1. In all these writ petitions the issue involved is identical. Therefore, all these petitions have been heard together and the same are being disposed of by this common judgment.
All these petitions take exception to the judgments and orders delivered on 22nd and 23rd September, 2011 by the learned Member, Industrial Court, Latur in Complaints (ULP) no.22, 26, 27, 25, 24, and 23/2008.
2. The relevant facts, as narrated in the complaints, are thus:
The respondent No.1 herein are the original complainants before the Industrial Court. They filed the complaints stating therein that the complainants are working as a Clerk since 15.09.2001, 1.11.1988, 1.1.1997, 1.6.1989, 31.12.1998, and 1.10.2000, respectively in the office of the present petitioner â original respondent No.1 and respondent 4. They are getting monthly salary of Rs.3500/-. The petitioner herein and respondents 2 to 3 had passed a resolution No.4 on 29.5.2004, but they had not absorbed the complainants on the posts of Group Secretary and committed unfair labour practice. In the beginning, the complainants were paid monthly salary of Rs. 500/-, and now they are getting Rs.3500/- per month. The complainants - present respondent No.1 completed the various courses of like LDC, GDC, M.A. of Maharashtra Rajya Sahakari Sangh Maryadit, Pune and they are working as Group Secretaries in the respective Vividh Karyakari Sahakari Society Ltd. - respondent No.4 herein.
3. The complainants submitted that there are many employees working as Group Secretary and getting salary in the pay scale of Rs.4,000-6,000. The respondents therein are asking the complainants to do the work of Group Secretary, and there is no difference in the work done by the complainants and the other Group Secretary, and in spite of this, respondents are not paying the complainants
same salary, respondents therein have committed breach of the principle of 'equal pay for equal work'. The respondents societies have requirement of Group Secretaroes and said posts are vacant and resolution is also passed but, respondents society had not absorbed the complainants permanently on the posts of Group Secretary. Other clerks Gyanba Nagesh Hadge and Sudhir Ramchandra Puranik were also directed to be absorbed permanently on the posts of Group Secretary by making resolution no.4 and the respondent societies had absorbed the particular persons in their favour only and committed unfair labour practice as per item no.5. The complainants therefore, filed the complaints praying permanency on the posts of Group Secretary and consequential benefits.
4. The present petitioner - original respondent no.1 filed its written statement and opposed the complaints. After appreciation of the evidence and contentions of the respective parties, the Member, Industrial Court allowed the complaints directing the respondents 1 and 4 therein to cease and desist from engaging in unfair labour practices. They were directed to make the complainants permanent on the posts of Group Secretary with consequential benefits. Hence, this petition.
5. The learned Counsel for the petitioner submitted that there is no employer-employee relationship between the petitioner herein and respondent No.1 - complainants. It is submitted that the Industrial Court should have framed the issue in respect of employer â employee relationship when specific contention was raised in that behalf. In support of his contention, the learned Counsel for the petitioner pressed into service exposition of this Court in case of Executive Engineer (O and M) M.S.E.B. vs. Hajarabi Abbas Khatik [2011(1) Bom.C.R. 587, the judgment of the Supreme Court in case of Sarva Shramik Sangh vs. m/s Indian Smelting and Refining Co.Ltd., [AIR 2004 SC 269], Vividh Kamgar Sabha vs. Kalyani Steels Ltd. and another [AIR 2001 SC 1534] and submitted that the Industrial Court ought to have framed issue in respect of the existing relationship as employer and employee between the petitioner and respondent no.1 - complainants. The learned Counsel further submitted that the prayer for permanency could not have been granted by the Industrial Court since the petitioner is a public employer, in view of the judgment in case of Secretary, State of Karnataka and others v. Umadevi and others [(2006) 4 SCC 1]. It is submitted that there was no specific pleadings in the complaints that the complainants have completed 240 days service in a particular calendar year. It is submitted that the complaints were not under Item 6 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the said Act). Therefore, directions issued by the Industrial Court granting permanency are without authority of law. It is submitted that no case is made out under Item 5 of Schedule IV of the said Act because, Gyanba and Sudhir were appointed in the year, 1999-2000 and that too, after following proper procedure under the service rules. The State Government by issuing directions / circulars, has specifically directed all concerned including the petitioner not to recruit persons for the posts of Group Secretary. It is submitted that as per the decision taken in the special general body meeting dated 27th February, 2004, it was specifically resolved that considering the ban imposed by the State Government, the employees of respondent No.4 were authorized to act and sign as Group Secretary. It was further resolved that because of shortage of Group Secretary and to meet the exigencies, the employees of respondent No.4 were authorised to work and sign as a Group Secretaries as a stop gap arrangement and such appoint cannot be treated as an appointment on the posts of Group Secretary. The complainants were authorized to work as Group Secretaries and for that purpose, they are paid only Rs.3500 as a consolidated honourarium. It is submitted that the complainants have accepted the terms and conditions of the letter dated 28th February, 2004 and in the light of said letter, the complainants could not have asked for regularization of their services. It is submitted that resolution No.4 dated 29th May, 2004 passed by the petitioner cannot be implemented being contrary to the directions of the State Government. In view of the amendment in the Maharashtra Co-operative Societies Act, 1960, the provisions of Section 69-A are removed and the provisions of Section 69-B are inserted. The Industrial Court has misread and misconstrued the directions issued by the State Government by its circular dated 30th September, 2009 and 6th December, 2004. Therefore, relying upon the grounds taken in the writ petitions, submissions made across the Bar, the judgments cited supra, the learned Counsel for the petitioner submitted that the petitions deserve to be allowed.
