Atmaram And Others vs Dairy Manager And Others

Amit B. Borkar, J

Heard.

Both the Writ Petitions arise out of common judgment rendered by the Industrial Court directing regularization of the complaint as unskilled labour with effect from 01.02.1985.

Writ Petition No.1628/2010 is by the original opponents challenging judgment and award delivered by the Industrial Court. Writ Petition No.5387/2007 challenges judgment and award to the extent it restricts the monetary claim of the complainant from 16.12.2005.

The facts relevant for the adjudication of the petitions are as under :

The complaint was filed under Item 5, 6 and 9 of Scheduled IV of the Maharashtra Recognition of Trade Unions And Prevention of Unfair Labour Practices Act, 1971, seeking a declaration that the opponents have indulged in unfair labour practice by not paying salary as per pay scale of dairy attendant to the complainant from 01.02.1985 and not continuing to apply the pay scale. He also sought a declaration that he is entitled to be absorbed in the cadre of the dairy attendant. Further relief of the payment of arrears of salary difference from 01.02.1985 was also sought. The complainant averred that he was initially appointed by the order dated 01.06.1984 as a labour on daily wages, and since then, he has been working continuously with the opponents. Although according to him, he was appointed as labour, he was given the duty of dairy attendant in 1985 and was working on the said post till the date of filing of the complaint. According to him, since he had rendered seven years of continuous service with the opponents as dairy attendant, he was entitled to all regular benefits of the post of dairy attendant.

The opponents contested the case by filing a written statement pointing out that initially, the complainant was appointed as an unskilled worker on daily wages from 04.12.1984. It is stated that the complainant was working as an unskilled worker on daily wages and was accordingly paid and never worked as a dairy attendant; therefore, there was no question of payment of wages of dairy attendant to the complainant. Furthermore, it is stated that the persons named in the complaint who were granted benefits of regularization were not similarly situated persons as they were appointed as dairy attendants. Therefore, the opponents prayed for the dismissal of the complaint.

The learned Industrial Court, by the impugned judgment, directed that the complainant is entitled to regularization as unskilled labour with effect from 01.02.1985 and is further entitled to monetary benefits from 16.12.2005. Aggrieved thereby, present two petitions are filed.

Mr. Madiwale, learned A.G.P. for State, submitted that the petitioner was appointed as daily wage labour and was never appointed as dairy attendant. He invited my attention to the admission by the complainant that even on the date of cross-examination, the complainant was working as daily rated unskilled labour. He admitted that three persons named in the complaint were senior to him and since beginning working as dairy attendant. He, therefore, submitted that the complainant was not entitled to regularization of service. He placed reliance upon the following judgments :

1] Municipal Council, Jintur Vs. Sunder Namdeo Khillare [2013(4) Mh.L.J. 770]

2] Pandurang Sitaram Jadhav and Ors. Vs. State of Maharashtra Through Its Dairy Manager and Anr. [(2020) 17 SCC 393]

3] Gangadhar Pillai Vs. Siemens Ltd. [(2007) 1 SCC 533]

4] State of Karnataka and Ors. Vs. Sri G. V. Chandrashekar [2009 (3) Scale 653]

5] State of Bihar Vs. Upendra Narayan Singh and Ors. [(2009) 5 SCC 65]

6] Writ Petition No.7520/2022 (Sharad s/o. Prahakar Sonwane and Ors Vs. The State of Maharashtra and Anr.) And Writ Petition No.7578/2022 ( Chetan s/o. Nivrutti Mahajan and Anr. Vs. The State of Maharashtra and Anr.) Decided on 12.08.2022.

7] Civil Appeal No.1878/2016 (Oil and Natural Gas Corporation Vs. Krishan Gopal and Ors.

Per contra, Mr. Dharmadhikar, learned Advocate for the complainant, submitted that the Industrial Court has rightly granted relief of regularization, holding that the documents placed by the complainant on record indicate that skilled labour was regularized as skilled labour and unskilled labour has regularize as unskilled labour. The Industrial Court holds that the complainant was in continuous service as unskilled labour following the rule of parity. Therefore, the complainant was held to be entitled to the relief of regularization on the post of unskilled labour. He submitted that since the relief of regularization was granted from the date of order of this Court in Writ Petition No.5820/2005, the Industrial Court ought to have granted it from 01.02.1985. He placed reliance upon the following judgments :

1] Maharashtra State Road Transport Corporation and Anr. Vs. Casteribe Rajya Parivahan Karmchari Sanghatana [(2009) 8 SCC 556.

