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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3749 OF 2006
Navi Mumbai Mahanagar Palika & Ors. .. Petitioners
Mr. Aniruddha A. Garge a/w. Ms. Manali Garge and Mr. Kunal
Patil, Advocates for Petitioners.
Ms. Rohini Thyagarajan, Advocate for Respondent No. 2 ......…...........
JUDGMENT
1. Heard Mr. Garge, learned Advocate for Petitioners and Ms. Thyagarajan, learned Advocate for Respondent No.2.
2. Present Writ Petition challenges judgment dated 14.02.2006 passed by Industrial Court Maharashtra, Bench at Thane in Complaint (ULP) No. 454/2003. The judgment is appended below Exhibit ‘C’ to Page No. - 39.
3. Briefly stated, City and Industrial Development Corporation of Maharashtra Limited (for short “CIDCO”) handled water supply within territorial limits of Navi Mumbai. On 01.11.1999 CIDCO handed over charge of water supply to Petitioners (for short "the Corporation") responsible for administering civic services in the Navi 1 of 21 Mumbai region. In order to discharge its statutory duty, water tanks fitted with pumps are installed at various locations and are operated by around 116 workmen. Respondent No. 2 Union espouses the cause of these workmen. It is the case of Respondent No. 2 that these workmen were engaged by contractors appointed by Petitioner and work carried out by them is of an essential and perennial nature. These workmen have been working on the above posts as pump operators since decades. This is an admitted position. Eleven of them have even expired in the interregnum. As per the list given by the Union as on date 48 workmen out of the above are still engaged as pump operators by the Corporation. One workman has been terminated. On 01.01.2003, Petitioner regularized services of 87 out of the 116 workmen as pump operators and paid salaries and issued appointment letters to workmen every 2 to 3 months from date of their regularisation. Thereafter until 15.09.2003 these workmen continued to work despite not receiving appointment letters. It is Respondents' case that Petitioners discontinued services of these workmen by changing their service conditions and without issuing notice under Section 9A of the Industrial Disputes Act, 1947. Hence Respondents filed Complaint (ULP) No.454 of 2003 under Section 28 and Item 6 and 9 Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short 'MRTU & PULP Act') seeking regularization of all 87 workmen 2 of 21 with wages and fringe benefits. The complaint was allowed by judgment and order dated 14.02.2006 passed by the Industrial Court declaring Petitioners to have engaged in unfair labour practices and ordered workmen mentioned in Complaint to be made permanent with all benefits of permanency with effect from 01.01.2004 by issuing letter of permanency. This judgement is impugned in the present Petition. Being aggrieved, Petitioners filed the present Writ Petition in 2006. Petition was admitted on 16/08/2006. Interim relief was granted on 29.11.2006.
4. Mr. Garge, learned advocate for Petitioner would submit Petitioners Corporation has not engaged in any unfair labour practices and complaint itself is not maintainable on the ground that no case has been made out under Item 6 of MRTU & PULP Act. He would submit that prior to 01.11.1999 water supply was handled by CIDCO and maintenance / repairs of water tanks and pump houses was given to contractors who appointed labourers to carry out said work. He would submit that though these workmen completed 240 days of service in a year however they were not continuously employed by Petitioners since charge of water supply was handed over to Petitioners only in November 1999.
4.1. He would submit that since contractors wanted to be paid at a higher rate and Corporation found it unfeasible to revise the same, 3 of 21 Petitioner No. 1 Corporation itself appointed 75 workmen on ad-hoc daily wage basis for 3 months with effect from 01.01.2003 which was extended from time to time. He would submit that later, Petitioner No. 1 Corporation found it unfeasible to employ the workmen on daily wage basis hence they announced tenders and thereafter hired fresh contractors on rotational basis in order to maintain efficiency. He would submit that contractors were constantly changed but the workmen remained the same and merely on this ground they cannot be given permanent status.
4.2. He would submit that the said workmen cannot be made permanent on the ground that they were employed on ad hoc basis as State Government had not sanctioned posts for their employment. He would submit that merely on completion of 240 days of service in a calender year would not entitle the workmen to seek permanency. He would submit that for the purpose of appointing contractors, no notice to the Union under Section 9A of the Industrial Disputes Act was necessary. Hence he would persuade the Court to interfere with the impugned judgment and set it aside.
