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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3524 OF 1997
Vice-Chancellor,
Mahatma Phule Agricultural
University, Ahmednagar & Ors. ... Petitioners
V/s.
Shantabai Genaba Chive & Anr. ... Respondents
Mrs.Neeta Karnik for Petitioners
Mr.N.A. Kulkarni for Respondent No.1
CORAM: SMT.NISHITA MHATRE, J.
J
DATED: 8.8.2008
ORAL JUDGMENT:
. The judgment challenged in this petition had
been delivered by the Member, Industrial Court, Pune on
31.3.1997 in complaint (ULP) No.579 of 1993. By this
judgment, the Industrial Court has allowed the complaint
filed by the workman and has held that the petitioners
have committed an unfair labour practices under Items 6
and 9 of Schedule IV of the MRTU & PULP Act. The
petitioners have been directed to regularise the workman
by making her permanent from 15.12.1993 i.e. the date
of filing of the complaint and to pay her the difference
in wages from that date.
2. The undisputed facts in the present case are as
follows:
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The petitioner recruited the workman in 1981. A common
seniority list was released on 19.1.1983. The workman
was at serial No.221 in this list. In 1987, 31
employees were regularised in service. During the
period between 3.9.1990 and 3.4.1993, several other
daily rated workmen were regularised. According to the
petitioner, these regularisations were effected in
accordance with the group-wise seniority list maintained
by the petitioners after discussions with the Labour
Welfare Committee. The common seniority list of 1986
was rearranged into group-wise seniority lists and
regularisation and permanency was granted to the workmen
on those lists in accordance with their seniority.
3. Aggrieved by the decision of the petitioners in
promoting her juniors, the workman filed complaint (ULP)
No.579 of 1993 alleging unfair labour practices under
Items 5, 6, 9 and 10 of Schedule IV of the MRTU & PULP
Act. The contention raised by the workman in her
complaint was that she had completed 240 days in service
since her appointment in 1981 but had been continued as
a temporary daily rated employee. She further contended
that by continuing her on a temporary basis for years
together, the petitioners had deprived her of the
benefits granted to permanent employees such as the
time-scale, paid holidays, uniforms, leave, bonus, etc.
She further contended that the petitioners continued her
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as a temporary workman with the object of depriving her
of the status and privileges of permanent employees.
She therefore sought directions from the Court for
regularising her on the establishment from 1981. She
further sought the difference in wages payable to her on
account of her regularisation in service.
4. The petitioners through their written statement
opposed the complaint and contended that because of the
group-wise seniority lists being maintained, persons who
were made permanent were in other departments and not
the garden
department where the workman was employed.
It was also contended that the petitioners had no
authority to create any new permanent post and it was
for the Government to sanction the creation of such
posts.
5. Evidence – both oral and documentary was led
before the Industrial Court. The workman examined
herself while the Office Superintendent of the
Establishment department of the Petitioners was examined
on behalf of the petitioners. The workman in her
cross-examination has admitted that during the 10 years
prior to her evidence being recorded, the employees of
the petitioners were made permanent section-wise and in
accordance with their seniority. Thus, it has been
admitted that the section-wise seniority lists were
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maintained and those who were made permanent were
granted these posts in accordance with their respective
seniority. She, however, has denied the suggestion that
employees have not been promoted on the basis of the
common seniority list. The witness of the Petitioners
has admitted that the Petitioners had directed the
Establishment department to maintain a common seniority
list of class IV workers. However, he continued to
insist that permanency was granted in accordance with
the Department-wise seniority lists maintained by the
petitioners.
6. The Industrial Court has concluded that the
Respondent workman has completed 240 days in service
with the petitioners. It has been held that after 1981,
the respondent workman was in continuous employment and
that juniors to her had been made permanent, contrary to
the seniority list. The Industrial Court, therefore,
concluded that the petitioners have committed an unfair
labour practice under Items 6 and 9 of Schedule IV of
the MRTU & PULP Act. As regards Items 5 and 10, the
Industrial Court observed that the workman had not
proved any unfair labour practice under these items.
