B.R. Gavai, J.
1. Since the facts and the law points involved in these three petitions are common, same are being disposed of by this common judgment.
2. By way of present petitions, the petitioners challenge the common judgment and order passed by the learned Industrial Court dated 9th March, 1994, thereby allowing the complaints filed by the respondent No. 2 herein-original complainants.
3. The respondent No. 2 in these writ petitions who are employees of the petitioners, had filed Complaint Nos. 122/86, 123/86 and 126/86, under Section 28 read with Items 5 and 9 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' for the sake of brevity). It was alleged in the said complaints that the complainants were initially appointed as Mazdoor on daily wages by the present petitioners. It was further alleged that the complainants were brought on Converted Regular Temporary Employee (hereinafter referred to as C.R.T.E. for the sake of brevity) as Mazdoor as per the decision of the State Government communicated vide letter dated 10th January, 1983, It is alleged that all the persons similarly situated with the complainants, were promoted to the post of Karkuns, by the order dated 1st January, 1986, by the State Government. It was alleged that though the complainants were entitled to be promoted along with those persons, they were denied promotion to the posts of Karkuns. It was alleged that since the complainants were engaged in the trade union's activities, their legitimate claim was denied. It was further alleged that the complainants were, in fact, doing the work of Karkuns and as such were entitled to be promoted as such with retrospective effect i.e. from 4-11-1981, 4-7-1981 and 9-8-1978.
4. The learned Industrial Court arrived at a finding of fact that all the complainants were, in fact, doing the work of Karkuns. It was also found that the names of the complainants were proposed for bringing them to C.R.T.E. as Karkuns. The learned Industrial Court, therefore, found that they were qualified to be promoted as Karkuns, and that they were entitled to be brought on C.R.T.E. as Karkuns. The learned Industrial Court, therefore, by the judgment and order dated 9th March, 1994, allowed the complaints and directed the petitioners to bring the complainants on C.R.T.E. as Karkuns from 4-11-1981, 4-7-1981 and 9-8-1978. Vide the said order, the learned Industrial Court also granted all the benefits to be extended to the complainants with effect from the said dates. Being aggrieved by the said judgment and order passed by the learned Industrial Court, the petitioners have approached this Court by way of present writ petitions.
5. Vide order dated 27th June, 1995, this Court issued Rule. While issuing Rule, this Court refused to grant any interim relief in favour of the petitioners. However, the proceedings in criminal complaints filed by the respondent No. 2-employees were stayed on the condition that the petitioners implement the order under challenge.
6. It is clear from the record that thereafter, civil applications were filed by the petitioners, in all the three petitions, for modification of the earlier order passed by this Court, insofar as it refuses to grant any interim relief. The petitioners had fairly stated that the petitioners were willing to deposit the amount of backwages in this Court, which would be permitted to be withdrawn by the respondents-employees on furnishing solvent surety. It was also stated that the petitioners will make the payment to the respondents-employees as Karkuns every month. However, this Court declined to review its earlier order dated 26th June, 1995. Thus it is not in dispute that on account of non-grant of interim relief, the respondent No. 2-employees have not only continued to work as Karkuns, but have also been paid backwages with effect from the dates mentioned in the order of the learned Industrial Court dated 9th March, 1994.
7. Shri Gilda, the learned Counsel appearing on behalf of the petitioners, has submitted that the petitioners have challenged the impugned order mainly on two grounds; firstly, that the complainants have not made any assertion in the complaints indicating the nature of the duties discharged by the complainants, as well as the job of establishment where they had been discharging their duties. He submitted that, therefore, necessary assertion of facts to establish that the establishment where the complainants were working, is an industry, is lacking in the complaints and, therefore, in the absence of such assertion, the jurisdictional facts which were necessary to be pleaded by the complainants, were absent and in the absence of such averments, the complaints were not tenable before the learned Industrial Court. In support of this, he relied upon the judgment of the Apex Court in the case of State of Gujarat and Ors. v. Pratamsingh Narsinh Parmar reported in 2001(1) CLR 968 and on the judgment of the Division Bench of this Court in the case of Haribhau Gaman Waghchaure v. State of Maharashtra and Anr. reported in 2002(I) CLR 383.
