High Court
Legal Reasoning
WP-427-2004+.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 427 OF 2004 WITHCIVIL APPLICATION NO. 2888 OF 2010 IN WP/427/2004State Of Maharashtra and OrsVERSUSAhmednagar Zilla Shetmajoor UnionWITHWRIT PETITION NO. 419 OF 2004 WITHCIVIL APPLICATION NO. 2893 OF 2010 IN WP/419/2004State Of Maharashtra and OrsVERSUSAhmednagar Zilla Shetmajoor Union WITHWRIT PETITION NO. 945 OF 2004 WITHCIVIL APPLICATION NO. 2889 OF 2010 IN WP/945/2004State Of Maharashtra and OrsVERSUSAhmednagar Zilla Shetmajoor UnionWITHWRIT PETITION NO. 951 OF 2004State Of Maharashtra and OrsVERSUSShantabai Ashok DetheWITHWRIT PETITION NO. 982 OF 2003Ahmednagar Zilla Shet Majoor UnionVERSUSGovernment Of Maharashtra And OrsWITHWRIT PETITION NO. 987 OF 2003UmeshPage 1 of 10 WP-427-2004+.odtAhmednagar Zilla Shet Majoor UnionVERSUSGovernment Of Maharashtra And Ors...Mr. B. A. Shinde, Advocate for the Petitioners in WPNos.427/2004, 419/2004, 945/2004 & 951/2004 & forRespondents in WP Nos. 982/2003 & 987/2003Mr. S. T. Shelke, Advocate for Petitioners in WP Nos.982/2003 & 987/2003 and for Respondents in WPNos.427/2004, 419/2004, 945/2004 & 951/2004 ...CORAM:R.M. JOSHI, JDATE:NOVEMBER 21, 2024COMMON ORDER : 1.These Petitions take exception to judgment andorder dated 27.11.2002 passed in Complaint ULP Nos.112/1992, 322/1993, 208/1996, 244/1992, 314/1994 to320/1994 & 350/1994 (129/1998) and Review Applications.The Industrial Court by impugned order dated27.11.23002 has held that the Petitioners havecommitted unfair labour practice and directed to ceaseand desist from the same. A further direction wasissued that the workmen, who are members of theComplainant/Union, be made permanent in the service.Being aggrieved by this judgment and order, thesePetitions are filed.2.Parties are referred to as Union, Workmen andUmeshPage 2 of 10 WP-427-2004+.odtHorticulture Department for the sake of brevity.3.Union filed above Complaints on behalf oftheir member workmen alleging unfair labour practiceagainst Horticulture Department under items 5 and 6 ofSchedule IV of Maharashtra Recognition of Trade Unionsand Prevention of Unfair Labor Laws Practices Act, 1971(for short “Act of 1971”) before the Industrial Court,Ahmednagar. It is the case of the Union that theworkmen concerned are working with the HorticultureDepartment on daily wages on pay of Rs. 19 per day. Itis also claimed that these workmen have rendereduninterrupted and continuous employment for more than 7to 8 years. It is alleged that though these workmen areperforming the permanent nature of work, they aredenied permanency and benefits of permanency. It isclaimed that on account of the same, workmen aresustained financial losses of Rs. 700 per month andother incidental benefits. It is thus claimed that inspite of workmen performing continuous work for morethan 7 to 8 years, they denied permanency and hence,same amounts to unfair labour practice. With theseaverments, relief of deemed permanency is sought.UmeshPage 3 of 10 WP-427-2004+.odt4.Horticulture Department filed writtenstatement and denied contentions of the Union. It isspecifically denied that the workmen concerned aredaily wagers and they are continuously working on apermanent nature of work for 7 to 8 years as alleged.It is claimed that as and when the work is availablethe daily wagers are provided the work and are paidwages as per the Minimum Wages Act. It is denied thatdeliberately they are deprived of status of permanencyand benefits thereof. It is also claimed that thecomplaint is belated and hence, deserves dismissal.5.Learned Industrial Court framed issues wherebyinitial burden was placed on the Union to prove thatthe concerned workmen are deprived of benefits ofpermanency and that the same amounts to unfair labourpractice. Issue was also framed as to whether the Unionproves that the workmen are entitled for permanentstatus and benefits thereof. The Union in support ofits case examined witnesses so also Department led oraland documentary evidence in support of its defence.6.Learned Industrial Court while passingUmeshPage 4 of 10 WP-427-2004+.odtimpugned judgment has held that the nature of workcarried out by the workmen is available for 12 monthsevery year and that it is a permanent nature of workand the employees are deployed on daily wages for yearstogether but status of permanency has not been given tothese employees. It is also held that in view ofStanding Order 4C, the workmen are entitled for deemedpermanency. It is, therefore, held that this amounts tounfair labour practice. Consequently, direction wasissued for deemed permanency of these workmen.7.Learned AGP appearing on behalf of Departmentsubmitted that learned Industrial Court has committederror in granting permanency to the workmen contrary tothe law settled by this Court. It is his submissionthat the law is fairly settled to say that the conceptof deemed permanency under Standing Order 4C has