Oral Judgment:

1. The name of the Respondent is wrongly shown as Bhila Harchand Salve in Writ Petition No.1044/2005. It is actually Bhimbai Harchand Salve. Leave to correct, granted. Correction be carried out forthwith. This correction has been carried out since the error in the name has been pointed out by Shri Warma, learned Advocate appearing for Respondent No.1.

2. The Petitioner is common in all these petitions being the Dhule Municipal Corporation. The common judgments and orders dated 05.10.2004 and 15.12.2004 delivered by the Industrial Court, Dhule in the complaints filed by the Respondents under the MRTU & PULP Act, 1971 are challenged in these petitions. The names of the Respondents and their complaint numbers are mentioned in the cause title of the impugned judgments dated 05.10.2004 and 15.12.2004 delivered by the Industrial Court.

3. The operative parts of the impugned judgments and orders dated 05.10.2004 and 15.12.2004 read as under:-

(05.10.2004):-

1. The complaints ULP No.58/2004 to 71/2004, 74/2004 to 76/2004 and 168/2004 are allowed as below:-

2. It is hereby declared that the Respondent has committed Unfair Labour Practice under Item (6) and (9) of Schedule IV of the MRTU & PULP Act, 1971 and directed to desist from continuing the same.

3. The Respondent is further directed to provide privileges and benefits of permanent employees to each Complainant, from the respective dates of filing of each complaint.

4. The Respondent is further directed to adjust the payment made to each Complainant previously.

5. Two months time is granted to the Respondent to comply the above order.

6. Parties are directed to bear their own costs.

7. The original judgment is kept in Complaint U.L.P. No.58/2004 (41/1998) (2026/1999) and copies be kept in other remaining complaints.

8. Pronounced in the Open Court.

(15.12.2004):-

1. The Complaints ULP Nos.85 to 90/2004, 93, 94, 96, 98 to 101/2004, 103 to 125/2004, 127, 128 & 131/2004 (1909 to 1913, 1915, 1919, 1922, 1925, 1926, 2023, 2025, 2027 to 2029, 2031, 2035, 2036, 2038, 2042 to 2049, 2051 to 2054, 2057, 2059, 2061, 2278/1999) are allowed as below:-

2. It is hereby declared that the Respondent has committed Unfair Labour Practice under Item (6) and (9) of Schedule IV of the MRTU & PULP Act, 1971 and directed to desist from continuing the same.

3. The Respondent is further directed to provide privileges and benefits of permanent employees to each complainant from the respective dates of filing of each complaint, as below:-

4. The Respondent to get sanctioned posts from the Government from time to time, as per Rules.

5. After sanction of such posts, to provide permanency benefits to each Complainant as per their seniority.

6. The Respondent is further directed to adjust the payment made to each Complainant previously.

7. Two months time is granted to Respondent to comply the above order.

8. Parties are directed to bear their own costs.

9. Original judgment is kept in Complaint ULP No.87/2004 and copies be kept in remaining complaints.

10. Pronounced in the Open Court.

4. All these petitions were admitted by an order dated 13.04.2005 passed by this Court. An interim relief was also granted. The order dated 13.04.2005 reads thus:-

Heard learned counsel for respective parties.

Rule.

To be heard along with W.P. No.6862/2004.

By way of interim relief, I issue the following directions:-

The impugned order dated 15.12.2004 & 04.01.2005 passed by the Industrial Court, Dhule, stands stayed. However, the Municipal Corporation, Dhule shall not remove, dismiss, discontinue the services of the workmen i.e. complainants who filed complaints before the Industrial Court, Dhule. The Municipal Corporation will be at liberty to approach Government and persuade it to sanction the posts as per the requirement. The continuation of respondents in service of the Corporation shall be subject to final outcome of these petitions.

Respective counsel waives service. The counsel agree that they will give the numbers of WPs where identical issue is involved and pending before this Court. All petitions to be heard together. The Respondents, if so desire, may file additional reply and the petitioners are at liberty to file rejoinder.

