Full Text
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3373 OF 2002
The Deputy Director and Ors. } ….Petitioners
:
Vijaya Balbhim Mali }….Respondent
ALONGWITH
WRIT PETITION NO. 3374 OF 2002
The Deputy Director, Social Forestry
Division and anr. } ….Petitioners
Ramjan Daud Mulani }….Respondent
ALONGWITH
WRIT PETITION NO. 3377 OF 2002
Division and Ors. } ….Petitioners
Dhanaji S. Deshmukh }….Respondent
ALONGWITH
WRIT PETITION NO. 3379 OF 2002
ALONGWITH
WRIT PETITION NO. 3538 OF 2002
Ramahari J. Pawar }….Respondent
ALONGWITH
WRIT PETITION NO. 3537 OF 2002
Dada R. Mane }….Respondent
ALONGWITH
WRIT PETITION NO. 3376 OF 2002
Raju Mohammad Shaikh }….Respondent
ALONGWITH
WRIT PETITION NO. 3536 OF 2002
ALONGWITH
WRIT PETITION NO. 3535 OF 2002
Ajinath Mahadev Godase }….Respondent
ALONGWITH
WRIT PETITION NO. 3534 OF 2002
Rajaram S. Raichure }….Respondent
ALONGWITH
WRIT PETITION NO. 3375 OF 2002
ALONGWITH
WRIT PETITION NO. 3378 OF 2002
Gangadhar A. Jadhav }….Respondent
ALONGWITH
WRIT PETITION NO. 3533 OF 2002
Shivaji Ramchandra Oval }….Respondent
ALONGWITH
WRIT PETITION NO. 3380 OF 2002
Parmeshwar Vishnu Gaikwad }….Respondent
ALONGWITH
WRIT PETITION NO. 3532 OF 2002
ALONGWITH
WRIT PETITION NO. 3371 OF 2002
Bhagwat Pandhari Gaikwad }….Respondent
ALONGWITH
WRIT PETITION NO. 3372 OF 2002
Subhash Ramchandra Mane }….Respondent
Mr. Drupad Patil with Mr. B.G. Ligade for the Respondents in WP-3374-2002, 3377-2002, 3379-2002, 3538-2002, 3537-2002, 3376-2002, 3536-2002, 3535-2002, 3534-2002, 3375-2002, 3378-2022, 3533-2022 and 3532-2002.
Mr. Rajaram V. Bansode, with Ms. Sheetal M. Ubale, for Respondents in WP-
3371-2002 and WP-3380-2002.
JUDGMENT
1) These petitions are filed by Petitioner No.2 through the Deputy Director, Social Forestry Division, Solapur challenging the Judgment and Order dated 31 March 2001 passed by the Industrial Court, Solapur, by which complaints filed by the Respondents have been partly allowed and Petitioners are directed to consider the length of continuous services put by them till amendment of complaints on 21 July 1999 for the purpose of grant of benefit of permanency. Petitioners are accordingly directed to issue orders for permanency of the Respondents with continuity of service i.e. consequential benefits, without backwages.
2) Afforestation of barren lands is a program undertaken by the Government of India, which later assumed the name ‘Social Forestry’. The program was soon implemented by various State Governments, including the State of Maharashtra through its Department of Revenue and Forests. The scheme for social forestry included inter-alia the activity of plantation on the lands made available by Gram Panchayats, Public Works Department and other private institutions. For the purpose of undertaking the work of plantation, grass cutting and maintenance of trees/plants, workers were engaged on daily wage basis, as and when needed. Under the program, Petitioners implemented Social Forestation Scheme on the concerned land for three years, whereafter the land was returned to the respective owners.
3) In the above background, Respondents were engaged as daily wage workers under the social forestry program during various years ranging from 1985 to 1991. In the year 1992, Petitioner issued orders transferring the services of Respondents from one village to another. In case of Respondent-Vijaya Balbhim Mali (Writ Petition NO. 3373 of 2002) who was working since the year 1990, transfer order was issued on 30 January 1992 from Matsya Beach to Akole Budruk. Respondents got aggrieved by their respective transfer orders and instituted complaints of unfair labour practice before the Industrial Court, Solapur challenging the transfer order. In their complaints, Respondents filed applications for temporary injunction. The complaint as well as application for temporary injunction were resisted by Petitioners by filing their Written Statement contending that Respondents were engaged merely as ‘seasonal workers’ during monsoon season for undertaking the work of plantation, grass cutting and maintenance of plants. That the work is not of regular nature. The Industrial Court passed interim order dated 17 February 1992 directing Petitioners to maintain status-quo in respect of the services of the Respondents until further orders.
