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Judgment
1] Rule. Rule made returnable forthwith and heard finally by the consent of the parties.
2] The petitioners, State instrumentalities, are aggrieved by the judgment dated 20.02.2016 delivered by the Industrial Court, Bhandara by which
Complaint (ULP) No.17/2014 has been allowed. A declaration of ULP under Items 5, 6 and 9 of Schedule IV of the Maharashtra Recognition of
Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (‘MRTU & PULP Act’), has been made against the petitioners. It is
directed that the original complainants are entitled for permanent post of Spray Man/Field Workers and the petitioners shall take steps to make the
complainants permanent within four months.
3] The petitioners are also aggrieved by the judgment dated 14.01.2019 by which, the Industrial Court has dismissed Miscellaneous Application
No.1/2016, which the petitioners had filed for seeking restoration of the ULP Complaint and recalling of the judgment. It is conceded that the
petitioners had not participated in the ULP Complaint proceedings before the Industrial Court despite service of court notice.
4] I have considered the strenuous submissions of the learned AGP for the petitioners and the learned Advocate for the respondents. I am of the view
that the law laid down by the learned Single Judge of this Court in the matter of Mukhyadhikari, Nagar Parishad, Tuljapur v. Vishal Vijay Amrutrao
and others reported in 2015(5) Mh.L.J. 75 and the judgment delivered by the learned Division Bench in the matter of Municipal Council, Tirora and
another v. Tulsidas Baliram Bindhade reported in 2016(6) Mh.L.J. 867, is applicable.
5] The record reveals that after the Industrial Court delivered the judgment dated 20.06.2016, these petitioners moved an application on 16.07.2016,
which is within 30 days from the date of the judgment, praying for restoration of the ULP Complaint and setting aside the ex parte decree.
Considering the order that I am passing in this matter, the subsequent judgment of the Industrial Court dated 14.01.2019 rejecting the miscellaneous
application, would be rendered of an academic interest.
6] The respondents, who are the original complainants before the Industrial Court, claim to have been appointed with the petitioners on a basic pay
scale of Rs.4440/- and dearness allowance. They claim to be working in the Class-III and Class-IV category. The first five complainants passed their
S.C.C. exams and claimed eligibility for appointment to the Class-III post and the original complainant nos.6 to 12 were not S.S.C. holders and
therefore, claimed to be eligible to be appointed in the Class-IV category.
7] These complainants had stated before the Industrial Court that they used to work in the rainy season from June to September and spray insecticides
in various villages. They used to distribute guppy fish as a measure of controlling the outbreak of malaria and growth of mosquitos. From October to
November till May, they used to collect blood samples of human beings from various villages and used to distribute medicines to them. Contention was
that they were working in the malaria and filaria work and other activities incidental thereto.
8] The complainants claim to have joined employment in between 1984 to 1997. They claimed to be working continuously. A chart to that effect is
placed as an annexure along with the complaint before the Industrial Court. The petitioners have placed before the Court a list of 85 such workers,
who have been engaged in between 1984 to 2017. Details about the total number of days worked by such daily wagers are also indicated. The
petitioner’s case is that these workers used to be engaged only for spraying insecticides during the rainy season for controlling the growth of
mosquitos and the spread of malaria and filaria. One case is pointed out at serial no.1 on page 20 of the petition paper-book of Mr. J.S. Thosre, who
has worked for 613 days in between 1984 till 31.12.2010. It is contended that in the period of 26 years, he had worked for 613 days. Several such
cases are cited from the charts from page nos.20 to 24.
9] Considering the above, in my view, the Industrial Court should have called for additional information as evidence to indicate that these complainants
were working continuously and in the uninterrupted service of the petitioners for 240 days in each calendar year preceding the date of reference. The
Industrial Court has however, relied upon certain government circulars placed before it and has draw the conclusion that the government is devising
various schemes to regularize the services of such Spray Man/Field Workers.
