Z.A. Haq, J.@mdashHeard the learned Advocates for the petitioners/employer, the learned Advocates for the respondents/employees and the learned Assistant Government Pleaders in respective petitions. As the issues involved in these petitions are identical and they are filed challenging the same impugned order, these writ petitions are disposed of by common judgment.
2. These writ petitions are filed by the Rashtrasant Tukadoji Maharaj Nagpur University challenging the order passed by the Industrial Court allowing the complaints filed by the respondents/employees under section 28 read with Items 5, 6, 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short M.R.T.U. and P.U.L.P. Act") and directing the petitioners to absorb the respondents/employees on the posts held by them and to grant payscales applicable to the posts on the date on which they completed one year''s service. In some of the petitions, the Vice Chancellor of the University and in some petitions the Incharge of Inter Institutional Computer Center (I.I.C.C.) is also the petitioner along with the University.
3. The petitioner/University is the Statutory University, affiliated to the University Grants Commission, New Delhi. In 1982, the University Grants Commission sanctioned the scheme of Inter Institutional Computer Center for the petitioner No. 1/University. The scheme was approved by the State Government on the condition that the State Government would not provide any financial assistance for implementation of the scheme. According to the scheme, the University Grants Commission was to provide financial assistance for maintenance of the Computer Center, for the period of 5 years. The Executive Council of the University accepted the proposal for establishment of the Inter Institutional Computer Center and it came to be established in 1987. The University Grants Commission provided the funds for maintenance of the Computer Center for 5 years from its establishment i.e. till 1992. From 1992 1993, the University has borne the expenditure for maintenance of the Computer Center. The respondents/employees are working in this Computer Center. The respondents/employees were appointed in 1992 on consolidated salary of Rs. 1,000/-per month, which was increased to Rs. 2,000/- per month from 5th July, 1994 and then increased to Rs. 4,800/- per month from 21st September, 1996 and then increased to Rs. 7,000/- per month from 1st January, 2000. According to the University, expenditure for maintaining the Computer Center and payments of the salary of the employees working at the Computer Center are made from the General Funds of the University from 1992, 1993, after the University Grants Commission stopped giving the financial assistance to it.
4. The respondents/employees filed complaints before the Labour Court contending that they were working at the Computer Center since 1992 (details are given in the complaints filed by the respective respondents/employees), after they were appointed by the respondent No. 2 Vice Chancellor, who is the Competent Authority to make the appointment. The respondents/employees contended that they were covered by the definition "workman" under the Industrial Disputes Act, 1947 and they were entitled for the protection of the provisions of the said Act. The respondents/employees averred that the petitioners had appointed Munshi Commission, Satpute Commission and T.M. Karde Commission to examine the issue of regularization of the respondents/employees and these Commissions submitted reports recommending regularization of the respondents/employees, however, the recommendations of the above Commissions are not implemented. The respondents/employees averred that the Management Council of the petitioner No. 1/University also recommended the regularization of the respondents/employees and these recommendations of the Management Council amounted to agreement and the failure to implement the agreement amounted to unfair labour practice as contemplated by Item 9 of Schedule IV of the M.R.T.U. and P.U.L.P. Act.
The respondents/employees further relied on the report of the Committee consisting of Dr. T.M. Karde, Shri B.Y. Aher, Dr. A.V. Kayande and Dr. R.M. Ingle. The respondents/employees alleged that Shri Sant Gadgebaba Amravati University had also established the Computer Center. The respondents/employees contended that the juniors to some of the respondents/employees were conferred with permanency and regularization.
The respondents/employees contended that the Model Standing Orders framed under the Industrial Employment (Standing Orders) Act, 1946 (for short "Act of 1946") were applicable and as the respondents/employees had been in continuous employment for more than 240 days in the calendar year, they were entitled for regularization and permanency.
The respondents/employees prayed for declaration that the petitioners/employer indulged in unfair labour practice under Items 5,6,9 and 10 of Schedule IV of the M.R.T.U. and P.U.L.P. Act. The respondents/employees sought directions against the petitioners/employer to desist from committing the unfair labour practice and to regularize the respondents/employees on the posts they were holding. The respondents/employees also prayed for consequential benefits.
