Supreme Court of India
MAHARASHTRA STATE ROAD TRANSPORT CORPN. AND ANR.versusCASTERIBE RAJYA P. KARMCHARI SANGHATANA
- Citation
- 2009 INSC 1091
- Decided
- 28 August 2009
- Disposal
- Dismissed
- Bench
- TARUN CHATTERJEE
Holding
While complaints by an unrecognised union under item 6 of Schedule IV are not maintainable, the corporation must grant permanency, wages and benefits to the cleaners because it committed an unfair labour practice and the posts exist, and industrial courts have statutory authority under Section 30 to order such affirmative relief.
Summary
The Supreme Court examined whether Maharashtra State Road Transport Corporation (MSRTC) could be compelled to grant permanent status, wages and benefits to bus‑cleaners who had been employed as casuals, and whether complaints filed by an unrecognised union under item 6 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (MRTU & PULP Act) were maintainable. The Court held that the complaints were not maintainable because an unrecognised union cannot file proceedings for unfair‑labour‑practice items 2 and 6, but nevertheless ordered that the affected employees receive permanency since the corporation had committed an unfair labour practice and the posts of cleaners existed. The Court affirmed the wide‑ranging powers of industrial and labour courts under Section 30 of the MRTU & PULP Act to order affirmative action, and exercised its plenary power under Article 142 to do complete justice. The appeals were dismissed.
Issues considered
- Whether an industrial/labour court can direct MSRTC to grant permanency, wages and benefits to casual cleaners.
- Whether complaints filed by an unrecognised union under item 6 of Schedule IV of the MRTU & PULP Act are maintainable.
- Whether Section 21 of the MRTU & PULP Act bars an unrecognised union from appearing in proceedings relating to unfair‑labour‑practice items 2 and 6.
- Whether courts may create or fill posts, or must limit themselves to ordering permanency where posts already exist.
Legislation cited
- Constitution of Indias. Article 14, s. Article 142, s. Article 16, s. Article 21, s. Article 39(a)
- Industrial Disputes Act, 1947
- Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971s. 2, s. 21, s. 28, s. 30, s. 3(13), s. 32
Subjects
unfair labour practicepermanencyunrecognised trade unionindustrial courtSection 30Article 142casual employmentemployment lawMaharashtra State Road Transport Corporation
Judgment
(2009] 13 (ADDL.) S.C.R. 937
MAHARASHTRA STATE ROAD TRANSPORT CORPN: A
}
AND ANR.
v.
CASTERIBE RAJYA P. KARMCHARI SANGHATANA
(Civil Appeal No. 3433 of 2007)
B
AUGUST 28, 2009
[TARUN CljATTERJEE AND R.M. LODHA, JJ.)
-4,
Maharashtra Recognition of Trade Unions and
Prevention of Unfair Labour Practices Act, 1971: c
s.30(1)(b) - Employing bad/is, casuals or temporaries
and to continue them as such for years with object of depriving
them of the status and privileges of pennanent employees is-
an unfair labour practice on the part of the employer under D
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
E
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.
F
•
..,.,,
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 G
in a proceeding relating to unfair Jabour practices under items
,I
2 and 6 of Schedule IV - On facts, the affected employees in
the complaints filed by the unrecognized union not entitled
to the benefits of permanency to the post of cleaners as the
937 ' H
938 SUPREME COURT REPORTS (2009) 13 (AD.DL.) S.C.R.
A complaints were not maintainable - But it would be travesty
of justice if because of non-m!Jintainability of complaints, -<
employees were deprived of. benefits of status, wages and
permanency when similarly situated employees who filed
complaint individually were to get benefits of permanency -
B In view of this exceptional situation, for doing complete justice
between the parties, in exercise of plenary power under Article
142 of the Constitution, the employees in complaints would
also get the status, wages and other benefits of permanency
applicable to the post of cleaners as the employees in the .;..
c complaint individually filed by the employees - Constitution
of India, 1950 - Article 142.
