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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
A.B. Chaudhari, J
Kalawati Pandurang Fulzele - Petitioner
versus.
Divisional Controller - Respondent
Writ Petition No. 3819 of 2003
Decided on : 4th June 2007
In Court’s opinion, there is an attempt to misuse the provisions of Section 2(oo)(bb) of the Industrial Disputes Act, 1947. The said provision was brought on the Statute Book with a specific object that fixed tenure appointment or short-lived appointments, or the appointment on fixed time projects or availability of work for a particular or specific period, should not fall within the concept of retrenchment. However, Court finds that the defence about applicability of Section 2(oo)(bb) of the Industrial Disputes Act is being freely taken. Court, therefore, rejects the said contention. The whole action is arbitrary to say the least.
Industrial Disputes Act, 1947 - Section 25-G - Industrial Disputes (Bombay) Rules, 1957, Rule 81 - Part time workman/employer - Petitioner appointed until further orders in accordance with contract - Working as sweeper - His services terminated - Complaint under M.R.T.U. and P.U.L.P. Act - Contending termination in violation of Section 25-G of Act and Rule 81 of Rules - Contra, respondent availed petitioner’s services on contract - She not employee of respondent nor she is workman - Held - Mere mention of work on contract, a mere camouflage - Master and servant relation- ship stand established. - It is clear that the respondent did not produce the alleged agreement or tender any oral evidence before the Labour Court in support of the said contention. In this writ petition, with return a photo copy of agreement dated 7.6.1989 (Annexure R-1) is filed. This document not being placed on record of the Labour Court nor proved, cannot be taken into consideration at all. Even then, having gone through the same, Court finds that it is not for any specific period. It then says that the petitioner will abide by the rules and regulations of the corporation. If her work is not found to be satisfactory, Divisional Controller, MSRTC, Chandrapur will be competent to retrench her. Now, on the basis of this document appointment order dated 8.6.1989 (Exhibit 18) appears to have been issued, until further orders. Another order dated 1.4.1991 (Exhibit 19) does not at all refer to any agreement or even the said agreement which means the agreement dated 26.1.1989 came to an end before 1.4.1991. Hence, at least after 1.4.1991, there was no contract.
Lifting the veil, Court holds that mere mention of work on contract in Ex. 18 and Ex. 19 was a mere camouflage and hence master and servant relationship stands established.
Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 - Section 3(5) - Industrial Disputes Act, 1947, Section 2(s) - Work- man - Master and servant relation- ship - Part time workers/employees - If master and servant relationship established - Part time workers/employees included in definition of workman - Part time workers/employees is workman - Entitled to protection of provisions of I.D. Act. - If master and servant relationship is established, there is absolutely nothing in the above definitions which would indicate that ’part time’ workers/employees are not included or that they are excluded from the above definition.
Even a part time worker is a workman/employee and is entitled to the protection of the provisions of the Industrial Disputes Act.
1. The petitioner herein is an unfortunate widow belonging to backward class whose bread has been snatched by the respondent, the Maharashtra State Road Transport Corporation, Chandrapur Division, Chandrapur (for short, the .MSRTC.) putting her and her two small children to starvation. What would have been the plight of a woman when her coolie husband suddenly became blind and became a liability on her along with her two children. What would have been the plight of a woman who was suddenly deprived of the income even of Rs. 550/- per month with which she supported her two children and her husband who then expired and she became widow during the pendency of the lis. It is further unfortunate that the respondent has, on the basis of the Constitution Bench judgment of the Supreme Court in The Secretary of State of Karnataka v. Umadevi & ors and other judgments, sought to unjustifiably dodge the petitioner from getting any relief to which she is otherwise entitled to in accordance with law. Though the pronouncement of law by the Constitution Bench of the Apex Court in Umadevi's case (supra) related to regularization of employees, taking a few sentences from the said judgment, it is being vehemently argued that the judgment prohibits issuance of any directions for reinstatement even if the Labour/Industrial Court or this Court finds the termination illegal. In my opinion, the Government Department, Public Corporations and Undertakings and municipal councils are attempting to misuse the judgment in Umadevi's case as has been experienced by me in this case, and some other cases decided by me recently i.e. W.P. No.391/2006 and W.P. No.3021/2001.
2. By the present petition, the petitioner has challenged the validity of the revisional judgment and order dated 1.7.2003 passed by the Industrial Court, Nagpur in Revision (ULPA) No. 339 of 2002 by which the learned Industrial Court set aside the judgment and order dated 20th June 2002 made by the Labour Court, Chandrapur in Complaint (ULPA) No. 135 of 1994. Looking to the nature of the impugned judgment and order, the present petition is treated as the one under Article 227 of the Constitution of India.
FACTS
3. The petitioner filed a complaint under Section 28 read with item (1) of Schedule IV of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 (for short, the .MRTU & PULP Act.) before the Labour Court, Chandrapur against the respondent MSRTC. In the said complaint, she pleaded that she was appointed by the respondent firstly by written order of appointment dated 8.6.1989 (Exhibit 18) and by another order dated 1.4.1991 (Exhibit 19) to work as sweeper on consolidated honorarium of Rs. 500/- per month. In Exhibit 18, it was stated that she would be required to clean the Divisional Office, Establishment Section, Accounts Section as well as toilets and latrines. She was being appointed until further orders in accordance with the contract and she would have no right whatsoever her work being on contract basis. The order of appointment (Exhibit 19) is on similar lines, but there is an increase of Rs. 50/- per month in her consolidated salary. In this order, the word .honorarium. is not used but word .salary. is used. After this order, she continuously worked as sweeper till she was lastly terminated on 1.8.1994. It appears that her husband was working as a coolie in MSRTC, Chandrapur Depot and suddenly he became blind and his family thus abruptly went in a state of penury. It appears with a view to feed her husband and her children, she became prepared to work even as a sweeper with M.S.R.T.C. and was accordingly employed. It appears from her affidavit dated 1st March, 2004 to Civil Application No.2821/2004 in this Writ Petition that her husband expired during pendency of the litigation and now she has to support herself and her two small children.
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