5. The grievance of Shri Shah, learned Advocate for the Petitioner/Corporation, can be summarized as under:-

(a) The Petitioner has no right or jurisdiction to create posts.

(b) All the Respondents/ Employees are working as Class IV Safai Kamgars under the Health Department of the Petitioner Corporation.

(c) All the Respondents are engaged without following the due procedure of law and have been appointed either by the elected Corporators or Councillors of the Petitioner or by the politicians.

(d) No appointment orders were issued to the Respondents.

(e) No procedure has been complied with while recruiting the Respondents.

(f) Considering the surge in such irregular appointments, the District Collector, Dhule had to look into the issue and accordingly, dealt with the matter so as to able to curb such appointments.

(g) In 1994, the Collector ordered the Chief Officer of the then Dhule Municipal Council which is presently the Municipal Corporation, to allot the work to the daily-wagers and ensure that there is an optimum utilization of the manpower.

(h) There was no evidence before the Industrial Court to indicate that a proper procedure was followed for recruiting the Respondents.

(i) It cannot be disputed that the Industrial Court had no material before it to come to the conclusion that the Petitioner Corporation could create the posts.

(j) In the absence of any power to create posts, the allegation that the Petitioner Corporation desires to continue the Respondents as daily-wagers for years together with an intent and object of depriving them of the status and benefits of permanency, is unsustainable.

(k) If no Unfair Labour Practices can be pointed out against the Petitioner, the Industrial Court could not have declared that the Petitioner is guilty of commission of Unfair Labour Practices.

(l) In the absence of any declaration of Unfair Labour Practices, no further directions for regularizing the services of the Respondents could have been issued by the Industrial Court.

(m) The applicability of Standing Order No.4(C) of the Model Standing Orders framed under the Industrial Employment (Standing Orders) Act, 1946 would have limited applicability in the case of the Petitioner since there were no permanent vacant posts available.

(n) The direction in tune with Standing Order No.4(C) would be rendered an inoperative direction if there are no posts available.

(o) The Industrial Court has lost sight of the above stated facts and has erroneously made a declaration of Unfair Labour Practices under Item Nos.6 and 9 of Schedule IV against the Petitioner.

(p) It could not have directed that the Respondents should be regularized in employment.

6. The learned Advocate for the Petitioner has relied upon the following judgments in support of his contentions:-

(1) Blue Star Limited v/s Blue Star Workers Union reported in 1998(1) Bom.C.R. 277.

(2) State of Maharashtra v/s Pandurang Sitaram Jadhav reported in 2009 (Supp.) Bom. C.R. 840.

(3) Mahatma Phule Agricultural University v/s Nasik Zilla Sheth Kamgar Union reported in (2001) 7 SCC 346 [LQ/SC/2001/1478] .

7. All the learned Advocates appearing on behalf of the Respondents/ Workmen jointly submit as follows:-

(a) Some of these Respondents have been working from the seventies with the erstwhile Dhule Municipal Council.

(b) Most of them are working from 1989-1990 for the past more than 25 to 26 years.

(c) Many of the Respondents are in their late forties and fifties and some of them are also in their late fifties.

(d) It was the case of the Petitioner that all the Respondents have been appointed without following the due procedure, though the Petitioner Corporation did not bring an iota of evidence before the Industrial Court to indicate, whether, any of the Class IV employees engaged by the Petitioner were ever selected by following the purported due procedure.

(e) The Corporation in-fact did not place any material before the Industrial Court which could have convinced the Industrial Court that there was a procedure in existence and the Corporation was routinely following the same while making recruitment in Class IV category especially Safai Kamgars.

(f) By the orders of the Collector issued in 1994, the Chief Officer of the then Dhule Municipal Council was directed to provide work to the Respondents.

(g) The complaints were filed before the Industrial Court invoking the provisions of the MRTU & PULP Act, 1971 since the Respondents were kept temporary on daily-wages and the Petitioner was not resorting to any steps for submitting their proposals to the State Government for creation of posts and thereafter, absorption of the Respondents on such posts.