2] Gangadhar Balgopal Nair Vs. M/s. Voltas Limited and Anr. [2007(1) Mh. L. J. 754].

3] Maharashtra Lok Kamgar Sanghatana Vs. Ballarpur Industries Ltd. And Anr. [2011(1) Mh.L.J. 93].

4] Ichalkaranji Municipal Council Vs. Praveen Shivgonda Patil and Anr. [2010 (6) Mh.L.J. 465].

5] Damodhar s/o. Mahipat Gawande and anr. Vs. Deputy Engineer, GSDA, Buldhana and Ors. [2010(4) Mh.L.J. 96].

6] Municipal Council, Jintur Vs. Sunder Namdeo Khillare [2013(4) Mh.L.J. 770].

Having considered the submissions made on behalf of both sides and having considered the evidence on record, it appears that the following are the proof of undisputed facts :

i] The complainant was appointed as a daily wage worker and continuously worked as a daily wage worker.

ii] In view of admission in the cross-examination by the complainant, the persons named in the complaint who were regularized were senior to him and had been working since the beginning on the post of dairy attendants.

iii] The complainant was never appointed on the sanctioned post, nor is it a case where despite the availability of a permanent post, the complainant was continued as a daily wager.

iv] It is not the case of the complainant that he was engaged and continued on daily wage with the object of depriving him of benefits available to permanent employees.

Mr. Madiwale, learned A.G.P. for State rightly relied on the judgment in the case of Oil and Natural Gas Corporation (supra). The Hon'ble Apex Court, in paragraph 23 of the said judgment, took stock of all the relevant judgments on the point, including Umadevi and Maharashtra State Road Transport Corporation (supra), and relied on the complainant, laid down the following proposition of law.

“23. The following propositions would emerge upon analyzing the above decisions:

(i) Wide as they are, the powers of the Labour Court and the Industrial Court cannot extend to a direction to order regularisation, where such a direction would, in the context of public employment, offend the provisions contained in Article 14 of the Constitution;

(ii) The statutory power of the Labour Court or Industrial Court to grant relief to workmen including the status of permanency continues to exist in circumstances where the employer has indulged in an unfair labour practice by not filling up permanent posts even though such posts are available and by continuing to employ workmen as temporary or daily wage employees despite their performing the same work as regular workmen on lower wages;

(iii) The power to create permanent or sanctioned posts lies outside the judicial domain and where no posts are available, a direction to grant regularisation would be impermissible merely on the basis of the number of years of service;

(iv) Where an employer has regularised similarly situated workmen either in a scheme or otherwise, it would be open to workmen who have been deprived of the same benefit at par with the workmen who have been regularised to make a complaint before the Labour or Industrial Court, since the deprivation of the benefit would amount to a violation of Article 14; and

(v) In order to constitute an unfair labour practice under Section 2(a) read with Item 10 of the Vth Schedule of the ID Act, the employer should be engaging workmen as badlis, temporaries or casuals, and continuing them for years, with the object of depriving them of the benefits payable to permanent workmen.”

In the light of the recent judgment laid down by the Hon’ble Apex Court, in my opinion, the complainant’s case is squarely covered by the said judgment as it is an undisputed fact that there was no permanent post available nor the complainant was appointed on any post. The complainant admitted in the cross-examination that even on the date of cross-examination, he was working as a daily wage worker. He also admitted that the persons named in the complaint who were allegedly similarly situated were senior to him and appointed on dairy attendants post. Undisputedly, it is not the case of the petitioner that he was\ continued as a daily wage worker with the object of depriving him of benefits available to permanent employees.

For the aforesaid reasons, I pass the following order :

ORDER

1] Rule is made absolute in Writ Petition No.1628/2010 in terms of prayer clause – (i), which reads as under :

“quash and set aside the Order dated 3rd September 2007 At Annx – D passed by the Member, Industrial Court, Nagpur in Complaint ULPA Noi. 327/1992.”

2] Writ Petition No. 5387/2007 is dismissed.

3] No order as to costs. Pending Civil Application(s), if any, stand(s) disposed of.