6. On the other hand, learned counsel for the respondent No.1 i.e. original complainants invited my attention to the reasons assigned by the Industrial Court and submitted that the Industrial Court has considered the Resolution No.4 passed by the petitioner on 29th May, 2004 and also the fact that the posts are sanctioned and now, even the State Government has issued directions to the petitioner and all concerned to absorb the persons who are working on the posts of Group Secretary. The respondent No.1 - Complainants were appointed as Group Secretaries as it is evident from the letter of appointment issued by the petitioner. It is submitted that by the said letter, petitioner agreed to pay Rs.3500/- per month to the respondent No.1 - complainants and they were not allowed to draw any benefits / wages from respondent No.4 societies. It is submitted that the respondent No. 4 has supported the case of complainants - respondent No.1 stating that the complainants - respondent No.1 have been continuously working and discharging the duties on the posts of Group Secretary. The appointments of the complainants as a Group Secretaries were to implement certain schemes and to avoid loss to the petitioner and also reputation of the Government. Therefore, considering the case in totality, the Industrial Court has taken into consideration the resolution passed by the petitioner, the fact that the complainants have completed more than 240 days of service in a calendar year and they are discharging duties continuously on the posts of Group Secretary and appointment letters have been issued by the petitioner to the complainants appointing them as a Group Secretaries and therefore, the view taken by the Industrial Court needs no interference. The learned Counsel for the complainants - respondent No.1 submitted that the decision in case of Umadevi (supra) is no bar to the Industrial / Labour Courts to exercise powers u/s 30 of the said Act. Therefore, relying upon the contents of the complaint, arguments advanced before the Industrial Court, the judgment in case of Maharashtra Road Transport Corporation and another vs Casteribe Rajya P. Karmchari Sanghatana [2009(8) SCC 556], the Counsel for the complainants - respondent No.1 would submit that the petitions are devoid of any merits and the same may be rejected.
7. The stand taken by the respondent No.4, as reflected in the impugned judgment, appears to be that the recruitment to the post of Group Secretary is made by the petitioner - Osmanabad Zilla Dekhrekh Sahakari Sanstha Maryadit, Osmanabad and the complainants have been authorized to act as Group Secretaries and they are paid total honourarium of Rs.3500 p.m. and the complainants are not paid any salary and allowances by respondent No.4. It is submitted that the respondent No.4 in its reply has admitted that the complainants are doing their duties properly.
8. I have given careful consideration to the rival submissions of the parties. With the assistance of the Counsel for the parties, perused the pleadings in the petitions, grounds taken therein, annexures thereto and the impugned and order passed by the Industrial Court, the judgments of this Court and the Supreme Court, cited by the parties. It appears that the Industrial Court framed necessary issues for its consideration / determination. The Industrial Court framed the Issue No.1 i.e. Does the complainant prove that respondents have committed unfair labour practices as per Item No.5, 9 and 10 of Schedule IV of the M.R.T.U. and PULPL Act, 1971? Said issue has been answered affirmatively, holding that as per Item No.5,6 and 9 of Schedule IV of the said Act the respondents have committed unfair labour practices.