5. PER CONTRA, Ms. Thyagarajan, learned advocate for Respondent No.2 would submit that workmen appointed by Petitioner Corporation through contractors were engaged as pump operators responsible for uninterrupted flow and supply of water to Navi 4 of 21 Mumbai region. She would submit that this work is perennial, essential and statutory in nature which requires to be tended to everyday without a break and this fact is acknowledged by Petitioner - Corporation. She would submit that stoppage of work would lead to immediate halt in water supply which never happened.
5.1. She would submit that since Petitioner Corporation discontinued the contractors and regularised services of some of the workmen, it was not open to Petitioner Corporation to unilaterally undo its decision and re-engage contractors without issuing statutory notice under Section 9A of Industrial Disputes Act, 1947. She would submit that it is an undisputed fact that all workmen completed 240 days of service and there existed a master - servant relationship as their names appeared on Petitioner’s pay roll, their work was supervised by Petitioner’s officers and they were paid directly by Petitioner Corporation.
5.2. She would submit that as per Clause 4C of Bombay Industrial Employment (Standing Order) Rules 1959 (for short “BIE Rules”), temporary workmen who put in 240 days of uninterrupted service, during the preceding 12 months have to be made permanent. She would submit that Petitioners do not dispute applicability of BIE Rules before Industrial Court and even before this Court. She would submit Clause 4C is a beneficial provision governing service conditions 5 of 21 of workmen and would prevail over provisions of the Maharashtra Municipal Corporation Act, 1949. She would submit that when need for creation of posts arises, failure of State Government to do so would amount to gross apathy by the State towards fulfilling its statutory duties. She would submit that facts of present case show that Petitioner Corporation has repeatedly stated on record that work of water supply is perennial and continuous in nature but has failed to assess the posts of pump operators required and regularise the workmen working in those posts.
5.3. In support of her above submissions she has referred to and relied upon the following decisions of the Supreme Court and this Court to contend that the impugned jdugement decserved to be upheld in view of the ratio in the following cases:- (1) Dharam Singh & Ors. vs. State of UP & Anr.[1] (2) Workmen of the Food Corporation of India Vs. Food Corporation of India[2] (3) H.D. Singh Vs. Reserve Bank of India and Others[3] (4) S.G Chemicals and Dyes Trading Employees Union Vs. S.G Chemicals and Dyes Trading Limited and Another[4] (5) Nihal Singh and Others Vs State of Punjab and Others with Bhupinder Singh and Others Vs. State of Punjab[5] (6) Jaggo Vs. Union of India and Others with Anita and Others cs Union of India and Others[6] (7) The Commissioner, Municipal Corporation of Greater Mumbai Vs. Kachara Vahatuk Shramik Sangh[7]
6 SLP(C) No. 5580 of 2024 with SLP (C) 11086 of 2024 decided on 20.12.2024 7 W.P. No. 5357 of 2021 decided on 08.11.2023 6 of 21 (8) The Deputy Conservator of Forest Vs. Nasik Zilla Van Shramik Sangh[8] (9) Municipal Council, Tirora and another Vs. Tulsidas Baliram Bindhade[9] (10) Oil and Natural Gas Corporation Limited Vs. Petroleum Coal Labour Union and Other.10 (11) Oil and Natural Gas Corporation Vs. Krishan Gopal and Others11 (12) Union Territory of Ladakh and Others Vs. Jammu and Kashmir National Conference and Another12 (13) Durgapur Casual Workers union and Others Vs. Food Corporation of India13 (14) Bharatiya Kamgar Karamchari Mahasangh Vs. Jet Airways Limited14 (15) Pandurang Sitaram Jadhav and Others Vs. State of Maharashtra through its Dairy Manager and Another15 (16) Maharashtra State Road Transport Corporation and Another Vs. Casteribe Rajya Parivahan Karmchari Sanghatana16 (17) Hari Nandan Prasad and Another Vs. Employer I/R to Manament of Food Corporation of India and Another17 (18) Sarva Shramik Sangh (Union) Vs. The Commissioner Thane Mahanagar Palika and Others18
6. I have heard Mr. Garge, learned Advocate for Petitioners - Coporation and Ms. Thyagarajan, learned Advocate for Respondents and perused the record of the case with their able assistance. Submissions made by both Advocates at the bar have received due consideration of the Court. 8 W.P. No. 6398 of 2003 decided on 06.11.2023 9 2016 (6) Mh.L.J 867
7. At the outset, it is seen that the list of workmen is appended to submissions of Ms. Thyagarajan. Aforementioned list was also before the Industrial Court as evidence and was marked as an Exhibit. It is seen that the list sets out the names of workmen regularised by Petitioners as well as their employment status. Presently, from the list it is seen that there are 48 workmen who are in active service with the Petitioners, 11 workmen are deceased and services of 1 workman is terminated.