Service law: Creation of"posts is not within the domain of
judicial functions which obviously pertains to the executive -
It is also true that the status of permanency cannot be granted
D by the Court where no such posts exist and that executive
functions and powers with regard to the creation of posts
cannot be affogated by the Courts - Labour laws.
The questions which arose for consideration in these
E appeals were whether employees engaged by
Corporation as casual labourer for cleaning the buses are
entitled to status, wages and all other benefits of
permanency as applicable to the post of sweepers/
cleaners in the Corporation; and whether complaints filed
F by an unrecognised union under Maharashtra
Recognition of Trade Unions and Prevention of Unfair
. Labour Practices Act, 1971 (MRTU and PULP Act),
alleging unfair labour practice on· the part of.the employer
under item No. 6 of Schedule IV were maintainable.
G Dismissing the appeals, the Court
HELD: 1.1. The purpose and object of Maharashtra
Recognition of Trade Unions and Prevention of Unfair
Labour Practices Act, 1971 is to define and provide for
H
MAHARASHTRA STATE ROAD TRANSPORT CORPN. v. 939
CASTERIBE RAJYA P. KARMCHARI SANGHATANA
). A
prevention of certain unfair labour practices as list'ed in
Schedule II, Ill and IV. MRTU and PULP Act empowers the
Industrial and Labour Courts to decide that the person
named in the complaint had engaged in or was engaged
in unfair labour practice and if the unfair labour practice
is proved, to declare that an unfair labour practice has 8
been engaged or is being engaged by that person and
direct such person to cease and desist from such ~nfair
~ labour practice and take such affirmative action (including
payment of reasonable compensation to the employee or
employees affected by the unfair labour practice, or c
reinstatement of the employee or employees with or
without back wages, or the payment of reasonable
compensation), as may in the' opinion of the Court be
necessary to effectuate poli~y of the Act. The power
given to the Industrial and Labour Courts under Section D
'II 30 is very wide and the affirmative action mentioned_
therein is inclusive and not exhaustive. Employing badlis,
casuals or temporaries and to continue them as such for
years with the object of depriving them of the status and
privileges of permanent employees is an unfair labour
E
.practice on the part of the employer under item 6 of
Schedule IV. Once such unfair labour practice on the part
of the employer is established in the complaint, the
, Industrial and Labour Courts are empowered to issue
preventive as well as positive direction to an erring
employer. [Para 26] [964-A-F] F
*Secretary, State of Kamataka and Others v. Umadevi
and Others (2006) 4 SCC 1; Mahatma Phule Agricultural
University and Others v. Nasik Zilla Sheth Kamgar Union &
Ors. (2001) 7 SCC 346; Karnataka State Road Transport G
Corporation and Anr. v. S. G. Kotturappa and Anr. (2005) 3
;i(
SCC 409; Dharwad District PWD Literate Daily Wage
Employees Assn. v. State of Kamataka (1990) 2 SCC 396;
State of Haryana v. Piara Singh (1992) 4 SCC 118; Jacob
H·
940 SUPREME COURT REPORTS [2009] 13 (ADDL.) $.C.R.
A M. Puthu(i)arambil v. Kera/a Water Authority (1991) 1 SCC -<·
28; Gujarat Agricultural University v. Rathod Labhu Bechar
(2001) 3 SCC 574; State of Mysore v. S. V.Narayanappa AIR
(1967) SC 1071; R.N. Nanjundappa v. T. Thimmiah (1972)
1 SCC 409; B.N. Nagarajan v. State of Kamataka (1979) 4
B SCC 507, referred to.
1.2. *Umadevi case is an authoritative
pronouncement for the proposition that Supreme Court
(Article 32) and High Courts (Article 226) should not issue
C directions of absorption, regularization or permanent
continuance of temporary, contractual, casual, daily wage
or ad-hoc employees unless the recruitment itself was
made regularly in terms of constitutional sch~me.
*Umadevi case does not denude the Industrial and Labour
Courts of their statutory power under Section 30 read .
