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1995 DIGILAW 103 (BOM)

Sharad Dungardas Gandhi v. Maharashtra State Electricity Board

1995-02-15

B.N.SRIKRISHNA

body1995
JUDGMENT : B.N. SRIKRISHNA, J. 1. This Writ Petition under Article 227 of the Constitution of India is directed against the Order of the Industrial Court, Thane, dated September 29, 1987 made in Revision Application (ULP) No. 24 of 1986 under the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as "the Act"). 2. Petitioners 1 and 2 are ex-employees and Petitioners 3 and 4 are employees of the First Respondent-Electricity Board. The First Petitioner was employed as a Lower Divisional Clerk in April, 1981 and his services were terminated on August 31, 1983 by the First Respondent. The Second Petitioner was appointed on February 2, 1981 and her services were also terminated on August 31, 1983. The Third Petitioner was appointed on August 13, 1981 and he was removed from service on August 31, 1983. The Fourth Petitioner was, appointed in March, 1981 and his services were also terminated on August 31, 1983. The Petitioners moved the Labour Court, Thane, by their complaints (ULP) No. 132, 133, 134 and 135 of 1983, respectively. They alleged that they had all been abruptly removed from service without notice and in contravention of the provisions of Sections 25-F and 25-G of the Industrial Disputes Act, 1947, with ulterior mala-fide motive of recruiting new employees on lower wages. They also alleged that they were removed from service by orders passed by an officer lower in rank than the Appointing Authority. In their complaints, the Petitioners alleged Unfair Labour Practice under item 1 of Schedule IV of the Act. The complaints were contested and finally allowed by the First Labour Court, Thane, by its Common Order dated October 30, 1986. The First Respondent carried the matter in Revision and the Industrial Court, by the impugned order made in Revision Application (ULP) No. 24 of 1986, set aside the orders of the Labour Court and dismissed the complaints of the employees. Being aggrieved thereby, the Petitioners are before this Court by the present Writ Petition. 3. With the assistance of the Advocates on both sides, I have gone through the order of the Labour Court dated October 21, 1983 made in Complaints (ULP) No. 132 to 136 of 1983 and the Revisional Order of the Industrial Court setting aside the Labour Court's order and heard them. 4. 3. With the assistance of the Advocates on both sides, I have gone through the order of the Labour Court dated October 21, 1983 made in Complaints (ULP) No. 132 to 136 of 1983 and the Revisional Order of the Industrial Court setting aside the Labour Court's order and heard them. 4. The Labour Court in its order held that the Complainants were not permanent employees of the First Respondent and also negatived the contention that their services were terminated by an officer of a lower rank than the Appointing Authority. However, the Labour Court took the view that the services of the Petitioners were terminated for patently false reason, by way of colourable exercise of the management's right and not in good faith, and those were the only grounds on which the Labour Court interfered with the action of the First Respondent. The Labour Court held that the Executive Engineer had terminated the services of the Petitioners by the letter dated August 31, 1983 under instructions from the Superintending Engineer. In evidence, it was stated by the Executive Engineer, P.V. Kulkarni, that there was a confidential letter from the Superintending Engineer dated August 30, 1983, ordering him to do so. That letter was not placed on record. From this fact, the Labour Court drew an adverse inference and assumed that there was no valid reason for termination of service of the concerned employees and observed that it was obvious that the Superintending Engineer had come to a unilateral conclusion that the Petitioners' services were no longer required, which according to the Labour Court, amounted to colorable exercise of the employer's right and not in good faith, so as to amount to an unfair labour practice under Item 1 of Schedule IV of the Act. All other contentions on the part of the Petitioners, the Labour Court rejected by its Order dated October 30, 1986. Holding against the First Respondent, the Labour Court directed reinstatement of the concerned employees. 5. As a matter of fact, the First Respondent's service is governed by the Maharashtra Electricity Board Service Regulations and the Employees (Classification Recruitment) Regulations. Under the Regulations, appointment of new candidates can only be done if they are sponsored by Regional Employment Exchanges and, if they successfully pass an entrance examination. 