5. The petitioners filed written statement opposing the claim of the respondents/employees. The petitioners denied that the respondents fall in the category of "workman" as defined in section 2(s) of the Industrial Disputes Act, 1947. The petitioners contended that the respondents/employees were not selected and appointed in permanent posts and that the posts in which the respondents/employees are working are not sanctioned by the State Government. The petitioners stated that the Act of 1946 did not apply and the service conditions of the respondents were governed by the Maharashtra Universities Act, 1994 and the Statues framed by the petitioner No. 1/University. The respondents/employer objected to the maintainability of the complaints filed by the respondents/employees on the ground that they had remedy by filing appeal under section 59 of the Maharashtra Universities Act, 1994 before the University and College Tribunal. The petitioners stated that they have not indulged in unfair labour practice as contemplated by Item 9 of Schedule IV of the M.R.T.U. and P.U.L.P. Act and prayed that the complaints be dismissed.
6. The Industrial Court by the order dated 24th January, 2008 had allowed the complaints and granted relief to the respondents/employees. The order passed by the Industrial Court was challenged by the petitioners before this Court in Writ Petition No. 2840/2008 and other connected petitions.
7. This Court by the judgment dated 8th December, 2010 recorded that the petitioners/employer had raised specific plea that the Model Standing Orders are not applicable and the service conditions of the respondents/employees are governed by the provisions of the Standard Code framed by the State Government exercising powers under section 8 of the Maharashtra Universities Act, 1994 and this submission of the petitioners/employer was not considered by the Industrial Court. This Court observed that the Industrial Court had not recorded finding on the point as to whether the permanent posts, sanctioned by the State Government, existed. This Court recorded that the Industrial Court allowed the complaints on the basis that the respondents/employees had been in continuous employment for more than 240 days, without adverting to the issue as to whether the Model Standing Orders are applicable. his Court allowed the writ petitions filed by the petitioners/employer, set aside the order passed by the Industrial Court and remanded the matters to the Industrial Court for deciding the complaints afresh in the light of the observations made in the judgment. After remand, the Industrial Court has allowed the complaints by the impugned order and has granted reliefs in favour of the respondents/employees. The petitioners/employer being aggrieved by the order passed by the Industrial Court, have filed these writ petitions.
8. Shri P.B. Patil, learned Advocate for the petitioners/employer has submitted that as per section 8(1)(a) of the Maharashtra Universities Act, 1994 the petitioner No. 1/University cannot create new posts of teachers, officers or other employees without prior approval of the State Government. It is submitted that as per section 8(1)(b) of the Maharashtra Universities Act, 1994 the petitioner No. 1/University cannot revise the pay, allowances, postretirement benefits and other benefits of its teachers, officers and other employees. It is submitted that though the State Government permitted the petitioners to establish the Computer Center, the State Government has not granted approval to the posts in which the respondents/employees are working and the State Government has not been providing any financial assistance in the matter. It is submitted that the respondents/employees are appointed on temporary basis, without issuing any advertisements and without following the procedure for selection. The learned Advocate has pointed out the copies of the appointment orders given to the respondents/employees and has submitted that the respondents/employees accepted the appointments on temporary basis and now they cannot seek regularization.
9. Shri P.B. Patil, learned Advocate has submitted that the petitioner No. 1/University cannot be said to be an "industrial establishment" as defined under section 2(e) of the Act of 1946 and, therefore, the Model Standing Orders are not applicable. It is submitted that the complaints filed by the respondents/employees were not maintainable and the order passed by the Industrial Court is without jurisdiction. In support of the submission, reliance is placed on the following judgments :
"(i) Judgment given by the Allahabad High Court in the case of
(ii) Judgment given by the Division Bench of Delhi High Court in the case of
10. It is submitted that considering the facts of the case, the petitioners/employer tried to find out solution and accordingly the Committees were appointed. The interim report given by the sub-committee consisting of Dr. T.M. Karde, Dr. V.P. Mishra, Dr. A.S. Satpute and Shri W.Z. Kalode on 11th April, 2000 has been pointed out by which it was recommended that the working staff of the Computer Center should be regularized after following the process of advertisement of posts and selection on the basis of qualifications prescribed, without further delay. It is submitted that in the circumstances, the claim made by the respondents/employees for regularization and conferral of permanency cannot be granted. It is submitted that the respondents/employees cannot be granted regularization and permanency as the posts in which they are working are not sanctioned by the State Government and the order passed by the Industrial Court overlooking this aspect, cannot be sustained. In support of this submission, reliance is placed on the judgment given by the Division Bench of this Court in the case of
11. Shri S.S. Ghate, learned Advocate for the respondents/employees has submitted that the various Committees appointed by the petitioners have recommended absorption and regularization of the respondents/employees and there is no justification on the part of the petitioners/employer in not granting regularization and permanency to the respondents/employees.
