Pimpri-Chinchwad Mahanagarpalika & Anr. v. National Workers Federation & Anr.

4.6. Identical orders have been passed on the same date in so far as Writ Petition Nos. 7557 of 2019 and 7558 of 2019 are concerned. All three Writ Petitions concern the members of Respondent No. 1 Union who refused to get themselves transferred to BVG and 5 of 22 approached the learned Labour Court by filing the original Complaint through Respondent No. 1 Union. Originally there were 133 workers taken together in all 3 cases / Complaints. At this stage today, only 77 workers now remain. Their list is appended.

5. Mr. Sakhadeo, learned Advocate for Petitioners would submit that the learned Industrial Court in Revision Proceedings committed an error apparent on the face of record by re-appreciating the evidence which was comprehensively appreciated by the learned Labour Court. He would submit that at no point of time, Petitioners intended to terminate the services of the workers who were the members of Respondent No. 1 Union. He would submit that all that Petitioners’ desire was that the workers who were employed for cleaning purpose by the Petitioners be transferred under the roll and management of BVG which as an expert company / agency / contractor appointed by Petitioners. He has drawn my attention to the judgment dated 21.05.2018 passed by the learned Labour Court dismissing the Complaint filed by Respondent No. 1 Union and contended that the learned Labour Court has rightly concluded on the basis of the available evidence on record that most of the workers had given their consent to the settlement arrived at before the Dy. Labour Commissioner who had given directions to Petitioners that even though the contractor would be appointed, service of all workers shall 6 of 22 stand continued forever. He has drawn my attention to paragraph NO. 25 of the judgement dated 21.05.2018 passed by the learned Labour Court and would contend that once the workers had given their consent to the settlement and agreed to get themselves transferred from the wage register of Petitioners to BVG by registering their names under BVG and also received their monthly honorarium / payment through BVG, there was no act of any unfair labour practice committed by Petitioners and the services of the workers would be merely transferred to M/s. BVG, an expert agency which is the contractor and in view thereof, no question can arise about indulging any unfair labour practice on the part of the Corporation. Next he would submit that only if it is established that there was an employer - employee relationship between the Petitioners and workers, the learned Labour Court could have statutory jurisdiction to entertain the Complaint. He would submit that in the present case, none of the workers were appointed through any recruitment process conducted by Petitioners by following the due process of law, none of the workers were employed in response to any public advertisement issued by Petitioners, that none of the workers were employed by Petitioners by offering an appointment letter to them. Therefore, he would submit that these issues were considered by the learned Labour Court while dismissing the Complaint filed by Respondent No. 1. He would submit that this material consideration by the learned Labour Court has been 7 of 22 re-appreciated and interpreted differently by the learned Industrial Court while overturning the order passed by the learned Labour Court. According to him this is not permissible in law. He would submit that the jurisdiction of the learned Industrial Court in Revision Proceedings is very limited and it can only interfere to the extent of palpable errors committed by the learned Labour Court and not otherwise. He would submit that in the present case, learned Labour Court on the basis of the strength of evidence before it passed the order dated 21.05.2018 and the same could not have been re-appreciated differently by the learned Industrial Court. He would submit that in Writ Petition Nos. 7531 of 2019 and 7558 of 2019, Respondent No. 1 claims to be a Union. He would submit that Respondent No. 1 does have not locus standi to represent the workers which was a stand taken by Petitioners in its written statement filed before the learned Labour Court and the said stand has not been answered. He would submit that reference made by the learned Industrial Court to the muster roll and identity card could never create any employer - employee relationship between the parties in absence of any appointment order issued to the workers. He would submit that services of the Respondents were engaged on need basis and hence they could not claim any right of employment. He would submit that in that view of the matter, recognizing the workers as employees would indirectly amount to regularization / validating a backdoor entry to the workers in public 8 of 22 employment. Hence according to him, the impugned order passed by the Industrial Court is bad in law. In support of this proposition, he has referred to the decision of the Supreme Court in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others[1]. He would submit that the said decision of the Supreme Court has been followed scrupulously by the Delhi High Court in the case of Anil Lamba and Others vs. Govt. of NCT and others[2] and Saroj Kumar Nayak and Others Vs. Tribal Cooperative Marketing Development Federation on India Limited[3]. He would submit that the workers were engaged only on need basis for the purpose of cleaning along with material and hence they cannot claim to be employees in employment. He would submit that none of the schools where the workers were employed are said to be industrial establishments nor can the Petitioners be categorized as industrial establishments. He would submit that the original Complaint filed by the workers was merely on the basis of apprehension of termination and the same has been denied by Petitioners. In fact at no point of time Petitioners would be willing to throw out the workers from their jobs. In that view of the matter, once the employment of the workers is secured, there could be no grievance for the workers and therefore dismissal of the original Complaint by the learned Labour Court was a correct decision in law.