5. As a matter of fact, the First Respondent's service is governed by the Maharashtra Electricity Board Service Regulations and the Employees (Classification Recruitment) Regulations. Under the Regulations, appointment of new candidates can only be done if they are sponsored by Regional Employment Exchanges and, if they successfully pass an entrance examination. The Board is required to prepare a waiting list of the successful candidates and make appointments therefrom as soon as vacancies arise. This was the position which existed prior to October 21, 1980. By an Order dated October 21, 1980 u/s 14(1) (2) of the Maharashtra Public Service (Subordinate) Selection Board Act, 1973, the Government of Maharashtra restricted all direct recruitments and departmental promotions to Class III posts and directed the concerned authorities to appoint candidates only in case of extreme urgency on purely temporary basis for a period of six months/ one year till candidates were made available from the Selection Board. By a subsequent Ordinance No. XIV of 1983, Maharashtra Public Service (Subordinate) Selection Board Act, 1983, was repealed and all Selection Boards stood dissolved, and the earlier practice of appointment to the posts by the respective authorities was restored. The said Ordinance also provided that all appointments which had been made without consulting the Selection Boards during interregnum (i.e., between October 21, 1980 to June 18, 1983) would be valid, provided they were made in conformity with the Recruitment Rules, Regulations and Orders issued by the concerned authorities. The First Respondent directed the employees who had been appointed on purely temporary basis during the interregnum (i.e. October 21, 1980 to June 18, 1983) to get their names sponsored by the Regional Employment Exchange and to appear for entrance examination so as to enable the First Respondent to include the successful candidates in the waiting list maintained by it. The First Respondent terminated the services of the Petitioners by orders issued on August 31, 1983. The First and Second Petitioners were allowed to appear for entrance examination, although their names were not sponsored by Regional Employment Exchange, because they were children of Freedom Fighters and they were entitled to such concession under an existing circular. The Second Petitioner failed in the entrance examination, while the Third Petitioner succeeded in the examination. The Fourth Petitioner was sponsored by the Employment Exchange and also succeeded in the entrance examination. The Second Petitioner failed in the entrance examination, while the Third Petitioner succeeded in the examination. The Fourth Petitioner was sponsored by the Employment Exchange and also succeeded in the entrance examination. The First Petitioner, however, was not sponsored by the Regional Employment Exchange. As a result of their succeeding in the examination, the Third and Fourth Petitioners were re-appointed subsequently in compliance with the Service regulations. It is unfortunate that these facts were not placed by the First Respondent before, the Labour Court for its consideration. 6. Though Ms. Sarnaik, learned Advocate for the Petitioners is right in her submission that there was no such contention advanced, nor material placed, before the Labour Court for its appreciation, it must be remembered that the contention was purely one of application of existing statutes and rules and did not require adducing of any other evidence. This material was pointedly brought to the notice of the Industrial Court during the hearing of the Revision Application and, upon consideration of the applicable legal provisions, the Industrial Court took the view that it could not be held that the services of the Petitioners were terminated either mala-fide or for patently false reasons, as found by the Labour Court. In the circumstances, when under an ordinance, the First Respondent was required to discontinue with the service of temporary employees, Unless their services were in accordance with the existing Service Regulations, it was not possible to take the view that the First Respondent had engaged in an Unfair Labour Practice within the meaning of Item 1(b) or (d) of Schedule IV of the Act. I am of the view that the Industrial Court was, therefore, justified in interfering with the order of the Labour Court and no fault can be found with the same. After all, service under the First Respondent is public service and no one has a right to claim to be made permanent in such service, unless he complies with the Rules and Regulations which govern such service. Even the Labour Court did not find that the retrenchment as such was in contravention of the provisions of Section 25-F or 25-G of the Act. As has rightly been observed by the Industrial Court, the statutory notice pay and compensation were actually paid to the concerned employees and. Even the Labour Court did not find that the retrenchment as such was in contravention of the provisions of Section 25-F or 25-G of the Act. As has rightly been observed by the Industrial Court, the statutory notice pay and compensation were actually paid to the concerned employees and. since all the concerned employees were removed simultaneously, by orders on the same day, there was no contravention of the provisions of Section 25-G of the Act. In the circumstances, the impugned order of the Industrial Court is not liable to be interfered with in exercise of Writ jurisdiction. The Petition must, therefore, fail. 7. Ms. Sarnaik points out that the Petitioners had not accepted their statutory dues and that the Labour Court directed the First Respondent to deposit the statutory dues of the Petitioners, which were allowed to be withdrawn only on furnishing security. Since the Writ Petition is being dismissed and the Petitioners are held not entitled to any relief, they are entitled to their statutory dues without furnishing such securities. 8. If any of the Petitioners has not collected the statutory dues to which he or she is entitled to, then, such Petitioner shall be entitled to withdraw such amount from the Labour Court without furnishing security. If any of the Petitioners has withdrawn the amount after furnishing securities to the Labour Court, such securities shall stand discharged. 9. Petition dismissed. Rule discharged with no order as to costs.