Pune Municipal Corporation and ors. Vs. Ashok Sakharam Jadhav and ors. - Court Judgment

Excerpt:
labour and industrial - permanency - section 51 (4) of bombay provincial municipal corporations act, 1949 and section 13-b of industrial employment act, 1946 - worker claimed permanency as per standing order - employer refused claim of worker on ground that regular service of 5 year should be completed to claim permanency as per act of 1949 - in view of precedent laid down by apex court standing order is special law and would prevail over act of 1949 - benefit of permanency should be allowed to employee according to standing order - employer found to be engaged in unfair labour practice. - section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] admission to professional colleges - technical courses - publication of brochure on basis of which candidates seek admission to various institution keeping in mind their merit and preference of colleges held, for ensuring adherence to proper appreciation of an academic course, it is essential that the method of admission is just, fair and transparent. the first step in this direction would be publication of a brochure on the basis of which the applicants are supposed to aspire for admission to various institution keeping in mind their merit and preference of college. brochure, firstly has to be in conformity with law and the statutory scheme notified by the competent authority. it is a complete and composite document as it deals with the scheme for conducting their entrance examinations, declaration of results, general instructions and method of admission, etc. this brochure is binding on the applicants as well as the authorities. this brochure or admission notification issued by the state or other competent authority cannot be altered at a subsequent stage particularly once the process of admission has begun. there is hardly any exception to this accepted rule of law. section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre,jj] admission to professional colleges - technical courses - approval to additional seats or to start new course - cut off dates held, the settled principle of law is that merit of the applicant is the primary criteria which would determine his rank as well as the college where he would be entitled to admission. this rule should not be frustrated as it will tantamount to entirely upsetting the object of admissions based on merit oriented method and would cast cloud on the fairness and transparency of the method of admission. one of the ways in which merit can be defeated is allowing increase in the intake strength or commencement if new colleges beyond cut-off date and admissions beyond the last date specified in the notification/calendar issued by the concerned authorities. this can be illustrated by giving an example. college a which is running a professional course like engineering or mba etc. has an intake capacity of 60 seats which has duly been notified in the information brochure. however, after the cut-off date, approval is granted by the aicte and thereafter, the process is taken up by the state and the intake capacity of the college is increased by 30 more seats. these seats would obviously, not be notified in the information brochure and the candidate who are meritorious and for whom college a; be the college of reference could not get seats or give preference as the seats were limited. none had the proper knowledge about the increase in intake of seats though at a much subsequent stage and may be even after the last date of admission is over either by themselves or under the order of the court even it is put on the internet or given in the newspaper, the candidates of higher rank or meritorious candidates would not be able to avail of that benefit because they have already submitted the testimonial, have paid their fees and the courses have commenced. in that situation, for variety of reasons, they may not be able to take admission in the institution of their higher preference while the candidates of much lower merit will be admitted to that course. besides defeating the merit, it has been commonly noticed that the late admissions made by the colleges directly effect notified candidates who have questioned it more than often as their admission process is not so just, fair and transparent which has given rise to the litigation. it is also a kind of back door entry method. another serious consequence that result from such admissions is shortening of the academic courses in an undesirable manner. it is expected of other candidate selected to a professional course that he or she would complete the course in its entirety and not by missing more than a month or so in joining the said course. this results in lowering the excellence of education as well as harms the academic standard of professional education. admission to professional colleges: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] technical courses - held, in process of admission to professional colleges relating to technical courses, primarily three institutional bodies are involved. (i) all india technical council for technical education, (ii) state of maharashtra through director of technical education and (iii) university to which such institution is affiliated the role of all these institutions in distinct and different but for a common object. primary of the rule of all india council for technical education (aicte) is now well settled but that certainly does not mean that role of the state government and for that matter the university is without any purpose or of no importance. the council is the authority constituted under the central act with the responsibility of maintaining education standards and judging upon the infra-structure and facilities available for imparting such professional education. its opinion is of utmost importance and shall take precedence over views of the state as well as that of the university. the concerned department of the state and the affiliating university has a role to pay but it is limited in its application. they cannot lay down any guidelines or policies which would be in conflict with the central statute or the students laid down a by the central body. state can frame its policy for admission to such professional courses but such policy again has to be in conformity with the directives issued by the central body. while the state grants its approval and university its affiliation for increased intake of seats or commencement for a new course/college, its directions should not offend and be repugnant to what has been laid down in the condition of approval granted by the central authority or council. what is most important is that all these authorities have to work ad idem as they all have