1. Heard.

2. Rule. Rule made returnable forthwith. The writ petition is heard finally with the consent of the learned counsel for the rival parties.

3. A management and its schools are petitioners before this Court challenging the judgment and order dated 21/08/2018 passed by the Member, Industrial Court, Maharashtra, Nagpur Bench, whereby a joint complaint filed by the respondents was partly allowed. The original complainant Nos.1 to 4 and 7 to 9 were granted relief of being accorded status and privileges of permanent employees of the petitioners from the date of filing of the complaint i.e. 14/02/2005 and they were further granted monthly wages/salary as per the pay scale prevailing during the relevant time from 14/02/2005, with a further direction to the petitioners to pay arrears of wages and other monetary benefits to the said original complainants from 14/02/2005. It was also directed that the aforesaid complainants would be given the benefit of continuity of service along with other monetary and non-monetary benefits from their respective dates of employment, apart from awarding costs of Rs.3,000/- per complainant.

4. The respondents (original complainants) filed the complaint under section 28 read with Items 5, 6 and 9 to Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (In short “Act of 1971”). The grievance of the respondents was that they had been appointed on various dates from 1985 onwards and that they had been continued on temporary basis, although work of permanent nature was taken from them by the petitioners. The respondents claimed that the petitioners had committed unfair labour practices under Item 5 (pertaining to favourtism or partiality between set of workers), Item 6 (Employing persons as badlis, casuals or temporaries and continuing them as such for years with the object of depriving them of the status and privileges of permanent employees) and Item 9 (pertaining to failure to implement award, settlement or agreement) of Schedule IV of the of 1971. It was the case of the respondents that while work was taken continuously from them for number of years, they were deprived of the status and privileges of permanent employees. The respondents prayed for a direction to the petitioners to grant them status of permanency when their juniors were made permanent and to give all consequential benefits.

5. The petitioners filed their reply to the said complaint and stated that the respondents were employed for some periods due to exigency of work and that too on part time basis and therefore, the respondents could not claim right of permanency. It was submitted that there was no material to indicate any unfair labour practice on the part of the petitioners. In fact, it was also claimed that the complaint itself was not maintainable, for the reason that the of 1971 was not applicable as petitioner No.1 was a society running schools and other institutions, which could not be termed to be an industry. On 24/09/2008, the Industrial Court allowed the complaint of the respondents and reliefs as claimed by the respondents were granted to them.

6. Aggrieved by the same, the petitioners filed Writ Petition No.5263 of 2008 before this Court. By judgment and order dated 03/02/2015, the said writ petition was allowed. Although, this Court held in favour of the respondents on the question as to whether the petitioners could be termed to be an industry and on the aspect of employer and employee relationship between the parties, it was held that the Industrial Court had erred in failing to address the questions as to whether posts were required to be sanctioned and whether the facts and circumstances of the present case indicated that the Court was concerned with public employment. It was also held that the Industrial Court failed to address the questions as to whether Model Standing Orders were applicable and whether there was enough material on record to show that the respondents had continuously worked for a long period of time. This Court allowed the writ petition, set aside the judgment and order of the Industrial Court and remitted the matter back for fresh consideration to address the aforesaid questions. The parties were granted liberty to amend their pleadings and to lead evidence on the said questions.

7. Consequently, the respondents amended their complaint and in response the petitioners also amended their reply. The petitioners by way of amendment claimed that some of the schools run by petitioner No.1 were receiving aid from the Government and therefore, it was a case of public employment. It was further submitted that in any case, appointments in the schools were governed by the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (In short “MEPS Act”) and therefore, since the appointment of the respondents was not in terms of procedure prescribed under the MEPS Act, their appointments were backdoor entries, not made on any sanctioned posts and therefore, there was no question of grant of regularization.

8. The respondents led evidence in support of their pleadings. They supported the claim made in the complaint that they had worked for number of years from the year 1985 till filing of the complaint and that they had been wrongly denied benefit and status of permanent employees. The witnesses of the petitioners were former and current employees of the schools, who deposed in support of the claim of the petitioners that the respondents had been appointed occasionally, only for part time work. In cross-examination, the witnesses of the petitioners did concede to the existence of certain documents relied upon by the respondents. It was also conceded in cross-examination by some of the witnesses of the petitioners that the respondents (original complainants) who were granted relief by the Industrial Court in the impugned judgment and order, were indeed working with the petitioners.