2 Decided on 06.03.2017 in WP (C) No.1958 of 2017 3 Decided on 21.06.2021 in WP (C) No.5453 of 2020 9 of 22 He would submit that assurance is given by the Corporation that none of the workers would be terminated from the work that they are doing. On the contrary, he would submit that all workers would be accommodated as contractual employees through BVG and shall be continued to be given the work. He would submit that the burden of proof that there was an employer - employee relationship between the parties was never discharged by Respondent No. 1 Union and therefore the order passed by the learned Labour Court was passed correctly. He would submit that Petitioners led the evidence of Bajarang Sahebrao Awari below Exh. C-18 before the learned Labour Court which clearly states that the names of the workers / persons stated in Annexure “A” were not employees of Petitioners. It was categorically stated that none of them were employed and appointed as peons under Government Circular dated 30.12.2004. Next he would submit that it was the categorical stand of the Petitioners in their Written Statement filed before the learned Labour Court that the work of cleaning was not a full time work and neither it was a part time work. He would submit that it was the Petitioners’ case at all times that the said work of cleaning was an occasional work which would last hardly for a few hours in a day. He would contend that none of the workers rendered full time employment and work and therefore the claim of the workers through the Union is fake and misleading. He also vehemently and passionately argued that none of 10 of 22 the workers had worked for more than 240 days and strongly denied that any of the workers rendered services for more than three years continuously and this aspect was not considered by the learned Industrial Court. He would submit that the Petitioners had taken a categorical stand in their written statement that none of the workers were ever employed by Petitioners as peons in the school against sanctioned vacant posts. Finally he would submit that most of the workers have already transferred their allegiance to BVG and are now on the rolls of BVG and are continued by Petitioners through the Contractor. He would submit that those workers who have not joined BVG namely 77 workers are the only workers who are remaining and there can be no impediment for these workers also to follow suit and seek employment through BVG.

5.1. In support of his above submissions, he has referred to and relied upon the decisions of the Delhi High Court in the case of Anil Lamba and Others vs. Govt. of NCT and others (second supra) and Saroj Kumar Nayak and Others Vs. Tribal Cooperative Marketing Development Federation on India Limited (third supra).

5.2. In the case of Anil Lamba (second supra), he has drawn my attention to the reference made in the said judgement to the decision of the Supreme Court in the case of Umadevi (first supra) wherein the ratio has been laid down therein for the purpose of regularization. He 11 of 22 would submit that it is incumbent and mandatory upon the Court to see and consider for effecting regularization whether there were / are sanctioned posts available, whether there is any vacancy and whether the persons appointed are qualified persons. He would submit that sanctioned vacant posts can only be filled in by regular recruitment process under the constitutional mandate flowing from Articles 14, 16, 309, 315 and 320 of the Constitution of India. He would submit that none of these conditions are specified in the present case and therefore the workers cannot be given permanent status.

5.3. In the case of Suraj Kumar Nayak (third supra), he has drawn my attention to paragraph No. 26 of the said decision wherein it is stated that regularization is not a mode of appointment. It is stated therein that regular appointment is to be in the manner contemplated under the Recruitment Rules only.

5.4. In view of the above submissions, Mr. Sakhadeo has urged that the impugned decision of the learned Industrial Court deserves to be quashed and set aside and the judgement and order dated 21.05.2018 passed by the learned Labour Court deserves to be upheld.