D with Section 32 of MRTU and PULP Act to order
permanency. of the workers who have been 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. [Para 26) [965-C-F]
E
2. There cannot be any quarrel to the proposition that
courts cannot direct creation of posts. The creation of
posts is not within the domain of judicial functions which
obviously pertains to the executive. It is also true that the
F status of permanency cannot be granted by the Court
where no such posts exist and that executive functions
and powers with regard to the creation of posts cannot
be arrogated by the Courts. It was an admitted position
that the posts of cleaners in the Corporation were in
G existence. [Paras 27 and 31) [965-G-H; 969-C-D]
Mahatma Phule Agricultural-University and Others v.
Nasik Zilla Sheth Kamgar Union and Others (2001) 7 sec·
346;~'.state of Maharashtra and Another v. R.S.Bhonde and
Ors. (2005) 6 SCC 751; Indian Drugs & Pharmaceuticals Ltd.
. '
H
MAHARASHTRA STATE ROAD TRANSPORT CORPN. v. 941
CASTERIBE RAJYA P. KARMCHARI SANGHATANA
i' Workmen, Indian Drugs & Pharmaceuticals Ltd. (2007) 1 A·.
SCC 408; Divisional Manager, Aravali Golf Club and Another
v. Chander Hass and Another (2008) 1 SCC 683, referred
to.
3. Standing Order 503 prescribes the procedure for
8
recruitment of Class IV employees of the Corporation
which is to the effect that such posts shall be filled up
•fter receiving the recommendations from the Service·
Selection Board and this exercise does not seem to have
been done. Standing Orders are contractual 1.n nature C
and do not have a statutory force and breach of Stan~lng
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- ,
(or them to urge that procedure laid down in Standing D
Order No. 503 having not been followed, these employees
_,, could not b~ given status and principles of permanency.
[Para 34] [972-D-G]
4. Under section 30(1)(b), the Industrial/Labour Court E
has specific power to take affirmative action against the
erring employer which is of wide amplitude and
comprehends within its fold a direction to the employer
1o accord permanency to the employees affected by such
unfair labour practice. Thus, the direction of giving status, F
wages and all other benefits of .permanency applicable
to the post of cleaners to the corporation, in the facts and
circumstances, is justified and warrants no interference.
[Paras 34 and 35] [973-B-D]
5.1. A recognised union is a union which has been G
. issued a certificate of recognition under Chapter Ill of
MRTU and 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
H
942 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
~
..(
A 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
B 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·
c labour practices. [Para 36] [973-E-G]
Shramik Uttakarsfl Sabha v. Raymond Woollen Mills Ltd.
and Others. (1995) 3 SCC 78; Girja Shankar Kashi Ram v.
·Gujarat Spg. & Wvg. Co. Ltd. 19 1962 Supp (2) SCR 890;
Santuram. Khudai v. Kimatrai Printers & Processors(P) Ltd. .
D (1978) 1 SCC 162; Workers' Union v. Balmer Lawrie and Co. ....,.
Ltd. 1984 Supp. SCC 663; Crescent Dyes and Chemicals
Ltd. v. Ram Naresh Tripathi (1993) 2 SCC 115, referred to.
5.2. The concept of recognition of unions has been
E introduced in MRTU and 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 and 6 of the Schedule IV, it is
provided in Section 21 that in respect of such items no -i·
F employee in an undertaking to whic~ the provisions of
Industrial 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
G
of filing complaint, leading evidence, examination and
cross examination of witnesses and audience before the
Industrial Court/Labour Court. There is nothing to control
the expression, 0 to appear or to act or allowed to be
H
MAHARASHTRA STATE ROAD TRANSPORT CORPN. v. 943
CASTERIBE RAJYA P. KARMCHARI SANGHATANA
\.
represented" as used in Section 21(1). It is referable to A
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 forril of association or union other than B
recognized union under MRTU and PULP Act to appear
or act or be represented in the proceed_ings relating to
unfair labour practices specified in ite~s 2~and 6 of
Schetlule IV. It is only recognized union which has been
empowered to espouse the cause relating to unfatr c
labour practices specified in items 2 and 6 of Schedule -
IV in the proceedings before Industrial/Labour Court.