9. It is significant that the respondents placed on record copies of certain documents showing payments made to them by the petitioners at different points in time. It was submitted that the original documents were with the petitioners and that therefore, if entire documents were brought before the Court, the claims of the respondents would be supported regarding continuous employment over a long period of time. It is significant that the respondents had placed on record a list of documents at Exhibit-26, which were photocopies of documents like payment of provident fund in the case of some of the respondents, communications exchanged between the petitioner School Authorities and Education Department, mentioning payments made to some of the respondents and other such documents. The respondents had moved an application at Exhibit-74 for a direction to the petitioners to produce original documents mentioned in the list at Exhibit-26. The said application was marked as Exhibit-74 and by order dated 04/02/2016, the Industrial Court gave a direction to petitioner No.1 to issue certified copies of documents shown in the list at Exhibit-26 and also extract of attendance register from the months of August, 1986 till 14/02/2005 i.e. till the date of filing of the complaint. The respondents were also permitted to approach petitioner No.1 with an application for certified copies of extract of muster register from the month of August, 1986 till 14/02/2005. It is an admitted position that the petitioners did not abide by the said directions given by the Industrial Court.

10. The respondents had also moved an application for grant of permission to adduce secondary evidence (at Exhibit-80) to prove the photocopies of documents already placed on record. By order dated 04/07/2016, the Industrial Court allowed the application and granted permission to the respondents to adduce secondary evidence in respect of documents described in Exhibit 78. Therefore, it becomes clear that the respondents produced whatever documentary evidence they had, in support of their claims, apart from their oral evidence. It is also an admitted position that the petitioners failed to abide by directions given by the Industrial Court to produce muster rolls, attendance registers and other such documents, which could have assisted the Industrial Court in verifying the claims of continuous full-time service made on behalf of the respondents.

11. It is in the backdrop of such oral and documentary evidence, as also the pleadings and other material on record that the Industrial Court passed the impugned judgment and order dated 21/08/2018, partly allowing the complaint of the respondents. Relief in the aforesaid nature was granted to respondent Nos.1 to 4 and 6 to 8 herein (original complainant Nos.1 to 4 and 7 to 9). The Industrial Court took into consideration the oral and documentary evidence on record. The documentary evidence placed on record by the respondents was referred to and appreciated by the Industrial Court and an adverse inference was drawn against the petitioners on account of their failure to produce documents like muster rolls, attendance registers and other such documents. The Industrial Court found that when specific directions had been issued to the petitioners to produce such documents, failure on their part must lead to an adverse inference, as a consequence of which all the claims of the respondents regarding continuous full-time service for number of years deserved to be accepted. The Industrial Court found that the pleadings and evidence led on behalf of the petitioners were vague. It was also found that the petitioners could not be allowed to take a somersault after having taken continuous work of fulltime nature from the respondents for number of years. It was held that the petitioners could not be allowed to turn around and claim that since the initial appointments of the respondents were illegal, not in consonance with the MEPS Act, and backdoor entries, they did not deserve any relief. The Industrial Court rejected the contentions raised on behalf of the petitioners on the basis of provisions of the MEPS Act and the Rules framed thereunder. It was held that the petitioners had indulged in unfair labour practice under Items 5, 6 and 9 of Schedule IV of the of 1971. On this basis, the complaint filed by the respondents stood allowed in the aforesaid terms.

12. Mr. P. D. Meghe, learned counsel appearing for the petitioners submitted that the findings rendered by the Industrial Court in the impugned judgment and order were unsustainable for various reasons. It was submitted that the Industrial Court itself had held that the Model Standing Orders were not applicable to the respondents and therefore, there was no basis for granting relief of regularization or permanency on the basis that the respondents had worked for number of years with the petitioners. It was submitted that material was available on record to indicate that there were no sanctioned posts on which the respondents could be appointed and further that the respondents had miserably failed to show that their appointments were made in a regular manner, in consonance with the procedure prescribed under the MEPS Act and the Rules framed thereunder. It was further submitted that the petitioners had specifically pleaded and placed material on record to indicate that the respondents at best had worked on part time basis and therefore, it could not be said that the petitioners had indulged in any unfair labour practices. It was further submitted that in the case of original complainant No.7 i.e. respondent No.6 herein, the Industrial Court itself had found that there was no documentary evidence to support the claim of the said respondent and yet even he was granted relief along with other respondents. It was submitted that the applicability of the MEPS Act and the Rules was not appreciated in the correct perspective by the Industrial Court while passing the impugned judgment and order.

