Deputy Conservator of Forest and Others vs Purushottam and Others

Z.A. Haq, J.—Heard Shri P.A. Gode, learned advocate for the petitioners/employer and Shri V.D. Raut, learned advocate for the respondents/employees.

In these petitions common order passed by the Industrial Court in complaint filed by Shri Purushottam s/o Krishnaji Chafle (respondent in Writ Petition No. 2451/2008), Shri Ankush s/o Mahadeo Bawne (respondent in Writ Petition No. 2960/2008) and Shri Vinayak s/o Laxman Gawatre (respondent in Writ Petition No. 3279/2008) has been challenged and, therefore, these petitions are disposed of by the common judgment.

The respondents in these petitions challenged the show cause notice issued by the employer calling for the explanation of the employees as to why the order dated 28th February, 1996 issued in their favour regularizing their services should not be withdrawn. The industrial Court, after conducting the trial, found that the employees were entitled for regularization having completed 240 days in the preceding 5 years. The Industrial Court has quashed the show cause notice, the effect of which is that the employees have to be treated as regular employees on the establishment of the employer.

According to the employees they had been working with the employer since 1990 and each year they had worked for more than 240 days. The services of the employees were regularized by the orders dated 28th February, 1996. Subsequently, the employer issued show cause notice dated 28th January, 1997 stating that the employees were not entitled for regularization as per the Government Resolution dated 31st January, 1996 as they had not completed 5 years'' continuous service on 1st November, 1994. The employer called for the explanation from employees as to why the order dated 28th February, 1996 should not be cancelled.

The employees filed complaint before the Industrial Court contending that they were entitled for regularization, as they had been in the employment since 1990 and had worked for more than 240 days in each year.

The employer opposed the claim of the employees. The employer pointed out that the posts in which the employees had been working were not on his establishment and the State Government had taken the policy decision to confer the benefits on certain categories of employees. The employer pleaded that the Government Resolution dated 31st January, 1996 was issued, regularizing the services of employees who were in employment for 5 years prior to 1st November, 1994. The employer pointed out that the employees were not in the employment in 1989 and had not completed 240 days in 1990 and therefore, they were not entitled for regularization as per the Government Resolution dated 31st January, 1996. According to the employer, the orders dated 28th February, 1996 regularizing the services of the employees were wrongly issued and when the mistake was noticed, the show cause notice was issued giving an opportunity to the employees to explain as to why the order dated 20th February, 1996 should not be cancelled. It is the case of the employer that Shri E.M. Kurzekar, who was working as Range Forest Officer at the relevant time had illegally issued the order regularizing the services of the employees and when the mischief of Shri E.M. Kurzekar was noticed, the show cause notice was issued to the employees and departmental enquiry was also initiated against Shri R.M. Kurzekar. The employer prayed that the complaint filed by the employees be dismissed.

The Industrial Court, after conducting the trial, concluded that the employees had been in the employment of the employer for 5 years prior to 1st November, 1994 and in each year the employees worked for more than 240 days. Accordingly, the Industrial Court granted relief to the employees quashing the show cause notice dated 28th January, 1997. The employer being aggrieved by the order passed by the Industrial Court, has filed these writ petitions.

In paragraph no.13 of the impugned order the Industrial Court has recorded the number of days for which the employees had worked with the employer during the period from 1989 till 1994. The facts recorded in paragraph no.13 show that the employees had not worked with the employer in 1989 and had not worked for 240 days in 1990. The submission on behalf of the employees is that the number of days for which the employees had worked under the Employment Guarantee Scheme are required to be added to the number of days for which the employees have worked on muster roll. Though the Industrial Court has not dealt with this aspect, the Industrial Court has recorded that the employees had worked with the employer for more than 240 days in 1989, 1990 by drawing an inference in favour of the employees as the vouchers for payment of that period have not been produced by the employer.

Be that as it may, in my view, the working for 240 days in a year by the employees will not help the employees in the present cases as the employees have failed to establish that the posts in which they were working were on the regular establishment of the employer. The order dated 28th February, 1996 by which the services of the employees were regularized was issued on the basis of the Government Resolution dated 31st January, 1996. The State Government issued the Resolution dated 31st January, 1996 creating supernumerary posts and regularizing the services of the employees who were working on those posts for the period of 5 years till 1st November, 1994. Clause (4) of the Government Resolution dated 31st January, 1996 states that the posts would continue till the employees working in those posts continue in the employment and on discontinuation of the employees, the posts would automatically lapse. It further states that other employee will not be appointed on the post after discontinuation of the earlier employee. The names of the employees working in the posts which are created under the Government Resolution dated 31st January, 1996 were also given in the list along with the Government Resolution.

Shri Raut, learned advocate for the employees has submitted that the employees are entitled for regularization in view of Clause 4-C of the Model Standing Orders. Per contra, Shri Gode, learned advocate for the petitioners/employer has submitted that the employees cannot claim regularization unless it is established that the posts in which they worked were permanent sanctioned vacant posts. In support of this submission, learned advocate for the employer has relied on the judgment given by the Division Bench of this Court in the case of State of Maharashtra and Another Vs. Pandurang Sitaram Jadhav, of which it is recorded as follows :

"17.......... In our considered view, the order passed by the learned Single Judge cannot be sustained. Provisions of Model Standing Orders by themselves cannot and does not confer any right of permanency unless and until the other two prerequisites are satisfied i.e. (1) appointment being in conformity with the rules relating to appointment and (2) permanent sanctioned vacant posts being in existence."

Considering the ratio laid down by the Division Bench of this Court in the above referred judgment, the claim of the employees for regularization on the basis of Clause 4-C of the Model Standing Orders cannot be accepted in the present case. Consequently, in my view, the order is unsustainable.

Hence the following order :

(i) The impugned order is set aside.

(ii) The complaints filed by the respondents/employees are dismissed.

During the course of hearing of the petitions, the learned advocate for the employer stated that the Government has issued the Resolution dated 16th October, 2012 again conferring the benefits of regularization of services on the employees who had been in the employment for 5 years till 1st June, 2012. The petitioners -employer has filed an affidavit in each of the petition pointing out that the employees (respondents in these petitions) are entitled for regularization as per the Government Resolution dated 16th October, 2012. The list showing the names of the employees whose services are regularized as per the Government Resolution dated 16th October, 2012 is also filed on the record along with the affidavit. The names of the employees (respondents in these petitions) appear in the list.

Shri Raut, learned advocate for the employees has submitted that other employees whose names appear in the list placed on the record by the employer are given benefits by treating them as regular employees, however, similar benefits are not given to the employees who are respondents in these petitions. The employer having extended the benefits of Government Resolution dated 16th October, 2012, to the other employees, the employer will have to confer the benefits on the respondents/employees. The respondents/employees will be entitled for the benefits given to the other employees as per the Government Resolution dated 16th October, 2012.

The submission made on behalf of the employer that the respondents/employees are entitled for regularization as per the Government Resolution dated 16th October, 2012 is accepted. The condition laid down in the Government Resolution dated 16th October, 2012 that the employees whose cases are pending will not be entitled for the benefit of the Government Resolution will not be applied to the case of the respondents/employees.

The employer shall make available to the respondents/employees the benefits for which they are entitled as per the Government Resolution dated 16th October, 2012 and is given to similarly situated employees.

The writ petitions are disposed of in the above terms.

In the circumstances, the parties to bear their own costs.