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Judgment
Heard.
By the present petition, challenge is to the judgment and order dated 12.02.2010 passed by learned Industrial Court, Yavatmal in Complaint (ULP) No.106 of 2008, whereby learned Industrial Court directed that respondent No. 1 employee be made permanent on the post of Sweeper and be granted the applicable pay scale with consequential benefits.
In the present case, it would be relevant to refer the fact which was taken place during the pendency of the present petition. It is seen that this Court has heard this matter and by order dated 24.06.2025, by recording the fact that learned Industrial Court has not recorded any finding in respect of availability or otherwise of the vacant post at the time of recruitment of the respondent- employee, the Industrial Court was directed to consider that issue on the basis of evidence available on record and thereby relegated the matter to that extent to the Industrial Court to decide the same.
In the light of the directions issued by this Court dated 24.06.2025, the Industrial Court, by order dated 19.07.2025, decided the issue “as to whether a vacant post of Sweeper was available at the relevant time at ST Depot, Pandharkawada”. The Industrial Court has recorded a negative finding and referred back the matter to the file of this Court.
The facts of present petition can be summarized as under:
The respondent employee was appointed on daily-wages basis as a Sweeper in the month of February, 1991. His services were discontinued on 08.11.1996. The same was a subject matter of challenge before the Labour Court, Yavatmal, vide Complaint (ULP) No. 8 of 1997. The learned Labour Court by its order dated 19.10.2002 granted reinstatement to the respondent-employee with continuity of service and back wages.
The petitioner Corporation then preferred the Writ Petition No. 4107 of 2003 before this Court. This Court by order dated 27.07.2004 decided the writ petition by passing the following order:
“(i)The respondent No.1 to give up his claim of back wages and continuity in service.
(ii)The petitioner herein shall take the respondent No.1 in employment on the same post and the manner in which he was working prior to the filing of the complaint by him.”
In view of the order of this Court, the respondent employee has given up his back wages and the petitioner Corporation has reinstated him the employment on the same post on which he was working prior to the filing of complaint.
The petitioner, who has continuously rendered service from his date of appointment and same was further confirmed from 2004 as per the order of this Court, has filed the proceeding before the Industrial Court for regularization of his services. It was the contention of the present petitioner that as he is working as a regular employee as a Sweeper, itself demonstrate the perennial nature of work was/is available and, therefore, considering his continuous work, he should be regularized on the same post on which he is working.
The petitioner Corporation has contested the said proceeding by filing their reply. In their reply, it is nowhere stated that the post on which the respondent employee is working was not a clear and sanctioned post or the other posts lying vacant or available are filled in by appointing a regular employee on that post. As such, factual position was not made clear by the petitioner Corporation in the matter.
On the basis of the submission of both the parties, the Industrial Court has framed the issues and lead their evidence on their respective submission. The respondent employee entered into the witness box and reiterated his case before the Industrial Court. The respondent employee has categorically stated that he is working continuously on the post of a Sweeper in a depot at Pandharkawada and, therefore, he is entitled for the regularization on the same post. The respondent employee was cross-examined by the petitioner Corporation, but nothing was elicited out from the cross-examination.
It is necessary to note that the petitioner Corporation did not enter into the witness box before the Industrial Court. They have only relied upon their submission which was made in their written statement.
In this background, the Industrial Court proceeded to decide the matter and by recording the specific finding that respondent employee was continuously working since 01.10.2004 to 13.10.2008, directed to grant regularization to the services of the petitioner from 13.10.2008. It is pertinent to note that respondent employee seeks regularization since year 2004, but regularization has been granted since year 2008. The respondent-employee accepted the same and continued in service.
The petitioner Corporation challenged the said order before this Court by way of present petition. It is the contention of the petitioner Corporation that the post on which the respondent was working was not a clear and sanctioned post. In absence of such clear and sanctioned post, the respondent-employee is not entitled for the regularization as per the law laid down by the Hon’ble Supreme Court of India in the case of Hari Nandan Prasad and anr. Vs. Employer I/R to Management of FCI and anr., reported in 2014 (7) SCC 190, and the judgment of the Coordinate Bench in the case of Subhash s/o Sukhdeo Sahare and others vs. Nagpur Municipal Corporation and others, reported in 2025 LawSuits (Bom) 2316.
The Counsel for the respondent in the present matter has pointed out that the law laid down by the Hon’ble Supreme Court and the Coordinate Bench is not at all disputed in the matter. According to him, what is important in the matter to apply the case laws which are referred by the petitioner, Corporation should first demonstrate and establish on record, on the basis of concrete evidence that post on which the petitioner was appointed was not a clear and sanctioned post. It is also his responsibility to demonstrate that as to why the post was not filled in by following due procedure of law as required under the relevant rules. But in the present case, the petitioner Corporation failed to file any document on record to demonstrate that the post on which the petitioner was working was not a clear and sanctioned post or same was not sanctioned or any other like reason in the matter.
The respondent, to justify their submission that the post are lying vacant before the Yavatmal Division, has obtained the document under Right to Information Act from Yavatmal Division and placed on record vide his affidavit dated 04.09.2025. From perusal of this document shows that there were 23 posts of Safai-Kamgar/Sweeper are sanctioned in Yavatmal Division. Out of these sanction 23 sanctioned posts, two posts at Pandharkawada Depot are also sanctioned and vacant posts as per the information supplied under Right to Information Act.