6. PER CONTRA Mr. Kulkarni, learned Advocate for Respondent No. 1 Union has drawn my attention to the original Complaint filed by the Union on behalf of the workers. He would 12 of 22 submit that the preliminary objection raised by Petitioners that Respondent No. 1 Union is not a recognized Trade Union is misconceived and misplaced. He would submit that the provisions of the statute refer to a “Trade Union” which can espouse the cause of the workers and does not contemplate “Recognized Trade Union” only. He would submit that before the learned Labour Court, Respondent No. 1 Union led detailed evidence of two workers and one Union representative and produced voluminous documents. He would submit that consideration of evidence and the documents produced on behalf of the workers has been incorrectly appreciated by the learned Labour Court. At the outset, he has drawn my attention to the document marked below Exh. U-32 which is a Government Circular dated 30.12.2004. Under this Government Circular which has been placed before me, according to Mr. Kulkarni, appointment of the workers was made for the purpose of appointing them as cleaning staff in the primary schools run by Petitioner No. 1. The cleaning work was in the school class rooms, urinals, surroundings and vicinity of the school building etc. Next he would submit that the learned Labour Court has not considered and appreciated the evidence it its proper perspective. He would submit that there is positive evidence to the effect that the workers were infact employed by the Petitioners and were on its muster rolls. That the said muster rolls were managed by the concerned schools where they were employed. He 13 of 22 would submit that the workers received their salary / wages in bank accounts of the individual workers and the bank passbook was also placed on record which was not denied by Petitioners. He would submit that proper identity cards were issued by Petitioners to the workers. He has next drawn my attention to the categorical findings returned by the learned Labour Court in its order dated 21.05.2018 concluding that the workers were employees of the Petitioners. He would submit that this finding is based on the basis of the entire documentary evidence and the materials placed on record and the said finding was not seriously challenged by the Petitioners before the Industrial Court. He has persuaded me to consider the findings returned in paragraph No. 11 of the Industrial Court’s decision in support of his above submissions. I have perused the same and find that Mr. Kulkarni is right in his contention. In so far as the threat of termination is concerned, he would submit that in oral evidence of the officer of Petitioner No. 1, the threat has been admitted that in the event if the workers did not accept their salary through BVG i.e. contractor, their services would be terminated by Petitioners. Once this was an admitted fact by the witness of the Petitioners, it was a clear case of unfair labour practice committed by Petitioners. Hence, he would submit that on an overall consideration of the evidence placed on record, the Judgment passed by the learned Industrial Court in Revision Application deserves to be upheld. 14 of 22

7. I have heard Mr. Sakhadeo, learned Advocate for Petitioners and Mr. Kulkarni, learned Advocate for Respondents and with their able assistance perused the pleadings of the present case as also the evidence produced on record. Submissions made by the learned Advocates have received due consideration of the Court.

8. In the present case, it is seen that the learned Labour Court in paragraph No. 18 while answering the issue of whether the members of Respondent No. 1 Union are employees of Petitioners has returned a categorical affirmative finding of fact that after considering the record of the case and the evidence of both parties, the Petitioners have not refuted or challenged either by reply or documentary evidence the contention of the Union that its members were in service continuously for the last 9 years and that they have worked 8-9 hours per day. Learned Labour Court has held that the documents produced by the Union are plainly admitted by the Petitioners which is sufficient to prove that the workers are the employees of the Petitioners. Hence categorical and affirmative finding has been returned by the learned Labour Court that Petitioners have failed to establish that the workers and members of the Union were not workmen under the definition of “workman” under the Industrial Disputes Act, 1947. Next, it is seen that in the meeting held before the Dy. Labour Commissioner on 25.01.2008 between Petitioners and the workers, directions were 15 of 22 given to the Petitioners that even if the Petitioners desire to change the employer from itself to the contractor at any point of time, the services of the workers will not be terminated and that they shall be continued in service. However this does not mean that the Petitioners had power and authority to transfer the workers to the contractor appointed by them. The fact that Petitioners’ desire to transfer the services of the workers from themselves to the contractor clearly amounted to termination of the services of the workers with the Petitioners. This aspect was not considered by the learned Labour Court and this question has been duly considered by the learned Industrial Court while re-appreciating the evidence on record which was required. This is a clear case where the workers were on the muster roll of the Petitioners. They received their salaries / wages in their bank accounts. It is seen that once the workers refused to accept their salary from BVG, Petitioners did not pay the salary to them and therefore this act of Petitioners amounted to unfair labour practice. It is seen that Petitioners forced the workers to accept BVG as their employer. In the present case, the workers who were employed by Petitioners are undisputedly employed by the Petitioners from the beginning. The learned Industrial Court in paragraph Nos. 11 to 13 have returned categorical findings in support of the above issues. Same are reproduced below:- 16 of 22 “11. By considering the submissions made by the ld. Advocates for both the sides, and on the perusal of the Judgment of the Labour Court, it appears that the Labour Court has held that the complainant is employee of the Respondent. The present Respondents have also not seriously challenged these findings. The Labour Court has considered the documentary evidence such as muster roll, Bank pass book, Entry of receipt of salary in the Bank Account etc coupled with the oral evidence of the complainant. There is no dispute between the parties that the complainants are working with the Respondent as Peon on honorarium basis of Rs. 2000/ per month.

