Voluntarily offering to perform certain duties without demanding pay may affect entitlement to wages under unfair labour practice laws.

1. Rule. Rule is made returnable forthwith. With consent of the parties, the matter is taken for final hearing immediately.

2. The respondent filed a complaint under Section 28 with Item No.6 and 9 in Schedule IV to Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 before the Industrial court. According to him, the petitioner and some other persons had applied for the post of driver. He was interviewed for the said post but was given appointment as a Cleaner. He was holding driving licence for heavy vehicle since the year 1976. He was given appointment as a Cleaner on 14/7/1980. According to him, in 1982 again interviews were held for the post of driver and six persons were appointed. However, the petitioner was not given appointment as a driver. According to him, he was required to discharge the functions of driver but he was never confirmed to that post and was paid wages only as a Cleaner and thus there was unfair labour practice. The allegations were denied on behalf of the present petitioner. The Industrial court came to conclusion that the petitioner had indulged in unfair labour practice by not giving appointment to him as a driver and paying wages only as a Cleaner for long time. The Industrial court also declared that the plaintiff/respondent had a right of appointment or continuaion in service as a driver w.e.f. 25/8/1983 and he is also entitled to financial benefits in respect of same. This order has been challenged by the employer ñ Maharashtra State Electricity Distribution Co.Ltd. In the present petition.

3. Heard learned counsel for the parties. The learned counsel for both the parties have taken me through the detailed judgment passed by the learned Industrial Court as well as the evidence of the respondent himself before the Industrial Court. It is true that the respondents and some others had applied for the post of driver in 1979 and he also interviewed. However, none of them were selected for the post of driver and respondent and some others were given appointment as Cleaner or conductor w.e.f. 14th July, 1980 and accordingly the respondent joined the service as cleaner. Admittedly, in 1982 again advertisement was issued and the applications were called for the post of driver. The respondent had also applied and he was also interviewed but he was not selected for the post of driver. In that process, six persons from outside were given appointments as drivers and one of the staff members was also given appointment as a driver. The respondent admitted in his evidence that he was not selected or the post of driver in 1982 but according to him, he continued to work as a driver as one Shri Pethe Executive Engineer instructed him to join the duty. In the cross-examination he admitted that in order to gain experience, he had voluntarily undertook to drive the vehicle and he did not demand any pay of the driver from the respondent.

4. Admitted fact is that after 1983 when six persons were appointed, no fresh appointment of driver has been made by the petitioner at the time of last appointment made on the basis of interview held in 1982 the respondent was not selected for that post. According to the learned counsel for the petitioner, there were also no vacancy for the post of driver. In view of this, there was no occasion or justification for the respondent to work as driver on continuous basis. According to his own admission to gain experience he had voluntarily offered to drive the vehicle and did not demand any pay. In all probabilities this was because he wanted to have sufficient experience so that as and when next time any applications would be called, he could be selected for the post of driver. It is possible that because of the offer made by him, on some occasions, the Executive Engineer might have allowed him to drive the vehicle but that does not mean that the petitioner was regular taking the work of driver from him while paying him wages of Cleaner.

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