The petitioner in reply to that document has simply stated that the two posts which were sanctioned at Pandarkawada depot, are filled in by appointing two employees, namely Rajkumar Shyam Chaware and Renuka Ravi Bismore. However, there is no clarification by the petitioner Corporation as to when those persons were appointed by the petitioner Corporation. Since when they were appointed, the manner in which their appointment was made and how much service they have rendered at Pandarkawada depot. Furthermore, this fact was also not stated in reply before Industrial Court. Before this Court, except bald statement, nothing is placed on record. Therefore, it is hard to believe the submission of petitioner in the present petition.
In the present case, from the evidence which was laid before the Industrial Court and the documents which are filed on record, it is clear that the petitioner Corporation, failed to establish on record that the post on which the respondent employee was/is working since year 2004 is not a sanctioned post. The bare statement made on the affidavit that two employees, are appointed without giving their detail, cannot be accepted in the matter.
This Court, though directed the Industrial Court to decide the issue as to whether there were vacancies available at Pandarkawada depot, but the Industrial Court, in absence of the evidence of petitioner Corporation, reached to the conclusion that the posts were not available at the time of appointment of respondent-employee. So also, Industrial Court has not occasion to deal with the current availability of post. Respondent-employee has placed reliance the document obtained under Right to Information Act. The same was not placed before Industrial Court. Hence, the finding recorded by Industrial Court in its order dated 19.07.2025 seems to be incorrect in the facts and circumstances of matter. It would be necessary to mention that in absence of documentary evidence, the conclusion drawn by the Industrial Court that posts were not permanently vacant is nothing but a perverse finding in the matter.
It would be relevant to refer the judgment of Hon’ble Supreme Court of India in the case of Maharashtra State Road Transport Corporation and Another vs. Casteribe Rajya P. Karmchari Sanghatana, reported in 2009 III CLR 262, wherein the Hon’ble Supreme Court has specifically observed in paragraph No. 26 as under:
“26.The question that arises for consideration is: have the provisions of MRTU & PULP Act denuded of the statutory status by the Constitution Bench decision in Umadevi1. In our judgment, it is not. The purpose and object of MRTU & PULP AIR 1967 SC 1071 (1972) 1 SCC 409 (1979) 4 SCC 507 Act, inter alia, is to define and provide for prevention of certain unfair labour practices as listed in Schedule II, III and IV. MRTU & PULP Act empowers the Industrial and Labour Courts to decide that the person named in the complaint has engaged in or is engaged in unfair labour practice and if the unfair labour practice is proved, to declare that an unfair labour practice has been engaged in or is being engaged in by that person and direct such person to cease and desist from such unfair labour practice and take such affirmative action (including payment of reasonable compensation to the employee or employees affected by the unfair labour practice, or reinstatement of the employee or employees with or without back wages, or the payment of reasonable compensation), as may in the opinion of the Court be necessary to effectuate policy of the Act. The power given to the Industrial and Labour Courts under Section 30 is very wide and the affirmative action mentioned therein is inclusive and not exhaustive. Employing badlis, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees is an unfair labour practice on the part of the employer under item 6 of Schedule IV. Once such unfair labour practice on the part of the employer is established in the complaint, the Industrial and Labour Courts are empowered to issue preventive as well as positive direction to an erring employer. The provisions of MRTU & PULP Act and the powers of Industrial and Labour Courts provided therein were not at all under consideration in the case of Umadevi1. As a matter of fact, the issue like the present one pertaining to unfair labour practice was not at all referred, considered or decided in Umadevi1. Unfair labour practice on the part of the employer in engaging employees as badlies, casuals or temporaries and to continue them as such for years with the object of depriving them of the status and privileges of permanent employees as provided in item 6 of Schedule IV and the power of Industrial and Labour Courts under Section 30 of the Act did not fall for adjudication or consideration before the Constitution Bench. It is true that the case of Dharwad District PWD Literate Daily Wage Employees Assn.7 arising out of industrial adjudication has been considered in Umadevi1 and that decision has been held to be not laying down the correct law but a careful and complete reading of decision in Umadevi1 leaves no manner of doubt that what this Court was concerned in Umadevi was the exercise of power by the High Courts under Article 226 and this Court under Article 32 of the Constitution of India in the matters of public employment where the employees have been engaged as contractual, temporary or casual workers not based on proper selection as recognized by the rules or procedure and yet orders of their regularization and conferring them status of permanency have been passed. Umadevi1 is an authoritative pronouncement for the proposition that Supreme Court (Article 32) and High Courts (Article 226) should not issue directions of absorption, regularization or permanent continuance of temporary, contractual, casual, daily wage or ad-hoc employees unless the recruitment itself was made regularly in terms of constitutional scheme. Umadevi1 does not denude the Industrial and Labour Courts of their statutory power under Section 30 read with Section 32 of MRTU & PULP Act to order permanency of the workers who have been victim of unfair labour practice on the part of the employer under item 6 of Schedule IV where the posts on which they have been working exists. Umadevi cannot be held to have overridden the powers of Industrial and Labour Courts in passing appropriate order under Section 30 of MRTU & PULP Act, once unfair labour practice on the part of the employer under item 6 of Schedule IV is established.”
In light of the above-said factual as well as legal position, in my considered opinion, as the petitioner Corporation failed to establish before the Industrial Court as well as before this Court that the post on which petitioner was working was not clear and vacant post or other persons were appointed on available clear and vacant post at Pandharkawda Depot, considering the judgment of Hon’ble Supreme Court of India in the case of Maharashtra State Road Transport Corporation (supra), I am of the considered opinion that the Industrial Court by its order dated 12.02.2010 has rightly considered the controversy involved in the matter and granted the regularization to the services of petitioner as a Sweeper from 13.10.2008. Therefore, there is no need of any interference of this Court in the matter, accordingly, the petition stands dismissed. No order as to the costs.