4) It appears that though the complaints were filed challenging mere transfer orders, that too of temporary workers, the complaints remained pending for a considerable period of time and in the meantime, services of the Respondents were continued. It appears that Respondents sought inspection of records relating to their services. Accordingly, the person appointed by the Court to carry out inspection and submitted his report in respect of each of the complainants to certify their services prior to filing of complaints. On 21 July 1992, Respondents filed applications for amendment of Complaints by incorporating their grievances relating to grant of permanency. The amendment was allowed by order dated 12 January
2000. Thus, Respondents claimed the relief of permanency in the amendment application on the strength of completion of 240 days of service, from the year of initial engagement.
5) Both the sides led evidence in support of their respective claims. After considering the pleadings, documentary and oral evidence, the learned Member, Industrial Court proceeded to allow the complaint partly directing consideration of services of the Respondents upto the date of filing of application for amendment dated 21 July 1999 for grant of permanency in service. The Industrial Court has accordingly directed Petitioners to issue orders granting permanency with continuity of service and consequential benefits without backwages. Aggrieved by judgment and order dated 31 March 2001 passed by the Industrial Court, Petitioners have filed the present petition. By order dated 22 July 2002, this Court has admitted the petitions by granting stay to the order passed by the Industrial Court.
6) Ms. Nimbalkar, the learned AGP appearing for the Petitioner would submit that the Industrial Court has erred in allowing the complaints by granting the relief of permanency in Respondents’ favour. She would submit that Respondents did not work against any sanctioned posts and were utilized only as per need during monsoon season. That the project itself did not contemplate permanent engagement of staff. That the land on which plantation program is implemented is ultimately returned to the concerned Gram Panchayat or the landowner and that therefore it cannot be stated that any particular personnel is needed on a permanent basis for implementation of the program. That the initial engagement of Respondents was not made after following process of selection. That they do not fulfill any of the criteria for grant of permanency. That the Industrial Court erred in not appreciating that none of the Respondents had completed continuous service of five years before filing of the complaint. Their services rendered during pendency of the complaint on account of grant of interim order by the Industrial Court cannot be a reason for treating their employment as continuous and such services, which are attributable to interim order, are required to be ignored. That each of the Respondents have been paid compensation at the time of termination of their service and such compensation amounts have been accepted by them. That therefore no case was made out for grant of any relief to the Respondents. Ms. Nimbalkar would further submit that Respondents have otherwise not put in continuous service and are not entitled to be granted benefit under the Kalelkar Award. She would rely upon judgment of this Court in Yeshwant Shripad Patil Versus. Plantation Officer[1]. She would accordingly pray for setting aside the impugned Judgment and Order passed by the Industrial Court. Writ Petition No.180 of 2005 decided on 11 May 2018.
7) Mr. Drupad Patil, the learned counsel appearing for the Respondents in Writ Petition Nos. 3374 of 2002, 3377 of 2002, 3379 of 2002, 3538 of 2002, 3537 of 2002, 3376 of 2002, 3536 of 2002, 3535 of 2002, 3534 of 2002, 3375 of 2002, 3378 of 2022, 3533 of 2022 and 3532 of 2002 would oppose the petitions and support the order passed by the Industrial Court. He would submit that the Industrial Court has rightly awarded the relief of permanency in favour of the Respondents who have rendered more than five years of continuous service without intervention by the Court. He would submit that the interim order of status-quo granted by the Industrial Court was qua transfers and that the same did not restrain Petitioners from terminating services of Respondents. That services of Respondents were continued by Petitioners on their own because of their need and such continuation was not attributable, in any manner, to the interim order of status-quo granted by the Industrial Court. That the Petitioners were well aware of the fact that the interim order of status-quo did not contemplate continuation of services of the Respondents, which is the reason why their services were terminated during pendency of complaints. He would therefore submit that Petitioners are entitled to be granted permanency for having completed more than five years of service as rightly directed by the Industrial Court. He would submit that if the total length of service of Respondents is taken into consideration, it is clear that some of them have rendered services in excess of 15-16 years. That Petitioners cannot exploit the services of the Respondents without granting them the benefit of permanency. He would rely upon judgment of this Court in State of Maharashtra and others Vs. Ramesh Dhadu Dhangar[2], which, according to Mr. Patil, fully covers the present case. He would therefore pray for dismissal of the petitions.
