accordingly by taking me to the contents and pleadings of the parties and the citations and case laws which they have referred to in support of the claim and also took me to the contents of oral and documentary evidence which is there on record. While perusing all the documents, including the oral evidence of the rival parties and the advertisement published in the daily (.................here the line is not properly printed) all the complainants are working with the Respondents from 1997 and 1999 onwards without any break as it is admitted by the witness of the Respondents itself that prior to the giving of the letter of appointment for the next year, one day technical break is to be given to the said employees. It also reflects from the oral evidence of the Respondents i.e., the witness, in his cross examination, who categorically admitted that all the Complainants were employed and recruited in the services of the 94
Respondents as per the advertisement published in the daily news paper, JANATACHE JANMAT, dated 28.05.1997 and since then, they are regularly in the employment of the Respondent Corporation. It also reflects and it is also admitted by the witness that all the Complainants are working on clear vacant and sanctioned posts which have been already sanctioned by the State Government in the year 1999 as per the administrative schedule which was placed before the State Government for getting appropriate sanction. Thus, considering the oral as well as documentary evidence placed on record by the Complainants vide Lists, Exs. U-4,U-13, U-15 and C-7 and all the huge set of documents on record and after reading between the lines, the contents of the citations and case laws referred by the rival parties, it cannot be said that in the entire proceedings, the Complainants have not proved that the Respondents have engaged in and are engaging in unfair labour practice as alleged in the Complaint i.e., under Items 6 & 9 of Schedule IV of the Act by continuing the Complainants for years together i.e., from 1997, 1999 till date as temporary employees. Hence, considering the provisions of the Standing Orders and other legal provisions applicable in the present proceedings, it cannot be disputed after taking into consideration the ratio developed by the apex 95
Court in the latest case law and Judgment cited by the rival parties. I have to conclude that the Respondents have engaged and are engaging in the unfair labour practice under Items 5, 6 and 9 of Schedule IV of the Act by continuing the Complainants as temporaries for years together. Hence, for the reasons, I conclude that the Complainants are eligible and entitled for the reliefs as prayed in the prayer clause of the Complainant and the Complaint filed for getting permanency and regularization. Considering the facts on record, the reliefs which need to be considered cannot be considered in toto as prayed, but regarding regularization needs to be considered as prayed. Regarding monetary and consequential benefits which are arrived from the said permanency needs to be considered by granting from the date of filing of the present Complaint and the Respondents need be directed that all the monetary and consequential benefits arrived out of the said permanency be awarded to the Complainants within a period of two months from the date of this Order. Hence, for the reasons as well as considering the latest position of law and the provisions, I pass the following Order :
ORDER
The Complaint (ULP) No.17 of 2007 is hereby allowed.
The Respondents are hereby directed to give 96
permanency and the benefits of permanency and all other consequential benefits arrived out of the said permanency to all the Complainants with effect from the date of the filing of the present Complaint and the same should be paid within a period of two months from the date of this order. No order as to costs."
71. The issues raised in the matter, even as recorded in
the judgment, have not been dealt with. For instance, the learned
Member has not dealt with the effect of the appointments not
having been made as per the provisions of the B.M.P.C. Act. Nor
has he dealt with the effect of the provisions of the B.M.P.C. Act.
Nor has he dealt with the effect of these provisions qua M.S.O.4-C.
The judgment of the Supreme Court in MSRTC's case has merely
been mentioned. The judgment also does not consider the effect
of the posts having been sanctioned in the year 1999 i.e., after
the appointment of the Complainants. It also does not consider the
effect of the appointments having been continued for the period
beyond six months. The effect of the Constitution Bench
judgment in Umadevi's case is not even adverted to.
72. In the circumstances, the impugned judgment and
order is quashed and set aside.
73. The judgment in Writ Petition No.901/2010 runs into
14 pages. The entire reasoning is contained in paragraph 10. The 97
learned Counsel did submit that the result in this Writ Petition
would follow the result in Writ Petition Nos. 443/2010 and
565/2010. It is, however, important to note that in paragraph 10 of
the impugned judgment in this Writ Petition, the learned Member
has held that the Complainants were working on clear sanctioned
posts. This finding itself is incorrect and contrary to the record.
Even in the impugned order in other Writ Petitions, the learned
Member has at least recorded that the posts were sanctioned only
in the year 1999.