(h) In between 2003 and this date, several posts have been sanctioned/granted by the State Government to the Petitioner and regularization of similarly situated Class IV employees is taking place in phases.

(i) The Respondents are pretending that they are not aware as to how many permanent vacant posts are available today and this information is held back by the Petitioner.

(j) Juniors to the Respondents have been granted benefits of permanency on vacant posts either because they have not approached the Courts or for some other extraneous reasons.

(k) In 2003, after the complaints were filed in the Industrial Court, the Petitioner Corporation sent the proposal dated 04.09.2003 to the State Government for sanctioning the posts so as to accommodate Class IV employees like the Respondents.

(l) The Petitioner cannot shirk its responsibility of ensuring that the Respondents are regularized in employment since the Respondents have been working for the Petitioner/Corporation for the last almost three decades.

(m) It is further pointed out by the Respondents from the observations of the Industrial Court that the witness of the Petitioner Corporation had admitted in his cross-examination that the workers were serving in the Health Department. He submitted their attendance chart disclosing that each of them has been working for 240 days in a continuous service of the Petitioner.

(n) The Respondents, therefore, point out the observations of the Industrial Court from paragraph 28 onwards till paragraph 33 to support their contentions that the Industrial Court has considered the evidence produced on record by both the sides while arriving at its conclusions.

8. A compilation of documents bearing the stamp of the Petitioner Corporation has been tendered across the bar by the learned Advocates for the Respondents to indicate the dates on which the Respondents and similarly situated employees were inducted in the service of the Petitioner Corporation. The said compilation is marked as Exhibit X for identification.

9. Having considered the submissions of the learned Advocates appearing for the respective sides, the issue that emerges from these petitions is as to how long can the Respondents be kept on daily-wage

10. This Court while dealing with this group of petitions, had passed the following order in Writ Petition No.6863/2004 on 04.11.2004:-

Status-quo as on today.

11. It is not disputed that the proposal was sent by the Petitioner Corporation in 2003 to the Government which is dated 04.09.2003 for creating the posts. It is also not in dispute that the Petitioner Corporation by itself cannot create the posts and as such, the direction to create the posts or declaration of unfair labour practices for having deliberately kept the Respondents as daily-wagers without creating posts and without granting permanency, could not have been issued.

12. In similar circumstances, this Court had considered the controversy as regards the regularization of Safai Kamgars in two groups of petition pertaining to the Municipal Council of Tuljapur. By its judgment 26.02.2015 in Writ Petition No.1843/2015 (Municipal Council, Tuljapur v/s Baban Hussain Dhule) and other connected matters, this Court has partly allowed the petitions filed by the Municipal Council by concluding that the Municipal Council could not be held guilty of committing unfair labour practices in the light of the fact that it did not have jurisdiction to create posts. I am, therefore, inclined to pass a similar order in these petitions absolving the Petitioner Corporation of having committed unfair labour practices on the ground of having deliberately kept the Respondents temporary for the last two or three decades.

13. However, the above conclusions would not per se automatically lead to the conclusion that the Industrial Court has lost jurisdiction to issue any direction against the Petitioner and thereby, dismiss the complaints as there could not be any declaration of unfair labour practices.

14. It is in this backdrop that the reliance placed by the Petitioner on the judgment of the Apex Court in the case of Mahatma Phule Agricultural University (supra), is misplaced. It is in peculiar facts of the case that the declaration of deliberately continuing the daily-wagers for years together was held not sustainable against the University since it could not create posts.

15. The Petitioner, knowing fully well that the Health Workers/ Safai Kamgars are regularly required for performing daily duties in a growing city like Dhule, did not make any efforts to send the proposal to the State Government for creating posts. It cannot be easily believed that the Petitioner Corporation did not have any jurisdiction or power even to send the proposal to the State Government for creation of posts. It is not in dispute that the proposals have to be sent to the State Government for creation of posts. In order to ensure that the service amenities are continually extended by the Corporation to the residents of Dhule city, it would require growing number of employees and they would have to be absorbed on such posts.

