R.C. Chavan, J.
1. This petition by the employer is directed against the order passed by the learned Member, Industrial Court, Nagpur, allowing respondent No. 1's complaint of unfair labour practice as described in Items 5, 6 and 9 of Schedule IV to the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short, 'the MRTU & PULP Act').
2. Facts, which are material for deciding this petition, are as under : Respondent No. 1, who was born on 1-7-1949 and who claims to belong to Scheduled Tribe, was appointed as Peon on daily wages by the petitioner-Committee somewhere in the year 1980-81. On 12th December, 1991, he was transferred to Mandgaon. On 6-2-1995, respondent No. 1 was transferred back to Hinganghat. On 4-7-1995, he was transferred to Samudrapur.
3. Since the petitioner had not regularized the services of respondent No. 1, he filed a complaint of unfair labour practice on 19-8-1992 before the Industrial Court, in which the impugned order came to be passed. After this complaint was filed, on 19-7-1997 the Agriculture Produce Market Committee at Hinganghat was bifurcated into two Committees - the petitioner-Committee at Hinganghat and respondent No. 3-Committee at Samudrapur. At the time of this bifurcation, by virtue of transfer of respondent No. 1 to Samudrapur on 4-7-1995, respondent No. 1 was working with respondent No. 3-Agriculture Produce Market Committee. Respondent No. 1, therefore, joined respondent No. 3-Committee as a co-respondent in the complaint.
4. There is no dispute that respondent No. 1 had completed 240 days of continuous service with the petitioner-Committee as well as respondent No. 3-Committee. It was respondent No. 1's case before the Industrial Court that his juniors Arun Mankar, Gajanan Bhosale and Prakash Lambe, who were near relatives of the office bearers of the petitioner-Committee, had been regularized, while he was not given such a benefit. He claimed that the action of the petitioner in not regularizing his services in breach of the Model Standing Orders framed under the Industrial Employment Standing Orders Act amounted to unfair labour practice covered by Item 9 of Schedule IV to the MRTU & PULP Act.
5. According to the petitioner, there was no favouritism practised in regularizing the services of Arun Mankar, Gajanan Bhosale and Prakash Lambe, since they were registered with the Employment Exchange and were within the age limit prescribed for employment by the Act and the Rules. Respondent No. 1 was age barred and, therefore, his name could not be forwarded for regularization. It was claimed that the Model Standing Orders are not applicable and that the petitioner had not engaged in unfair labour practice as described in Items 5, 6 or 9 of Schedule IV to the MRTU & PULP Act.
6. After considering the evidence tendered, the learned Member, by his impugned order dated 9-8-2004, held that the unfair labour practice had been established and, therefore, directed the petitioner-Committee to regularize the services of respondent No. 1 from the date of filing of the complaint, i.e. 19-8-1992, with all consequential benefits.
7. It is not in dispute that respondent No. 1 has now retired as a daily wager from respondent No. 3-Committee.
8. I have heard the learned Counsel for the petitioner, learned Counsel for respondent No. 1, learned AGP for respondent No. 2, and learned Counsel for respondent No. 3.
9. The learned Counsel for the petitioner submitted that after bifurcation of the petitioner-Committee on 19-7-1997, respondent No. 1 was working with respondent No. 3-Commirtee. In terms of the notification bifurcating the petitioner, the employees were required to submit their consents for allotment to the two Committees. In the absence of such consents being given, the District Deputy Registrar was to take a decision in his behalf about the allotment of the staff. It is the case of the petitioner that respondent had opted to be allotted to respondent No. 3-Committee, though no such option had been asked for, since the bifurcation took place when the complaint was pending. The learned Counsel for the petitioner submitted that the Model Standing Orders would not at all apply since the petitioner has its own rules, which govern the employment. However, since it is not shown that such rules are certified as Standing Orders, the Model Standing Orders would apply. In any case, it is not the petitioner's claim that the services of respondent No. 1 could not at all have been regularized. On the other hand, the petitioner has specifically claimed that the services of three other employees, who were holding Employment Exchange registration numbers and were within the age limit prescribed, were regularized and that the service of respondent No. 1 was not regularized, because at that time, he was not holding any Employment Exchange registration number and was also age barred. Thus, had respondent No. 1 been able to show that he had a valid Employment Exchange registration and that he was within the prescribed age limit, the petitioner could not have raised any excuse to avoid regularization of respondent No. 1. As a corollary, it would follow that the petitioner must be able to point to some rules, which required registration with the Employment Exchange as a pre-condition for regularization, as also some rules to show that respondent No. 1 was age barred at the time when he was employed. As rightly pointed out by the learned Counsel for respondent No. 1, no such rules have been shown or referred to by the petitioner.