7. Mrs.Karnik, learned advocate appearing for the
petitioners, submits that the Industrial Court has
misdirected itself by considering the seniority list of
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1986 which was a common seniority list. She submits
that pursuant to negotiations with the Labour Welfare
Committee, group-wise or department-wise seniority lists
were maintained. Fortuitously, according to Mrs.Karnik,
the sanctioned posts fell vacant in certain departments
and the seniority lists pertaining to those departments
were considered and employees were regularised She
further takes exception to the order of the Industrial
Court as it has been observed that the workman is found
at serial No.130 in the seniority list of 1986. The
learned advocate submits that this is factually
incorrect
since the workman is placed at serial No.221.
She further submits that no juniors in the Establishment
department, where the workman was employed, have been
made permanent overriding the claim of the workman. It
is only those who were employed in other Departments
where the sanctioned posts fell vacant who were made
permanent. She relies on the judgment of the Supreme
Court in the case of Mahatma Phule Agricultrual
University & ors. v/s. Nashik Zilla Sheti Kamgar Union
& Ors., 2001 III CLR 4. She points out that this
judgment was in respect of the petitioner university and
all the directions regarding permanency and payment of
benefits of permanency contained in that judgment have
been followed scrupulously by the Petitioners.
8. Mr.Kulkarni on the other hand submits that the
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petitioners cannot claim that there were no sanctioned
posts available for making workmen permanent. He
submits that the seniority list of 1986 which is a
common seniority list must be considered. If that list
is taken into account, the petitioners have committed
unfair labour practices by regularising persons who are
listed below the workman in the seniority list. He
submits that the Petitioners cannot claim that they were
unable to create posts in view of the judgment of the
learned Single Judge of this Court (Khanwilkar, J.) in
Divisional Manager, Forest Development Corporation of
Maharashtra Ltd., Nashik v/s. Chimna Arjun Jadhav, 2001
III CLR 57 wherein it has been held that the Industrial
Court can under section 30 of the Act take such positive
action as is required including directing the
petitioners to create posts in order to reinstate a
workman or to regularise him in service after completion
of 240 days.
9. In my opinion, there is no need for me to
consider the judgment in the case of Divisional Manager,
Forest Department Corproation (supra) because of the
judgment of the Supreme Court in Mahatma Phule
Agricultural University’s case (supra). The decision
was rendered in respect of the Petitioner-University.
The facts involved in that case were similar to the
facts in the present case. The workman had claimed in a
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complaint filed under the MRTU & PULP Act under section
6 of Schedule IV that they should be made permanent and
that they should be paid wages, etc. as if they were
permanent. The Supreme Court while considering the
submissions of both the parties held that the status of
permanency could not be granted to the workman. The
Supreme Court further held that the workman could at
best claim benefits of permanency but not permanency
itself since it involves creation of posts which had not
been sanctioned. The Supreme Court therefore concluded
that about 2000 workmen who were not covered by the
award of
the Industrial Tribunal of 1.4.1985 would be
entitled to the same wages on the basis of equal pay for
equal work. Permanency was denied to the workmen in
that case.
10. In view of this decision, it is obvious that the
workman would not be entitled to permanency unless the
post itself is sanctioned. Admittedly, the workman has
been made permanent in 2000 and in fact she has since
retired. The question therefore is whether she would be
entitled to any monetary relief from the year 1993 the
date from which the Industrial Court granted her
permanency, till 2000. With respect, I agree with the
view taken by Khanwilkar, J. in Divisional Manager,
Forest Development Corporation of Maharashtra Ltd.
(supra). However, in the present case, the Supreme
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Court, in respect of the same University, has held that
unless the posts are sanctioned by the State Government,
the workmen cannot be made permanent. Therefore, it
would not be appropriate to go beyond this judgment in
the case of Mahatma Phule Agricultural University’s case
(supra). The workmen would not be entitled to monetary
benefits until she was made permanent against a
sanctioned post.
11. In the result, the petition succeeds. The
impugned judgment and order is quashed to the extent
that
it grants permanency from 1993. In any event, the
petitioners have already extended the benefits from the
year 2000 to the workmen.
12. Rule made absolute accordingly. No order as to
costs.
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