8) Mr. Bansode, the learned counsel appearing for the Respondents in Writ Petition Nos. 3371 of 2002 and 3380 of 2002 would adopt the submissions of Mr. Patil. Additionally, he would rely upon judgment of this Court in Conservator of Forest, North Division Forest, ChandrapurVersus. Shri. Umeshwar Keshav Kathwate[3].
9) Rival contentions of the parties now fall for my consideration.
10) The Industrial Court has granted the relief of permanency in Respondents’ favour by considering of five years of service rendered by them prior to the date of filing of application for amendment i.e. 21 July 1999 for the purpose of grant of relief of permanency. It must be observed at the very outset that the judgment of the learned Member of the Industrial Court is not very happily worded, and this Court has at times found it slightly difficult to comprehend the exact reasoning adopted by the learned Member while granting the relief in Respondents’ favour. While directing computation of five years of service for permanency, the learned Member has not even clarified the exact significance of completion of five years of service for grant of relief of permanency. Furthermore, why 5 years of service prior to date of filing of amendment application (21 July 1999) is directed to be computed is again not clarified. Be that as it may. Since the length of Writ Petition No. 657 of 2001 decided by Bench at Aurangabad on 27 June 2019. Letters Patent Appeal No.380 of 2010 and 381 of 2010 decided on 27 November 2017 (Nagpur Bench) service of 5 years is directed to be considered, it appears that the same is done in the context of para 28 of the Kalelkar Award, which reads thus:
11) Thus, para-28 of the Kalelkar Award contemplates grant of status as ‘Converted Regular Temporary Establishments’ (CRTE) on completion of five years of continuous service. The grant of CRTE status under Kalelkar Award cannot be equated with grant of permanency in government service. In fact, Kalelkar Award has created special mechanism for conferring CRTE status on daily wages workers on account of absence of posts for grant of permanency to them. Therefore, instead of directing creation of posts for grant of permanency to such daily wage workers, the Award contemplates creation of posts personally to the workers which lapse with their retirement. This is the concept of award of CRTE status to the concerned daily wage workers. However, the Industrial Court in the present case, while adopting the criteria of completion of 5 years’ service under Kalelkar Award, appears to have directed grant of permanency and not grant of CRTE status.
12) I now proceed to decide whether Respondents made out any case before the Industrial Court for grant of either CRTE status or permanency in government service on the strength of daily wage services rendered by them. Ms. Nimbalkar has placed on record chart relating to the service details as well as the present status of Respondents. It would be relevant to reproduce the said chart as under: अ. क्र. मजुरांचे नाव कधीपासुन कामावर घेण्यात आले वय कामाचा प्रकार सध्या (22 कायवाही नुसार) औद्योगि!क न्यायालय क े स नं (ULP NO.)