8. Shri Gilda, while raising the second ground of challenge on behalf of the petitioners, submitted that the Government of Maharashtra, vide resolution dated 19th September, 1962, have framed the Recruitment Rules for the appointments as Karkuns. Shri Gilda further submitted that for the appointment as Karkun, the necessary qualification is that a person should have passed S.S.C. examination or equivalent examination recognized by the Government. None of the complainants was having the requisite qualification. He, therefore, submitted that on account of the complainants not having requisite qualifications, they could not have been promoted as Karkuns. He further submitted that as a matter of fact, they were not working as Karkuns and were, in fact, working as Mukadam and the nature of duties of Karkuns and Mukadam were different. He submitted that the evidence which was led on behalf of the petitioners that the complainants were working as Mukadam, has been ignored by the learned Industrial Court. He, therefore, submitted that the learned Industrial Court has failed to appreciate the matter in its right perspective and as such the impugned judgment and order needs to be quashed and set aside. He further submitted that the respondents-original complainants, though were not entitled for backwages, have been paid the same as there was no interim order of stay to the impugned judgment and order, and as such the petitioners are entitled to recover the amount paid in excess to the respondents-employees.
9. Shri Malke, the learned Counsel appearing on behalf of the respondent No. 2-employees, has vehemently opposed the claim of the petitioners. Insofar as the first contention is concerned, the learned Counsel submitted that the petitioners are trying to raise the issue of jurisdiction for the first time. It is submitted that the issue of jurisdiction cannot be permitted to be raised for the first time in this Court. He relied on the Order passed by the Apex Court in the case of Krishi Utpadan Mandi Samiti v. Arvind Choubey and Anr. reported in 2003(i) L LJl 507 judgment of the Division Bench of this Court in the case of The Chief Officer, Municipal Council, Akot and another v. Smt. Shantabai Kisan and Ors. reported in 7976 L I C 660 and of the single judge of this Court in the case of Chief Engineer, Irrigation Department v. Waman Atmaram Lends and Anr. reported in : 2005(2)BomCR568 in support of this proposition. Secondly, he submitted that the issue of qualification is totally irrelevant. He submitted that the respondents-employees had gained sufficient experience by working as Karkuns and as such, the complainants were entitled for waiver of condition of requisite qualification and hence, the order passed by the learned Industrial Court, in the submissions of the learned Counsel, is absolutely just and proper. He relied on the judgment of the Apex Court in the case of Bhagwati Prasad v. Delhi State Mineral Development Corporation reported in 1990 LI C 126.
10. To counter the submissions of the learned Counsel for the respondents-employees, that the issue of jurisdiction cannot be raised for the first time in this Court, Shri Gilda, the learned Counsel appearing for the petitioners, relied on the judgment of the Constitution Bench of the Apex Court in the case of The United Commercial Bank Ltd. v. Their Workmen reported in AIR 1951 SC 230 and in the case of Metropolitan and Ors. v. Moran Mar Marthoma and Anr. reported in : AIR1995SC2001 . He further submitted that in view of the judgment of the Constitution Bench of the Apex Court in the case of Secretary, State of Karnataka v. Umadevi reported in : (2006)IILLJ722SC services of such of the persons like the complainants, who had not entered the employment after due selection process, were not entitled to be regularised.
11. Insofar as the first contention of the petitioners is concerned, it is not in dispute that the complainants have nowhere in the complaints averred regarding the establishment of the petitioners being an industry. The Apex Court, in the case of State of Gujarat v. Pratamsingh Narsinh Parmar (cited supra) has held that before coming to a conclusion that the provisions of Industrial Disputes Act are applicable to the disputes between a workman and the establishment where he works, it is necessary that there has to be positive assertion regarding nature of duty discharged by the complainant as well as the job of the establishment where he had been recruited. So, it has been held that there has to be positive assertion of fact by the employee to the extent that the establishment where he has been appointed, is 'an industry'.