10] The law has now been crystallized in so far as State instrumentalities are concerned as regards the scope of the Industrial Court in issuing
directions to regular services of daily wagers, by applying the deeming fiction of permanency under standing Order 4C of the Model Standing Orders,
framed under the Industrial Employment (Standing Orders) Act, 1946. The learned Single Judge of this Court has dealt with similar issues in the
matter of the Mukhyadhikari, Nagar Parishad, Tuljapur (supra) and it was concluded that the model standing orders would not apply to state
instrumentalities.
11] There was a conflict of opinion between two learned Single Judges at Nagpur and the matter was therefore, referred to The Hon’ble the
Chief Justice of the Bombay High Court for Constitution of a Larger Bench. By order dated 22.01.2015, the matter was referred to a Larger Bench,
which delivered a judgment in Municipal Council, Tirora (supra). It was concluded that standing Order 4C of the Model Standing Order is not
applicable and the deeming fiction of permanency would not apply to state instrumentalities.
12] In the instant case, the Industrial Court has issued certain directions and has held that these petitioners are guilty of ULP under items 5, 6 and 9 of
the Schedule IV. In my view, when the petitioners did not have the power to create posts and had no jurisdiction to grant regularization to daily
wagers, at the local level, it cannot be held that they were guilty of willfully and intentionally keeping the daily wagers in temporary employment and
depriving them of permanency. I do not find from the impugned judgment that the Industrial Court could locate a set of workers, who were
beneficiaries of undue favoritism by the petitioners, regardless of merits. I also do not find that the petitioners have violated any settlement, agreement
or award. In this situation, the declaration of ULP against the petitioners would be unsustainable.
13] Considering the above, this petition is partly allowed. The declaration and direction issued by the Industrial Court in Clause 9(2), (3), (4) and (5)
stand quashed and set aside. Such directions would be replaced with the following directions:-
[a] Petitioner no.4 District Health Officer (Health Services), Zilla Parishad, Bhandara shall prepare the proposals of all such daily wagers, whether
they in litigation or not, working in the malaria and filaria scheme, on or before 31.03.2020. These proposals would include the names of all such daily
wagers, their dates of birth, their dates of first engagement, areas in which they have worked and the number of days they have performed their
duties.
[b] Such proposals shall be forwarded to petitioner no.2 Joint Director, Health Services (Malaria & Filaria), Pune, who shall scrutinize the said
proposal in between 01.04.2020 till 30.04.2020.
[c] Petitioner no.2 shall then forward the said proposal along with his comments to petitioner no.1 and shall ensure that the said proposal reach
petitioner no.1 on or before 31.05.2020.
[d] The petitioner no.1 shall consider the proposal in accordance with the policies and schemes framed by the State with regard to such daily wagers
and by considering the available vacant posts, would grant regularization to such daily wagers strictly as per their seniority, if they are eligible.
[e] Subject to eligibility, if the petitioner no.1 finds that they are’nt enough permanent vacant posts on which such persons could be regularized, he
would keep the proposals of the daily wagers pending till such vacancies occur or permanent vacant posts are created. On account of paucity of
vacant posts, the proposals would not be rejected.
[f] Those daily wagers, who are found to be entitled to regularization, would be granted the deemed date of permanency and calculations as regards
monetary benefits shall be carried out by respondent no.1 and they would be paid such benefits accordingly.
[g] Considering the peculiarity of the cases in hand, though this Court is not imposing a time frame on petitioner no.1, it is expected that he would
routinely scrutinize such proposals and pass necessary orders in three months intervals. For clarity, his first order would be passed on or before
31.08.2020 and he would pass similar orders at three months intervals.
[h] The respondents, original complainants and similar daily wagers would not be disengaged only because they are daily wagers and work would be
allotted to them by petitioner nos.4 and 5, depending on it’s availability and considering the seniority of such daily wagers.
14] Considering the above, the subsequent order passed by the Industrial Court dated 14.01.2019 would not survive and Miscellaneous (ULP)
Application No.1/2016 stands disposed off. Consequentially, Criminal Complaint No.5/2019 pending before the Labour Court at Bhandara, shall stand
disposed off forthwith.
15] Rule is made partly absolute in the above terms.