noapplication to the State and its instrumentalities. Tosupport his submissions, he placed reliance on judgmentand order of Coordinate Bench of this Court in cases ofThe State of Maharashtra and Others vs. The ShetkariShetmajoor Panchayat Maharashtra and Ors, (WritPetition No. 15221/2017, decided on 04.07.2019) &UmeshPage 5 of 10 WP-427-2004+.odtGovernment of Maharashtra and Others vs. MohanraoDhondiba Sonawane (Writ Petition No. 1581/2004, decidedon 20.03.2018).8.Learned Counsel for Respondent/Unionvehemently supported the impugned judgment. It is hissubmission that once the Industrial Court has recordedfindings of the fact that the workmen concerned areperforming permanent nature of work for years togetherand as such, no fault can be found with the directionissued by the Industrial Court granting deemedpermanency to them.9.The findings recorded by the learnedIndustrial Court in respect of nature of work performedby the workmen concerned is based on evidence ledbefore it and as such, in exercise of writjurisdiction, this Court is not inclined to cause anyinterference therein. The question arises before thisCourt as to whether it was open for the IndustrialCourt to grant permanent status and consequentialbenefits of permanency to the workmen concerned bytaking aid of Standing Order 4C of IndustrialEmployment (Standing Orders) Act, 1946. In this regard,UmeshPage 6 of 10 WP-427-2004+.odta reference can be made to the judgment of the DivisionBench of this Court bench at Nagpur in the matter ofMunicipal Council, Tirora and Another vs. TulsidasBaliram Bindhade, 2016 (6) Mh.L.J, 867 wherein in nouncertain terms it is held that principle of deemedpermanency under Standing Order 4C and 4D would not beapplicable to the State instrumentalities. In thisregard, further reference can be made to the judgmentof the Hon’ble Supreme Court in case of Secretary,State of Karnataka and Others vs. Umadevi (3) andOthers, (2006) 4 SCC wherein it is held that conferringstatus of permanency on those who have been appointedon ad hoc basis, temporary basis, or based on noprocess of selection as envisaged by rules, does notarise.10.In the light of above binding precedents, itwas not open for the learned Industrial Court to grantpermanency even after recording the finding that theworkmen are doing work of permanent nature for yearstogether by taking aid of standing Order 4C ofIndustrial Employment Standing Order Act.11.Learned AGP has placed reliance on theUmeshPage 7 of 10 WP-427-2004+.odtjudgment of the Coordinate Bench of this Court citedsupra. This Court in those judgments has taken intoconsideration the fact that the workmen concerned areworking for years together and it would be unfair toremand the matters to the Industrial Court anddirections are issued to balance equities and to dojustice to the parties. This Court finds no reason totake any different view than the one taken by theCoordinate Bench of this Court in judgments citedsupra. Hence, Petitions are disposed of in followingterms. Directions issued by the Industrial Court arereplaced with following directions:(a) The petitioner shall prepare a proposalof the complainants alongwith such othersimilarly situated and comparable daily-wage employees.(b) The proposals shall include the exactduration of service of such daily-wagers,the nature of work performed by them andthe last drawn wages.(c) Such proposal shall be forwarded to theDepartment of Agriculture through itsSecretary, Government of Maharashtra,Mantralaya, Mumbai within a period of 3UmeshPage 8 of 10 WP-427-2004+.odtmonths from today.(d) The said authority would consider thesaid proposals in the light of availablepermanent sanctioned posts and shall grantregularization to these daily-wagersstrictly as per their length of service andtheir seniority, within 04 months.(e) If sufficient posts are not availableto accommodate all such daily-wagers, thepetitioner, while following the aboveprinciple, would consider the claims ofsuch daily-wagers in a staggered manner andas and when such position becomesavailable, the daily- wagers would beregularized.(f) These daily-wagers shall not beterminated for the reason that they areworking on daily-wages or because theirproposals are pending.(g) They would be continued in employmentuntil permanent sanctioned posts becomeavailable and their turn arrives forregularization. This protection would notinclude cases of disciplinary action.12.It be noted that in the event any such daily-wager who may have approached the Court, hasUmeshPage 9 of 10
Decision
WP-427-2004+.odtsuperannuated, his case would be considered in view ofthe above directions and if he is entitled toregularization with retrospective effect, he or hislegal heirs, as the case may be, would be grantednotional benefits alongwith all monetary benefitswithin the same period as directed above.13.Pending civil applications, if any, standdisposed of. (R. M. JOSHI, J.) UmeshPage 10 of 10