13. The learned counsel for the petitioners referred to number of judgments of the Hon’ble Supreme Court and this Court to contend that the facts of the present case did not justify the relief granted to the respondents in the impugned judgment and order. It was submitted that in the absence of availability of any sanctioned posts and in the face of admitted facts indicating that entry of the respondents into service was backdoor and hence illegal, clearly demonstrated that the position of law was absolutely against the respondents and no relief could have been granted to them. The learned counsel for the petitioners also referred to certain documents on record showing that from the year 2010 onwards there was a complete ban on appointments imposed by the Government and that this factor was not taken into consideration by the Industrial Court while passing the impugned order. On this basis, it was submitted that the impugned judgment and order deserved to be set aside.

14. On the other hand, Mr. V. K. Paliwal, learned counsel appearing for the respondents, submitted that relief granted by the Industrial Court was fully justified in the facts and circumstances of the present case. It was submitted that when the petitioners had deliberately suppressed relevant material, which would have justified the claims of the respondents, the adverse inference drawn by the Industrial Court was fully justified. It was claimed that the respondents were class-IV employees and they had placed on record whatever documentary evidence they could gather in support of their claims. In such a situation, when the petitioners had failed to abide by specific orders of the Industrial Court passed on Exhibits-74 and 80 for producing muster rolls, attendance registers and other such documents on record, the Industrial Court had correctly accepted the contentions on facts raised on behalf of the respondents. It was submitted that when such conclusion rendered by the Industrial Court could not be interfered with, grant of relief to the respondents was a logical fallout, which did not deserve any interference.

15. It was submitted that the emphasis placed on MEPS Act and the Rules on behalf of the petitioners was correctly dealt with by the Industrial Court and that the petitioners could not be allowed to now hide behind their own misdeeds of appointing the respondents allegedly in a procedurally flawed manner and then taking full time work from them for number of years. It was submitted that the reliance on Government directions pertaining to ban on appointments was also misplaced, because the alleged ban came only in the year 2010, while the respondents were appointed in the year 1985 onwards and the complaint itself was filed way back in the year 2005. It was submitted that the position of law on which the petitioners were placing reliance, could not be interpreted to do injustice to the respondents and that in the present case, there was clear violation of their rights, which justified the directions given in the impugned judgment and order passed by the Industrial Court. It was submitted that therefore, the writ petition deserved to be dismissed.

16. It is relevant that when the writ petition was listed for the first time on 01/04/2019, this Court while issuing notice stayed the impugned judgment and order, subject to the petitioners not removing the respondents from service without following due procedure of law. It is an admitted position that the respondents have continued in service of the petitioners during the pendency of the writ petition.

17. Mr. A. R. Chutake, learned A.G.P., who appeared on behalf of respondent No.9-Education Officer, submitted that the documents in the form of Government Resolutions placed on record correctly indicated the ban imposed on appointments since the year 2010. It was also submitted that the position regarding sanctioned posts was correctly placed on record on behalf of the petitioners and it was submitted that there was no material on record to indicate that the entry into service of the respondents was by way of any procedure known to law.

18. In view of the material on record and the contentions raised on behalf of the rival parties, it becomes clear that the petitioners in the present case completely failed to support their stand by placing on record cogent evidence. The witnesses, who appeared on behalf of the petitioners, merely orally stated that part time work was taken from the respondents during exigencies and in some cases, the respondents were even appointed through contractors. None of these claims could be supported by the petitioners with documentary evidence or material. It is also an admitted position on record that when specific directions were issued by the Industrial Court while allowing Exhibits-74 and 80, for producing the record pertaining to muster rolls, attendance registers and other such documents for the period between August, 1986 to the date of filing of the complaint i.e. 14/02/2005, the petitioners failed to abide by such directions. As a consequence, it cannot be said that the Industrial Court committed any error in drawing an adverse inference against the petitioners. This was because documentary material and evidence, which was in possession of the petitioners themselves, in the usual course of their business and conduct, that could have supported their claims, was not produced before the Court despite clear directions of the Court. Therefore, there was no alternative for the Industrial Court but to draw an adverse inference.