Section 21, thus, creates a bar on unrecognized union
from acting, appearing or representing any employee in
a proceeding relating to unfair labour practices under D
items 2 and 6 of Schedule IV. [Para 38] [974-F-G; 975-A-
D]
Petroleum Employees Union v. Bharat Petroleum
Corporation Ltd. and Another 1983 MJ 618, referred to.
E
6. 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
f- complaints are not maintainable. But in the fact situation,
... it would be travesty of justice if because of non- F
maintainability of the complaints at the instance of the:
unrecognized union, the employees are deprived 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
G
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 plenary power
under Article 142 of the Constitution of India, In the facts
and circumstances of the case, the employees In these
H
944 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
.,,/
lid. two complaints would also get the status, wages and
other benefits of permanency applicable to the post of
cleaners as the employees in the complaint filed by the
employees individually. [Para 42] [976·F-H; 9?7-A-B]
Case Law Reference:
=3
(2006) 4 sec 1 referred 'to Para 9
(2001 > 1 _sec 346 referred to Para 9 i
(2oos) 3 sec 409
.. referred to Para 9
(1990) 2 sec 396
J
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
IH
''
~
MAHARASHTRA STATE ROAD TRANSPORT CORPN. v. 945
CASTERIBE RAJYA P. KARMCHARI SANGHATANA .
'r 1983 MJ 618 referred to Para 39 A
CIVIL AP PELLATE 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. B
206 of2001.
• WITH
C.A. Nos. 3434, 3435, 3436 & 3437 of 2007.
c
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 . D
_;
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: E
(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, F
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
G
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?
~
/
- .,..-
946 SUPREME COURT REPORTS (2009] 13 (ADDL.) S.C.R.
A 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
B 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
c 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
E 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
F 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
G 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
H problem regarding cleaning of the buses and the negotiations
MAHARASHTRA STATE ROAD TRANSPORT CORPN. v. CASTERIBE 94 7
RAJYA P. KARMCHARI SANGHATANA [R.M. LODHA, J.]
were going on with the respective unions, it was decided that A
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.
c
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. D
5,9 and 10. The Industrial Court held that the Corporation
..,,,
committed unfair labour1 practice under items 5 and 9 of
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 E
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. F
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
G
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.
948 SUPREME COURT REPORTS {2009) 13 (ADDL.) S.C.R.
F=
A 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
.B unrecognized union under item 6 of Schedule IV of MRTU &
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 -+
c 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
D 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)
E 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 of Kamataka
and Others v. Umadevi and Others1 in assailing the direction ~
F /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
G prescribed in General Standing Order 503 on non-existent
posts is unsustainable in law. He extensively referred to the
· Constitution Bench decision in UmadevP. The learned Senior I
>,.
Counsel submitted that no direction could be given by the Court
H 1. (2006) 4 sec _1.
'.
MAHARASHTRA STATE ROAD TRANSPORT CORPN. v. CASTERIBE 949
RAJYA P. KARMCHARI SANGHATANA [R.M. LODHA, J.]
-
for creation of posts. In this regard, he relied upon two decisions A
of this Court viz.: Mahatma Phu/e Agricultural University and
Others v. Nasik Zilla Sheth Kamgar Union & Ors2 • and
Kamataka State Road Transport Corporation and Anr. v. S.G.
Kotturappa and Anr.
10. Mr. Shekhar Naphade, learned Senior Counsel for the
8
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.
c
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 D
_;.
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 E
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 a
,4.
union which has been issued a certificate of recognition under F
)
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 G
pr~ctices on the part of the employers; Schedule Ill deals with
.J. unfair labour practices on the part of trade unions and Schedule
IV deals with general unfair labour practices on the part of the
2. (2001) 1 sec 346.
3. c2oos) 3 sec 409.
H
950 SUPREME COURT REPORTS (2009] 13 (ADDL.) S.C.R.
A 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:
B "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
c 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 ~
~
D 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
E 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
F 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
G 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
H
MAHARASHTRA STATE ROAD TRANSPORT CORPN. v. CASTERIBE 951
RAJYA P. KARMCHARI SANGHATANA [R.M. LODHA, J.]
practice, file a complaint before the Court competent to A
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. c
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 D
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 E
)<
enquiries as he considers necessary. He may also make
efforts to promote settlement of the complaint.
