Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3433 OF 2007
Maharashtra State Road Transport
Corporation & Anr. …Appellants
Versus
Casteribe Rajya P. Karmchari Sanghatana …Respondents
With
Civil Appeal No. 3434/2007
Civil Appeal No. 3435/2007
Civil Appeal No. 3436/2007
Civil Appeal No. 3437/2007
JUDGMENT
R.M. Lodha, J.
Principally, two questions which this Court is called
upon to determine in this group of five civil appeals by special
leave are:
(one) : Whether a direction to the Maharashtra
State Road Transport Corporation (for short,
“Corporation”) by the Industrial Court, and
confirmed by the High Court of giving status, wages
and all other benefits of permanency, applicable to
the post of Cleaners to the complainants is justified?
(two) : Whether the two complaints filed by
Casteribe Rajya Parivahan Karmchari Sanghatana
(for short, “Union”), an unrecognised union under
Maharashtra Recognition of Trade Unions &
Prevention of Unfair Labour Practices Act, 1971
(for short, “MRTU & PULP Act”), alleging unfair
labour practice on the part of the employer under
item No. 6 of Schedule IV are maintainable?
2. The Union, although a registered union under the
Trade Union Act, but unrecognised under MRTU & PULP
Act, filed two complaints, namely, complaint (ULP) No.
542/1991 and complaint (ULP) No. 574/1991 before the
Industrial Court, Bombay alleging that the Corporation has
indulged in unfair labour practice under item nos. 5,6,9 and 10
of Schedule IV of MRTU & PULP Act. The names of the
affected employees were mentioned in the annexures annexed
with the complaints. All these affected employees were
engaged by the Corporation as casual labourers for cleaning
the buses between the years 1980-85. According to the
complainants, these employees are required to work everyday
at least eight hours at the concerned depot of the Corporation;
the work done by these employees is of permanent nature but
they are being paid a paltry amount; and that the posts of
2
sweepers/cleaners are available in the Corporation yet these
employees have been kept on casual and temporary basis for
years together denying them the benefit of permanency.
3. Another complaint (ULP No. 442 of 1992) was filed
by 19 individual employees before Industrial Court, Thane,
raising the identical dispute.
4. The Corporation resisted these complaints on
diverse grounds. Insofar as the complaints by the Union were
concerned, the Corporation raised the plea that these were
not maintainable as the Union was unrecognised Union
under MRTU & ULP Act. The Corporation stated that the
complainants were engaged for cleaning the buses on
contract basis @ 1.50 paise per bus and they were not
employed as ‘badlis’, casual or temporary workers; that the
engagement of these workers on contract basis is purely of
casual nature; that prior to 1980, the Corporation buses were
being cleaned by regular helpers but some problems arose
amongst the employees later on and, it was decided not to
compel the qualified helpers to clean and sweep the buses;
that since the Corporation was facing acute problem regarding
3
cleaning of the buses and the negotiations were going on with
the respective unions, it was decided that those who volunteer
their services by reporting at the respective depot may be
allowed to clean the buses on contract basis. The Corporation
stated that these workers cannot be provided with the status of
permanency on par with the other permanent cleaners.
5. The parties led oral as well as documentary
evidence before the Industrial Court, Bombay in Complaint
ULP nos. 542 and 574 of 1991 and before Industrial Court,
Thane, in Complaint ULP no. 442/1992.
6. The Industrial Court, Bombay in the two complaints
filed by the Union held that the complaint regarding unfair
labour practice against the Corporation under item 6 of
Schedule IV was not maintainable. However, the complaints
were maintainable in respect of unfair labour practice under
item nos. 5,9 and 10. The Industrial Court held that the
Corporation committed unfair labour practice under items 5
and 9 of Schedule IV of MRTU & PULP Act and vide order
dated May 2, 1995 the Corporation was directed to pay equal
wages to the concerned employees which are paid to
4
Swachhak and pay arrears of wages to them from the date of
filing of the complaints. The Industrial Court, Thane decided
complaint ULP No. 442/1992 vide its order dated February 6,
1997 and held that the Corporation indulged in unfair labour
practice under item 6 of Schedule IV by continuing the
complainants as temporary/casual/daily wage workers for years
together and thereby depriving them the benefits of
permanency. The Industrial Court, Thane, accordingly,
directed the Corporation to cease and desist from the said
unfair practice within one month from the date of the order by
giving status, wages and all other benefits of permanency
applicable to the post of cleaners to the complainants w.e.f.
August 3, 1982.
7. The aforesaid two orders passed by the Industrial
Court, Bombay as well as Industrial Court, Thane came to be
challenged by the Union, the employees and the Corporation
before the High Court of Judicature at Bombay (appellate side)
in five separate writ petitions. The learned single Judge of
the High Court heard these five writ petitions together and
disposed of them by a common judgment on August 2, 2001.
5
The learned single Judge held that the complaints by the
unrecognized union under item 6 of Schedule IV of MRTU &
PULP Act were maintainable and that Corporation indulged in
unfair labour practice under item 6 of Schedule IV. The learned
single Judge also held that there is unfair labour practice on
the part of the Corporation under item no. 5 of Schedule IV as
well. The single Judge, accordingly, directed that employees
mentioned in the two complaints filed by the Union be given
benefit of permanency including salary and allowances from the
date of filing the respective complaints.