WRIT PETITIO N NO. औद्योगि!क न्यायालय आदेशाचा गिदनांक शेरा 1 गिवजय बलभीम माळी 1/9/1990 56 वर्ष सध्या कामावर नाही 43/1992 3373/2002 31/03/2001 डी. डी. क. 645254 गिदनांक 15.02.01 अन्वये रुपये 9711/- नुकसान भरपाई देवून कमी क े ले सबब अपात्र. 2 सुभार्ष रामचंद्र माने 1/5/1989 68 वर्ष सध्या कामावर नाही 49/1992 3372/2002 31/03/2001 डी. डी. क्र 550233 गिदनांक 15.02.01 अन्वप रुपये 10458/ नुकसान भरपाई देवून कमी क े ले सबब अपात्र. 3 रमजान दाऊद मुलाणी 1989 56 वर्ष सध्या कामावर नाही 44/1992 3374/2002 31/03/2001 डी. डी. क्र.645258 गिदनांक 15.02.01 अन्यये रुपये 8964/- नुकसान भरपाई देवून कमी क 4 माणिणक गिवठोबा खंकाळ 1989 62 वर्ष सध्या कामावर नाही 51/1992 3375/2002 31/03/2001 डी. डी. क्र.645256 गिदनांक 15.02.01 अन्यये रुपये 9711/- नुकसान भरपाई देवून कमी क 5 राजु 1991 58 सध्या 45/1992 3376/2002 31/03/2001 डी. डी. मोहम्मद शेख (मयत) वर्ष कामावर नाही क्र.645260 गिदनांक 15.02.01 अन्यये रुपये 8964/- नुकसान भरपाई देवून कमी क 6 धनाजी श्रीरं! देशमुख 1985 55 वर्ष सध्या कामावर नाही 50/1992 3377/2002 31/03/2001 दैनंगिदन मजुरांचे कामाचे गिदवस कमी वर्ष भरल्याने त्यांना नुकसान भरपाई देण्यात आलेली नाही. 7 !ं!ाधर अनंत जाधव 1988 62 वर्ष सध्या कामावर नाही 46/1992 3378/2002 31/03/2001 दैनंगिदन मजुरांचे कामाचे गिदवस/कमी वर्ष भरल्याने त्यांना नुकसान भरपाई देण्यात आलेली नाही. 8 भा!वत पंढरी !ायकवाड 1990 57 वर्ष सध्या कामावर नाही 47/1992 3371/2002 31/03/2001 दैनंगिदन मजुरांचे कामाचे गिदवस/कमी वर्ष भरल्याने त्यांना नुकसान भरपाई देण्यात आलेली नाही. 9 परमेश्वर गिवष्णु !ायकवाड 1989 54 वर्ष सध्या कामावर नाही 48/1992 3380/2002 31/03/2001 दैनंगिदन मजुरांचे कामाचे गिदवस/कमी वर्ष भरल्याने त्यांना नुकसान भरपाई देण्यात आलेली नाही. 10 दादा रामचंद्र माने 1989 57 वर्ष सध्या कामावर नाही 54/1992 3537/2002 31/03/2001 डी. डी. क्र.645257 गिदनांक 15.02.01 अन्यये रुपये 9711/- नुकसान भरपाई देवून कमी क 11 हनुमंत वसंत पाटील 1988 62 वर्ष सध्या कामावर नाही 53/1992 3532/2002 31/03/2001 डी. डी. क्र.645255 गिदनांक 15.02.01 अन्यये रुपये 9711/- नुकसान भरपाई देवून कमी क 12 णिशवाजी रामचंद्र ओवाळ वर्ष सध्या कामावर नाही 56/1992 3533/2002 31/03/2001 डी. डी. क्र.645259 गिदनांक 15.02.01 अन्यये रुपये 8964/- नुकसान भरपाई देवून कमी क 14 राजाराम 1/7/1987 76 सध्या 59/1992 3534/2002 31/03/2001 डी. डी. बाबुराव रायचुरे वर्ष कामावर नाही क्र.550225 गिदनांक 15.02.01 अन्यये रुपये 11205/- नुकसान भरपाई देवून कमी क 15 ज!दीश एस. !ुं!े 1992 54 वर्ष सध्या कामावर नाही 57/1992 3536/2002 31/03/2001 डी. डी. क्र.550232 गिदनांक 15.02.01 अन्यये रुपये 10458/- नुकसान भरपाई देवून कमी क 16 रामहरी ज्योतीराम पवार 1/4/1988 55 वर्ष सध्या कामावर नाही 58/1992 3538/2002 31/03/2001 डी. डी. क्र.557229 गिदनांक 15.02.01 अन्यये रुपये 11205/- नुकसान भरपाई देवून कमी क 17 महादेव णिभमराव बोबडे 1/12/1988 64 वर्ष सध्या कामावर नाही 52/1992 3379/2002 31/03/2001 डी. डी. क्र.550237 गिदनांक 15.02.01 अन्यये रुपये 11205/- नुकसान भरपाई देवून कमी क
13) Thus, Respondents joined services during various years from 1985 onwards and had approached the Industrial Court with regard to their limited grievance relating to their transfers. At the time when their respective ULP complaints were filed, the Respondents did not desire the relief of permanency. They were only aggrieved by orders transferring them from one place to another. In the context of the said grievance relating to transfer, interim reliefs were sought by Respondents in their respective Complaints seeking stay on transfers. The Industrial Court passed orders granting status-quo in each of the complaints. It would be relevant to reproduce one such interim order passed in the case of Vijay Balbhim Mali (Complaint ULP No.43/1992): (O R D E R) I) The Respondents shall maintain status-quo as to the service of Complainant, until further order. II) The notices also be issued to the Respondents.