It is submitted that the contentions of the petitioners that the appointments of the respondents/employees were not made after following due procedure, cannot be considered by this Court in the writ petitions, as these contentions were not raised before the Industrial Court. It is further submitted that the argument that the University cannot be said to be an "industrial establishment" as contemplated by the Act of 1946 also cannot be considered by this Court, as this issue was not properly raised before the Industrial Court and the issue is required to be decided by the Industrial Court after considering the relevant factual aspects. In support of the submission, the learned Advocate has relied on the following judgments :
(i) Judgment given by this Court in the case of
(ii) Judgment given by the Hon''ble Supreme Court in the case of
12. Shri Ghate, learned Advocate has relied on the judgment given by the Full Bench of this Court in the case of
13. It is submitted that the respondents/employees had been in the continuous employment of the petitioner for more than 20 years and had been doing the work of regular nature. According to the petitioners/employer, respondents/employees are not regularized only because posts are not approved by the State Government. It is further submitted that the employees, who are appointed to work at the Computer Centers in the other Universities, are regularized and conferred with permanency and are paid on par with the regular employees. It is argued that the petitioners are discriminating the respondents/employees and the action of the petitioners is violative of the guarantee enshrined under Article 14 of the Constitution of India. It is argued that the respondents/employees are entitled to be treated equally with other similarly situated employees and are entitled for the benefits of regularization and permanency. In support of this submission, reliance is placed on the judgment given by this Court in the case of
14. Shri Ghate, learned Advocate for has relied on the provisions of section 2(4) and section 38-B of the Bombay Shops and Establishments Act, 1948 and has submitted that the petitioner No. 1/University is having more than 50 employees on its establishment and, therefore, the provisions of the Act of 1946 are applicable and the Model Standing Orders will apply mutatis mutandis and the respondents/employees having worked continuously for more than 240 days for several years, are entitled for regularization and conferral of permanency in view of Clause 4-C of the Model Standing Orders. The learned Advocate has pointed out from the paragraph Nos. 23 to 27 of the impugned order, the findings recorded by the Industrial Court that the Model Standing Orders framed under the Act of 1946 are applicable. It is submitted that the findings recorded by the Industrial Court are proper and is in consonance with the legal position and does not require any interference. It is prayed that the petitions be dismissed with costs.
15. I have examined the documents placed on the record of the writ petitions and after considering the submissions made by the learned Advocates for the respective parties, I find that the substantial issues which arise for consideration are:
"(i) Whether the petitioner No. 1/University can be said to be an "industrial establishment" as contemplated by section 2(e) of the Act of 1946?
(ii) Whether the respondents/employees are entitled for regularization of their services and conferral of permanency, though there is nothing on the record to show that the posts in which the respondents/employees are working are approved and that the respondents/employees are appointed after following the procedure?"
16. Section 2(e) of the Act of 1946 reads as follows :
"2(e) "industrial establishment" means-
(i) an industrial establishment as defined in Clause (ii) of section 2 of the Payment of Wages Act, 1936 (4 of 1936), or
[(ii) a factory as defined in Clause (m) of section 2
of the Factories Act, 1948 (63 of 1948) or]
(iii) a railway as defined in Clause (iv) of section 2 of the Indian Railways Act, 1890 (9 of 1890), or
(iv) [***]"
Section 2(h) of the Payment of Wages Act, 1936 reads as follows :
2 (ii) ("industrial or other establishments") means any-
[(a) tramway service, or motor transport service engaged in carrying passengers or goods or both by road for hire or reward;
(aa) air transport service other than such service belonging to or exclusively employed in the military, naval or air forces of the Union or the Civil Aviation Department of the Government of India];
(b) dock, wharf or jetty;
[(c) inland vessel, mechanically propelled;]
(d) mine, quarry or oilfield;
(e) plantation;
(f) workshop or other establishment in which articles are produced, adapted or manufactured, with a view to their use, transport or sale;
[(g) establishment in which any work relating to the construction, development or maintenance of buildings, roads, bridges or canals, or relating to operations connected with navigation, irrigation or to the supply of water, or relating to the generation, transmission and distribution of electricity or any other form of power is being carried on;]"
It is not the case of the respondents/employees that the petitioner No. 1/University falls in any of the categories enunciated by Clauses (a), (aa), (b), (c), (d), (e), (f) and (g) of section 2(h) of the Payment of Wages Act, 1936. Therefore, the petitioner No. 1/university will not be covered by Clause (i) of section 2(e) of the Act of 1946.
