Vijay Bhujangrao Deshmukh and Others vs Zilla Parishad, Amravati and Others

Z.A. Haq, J.—These three writ petitions raise common point and therefore, they are being disposed by the common judgment. The petitioners-employees had filed complaint before the Industrial Court contending that the respondent-employer indulged in unfair labour practice by not absorbing the petitioners on regular establishment. The Industrial Court, by the impugned order, rejected the complaint filed by the employees and therefore, the employees have filed these writ petitions.

According to the employees, the Rural Development Department of the Government of Maharashtra formulated scheme for repairs and maintenance of hand-pumps fitted on drinking water bore wells constructed under the Rural Water Supply Programme, under which the Zilla Parishad, Amravati was advised to create posts of mechanic on their establishment, one post for every 50 to 100 pumps. The employees contended that the Government of Maharashtra had issued the circular dated 04-04-1978 incorporating the recruitment rules for the post of mechanic which included the required qualifications and age limit. The employees contended that they had the required qualifications i.e. S.S.C. and Diploma of I.T.I. (Mechanic) and their names were enrolled with the Employment Exchange Office. The employees contended that their names were forwarded to the Zilla Parishad, Amravati for appointment on the post of mechanic and accordingly, they were appointed by following the required procedure. The employees contended that their services were not regularised though they had been in the continuous employment and though the posts existed. In these circumstances, the employees filed the complaint before the Industrial Court seeking directions against the employer for the absorption of the employees and conferring the benefits of permanency.

The employer opposed the claim of the employees. The employer contended that the employees were working on contract basis having been engaged for specific period and they were covered by the provisions of the Zilla Parishad Contract Service Rules, 1963. The employer contended that the employees were not entitled for the benefits of permanent employment.

The Industrial Court relying on the judgment given by the Hon''ble Supreme Court in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, AIR 2006 SC 1806 : (2006) 6 CompLJ 1 : (2006) 4 JT 420 : (2006) 2 LLJ 722 : (2006) 4 SCALE 197 : (2006) 4 SCC 1 : (2006) 3 SLJ 1 : (2006) AIRSCW 1991 : (2006) 3 Supreme 415 , dismissed the complaint filed by the employees.

Shri P.S. Patil, the learned Advocate for the petitioners-employees has submitted that the employees were appointed by following the prescribed procedure according to the Recruitment Rules, after their names were forwarded by the Employment Exchange and after they were selected in the interviews. The learned Advocate has pointed out the communication sent by the Rural Development Department of the Government of Maharashtra to the Chief Executive Officer of the Zilla Parishad, on 11-04-1988 directing the regularization of the employees appointed between 18-06-1983 till 17-02-1988 and the norms to be fulfilled by the employees whose service can be regularised. The learned Advocate has further pointed out the circular issued by the Rural Development Department of the Government of Maharashtra on 06-02-1990 prescribing the procedure for condoning the break in service of the employees whose services were to be regularised. It is submitted that the Industrial Court has committed an error in relying on the judgment given in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, AIR 2006 SC 1806 : (2006) 6 CompLJ 1 : (2006) 4 JT 420 : (2006) 2 LLJ 722 : (2006) 4 SCALE 197 : (2006) 4 SCC 1 : (2006) 3 SLJ 1 : (2006) AIRSCW 1991 : (2006) 3 Supreme 415 and rejecting the claim of the employees. It is submitted that the employees are entitled for the relief sought by them, that the order passed by the Industrial Court is required to be set aside and the petitions have to be allowed.

In support of the submissions, Shri P.S. Patil, the learned Advocate has relied on the following judgments.

(i) The judgment given by the Hon''ble Supreme Court in the case of Jasmer Singh Vs. State of Haryana(2015) 2 AD 215 : (2015) 144 FLR 837 : (2015) 1 SCALE 360 : (2015) 4 SCC 458 : (2015) 2 SCJ 391 : (2015) 2 SCT 91 : (2015) 1 SLJ 389 .

(ii) The judgment given by the Hon''ble Supreme Court in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) and Others, (2013) 6 ABR 304 : (2013) 10 AD 89 : (2013) 139 FLR 541 : (2013) LabIC 4249 : (2013) 4 LLN 417 : (2013) 11 SCALE 268 : (2013) 10 SCC 324 : (2013) 4 SCT 716 .

(iii) The judgment given by this Court in the case of The Zilla Parishad, Amravati and another vs. Nandkishor s/o. Ramji Sagar and another in Writ Petition No. 938/2009.

Shri J.B. Kasat, the learned Advocate for the respondent-employer has submitted that the posts on which the employees had been working and for which the employees have made the claim, are not on the establishment of the Zilla Parishad and therefore, permanency cannot be conferred on the employees. The learned Advocate has relied on the provisions of Section 243-A of the Maharashtra Zilla Parishads and Panchayat Samities Act, 1961. It is submitted that the appointments of the employees were on contractual basis for specific period and therefore, the employees are not entitled for permanency as claimed by them. The learned Advocate has relied on the judgment given by the Hon''ble Supreme Court in the case of Md. Abdul Kadir and Another Vs. Director General of Police, Assam and Others, (2009) 8 SCALE 615 : (2009) 6 SCC 611 : (2009) 2 SCC(L&S) 227 : (2009) 9 SCR 611 : (2010) 1 SLJ 125 : (2009) 7 SLR 212 .