19. If the material produced on record on behalf of the respondents is considered, it is found that the respondents in their pleadings and oral evidence clearly stated that they were appointed from the year 1985 onwards and that they had worked continuously, performing full time work. The respondents had also produced whatever copies of documents were available with them in support of their claims. It is extremely important to realize that the respondents are class-IV employees, who were performing duties of peons and that they had produced whatever material was available with them, which was relevant, to support their claims. This included communications exchanged between the petitioners and the Education Department, indicating payments made to some of the respondents, documents indicating provident fund amount paid in respect of some of the respondents, receipts showing payments of monthly amounts to some of the respondents and other such documents. In the face of such oral and documentary material placed on record by the respondents and the suppression of material on behalf of the petitioners, the Industrial Court was justified in accepting the claims of the respondents regarding continuous full- time work performed by them from the year 1985 onwards till the filing of the complaint. Therefore, no error can be attributed to the Industrial Court in that regard.

20. The other important aspect of the present case is, as to whether the appointments of the respondents can be said to be in accordance with the procedure prescribed under the MEPS Act and the Rules. There can be no denial about the fact that the MEPS Act and the Rules are applicable to the respondents. In this regard, there can be no dispute about the fact that the appointments of the respondents were not in pursuance of the procedure involving issuance of advertisement, calling for applications and a selection process being undertaken.

21. In this regard, it was emphasized on behalf of the petitioners that even the procedure prescribed in Rule 9 of the MEPS Rules was also not followed when the respondents made entry into the service. Rule 9(3) of the MEPS Rules specifies that when appointments are to be made on non-teaching posts, as in the present case, the candidates eligible for appointment are required to make an application in writing giving full details regarding their names, addresses, dates of birth, educational and professional qualifications and experience, etc. along with true copies of original certificates. It is undisputed that the respondents could not place on record any material that such requirement of Rule 9(3) of the MEPS Rules was followed in their case. In fact, it was not even the case of the respondents that they had ever followed such a procedure.

22. But, in this regard, the Industrial Court held that even if the said Rule was to be taken into consideration, once the petitioners had admitted that the respondents were employed with them, it was for the petitioners to have asked the respondents to submit such applications and other particulars. The Industrial Court held that it would be a travesty to hold against the respondents on the basis of Rule 9(3) of the MEPS Rules because it would amount to permitting the petitioners to take a ‘U’ turn, only to deprive the respondents of their rightful claim. This approach of the Industrial Court appears to be erroneous for the reason that the material on record certainly indicated that no procedure at all was followed while appointing the respondents. It appears from the scheme of the MEPS Act and the Rules that even if a school is not enjoying government aid, still the procedure as prescribed under the MEPS Act and the Rules needs to be followed while making appointments. Therefore, although the respondents did succeed in supporting their claim that they were working full time as Class-IV employees with the petitioners for a number of years, it could not be said that their appointments were made in terms of the procedure prescribed under the relevant law.

23. At this juncture, it becomes necessary to consider the various judgments that were relied upon by the learned counsel appearing for the petitioners. In the case of Maharashtra State Road Transport Corporation v. Castribe Rajya Parivahan Karmachari Sanstha, reported in (2009) 8 SCC 556 , [LQ/SC/2009/1759] the Hon’ble Supreme Court has categorically held that the Industrial Court and Labour Courts under the provisions of the of 1971, have wide powers to direct the employer to take affirmative action in a case of unfair labour practice, including the power to order regularization or permanency. It was held that the decision of the Constitution Bench of the Hon’ble Supreme Court in the case of Secretary, State of Karnataka v. Uma Devi, reported in (2006) 4 SCC 1 , [LQ/SC/2006/324] limited the scope of powers under Articles 32 and 226 of the Constitution of India to issue directions for regularization in the matter of public employment. But, it was further clarified that there was no doubt that creation of posts would not lie within the domain of judicial functions and that the status of permanency cannot be granted by the Court where no posts exist.