Section 2(m) of the Factories Act, 1948 reads as follows :
"2(m) "factory'''' means any premises including the precincts thereof-
(i) whereon ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on, or
(ii) whereon twenty or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power, or is ordinarily so carried on, but does not include a mine subject to the operation of [the Mines Act, 1952 (35 of 1952)], or [a mobile unit belonging to the armed forces of the Union, railway running shed or a hotel, restaurant or eating place] [or a poly house or green house engaged in the activity of floriculture or pomology or High Value Crops]
[Explanation [I].--For computing the number of workers for the purposes of this Clause all the workers in [different groups and relays] in a day shall be taken into account;]
[Explanation II-For the purposes of this Clause, the mere fact that an Electronic Data Processing Unit or a Computer Unit is installed in any premises or part thereof, shall not be construed to make it a factory of no manufacturing process is being carried on in such premises or part thereof;]
[Explanation III--For the purpose of this Clause, the term "High Value Crops" shall mean and include,
(i) Plantation of fruits, flowers and vegetables in a green house or shednet house;
(ii) Plantation of exotic fruits, flowers and vegetables;
(iii) Plantation of crops by use of biotechnology;
(iv) Plantation of medicinal and aromatic plants and processing industry;
(v) Production of mushroom and processing industry;
(vi) Production of fruits by microdrip irrigation by use of plastic and mulching;
(vii) Nurseries and processing industry where vegetables are produced in a green house;
(viii) Nursery of ornamental plants;]"
The respondents/employees have neither pleaded nor have established that the petitioner No. 1/University is covered within the meaning of "factory" as defined in section 2(m) of the Factories Act, 1948. It cannot be said that the petitioner No. 1/University is an "industrial establishment" as contemplated by section 2(e)(ii) of the Act of 1946.
The petitioner No. 1/University cannot be said to be "railway" as defined in section 2(iv) of the Indian Railways Act, 1890. Therefore, the petitioner No. 1/University cannot be said to be an "industrial establishment" as contemplated by section 2(e) of the Act of 1946. I adopt the reasonings given in the judgment in the case of Hindi Sahitya Sammellan Prayag v. Presiding Officer, Labour Court, Allahabad and in the judgment given in the case of Indraprastha Medical Corporation Ltd. v. NCT of Delhi and others (both cited supra) and conclude that the petitioner No. 1/university cannot be said to be an "industrial establishment" as contemplated by section 2(e) of the Act of 1946.
17. The submissions made on behalf of the respondents/employees that the petitioner No. 1/University is an "industrial establishment" and "industry" and, therefore, the Act of 1946 is applicable, cannot be accepted. The reliance placed on the provisions of section 2(ii) of the Payment of Wages Act, 1936 to urge that the petitioner No. 1/University is an "industrial establishment" as contemplated by section 2(e) of the Act of 1946, is misplaced as the petitioner No. 1/University does not fall in any of the categories enunciated in the Clauses (a), (aa), (b), (c), (d), (e), (f) and (g) of section 2(ii) of the Payment of Wages Act, 1936.
Similarly, the submissions made on behalf of the respondents/employees relying on judgment given by the Full Bench of this Court in the case of Gangadhar Balgopal Nair v. Voltas Limited & anr. (cited supra) is misdirected. The Full Bench dealt with the following issue:
"Whether Model Standing Order 4-Cas contained in the Schedule I to the Bombay Industrial Employment (Standing Order) Rules, 1959 ipso facto applies to a temporary workman in an Industrial Establishment without its incorporation into a preexisting certified standing order?"
The Full Bench was not considering the issue as to whether the employer was an "industrial establishment" as contemplated by section 2(e) of the Act of 1946.
18. The arguments made on behalf of the respondents/employees relying on the provisions of section 2(iv) and section 38-B of the Bombay Shops and Establishments Act, 1948 are also misdirected. Section 2(iv) of the Bombay Shops and Establishments Act, 1948 defines a "commercial establishment" and this definition cannot be read into the definition of "industrial establishment" under section 2(e) of the Act of 1946. Section 38-B of the Bombay Shops and Establishments Act, 1948 lays down that the provisions of the Act of 1946 (in its application to the State of Maharashtra) and the Rules and Standing Orders (including Model Standing Orders) made under the Act of 1946 will apply mutatis mutandis to all establishments wherein 50 or more employees are employed and to which the Bombay Shops and Establishments Act, 1948 applies, as if they were "industrial establishments" within the meaning of Act of 1946.
