Case Note & Summary
The matter involved cross writ petitions arising from a complaint filed by temporary workers of Kalyan-Dombivli Municipal Corporation under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, seeking a declaration that the Corporation engaged in unfair labour practices by not granting them permanency. The workers, employed since 1997 on temporary and ad-hoc basis, claimed that their work was permanent, they had completed 240 days of continuous service, and they were entitled to permanency under Model Standing Order 4C and a settlement between the union and Corporation. The Corporation, established under the Bombay Provincial Municipal Corporation Act, 1949, contended that the appointments were made without sanctioned posts and in violation of statutory procedures, and therefore the Industrial Court lacked jurisdiction and the workers were not entitled to permanency. The Industrial Court, Thane, allowed the workers' complaint and granted permanency and consequential benefits from the date of filing. Both parties challenged the order before the High Court: the workers sought permanency from the date of initial appointment, while the Corporation sought to set aside the order entirely. The High Court heard arguments on the applicability of the MRTU & PULP Act, the validity of appointments under the BPMC Act, and the entitlement to permanency under the Model Standing Orders and settlements.
Issue of Consideration
Whether the Industrial Court correctly granted permanency and benefits to temporary workers under the MRTU & PULP Act, and whether the workers' appointments in violation of the BPMC Act disentitled them to such relief.
Law Points
- permanency of temporary workers
- unfair labour practices under MRTU & PULP Act
- jurisdiction of industrial court
- Model Standing Order 4C
- compliance with BPMC Act appointment procedures
Case Details
2010 LawText (BOM) (06) 116
Writ Petition No. 443 of 2010 (along with Writ Petition No. 565 of 2010 and Writ Petition No. 901 of 2010)
Mr. Y.M. Pendse (for the workers), Mr. A.S. Rao (for the Corporation), Mrs. Gayatri Singh (for Intervenor – Municipal Karmachari Kamgar Sena)
Mr. Ramesh Vitthal Patil & Ors. (in WP 443/2010); Kalyan Dombivli Municipal Corporation & Anr. (in WP 565/2010 and 901/2010)
Kalyan Dombivali Municipal Corporation & Ors. (in WP 443/2010); Mr. Ramesh Vithal Patil & Ors. (in WP 565/2010); Shri Maruti Shrirang Nikam & Ors. (in WP 901/2010)
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Nature of Litigation
Industrial dispute under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, seeking permanency and alleging unfair labour practices by the employer Corporation.
Remedy Sought
The workers sought a declaration that the Corporation engaged in unfair labour practices and an order directing the Corporation to cease such practices and grant them permanency with all consequential benefits. The Corporation sought to have the Industrial Court's order set aside. The workers also sought the relief of permanency from the date of initial appointment rather than from the date of filing of the complaint.
Filing Reason
The workers were employed on a temporary basis since 1997 despite the permanent and perennial nature of their work. They had completed over 240 days of service in each preceding year and claimed entitlement to permanency under Model Standing Order 4C and a settlement with the union. The Corporation failed to regularize their services.
Previous Decisions
The Industrial Court, Thane, allowed the workers' complaint, granting them permanency and all consequential benefits with effect from the date of filing of the complaint. Both parties were aggrieved and filed cross writ petitions before the High Court.
Issues
Whether the Corporation's failure to grant permanency to the workers constituted unfair labour practices under items 5, 6, 9, and 10 of Schedule IV of the MRTU & PULP Act?
Whether the Industrial Court had jurisdiction to entertain the complaint under the MRTU & PULP Act given the provisions of the BPMC Act and the manner of appointments?
Whether the workers were entitled to permanency by virtue of Model Standing Order 4C and/or the settlement between the union and the Corporation?
Whether the appointments of the workers were made in compliance with the BPMC Act and the rules thereunder, and if not, how it affects the claim for permanency?
Submissions/Arguments
Workers argued that they were in continuous employment since 1997, applied through an advertisement, performed work of a permanent nature on sanctioned posts, completed 240 days of continuous service in each preceding year, and were entitled to permanency under Model Standing Order 4C and the settlement with the union, making the Corporation guilty of unfair labour practices.
Corporation argued that the appointments were purely temporary and ad-hoc, made without sanctioned posts or following the recruitment procedure under the BPMC Act; that the Commissioner had no power to appoint for more than six months; that a government order dated 1.1.1998 directed discontinuance of irregular appointments; and that the Jha Committee's personnel expense limit of 35% had been exceeded, thus precluding permanency.
Judgment Excerpts
The complainants alleged that they had completed 240 days or more in any preceding 12 calendar months. The Corporation not having granted them permanency despite these facts is, according to them, guilty of unfair labour practices as alleged.
It is submitted that permanent appointments can be made only on the posts approved by the government; that they sent the establishment personnel schedule for sanction to the State Government on 30.5.1997 and the same was sanctioned on 9.12.1999.
Under the provisions of the BPMC Act the Commissioner does not have power to appoint a person for a period exceeding six months.
Procedural History
The workers filed a complaint under sections 28 and 30 read with items 5, 6, 9 and 10 of Schedule IV of the MRTU & PULP Act before the Industrial Court, Thane. The Industrial Court passed an order granting them permanency and consequential benefits from the date of filing of the complaint. Both the workers and the Corporation challenged this order by filing Writ Petition Nos. 443 of 2010, 565 of 2010, and 901 of 2010 before the High Court of Bombay.
Acts & Sections
- Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971: Sections 28, 30, Schedule IV Items 5, 6, 9, 10
- Bombay Provincial Municipal Corporation Act, 1949: Provisions relating to appointments, establishment schedule, approval by State Government
- Industrial Disputes Act, 1947: Not specified
- Industrial Employment (Standing Orders) Act, 1946: Model Standing Order 4C