8. It is seen that Union has led evidence and examined one witness Mr. Narendra Laxman Vairal before Industrial Court whose evidence is marked as Exhibit OW-1. He has been cross-examined by Petitioner Corporation. It is seen that from the deposition of the Respondents' witness, that though these workmen were employed as pump operators through contractors their services were supervised by Petitioners' Officers and supervisors. It is seen that for a brief period Petitioners stopped engaging contractors and employed these workmen directly by issuing fresh appointment letters every 2 to 3 months to them until October 2003 when Petitioners appointed contractors. Documentary evidence in the form of appointment letters issued by Petitioner Corporation are produced on record. It is seen that attendance of these workmen was marked in the attendance register and the same was kept with the Petitioner and it is seen that even on break days these workmen performed their duties. It is seen 8 of 21 that even after Petitioners stopped issuing appointment letters, services of these workmen continued. further it is seen that except in the case of one workman, termination letter was never issued to any workman. It is seen that there is a vast disparity in duty hours, wages and other benefits between permanent employees and these workmen and therefore they sought benefits of permanency in the Complaint.
8.1. It is seen that Petitioners examined Deputy Engineer (water supply) Mr. Sonawane as CW- 1 and he was cross examined as well. It is seen from his deposition that Corporation employed 75 pump operators whose services were were regularised but however Corporation did not extend benefits of permanent employees to these workmen. It is seen that even though Petitioners terminated their services, but they were engaged on duty and fresh appointment letters were issued. It is seen that no written termination orders were issued neither the workmen informed of their termination. It is also seen that no letters were issued to these workmen directing them to work under contractors stating that Petitioner was not the employer of these workmen. It is also seen that Junior Engineer of the Petitioner was supervising the work of these workmen throughout.
9. The sum and substance of the documentary evidence when read clearly shows that these workmen produced adequate documentary evidence to prove that they worked as pump operators 9 of 21 that they were appointed by Petitioner - Corporation and worked continuously for more than 240 days in one year consecutively for years together. However in rebuttal, Petitioner - Corporation did not place any incriminating material nor any documentary evidence on record to prove their case to the contrary or to show termination of workmen.
10. It is seen that originally 116 workmen were engaged as pump operators. It is also seen that Petitioners have not filed registration certificate of the contractors appointed under the Contract Labour (Regulation and Abolition) Act, 1970 neither has it produced the contractors' licence copies on record authorizing them to engage contract labour and temporary workmen to work for the Respondent Corporation. The modus - operandi Petitioner – Corporation was to regularise the service of 75 workmen and issue appointment letters to them every 2 to 3 months but after a point of time even that stopped. It is seen that Corporation did not issue any termination letter neither did they orally inform these workmen about their termination hence the workmen being confused as to their status of employment, continued to report to their respective pump houses / tanks to carry out their duties and their services were conveniently continued by the Corporation. These workmen engaged by Petitioner were discharging essential duties perennial in nature without breaks and hence Petitioner – Coporation should have regularised their services by 10 of 21 providing them requisite appointment letters, wages and all other benefits on par with other permanent employees of the Corporation as per law.
11. Regarding applicability of Clause 4 (C) BIE Rules, it is seen that these workmen engaged by Petitioner Corporation had completed 240 days in a calender year in service even to the point of working every day without availing artificial breaks whether under the contractors or as regular workmen since 01.11.1999. It is seen that applicability of the BIE Rules has not been disputed by Petitioner Corporation hence these workmen deserved to be made permanent. There is also no doubt that Petitioner – Corporation had failed to issue appointment letters, pay equal wages and allot equal working hours to these workmen as given to other employees. Hence Petitioner - Corporation contravened the provisions under Item 6 of Schedule IV of the MRTU & PULP Act.
12. It is also seen that Petitioner – Corporation stopped engaging services of contractors but however, retained and temporarily regularised services of some of these workmen. It is also seen that after a while, Petitioner Corporation appointed contractors however no notice under Section 9A of the Industrial Disputes Act, 1949 was issued to these workmen or the Union, but these services were continued. It is seen that there is a visible difference in the wages paid to workmen by Petitioners and by the contractors hence notice under Section 9A ought to have been 11 of 21 issued to workmen and in this regard attention is drawn to decision of the Supreme Court in Workmen of the Food Corporation of India Vs. Food Corporation of India (supra) cited by learned Advocate for Respondents:- “19. No attempt was made on behalf of the respondent- Corporation to urge that any of the aforementioned rules would govern the conditions of service of the workmen involved in the dispute. Now after introducing the direct payment system agreed to between the parties, if the Corporation or the employer wanted to introduce a change in respect of any of the matters set out in Fourth Schedule, it was obligatory to give a notice of change. Item 1 in the Fourth Schedule provides: “wages, including the period and mode of payment”. By cancelling the direct payment system and introducing the contractor, both the wages and the mode of payment are being altered to the disadvantage of the workmen. Therefore, obviously a notice of change was a must before introducing the change, otherwise it would be an illegal change. Any such illegal change invites a penalty under Section 31(2) of the I.D. Act, 1947.”
13. It is seen in the present case that status of employment of these workmen was changed from the Petitioner – Corporation directly paying wages to workmen at the rate of Rs. 80 to 105/- per day to the contractor who paid workmen Rs.60-80/- per day. It is seen that if change in wages paid to workmen falls under Item 1 in Schedule IV of Industrial Disputes Act, 1947 then notice under Section 9A is required to be issued to the workmen and failure to do so would amount to unfair labour practice under Item 9 of Schedule IV of MRTU & PULP Act.
14. Admittedly, the work of supplying water to Navi Mumbai region is undoubtedly of an essential character and perennial in nature hence pumps and water tanks valves are required to be 12 of 21 maintained and operated continuously and stoppage would render a halt in water supply which would cause prejudice to the residents in Navi Mumbai. Petitioner – Corporation hence ought to appoint regular and permanent workmen so that efficient and conscientious work is performed there is no dereliction in providing essential services. With regard to the submission made by Mr. Garge that State Government had not sanctioned any posts for permanent employment of the workmen, the same is untenable and cannot be accepted. Where there is a need for creation of posts and the power to create such posts is not exercised by the State Government, then such failure would amount to an arbitrary and purposeful inaction on part of the State. In fact Section 51 of Maharashtra Municipal Corporation Act, 1949 lays down duty of the Petitioner - Corporation to make recommendations to the State Government to create posts where necessary. It may be prudent to reproduce Section 51 below:- “51. Number, designations, grades, etc. of other municipal officers and servants.— (1) Subject to the provisions of subsection (4), the Standing Committee shall from time to time determine the number, designations, grades, salaries, fees and allowances of auditors, assistant auditors, officers, clerks and servants to be immediately subordinate to the Municipal Chief Auditor and the Municipal Secretary respectively. (2) The Commissioner shall, from time to time, prepare and bring before the Standing Committee a statement setting forth the number, designations and grades of the other officers and servants who should in his opinion be maintained, and the amount and nature of the salaries, fees and allowances which he proposes should be paid to each. (3) The Standing Committee shall, subject to the provisions of sub-section (4) sanction such statement either as it stands or subject to such modifications as it deems expedient. 13 of 21 [(4) No new posts of the officers and servants of the Corporation shall be created without the prior sanction of the State Government: Provided that, the decision of the Government on a proposal complete in all respects, received from the Corporation for creation of posts shall be communicated to the Corporation within ninety days from the date of the receipt of such proposal by the Government.] (5) Nothing in this section shall be construed as affecting the right of the Corporation or of the Commissioner to make any temporary appointment which it or he is empowered to make under section 53. [Explanation.— Any revision of pay scale or pay structure or grant of special pay, or grade, or revision of allowances (excluding dearness allowance) or change in designation shall be deemed, for the purposes of sub-section (4), to be the creation of a new post.]"
15. Hence, it is seen that the there is no provision that precludes Petitioner – Corporation from recommending to the State Government to create and sanction posts however the above provision casts a duty upon Petitioner - Corporation to submit recommendations to the Standing Committee to create requisite posts to accommodate officers and workmen.
16. It is seen that during pendency of proceedings before the Industrial Court, some workmen have left the service of Petitioner - Corporation while some have expired and hence a revised list of 70 workmen who were in service was submitted to the Industrial Court. However, it is seen that the list filed in Court by Ms. Thyagarajan today only contains 60 names hence it appears that in the interregnum, more workmen have either expired or left the service of the Petitioners. 14 of 21
17. It is also seen that attendance of these workmen was marked along with other permanent employees of the Petitioner - Corporation; that their work supervised by officers of Petitioner - Corporation; that their services were terminated illegally and without following the due process of law; that Petitioner - Corporation and contractors also failed to place on record valid licenses and registration certificate under the Contract Labour (Regulation & Abolition) Act, 1970 as a sequitur of this, all these workmen not only deserve to be made permanent but are entitled to full benefits equivalent to that received by permanent employees of Petitioner - Corporation.
18. Needless to state that since the workmen had continued working despite non - issuance of appointment letter, I am of the opinion that they should be entitled to backwages / differential in backwages.
19. In this regard and the context of the facts of the present case, I would like to quote paragraph nos. 1, 11, 13, 17, 18, 20 of a very recent decision of the Supreme Court in the case of Dharam Singh vs State of UP (supra) decided on 19.08.2025 and relied upon by Ms. Thyagarajan after the matter was closed for orders on 14.08.2025 which aptly describes and covers the situation of the workmen before me and guides what the courts will have to do in 15 of 21 such cases. The above paragraphs read thus:- "1. When public institutions depend, day after day, on the same hands to perform permanent tasks, equity demands that those tasks are placed on sanctioned posts, and those workers are treated with fairness and dignity. The controversy before us is not about rewarding irregular employment. It is about whether years of ad hoc engagement, defended by shifting excuses and pleas of financial strain, can be used to deny the rights of those who have kept public institutions running. We resolve it by insisting that public employment should be organised with fairness, reasoned decision making, and respect for the dignity of work. xxxxxx
11. Furthermore, it must be clarified that the reliance placed by the High Court on Umadevi (Supra) to non-suit the appellants is misplaced. Unlike Umadevi (Supra), the challenge before us is not an invitation to bypass the constitutional scheme of public employment. It is a challenge to the State's arbitrary refusals to sanction posts despite the employer's own acknowledgement of need and decades of continuous reliance on the very workforce. On the other hand,Umadevi (Supra) draws a distinction between illegal appointments and irregular engagements and does not endorse the perpetuation of precarious employment where the work itself is permanent and the State has failed, for years, to put its house in order. Recent decisions of this Court in Jaggo v. Union of India[4] and in Shripal v. Nagar Nigam, Ghaziabad[5] have emphatically cautioned that Umadevi (Supra) cannot be deployed as a shield to justify exploitation through long-term “ad hocism”, the use of outsourcing as a proxy, or the denial of basic parity where identical duties are exacted over extended periods. The principles articulated therein apply with full force to the present case. The relevant paras from Shripal (supra) have been reproduced hereunder:
13. As we have observed in both Jaggo (Supra) and Shripal (Supra), outsourcing cannot become a convenient shield to perpetuate precariousness and to sidestep fair engagement practices where the work is inherently perennial. The Commission's further contention that the appellants are not “full-time” employees but continue only by virtue of interim orders also does not advance their case. That interim protection was granted precisely because of the long history of engagement and the pendency of the challenge to the State's refusals. It neither creates rights that did not exist nor erases entitlements that may arise upon a proper adjudication of the legality of those refusals. xxxxxx 18 of 21
17. Before concluding, we think it necessary to recall that the State (here referring to both the Union and the State governments) is not a mere market participant but a constitutional employer. It cannot balance budgets on the backs of those who perform the most basic and recurring public functions. Where work recurs day after day and year after year, the establishment must reflect that reality in its sanctioned strength and engagement practices. The long-term extraction of regular labour under temporary labels corrodes confidence in public administration and offends the promise of equal protection. Financial stringency certainly has a place in public policy, but it is not a talisman that overrides fairness, reason and the duty to organise work on lawful lines.
