Case Note & Summary
The Bombay High Court allowed a writ petition filed by City Industrial Development Corporation of Maharashtra Ltd. (CIDCO) challenging an order of the Industrial Court, Thane, dated 10.02.2020. The Industrial Court had declared that CIDCO engaged in unfair labour practices under Items 5, 6 and 9 of Schedule IV of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1971 (MRTU & PULP Act) and directed CIDCO to appoint the Respondent, Dinesh Suresh Bhoir, as a permanent employee with all permanency benefits. The Respondent was initially appointed as Assistant Law Officer on 22.09.2011 for six months on a contractual basis after a walk-in interview. His contract was renewed intermittently with breaks. He filed a complaint before the Industrial Court alleging unfair labour practices. The Industrial Court held that CIDCO's practice of employing the Respondent on a contractual basis for years without making him permanent amounted to unfair labour practices. CIDCO challenged this order. The High Court observed that the Respondent's appointment was purely contractual, with clear terms, and there was no evidence that the contract was a sham or that CIDCO had a permanent vacancy. The burden of proving unfair labour practice was on the Respondent, which he failed to discharge. The High Court held that the Industrial Court erred in directing permanent employment. The impugned order was quashed, and the writ petition was allowed. The interim application was disposed of.
Headnote
A) Industrial Law - Unfair Labour Practice - Contractual Employment - Items 5, 6, 9 of Schedule IV, MRTU & PULP Act, 1971 - The Industrial Court declared that CIDCO engaged in unfair labour practices by not making the Respondent permanent despite his continuous service. The High Court held that the Respondent was appointed purely on a contractual basis with intermittent breaks, and there was no evidence of a permanent vacancy or that the contract was a sham. The burden to prove unfair labour practice was on the Respondent, which he failed to discharge. The impugned order was quashed. (Paras 1-22)
B) Industrial Law - Regularization - Permanent Employment - Contractual Appointment - The High Court held that a contractual employee cannot claim permanency merely based on length of service if the appointment was not against a permanent post and was with breaks. The Industrial Court's direction to make the Respondent permanent was set aside. (Paras 15-22)
Issue of Consideration
Whether the Industrial Court was correct in holding that CIDCO engaged in unfair labour practices under Items 5, 6 and 9 of Schedule IV of the MRTU & PULP Act and directing permanent employment of the Respondent who was appointed on a contractual basis.
Final Decision
The High Court allowed the writ petition, quashed the impugned judgment and order dated 10.02.2020 passed by the Industrial Court, Thane, and dismissed the complaint filed by the Respondent. The interim application was disposed of.
Law Points
- Unfair labour practice
- contractual employment
- permanent employment
- MRTU & PULP Act
- Schedule IV Items 5
- 6
- 9
- burden of proof
- temporary employee
- regularization
Case Details
2023 LawText (BOM) (10) 152
Writ Petition No. 10886 of 2023 with Interim Application No. 14912 of 2023
Mr. Omprakash Jha a/w. Ms. Roopdaksha Basu and Ms. Anshita Dave for Petitioner; Ms. Vaishali Jagdale for Respondent
City Industrial Development Corporation of Maharashtra Ltd. (CIDCO)
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Nature of Litigation
Writ petition under Articles 226 and 227 of the Constitution of India challenging the judgment and order of the Industrial Court, Thane, which declared that CIDCO engaged in unfair labour practices and directed permanent employment of the Respondent.
Remedy Sought
CIDCO sought quashing of the Industrial Court's order dated 10.02.2020.
Filing Reason
CIDCO challenged the Industrial Court's finding of unfair labour practices and direction to make the Respondent permanent.
Previous Decisions
Industrial Court, Thane, passed judgment and order dated 10.02.2020 declaring unfair labour practices and directing permanent employment.
Issues
Whether the Industrial Court correctly held that CIDCO engaged in unfair labour practices under Items 5, 6 and 9 of Schedule IV of the MRTU & PULP Act.
Whether the Industrial Court could direct permanent employment of a contractual employee appointed with intermittent breaks.
Submissions/Arguments
Petitioner (CIDCO) argued that the Respondent was appointed purely on a contractual basis with clear terms and intermittent breaks, and there was no unfair labour practice.
Respondent argued that he worked continuously for years and was entitled to permanency.
Ratio Decidendi
A contractual employee appointed with intermittent breaks cannot claim permanency merely based on length of service if the appointment was not against a permanent post and the contract was not a sham. The burden to prove unfair labour practice is on the employee, and mere continuation of service does not establish unfair labour practice under Items 5, 6 and 9 of Schedule IV of the MRTU & PULP Act.
Judgment Excerpts
This Writ Petition is filed under the provisions of Articles 226 and 227 of the Constitution of India by City Industrial Development Corporation of Maharashtra Limited ... taking exception to the judgment and order dated 10.02.2020 passed by the Industrial Court, Thane ... declaring that – CIDCO engaged in unfair labour practices in terms of Item Nos.5, 6 and 9 of Schedule IV of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1971 ... and directing CIDCO to appoint Respondent as a permanent employee and extend all permanency benefits to him.
Before I delineate the facts in the present case, it needs to be stated at the outset that Respondent was appointed as Assistant Law Officer by CIDCO for the first time on 22.09.2011 for a period of 6 months as a 'contractual employee' on the basis of a walk-in interview and thereafter given intermittent breaks and continued to be appointed.
Procedural History
The Respondent filed a complaint before the Industrial Court, Thane, alleging unfair labour practices. The Industrial Court passed judgment and order dated 10.02.2020 declaring unfair labour practices and directing permanent employment. CIDCO filed the present writ petition challenging that order. The High Court heard the petition and allowed it on 05.10.2023.
Acts & Sections
- Constitution of India: Articles 226, 227
- Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1971: Schedule IV, Items 5, 6, 9
- Companies Act, 1956:
