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Judgment
We have heard Mrs. Pathak, learned counsel for the appellants, Shri Ghodeswar, learned Assistant Government Pleader for respondent No.1 and Shri Godbole, learned counsel holding for Shri S.G.Jagtap, learned counsel for respondent Nos.2 to 4.
The appellants before this Court fairly pointed out that after filing of present appeal in the year 2009, they have not been provided work as a Driver by respondent Nos.2 to 4. Mrs. Pathak, learned counsel contends that they are terminated but the work is also not provided and being dependent on daily wage, they were / are unable to report daily.
According to her, the Competent Authority namely the Board of Director of respondent Nos.2 to 4 on 13th November, 2000 passed a resolution and decided to purchase two Marshal Jeeps. It was also resolved and an approval was given to creation of two posts of Drivers for these two Jeeps. In this backdrop, she has invited our attention to discussion contained in paragraph 23 of the Judgment delivered by the learned Member of Industrial Court on 22/01/2001. She points out that since 1996 till delivery of Judgment, appellants were working continuously as Drivers and erroneously observing that they did not prove unfair labour practice under Item 6 Schedule IV of MRTP & PULP Act, a declaration under Item 6 was refused. But the declaration of indulgence in unfair labour practice under Item 9 Schedule IV has been given and accordingly, the employer was asked to move the State Government seeking necessary approval for these two posts of Drivers with a direction not to discontinue the appellants, in the meanwhile.
The Judgment delivered by the Industrial Court on 22/01/2001 has been set aside by the learned Single Judge on 17th November, 2008 on the ground that there were no sanctioned posts for granting regularization or absorption of appellants and in absence of such posts, mere completion of 240 days of continuous service in a year could not have resulted in issuing such a direction. She contends that the law in Judgment of Hon''ble Apex Court in the case of Secretary, State of Karnataka & others Vrs. Umadevi & others, reported at AIR (2006) Supreme Court 1806 and the later Judgment of Hon''ble Apex Court in the case of Maharashtra State Road Transport Corporation and another Vrs. Castetribe Rajya Parivahan Karmachari Sanghatana, reported at 2009 (8) SCC 556, have not been properly applied in the present matter. She further adds that because of denial of said benefits and declaration, all past service put in by the present appellants has been lost.
She has taken us through relevant findings recorded by the Industrial Court as also by the learned Single Judge of this Court and the minutes of Board Meeting dated 20.11.2000.
Shri Jagtap, learned counsel appearing for respondent nos. 2 to 4 has supported the order. He submits that the learned Member of the Industrial Court has recorded a finding that posts were not available/ sanctioned and hence, in absence of vacancy there was no unfair labour practice under Item 6 of Schedule IV of the Act. He further adds that, said finding has been further used by the learned Single Judge to note that mere completion of 240 days in such contingency cannot result in grant of permanency. He therefore, prays for dismissal of the Letters Patent Appeal.
In alternative and without prejudice, he also submits that since the appellants have not reported for duties since 2009, no relief can be given to them at this stage, and they have to apply to the competent Court for resuming service first. He submits that limitation in that event would have been only 90 days and that period had expired long back.
Shri Ghodeswar, learned A.G.P. appearing for respondent no.1 submits that respondent no.1 has acted as a judicial officer and had no personal interest in the matter.
The facts at hand show that need of purchase of two more jeeps and therefore, need of two more drivers, has been felt by the employer and accordingly on 30.11.2000, a resolution has been passed. By that resolution on subject no.2, Board has resolved and approved purchase of two new vehicles and creation of two more post of drivers consequently. Resolution no where points out need of any sanction or approval from the State Government for that purpose.
In the light of this, when discussion undertaken by the Industrial Court is looked into, Industrial Court has found that two jeeps were provided by the department to respondent nos. 2 and 3 i.e. present respondent nos. 3 and 4. Thus, 2 jeeps became available as per resolution mentioned supra. Industrial Court further observed that in absence of sanctioned post, complainants i.e. present appellants were engaged on these vehicles on temporary basis. Their service were being utilized for limited period, but, then they were required to attend office continuously except on holidays and Sundays. The Industrial Court has therefore, concluded that respondent nos. 2 and 3 needed two posts of drivers on regular basis, but, then could not make the complainants permanent for want of posts. It has also found that there was no intention on the part of the respondents to deprive the complainants of status and privileges of permanency by continuing them as temporary workers. Only fault according to the Industrial Court was not moving the authority competent to sanction the posts for that purpose. Thus failure has been accepted, but, then the Industrial Court has recorded a finding that this failure or omission does not tantamount to unfair labour practice under item 6.