12. The Division Bench of this Court in the case of Haribhau Gaman Waghchaure (Cited supra), relying on the aforesaid observations of the Apex Court and finding that there are no assertions in the complaint indicating the Forest Department of the State of Maharashtra as an industry, held that the respondent-Forest Department was not an industry. From the complaint itself, it is clear that the necessary averments regarding the jurisdictional facts asserting therein that the respondent in the complaint was an industry, are totally lacking in the complaint. I, therefore, find that in view of the judgment of the Apex Court in the case of State of Gujarat v. P.N. Parmar (cited supra) and the Division Bench of this Court in the case of Haribhau Gaman Waghchaure (cited supra), since the present respondents-complainants failed to assert that the respondent to the complaint, was an industry and had further failed to place necessary jurisdictional facts in the complaint which would show that the respondent in the complaint was an industry, the complaint itself was not tenable before the learned Industrial Court.
13. Insofar as the objection that the issue of jurisdiction cannot be permitted to be raised for the first time before this Court, is concerned, it is a settled law that issue of jurisdiction goes to the root of the matter. Insofar as the reliance placed by the learned Counsel for the respondents on the order passed by the Apex Court in the case of Krishi Utpadan Mandi (cited supra), is concerned, in paragraph 2 of the said order, the Apex Court has observed as under:
The High Court has held against the appellant on the ground that such a contention was not canvassed before the Industrial Tribunal and also following an earlier decision of another Bench, the High Court dismissed the writ petition.
However, it can be seen that the order of the Apex Court on which reliance is sought to be placed, is an order dismissing the appeal at an interim stage and is not a judgment which decided the issue between the parties. The Apex Court in the concluding paragraph has observed as under:
In view of the fact that Respondent 1 is found to be continuing for more than 16 years, it is too late in the day for the appellant to contend before us that he should be treated as a temporary peon. Hence, on these peculiar facts and circumstances of the case, no relief could be granted to the appellant.
It can, thus be seen that the Apex Court found that in the peculiar facts and circumstances, no relief could be granted in favour of the petitioners therein. It cannot be said that by the said order, the Apex Court has laid down any proposition of law.
14. Insofar as the reliance placed on the judgment of the Division Bench of this Court in the Case of Akot Municipal Council (cited supra) is concerned, the learned Judges of the Division Bench have upheld the order passed by the Industrial Court of not permitting the Municipal Council to raise the question of jurisdiction for the first time before the Industrial Court as it was not raised before the learned Labour Court. However, I find that the view taken by the Division Bench in the said case, cannot be said to be a good law in view of the law laid down in the earlier judgment of the Constitution Bench of the Apex Court in the case of United Commercial Bank (cited supra). Insofar as the judgment of the learned single Judge in the case of Chief Engineer v. Waman Atmaram Lends (cited supra) is concerned, one of the facts that weighed with the learned single Judge was that though the petition was amended by the petitioners, the plea of absence of assertion in the complaint, was not taken in the petition. The another factor which weighed with this Court was that the complainants therein, were B. Com. and S.S.C. passed. It was not a case that the complainants were not possessing the requisite qualification. Therefore, the case of the complainants in the present case cannot be equated with the case of the complainants in the said case.
15. The Constitution Bench of the Apex Court in the case of United Commercial Bank (cited supra) has observed in paragraph 15 as under:
15. The final contention that the sittings in the interval constituted only an irregularity in the proceedings cannot again be accepted because, in the fist place, an objection was raised about the sitting of the two members as the Tribunal. That objection, where it was raised by the applts, or the other party, is immaterial. The objection having been overruled, no question of acquiescence or estoppel arises. Nor can consent give a Ct. jurisdiction if a condition which goes to the mot of the jurisdiction has not been performed or fulfilled. No appearance or consent can give a jurisdiction to a Ct. of limited jurisdiction which it does not possess. In our opinion, the position here clearly is that the responsibility to work and decide being the joint responsibility of all the three members, if proceedings are conducted and discussions on several general issues took place in the presence of only two, folld. by an award made by three, the question goes to the root of the jurisdiction of the Tribunal and is not a matter of irregularity in the conduct of those proceedings. The absence of a condition necessary to found the jurisdiction to make the award or give a decision deprives the award or decision of any conclusive effect. The distinction clearly is between the jurisdiction to decide matters and the ambit of the matters to be heard by a Tribunal having jurisdiction to deal with the same. In the second case, the question of acquiescence or irregularity may be considered and overlooked. When however the question is of the jurisdiction of the Tribunal to make the award under the circumstances summarized above, no question of acquiescence or consent can affect the decision.