9. Upon careful perusal of the findings recorded by the industrial Court, it appears that the Industrial Court has dealt with the submission of the petitioner that the complainants have not worked for more than 240 days in a calendar year. In para 16 of the impugned judgment, The Industrial Court, upon perusal of the pleadings in the complaints, found that the complainants are doing the work of Group Secretary since many years and keeping the complainants on temporary basis on the said post without making them permanent amounts to indulgence in unfair labour practices. The Court has adverted to paragraphs 3 and 4 of the complaints and further observed that the complainants are doing the work of Group Secretary since many years. The respondent No.4 has clearly stated in Exh.C-4/11 that since long they are working as Group Secretary with respondent no.4 society as per orders of petitioner herein till the date and they are paid honourarium only of Rs. 3500/- since March, 2004 and they were not paid any amount but, they are doing their job properly. The Industrial Court has observed that the statement of respondent No.4 has not been disputed by the original respondent No.1 - petitioner herein. In para 17 of the impugned judgment, the Industrial Court has adverted to the evidence of witness for petitioner herein Mr.Vasant Ghule who admitted in his cross-examination that the complainants were given authority of doing the job for the post of Group Secretary and no other person was appointed as Group Secretary for doing the said job. He further admitted that muster is not kept in respect of Group Secretary and complainants were given honourarium of Rs.3500/- since 2004 till the date of cross-examination of the said witness. Therefore, the Industrial Court held that the complainants have proved the factual aspect that they are doing the work on the posts of Group Secretary and in spite of that, the complainants were not made permanent on the said posts even though there was resolution dated 29th May, 2004 passed by the petitioner herein. Therefore, taking into consideration the fact that the complainants are working as Group Secretary for many years and they are not granted benefit of permanency, the Industrial Court held that the complainants have acquired right to become permanent in view of the law laid down by this Court in case of Mahindra and Mahindra Ltd., Nagpur vs Avinash D. Kamble and anr and Casteribe Rajya P. Karmachari Sanghtana (supra). Relying upon the said judgments, the Industrial Court held that there is clear intention on the part of the employer i.e. petitioner herein for continuing the complainants for many years only as a temporary workmen and it is only for depriving them from the status of permanency. The Industrial Court has again adverted to the evidence of the witness Shri Vasant Ghule for the petitioner herein and held that the complainants are entitled to get status of permanency on the posts of Group Secretary and the respondents No.1 and 4 therein deprived the complainants from status of permanency.
10. The Industrial Court has also referred to the policy decision issued by the Commissioner for Co-operation Department, Government of Maharashtra and held that such directions were issued in 2002 not to appoint Group Secretary on permanent basis. However, in view of recent circular issued by the Commissioner for Co- operation Department dated 30thSeptember, 2009, the appointment to the post of Group Secretary are not absolutely prohibited. On the contrary, clause (6) of the said circular shows that such societies would be at liberty to make appointments to the post of Group Secretary and such appointments cannot be said to be totally prohibited and, therefore, the complainants deserve to be given status of permanency. In paras 21 to 24, the Industrial Court has discussed as to how the petitioner, in spite of passing resolution in the month of May, 2004 to appoint Group Secretary, appointed the complainants on the posts of Group Secretary and deprived them from granting the status of permanency on the said posts, has indulged in unfair labour practices as defined under Item 5, 6 and 9 of Schedule IV of the said Act.
11. Therefore, on careful perusal of the judgment and order of the Industrial Court, it appears that the Industrial Court has, in detail, considered the case of the complainants and the contentions raised by the original respondent No.1 i.e. petitioner herein and after appreciating the entire evidence / documents placed on record, reached to the conclusion that the petitioner herein i.e. employer has indulged in unfair labour practices and ultimately, directed the petitioner to desist from engaging in such unfair labour practice. Further, the petitioner and respondent No.4 herein are directed to make the complainants permanent on the posts of Group Secretary and to grant permanency benefits and consequential benefits w.e.f. 1.11.2004 within a period of six months from the date of the order.
12. The contention of the learned Counsel for the petitioner that the Industrial Court ought to have framed the issue as to whether there exists relationship as employer - employee between the petitioner and the complainants, is devoid of any merits in the light of appointment letters issued by the petitioner to the complainants. The said appointment letters are part of the record before the Industrial Court, which unequivocally indicate that there is direct relationship created by the said letter between the petitioner and the complainants.