10. The learned Counsel for respondent No. 1 submitted that at the time of respondent No. 1's employment in 1980-81, it is not shown that there was any rule, which required that for engagement as a daily water, registration with Employment Exchange was necessary. He submitted that respondent No. 1 was born on 1-7-1949, recruited in the year 1980-81, and was thus 32 years old at the time of first appointment. Since he belonged to Scheduled Tribe, even if it is presumed that there was some age limit for appointment to a Class-IV post, it could not have been less than 35 years, though no such rule about the age limit in employment has been placed on record. Thus respondent No. 1 was not age barred.
11. The learned Counsel for the petitioner pointed out that respondent No. 1 in his deposition before the Industrial Court had admitted in cross-examination that he was born in the year 1947-48. Thus at the time of his recruitment, he must have been about 33 years in age. Having specifically set up the plea that respondent No. 1 was age barred, it was necessary for the petitioner to show what was the exact age limit prescribed and as to how respondent No. 1 was age barred at the time of his recruitment, though respondent No. 1 had not been able to place on record his exact date of birth by producing a certificate to that effect. For this reason alone, the complaint of respondent No. 1 was liable to be allowed. At the cost of repetition, it has to be pointed out that it is the case of the petitioner, that respondent No. 1 was not regularized because he was age barred and did not hold an Employment Exchange registration, for so claiming, the petitioner was obliged to show some rules, which mandated that an employee should have possessed an Employment Exchange registration at the time of recruitment even to a Class-IV post and that there was any age limit prescribed for recruiting such a person.
12. The learned Counsel for the petitioner next submitted that there is a staffing pattern prescribed for each Market Committee and as per the pattern sanctioned for the petitioner-Committee, there are three posts of Peon and one post of Choukidar, which have all been filled up and, therefore, there is no post available. Relying on my judgment in Anna Pandurang Vaidya, since deceased, through L.Rs. and Ors. v. Nagpur Agricultural Produce Market Committee, through its Chairman and Ors. reported at 2009 II CLR 880, the learned Counsel submitted that if there was no sanctioned post, there could be no question of regularization. In para 29 of the judgment, it was observed that the Industrial Court too had granted regularization not from the completion of 240 days but from the date the posts came to be sanctioned. Therefore, according to the learned Counsel for the petitioner, since there are no posts available, there is no question of regularizing the services of respondent No. 1.
13. He also placed reliance on the judgment of the Supreme Court in Maharashtra State Road Transport Corporation and Anr. v. Casteribe Rajya Parivahan Karmchari Sanghatana reported at : (2009) 8 SCC 556, where in para 37, the Court held that there cannot be any quarrel with the proposition that the Courts cannot direct creation of posts.
14. The learned Counsel for respondent No. 1, relying on the very same judgment of the Supreme Court, drew my attention to the observations in paras 32 and 33 thereof, which read as under:
32. 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 of the employer under Item 6 of Schedule IV. Once such unfair labour pratice 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.
33. The provisions of the MRTU and PULP Act and the powers of the Industrial and Labour Courts provided therein were not at all under consideration in Umadevi (3). As a matter of fact, the issue like the present one pertaining to unfair labour practice was not at all referred to, considered or decided in Umadevi (3). Unfair labour practice on the part of the employer in engaging employees as 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 as provided in Item 6 of Schedule IV and the power of the Industrial and Labour Courts under Section 30 of the Act did not fall for adjudication or consideration before the Constitution Bench.
He submitted that by existence of posts what the Supreme Court meant was only existence of a post and not availability. The question was not whether the post was vacant or available, but one whether the post existed. He submitted that this would become clear from the further observations of the Court in paras 41, 42, 43 and 44 of the judgment, which read as under:
41. Thus, there is no doubt that creation of posts is not within the domain of judicial functions which obviously pertains to the executive. It is also true that the status of permanency cannot be granted by the Court where no such posts exist and that executive functions and powers with regard to the creation of posts cannot be arrogated by the courts.