16. It is in this backdrop that though the contentions of the Petitioner may appear to be sound while assailing the impugned judgments to the extent of issuing directions for granting permanency to the Respondents, however, the directions set out in clauses 4 to 7 of the impugned judgment 15.12.2004 pertain to directing the Petitioner to get the posts sanctioned from the Government and accordingly, provide benefits of permanency by absorbing the Respondents on such posts as per their seniority.

17. All the learned Advocates appearing for the Respondents have unitedly and in a single voice alleged nepotism against the Petitioner Corporation contending that several junior workers have been granted regularization pursuant to the impugned judgment because the Petitioner has followed the practice of pick and choose and has selectively confirmed the employees of its choice. Though this contention is refuted by the learned Advocate for the Petitioner, it would lead to another round of litigation for investigating as to whether, the rule of seniority has been disturbed or not followed by the Petitioner in absorbing the Respondents in phases as and when permanent posts became available.

18. Insofar as the contention of the Petitioner that none of the Respondents have been selected by following the due procedure of law is concerned, the Petitioner has not been able to point out either through the oral evidence or through documentary evidence, any such material which was placed before the Industrial Court so as to suggest that the procedure for recruiting Class IV employees was in place, was routinely followed by the Petitioner and the Respondents would, therefore, be precluded from being compared with such properly selected employees.

19. It appears from the record that the Petitioner has merely raised a ground of proper procedure not having been followed while recruiting the Respondents. However, the Petitioner cannot dispute that these Respondents have been working for the last 25 years or more. Similarly, the Petitioner did not place any material before the Industrial Court to sustain its contention that a due procedure was required to be followed and has been followed in making all appointments in Class IV category except the appointments of the Respondents.

20. In the light of the above, I am unable to accept the contention of the Petitioner that the Industrial Court should not have granted any relief to the Respondents.

21. In a group of petitions concerning the same Municipal Corporation which was the Municipal Council then, this Court dealt with a similar set of complaints which were filed by the daily rated workers before the Industrial Court at Nashik. By its judgment dated 04th and 05th August, 2004, the petitions were dismissed. However, this Court relied upon the judgment of the Apex Court in the case of State of Haryana v/s Piara Singh and others reported in 1992(4) SCC 118 (a Three Judges Bench) and concluded that necessary directions were required to be given to the said Municipal Council which is today Municipal Corporation to take appropriate steps for obtaining sanction from the State Government for absorption of the Complainants/Workers in a phased manner.

22. It was held by the Apex Court in Piara Singh (supra) that in a case of long continuous working of the daily wagers, leads to a presumption that there is a regular need of services obliging the Authorities concerned to consider with positive mind, feasibility of regularization and such statutory bodies as well as public corporations should initiate steps for ensuring that such long working dailywage employees are absorbed in employment.

23. This Court has also dealt with similar set of facts in the case of Municipal Council, Tuljapur while delivering its judgments dated 11.12.2014 and 26.02.2015. This Court had issued directions to the Municipal Council to submit a proposal to the appropriate Authority for sanctioning of posts so as to absorb the daily rated employees in a phased manner looking to their long standing continuance in employment.

24. I do not find any impediment in modifying the impugned judgment to issue similar directions.

25. The Petitioner has relied upon the judgment of the Division Bench of this Court in the case of State of Maharashtra v/s Pandurang Sitaram Jahdav (supra). Paragraphs 9 and 17 have been cited to contend that the daily-wagers have no right to claim permanency in public employment. The Petitioner has recruited these daily-wagers more than 25 years ago. It cannot be believed that the Petitioner could pass off the induction of the Respondents by claiming that certain politicians had appointed them.

26. It is not in dispute that earlier there were Municipal Councillors and presently, the Municipal Corporators, which is the body responsible for functioning of the Municipal Corporation. Monthly wages of these Respondents have been paid by the Municipal Corporation. It is the Municipal Corporation which has opened the doors for these Respondents offering them employment. After continuing the Respondents for about 25 to 30 years, it is beyond comprehension that the Municipal Corporation is now contending that none of these Respondents could be granted permanency since none of them can be regularized in employment.

