Back
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT NAGPUR BENCH, NAGPUR
A.S. CHANDURKAR, PUSHPA V. GANEDIWALA, JJ.
Bal Mandir Sanstha (Paranjpe School) – Appellant
Versus
Devidas Kawaduji Raghute – Respondent
Letters Patent Appeal No.459 of 2011 In Writ Petition No.5522 of 2010(D)
Decided on : 30-09-2021
Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 - Section 28 - Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 – Sections 2(7), 3(1), 5, 5(1), 5(2), 5(5) - Industrial Disputes Act, 1947 - Section 25B - Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 – Rules 6, 7, 7(3), 8(2), 8(1)(b), 10(1),10(2), 9,9(3), 20,21 - Constitution of India 1950 – Article 226,227 - Relief of Regularisation - Unfair labour practice - Whether case as pleaded by employee in complaint was clear for being defended by the employer? - Employer filed its written statement and admitted that employee joined services as Peon on monthly salary stated that was employed on part time basis. Averments with regard to getting salary and completion of 240 days continuous services were admitted - Further pleaded that employee had been given a free quarter to reside and if rent of the quarter, charges of electricity and water were computed in terms of money he was getting Rs.400/- to Rs.500/- per month in addition to Rs.600/- per month which was admittedly paid. It was further denied that any favouritism was shown to any junior. The employer took the stand that the services of the employee could not be regularised as there was no sanctioned post either of Laboratory Attendant, Peon or Chowkidar.
Finding of the Court :
Court finds that case as pleaded by the employee was not vague and it was clearly pleaded that his services were continued as temporary despite completion of continuous service of more than 240 days for a number of years. Court does not find that the employer was in any manner prejudiced or was not in a position to meet the case as pleaded by the employee - It is found that there was no sanctioned post available on which employee could discharge his duties. Since services of employee were engaged till he attained age of superannuation, it is clear that employer was in need of his services on post of Peon. In absence of a sanctioned post of Peon on which employee could be accommodated, he would not be entitled to relief of regularisation despite completing continuous service of more than 240 days in a number of years. Similarly he would not be entitled to the relief of being declared “deemed permanent” under Section 5(2) of the Act of 1977 as the post of Peon was not admissible under Rule 8(1)(b) of the Rules 1981. There is material on record in form of admission of the employee that he was being paid salary as agreed by the employer. The departure therefrom is first evident from the month of November vide salary slip at Exhibit 44. Hence he would be entitled to receive salary as per pay scale admissible under Schedule C of the Rules 1981 from November till his superannuation. For the reasons stated hereinabove the judgment of the Industrial Court as upheld by the learned Single Judge in Writ Petition deserves to be modified on aforesaid lines as a case of commission of unfair labour practice under Item 9 of Schedule IV of the Act of 1971 to the aforesaid extent has been made out - While endeavor and effort to bring home point that is urged by counsel is understandable, no useful purpose is served by citing decisions which merely reiterate a settled legal position. Where the legal position stands settled, usually one decision for such proposition should suffice unless there is an effort to make out a new point or to urge some distinguishing feature.
Result : Appeal partly allowed
JUDGMENT :
A.S. Chandurkar, J.
In this Letters Patent Appeal filed under Clause 15 of the Letters Patent the judgment of learned Single Judge dated 04.10.2011 in Writ Petition No.5522/2010 is under challenge. The complaint filed by the respondent no.1 seeking the relief of regularisation on the post of Peon has been allowed by the Industrial Court by its judgment dated 14.10.2010 and the writ petition preferred by the appellant under Articles 226 and 227 of the Constitution of India challenging that judgment has been dismissed giving rise to the present appeal.
2. The facts in brief as can be gathered from the averments made in the complaint filed by the respondent no.1-employee are that he joined the services of the appellant-employer on the post of Peon from 04.01.1986 on monthly salary of Rs.200/-. Thereafter from 01.07.1987 to 01.03.1993 he worked in the capacity as Peon cum Laboratory Attendant on monthly salary of Rs.300/-. He was also working as Chowkidar at night and was being paid monthly salary of Rs.500/-. According to the employee, the employer was running three institutions that were receiving financial aid from the Zilla Parishad. The employee having completed more than 240 days continuous service in 1986 itself, he was entitled to be made a regular and permanent employee. However his services were continued on temporary basis with the object of depriving him of all the benefits and privileges of a regular and permanent employee. Juniors to him in the same category were made regular and permanent by giving them salary as per permanent scale. This amounted to showing favouritism and partiality to one set of employees thus resulting in commission of unfair labour practice. According to the employee, he was getting meagre salary of Rs.600/- per month but his services were not regularised which gave cause of action to file complaint under Section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short, ‘the Act of 1971’) invoking Items 5, 6 and 9 of Schedule IV of the Act of 1971. This complaint was filed on 14.07.1993. The employer filed its written statement and admitted that the employee joined services from 04.01.1986 as Peon on monthly salary of Rs.200/-. It was stated that he was employed on part time basis. The averments with regard to getting salary of Rs.500/- per month and completion of 240 days continuous services were admitted. It was further pleaded that the employee had been given a free quarter to reside and if rent of the quarter, charges of electricity and water were computed in terms of money he was getting Rs.400/- to Rs.500/- per month in addition to Rs.600/- per month which was admittedly paid. It was further denied that any favouritism was shown to any junior. The employer took the stand that the services of the employee could not be regularised as there was no sanctioned post either of Laboratory Attendant, Peon or Chowkidar. He had been appointed as an additional temporary Class-IV employee and by the order dated 02.04.1993 his appointment was continued on the same terms and conditions until further orders. There was only one post of Peon available in the primary school run by the appellant and hence all appointment orders given to the employee were of temporary nature as an additional hand and not on any regular sanctioned post. It was thus submitted that the complaint was liable to be dismissed.
3. Before the Industrial Court the employee examined himself while on behalf of the employer its Director was examined. Both parties placed various documents on record and after considering the same the learned Member of the Industrial Court recorded a finding that the employee had completed continuous service of more than 240 days since 04.01.1986. His evidence was found more reliable and trustworthy. In the light of the finding that continuous service of more than 240 days had been rendered since appointment, the employee was held entitled to the
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