13. Upon careful perusal of the said letter, it is abundantly clear that not only that the complainants were given the work of Group Secretary but, their salary was restricted to Rs.3500 and they were prohibited from drawing any wages / benefits from respondent No.4 society. Therefore, the Industrial Court has rightly not paid attention to such contention of the petitioner â employer that there is no relationship between the petitioner and complainants as employer and employee. Therefore, the reliance placed by the petitioner on the reported case of this Court in case of Hajarabi Abbas Khatik (supra) and the judgment of the Supreme Court in case of Sarva Shramik Sangh, and in case of Vividh Kamgar Sabha vs. Kalyani Steels Ltd. (supra) is wholly misplaced in the facts of the present case. Secondly, it is not in dispute that the petitioner had passed resolution on 29th May, 2004. The said resolution is part of the record before the Industrial Court. The said resolution has also been placed on record before this Court at Exh.H in Writ Petition No.2502 of 2012 at pages 50 to 53. Upon plain reading of the said resolution, it appears that there is no manner of doubt that the Director Board of the petitioner has resolved to appoint the complainants and other persons who are already working and having experience of working as Group Secretary, should be absorbed on the posts of Group Secretary in the pay scale of Rs.4000 to 6000 and they should be appointed in the various institutions whose names are mentioned in front of their names. It is also specifically resolved that experienced employees working in Vividh Karyakari Seva Sahakari Societies who are trained should be appointed on the posts of Group Secretary in the employment of the Osmanabad Zilla Dekhrekh Sahakari Sanstha Maryadit, Osmanabad and they should be absorbed in the services of the petitioner. Therefore, the contents of the said resolution in unequivocal terms indicate that the petitioner employer had clear intention to absorb the complainants and other employees who are already working in the Seva Sahakari Societies and who are trained on the post of Group Secretary and accordingly, appointment letters were issued to them. However, their monthly salary was fixed at Rs.3500 on honourarium basis. It is true that the State Government directed not to appoint persons on the posts of Group Secretary on permanent basis. However, there is no manner of doubt that by way of aforesaid resolution, the petitioner has resolved to appoint and absorb the complainants and other similarly situated employees on the posts of Group Secretary and accordingly, appointment letters were issued. Therefore, in my opinion, the Industrial Court has rightly held that the complainants and other similarly situated persons are working for years together on the posts of Group Secretary and doing all the duties and performing the obligations of the said post and the petitioner - employer has deprived them from getting permanency benefits and the petitioner has indulged in unfair labour practices as defined in various Items of Schedule IV of the said Act.
14. It is also noteworthy to mention that original respondent No.4 has placed on record written statement mentioning therein that the complainants are working on the posts of Group Secretary since long and they are not drawing any wages / benefits from respondent No.4 and they are only working on honourarium of Rs.3500/- per month, which is agreed to be paid by the petitioner. It is an admitted position that there is shortage of group secretaries as it is reflected in the resolution passed by the Director Board of petitioner way back in the month of May, 2004. It is also not in dispute that the work load is available, posts are sanctioned and therefore, the directions given by the Industrial Court to make the complainants permanent cannot be said to be unreasonable. The Industrial Court has noticed the circular dated 30th September, 2009 issued by the Government of Maharashtra which does not prohibit appointment on the posts of Group Secretary There are also instructions issued by the Commissioner of Co-operation and Registrar, Co-operative Societies, Maharashtra State, Pune to all the District Deputy Registrars, Co-operative Societies, working in the State of Maharashtra, to look after their day to day work and for computerization of their work under the scheme of Computerization, around 8505 group Sachivs are in the working and as per Vaidhyanath committee report, all these societies should be given liberty to appoint Group Sachivs and if such liberty is given, employees who are already working on the said posts should be given priority and they should be absorbed in the services as group secretaries. The said communication also notices that the very important work of finance to the agriculture through computerization scheme is being done by the group secretaries in the State of Maharashtra and therefore, farmers are getting loan within the prescribed period and, therefore, if such scheme is scrapped, then it may affect on the effective distribution of loan to the farmers and, therefore, Group Sachivs who are working under the said scheme should be absorbed in the service on permanent basis and accordingly, guidelines are issued by the Commissioner for Co-operation. Upon careful perusal of those guidelines, it is appears that it is mentioned in guideline No.4 that if the concerned society wishes to absorb its employees already working as Group Sachivs under the computerization scheme, such resolution should be adopted by the said society. Therefore, upon careful perusal of the said guidelines, it is abundantly clear that earlier policy of the Government not to appoint the persons on permanent basis as Group Secretaries has been given up and on the contrary, the concerned societies are given liberty to appoint the employees already working on the posts of Group Secretary and to make them permanent and absorb in the employment. In the facts of this case, already the resolution has been passed by the petitioner for the absorption of the complainants and others and therefore, in my considered opinion, viewed from any angle, the judgments and orders passed by the Industrial Court need no interference.
