Back
2011 Supreme(Bom) 1157
2011 (6) ALLMR 602
High Court of Judicature at Bombay
S.C. DHARMADHIKARI
The Divisional Forest Manager & Another
Versus
Shri Vinayak Kurne & Others
WRIT PETITION NOS.3208 OF 2011 & 3213 OF 2011
Decided on : 27-09-2011
For the Petitioners:K.K. Malpathak, Advocate.
For the Respondents:R1, V.H. Shekdar, Advocate.
Headnote:Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 - Sections 30 and 32, Schedule IV, Item 6-Reinstatement-Direction for with regularization-Challenged-Petitioner contended that complainant appointed temporarily for a project-No understanding between parties as to alleged temporary status-Complainant worked at different divisions-Not means that there was no regular post-Complainant in service for 15 years with 240 days work in each year-Entitled to regularization-Impugned order not amounts to creation of new post.-In these circumstances, it is not as if the Courts below have overlooked or ignored any principle of law and the constitutional guarantee of equality in public employment. This is not a case where there was no regular post or no regular work. All throughout the case is that the appointment is of Office Attendant/Assistant, it may be that the respondent went on reporting at Pune Division or wherever the work was available and presently he is at Jawahar Dahanu. It is not as if this is an admission that there is no regular work or that there is no regular post and therefore, benefits of permanency and regularization cannot be claimed. Not in agreement with that the Courts below have, while taking cognizance of the complaint of unfair labour practice, virtually directed creation of post and providing regular work to the respondent by creating a post for him at particular station/unit. There is absolutely nothing on record to indicate that such direction has been issued or that direction issued would amount to directing the petitioners to create any post for the respondent and make substantive appointment therein. The pleadings are in relation to unfair labour practice on the part of the petitioners and while holding that the practices adopted were illegal and unfair, it was directed by the Courts below that the benefits of permanency ought to be given to the workman who has put in more than 15 years of service and that oral termination of his service was vitiated in law. If on the basis of the material on record, it is evident that the respondent has put in more than 15 years of services and his case that he has completed service of 240 days in every year, is not falsified, then, directing that he should be reinstated in service with backwages, and modifying that direction considering that the respondent is still in service of the petitioners, does not amount to infringing or acting contrary to the constitutional guarantee of equality in public employment and the mandate flowing from Articles 14 and 16 of the Constitution of India, which is the main plank of the argument before. Having found that the Courts below acted within their limits while adjudicating the complaints of unfair labour practice and complied with the principles of labour and industrial jurisprudence, then, all the more the argument cannot be accepted.
1. Rule. Respondents waive service in both petitions. By consent, Rule made returnable forthwith. As both Writ Petitions involve common questions of facts and law, they are being disposed of by this common judgment.
2. By Writ Petition No.3208/2011 under Articles 226 and 227 of the Constitution of India, the Petitioner challenges the orders passed by the Industrial Court and the Labour Court on 2nd February, 2011 and 25th October, 2007 respectively.
3. The Labour Court by the order dated 25th October, 2007 passed in Complaint (ULP) No.317 of 2002 has directed the Petitioners before this Court to reinstate the Respondent/Complainant in service on the original post and place him anywhere where work is available. However, he should be given continuity of service and full back wages from the date of his termination till the date of the order of the Labour Court by adjusting monthly wages and other benefits given to the Respondent/Complainant during the pendency of the complaint.
4. A Revision Application (ULP) No.23 of 2008 filed by the Petitioners has been dismissed by the Member, Industrial Court at Pune on 2nd February, 2011, thereby, upholding the order of the Labour Court.
5. The Petitioner is the Divisional Manager, Forest Development Corporation of Maharashtra Limited. It is a Company registered under the Companies Act, 1956. It is a Government of Maharashtra Enterprise. The Respondent filed the above mentioned complaint alleging unfair labour practices enlisted in Schedule IV Item No.1(a), (b), (d), (f) and (g) of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 (in short, MRTU & PULP Act, 1971). The Respondent alleged in the complaint that he is working in the office of the Petitioners as Office Attendant/Assistant. The Respondent further states that he is a permanent workman. It is stated that he has been working as such from February, 1991 at the office of the Petitioners at Satara. However, the Petitioner appointed him on daily wage basis. It has been alleged specifically that although the Respondent is appointed as Office Attendant/Assistant, yet he has been working as a Class-IV employee. The Respondent has educational qualification of XI-th Standard pass and, therefore, he is carrying out all routine jobs. Thereafter, in 1997 the Satara Division Project was transferred to the Pune Greenery Zone, Pune Division and, therefore, from June, 1997 the Respondent has been working at Pune Division. He was working as such till 1st December, 2002. The Respondent has completed 240 days of service in every year. It is stated that from 1st December, 2002 the Respondent was terminated orally by the Petitioners. This is contrary to and in violation of law. This act of the Petitioner amounts to an unfair labour practice and the unfair labour practices are mentioned from Paragraph 4 onwards. It is alleged that there are 1,000 permanent workmen employed at various projects all over Maharashtra by the Petitioners. They have been given benefits of all Labour Laws and legislations by the Petitioners. However, from the date the Respondent was appointed he was paid Rs.65/per day only. The Respondent has worked throughout and he has applied by several representations in writing from December, 1997 till 31st October, 2008 that he should be confirmed in service and given all benefits. However, the Petitioners did not extend the benefits arising out of Labour Laws and instead orally terminated the services of the Respondent. All this amounts to an unfair labour practice in terms of the aforestated and aforementioned items of Schedule-IV of the MRTU & PULP Act. Therefore, it was prayed that the complaint be allowed and directions to give permanency benefits to the Respondent be issued after setting aside the termination of services. It was prayed that the Petitioners must stop the unfair labour practices and reinstate the Respondent in service with full backwages and continuity of service.