14) Thus, on 17 February 1992, status-quo was granted with regard to the transfers of Respondents. Since there was neither any termination nor relief of permanency was sought, the interim order of status-quo was essentially restricted with regard to the place of posting of each of the Respondents. Though, Ms. Nimbalkar has sought to suggest that continuation of services of Respondents after 17 February 1992 was owing to status-quo order granted by the Industrial Court, I am unable to accept the said contention. The status-quo order was only with regard to the transfer of Respondents and did not prohibit Petitioners, in any manner, from terminating or discontinuing their services. This is clear from the fact that during pendency of the Complaints, Petitioners discontinued services of Respondents on 15 February 2002, during operation of order of statusquo. Petitioners thus rightly understood the exact effect of status-quo order and continued services of Respondents for their own benefit.
15) This is how services of Respondents were continued till February 2002 during pendency of their respective complaint. The complaints came to be amended by order dated 12 January 2000 whereby grievance relating to permanency came to be incorporated in the pending complaints. Ordinarily, the cause of action relating to transfer was distinct and independent from the cause of action of permanency and it was not advisable to mix the two independent causes of action in one complaint. However, the orders granting amendment have attained finality and the same were not questioned by the Petitioners. This is how in complaints, which were pending since the year 1992 and which were restricted only with regard to the transfers, were amended in the year 2000 by incorporating the grievance relating to permanency.
16) Respondents thus continued working for Petitioners from the dates of their initial engagements till they were terminated on 15 February 2002. Thus, each of the Respondents rendered more than 10 years of service with the Petitioners. Infact one of the Respondents, Dhanaji Shrirang Deshmukh worked since 1985 till 2002 and rendered about 17 years of service. The issue for consideration is whether the Industrial Court is justified in granting the relief of permanency to the Respondents?
17) Since issue involved in the present Petitions relate to grant of permanency in Government service, reference to the landmark judgment of the Constitution Bench in Secretary, State of Karnataka & Ors. V/s. Umadevi[4], which marks a watershed moment in development of law relating to regularization, would be necessary. The Constitution Bench held that mere continuance of an employee for a long period does not create any right of regularisation in the service. It is held thus:
43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with
Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.
18) The sound exposition of law by the Apex Court in Umadevi now renders regularization of casual, ad-hoc, temporary or contractual employees impermissible even if they have rendered long years of service. However a one-time exception has been carved out by Apex Court in Umadevi for regularisation of irregularly appointed employees against sanctioned posts completing 10 years of service, In Umadevi period of 10 years’ service is prescribed for one time exception only if the same is without intervention by Courts/Tribunal. Para 53 of judgment in Umadevi reads thus:
53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.
19) Since the Petitions arise out of Orders passed by the Industrial Court, a brief reference to the powers and jurisdiction of an industrial adjudicator to grant regularisation de horse the judgment of Constitution Bench in Umadevi would also be necessary. The issue arose before the Apex Court in MSRTC Vs. Casteribe Rajya Parivahan. In MSRTC (supra), the Apex Court held that the judgment in Umadevi does not denude the Industrial and Labour Courts of their statutory power under the MRTU and PULP Act to order permanency of the workers who have been victims of unfair labour practice on the part of the employer where the posts, on which they have been working, exist. It further held that the provisions of MRTU and PULP Act enables an industrial adjudicator to give preventive as well as positive direction to an erring employer. In MSRTC the Apex Court has held in paragraph 32, 33 and 36 as under:-