74. Secondly, the learned Member has held that the
Corporation's witness had admitted that the Complainants had
been employed after following the due procedure of recruitment
which needs to be followed as per the rules and regulations as
mentioned "in the said advertisement". Even assuming that this
finding is correct, it would make no difference for the question
that required consideration was whether the procedure prescribed
by law, namely the provisions of the B.M.P.C. Act were followed
or not. This was even noted by the learned Member while
narrating the facts. There is no finding in this regard. The matter
has not even been considered. The entire basis for granting
reliefs appears to have been that the Complainants had been
working for a long period of time and the same was itself an unfair
labour practice, entitling them to the benefit of permanency. 98
Again, least I may be mistaken in this regard I must, in fairness to
the learned Member, set out the reasons given in paragraph 10 of
the judgment, which read as under :
" 10. Thus, both the rival counsels put forth their oral submissions accordingly by taking me to the contents and citations and case laws which have been referred above and also took me to the contents of the documentary and oral evidence of the parties and if we read between the lines the oral evidence of the witness and the witness of the Respondents, especially their cross examination, taken by the learned Counsel for the Complainants, it reflects that the witness has categorically admitted that the Complainants are working with the Respondents as Drivers from 1997 and they have been recruited as per the advertisement published in the year 1997 and they are working on clear sanctioned posts and also it is categorically admitted that they have been employed after following the due procedure of recruitment which needs to be followed as per the rules and regulations as mentioned in the said advertisement and also it is admitted that the inspection of the relevant documents was carried out in his presence and in between period, by passing the resolution they have regularized the temporary employees, except the present Complainants. Thus, if we read between the lines the pleadings of the rival 99
parties as well as the oral evidence and the contents of the documents on record and the inspection Report and the contents and the citations and the case laws referred by the rival parties, it cannot be disputed that the Complainants have categorically proved beyond doubt that the respondents have engaged in and are engaging in the unfair labour practice under Items 5,6 and 9 of Schedule IV of the Act by continuing the Complainants for years together as temporaries i.e. from 1997 onwards and not allowing them the benefits of permanency for which they are eligible and entitled to as per the provisions of the Standing Orders applicable and other relevant provisions of law. It is also categorically proved beyond doubt that as per the ratio developed by the Apex Court in the above said judgments and citations, referred by the rival parties, considering the latest position of law, the present Complainants are eligible and entitled for the reliefs as prayed in the present Complaint regarding regularization and permanency in the employment of the Respondents and the benefits i.e. monetary as well as consequential benefits, arrived out of the said permanency, from the Respondents. Thus, in limine, while concluding, I say that the respondents have engaged in and are engaging in the unfair labour practice as alleged by the Complainants under the Act. Hence they need to 100
be directed to cease and desist from the same. The reliefs prayed by the Complainants cannot be considered and granted in toto, as prayed. But the reliefs regarding permanency, for which the Complainants are very much eligible and entitled to along with monetary and consequential benefits arrived out of the same, considering the facts on record and the submissions of the rival parties and the ratio developed by the apex Court from time to time, the workers concerned i.e. the Complainants, are eligible and entitled for the said relief of permanency and the consequential and monetary benefits w.e.f. the filing of the present Complaint and all the said consequential and monetary benefits. The Respondents are hereby directed to give the same within a period of two months from the date of this Order. Hence, for the reasons and considering the latest position and provisions of law, I pass the following Order :
ORDER
The Complaint (ULP No.105 of 2007 is hereby allowed.
The Respondents are hereby directed to give permanency and the benefits of permanency and all other consequential benefits arrived out of the said permanency to all the Complaints with effect from the date of the filing of the present Complaint and the same should be paid within a period of two months from the date of this order. 101
No order as to costs."
75. What I have stated in respect of the impugned order in
Writ Petition Nos. 443 of 2010 and 565 of 2010 applies equally to
the order impugned in Writ Petition No.901 of 2010.
76. In the circumstances, the Writ Petitions are disposed
of by the following order :
The impugned judgments and orders in Writ Petition
Nos. 565 of 2010 and 901 of 2010 are quashed and set aside.
Rule is made absolute, accordingly.
Writ Petition No.463 of 2010 is dismissed. Rule is
discharged.
There shall, however, be no order as to costs.
77. This order is stayed upto and including 31st August,
2010, to enable the complainants to challenge the same. The
Corporation shall also maintain status-quo upto and including 31st
August, 2010 in respect of the complainants' employment.
S.J. VAZIFDAR, J.