a common object to achieve i.e. of proper imparting of education an ensuring maintenance of proper standards of education, examination and ensuring proper infrastructure for betterment of educational system. only if all these authorities work in a co-ordinated manner and with co-operation they would be able to achieve the very object for which all these entities exist admission to professional courses: [swatanter kumar, c.j.,a.p. deshpande & smt. nishita mhatre, jj] admission schedule - interference by courts held, all the expert bodies viz. aicte as well as directorate of education in consultation with the departments of the state regulating the process of admission and maintenance of standards of education had notified a legal binding document specifying dates and schedule for various matters in relation to admission of students and commencement of courses. there has to be so compelling circumstances and grounds before the court to interfere with the prescribed schedule. it is neither so arbitrary nor so perverse, keeping in view the essential features relating to imparting education to professional courses that it should invite judicial chastisement to the extent of laying down entirely new schedule. merely because there has been some delay on the part of either of these authorities to timely grant of either of these authorities to timely grant or decline approval and permission to commence a course per se would not be sufficient ground for disturbing the notified schedule and timely commencement of courses. - 1 pune municipal corporation, in various posts like junior binder, baller, pressman, mono-caster attendant, etc. that appointments in printing press where the respondent workmen were employed were effected under the provisions of the bombay provincial municipal corporations act, 1949 (hereinafter referred to as the 'bpmc act'); that employees working in the printing press were made permanent on completion of five years service in accordance with the settlement signed with the union in 1969. although the muster rolls and payment registers of the respondent workmen were sought for by the respondent workmen, the petitioners failed to produce these documents before the industrial court. the petitioners having failed to comply with this, had committed an unfair labour practice under item 6 of schedule iv of the mrtu & pulp act.nishita mhatre, j.1. mr. r.g. ketkar appears for the petitioners in all the four writ petitions, while mr. k.s. bapat appears for the respondent in writ petition no. 3429 of 1995. none appears for the respondents in other three writ petitions, namely, writ petition no. 2247 of 1995, writ petition no. 3430 of 1995 and writ petition no. 3431 of 1995 though duly served. since the question involved in these writ petitions is identical, these writ petitions can be disposed of by common judgment.2. these four petitions impugn the common order passed by the industrial court in complaints filed by the employees of the petitioner corporation under items 5, 6, 9 and 10 of the maharashtra recognition of trade union and prevention of unfair labour practices act, 1971 (hereinafter referred to as the 'mrtu & pulp act').3. the respondent workmen in all the four petitions were employed in the printing press run by petitioner no. 1 pune municipal corporation, in various posts like junior binder, baller, pressman, mono-caster attendant, etc. they were employed on a temporary basis. it is the case of the respondent workmen that they have been continued as the temporary workmen for years together in order to deprive them of the permanent status and benefits available to permanent employees. aggrieved by this, the respondent workmen filed individual complaints before the industrial court under items 5, 6, 9 and 10 of the mrtu & pulp act. the main grievance of the workmen in the complaints was that despite having completed 240 days in service in their respective posts, they have not been made permanent. common written statement was filed by the corporation wherein it was pleaded that the printing press has a complement of less than 125 workmen; that appointments in printing press where the respondent workmen were employed were effected under the provisions of the bombay provincial municipal corporations act, 1949 (hereinafter referred to as the 'bpmc act'); that employees working in the printing press were made permanent on completion of five years service in accordance with the settlement signed with the union in 1969. although the muster rolls and payment registers of the respondent workmen were sought for by the respondent workmen, the petitioners failed to produce these documents before the industrial court. however, a copy of the settlement of september 1969 has been placed on record under which permanent was to be given to the employees only after completion of five years in service. the workmen submitted oral evidence through the workman in writ petition no. 3429 of 1995 who was examined on behalf of other workmen also. the manager of the petitioner no. 1's printing press was examined on behalf of the petitioners. the industrial court by its common order dated 28th september, 1994 allowed the complaints and directed the petitioners to extend the benefits of permanency to the respondent workmen with effect from 28th september, 1987. the industrial court took the view that since the respondent workmen have completed 240 days in service, they were entitled to be made permanent immediately after completion of the same. the petitioners having failed to comply with this, had committed an unfair labour practice under item 6 of schedule iv of the mrtu & pulp act. the industrial court based its findings on the judgment of this court in chief officer, sangli municipal council v. shri daramsing hiralal nagarkar, 1991(3) b.c.r. 114 : 1991(2) c.l.r. 4. the industrial court was of the view that the judgment cited on behalf of the petitioners in punjabrao krishi vidyapeeth, akola v. general secretary, krishi vidyapeeth kamgar union & others, : 1994(3)bomcr13 has no relevance to the facts involved in the present case.4. mr. ketkar, learned advocate for the petitioners in all these petitions, submitted that the petitioners had given effect to the settlement with the union whereby the employees were to be made permanent only after completion of five years of service in printing press. he submitted that the respondent workmen have been continued in service without any break and were given permanency by implementing the settlement of 1969. therefore, there could be no question of keeping the respondent workmen temporary for years together with the object of depriving them of permanent status. he, therefore, submits that item 6 of schedule iv of the mrtu & pulp act was not