(Emphasis supplied)
It can, thus, be seen that the Apex Court clearly held that neither the consent nor the acquiescence can give jurisdiction to a Court, if it does not possess so. It has further been held that the absence of a condition necessary to have the jurisdiction, deprives the award or decision of any conclusive effect. It has been clearly held by the Apex Court in the case of P. N. Parmar (cited supra) that in order to entertain a dispute between an employer and an employee under the Industrial Disputes Act, it is a necessary condition that there has to be an assertion by the complainant by placing necessary facts, that his employer is an industry. It can, thus, be seen that in the absence of such an assertion, the condition necessary to invoke the jurisdiction under the Industrial Disputes Act, would be lacking and thereby making any order passed in the proceedings, without jurisdiction. It is also a settled principle of law that an order passed without jurisdiction is a nullity.
16. The Apex Court in the case of P.M.A. Metropolitan (cited supra) has observed as under:
To begin with the objection to the maintainability of the suit under Section 9, of the Civil Procedure Code was probably not raised in 1954 and 1959 and if raised was not pressed. But that by itself may not preclude defendant-appellant from raising it, even in this Court as the bar or lack of jurisdiction can be entertained, at any stage, since an order or decree passed without jurisdiction is non est in law.
16-A. The Apex Court in the case of Shrisht Dhawan v. Shaw Brothers reported in (1992) 1 SCC 543 has observed as under:
A jurisdictional fact is one on existence or non-existence of which depends assumption or refusal to assume jurisdiction by a Court, tribunal or an authority, which is a fact which must exist before a Court can properly assume jurisdiction of a particular case. Mistake of fact is relation to jurisdiction is an error of jurisdictional fact. No statutory authority or tribunal can assume jurisdiction in respect of subject-matter which the statute does not confer on it and if by deciding erroneously the fact on which jurisdiction depends the Court or tribunal exercises the jurisdiction then the order is vitiated. Error of jurisdictional fact renders the order ultra vires and bad.
It can, thus, be seen that in the absence of assertion regarding the establishment of the petitioners being an industry, a jurisdictional facts necessary for assumption of jurisdiction were not available before the learned Industrial Court. In the absence of such jurisdictional fact, exercise of jurisdiction would amount to error of jurisdiction and as such the order would be rendered ultra vires.
17. In that view of the matter, the objection raised by the respondents-employees that the issue of jurisdiction cannot be raised, for the first time, before this Court, is without substance.
18. In view of the lack of necessary assertion by the complainants and in view of the lack of placing of necessary facts to establish that the present petitioners were industry, I find that the complaints were not tenable in view of the judgment of the Apex Court in the case of P. N. Parmar (cited supra) and of the Division Bench of this Court in the case of Haribhau Gaman Waghchaure (cited supra). The petitions could have been allowed on this short ground alone. However, since the question pertains to the employment of the employees who have been working for a considerable length of time, I also find it necessary to go into the merits of the matter.
