Pandurang Sitaram Jadhav vs The State of Maharashtra Through Its Dairy Manager

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.10064-10075/2010

PANDURANG SITARAM JADHAV ETC.ETC. Appellant(s)

VERSUS

THE STATE OF MAHARASHTRA THROUGH ITS DAIRY MANAGER & ANR. Respondent(s)

WITH C.A. No. 1839-1841/2014 (III)

J U D G M E N T

SANJAY KISHAN KAUL, J.

1. We are faced with eleven appeals filed by eleven daily wage

workers of the Regional Dairy at Konkan, Maharashtra who claim

permanency of their status.

2. The appellants filed complaints before the Industrial Court,

Maharashtra at Kolhapur under Section 28 read with Items 5,6 and 9

of Schedule IV of the Maharashtra Recognition of Trade Unions &

Prevention of Unfair Labour Practices Act, 1971 (hereinafter

referred to as ‘the said Act’) claiming that they had been working

with the respondent for periods more than 240 days continuously

over a long period of time and have not been given regular status.

The status of these complainants is set out in the judgment of the Signature Not Verified Digitally signed by MANISH SETHI Date: 2019.09.30

Tribunal itself and would show the position qua these appellants:

16:30:29 IST Reason:

2

Sr. No. Complaint Date of Date of No. appointment completion of 240 days as per written statement 1. 951/2001 16.10.1984 11.12.1984 2. 952/2001 13.10.1983 11.12.1984 3. 953/2001 1.09.1983 18.11.1985 4. 954/2001 5.9.1986 21.9.1988 5. 957/2001 1.7.1986 29.9.1989 6. 958/2001 26.6.1987 29.9.1989 7. 959/2001 14.11.1986 3.9.1987 8. 960/2001 18.11.1986 25.11.1987 9. 961/2001 1.11.1985 23.11.1986 10. 926/2001 16.9.1987 13.10.1988 11. 4/2002 16.10.1984 19.10.1986

3. The complaints in the case were filed as noticed above, in the

year 2001 though these complainants had been working from the year

1983 onwards and last of such person had started working in the

year 1987. In terms of the order of the Tribunal dated 28.4.2004

these complaints were allowed. It was noticed that the appellants

were being denied the benefits of permanency including yearly

increments, bonus, provident fund, retirement benefits etc. as were

admissible to the regular employees. The plea of the

respondent/State of the absence of any sanctioned posts was noticed

as also the ban on recruitment by the State Government. But the

permanency was granted considering that the appellants were not new

appointees and had been working even as on that date for the last

12 to 20 years. It was thus, felt that the responsibility lay on

the respondent to send proposal to the Government for sanction of

the posts. The fact that these persons had continued as daily 3

rated employees for years together itself showed, it was held, that

there was requirement of permanent posts and this methodology could

not be utilized to deprive the appellants of the benefits of

permanency.

4. The respondent No.2 before us, the Regional Dairy Development

Officer, filed Writ Petition Nos.4141-4152/2006 assailing the said

order and those Writ Petitions were dismissed by the learned Single

Judge vide order dated 10.7.2007. The respondents, however,

succeeded in the further appeal through Letters Patent Appeal

NO.14-25/2008 which were allowed by the Division Bench of the

Bombay High Court in terms of the impugned order dated 31.7.2008.

5. A perusal of the aforesaid order shows that what has weighed

with the Division Bench is there being no stated regular process

for making the appointment and the absence of sanctioned posts. In

view thereof, various standing orders issued under the Industrial

Employment (Standing Orders) Act, 1946 would not come to the aid of

the appellants. We may also note that this is from the context of

the State of Maharashtra in exercise of powers under Section 15 of

that Act having framed the Bombay Industrial Employment (Standing

Orders) Rules, 1959 and the Rules prescribing model standing orders

in Schedule I thereto.

6. We have heard learned counsel for the parties.

7. The factual matrix shows that for decades together these 4

appellants have been performing the job of the regular employees

and this is not a seasonal requirement or a temporary requirement.

No doubt there was no regular process by which these appointments

were made. But then there was absence of such a regular process in

respect of other employees of the same establishment working in

different units who have been beneficiaries of similar orders

passed by the Industrial Tribunal where the High Court dismissed

the Writ Petitions filed by the respondents and even this Court

dismissed the Special Leave Petitions refusing to entertain the

same. There are more than one batch of such cases as apparent from

the record.

