2000(4) ALL MR 407
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)
R.J. KOCHAR, J.
Zilla Parishad Ahmadnagar & Anr. Vs. Ramesh Sadashiv Dukre & Ors.
Writ Petition No. 326 of 1989
16th June, 2000
Petitioner Counsel: Shri. S.T.SHELKE
Respondent Counsel: Shri. P.B.SHIRSATH, Shri. N.P.& S.P.DARANDALE, Shri. P.K.PALVE
Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act (1971), Sch.IV, Item 6 - Industrial Employment (Standing Orders) Act (1946) - Model Standing Orders, Cl.4C - Permanency and regularisation - Drivers - Zilla Parishad employees - Appointment against clear vacancies to meet exigencies of time - Working continuously on daily wages for several years and providing satisfactory services - Recruited following procedure prevalent at that time - Recruitment Selection Board not in existence at time of appointment - Continuance of such employees on daily wages is an unfair practice U/Item 6 - Contention that appointment was irregular as candidates not sent by Selection Board - Unsustainable.
Chief Conservator of Forests vs. Jagannath Maruti Kondhare, A.I.R. 1996 Supreme Court 2898 [Para 3]
JUDGMENT :- The petitioner, Zilla Parishad, Ahmednagar, through its Chief Executive Officer and the District Health Officer, Zilla Parishad, Ahmednagar are aggrieved by the judgment and order dated 11.3.1988 passed by the learned Member of the Industrial Court, Ahmednagar in complaint (ULP) No.306/86 filed by 12 complainants employed under the petitioners as drivers claiming permanency and regularisation in the vacant posts of drivers. It was alleged against the petitioners by the respondents employees that they were recruited on or about 15.3.84 in clear vacant posts of drivers by following regular recruitment procedure i.e. they were required to undergo interview and tests and thereafter they were issued appointment orders. It was their complaint that though they had completed more than 240 days continuous employment they were continued as Badlis/temporary on daily wages and they were deprived of the benefits of permanency. They had invoked the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 and filed a complaint of unfair labour practice U/s.28 read with items 5 and 6 of schedule IV of the Act. The nub of their complaint was this that they were appointed after following regular recruitment procedure which was prevailing at the time of their employment and they having undergone successfully the tests to which they were subjected, they were issued appointment orders but they were continued only as daily wage earners on temporary basis with an object of depriving them of the benefits of permanency. The complaint filed by the respondents was contested by the present petitioners. Both the parties filed their pleadings and all the necessary documents before the Industrial Court. Both the parties adduced their oral evidence. The learned Member of the Industrial Court on going through the material on record held that the petitioners had engaged in an unfair labour practice within the meaning of item 6, Schedule IV of the Act and directed them to desist from engaging in such a practice and further directed them to make all the respondent employees permanent on the posts of drivers with effect from 30.6.1986 and fix their pay in the cadre of drivers with effect from 30.6.1986. It was further directed that they should be given regular annual increments and other benefits of permanency with effect from 30.6.1986. It was also directed that all the arrears payable to them should be paid within a period of three months from 11.3.1988, the date of the order. The petitioners have filed the present writ petition to challenge the said order of the Industrial Court under Article 227 of the Constitution of India. At the time of admission of the above petition the learned Single Judge of this Court was pleased to grant interim orders in terms of prayer clause (C) and also to restrain the petitioners from terminating the services of the respondents. The said interim order is still in operation and the concerned respondents are continuing in employment as on today.
2. Shri. Shelke, learned advocate for the petitioners has pointed out that the respondent No.6 was dismissed from employment for his act of misconduct and the respondent No.7 had expired. It further appears that the respondent No.11 is also not interested to prosecute this petition. I am informed across the Bar by both the learned advocates that he is not available. Shri. Shelke, further submitted that the order of the Industrial court is not sustainable in law as the recruitment of the respondents drivers was not in accordance with the rules as their names were not forwarded by the Regional Selection Board and therefore, their appointments were not legal and valid and therefore, they had no right to continue in employment much less to be regularized in service. It was also pointed by him that the petitioners had approached the State Government for permission to regularize the respondents employees but such a request was turned down by the State Government and therefore, they are helpless in the matter. No other point was canvassed by the learned advocate for the petitioners.