8. Aggrieved by the judgment of the single Judge
passed on August 2, 2001, the Corporation preferred five
Letters Patent Appeals which came to be dismissed on May 6,
2005. Hence, these five appeals by special leave.
re: question (one)
9. Mr. Altaf Ahmad, learned Senior Counsel for the
Corporation, heavily relied upon General Standing Order No.
th
503 dated 19 June, 1959 and the decision by the Constitution
Bench of this Court in the case of Secretary, State of Karnataka
1
and Others vs. Umadevi and Others in assailing the direction
1
(2006) 4 SCC 1
6
of giving status, wages and other benefits of permanency
applicable to the post of cleaners. The learned Senior Counsel
would submit that granting permanent status to employees
who were working as casual workers/daily wagers and whose
appointments were made without following the procedure
prescribed in General Standing Order 503 on non-existent
posts is unsustainable in law. He extensively referred to the
1
Constitution Bench decision in Umadevi . The learned Senior
Counsel submitted that no direction could be given by the
Court for creation of posts. In this regard, he relied upon two
decisions of this Court viz.: Mahatma Phule Agricultural
University and Others vs. Nasik Zilla Sheth Kamgar Union &
2
Ors. and Karnataka State Road Transport Corporation and
3
Anr. vs. S.G. Kotturappa and Anr.
10. Mr. Shekhar Naphade, learned Senior Counsel for
the employees and Mr. Vinay Navare, learned counsel for the
Union stoutly defended the direction given to the Corporation in
according permanency and consequential benefits to the
affected employees.
2
(2001) 7 SCC 346
3
(2005) 3 SCC 409
7
11. We deem it appropriate to notice the relevant
provisions of MRTU & PULP Act first. But before we do that it
is important to notice that MRTU & PULP Act was enacted
with an object to provide for the recognition of trade unions for
facilitating collective bargaining for certain undertakings; to
state their rights and obligations; to confer certain powers on
unrecognized unions; to provide for declaring certain strikes
and lockouts as illegal strikes and lockouts; to define and
provide for the prevention of certain unfair labour practices;
to constitute courts (as independent machinery) for carrying out
the purposes of according recognition to trade unions and for
enforcing the provisions relating to unfair labour practices; and
to provide for matters connected with the purposes aforesaid.
12. A “recognized union” under Section 3(13) means a
union which has been issued a certificate of recognition under
Chapter III of the Act.
13. “Unfair labour practice” means those defined in
Section 26. Section 26 defines them to mean the practices
listed in Schedules II, III and IV. Schedule II deals with unfair
labour practices on the part of the employers; Schedule III
8
deals with unfair labour practices on the part of trade unions
and Schedule IV deals with general unfair labour practices on
the part of the employers.
14. Section 21 confers a right upon the recognized
union to appear or act in the proceedings relating to certain
unfair labour practices. It reads thus:
“ 21. Right to appear or act in proceedings relating to
certain unfair labour practices
(1) No employee in an undertaking to which the
provisions of the Central Act for the time being apply, shall
be allowed to appear or act or allowed to be represented in
any proceedings relating to unfair labour practices specified
in items 2 and 6 of Schedule IV of this Act except through
the recognized union:
Provided that, where there is no recognized union to
appear, the employees may himself appear or act in any
proceeding relating to any such unfair labour practices.
(2) Notwithstanding anything contained in the Bombay
Act, no employee in any industry to which the
provisions of the Bombay Act, for the time being
apply, shall be allowed to appear or act or allowed to
be represented in any proceeding relating to unfair
labour practices specified in items 2 and 6 of
Schedule IV of this Act except through the
representative of employees entitled to appear under
Section 30 of the Bombay Act.”
15. Section 28 reads thus:
“ 28. Procedure for dealing with complaints relating to
unfair labour practices
9
(1) Where any person has engaged in or is engaging in any
unfair labour practice, then any union or any employee or
any employer or any Investigating Officer may, within
ninety days of the occurrence of such unfair labour
practice, file a complaint before the Court competent to
deal with such complaint either under Section 5, or as the
case may be, under Section 7 of this Act.
Provided that, the Court may entertain a complaint after the
period of ninety days from the date of the alleged
occurrence, if good and sufficient reasons are shown by the
complainant for the late filing of the complaint.
2. The Court shall take a decision on every such complaint
as far as possible within a period of six months from the
date of receipt of the complaint.
3. On receipt of a complaint under sub-section (1), the
Court may, if it so considers necessary, first cause an
investigation into the said complaint to be made by the
Investigating Officer, and direct that a report in the matter
may be submitted by him to the Court, within the period
specified in the direction.
4. While investigating into any such complaint, the
Investigating Officer may visit the undertaking, where
the practice alleged is said to have occurred, and make
such enquiries as he considers necessary. He may also
make efforts to promote settlement of the complaint.
5. The Investigating Officer shall, after investigating into the
complaint under sub-Section (4) submit his report to the
Court, within the time specified by it, setting out the full
facts and circumstances of the case, and the efforts
made by him in settling the complaint. The Court shall,
on demand and on payment of such fee as may be
prescribed by rules, supply a copy of the report to the
complainant and the person complained against.
6. If, on receipt of the repot of the Investigating Officer, the
Court finds that the complaint has not been settled
satisfactorily, and that facts and circumstances of the
case require, that the matter should be further
considered by it, the Court shall proceed to consider it,
and give its decision.
10
7. The decision of the Court, which shall be in writing, shall
be in the form of an order. The order of the Court shall
be final and shall not be called in question in any civil or
criminal court.
8. The Court shall cause its order to be published in such
manner as may be prescribed. The order of the Court,
shall become enforceable from the date specified in the
order.
9. The Court shall forward a copy of its order to the State
Government and such officers of the State Government
as may be prescribed.”
16. Section 30 sets out the powers of Industrial and
Labour Courts as follows:
“ 30. Powers of Industrial and Labour Courts
(1) Where a Court decides that any person named in the
complaint has engaged in, or is engaging in, any
unfair labour practice, it may in its order –
(a) declare that an unfair labour practice has been
engaged in or is being engaged in by that person, and
specify any other person who has engaged in, or is
engaging in the unfair labour practice;
(b) direct all such persons 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 the
policy of the Act;
(c) where a recognized union has engaged in or is
engaging in, any unfair labour practice, direct that its
recognition shall be cancelled or that all or any of its
11
rights under sub-section (1) of Section 20 or its right
under Section 23 shall be suspended.