12. The Respondents have come with the limited defence that the complainant failed to accept their request of receiving their salary through M/s. B.V.G. India Limited. The Respondents wanted to continue the complainant's services with M/s. B.V.G. India Limited. This defence clearly shows that the Respondents wanted to transfer services of the complainant through M/s. B.V.G. India Limited who is the service provider agency and who has no any direct connection with the Respondents. The Respondents wanted to transfer the complainant's services to M/s. B.V.G. India Limited and wanted to take the complainant's services through M/s. B.V.G. India Limited. This conduct of the Respondent clearly shows that they wanted to transfer services of the complainants to other agency. The complainants have denied to accept their salary from M/s. B.V.G. India Limited. Therefore, the Respondents have not paid salary to the complainant. This act of the Respondents is nothing but unfair labour practice on their part. Undisputedly, the complainants are employees of the Respondent. The Respondents cannot transfer services of their employees to other agency in order to commit unfair labour practice.

13. It is to be seen here that the ld. Labour Court has not touched to this aspect and as inferred that there is no unfair labour practice and complaint is not tenable under item no. 1 (a), (b), (d) and (f) of Schedule IV of MRTU & PULP ACT, 1971.”

9. Learned Industrial Court has thereafter referred to and relied upon the decision in the case of Hindustan Lever Limited Vs. Ashok Vishnu Kate and Others[4] to hold that Complaint could be filed by the workman apprehending discharge or dismissal by way of unfair labour practice. In the facts of the present case, an identical situation has arisen which compelled the workers to approach the learned 41995 II CLR 823 17 of 22 Labour Court in the first instance. The findings returned in paragraph Nos. 15 and 16 of the order passed by the learned Industrial Court clearly show that the learned Labour Court committed an apparent error in holding that there was no unfair legal practice committed by Petitioners. I am in complete agreement with the findings returned by the learned Industrial Court. Paragraph Nos. 15 and 16 are reproduced below for immediate reference:- “15. The Hon'ble Apex Court has also held in the case of Hindustan Lever Limited Vs. Ashok Vishnu Kate and Others reported in 1995 II CLR 823 that: “On the express language of item 1 of Schedule IV complaint can be filed for the alleged unfair labour practice which is in the offing and towards which a firm step is taken by the employer.” The decision of the Division Bench of the Hon'ble High Court taking the view that the complaints could be filed by the workmen apprehending discharge or dismissal by way of unfair labour practice as contemplated by the relevant clauses of item 1 of Schedule IV of the Maharashtra Act, even prior to the actual passing of orders of discharge or dismissal is well sustained on the scheme of the Act.

16. The above cited ruling is perfectly applicable to the present revision in hand. In the present case also the Respondents have tried to transfer services of the complainant to the third agency by terminating their services with the Respondents. Therefore to my mind the complainant has sufficiently proved by way of documentary as well as oral evidence that the Respondents have indulged into unfair labour practice under item No.1 (a),(b)(d) and (f) of Schedule IV. Therefore, the complainants / applicants are entitled for the reliefs claimed. The complainants have also stated in oral evidence that the Officers of the Respondents would terminate their services if they did not accept their salary through M/s. B.V.G. India Limited. Therefore to my mind the ld. Labour Court has committed apparent error in holding that there is no any unfair labour practice committed by the Respondents. The Judgment under Revision suffers from illegality and impropriety. The Labour Court has not appreciated evidence on record in its proper perspective and thereby committed error in drawing wrong opinion. Hence, on the above discussions, I hold that the applicant has sufficiently proved the fact that the Respondents have engaged in unfair labour practices and they are entitled for the reliefs 18 of 22 claimed. Hence, I record my findings on Point No.1 and 2 accordingly and proceed to pass following order:”

10. From the above observations and findings, no interference whatsoever is called for in all three orders dated 30.10.2018 passed by the learned Industrial Court in Revision Application (ULP) Nos. 90/2018, 88/2018 and 89/2018. All three judgements & orders passed by the learned Industrial Court are sustained and confirmed.

11. Mr. Kulkarni would inform the Court that as on date out of the original 133 workers,77 workers are still members of Respondent No. 1 Union and who are prosecuting their original complaint / grievance till date. For the sake of convenience and to avoid any ambiguity, Mr. Kulkarni has produced a list of 77 workmen before the Court at the time of final hearing. These 77 workers cover all three Writ Petitions before me. The list submitted by Mr. Kulkarni is scanned and reproduced below for immediate reference and convenience of both parties: 19 of 22 20 of 22 21 of 22

12. In view of the decision rendered in the above Writ Petitions, it is directed that the present decision shall apply to the aforementioned 77 workers only who are still employed with the Petitioners. The decision of the learned Industrial Court dated 30.10.2018 is upheld. All three Writ Petitions stand dismissed.

13. With the above directions, all three Writ Petitions stand dismissed. Amberkar [ MILIND N. JADHAV, J. ]