18. Moreover, it must necessarily be noted that “ad-hocism” thrives where administration is opaque. The State Departments must keep and produce accurate establishment registers, muster rolls and outsourcing arrangements, and they must explain, with evidence, why they prefer precarious engagement over sanctioned posts where the work is perennial. If “constraint” is invoked, the record should show what alternatives were considered, why similarly placed workers were treated differently, and how the chosen course aligns with Articles 14,16 and 21 of the Constitution of India. Sensitivity to the human consequences of prolonged insecurity is not sentimentality. It is a constitutional discipline that should inform every decision affecting those who keep public offices running. xxxxxx
20. We have framed these directions comprehensively because, case after case, orders of this Court in such matters have been met with fresh technicalities, rolling “reconsiderations,” and administrative drift which further prolongs the insecurity for those who have already laboured for years on daily wages. Therefore, we have learned that Justice in such cases cannot rest on simpliciter directions, but it demands imposition of clear duties, fixed timelines, and verifiable compliance. As a constitutional employer, the State is held to a higher standard and therefore it must organise its perennial workers on a sanctioned footing, create a budget for lawful engagement, and implement judicial directions in letter and spirit. Delay to follow these obligations is not mere negligence but rather it is a conscious method of denial that erodes livelihoods and dignity for these workers. The operative scheme we have set here comprising of creation of supernumerary posts, full regularization, subsequent financial benefits, and a sworn affidavit of compliance, is therefore a pathway designed to convert rights into outcomes and to reaffirm that fairness in engagement and transparency in administration are not matters of grace, but obligations under Articles14,[1] 6 and 21of the Constitution of India." 19 of 21
20. The above words of the Supreme Court need reiteration in the facts of the present case viz; sensitivity to the human consequences of prolonged insecurity is not a sentimentality. It is a constitutional discipline that should inform every decision affecting those who keep public offices running. Supreme Court has emphasized that the State is not a mere market participant but a constitutional employer. It cannot balance budgets on the backs of those who perform the most basic and recurring public functions. The Supreme Court holds that long term extraction of regular labour under temporary labels corrodes confidence in public administration and offends the promise of equal protection.
21. Taking into account the overall circumstances, the impugned judgment in my opinion is therefore a well reasoned order giving cogent and reasoned findings in paragraph Nos.12 to 22 of the same. The said order dated 14.02.2006 therefore for all the above observations, reasons and findings cannot be faulted with and does not call for any interference of this Court. Hence the Petition Fails.
22. The Judgment dated 14.02.2006 is upheld and confirmed. Resultantly, Writ Petition fails. Petitioner - Corporation is directed to reinstate the 48 workmen in services of Petitioner - Corporation as pump operators within a period of one week from the date of this judgment and grant them continuity in service. It is directed that these 20 of 21 workers will be entitled to backwages / differential wages and all benefits and letter of permanency to be issued to these workmen. Petitioner – Corporation shall comply with the said Judgment forthwith and in any event within a period of two weeks from today. Respondent No. 1 Union shall co-operate with the Petitioners for providing all necessary details of the concerned workmen.
23. Writ Petition is dismissed. [ MILIND N. JADHAV, J. ]
24. After this judgement is pronounced, Mr Garge, learned Advocate for Petitioner persuades the Court to stay the judgment for 4 weeks to test the validity and legality of the same before the Superior Court.
25. Considering the fact that the workers involved are already working with the Corporation, request made by Mr. Garge for stay is granted. Judgement is stayed for a period of 4 weeks from today to enable the Municipal Corporation to challenge the same before the Superior Court. [ MILIND N. JADHAV, J. ] Ajay 21 of 21 MOHAN AMBERKAR