(2) In any proceeding before it under this Act, the Court,
may pass such interim order (including any temporary
relief or restraining order) as it deems just and proper
(including directions to the person to withdraw
temporarily the practice complained of, which is an
issue in such proceeding), pending final decision:
Provided that, the Court may, on an application in that
behalf, review any interim order passed by it.
(3) For the purpose of holding an enquiry or proceeding
under this Act, the Court shall have the same powers
as are vested in Courts in respect of –
(a) proof of facts by affidavit;
(b) summoning and enforcing the attendance of
any person, and examining him on oath.
(c) Compelling the production of documents; and
(d) Issuing commissions for the examination of
witnesses.
(4) The Court shall also have powers to call upon any of
the parties to proceedings before it to furnish in
writing, and in such forms as it may think proper, any
information, which is considered relevant for the
purpose of any proceedings before it, and the party so
called upon shall thereupon furnish the information to
the best of its knowledge and belief, and if so required
by the Court to do so, verify the same in such manner
as may be prescribed.”
17. Section 32 provides that the Court shall have the
powers to decide all connected matters arising out of any
application or a complaint referred to it for the decision under
any of the provisions of this Act.
12
18. Having surveyed the relevant provisions of MRTU &
PULP ACT, it is now time to consider the Constitution Bench
1
decision in Uma Devi . In paragraph 10, the Constitution
Bench has quoted the order of reference which reads:
“ 1 . Apart from the conflicting opinions between the three-
Judge Bench decisions in Ashwani Kumar v. State of Bihar;
((1997) 2 SCC 1 , State of Haryana v. Piara Singh; (1992)4
SCC 118 and Dharwad Distt. PWD Literate Daily Wage
Employees Assn. v. State of Karnataka (1990) 2 SCC 396
on the one hand and State of H.P. v. Suresh Kumar Verma;
(1996) 7 SCC 564 , State of Punjab v. Surinder Kumar;
(1992) 1 SCC 489 and B.N. Nagarajan v. State of
Karnataka; (1979) 4 SCC 507 on the other, which have been
brought out in one of the judgments under appeal of the
Karnataka High Court in State of Karnataka v. H. Ganesh
Rao; (2001) 4 Kant LJ 466 (DB) , decided on 1-6-2001 the
learned Additional Solicitor General urged that the scheme
for regularisation is repugnant to Articles 16(4), 309, 320 and
335 of the Constitution and, therefore, these cases are
required to be heard by a Bench of five learned Judges
(Constitution Bench).
2 . On the other hand, Mr M.C. Bhandare, learned Senior
Counsel, appearing for the employees urged that such a
scheme for regularisation is consistent with the provisions of
Articles 14 and 21 of the Constitution.
3 . Mr V. Lakshmi Narayan, learned counsel appearing in
CCs Nos. 109-498 of 2003, has filed the GO dated 19-7-
2002 and submitted that the orders have already been
implemented.
4 . After having found that there is conflict of opinion
between the three-Judge Bench decisions of this Court, we
are of the view that these cases are required to be heard by
a Bench of five learned Judges.
5 . Let these matters be placed before the Hon’ble the
Chief Justice for appropriate orders.”
13
1
19. The Constitution Bench in Umadevi considered a
long line of cases; constitutional scheme in public employment;
powers of the High Courts under Article 226; powers of this
Court under Articles 32; other constitutional provisions viz.;
Articles 14, 16, 21 and 309 of the Constitution and laid down
that the High Court acting under Article 226 of the Constitution
could not ordinarily issue directions for regularization and
permanent continuance unless the recruitment itself was made
regularly and in terms of the constitutional scheme. The
Constitution Bench observed thus:
“43. Thus, it is clear that adherence to the rule of equality
in public employment is a basic feature of our Constitution
and since the rule of law is the core of our Constitution, a
court would certainly be disabled from passing an order
upholding a violation of Article 14 or in ordering the
overlooking of the need to comply with the requirements of
Article 14 read with Article 16 of the Constitution. Therefore,
consistent with the scheme for public employment, this Court
while laying down the law, has necessarily to hold that
unless the appointment is in terms of the relevant rules and
after a proper competition among qualified persons, the
same would not confer any right on the appointee. If it is a
contractual appointment, the appointment comes to an end
at the end of the contract, if it were an engagement or
appointment on daily wages or casual basis, the same would
come to an end when it is discontinued. Similarly, a
temporary employee could not claim to be made permanent
on the expiry of his term of appointment. It has also to be
clarified that merely because a temporary employee or a
casual wage worker is continued for a time beyond the term
of his appointment, he would not be entitled to be absorbed
in regular service or made permanent, merely on the
strength of such continuance, if the original appointment was
not made by following a due process of selection as
envisaged by the relevant rules. It is not open to the court to
prevent regular recruitment at the instance of temporary
14
employees whose period of employment has come to an end
or of ad hoc employees who by the very nature of their
appointment, do not acquire any right. The High Courts
acting under Article 226 of the Constitution, should not
ordinarily issue directions for absorption, regularisation, or
permanent continuance unless the recruitment itself was
made regularly and in terms of the constitutional scheme.
Merely because an employee had continued under cover of
an order of the court, which we have described as “litigious
employment” in the earlier part of the judgment, he would not
be entitled to any right to be absorbed or made permanent in
the service. In fact, in such cases, the High Court may not be
justified in issuing interim directions, since, after all, if
ultimately the employee approaching it is found entitled to
relief, it may be possible for it to mould the relief in such a
manner that ultimately no prejudice will be caused to him,
whereas an interim direction to continue his employment
would hold up the regular procedure for selection or impose
on the State the burden of paying an employee who is really
not required. The courts must be careful in ensuring that
they do not interfere unduly with the economic arrangement
of its affairs by the State or its instrumentalities or lend
themselves the instruments to facilitate the bypassing of the
constitutional and statutory mandates.”