"Establishment" as defined in section 2(8) of the Bombay Shops and Establishments Act, 1948 reads as follows:
2(8) "Establishment" means a shop, commercial establishment, residential hotel, restaurant, eating house, theater, or other place of public amusement or entertainment to which this Act applies and includes such other establishment as the [State] Government may, by notification in the Official Gazette, declare to be an establishment for the purposes of this Act."
The respondents/employees have not been able to establish that the petitioner No. 1/University can be said to be a "Shop" (as defined by section 2(27) , "Commercial Establishment" (as defined by section 2(4) , "Restaurant or eating house" (as defined by section 2(25) , "Theater" (as defined in section 2(29) or "other place of a public amusement or entertainment" to which Bombay Shops and Establishments Act, 1948 applies. The respondents/employees have not placed any material on the record to show that the State Government has issued notification in the official gazette declaring that the petitioner No. 1/University to be an "establishment" for the purposes of the Bombay Shops and Establishments Act, 1948. In view of the above, the submissions made on behalf of the respondents/employees, relying on the provisions of section 2(4) and section 38-B of the Bombay Shops and Establishments Act, 1948, that the petitioner No. 1/University is an "industrial establishment", cannot be accepted.
19. The submission made on behalf of the respondents/employees that the petitioners cannot be permitted to raise the issue that the petitioner No. 1/University cannot be said to be an "industrial establishment", is also misconceived. The submission that the petitioners have not raised this point before the Industrial Court is contrary to the facts on the record. In paragraph No. 11 of the written statement filed before the Industrial Court, the petitioners pleaded that the certified Standing Orders and the Model Standing Orders are not applicable. The petitioners pleaded that they are not governed by the Maharashtra Universities Act, 1994 and the Statues framed by the petitioner No. 1/University. This Court while deciding the Writ Petition No. 2840/2008 and other connected matters recorded that the Industrial Court while deciding the complaints earlier, had not dealt with the issue raised by the petitioners that the Model Standing Orders are not applicable and the service conditions of the employees of the petitioner No. 1/University are governed by the provisions of the Standard Code framed by the State Government exercising powers under section 8 of the Maharashtra Universities Act, 1994. This Court recorded that the Industrial Court is required to decide as to whether the Model Standing Orders are applicable and then only the findings can be given as to whether the contentions of the respondents/employees about alleged unfair labour practice under Items 6 and 9 of Schedule IV of the M.R.T.U. and P.U.L.P. Act can be examined. This Court remanded the matter to the Industrial Court for deciding complaints after considering these issues. The challenge as raised on behalf of the respondents/employees in this regards is contrary to the facts on the record and, therefore, the judgments given in the case of Divisional Forest Officer, Gadchiroli v. Madhukar Ramaji Undirwade and another and in the case of Durgapur Casual Workers Union & ors. v. Food Corporation of India & ors. (both cited supra) do not assist the respondents/employees as in those cases the employer had not raised the plea before the Industrial Court, but in the present case, the plea has been raised before the Industrial Court and while remanding the matter this Court directed the Industrial Court to advert to the issue.
20. It is undisputed that the respondents/employees are appointed without there being any advertisements and without the interviews having been conducted. The respondents/employees have not been able to show on the record that their appointments are made properly, following the principles laid down under Article 14 of the Constitution of India enabling similarly situated persons to offer their candidature for the posts. The issue is settled by the judgment given by the Hon''ble Supreme Court in the case of Secretary,
21. In view of the above, I hold that the order passed by the Industrial Court is unsustainable and it has to be set aside. The complaints filed by the respondents/employees have to be dismissed. However, considering the fact that the respondents/employees had been in the employment for more than 20 years, the petitioners are directed to take steps as per the recommendations of the sub-committee consisting of Dr. T.M. Karde, Dr. V.P. Mishra, Dr. A.S. Satpute and Shri W.Z. Kalode in the interim report given by them on 11th April, 2000 recommending that the working staff of the Inter Institutional Computer Center should be regularized after following due process of advertisement of posts and selection, on the basis of the qualifications prescribed for the posts. Though the above referred Committee has recommended the regularization of the employees, after following the procedure, it will not be appropriate to direct the petitioner No. 1/University to regularize the respondents/employees after following the process of advertisement and selection, as the following of the process cannot be a formality. The petitioner/University shall take steps to advertise the posts and conduct selection process and while doing so, the petitioner No. 1/University shall consider the claim of the respondents/employees who have been working at the Inter Institutional Computer Centers since long, by giving relaxation in the age limit, if required. The steps should be taken by the petitioner No. 1/University within 6 months.
Writ petitions are allowed in the above terms.
In the circumstances, the parties to bear their own costs.