Discussion in paragraph no.24 of its judgment shows that there were administrative directions to respondent nos. 2 and 3, not to issue any appointment order to the complainants and to use the new jeeps only when necessary and only on day of its use, to employ temporary drivers and to obtain signatures only on that day in muster roll. The letter containing instructions also directed the officers not to allow such employees i.e. complainants to sign the muster roll when their services were not used. This treatment was also assailed by the complainants, as an act of contravention of Model Standing Orders.
The learned Single Judge has in paragraph no.4 noted these facts and then looked into the evidence on record. In paragraph no.9, the absence of sanctioned posts of drivers at Nagpur has been accepted. The finding that the authority competent to sanction post was not party, has again been reiterated. In background of the fact that the State Government did not sanction the post of drivers at Nagpur, a finding that completion of 240 days would not result in grant of permanency or regularization, has been recorded. The failure or omission to obtain sanction from the State Government has been held not sufficient to attract Item 9 of Schedule IV also.
Thus, basic facts are not in dispute and two vehicles as approved by the Board of Directors in their meeting dated 30.11.2000, were made available. Board itself has also sanctioned creation of two posts of drivers, but, that part of resolution has not been commented upon. Board no where sought sanction or approval from the Government, hence, need of such approval ought to have been demonstrated independently.
It is to be noted that ULP Complaint No. 1332/1997 was filed by present appellants pointing out that they were in service from 15. 03.1996 and 01.08.1996 respectively. They therefore claimed that they had completed 240 days of continuous service and hence because of Standing Order 4[c] on completion of 240 days itself, they were entitled to grant of permanency. When two new jeeps are allowed to be purchased, it follows that it was with approval of the State Government. It also means that as a consequence, two posts of drivers to drive them also were sanctioned. The arguments noted supra and material looked into by the Industrial Court or by this Court has become available thereafter i.e. in the year 2000 or 2001. The unfair labour practice claimed was in the year 1997.
The judgment delivered by the Hon''ble Supreme Court in case of Secretary, State of Karnataka .vrs. Umadevi (supra), in paragraph no.53 shows that where the employee is continued in employment for a period of 10 years of more, without any interim orders from the court, his claim for regularization can be looked into as a one time measure. That period of 10 years was complete in present matter in 2006 i.e. after adjudication of above mentioned ULPA Complaint on 22.01.2001, and during the pendency of Writ Petition No. 899/2001, before this Court. The Hon''ble Supreme Court through its Larger Bench in case of Maharashtra SRTC vs. Castetribe Rajya Parivahan Karmchari Sanghatana (supra), has further clarified the situation and pointed out that for grant of such a benefit, sanctioned vacant post must be available. Board resolution mentioned supra, recognizes need of two such posts. Law commented upon by the Industrial Court itself shows that the work load was available for two drivers. Permitting purchase of two new vehicles but, denying two posts of drivers, therefore, itself speaks volumes. Instructions to use the services of complainants in the mode and manner mentioned supra also shows an intention to victimize and exploit. It aggravates the unfair labour practices complained of.
However, in the light of subsequent events, we do not find it necessary to finally comment on entire controversy. Appellants before this Court are not getting work from 2009. Thus period of about 8 years is already over. Facts mentioned supra shows that they were supposed to report for duty every day and if they were given work, then only they would be permitted to sign the muster roll and earn daily wage. In this situation, after 2009 appellants dependent upon their daily wage, could not report for work, appropriate cognizance therefore can be taken if, any proceedings are filed by the appellant either for reinstatement or then for providing work to them as the same is available or then by invoking Section 25H of the Industrial Disputes Act.
If such a grievance is made and delay or latches, if any, are explained, and its cognizance on merit is taken, all question which arise can then be looked into by the concerned Court to find out entitlement or eligibility of complainants to suitable relief. In present facts, when they are not reporting for work since 2009, granting relief of regularization is not possible.
Hence, keeping all issues and all related aspects open for consideration by the competent Court and also keeping all rival contentions regarding the same open, we dispose of the present Letters Patent Appeal. No costs.