~
5. The Investigating Officer shall, after investigating into the
complaint under sub-Section (4) submit his· report to the F
Court, within the time specified by it, setting out the full
facts and circumstances of the case, and the efforts made
by him in settling the complaint. The Court shall, on dem
and on payment of such fee as may be prescribed by
rules, supply a copy of the report to the complainant and G
~
1
the person complained against.
6. If, on receipt of the repot of the Investigating Officer, the
Court finds that the complaint has not been settled
satisfactorily, and that facts and circumstances of the case
~
H
952 SUPREME COURT REPORTS [2009] 13 (AODL.) S.C.R.
A require, that the matter should be further considered by it, -~
the Court shall proceed to consider it, and give its decision.
7. The decision of the Court, which sh~ll be in writing, shall
be in the form of an order. The order of the Court shall be
final and shall not be called in question in any civil or '·'
B
criminal court.
8. The Court shall cause its order to be published in such f
manner as may be prescribed. The order of the Court, shall 1
become enforceable from the date specified in the order.
c
9. The Court shall forward a copy of its order to the State
Government and such officers of the State Government as
may be prescribed.n
.....
16. Section 30 sets out the powers of Industrial and Labour
D ~-
Courts as folkJws:
)Jo
"30. Powers of ./ndustrial and Labour Courts
(1) Where a Court decides that any person named in
E the complaint has engaged in, or is engaging in,
any unfair labour practice, it may in its order -
(a) declare that an unfair labour practice has been :~(
engaged in or is being engaged in by that person,
and specify any other person who has engaged in, ~
F or is engaging in the unfair labour practice; ~
(b) direct all such persons to cease and desist from
such unfair labour practice, and take such
....._
affirmative action (including payment of reasonable
G compensation to the employee or employees
affected by the unfair labour practice; or
reinstatement of the employee or employees with
-\;.
.,.
or without back wages, or the payment· of '
reasonable compensation) as may in the opinion
of the Court be necessary to effectuate the policy
H ,..
-~-
;.._
MAHARASHTRA STATE ROAD TRANSPORT CORPN. v. CASTERIBE 953
RAJYA P. KARMCHARI SANGHATANA [R.M. LODHA, J.)
~ of the Act; A
(c) where a recognized union has engaged in or is
engaging in, any unfair laboor practice, direct that
its recognition shall be cancelled or that all or any
of its rights under sub-section (1) of Section 20 or B
its right under Section 23 shall be suspended.
~ (2) In any proceeding before it under this Act, the Court,
\ may pass such interim order (including any
temporary relief or restraining order) as it deems
just and proper (including directions to the person c
to withdraw temporarily the practice complained of,
which is an issue in such proceeding), pending final
decision:
......
J. Provided that, the Court may,l
on an application in that· D
~ behalf, review any interim order passed by it.
(3) For the purpose of holding an enquiry or
proceeding under this Act, the Court shall have the
same powers as are vested in Courts in respect of
E
..._
(a) proof of facts by affidavit;
j.
(b) summoning and enforcing the attendance of
any person, and examining him on oath. F
(c) Compelling the production of documents; and
(d) Issuing commissions for the examination of
witnesses.
G
(4) The Court shall also have powers to call upon any
\
i of the parties to proceedings before it to furnish in
writing, and in such forms ,as it may think proper,
any information, which is considered relevant for the
purpose of ~ny proceedings before it, and the party
H
'
954 SUPREME COURT REPORTS [2009) 13.(ADDL.) S.C.R.
__;,,.
A so called upon shall th1ereupon furnish the
information to the best of its knowledge and belief,
and if so required by the Court to do so, verify the
same in such manner as may be prescribed."
B
17. Section 32 provides that the Court shall have the
powers to decide all connected matters arising out of any
application or a complaint referred to it for the decision under
any of the provisions of this Act. ·f
~
18. Having surveyed the relevant provisions of MRTU &
c PULP ACT, it is now time to consider the Constitution Bench
decision in Uma Devi". In para~1raph 10, the Constitution Bench
has quoted the order of reference which reads:
"1. Apart from the conflicting opinions between the three- ...,
Judge Bench decisions i.n AshwaniKumar v. State of .-L
D
Bihar; ((1997) 2 SCC 1, State of Haryana v. Piara Singh; ....