19. It can be seen that vide Government Resolution dated 19th September, 1962, recruitment rules have been framed for Karkuns working in the Irrigation and Power Department, Three types of Karkuns have been classified vide the said Rules, namely Daftar Karkuns, Sectional Karkuns and Mustering Karkuns. It can further be seen that for all types of Karkuns, though some other qualification is referred, but requirement of having passed S.S.C. examination or an equivalent examination recognized by the Government, is common in all the three types. It can further be seen that though the complainants have come out with a case that the similarly circumstanced persons were brought on C.R.T.E. as Karkuns, same has been specifically denied by the petitioners in the written statement. On more than one occasions, the petitioners have reiterated that the requirement of passing of S.S.C. examination for being brought on C.R.T.E. as Karkun is mandatory. In unequivocal terms, the petitioners have stated in the written statement that only such persons who have passed S.S.C examination, were brought on C.R.T.E. as Karkuns. None of the persons who have not passed S.S.C. have been brought on C.R.T.E. as Karkuns. It can further be seen that the evidence led on behalf of the petitioners that the post of Mukadam and Karkun are different posts. It is the evidence of the petitioners that the post of Mukadam is superior to Mazdoor and carries higher pay scale. In the evidence, it has come that all the complainants were working as Mukadam and supervising the work of Mazdoors. It has also come in the evidence that those of the labourers who have passed S.S.C. examination and have continuously worked for five years, have been brought on C.R.T.E. as Karkuns. It has also come in the evidence that all those persons who have been brought on C.R.T.E. as Karkuns as per G.R. dated 1-1-1986, had passed S.S.C, examination. It has also come in the evidence that the complainants were not brought on C.R.T.E. as Karkuns as they had not passed S.S.C. examination. The reliance placed by the respondents-complainants on the admission of the witness of the petitioner that since the said persons were doing the work of Karkuns, their names were proposed for bringing their names on C.R.T.E. as Karkuns, in my view, is not of much assistance to the case of the complainants. What was done by the petitioners was only to recommend the names. Ultimately, the decision was required to be taken by the State Government. If the State Government had framed rules and provided necessary qualifications, then I do not find any infirmity in the approach of the State Government in not bringing such of the persons on C.R.T.E,, who did not possess necessary qualifications as prescribed in the Government Resolution of 1962. In any event, the evidence shows that the work of Mukadam and Karkun was different. The complainants were working and discharging their duties as Mukadams. Insofar as the judgment of the Apex Court in the case of Bhagwati Prasad (cited supra) is concerned, it can be seen that the Apex Court took a view that on the basis of the equal pay for equal work, the daily rated workers who were appointed without having minimum prescribed educational qualifications, were entitled to be confirmed on the ground that they acquired the requisite qualifications.
20. However, the Constitution Bench of Apex Court in the case of Umadevi (cited supra), in paragraph 35 has observed thus:
The concept of 'equal pay for equal work' is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the Rules. This Court has in various decisions applied the principle of 'equal pay for equal work' and has laid down the parameters for the application of that principle. The decisions are rested on the concept of equality enshrined in Constitution in the light of the directive principles in that behalf. But the acceptance of that principle cannot lead to a position where the Court could direct that appointments made without following the due procedure established by law, be deemed permanent or issue directions to treat them as permanent. Doing so, would be negation of the principle of equality of opportunity. The power to make an order as is necessary for doing complete justice in any cause or matter pending before Court, would not normally be used for giving the go-by to the procedure established by law in the matter of public employment.
21. In any case, even upon perusal of the evidence, 1 find that the complainants had failed to prove that they had worked as Karkuns. On the contrary, it was proved by the evidence led by the petitioners that they were working as Mukadams, In that view of the matter, I am of the opinion that the view taken by the Industrial Court does not appear to be supported by the evidence on record. Therefore, on merits, the impugned judgment is not sustainable in the eye of law.
22. In the result, petitions succeed. Rule is made absolute in terms of prayer Clause (i) in all the three petitions.
23. However, taking into consideration certain subsequent events, like the death of the respondent/complainant in Writ Petition No. 1722/1995, the fact that the respondent-complainants were permitted to continue as Karkuns on the basis of the order impugned herein and also paid backwages on the basis of the said order, since no interim orders were passed by this Court, 1 find that if the petitioners are permitted to make recoveries from the respondents/employees at this stage of fag end of their career, it will put them to great hardship. In that view of the matter, in order to meet the ends of justice, the petitioners are directed not to recover any amount from the legal heirs of the respondent/complainant in Writ Petition No. 1722/1995, from the amount paid to them, and also not to recover any amount from any of the respondents/complainants, which has been paid to them on the basis of the impugned order. Since the respondent-employees have actually worked in view of non-granting of interim relief in the present petitions, petitioners shall also not recover any amount towards excess salary that has been paid to the respondents/employees. However, it is made clear that hereinafter, the respondents/employees would continue to work as Mukadam and shall be paid the salary as is applicable to the post of Mukadam,
24. At this stage, Shri Malke, the learned Counsel for the respondents/employees, makes a request that the effect and operation of the judgment and order passed by this Court, should be stayed for a further period of eight weeks.
25. Taking into consideration that there was no interim order operating for a considerable length of time, I am inclined to grant stay for a period of four weeks.