20. Pointing out the difference between the concept of “equal
pay for equal work” and the concept of conferring “permanency”
for those who have been appointed on ad hoc basis/ temporary
basis and without any process of selection as envisaged in the
Rules, the Court held:
“44. The concept of “equal pay for equal work” is
different from the concept of conferring permanency on
those who have been appointed on ad hoc basis, temporary
basis, or based on no process of selection as envisaged by
the rules. This Court has in various decisions applied the
principle of equal pay for equal work and has laid down the
parameters for the application of that principle. The
decisions are rested on the concept of equality enshrined in
our Constitution in the light of the directive principles in that
behalf. But the acceptance of that principle cannot lead to a
position where the court could direct that appointments
15
made without following the due procedure established by
law, be deemed permanent or issue directions to treat them
as permanent. Doing so, would be negation of the principle
of equality of opportunity. The power to make an order as is
necessary for doing complete justice in any cause or matter
pending before this Court, would not normally be used for
giving the go-by to the procedure established by law in the
matter of public employment. Take the situation arising in the
cases before us from the State of Karnataka. Therein, after
Dharwad decision the Government had issued repeated
directions and mandatory orders that no temporary or ad hoc
employment or engagement be given. Some of the
authorities and departments had ignored those directions or
defied those directions and had continued to give
employment, specifically interdicted by the orders issued by
the executive. Some of the appointing officers have even
been punished for their defiance. It would not be just or
proper to pass an order in exercise of jurisdiction under
Article 226 or 32 of the Constitution or in exercise of power
under Article 142 of the Constitution permitting those
persons engaged, to be absorbed or to be made permanent,
based on their appointments or engagements. Complete
justice would be justice according to law and though it would
be open to this Court to mould the relief, this Court would not
grant a relief which would amount to perpetuating an
illegality.”
21. The Court deprecated the issuance of directions by
the Court for regularization or making the temporary or casual
employees permanent on the ground that such a person has
worked for a considerable length of time. It was observed:
“45. While directing that appointments, temporary or
casual, be regularised or made permanent, the courts are
swayed by the fact that the person concerned has worked for
some time and in some cases for a considerable length of
time. It is not as if the person who accepts an engagement
either temporary or casual in nature, is not aware of the
nature of his employment. He accepts the employment with
open eyes. It may be true that he is not in a position to
bargain—not at arm’s length—since he might have been
searching for some employment so as to eke out his
livelihood and accepts whatever he gets. But on that ground
alone, it would not be appropriate to jettison the constitutional
16
scheme of appointment and to take the view that a person
who has temporarily or casually got employed should be
directed to be continued permanently. By doing so, it will be
creating another mode of public appointment which is not
permissible. If the court were to void a contractual
employment of this nature on the ground that the parties were
not having equal bargaining power, that too would not enable
the court to grant any relief to that employee. A total embargo
on such casual or temporary employment is not possible,
given the exigencies of administration and if imposed, would
only mean that some people who at least get employment
temporarily, contractually or casually, would not be getting
even that employment when securing of such employment
brings at least some succour to them. After all, innumerable
citizens of our vast country are in search of employment and
one is not compelled to accept a casual or temporary
employment if one is not inclined to go in for such an
employment. It is in that context that one has to proceed on
the basis that the employment was accepted fully knowing the
nature of it and the consequences flowing from it. In other
words, even while accepting the employment, the person
concerned knows the nature of his employment. It is not an
appointment to a post in the real sense of the term. The claim
acquired by him in the post in which he is temporarily
employed or the interest in that post cannot be considered to
be of such a magnitude as to enable the giving up of the
procedure established, for making regular appointments to
available posts in the services of the State. The argument that
since one has been working for some time in the post, it will
not be just to discontinue him, even though he was aware of
the nature of the employment when he first took it up, is not
one that would enable the jettisoning of the procedure
established by law for public employment and would have to
fail when tested on the touchstone of constitutionality and
equality of opportunity enshrined in Article 14 of the
Constitution.”
22. The earlier decisions of this Court in Dharwad
District PWD Literate Daily Wage Employees Assn. vs. State of
4 5
Karnataka , State of Haryana vs. Piara Singh , Jacob M.
6
Puthuparambil vs. Kerala Water Authority and Gujarat
4
(1990) 2 SCC 396
5
(1992) 4 SCC 118
6
(1991) 1 SCC 28
17
7
Agricultural University vs. Rathod Labhu Bechar were held to
be not laying down correct law and it was held that the
invocation of the doctrine of legitimate expectation cannot
enable the employees to claim that they must be made
permanent or they must be regularized in the service though
they had not been selected in terms of the rules for
appointment. The Constitution Bench went on to hold:
“47. When a person enters a temporary employment or
gets engagement as a contractual or casual worker and the
engagement is not based on a proper selection as
recognised by the relevant rules or procedure, he is aware of
the consequences of the appointment being temporary,
casual or contractual in nature. Such a person cannot invoke
the theory of legitimate expectation for being confirmed in
the post when an appointment to the post could be made
only by following a proper procedure for selection and in
cases concerned, in consultation with the Public Service
Commission. Therefore, the theory of legitimate expectation
cannot be successfully advanced by temporary, contractual
or casual employees. It cannot also be held that the State
has held out any promise while engaging these persons
either to continue them where they are or to make them
permanent. The State cannot constitutionally make such a
promise. It is also obvious that the theory cannot be invoked
to seek a positive relief of being made permanent in the
post.”