(1992)4 SCC 118 and Dharwad Distt. PWD Literate Daily
Wage Employees Assn. "· State of Kamataka (1990) 2
sec 396 on\the one hand State of H.P. V. Suresh Kumar
·Verma; (1996) 7 SCC 564, State of Punjab v. Surinder
E
Kumar; (1992) 1 SCC 4BS* and B.N. Nagarajan v. State
of Kamataka; (1979) 4 SCC 507 on the other, which have
been brought out in one of the judgments under appeal of ~-
the Karnataka High Court in State of Kamataka v. H.
~
Ganesh Rao; (2001) 4 Ka.nt LJ 466 (DB), decided on 1-
F 6-2001 the learned Additional Solicitor General urged that
the scheme for regularisc:ition is repugnant to Articles
16(4), 309, 320 and 335 of tthe Constitution and, therefore,
these cases are required to be heard by a Bench of five
learned Judges (Constitution Bench).
G
2. On the other hand, Mr M.C. Bhandare, learned ;l
Senior Counsel, appearing for the employees urged that r
such a scheme for regularisation is consistent with the
provisions of Articles 14 and 21 of the Constitution.
H
MAHARASHTRA STATE ROAD TRANSPOFff CORPN. v. CASTERIBE 955
RAJYA P. KARMCHARI SANGHATAN.t\ [R.M. LODHA, J.]
3. Mr V. Lakshmi Narayan, learned counsel A
appearing in CCs Nos. 109-498 of 2003, has filed the GO
dated 19-7-2002 and submitted that the orders have
already been implemented.
4. After having found that there is conflict of opinion B
between the three-Judge Bench decisions of this Court,
we are of the view that these cases are required to be
heard by a Bench of five learned ..Judges.
~
~ 5. Let these matters be placed ·before the Hon'ble
the ChiefJustice for appropriate orders." C
19. The Constitution Bench in Umadevi1 considered a
long line of cases; constitutional scheme in public employment;
powers of the High Courts under Article 226; powers of this
~ Court under Articles 32; other constitutional provisions viz.; o
~ Articles 14, 16, 21 and 309 of the Constitution and laid down
~that the High Court acting under Article 226 of the Constitution
could not ordinarily issue directions for regularization and
permanent continuance unless the recruitment itself was made
regularly and in terms of the constitutional scheme. The E
Constitution Bench observed thus:
"43. Thus, it is clear that adherence to the rule of
equality in public employment is a basic feature of our
Constitution and since the rule of law is the core of our
Constitution, a court would certainly be disabled from F
passing an order upholding a violation of Article 14 or in
ordering the overlooking of the need to comply with the
requirements of Article 14 read with Article 16 of the
Constitution. Therefore, consistent with the scheme for
public employment, this Court while laying down the law, G
has necessarily to hold that unless the appointment is in
terms of the relevant rules and after a proper competition
among qualified persons, the same would not confer any
right on the appointee. If it is a contractual appointment,
the appointment comes to an end at the end of the H
956 SUPREME COURT REPORTS [2009) 13 (ADDL.) S.C.R.
A contact, if it were an engagement or appointment on daily ->-
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
B 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 ~-
continuance, if the original appointment was not made by -1
c 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
D 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
E 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
F 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
G
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 t-
economic arrangement of its affairs by the State or its
instrumentalities or lend themselves the instruments to
H
MAHARASHTRA STATE ROAD TRANSPORT CORPN. v. CASTERIBE 957
RAJYA P. KARMCHARI SANGHATANA [R.M. LODHA, J.]
facilitate the bypassing of the constitutional and statutory A
"'--- 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 B
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, c
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
D
~
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 E
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 F
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
G
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
H
958 SUPREME COURT REPORTS [2009) 13 (ADDL.) S.C.R.
A 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.