24. The said judgment of the Constitution Bench of the Hon’ble Supreme Court in the case of Secretary, State of Karnataka v. Uma Devi (supra) and the aforesaid subsequent judgment in the case of M.S.R.T.C. v. Castribe (supra) were reconciled in the judgment of the Hon’ble Supreme Court in the case of Harinandan Prasad v. Employer I/R to Management of Food Corporation of India, reported in (2014) 7 SCC 190 [LQ/SC/2014/168] . It was held in the said judgment that insofar as public employment was concerned, selection and appointment had to be made through regular process of advertisement and inviting applications so that thousands who were waiting for employment were given a fair opportunity to compete and that persons who had somehow got into public employment and then started litigating, ought not to be granted relief on the ground of sympathy.

25. In the case of Sandip Baliram Sandbhor and others v. Pimpri Chinchwad Municipal Corporation and others, reported in 2016 (3) Mh.L.J. 562, this Court referred to the aforesaid judgment of the Hon’ble Supreme Court in the case of Harinandan Prasad v. Employer I/R to Management of Food Corporation of India (supra) and held that there could be cases of exploitation of work force by a public body by keeping such workers temporary for years with an object of depriving them the status of permanency. It was held that such an unfair labour practice under Item 6 of Schedule IV of the of 1971 itself negated Article 14 of the Constitution of India and that once such exploitation was proved, it was within the power of the Industrial Court to take affirmative action. It was further held that the question as to whether an order of regularization would advance justice or defeat it, would depend upon the facts of the case. It was held that balance will have to be achieved between the rights of citizens for access to public employment viz-a-viz the need to prevent exploitation of the work force and that decisions taken by the Industrial Court should be in furtherance of the doctrine of equity.

26. The learned counsel for the petitioners emphasized on the judgment of this Court in the case of Priyadarshini Education Trust v. Rafis (Rafia) Bano and others, reported in 2007 (6) Mh.L.J. 667, to contend that the procedure of issuance of advertisement and inviting of applications for appointment to even non-teaching staff under the MEPS Act and the Rules was held to be mandatory and that any appointment made without following such procedure was held to be a backdoor entry. In the case of Chief Conservator of Forest v. Ashikque s/o Jabbar Sheikh and others, reported in 2012 (3) Mh.L.J. 478, this Court referred to the aforementioned judgment of the Hon’ble Supreme Court and held that in the absence of any pleading or material to show that permanent sanctioned posts or vacancies were available to grant status and the privileges of permanency to employees like the complainants, no such relief could be granted. Such an approach was reiterated in judgment of this Court in the case of Rashtrasant Tukadoji Maharaj Nagpur University and another v. Hon’ble Member, Industrial Court, Maharashtra, Nagpur Bench and others, reported in 2016 (2) Mh.L.J. 454.

27. Attention of this Court was invited to an order passed by the Hon’ble Supreme Court in the case of Oil and Natural Gas Corporation v. Krishan Gopal and others reported in 2020 SCC OnLine SC 150, wherein the Hon’ble Supreme Court has referred to an earlier judgment in the case of Oil and Natural Gas Corporation Limited v. Petroleum Coal Labour Union and others, reported in (2015) 6 SCC 494 , [LQ/SC/2015/611] for reconsideration on the aspect of the approach to be adopted by the Court while directing regularization. The relevant portion of the said judgment and order reads as follows:

“34. The following propositions would emerge upon analyzing the above decisions:

(i) Wide as they are, the powers of the Labour Court and the Industrial Court cannot extend to a direction to order regularisation, where such a direction would in the context of public employment offend the provisions contained in Article 14 of the Constitution;

(ii) The statutory power of the Labour Court or Industrial Court to grant relief to workmen including the status of permanency continues to exist in circumstances where the employer has indulged in an unfair labour practice by not filling up permanent posts even though such posts are available and by continuing to employ workmen as temporary or daily wage employees despite their performing the same work as regular workmen on lower wages;

(iii) The power to create permanent or sanctioned posts lies outside the judicial domain and where no posts are available, a direction to grant regularisation would be impermissible merely on the basis of the number of years of service;

(iv) Where an employer has regularised similarly situated workmen either in a scheme or otherwise, it would be open to workmen who have been deprived of the same benefit at par with the workmen who have been regularised to make a complaint before the Labour or Industrial Court, since the deprivation of the benefit would amount to a violation of Article 14; and

(v) In order to constitute an unfair labour practice under Section 2(ra) read with Item 10 of the Vth Schedule of the ID Act, the employer should be engaging workmen as badlis, temporaries or casuals, and continuing them for years, with the object of depriving them of the benefits payable to permanent workmen.