27. As the Petitioner Corporation put forth this plea, it was incumbent on the Petitioner to produce such material before the Industrial Court which could have indicated that barring these Respondents not a single Class IV employee was ever inducted through the back door. The Petitioner was under an obligation to establish before the Industrial Court by indicating through a list of its confirmed employees as regards the procedure that was followed while recruiting them and the procedure that was followed while granting confirmation/ regularization.

28. Besides the contention in the Written Statement and the oral submission of the Petitioner Corporation, there is nothing placed before the Industrial Court to suggest that a set of workers were procedurally selected and were confirmed by following a due procedure. Therefore, an inference needs to be drawn, that the Petitioner had no such material to place before the Industrial Court and had put forth a lame excuse only to frustrate the claim of the Respondents.

29. It is in this backdrop that the judgments cited by the Petitioner would hardly be of any assistance in the light of the fact that no material was placed before the Industrial Court on the basis of which the Petitioner could have relied upon the ratio laid down in the judgments cited.

30. The submission of the Petitioner as regards the quantum of monetary burden as a ground of denying regularization to the workers, cannot be sustained in the light of the judgment of the Apex Court in the matter of Chief Conservator of Forest v/s Jagannath Maruti Kondhare reported in (1996) 2 SCC 293 [LQ/SC/1995/1267] . The Apex Court while dealing with such a contention of monetary burden, has held in paragraphs 23 to 29 as under:-

23. The final point which needs our determination is regarding the reliefs granted by the Industrial Court, which is to make the workmen, in both the matters, permanent with all benefits of a permanent worker, which would include payment of wages etc. at the rate meant for a permanent worker.

24. On the relief part, it is Shri Bhandare who principally addressed us. His contention in this regard is that the relief of making the workmen permanent, that is, to regularise them was not justified in as much as some of them had been employed under the Maharashtra Employment Guarantee Act, 1977. In any case the drain on State exchequer which would follow if all workers like the respondents are to be paid as permanent employees would be so enormous that the State would find it difficult to engage in other welfare activities.

25. To bring home his submission regarding the unjust nature of the relief relating to regularisation, Shri Bhandare sought to rely on the decision of this Court in Delhi Development Horticulture Employees Union vs. Delhi Administration, Delhi, 1992 (4) SCC 99 [LQ/SC/1992/125] . We do not think that the ratio of this decision is applicable to the facts of the present case in as much as the employment of persons on daily wage basis under Jawahar Rozgar Yojna by the Development Department of Delhi Administration, whose claim for regularisation was dealt in the aforesaid case was entirely different from that of the scheme in which the respondents-workmen were employed. Jawahar Rozgar Yojna was evolved to provide income for those who are below the poverty line and particularly during the periods when they are without any source of livelihood and, therefore, without any income whatsoever. It is because of this that the Bench observed that the object of the scheme was not to provide right to work as such even to the rural poor, much less to the unemployed in general. As against this, the workmen who were employed under the schemes at hand had been so done to advance objects having permanent basis as adverted to by us.

26. Therefore, what was stated in the aforesaid case cannot called in aid at all by the appellants. According to us, the case is more akin to that of State of Haryana v. Piara Singh and others 1992 (4) SCC 118 [LQ/SC/1992/511] , in which this Court favoured the State Scheme for regularisation of casual labourers who continued for a fairly long spell say two or three years. (paragraph 51). As in the cases at hand the workmen concerned had, by the time they approached the Industrial Courts worked for more or less 5 years continuously, no case for interference with this part of the relief has been made out.

27. We may also meet the contention that some of the workmen had been employed under the Maharashtra Employment Guarantee Act, 1977. As to this, we would first observe that no factual basis for this submission is on record. Indeed, in some of the cases it has been pointed out that the employer had not even brought on record any order of appointment under this Act. This apart, a perusal of this Act shows that it has not excepted the application of the Industrial Disputes Act, 1947. This is apparent from the perusal of section 13 of this Act. It may be further pointed out that this Act having been brought into force from 1978, could not have applied to the appointments at hand most of whom are of the year 1977.