15. The Supreme Court, in case of Maharashtra Road Transport Corporation and another vs Casteribe Rajya P. Karmchari Sanghatana [2009(8) SCC 556], in para 26 held, thus:
26. The question that arises for consideration is: have the provisions of MRTU and PULP Act denuded of the statutory status by the Constitution Bench decision in Umadevi. In our judgment, it is not. The purpose and object of MRTU and PULP Act, inter alia, is to define and provide for prevention of certain unfair labour practices as listed in Schedule II, III and IV. MRTU and PULP Act empowers the Industrial and Labour Courts to decide that the person named in the complaint has engaged in or is engaged in unfair labour practice and if the unfair labour practice is proved, to declare that an unfair labour practice has been engaged in or is being engaged in by that person and direct 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 policy of the Act. The power given to the Industrial and Labour Courts under Section 30 is very wide and the affirmative action mentioned therein is inclusive and not exhaustive. Employing badlis, casuals or temporaries and to continue them as such for years , with the object of depriving them of the status and privileges of permanent employees is an unfair labour practice on the part 22 of the employer under item 6 of Schedule IV. Once such unfair labour practice on the part of the employer is established in the complaint, the Industrial and Labour Courts are empowered to issue preventive as well as positive direction to an erring employer. The provisions of MRTU and PULP Act and the powers of Industrial and Labour Courts provided therein were not at all under consideration in the case of Umadevi. As a matter of fact, the issue like the present one pertaining to unfair labour practice was not at all referred, considered or decided in Umadevi. Unfair labour practice on the part of the employer in engaging employees as badlies, casuals or temporaries and to continue them as such for years with the object of depriving them of the status and privileges of permanent employees as provided in item 6 of Schedule IV and the power of Industrial and Labour Courts under Section 30 of the Act did not fall for adjudication or consideration before the Constitution Bench. It is true that the case of Dharwad District PWD Literate Daily Wage Employees Assn.7 arising out of industrial adjudication has been considered in Umadevi and that decision has been held to be not laying down the correct law but a careful and complete reading of decision in Umadevi leaves no manner of doubt that what this Court was concerned in Umadevi was the exercise of power by the High Courts under Article 226 and this Court under Article 32 of the Constitution of India in the matters of public employment where the employees have been engaged as contractual, temporary or casual workers not based on proper selection as recognized by the rules or procedure and yet orders of their regularization and conferring them status of permanency have been passed. Umadevi is an authoritative pronouncement for the proposition that Supreme Court (Article 32) and High Courts (Article 226) should not issue directions of absorption, regularization or permanent continuance of temporary, contractual, casual, daily wage or ad-hoc employees unless the recruitment itself was made regularly in terms of constitutional scheme. Umadevi does not denude the Industrial and Labour Courts of their statutory power under Section 30 read with Section 32 of MRTU and PULP Act to order permanency of the workers who have been victim of unfair labour practice on the part of the employer under item 6 of Schedule IV where the posts on which they 24 have been working exists. Umadevi cannot be held to have overridden the powers of Industrial and Labour Courts in passing appropriate order under Section 30 of MRTU and PULP Act, once unfair labour practice on the part of the employer under item 6 of Schedule IV is established."
16. Therefore, it follows from the authoritative pronouncement of the Supreme Court in case of Casteribe Rajya P. Karmchari Sanghatana (supra) that power of Industrial and Labour Court u/s 30 of the Act did not call for adjudication or consideration before the constitution Bench in the case of Umadvi (supra) and does not denude the Industrial or Labour Court of their statutory power under Section 30 r/w Section 32 of the said Act to order permanency of workers, who have been victims of unfair labour practice on part of employer under Item 6 of Schedule IV of the Act.
17. For the aforesaid reasons, the view taken by the Industrial Court is in consonance with the material placed on record and after appreciation of the entire evidence. Therefore, the said view is a reasonable and possible view. Once this Court comes to the conclusion that the view taken by the Industrial Court is a reasonable and possible view, even though another view is possible, that by itself is not a ground to cause interference in extraordinary jurisdiction of this Court. Therefore, for the reasons aforesaid, the impugned judgments and orders passed by the Industrial Court deserve no interference. Writ Petitions are devoid of any merits and stand rejected.