attracted. he further submitted that the finding of the industrial court that immediately on completion of 240 days the respondent workmen were required to be made permanent is erroneous inasmuch as under section 51(4) of the bpmc act, sanction of the state government was required before new permanent posts could be created. he also submitted that the provisions of the industrial employment (standing orders), act, 1946 cannot govern the employment and service conditions of the employees working with the petitioners and that act was in the central lit whereas the bpmc act was in the state list. he further submitted that the bpmc act being an act of 1949 and subsequent to the industrial employment (standing orders) act, the same will prevail and not the industrial employment (standing orders) act. mr. ketkar relied on the judgment of this court in punjabrao krishi vidyapeeth, akola v. general secretary, krishi vidyapeeth kamgar union & others, 1994 (69) f.l.r. 181 and submitted that before the industrial court comes to the conclusion that there was an unfair labour practice under item 6 of schedule iv of the mrtu & pulp act, it was necessary for the respondent workmen to prove that there has been a motive on the part of the petitioners to deprive the workers of the permanent status.5. mr. bapat, learned advocate for the respondent workmen, submitted that the petitioners had not in fact acted upon the settlement of 1969 and that permanency was awarded to the respondent workmen as and when thought fit by the petitioners. he submitted that the work done by the workmen was of a perenial nature and by keeping them as temporary workmen for a long period of time, the petitioners had committed unfair labour practice under item 6 of schedule iv of the mrtu & pulp act. he further submitted that the industrial employees (standing orders) act is applicable to the establishment of the petitioners as on notification has been issued under section 13-b of the said act. he relied on the judgment in the case of u.p. state electricity board and another v. hari shanker jain and others, a.i.r. 1979 s.c. 65. he further submitted that the burden does not lie upon the respondent workmen to establish that the object of the employer was to deprive the respondents permanent status by keeping them as temporary employees for years together. he relied on the judgment of the chief conservator of forests and another v. jagannath maruti kondhare, : (1996)illj1223sc .6. in each of these petitions, the petitioners have filed a purshis dated 15th july, 1992 before the industrial court showing the date on which each of the respondent workman have been made permanent. in all these purshis, the year mentioned is 1989. however, mr. ketkar, at the time of arguments before me stated that respondent in writ petition no. 2247 of 1995 was appointed on 1st june, 1986 and made permanent on 18th march, 1991; that the respondent in writ petition no. 3429 of 1995 was appointed on 1st june, 1986 and made permanent on 10th january, 1991; that the respondent in writ petition no. 3430 of 1995 was appointed on 1st june, 1986 made permanent on 9th february, 1991 and respondent in writ petition no. 3431 of 1995 was appointed on 1st june, 1983 and made permanent on 27th october, 1989. these dates do not support the contention of mr. ketkar that the petitioners have given effect to the settlement of 1969 immediately after completion of five years service by the respondent workmen. one of them has in fact been made permanent after six years, whereas the others have been made permanent prior to the completion of five years service. mr. ketkar tried to explain this by stating that it was only when the posts became available, the petitioners could appoint the respondent workmen in the posts and, therefore, there is a discrepancy in the number of years completed before permanency is granted. however, in my view, since the respondent workmen have all completed 240 days in service, they are entitled to permanency immediately on completion of 240 days of service. as the petitioners have not made them permanent, the petitioners have in fact committed an unfair labour practice under item 6 of the schedule iv of the mrtu & pulp act.7. mr. ketkar's argument that it is for the respondent workmen to establish that the petitioners had kept them as temporary workmen for years together with the object of depriving them of permanent status cannot be accepted in view of the judgment of the supreme court in chief conservator of forest (supra). the apex court in that case has held that prevention of certain unfair labour practices being the object of the state act, the same would be thwarted or get frustrated if the burden is placed upon the workman to establish that the employer had deprived him of permanent status by continuing him as a temporary workman. the next submission of mr. ketkar that the industrial employment (standing orders) act is not applicable to the establishment of the petitioners also cannot be accepted as there is no notification under section 13-b of the said act. in u.p. state electricity board, (supra), the apex court has held that since the industrial employment (standing orders) act is a special law with regard to the matters enumerated in the schedule and the regulations made by the electricity board under the electricity (supply) act, the former would prevail unless there is a notification under section 13-b of the industrial (standing orders) act. mr. ketkar's other argument that since the bpmc act is subsequent to the industrial employment (standing orders) act, it would prevail over the later act also has been answered by the apex court in this judgment. the apex court was considering the provisions of the industrial employment (standing orders) act pro tanto with the electricity supply act, 1948 and has held that the provisions of the standing orders act must prevail over the electricity (supply) act with regard to matters to which the standing orders act applies. mr. ketkar's next argument that, in view of the bpmc act, no posts can be created without the sanction of the government also cannot, therefore, be countenanced.8. the industrial court has rightly come to the conclusion that the petitioners have committed unfair labour practice under item 6 of schedule iv of mrtu & pulp act and the workmen are entitled to the benefits of permanency immediately upon completion of 240 days of service. admittedly, the respondents have been made permanent, but much after completion of 240 days. in view of this, the respondent workmen are entitled to the benefits of permanency in accordance with the order passed by the industrial court.9. writ petitions dismissed. rule discharged in all the writ petitions. no order as to costs.