28. In so far as the financial strain on State exchequer is concerned, which submission is sought to be buttressed by Shri Dholakia by stating that in the Forests Department itself the casual employees are about 1.4 lacs and if all of them were to be regularised and paid at the rate applicable to permanent workmen, the financial involvement would be in the neighbourhood of Rs. 300 crores-a very high figure indeed. We have not felt inclined to bear in mind this contention of Shri Dholakia as the same has been brought out almost from the hat. The argument relating to financial burden is one of despair or in terrorem. We have neither been impressed by the first nor frightened by the second in as much as we do not intend that the view to be taken by us in these appeals should apply, proprio vigore, to all casual labourers of the Forests Department or any other Department of the Government.

29. We wish to say further that if Shri Bhandares submission is taken to its logical end, the justification for paying even minimum wages could wither away, leaving any employer, not to speak of model employer like the State, to exploit unemployed persons. To be fair to Shri Bhandare it may, however, be stated that the learned counsel did not extend his submission this far, but we find it difficult to limit the submission of Shri Bhandare to payment of, say fair wages, as distinguished from minimum wages. We have said so, because if a pay scale has been provided for permanent workmen that has been done by the State Government keeping in view its legal obligations and must be one which had been recommended by the State Pay Commission and accepted by the Government. We cannot deny this relief of permanency to the respondent-workmen only because in that case they would be required to be paid wages meant for permanent workers. This right flows automatically from the relief of regularization to which no objection can reasonably be taken, as already pointed out. We would, however, observe that the relief made available to the respondents is not one which would be available ipso facto to all the casual employees either of the Forests Department or any other Department of the State. Claim of casual employees for permanency or for higher pay shall have to be decided on the merits of their own cases.

31. The Petitioner has also voiced a deep concern about the monetary burden that would be imposed upon the Petitioner if the Respondents were granted regularization in phases on available vacant posts. It is submitted that the Petitioner Corporation cannot sustain the said burden and the State Government should sustain the same to rescue the Petitioner Corporation.

32. This Court in its supervisory jurisdiction and jurisdiction under the Writ of Certiorari, cannot issue such directions to the State Government. However, it does not preclude the Petitioner Corporation from requesting the State Government to adopt a pragmatic stand so as to shoulder the monetary burden.

33. It is, therefore, to be left to the State Government to decide as to whether, it would be able to relieve the Petitioner Corporation of a portion of the monetary burden while granting sanctioned posts for the absorption of the Respondents in phases.

34. In the light of the above, these petitions filed by the Petitioner Corporation are being partly allowed by setting aside only the declaration of Unfair Labour Practices as made in clause-2 of the operative part of the impugned judgment. Clause-3 of the operative part of the impugned judgment will have to be considered by the State Government while granting the deemed dates of regularization to the Respondents. As such, the directions set out in the said clauses 3, 4, 5 and 6 are sustained.

35. The time granted to the Petitioner Corporation in clause 7 is extended by observing that the Petitioner shall regularize the services of the Respondents considering the overall seniority list and available sanctioned posts. In the event there are no sanctioned posts available as on date, the Petitioner shall prepare the proposals of the Respondents, complete in all respects, by citing their actual dates on which they were inducted in employment, and shall submit the same to the appropriate Government for creation of posts. After such posts are created/ sanctioned, the Petitioner Corporation shall regularize the services of the Respondents as per their seniority list in phases.

36. The proposals, therefore, shall be sent within a period of THREE MONTHS from today by the Petitioner to the appropriate Authority which shall decide the said proposals as expeditiously as possible and preferably within a period of FOUR MONTHS from the date of receipt of the same.

37. With the above directions, the petitions are partly allowed. Rule is made partly absolute in the above terms.

38. In view of disposal of the Writ Petitions, all the pending Civil Applications are also disposed of.

39. No order as to costs.