8. We may also notice the gravamen of the reasoning of the

Division Bench is the judgment of this court in Secretary, State of

Karnataka & Ors. v. Umadevi & ors.1. However, the ratio of that

judgment has to be understood in its perspective. The directions

issued by the High Court under Article 226 of the Constitution of

India for absorption, regularization of permanent continued status

in the absence of recruitment was frowned upon as the recruitment

was not in terms of the Constitutional scheme. Thus, if an employee

is continuing under the cover of an interim order granted by this

Court it would not entitle any right of absorption to make the

service permanent.

9. The aforesaid aspect and the judgments stand further clarified

and elucidated in Maharashtra State Road Transport Corporation and

1 (2006) 4 SCC 1 5

Anr. v. Casteribe Rajya Parivahan Karmchari Sanghtana2. The said

judgment of this Court deals with a State Act and opined that the

powers of the Industrial and Labour Court are wide which concludes

the issue of according permanent employment affected by the unfair

labour practice. Such power was not to be affected by Umadevi’s

case (supra) as that was a case limited to the scope of powers

being exercised under Articles 32 and 226 of the Constitution of

India for regularization and matter of public importance. Thus,

the power to take affirmative action under Section 30 (1) (b)

remained intact. Section 30(1)(b) is extracted hereunder:

“Section 30. Powers of Industrial and Labour Courts (1) Where a Court decides that any person named in the complaint has engaged in, or is engaging in, any unfair labour practice, it may in its order-

(a) xxx xxx

(b) direct all such person to cease and desist from such unfair labour practice, and take such affirmative action (including payment of reasonable compensation to the employee or employees affected by the unfair labour practice, or reinstatement of the employee or employees with or without back wages, or the payment of reasonable compensation), as may in the opinion of the Court be necessary to effectuate the policy of the Act;”

10. Thus the finding of unfair labour practice of engaging persons

on contract basis over a long period of time was held to be an

aspect which could be enquired into by the Labour Court.

2 (2009) 8 SCC 556 6

11. Our attention was also drawn to the earlier judgment of this

Court in U.P. State Electricity Board v. Pooran Chandra Pandey &

Ors.3 which propounds the same proposition albeit in a different

factual and regulatory framework.

12. In view of the aforesaid facts as also the legal

pronouncements made subsequently, we have no doubt that these

appellants before us would be entitled to the benefit of

regularization and mere delay in preferring the claim would not

come in their way except that the benefit of regularization would

arise from the date the complaints were filed.

13. The finding of an unfair labour practice by the Tribunal has

in fact been confirmed by the learned Single Judge in the present

case and the only two reasons for interference by the Division

Bench relating to Umadevi’s case (supra) have already been

explained in the aforesaid subsequent judgments.

14. We thus, direct the respondents to regularize the appellants

accordingly and the necessary orders be issued within three months

from the date of the order.

15. The benefits which the appellants would be entitled should

also be remitted to the appellants within the same period from the

date of the complaints, though the earlier period would be counted

3 (2007) 11 SCC 92 7

for the purpose of calculation of benefits without the appellants

being monetarily entitled for that period.

16. The appeals are allowed leaving the parties to bear their own

costs.

…………………………...……….J. [SANJAY KISHAN KAUL]

…………………………….……….J. [M.R. SHAH] NEW DELHI SEPTEMBER 25, 2019.

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ITEM NO.103 COURT NO.10 SECTION IX

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Civil Appeal No(s). 10064-10075/2010

PANDURANG SITARAM JADHAV ETC.ETC. Appellant(s)

VERSUS

THE STATE OF MAHARASHTRA THROUGH ITS DAIRY MANAGER & ANR. Respondent(s) ([ RETAIN ITS POSITION ] ) WITH C.A. No. 1839-1841/2014 (III)

Date : 25-09-2019 These appeals were called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON'BLE MR. JUSTICE M.R. SHAH

For Appellant(s) Mr. Vinay Navare, Sr. Adv.

Ms. Gwen Karthika, Adv.

Ms. Abha R. Sharma, AOR

Mr. Venkateswara Rao Anumolu, AOR

For Respondent(s) Mr. Nishant Ramakantrao Katneshwarkar, AOR Mr. Anoop Kandari, Adv.

Mr. Debasis Misra, AOR

UPON hearing the counsel the Court made the following O R D E R

The appeals are allowed in terms of the signed reportable judgment Pending application, if any, stands disposed of.

(ASHA SUNDRIYAL) (BEENA JOLLY) COURT MASTER BRANCH OFFICER

[Signed reportable judgment is placed on the file]