23. The argument based on Articles 14 and 16 of the
7
( 2001) 3 SCC 574
18
Constitution of India was also negatived by holding:
“48. It was then contended that the rights of the
employees thus appointed, under Articles 14 and 16 of the
Constitution, are violated. It is stated that the State has
treated the employees unfairly by employing them on less
than minimum wages and extracting work from them for a
pretty long period in comparison with those directly recruited
who are getting more wages or salaries for doing similar
work. The employees before us were engaged on daily
wages in the department concerned on a wage that was
made known to them. There is no case that the wage agreed
upon was not being paid. Those who are working on daily
wages formed a class by themselves, they cannot claim that
they are discriminated as against those who have been
regularly recruited on the basis of the relevant rules. No right
can be founded on an employment on daily wages to claim
that such employee should be treated on a par with a
regularly recruited candidate, and made permanent in
employment, even assuming that the principle could be
invoked for claiming equal wages for equal work. There is no
fundamental right in those who have been employed on daily
wages or temporarily or on contractual basis, to claim that
they have a right to be absorbed in service. As has been
held by this Court, they cannot be said to be holders of a
post, since, a regular appointment could be made only by
making appointments consistent with the requirements of
Articles 14 and 16 of the Constitution. The right to be treated
equally with the other employees employed on daily wages,
cannot be extended to a claim for equal treatment with those
who were regularly employed. That would be treating
unequals as equals. It cannot also be relied on to claim a
right to be absorbed in service even though they have never
been selected in terms of the relevant recruitment rules. The
arguments based on Articles 14 and 16 of the Constitution
are therefore overruled.”
24. The Constitution Bench did not accept the argument
that the right to life protected by Article 21 of the Constitution
19
would include the right to employment. The Court said:
“51. The argument that the right to life protected by
Article 21 of the Constitution would include the right to
employment cannot also be accepted at this juncture. The
law is dynamic and our Constitution is a living document.
May be at some future point of time, the right to employment
can also be brought in under the concept of right to life or
even included as a fundamental right. The new statute is
perhaps a beginning. As things now stand, the acceptance
of such a plea at the instance of the employees before us
would lead to the consequence of depriving a large number
of other aspirants of an opportunity to compete for the post
or employment. Their right to employment, if it is a part of
right to life, would stand denuded by the preferring of those
who have got in casually or those who have come through
the backdoor. The obligation cast on the State under Article
39( a ) of the Constitution is to ensure that all citizens equally
have the right to adequate means of livelihood. It will be
more consistent with that policy if the courts recognise that
an appointment to a post in government service or in the
service of its instrumentalities, can only be by way of a
proper selection in the manner recognised by the relevant
legislation in the context of the relevant provisions of the
Constitution. In the name of individualising justice, it is also
not possible to shut our eyes to the constitutional scheme
and the right of the numerous as against the few who are
before the court. The directive principles of State policy have
also to be reconciled with the rights available to the citizen
under Part III of the Constitution and the obligation of the
State to one and all and not to a particular group of citizens.
We, therefore, overrule the argument based on Article 21 of
the Constitution.”
25. In the cases of irregular appointments (not illegal
appointments) and their regularization as one time measure,
however, the Constitution Bench referred to earlier decisions of
this Court in the case of State of Mysore vs.
20
8 9
S.V.Narayanappa , R.N. Nanjundappa vs. T. Thimmiah and
10
B.N. Nagarajan vs. State of Karnataka and said:
“ 53. One aspect needs to be clarified. There may be
cases where irregular appointments (not illegal
appointments) as explained in S.V. Narayanappa (AIR 1967
SC 1071) , R.N. Nanjundappa (1972) 1 SCC 409 and B.N.
Nagarajan (1979) 4 SCC 507 and referred to in para 15
above, of duly qualified persons in duly sanctioned vacant
posts might have been made and the employees have
continued to work for ten years or more but without the
intervention of orders of the courts or of tribunals. The
question of regularisation of the services of such employees
may have to be considered on merits in the light of the
principles settled by this Court in the cases abovereferred to
and in the light of this judgment. In that context, the Union of
India, the State Governments and their instrumentalities
should take steps to regularise as a one-time measure, the
services of such irregularly appointed, who have worked for
ten years or more in duly sanctioned posts but not under
cover of orders of the courts or of tribunals and should
further ensure that regular recruitments are undertaken to fill
those vacant sanctioned posts that require to be filled up, in
cases where temporary employees or daily wagers are being
now employed. The process must be set in motion within six
months from this date. We also clarify that regularisation, if
any already made, but not sub judice, need not be reopened
based on this judgment, but there should be no further
bypassing of the constitutional requirement and regularising
or making permanent, those not duly appointed as per the
constitutional scheme.”
26. The question that arises for consideration is: have
the provisions of MRTU & PULP Act denuded of the statutory
1
status by the Constitution Bench decision in Umadevi . In our
judgment, it is not. The purpose and object of MRTU & PULP
8
AIR 1967 SC 1071
9
(1972) 1 SCC 409
10
(1979) 4 SCC 507
21
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
22
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
1
not at all under consideration in the case of Umadevi . 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
1
Umadevi . 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
7
Wage Employees Assn. arising out of industrial adjudication
1
has been considered in Umadevi and that decision has been
held to be not laying down the correct law but a careful and
23
1
complete reading of decision in Umadevi 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
1
status of permanency have been passed. Umadevi 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
1
regularly in terms of constitutional scheme. Umadevi 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
24
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.
27. There cannot be any quarrel to the proposition that
courts cannot direct creation of posts. In Mahatma Phule
Agricultural University and Others vs. Nasik Zilla Sheth Kamgar
11
Union and Others , this Court held:
"12. Mrs Jaising, in support of Civil Appeals Nos. 4461-
70 and 4457-60 [arising out of SLPs (C) Nos. 418-21 of 1999
and SLPs (C) Nos. 9023-32 of 1998] submitted that the
workmen were entitled to be made permanent. She however
fairly conceded that there were no sanctioned posts
available to absorb all the workmen. In view of the law laid
down by this Court the status of permanency cannot be
granted when there are no posts. She however submitted
that this Court should direct the Universities and the State
Governments to frame a scheme by which, over a course of
time, posts are created and the workmen employed on
permanent basis. It was however fairly pointed out to the
Court that many of these workmen have died and that the
Universities have by now retrenched most of these
workmen. In this view of the matter no useful purpose would
be served in undergoing any such exercise.
13. To be seen that, in the impugned judgment, the High
Court notes that, as per the law laid down by this Court,
status of permanency could not be granted. In spite of this
the High Court indirectly does what it could not do directly.
The High Court, without granting the status of permanency,
grants wages and other benefits applicable to permanent
employees on the specious reasoning that inaction on the
part of the Government in not creating posts amounted to
unfair labour practice under Item 6 of Schedule IV of the
MRTU & PULP Act. In so doing the High Court erroneously
11
(2001) 7 SCC 346
25
ignores the fact that approximately 2000 workmen had not
even made a claim for permanency before it. Their claim for
permanency had been rejected by the award dated 20-2-
1985. These workmen were only seeking quantification of
amounts as per this award. The challenge, before the High
Court, was only to the quantification of the amounts. Yet by
this sweeping order the High Court grants, even to these
workmen, the wages and benefits payable to other
permanent workmen.
14. Further, Item 6 of Schedule IV of the MRTU & PULP
Act reads as follows:
“6. To employ employees as ‘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.”
The complaint was against the Universities. The High Court
notes that as there were no posts the employees could not
be made permanent. Once it comes to the conclusion that
for lack of posts the employees could not be made
permanent, how could it then go on to hold that they were
continued as “badlis”, casuals or temporaries with the object
of depriving them of the status and privileges of permanent
employees? To be noted that the complaint was not against
the State Government. The complaint was against the
Universities. The inaction on the part of the State
Government to create posts would not mean that an unfair
labour practice had been committed by the Universities. The
reasoning given by the High Court to conclude that the case
was squarely covered by Item 6 of Schedule IV of the MRTU
& PULP Act cannot be sustained at all and the impugned
judgment has to be and is set aside. It is however clarified
that the High Court was right in concluding that, as per the
law laid down by this Court, status of permanency could not
be granted. Thus all orders wherein permanency has been
granted (except award dated 1-4-1985 in IT No. 27 of 1984)
also stand set aside.”
28. In the case of State of Maharashtra and Another
12
vs. R.S.Bhonde and Ors. , this Court relied upon earlier
judgment in the case of Mahatma Phule Agricultural University
12
(2005) 6 SCC 751
26
and reiterated the legal position thus:
“. Additionally, as observed by this Court in Mahatma Phule
Agricultural University v. Nasik Zilla Sheth Kamgar Union (2001)
7 SCC 346 the status of permanency cannot be granted when
there is no post. Again in Gram Sevak Prashikshan Kendra v.
Workmen (2001) 7 SCC 356 , it was held that mere continuance
every year of seasonal work obviously during the period when
the work was available does not constitute a permanent status
unless there exists post and regularisation is done.”
29. In the case of Indian Drugs & Pharmaceuticals
13
Ltd. vs. Workmen, Indian Drugs & Pharmaceuticals Ltd. , this
Court stated that courts cannot create a post where none
exists. In paragraph 37 of the report, this Court held:
“37. C reation and abolition of posts and regularisation are
purely executive functions vide P.U. Joshi v. Accountant General
(2003) 2 SCC 632. Hence, the court cannot create a post where
none exists. Also, we cannot issue any direction to absorb the
respondents or continue them in service, or pay them salaries of
regular employees, as these are purely executive functions. This
Court cannot arrogate to itself the powers of the executive or
legislature. There is broad separation of powers under the
Constitution, and the judiciary, too, must know its limits.”
30. In yet another case of Divisional Manager, Aravali
14
Golf Club and Another vs. Chander Hass and Another , this
13
(2007) 1 SCC 408
14
(2008) 1 SCC 683
27
Court said:
“15. The court cannot direct the creation of posts.
Creation and sanction of posts is a prerogative of the
executive or legislative authorities and the court cannot
arrogate to itself this purely executive or legislative
function, and direct creation of posts in any organisation.
This Court has time and again pointed out that the
creation of a post is an executive or legislative function
and it involves economic factors. Hence the courts
cannot take upon themselves the power of creation of a
post. Therefore, the directions given by the High Court
and the first appellate court to create the posts of tractor
driver and regularise the services of the respondents
against the said posts cannot be sustained and are
hereby set aside.”
31. Thus, there is no doubt that creation of posts is not
within the domain of judicial functions which obviously pertains
to the executive. It is also true that the status of permanency
cannot be granted by the Court where no such posts exist and
that executive functions and powers with regard to the creation
of posts cannot be arrogated by the Courts. However, the
factual matrix of the present controversy reveals that it was an
admitted position before the Industrial Court, Thane in
Complaint (ULP) No. 442/92 that the posts of cleaners in the
Corporation were in existence. The Industrial Court, Thane
recorded the following findings:
“9. Undisputedly, there are posts of cleaners in the
Corporation and not only these employees but the other
28
regularly appointed are working under the supervision and
control of the Corporation’s officers and Supervisors. The
Respondent Corporation has filed the statement showing
attendance of these Complainants in different depots showing
the day from which the work was allotted during the period
from 1992 to 1994. It is at Ex.C-9. This document is already
referred above. Therefore, the case of the complainants
that they are working in different depots is not a disputed
one. It is for the corporation to point out how many posts are
in the depot and how many persons are working in those
depots. Therefore, it cannot be said that for want of any
material on record that all these persons cannot be absorbed
in permanent posts. When there is deliberate attempt on the
part of the corporation not to employ them as regular
employees in the posts of cleaners for years together the
intention is very clear and in my opinion, this is the fit case
where the declaration under item 6 of Schedule V of the Act
will have to be given.”
32. The Industrial Court at Bombay in its order dated
May 2, 1995 while dealing with Complaint (ULP) Nos. 542 and
574/1991 on the basis of the evidence on record recorded the
findings thus:
“…….the employees covered by the complainants
are doing the job of washing, cleaning buses and, the work was
done round the clock. The work at washing, cleaning buses was
th
previously done by the helpers, who in the 4 category, and their
salaries grade begins from Rs. 875-12-1055-15-1145, whereas
th
the grade of Swachak, which is also in 4 category begins from
750-12-970-14-940. These categories are mentioned in
Maharashtra S.T. Samachar. It is the publication of the
M.S.R.T.C. and, the said document is filed in comp. (ULP) No.
