MAHARASHTRA STATE ROAD TRANSPORT CORPN. AND ANR. v. CASTERIBE RAJYA P. KARMCHARI SANGHATANA

Citation: [2009] 13 S.C.R. 937

Court: Supreme Court of India

Bench: TARUN CHATTERJEE, RAJENDRA MAL LODHA

Case summary

MAHARASHTRA STATE ROAD TRANSPORT CORPN. AND ANR. v. CASTERIBE RAJYA P. KARMCHARI SANGHATANA.pdf

Judgment text

(2009] 13 (ADDL. ) S. C. R. 937 MAHARASHTRA STATE ROAD TRANSPORT CORPN: } AND ANR. v. CASTERIBE RAJYA P. KARMCHARI SANGHATANA (Civil Appeal No. 3433 of 2007) AUGUST 28, 2009 [TARUN CljATTERJEE AND R. M. LODHA, JJ. ) -4, Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971: s. 30(1)(b) - Employing bad/is, casuals or temporaries and to continue them as such for years with object ofdepriving them of the status and privileges of pennanent employees isan unfair labour practice on the part of the employer under item 6 of Schedule IV - Once such unfair labour practice on ... th_e part of employer is established, 1ndustrial Courts are empowered to issue preventive as well as positive direction to an erring employer - *Umadevi case does not denude ll)dustrial and Labour Courts of their statutory power under s. 30 r. w. s.

32 of the Act to order pennanency of the workers who were victim of unfair labour practice on the part of the employer under item 6 of Schedule IV where the posts on which they have been working exists - Standing order 503 - Labour Jaws. ~ s. 21, Schedule IV, Item nos. 2 and 6 - 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 the Act is concerned - s. 21 creates a bar on unrecognized union from acting, appearing or representing any employee in a proceeding relating to unfair Jabour practices under items 2 and 6 of Schedule IV - On facts, the affected employees in ,I the complaints filed by the unrecognized union not entitled to the benefits of permanency to the post of cleaners as the 937 ' complaints were not maintainable - But it would be travesty of justice if because of non-m! Jintainability of complaints, - 1 _sec 346 referred to Para 9 i (2oos) 3 sec 409 referred to Para 9 ..

J (1990) 2 sec 396 referred to Para~ (1992) 4 sec 118 referred to Para 22 (1991) 1 sec 28 referred to Para 22 ) (2001 > 3 sec 574 referred to Para 22 .. ,. AIR (1967) SC 1071 referred to Para 25 k- (1972) 1 sec 409 referred to Para 25 (1979) 4 sec 507 referred to Para 25 - (2001) 1 sec 346 referred to Para 27 (2005) 6 sec 751 referred to Para 28 i (2001) 1 sec 408 referred to Para 29 ~ -. (2008) 1 sec 683 referred to Para 30 (1995) 3 SCC,78 referred to Para 37 1962 Supp (2) SCR 890 referred to Para 37 .... .. ;, (1978) 1 sec 162 referred to Para 37 ). 1984 Supp. sec 663 referred to Para 37 (1993) 2 sec 11s referred to Para 37 H '' ~ MAHARASHTRA STATE ROAD TRANSPORT CORPN. v. 945 CASTERIBE RAJYA P. KARMCHARI SANGHATANA . 'r 1983 MJ 618 referred to Para 39 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3433 of 2007. From the Judgment & Order dated 6. 5. 2005 of the High Court of Judicature at Bombay in Letters Patent Appeal No. 206 of2001. WITH • C. A. Nos.

3434, 3435, 3436 & 3437 of 2007. Altaf Ahmad, Shekhar Naphade, R. S. Hedge, Chandra Prakash, Rahul Tyagi, Ashwani, Garg, P. P. Singh, Vinay Navare, Naresh Kumar, Gaurav Goel, Mahesh Agarwal, Nakul Mohta, Amit Kumar Sharma, Rishi Agrawala, E. C. Agrawala for the appearing parties. .. ,, The Judgment of the Court was delivered by _; R. M. LODHA, J. 1. 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 I- 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 --1 Union Act, but unrecognised under MRTU & PULP Act, filed two complaints, namely, complaint (Ul::P) No. 542/1991 and complaint (ULLP) No. 574/1991 before the Industrial Court, Bombay alleging that the Corporation has indulged in unfair labour pra9tice under item nos. 5,6,9 and 10 of Schedule IV of MRTU & FULP Act. The names of the. affected employees were mentioned in the annexures annexed with the complaints. All these affected emp~oyees 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 employ. ees is of permanent nature but they are being paid a paltry amount; and that the posts of sweepers/Cleaner& are available in the Corporation yet these employees have been kept on casual 0 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 lndustriar-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 employP. es 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 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. 8 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 1 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 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 corporation w. e. f. August 3, 1982. I " 7. The aforesaid two orders passed by the lndustriaf Court, Bombay as well as Industrial Court, Thane came to be challenged by the Union, the employees and the Corporation H. F= before ·the High Court of Judicature at Bombay (appellate side) ~ 1n five separate writ petitions. The learned single Judge of the HiglJ Court heard these five writ petitions /together and disposed of them by a common judgment on August 2, 2001. The learned single Judge held that the complaints by the \I unrecognized union under item 6 of Schedule IV of MRTU & .

B 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 pa~$ed 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 Cone) 9. Mr. Altaf Ahmad, learned Senior Counsel for the • Corporation, heavily relied upon General Standing Order No. ~--: . :;;c- 503 dated 19th June, 1959 and the decision by the Constitution -Bench of this Court in the case of Secretary, State ofKamataka 1 and Others v.