24 The decision in PCLU needs to be revisited in order to set the position in law which it adopts in conformity with the principles emerging from the earlier line of precedent. More specifically, the areas on which PCLU needs reconsideration are:

(i) The interpretation placed on the provisions of clause 2(ii) of the Certified Standing Orders;

(ii) The meaning and content of an unfair labour practice under Section 2(ra) read with Item 10 of the Vth Schedule of the ID Act; and

(iii) The limitations, if any, on the power of the Labour and Industrial Courts to order regularisation in the absence of sanctioned posts. The decision in PCLU would, in our view, require reconsideration in view of the above decisions of this Court and for the reasons which we have noted above.”

28. The learned counsel for the petitioners also referred to a recent judgment and order passed by this Court in the case of Chief Executive Officer, Zilla Parishad Gondia and others v. Sangita Madavi and others and connected writ petitions passed by this Court, wherein the relief of regularization granted by the Industrial Court was set aside. But, the aforesaid judgment is distinguishable on the ground that in the said case appointments were specifically made for two years on bonded service and the relevant Government Resolution did not grant any scope for relief of regularization in cases of the employees.

29. Yet, the aforementioned judgments relied upon by the learned counsel appearing for the petitioners, do indicate that continuous service for number of years cannot be the sole basis for grant of relief of regularization, as long as there is absence of availability of sanctioned permanent posts. A few instances sought to be highlighted by the respondents regarding grant of employment to some similarly situated persons who were junior to them, appears to be refuted by the evidence brought on record, on behalf of the petitioners. If the evidence of the witnesses, who appeared for the petitioners, is perused it would show that there were specific number of sanctioned posts of peons available in the schools run by petitioner No.1. There is nothing to show that when such sanctioned posts were filled through procedure known to law, any of the respondents had applied for the same. It is also deposed on behalf of the petitioners that whenever sanctioned vacancies would be available, the respondents could certainly apply against such vacancies. Therefore, there is absence of material on record to indicate that there were sanctioned posts of class-IV category available in the schools run by petitioner No.1 and yet the respondents were kept employed on temporary basis throughout. This becomes crucial in the light of the aforesaid position of law regarding the manner in which the prayers for permanency and regularization need to be considered.

30. In fact, it would be appropriate to enumerate the admitted facts that appear from the record of the present case. These facts are as follows:

(i) The respondents were able to place on record oral and documentary evidence to support their claim that they had been working from 1985 and onwards continuously till filing of the complaint in the year 2005.

(ii) The petitioners failed to produce on record material such as muster rolls, attendance registers, etc. despite specific directions by the Industrial Court, thereby correctly inviting an adverse inference against them. Consequently, the claims of continuous full-time service rendered by the respondents deserved to be accepted.

(iii) The material on record clearly indicates that no procedure of advertisement, inviting of applications, much less specific procedure prescribed under the MEPS Act and the Rules, was followed when the respondents entered service.

(iv) There is no material on record to show that there were sanctioned posts available with the schools run by petitioner No.1 and yet the respondents were continued on temporary basis throughout.

(v) There is nothing to show that the respondents ever made any effort to apply for appointments in pursuance of issuance of advertisement for sanctioned posts of class-IV category.

(vi) The Industrial Court gave a finding that the Model Standing Orders do not apply to the respondents herein.

(vii)There is material on record to indicate that the Government imposed a ban on recruitment in the year 2010. This was supported by the learned AGP appearing on behalf of respondent No.9-Education Officer.

(viii)There is nothing to show that any scheme of regularization or process of such nature was undertaken by the petitioners where other similarly situated employees were granted regularization and the respondents were deprived of such relief.