42. However, the factual matrix of the present controversy reveals that it was an admitted position before the Industrial Court, Thane in Complaint (ULP) No. 442 of 1992 that the posts of cleaners in the Corporation were in existence. The Industrial Court, Thane recorded the following findings:
9. Undisputedly, there are posts of cleaners in the Corporation and not only these employees but the other regularly appointed are working under the supervision and control of the Corporation's officers and supervisors. The respondent Corporation has filed the statement showing attendance of these complaints in different depots showing the day from which the work was allotted during the period from 1992 to 1994. It is at Ext. C-9. This document is already referred above. Therefore, the case of the complainants that they are working in different depots is not a disputed one. It is for the Corporation to point out how many posts are in the depots and how many persons are working in those depots. Therefore, it cannot be said that for want of any material on record that all these persons cannot be absorbed in permanent posts. When there is deliberate attempt on the part of the Corporation not to employ them as regular employees in the posts of cleaners for years together the intention is very clear and in my opinion, this is the fit case where the declaration under Item 6 of Schedule TV of the Act will have to be given.43. The Industrial Court at Bombay in its order dated 2-5-1995 while dealing with Complaints (ULP) Nos. 542 and 574 of 1991 on the basis of the evidence on record recorded the findings thus:
(i) ... the employees covered by the complainants are doing the job of washing, cleaning buses, and the work was done round the clock. The work of washing, cleaning buses was previously done by the helpers, who are in the fourth category, and their salaries grade begins from Rs. 875-12-1055-15-1145, whereas the grade of Swachhak, which is also in fourth category begins from 750-12-970-14-940. These categories are mentioned in Maharashtra S.T. Samachar. It is the publication of Maharashtra SRTC and, the said document is filed in Complaint (ULP) No. 574 of 1991 along with complaint below, Ext. U-4, Schedule A gives salary grades of various employees. The category of Swachhak is at Sl. No. 1, and category of helper is at Sl. No. 15. Therefore, it is very clear that, the rest (sic post) of Swachhak was already mentioned in the fourth category of the schedule,
(ii) Witness examined by the Corporation Mr Deekar has admitted in his evidence, that on 'examination' previously job which was being done by the helper is now being done by the employees covered by these complainants. He further admits that, the helpers who were doing the job previously were the regular and permanent employees of the respondent Corporation working round the clock. He also admits that, since the depots of the respondent Corporation work round the clock, these Swachhaks are also required to work round the clock, and therefore, they are divided in three shifts. He admits that, even as on today, there are some employees in the respondent Corporation that are designated as Swachhak, and they are getting much higher salary than the employees covered by the complaint. The employees covered by the complaints were previously paid Rs. 10.50 per day, and the same mode of payment was converted to the piece-rate basis. The witness further admitted that, cleanliness of the bus is incidental and part and parcel of plying, and the buses have to run regularly.
(iii) It is further admitted position that these employees have been in the employment of the respondent for last several years, and they have been paid much less salary than so-called regular employees working as Swachhak. They have also been deprived the benefits of settlements and other facilities. The respondents claim that they were appointed as time-gap arrangement, the respondents have failed to show as to how the helpers legitimately did not do the job of Swachhak. Therefore, those employees were appointed on piece-rate basis. Presuming that it was the right of the respondents to appoint the Swachhak on piece-rate basis, then also, it is an admitted position that they were asked to do the same work which Swachhaks employed by the Corporation were doing. Therefore, pointed discrimination has been made very much clear by the complainants,
(iv) In respect of dates of appointment and, number of years of service, the witness of the complainants has stated firmly that they are working since long time, and then the fact regarding appointment was never disputed by the Corporation. The respondent has admitted records regarding the appointments of employees but, they have neither produced any record, nor contradicted the statements made by the witness of the complainants except giving some suggestion that they have not worked on regular basis. Therefore, evidence of the witness remained unchallenged. Hence it is very much clear that the complainant has established that the employees covered by the complaints are doing the job of regular nature, and their work continued round the clock, which were divided in each shift being of 8 hours. It is also already proved that the empoloyees covered under this complaint are doing identical job as that of regular Swachhak appointed by the respondent Corporation, and these Swachhaks got much higher salary and other benefits than the employees covered by this complaint.
44. In view of the findings recorded by the Industrial Court, Thane as well as Industrial Court, Bombay, it can be safely held that the posts of cleaners exist in the Corporation. No factual foundation has been laid by the Corporation that the posts of cleaners do not exist in the Corporation, rather the evidence on record reflects otherwise.
15. It may be seen from these observations that there was nothing to show that any vacant post had to exist. The Court concluded that since the posts of Cleaners existed in the State Road Transport Corporation, the employees concerned could be absorbed. In the present case too, the very contention of the petitioner that three other persons were regularized because they held registration with the Employment Exchange and were within the imaginary age limit, (about which the petitioner has not been able to point to any rule), as also the claim of the petitioner that as per staffing pattern, three posts of Peon and one post of Chowkidar were sanctioned, would show that posts exist. The question whether respondent No. 1 or any other person was entitled to occupy one of those posts is different. There fore, applying the principle enunciated by the Supreme Court in Maharashtra State Road Transport Corporation v. Casteribe Rajya Parivahan Karmachari Sanghatana, it would be imperative for the petitioner to accommodate respondent No. 1 according to his turn and not necessarily by creating any supernumerary post.
16. The other contention of the petitioner as to whether respondent No. 1 could have maintained a complaint in respect of Item 6 of Schedule IV to the MRTU & PULP Act, need not be gone into, since it is not shown that there was any recognized union, which could have espoused the cause of the complainant in respect of unfair labour practice as defined in Item 6 of Schedule IV to the MRTU & PULP Act in view of the provisions of Section 21 of the said Act.
17. In view of the foregoing, the impugned order directing the petitioner to regularize the services of respondent No. 1 from 19-8-1992 (and not from completion of 240 days after his employment in 1980-81) cannot at all be faulted.
18. The petition is, therefore, dismissed.