Shri A.K. Bangadkar, the learned Assistant Government Pleader has supported the impugned order.

The point involved in the writ petition has already been dealt with by this Court in the judgment given in Writ Petition No. 938/2009 on 10-10-2014. After considering the factual aspects and the submissions made on behalf of the employees and the Zilla Parishad, Amravati, this Court has recorded its conclusions in paragraph Nos. 8, 9 and 10 as follows:

"8. The record indicates that in terms of the scheme of 1986, the name of the respondent No. 1, that was sponsored by the Employment Exchange, was considered and thereafter the respondent No. 1 came to be duly appointed. It is the submission of the learned Counsel for the petitioners that the appointment of the respondent No. 1 was under a Scheme of the State Government and the post in question was not available as per the Staffing Pattern. Relying upon the judgment in Mohd. Abdul Qudir (supra), it was urged that in such cases the right of a person employed under the scheme would come to an end on the completion/closure of the scheme. The facts of aforesaid case are that initially the Government of India had formulated the PIF scheme in Assam in the year 1960. Thereafter, PIF additional scheme was sanctioned in the year 1987. As the services of the concerned employees were discharged, a writ petition was filed in the High Court praying that they should be regularized in service with all consequential benefits. It is in that background that it was observed by the Supreme Court that if a temporary and ad hoc arrangement is made with regard to a particular project or scheme, on completion of said project or scheme, the ad hoc or temporary service would come to an end. It may be noted that the issue as regards commission of unfair labour practice by depriving an employee of the benefits of permanancy was not in issue before the Supreme Court in aforesaid case. Moreover, the employees therein had directly filed writ petition in the High Court. Hence, ratio of aforesaid judgment cannot be made applicable to the facts of the present case.

A some what similar situation was considered in Damodhar Gawande (Supra). The employees therein had been working as watchman under a Government Scheme. It was further observed that despite steps being taken by the Chief Executive Officer, Zilla Parishad to regularize the services of said employees, the same had not been done. As it was found that the work being done was of a permanent nature, the order of the Industrial Court directing the employer to make the workmen permanent was upheld. Similar view has been taken in Macchindra (Supra). In Municipal Council Jintur (supra), the aspect of absence of sanctioned posts and regularization in such situation was considered. After finding that the employees therein had rendered service for almost 18 years and the fact that the junior employees had been regularized, this Court maintained the direction issued by the Industrial Court to regularize the services of the employees therein.

In MSRTC (supra), the Supreme Court while considering the provisions of the said Act vis-a-vis the aspect of availability of sanctioned posts and the aspect of directions for regularization held that the judgment of the Supreme Court in Secretary, State of Karnataka and Others Vs. Umadevi and Others, AIR 2006 SC 1806 : (2006) 6 CompLJ 1 : (2006) 4 JT 420 : (2006) 2 LLJ 722 : (2006) 4 SCALE 197 : (2006) 4 SCC 1 : (2006) 3 SLJ 1 : (2006) AIRSCW 1991 : (2006) 3 Supreme 415 did not have the effects of overriding the powers of the Industrial and Labour Courts while passing appropriate orders under Section 30 of the said Act, once an unfair labour practice on the part of the employer under Item 6 of Schedule IV was established. In view of the aforesaid decision, on an unfair labour practice under Item 6 of Schedule IV on the part of the employer being established, the Industrial Court would have jurisdiction to pass necessary corrective orders. In the present case, the Industrial Court after coming to the conclusion that there was an unfair labour practice committed under Items 5 and 6 of Schedule IV of the Act proceeded to grant appropriate relief to the respondent No. 1. It is, therefore, clear that the impugned judgment cannot be said to be contrary to the law laid down by the Supreme Court in MSRTC (supra).

Moreover, as noted above, aforesaid scheme is in operation since the year 1978 and the same continues to operate even today. The petitioner''s witness had admitted in clear terms in his deposition that the proposal for regularizing the services of the respondent was pending with the state Government in the year 2006"

The learned Advocates for the respondents have not been able to show that the conclusions of this Court in the above referred judgment are erroneous. Accepting the conclusions of this Court in the judgment given in Writ Petition No. 938/2009 on 10-10-2014, I am of the view that the present employees are also entitled for the reliefs sought by them in the complaint filed before the Industrial Court.

Apart from this, it is undisputed that the employees continued to be in the employment even after the dismissal of the complaint, perhaps because of the interim orders passed by this Court in writ petitions granting stay to the effect and operation of the order passed by the Industrial Court. It is submitted that the petitioner No. 1 in Writ Petition No. 1309/2008 and the petitioner in Writ Petition No. 2303/2008 have surpassed the age of superannuation and that they continued to work till the age of superannuation.

In these circumstances, the following order is passed:

(i) The impugned orders passed by the Industrial Court are set aside.

(ii) The complaint filed by the employees is allowed in the terms as stated below:

The respondent-Zilla Parishad is directed to grant permanency to the petitioners-employees, from the date of their appointments.

However, the petitioners-employees would be entitled for actual monetary benefits from the date of the complaint filed by them before the Industrial Court till they continued to be in the employment of the respondent-Zilla Parishad.

Rule is made absolute in the above terms.

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