Umadevi and Others in assailing the direction ~ /of giving status, wages and other benefits of permanency ,,. applicable to the post of cleaners. The learned Senior Counsel would submit that granting permanent stat~s 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 I ·Constitution Bench decision in UmadevP. The learned Senior >,. Counsel submitted that no direction could be given by the Court 1. (2006) 4 sec _1. '. for creation of posts. In this regard, he relied upon two decisions of this Court viz. : Mahatma Phu/e Agricultural University and - 2 Others v. Nasik Zilla Sheth Kamgar Union & Ors • and Kamataka State Road Transport Corporation and Anr. v. S. G. Kotturappa and Anr. 8 10. Mr. Shekhar Naphade, learned Senior Counsel for the employees and Mr.

Vinay Navare, learned counsel for the Union stoutly d~Jended the direction given to the Corporation in _. , according permanency and consequential benefits to the ,_ affected employees. 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 obligati'ons; 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 ,4. union which has been issued a certificate of recognition under ) Chapter Ill 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, Ill" and IV. Schedule II deals with unfair labour pr~ctices on the part of the employers; Schedule Ill deals with unfair labour practices on the part of trade unions and Schedule . J. IV deals with general unfair labour practices on the part of the 2. (2001) 1 sec 346. 3. c2oos) 3 sec 409. employers. -.. :;. ,· 1 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 ·L of the Central Act for the time being apply, shall be allowed -1 to appear or act or allowed to be represent. ed 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: r ~ 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 .. 1. . -~.

I of Schedule IV of this Act except through the tepresentative 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 (1) Where any person has engaged in or is engaging in -4.. any unfair labour practice, then any union or any employee .. t or any employer or any Investigating Officer may, within ninety days of the· occurrence of S\JCh unfair labour MAHARASHTRASTATE ROAD TRANSPORTCORPN. v. CASTERIBE 951 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 8 , 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 ) 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 ~- -1 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 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 ~nstitutional 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 teconomic 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 s~lection 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 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 1 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 -. X 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 . ,J_ perpetuating an illegality. " -I 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 obser\ted: "45. While directing that appointments, temporary or iv· casual, be regularised or made permanent, the courts are .. 4... 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 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 acontractual 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 Xmean 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 >C 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 DhafWad District PWD Literate Daily Wage Employees Assn. v. State of 4 5 Karnataka , State of Haryana v. Piara Singh , Jacob M. Puthuparambil v. Kera/a Water Authority6 and Gujarat .. l, 4. (1990) 2 sec 396. ~ 5. (1992) 4 sec 11a. 6. (1991) 1 sec 477. Agricultural University v. Rathod Labhu Bechar were held to .

_,X 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 inust 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 -Jor gets engagement as a contractual or casual worker and -1 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 0 could be made only by fonowing 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 st1ch 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 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 7. (2001) 3 sec 574. MAHARASHTRASTATE ROADTRANSPORTCORPN. v. CASTERIBE 961 RAJYA P. KARMCHARI SANGHATANA [RM. LODHA, J. ] . :. ;;.

__ 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 --- declaration under item 6 of Schedule V of the Act will have to be given. n 32. The Industrial Court at Bombay in its order dated May 8 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 1 are doing t:1e job of washing, cleaning buses and, the work was done round the clock. The work at washing, cleaning buses was previously done by the helpers, who in the 4th category, and their salaries grade begins from Rs. 875- 12-1055-15-1145, whereas the grade of Swachak, which ~ is also in 4th 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. Tue 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 in the 4th category of the schedμle. j. _ Witness examined by the Corporation Mr.

Deekar has admitted in his evidence that, "examinationn previously job -~ which was being done by the helper is now being done by the employees covered by these 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 '1 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. n 33. In view of the findings recorded by the Industrial Court, +- -1 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 th~ 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 J. 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.. j. _ 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 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 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 1 ... cleaners to the complainants, in the facts and circumstances, J. 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 Ill 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. Section 28 is a procedural provision with regard to complaints ~ relating to unfair labour practices. 37. In the case of Shramik Uttakarsh Sabha v. 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 v. Gujarat Spg. & Wvg. Co. Ltd. 19 , Santuram Khudai v. 17 Kimatrai Printers & Processors(P) Ltd , Workers' Union V. 18 Balmer Lawrie and Co. Ltd • and Crescent Dyes and 19 Chemicals Ltd. v. Ram Naresh Tripathi held thus: "14.

Section 21 of the MRTU & PULP Act, upon >-which emphasis was laid on behalf of the appellants, states 1 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 e~cept 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. " 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 prov-ided in Section 21 that in respect of such items no ( 15. (1995) 3 sec 78. 16. 1962 Supp (2) SCR 890. ~ 11. (1978) 1 sec 162. 18. 1984 Supp. sec 663 19. (1993) 2 sec 11s. em~oyee in an undertaking to which the provisions of Industrial --4... - ' 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 8 evidence, examination and cross examination of witnesses and audience before the Industrial CourULabour 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 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 ~1. thus, creates a bar on J. unrecognized union from acting, appearing or representing any employee(s) in a proceeding relating to unfair labour practices under items 2 and 6 of Sc;_;hedule 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 d~cision qf the f3ombay High Court in the case of Petroleum t=,mployef#S Union v. Bharat Petroleum Corporation Ltd. and Anothef2°. 20. 1983 MJ 618. 40. In the case of Petroleum Employees Union, the ~>. _ teamed Single Judge (S. P. Bharucha, J.

as his Lordship th~n was) interpreted Section 21 in the following manner: "5. The correct interpretation to place upon section 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 >-- -1 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 himselfif 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 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 RAJYA P.

KARMCHARI SANGHATANA [RM. LODHA, J. ] Adeprived 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. 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 c· 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. j 43.

In what we have discussed above, all these five l"" appeals must fail and are dismissed with no order as to cQsts. ,,, D. G. Appeals dismissed.