31. In view of the said admitted facts, it becomes difficult to accept that the respondents were entitled to the relief of grant of regularization from the date of filing of the complaint and for reliefs of continuity of service and consequential reliefs granted by the Industrial Court. The only aspect that requires to be addressed is, as to whether the petitioners can be allowed to take advantage of their own misdeeds. This Court is of the opinion that the respondents were clearly able to show before the Industrial Court that they had continued to render full time service in class-IV category with the petitioners for number of years. Therefore, it was an unfair labour practice on the part of the petitioners to have taken such work from the respondents for number of years and to have deprived them of wages that ought to have been paid to them for the nature of full-time work rendered by them. To that extent, the grievance of the respondents needs to be addressed. Although, the respondents cannot be said to be entitled for regularization or grant of permanency from the date of filing of complaints in the absence of any sanctioned posts, it does not mean that the unfair treatment meted out to them by the petitioners can be ignored by this Court.

32. This Court has already noted herein above the position of law regarding limitation in exercising judicial power to create permanent or sanctioned posts. It is also noted that in the facts and circumstances of the present case, there is nothing to show that even though sanctioned posts were available throughout from the year 1985 onwards, the respondents herein were given work as Class-IV employees and such posts were filled. Even in the judgment of the Hon’ble Supreme Court in the case of Oil and Natural Gas Corporation Limited v. Petroleum Coal Labour Union (supra), the Court was concerned with certified standing orders conferring right of regularization of workmen subject to certain conditions being satisfied. In the present case, the Industrial Court itself found that the Model Standing Orders were not applicable to the respondents herein. There is also no material on record to show that there was any scheme of regularization operated by the petitioners wherein other similarly situated persons were granted the relief of regularization and the respondents were deprived of such relief. Therefore, a direction to accord status and privileges of permanent employees to the respondents along with other reliefs of monetary benefits and continuity of service, could not have been granted in the facts and circumstances of the present case.

33. At the same time, the finding of fact given by the Industrial Court that the respondents had been able to prove their continued work with the petitioners for years together cannot be found fault with. There is also no material on record to show that any effort was made by the petitioners to apply to the competent authority for sanctioning of additional posts in Class-IV category, considering the availability of work, which was in fact being taken from the respondents herein. It was not as if the petitioners made efforts for sanctioning of such posts and the competent authority was delaying the matter and in such a situation, the petitioners were constrained to take work from the respondents. Such a factual backdrop, does indicate that the petitioners indulged in unfair labour practice as specified in Item 6 of Schedule IV of the of 1971. The respondents were continued as casual or temporaries and they were deprived the status and privileges of permanent employees. Hence, even if the direction of granting continuity of service and consequent monetary benefits with relief of regularization, may not be sustainable, once a finding is rendered that the petitioners did indulge in unfair labour practice as defined under Item 6 Schedule IV of the of 1971, the Court could certainly exercise power under section 30 of theof 1971, in the form of affirmative action, including payment of reasonable compensation to the employees affected by such unfair labour practice.

34. Thus, the said grievance of the respondents can be addressed by appropriately compensating them. But, even for granting such relief, it needs to be realized that insofar as respondent Nos.6 and 7 (original complainant Nos.7 and 8) are concerned, such relief cannot be granted to them. This is for the reason that the Industrial Court itself found on facts that the respondent Nos.6 (original complainant No.7), had failed to produce any documentary evidence in support of his claim. In the case of respondent No.7 (original complainant No.8), it is undisputed that he died during the pendency of the complaint and his legal representative was brought on record. There was only one document on the basis of which the claim of the said respondent was sought to be supported, but at the same time, it is also a fact that no one entered the witness box to lead evidence in support of whatever document was placed on record in support of the claim of the said respondent. Therefore, the Industrial Court committed an error, insofar as granting relief to respondent Nos.6 and 7 (original complainant Nos.7 and 8). Thus, even on the question of compensation, only respondent Nos.1 to 4 and respondent No.8 (original complainant Nos.1 to 4 and 9) would be entitled to relief.

35. It would be appropriate to refer to the aforesaid judgment of the Hon’ble Supreme Court in the case of Harinandan Prasad v. Employer I/R to Management of Food Corporation of India, (supra), wherein the Hon’ble Supreme Court has considered power of the Labour and Industrial Court to grant directions in such disputes between employer and employee, wherein it is found that an unfair labour practice has been committed. The Hon’ble Supreme Court has held that a fine balance between the rights of the employer and employee needs to be maintained by the Courts while considering such question. After referring to the earlier judgment in the case of M.S.R.T.C. v. Castribe Rajya Parivahan Karmachari Sanstha (supra), in the said judgment, the power of the Labour and Industrial Court to issue appropriate directions under section 30(1)(b) of theof 1971, was emphasized and it was laid down that appropriate affirmative action can certainly be taken by the Courts under the said provision.

36. In the facts of the present case, although the directions given by the Industrial Court in favour of the respondents may not be sustainable, yet appropriate directions for affirmative action can certainly be granted, as the finding of unfair labour practice committed by the petitioners under Item 6 Schedule IV of the of 1971 is being confirmed by this Court. The findings of fact rendered by the Industrial Court regarding initial entry of the respondents in service of the petitioners and their rendering continuous service are also being confirmed by this Court. Such findings indicate that respondent Nos.1 to 4 and 8 herein (original complainant Nos.1 to 4 and 9) had rendered continuous service for a number of years and they were paid amounts far less than employees in Class-IV category with the petitioners who were regularly appointed.

37. The findings rendered by the Industrial Court show that respondent No.1 (complainant No.1) was working from 1986-87, respondent No.2 (complainant No.2) was working since 1988, respondent No.3 (complainant No.3) was working since 1985, respondent No.4 (complainant No.4) was working since 1989 and respondent No.8 (complainant No.9) was working since 1996. Thus, regular work was taken from the said respondents for number of years and they were paid paltry sums of money. In this context affirmative action under section 30(1)(b) of theof 1971, could have been taken by the Industrial Court by directing adequate payment of compensation. This Court is of the opinion that instead of giving scope for another round of litigation for determining the amount of compensation payable to the respondents, who were already burdened with litigation expenses despite being Class-IV employees, it would be appropriate that this Court exercises its writ jurisdiction to grant reasonable compensation to them and to modify the relief granted to them in the facts and circumstances of the present case.

38. In view of the above, the writ petition is partly allowed. Although the finding regarding unfair labour practice committed by the petitioners under Item 6 Schedule IV of the of 1971 is upheld, it is found that the specific directions given by the Industrial Court in the impugned judgment and order are not sustainable. Accordingly, the directions given in the operative portion of the impugned judgment and order are set aside.

39. Considering the findings of the Industrial Court, upheld by this Court in the context of the entry into service of respondent Nos.1 to 4 and 8 with the petitioners from 1985 onwards, on the basis of the pleadings and oral as well as documentary evidence produced on record, as also the adverse inference drawn against the petitioners for failing to produce record despite positive directions given by the Industrial Court, it is held as follows:

(i) The complaint filed by the respondents is partly allowed.

(ii) It is declared that the petitioners engaged in unfair labour practice as per Item 6 Schedule IV of the of 1971.

(iii) It is held that respondent Nos.6 and 7 (original complainant No.7 and 8) are not entitled to any relief.

(iv) It is held that respondent Nos.1 to 4 and 8 (original complainant No.1 to 4 and 9) are entitled to relief of compensation.

(v) The petitioners shall pay compensation to respondent Nos.1 and 3 (original complainant Nos.1 and 3) of 5,00,000/- each. The petitioners shall pay5,00,000/- each. The petitioners shall pay compensation to respondent Nos.2 and 4 (original complainant Nos.2 and 4) of 4,50,000/- each. The 5,00,000/- each. The petitioners shall pay petitioners shall pay compensation to respondent No.8 (original complainant No.9) of 4,00,000/-. 5,00,000/- each. The petitioners shall pay

(vi) The aforesaid amounts shall be paid by the petitioners to the said respondents within a period of three months from today, failing which the amount shall be paid along with interest at the rate of 9% per annum.

(vii) It is made clear that the aforesaid compensation amounts shall be paid by the petitioners and no burden shall be placed on the State Exchequer for the same.

40. Rule is made absolute in the above terms. No order as to costs.