3. Shri. Shirsath, learned advocate for some of the respondents has taken me to the appointment orders issued by the petitioners to show that they were recruited and appointed after following the regular procedure of recruitment prevailing at that time. They had undergone the required interview and tests and were selected and were given appointments in vacant posts of drivers. Though it is a fact that the appointment order mentions that the appointments were on daily wages and for temporary period, it is rather strange that clear vacancies were filled in by appointing daily wage earners and for temporary period. The intention of the petitioners was clear that in view of the exigencies of the situation these appointments were required to be made to fill up the clear vacancies of the drivers. It further appears that by its letter dated 5.8.85 a proposal was also sent by the petitioners to the State Government seeking permission or sanction to fill up the sanctioned posts of drivers by the method of direct recruitment through the employment exchange or from some other agencies. The work of family planning was required to be undertaken on expeditious basis and therefore, the petitioners needed drivers on urgent basis. It was in these circumstances the respondents were also recruited by following the said procedure. The learned advocate for the respondents also pointed out that there is no dispute about the existing vacancies of drivers available and that the respondents have been continuously working in the vacant posts for daily wages. Their work is to the satisfaction of the administration and there is no complaint of any nature against them, says the learned advocate. In the aforesaid circumstances, Shri. Shirsath, submits that there is no error of law committed by the Industrial Court in directing the petitioners to make the respondents permanent with retrospective effect from the date of the complaint i.e. 30.6.86. Shri. Shrinath further submits that this court should not interfere under the extraordinary jurisdiction of Article 227 of the Constitution of India, in the order which is based on facts and there is no error of law committed by the learned Member of the Industrial Court. He has also relied on a judgment of the Supreme Court reported in A.I.R. 1996 Supreme Court 2898 between Chief Conservator of Forests and another Vs. Jagannath Maruti Kondhare. He pointed out that this judgment was dealing with item 6 schedule IV of the very same Act, and therefore, it has direct bearing on the subject.
4. I have heard both the learned counsel and I have also gone through the proceedings carefully. From the admitted facts it is clear that the respondents drivers were appointed in clear vacancies. It is also an admitted fact that they are still continuing in the employment though, under the orders of the Court. One of them was dismissed for his act of misconduct after taking permission from this Court. Since others are continuing, it can be inferred that there is no complaint against any of them and that they are rendering proper and satisfactory service. From the appointment orders it is clear that they were appointed in clear vacancies. It is further clear that they were recruited by following the recruitment procedure prevailing at that time. It is also clear that they were not picked up and arbitrarily appointed. They were subjected to the procedure of interview and tests and they were appointed only when they had succeeded in such interviews and tests. To meet the exigency of the time the petitioners had recruited them without waiting for the formation of the recruitment selection board and without waiting for a long period which would have been consumed by the Government in announcing such selection board which would have given advertisement, inviting applications etc. This would have taken a very long period while the petitioners were directed by the State Government to implement the Family Planning Scheme on expeditious basis. In these circumstances, we cannot blame the petitioners when they have recruited the respondents drivers by following a reasonably well accepted procedure for recruiting the employees. As I have said that the respondents were not merely arbitrarily picked up and appointed. They were subjected to the regular tests and interview and they were appointed thereafter only. In these circumstances, it cannot be said that their appointments were illegal or malafide or irregular in any sense. One more fact which we cannot lose sight is that at that time the recruitment selection Board was not in existence. The respondents drivers therefore, cannot be blamed nor can the petitioners be blamed if these candidates were not sent by the Recruitment Selection Board as it was not in existence at all at that time. In these circumstances, the employment or recruitment of the respondents drivers cannot be said to be illegal and irregular. The only objection which the State Government appears to repeat is that the concerned respondents' names were not forwarded by Selection Board. It is quite strange that when the Selection Board itself was not established, how the State Government was expecting such non existing agency to forward the names after following the required procedure for selection. In my opinion, all the respondents drivers having continued in employment for a long period of more than 15 years, it would be in the interest of justice to direct the petitioners to implement and obey the order of the Industrial Court without disturbing it in any manner. As far as the law is concerned, it is an unfair labour practice under item 6 of Schedule IV of the Act to continue employees for years together as casual, Badli or temporary with an object of depriving them of the benefits of permanency. In the present case the drivers are continued on daily wages and they are not given the regular pay scale. The Legislature views such an act on the part of the employer to be an unfair labour practice. There is another point in favour of the respondents drivers and i.e. clause 4C of the Model Standing Orders framed under the Industrial Employment (Standing Orders) Act, 1946. According to the said provision a Badli or temporary workman, who has put in 240 days uninterrupted service in the aggregate in any establishment during the period of twelve calendar months shall be made permanent in that establishment. The principle underlining the said Standing Order can also be applied in the present case. The Legislature has contemplated that none who has put in 240 days uninterrupted continuous service should be continued as Badli, casual or temporary. Applying this principle which enhances the cause of justice, the respondents drivers must succeed. The Industrial Court has considered all the aspects exhaustively and has directed the petitioners to make the drivers permanent with effect from 30.6.1986 and pay them all the benefits of permanency. I do not find any error in the said order to interfere with under Article 227 of the Constitution of India. There is no illegality or infirmity in the impugned order. The petition fails and the same is dismissed with no order as to costs. Rule is discharged.