574/91 along with complaint below Ex. U-4. Schedule-A gives
salary grades of various employees. The category of Swachhak
is at Sr. No. 1, and category of helper is at Sr. No. 15. Therefore,
it is very clear that, the rest of Swachhak was already mentioned
th
in the 4 category of the schedule. Witness examined by the
Corporation Mr. Deekar has admitted in his evidence that,
“examination” previously job which was being done by the helper
is now being done by the employees covered by these
29
complainants. “No further admits that, “ the helpers who were
doing the job previously were the regular and permanent
employees of the respondent Corporation work round the clock.
He also admits that, since the depots of the respondent
corporation work round the clock, these Swachhaks are also
required to work around the clock, and therefore, they are divided
in three shifts. He admits that, even as on today, there are some
employees in the Respondent Corporation that, they are
designated as Swachhak, and they are getting such higher salary
than the employees covered by the complaint. The employees
covered by the complaints were previously paid Rs. 10.50 per
day, and the same mode of payment was converted in the piece
rate basis. “The witness further admitted that, cleanliness of the
bus is incidental and part and parcel of plying, and the buses
have to run regularly.” It is further admitted position that, these
employees have been in the employment of the Respondent for
last several years, and they have been paid much less salary
when so called regular employees working as Swachhak. They
have also been deprived the benefits of settlements and other
facilities. The Respondents claim that they were appointed as
time gap arrangement, the Respondents have failed to show as
to how the helpers legitimately did not do the job of Swachhak.
Therefore, those employees were appointed on piece rate basis.
Presuming that, it was the right of the respondents to appoint the
Swachhak on piece rate basis, then also, it is admitted position
that, they were asked to do the same work, which Swachhak
employed by the Corporation were doing. Therefore, point at
discrimination has been made very much clear by the
complainants. In respect of dates of appointment and, number of
years of service, the witness of the complainants has stated
firmly that, they are working since long time, and then the fact
regarding appointment was never disputed by the Corporation.
The Respondent has admitted record regarding the
appointments of employees but, they have neither produced any
record, nor contradicted the statements made by the witness of
the complainants except giving some suggestion that, they have
not worked on regular basis. Therefore, evidence of the witness
remained unchallenged. Hence it is very much clear that, the
complainant has established that, the employees covered by the
complaints are doing the job of regular nature, and their work
continued round the clock, which were divided; in each shift
being 8 hours. It is also already proved that, the employees
covered under this complaint doing identical job as that of regular
Swachhak appointed by the Respondent Corporation, and these
Swachhak got much higher salary and other benefits than, the
employees covered by this complaint.”
30
33. In view of the findings recorded by the Industrial
Court, Thane as well as Industrial Court, Bombay, it can be
safely held that the posts of cleaners exist in the Corporation.
No factual foundation has been laid by the Corporation that the
posts of cleaners do not exist in the Corporation, rather the
evidence on record reflects otherwise.
34. The question, now, remains to be seen is whether
the recruitment of these workers is in conformity with Standing
Order 503 and, if not, what is its effect? No doubt, Standing
Order 503 prescribes the procedure for recruitment of Class IV
employees of the Corporation which is to the effect that such
posts shall be filled up after receiving the recommendations
from the Service Selection Board and this exercise does not
seem to have been done but Standing Orders cannot be
elevated to the statutory rules. These are not statutory in
nature. We find merit in the submission of Mr.Shekhar
Naphade, learned Senior Counsel that Standing Orders are
contractual in nature and do not have a statutory force and
breach of Standing Orders by the Corporation is itself an unfair
31
labour practice. The concerned employees having been
exploited by the Corporation for years together by engaging
them on piece rate basis, it is too late in the day for them to
urge that procedure laid down in Standing Order No. 503
having not been followed, these employees could not be given
status and principles of permanency. The argument of the
Corporation, if accepted, would tantamount to putting premium
on their unlawful act of engaging in unfair labour practice. It
was strenuously urged by the learned Senior Counsel for the
Corporation that industrial court having found that the
Corporation indulged in unfair labour practice in employing the
complainants as casuals on piece rate basis, the only direction
that could have been given to the Corporation was to cease
and desist from indulging into such unfair labour practice and
no direction of according permanency to these employees
could have been given. We are afraid, the argument ignores
and overlooks the specific power given to the Industrial/Labour
Court under Section 30(1)(b) to take affirmative action against
the erring employer which as noticed above is of wide
amplitude and comprehends within its fold a direction to the
32
employer to accord permanency to the employees affected by
such unfair labour practice.
35. Seen thus, the direction of giving status, wages and all
other benefits of permanency applicable to the post of cleaners
to the complainants, in the facts and circumstances, is justified
and warrants no interference. Question (one) is answered
accordingly.
re. : question (two)
36. A recognised union is a union which has been issued a
certificate of recognition under Chapter III of MRTU & PULP
Act. In terms of Section 2, no employee in an undertaking to
which the provisions of Industrial Disputes Act apply, shall be
allowed to appear or act or be represented in the proceedings
relating to unfair labour practices specified in items 2 and 6 of
Schedule IV except through the recognized union. Schedule IV
deals with general unfair labour practices on the part of the
employers. Item 6 covers unfair labour practice on the part of
the employer to employ badlis, casual or temporaries and to
continue them as such for years with the object of depriving
them of the status and privileges of permanent employees.
33
Section 28 is a procedural provision with regard to complaints
relating to unfair labour practices.
37. In the case of Shramik Uttakarsh Sabha vs.
15
Raymond Woollen Mills Ltd. and Others. this Court after
extensively surveying the provisions of MRTU & PULP Act and
on consideration of the judgments in Girja Shankar Kashi Ram
16
vs. Gujarat Spg. & Wvg. Co. Ltd.19 , Santuram Khudai vs.
17
Kimatrai Printers & Processors(P) Ltd, Workers’ Union V.
18
Balmer Lawrie and Co. Ltd. and Crescent Dyes and
19
Chemicals Ltd. vs. Ram Naresh Tripathi held thus:
“14. Section 21 of the MRTU & PULP Act, upon which
emphasis was laid on behalf of the appellants, states that no
employee in an undertaking to which the provisions of the
Industrial Disputes Act applies shall be allowed to appear or act
or be allowed to be represented in any proceeding relating to the
unfair labour practices specified in Items 2 and 6 of Schedule IV
except through the recognised union. It is important to note that
the reference is to employees in an undertaking to which the
Industrial Disputes Act applies and not to employees in an
undertaking to which the BIR Act applies. Apart therefrom, the
section permits an employee, not a union other than the
recognised union, to so appear. The provisions of Section 21 do
not, therefore, lead to the conclusion that a union other than a
representative union can appear in proceedings relating to all
unfair labour practices other than those specified in Items 2 and
6 of Schedule IV.”
15
(1995) 3 SCC 78
16
1962 Supp (2) SCR 890
17
(1978) 1 SCC 162
18
1984 Supp. SCC 663
19
(1993) 2 SCC 115
34
38. It is important to bear in mind that the concept of
recognition of unions has been introduced in MRTU & PULP
Act with a view to facilitate the collective bargaining for the
employees in certain undertakings. In respect of unfair labour
practices specified in items 2 & 6 of the Schedule IV, it is
provided in Section 21 that in respect of such items no
employee in an undertaking to which the provisions of
Industrial disputes Act applies shall be allowed to appear or act
or be allowed to be represented except through the
recognized union. The expression, “ to appear or act or
allowed to be represented” in Section 21(1) is of wide import,
comprehensive and embraces within itself the act of filing
complaint, leading evidence, examination and cross
examination of witnesses and audience before the Industrial
Court/Labour Court. There is nothing to control the expression,
“ to appear or to act or allowed to be represented” as used in
Section 21(1). It is referable to all kinds of acts by the
recognized union in the proceedings relating to unfair labour
practices specified in items 2 and 6 of the Schedule IV.
Section 21(1) excludes individual employees, unrecognized
35
union or any other form of association or union other than
recognized union under MRTU & PULP Act to appear or act or
be represented in the proceedings relating to unfair labour
practices specified in items 2 and 6 of Schedule IV. It is only
recognized union which has been empowered to espouse the
cause relating to unfair labour practices specified in items 2 and
6 of Schedule IV in the proceedings before Industrial/Labour
Court. Section 21(1) is a special provision in respect of
appearance, act and representation in respect of the complaints
filed under Section 28 relating to unfair labour practices
specified in items 2 and 6 of Schedule IV. Section 21, thus,
creates a bar on unrecognized union from acting, appearing or
representing any employee(s) in a proceeding relating to unfair
labour practices under items 2 and 6 of Schedule IV. The right
to represent the employee(s) in matters relating to unfair labour
practices in items 2 and 6 of Schedule IV of the Act under
Section 21 is exclusively available to the recognised union and
none else.
39. Learned Counsel for the unrecognized union,
however, relied upon a decision of the Bombay High Court in
36
the case of Petroleum Employees Union vs. Bharat Petroleum
20
Corporation Ltd. and Another .
40. In the case of Petroleum Employees Union, the
learned Single Judge (S.P.Bharucha, J. as his Lordship then
was) interpreted Section 21 in the following manner:
The correct interpretation to place upon section
“5.
21 is this: Where there is a recognised union only that
recognized union can be allowed, on behalf of an employee,
to appear or; act or be represented in proceedings relating to
unfair labour practices specified in Items 2 and 6 of the
fourth schedule. Where there is no recognized union an
employee may himself appear or act in any proceeding
relating to such unfair labour practice. This does not mean
that an unrecognized union cannot; act or appear in a
proceeding relating to such unfair labour practice. It can
represent an employee or the employee may appear himself
if he so chooses.”
41. The interpretation of Section 21 in Petroleum
Employees Union is not a correct interpretation and, with
respect, we are unable to find ourselves in agreement with that
interpretation. As a matter of fact, the learned Judge (S.P.
Bharucha, J. as his Lordship then was) while adorning the
bench of this Court in the case of Raymonds Wool Mills Ltd.
took exactly diametrically opposite view with regard to
Interpretation of Section 21 that we have already noticed in the
earlier part of our judgment. We respectfully agree with the
20
1983 MJ 618
37
view of this Court in Raymonds Wool Mills Ltd. We hold, as it
must be, that the unrecognized union is not competent to file a
complaint in so far as unfair labour practices under Item nos. 2
and 6 of Schedule IV of MRTU & PULP Act is concerned.
42. In what we have held above, the affected
employees in the two complaints filed by the unrecognized
union may not be entitled to the benefits of permanency to the
post of cleaners as these complaints are not maintainable. But
in the present fact situation, in our judgment, it would be
travesty of justice if at this stage because of non-maintainability
of the complaints at the instance of the unrecognized union,
these employees are deprived of the benefits of status, wages
and permanency applicable to the post of cleaners when
similarly situated employees who had filed the complaint
individually would get benefits of permanency applicable to the
post of cleaners. In view of this exceptional situation, for doing
complete justice between the parties, in exercise of our plenary
power under Article 142 of the Constitution of India, although
we have answered question(two) in favour of the Corporation
that the two complaints filed by Casteribe Rajya P.
38
Kararmchari Sanghthans are not maintainable in so far as
unfair labour practices under item 6 of Schedule IV is
concerned yet in the facts and circumstances of the case, we
direct that the employees in these two complaints would also
get the status, wages and other benefits of permanency
applicable to the post of cleaners as the employees in
complaint (ULP) No. 442/92.
43. In what we have discussed above, all these five
appeals must fail and are dismissed with no order as to costs.
……………………J
(Tarun Chatterjee)
…….……………..J
(R. M. Lodha)
New Delhi
August 28, 2009.
39