B 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
perpetuating an illegality." .,J_
c 21. The Court deprecated the issuance of directions by the
-I
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:
D "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
E 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 :(
F 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.
G By doing so, it will be creating another mode of public
appointment which is not permissible. If the_ court were to
void a contractual 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
H
MAHARASHTRA STATE ROAD TRANSPORT CORPN. v. CASTERIBE 959
- RAJYA P. KARMCHARI SANGHATANA [R.M. LODHA, J.]
temporary employment is not possible, given the A
X- exigencies of administration and if imposed, would only
mean 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 B
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 c
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 D
... 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 E
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
F
• 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
Karnataka 4, State of Haryana v. Piara Singh 5, Jacob M. G
Puthuparambil v. Kera/a Water Authority6 and Gujarat
..l,
~
4. (1990) 2 sec 396.
5. (1992) 4 sec 11a.
6. (1991) 1 sec 477. H
960 SUPREME COURT REPORTS [2009] 13 (ADDL.} S.C.R.
A 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
B 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
-J-
or gets engagement as a contractual or casual worker and -1
the engagement is not based on a proper selection as
c 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
E 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
F 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:
G "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
H 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 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 B
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 c
wages to claim that such employee should be treated on
a par with a regularly recruited candidate, and made
---<
permanent in employment, even assuming that the
principle could be invoked for claiming equal wages for
equal work. There is no fundamental right in those who
.J, D
have been employed on daily wages or temporarily or on
..,. contractual basis, to claim that they have a right to be
absorbed in service. As has been held by this Court, they
cannot be said to be holders of a post, since, a regular
appointment could be made only by making appointments
consistent with the requirements of Articles 14 and 16 of E
the Constitution. The right to be treated equally with the
other employees employed on daily wages, cannot be
)r
extended to a claim for equal treatment with those who
were regularly employed. That would be treating unequals
- J.
as equals. It cannot also be relied on to claim a right to
be absorbed in service even though they have never been
F
selected in terms of the relevant recruitment rules. The
- arguments based on Articles 14 and 16 of the Constitution
are therefore overruled."
G
24. The Constitution Bench did not accept the argument
that the right to life protected by Article 21 of the Constitution
~
---- would include the right to employment. The Court said:
"51. The argument that the right to life protected by
H
962 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
A Article 21 of the Constitution would include the right to
employment cannot also be accepted at this juncture. The
law is dynamic and our Constitution is a living document.
May be at some future point of time, the right to
employment can also be brought in under the concept of
B right to life or even included as a fundamental right. The
new statute is perhaps a beginning. As things now stand,
the acceptance of such a plea at the instance of the
employees before us would lead to the consequence of
depriving a large number of other aspirants of an
c opportunity to compete for the post or employment: Their
right to employment, if it is a part of right to life, would stand
denuded by the preferring of those who have got in casually
or those who have come through the backdoor. The
obligation cast on the State under Article 39(a) of the
Constitution is to ensure that all citizens equally have the
D
right to adequate means 1of livelihood. It will be more
consistent With that policy if the courts recognise that an
appointment to a post in government service or in the
service of its instrumentalities, can only be by way of a
proper selection in the manner recognised by the relevant
E legislation in the context of the relevant provisions of the
Constitution. In the name of individualising justice, it is also
not possible to shut our eyes to the constitutional scheme ·
and the right of the numerous as against the few who are
before the court. The directive principles of State policy
F have also to be reconciled with the rights available to the
citizen under Part Ill of the Constitution and the obligation
ofthe State to one and all and not to a particular group of
--
citizens. We, therefore, overrule the argument based on
Article 21 of the Constitution."
G
25. In the cases of irregular appointments (not illegal
appointments) and their regularization as one time measure,
however, the Constitution Bench referred to earlier decisions
of this Court in the case of State of Mysore v.
H
MAHARASHTRA STATE ROAD TRANSPORT CORPN. v. CASTERIBE 963
RAJYA P. KARMCHARI SANGHATANA [R.M. LODHA, J.]
A-- S. V.Narayanappa 8, R.N. Nanjundappa v. T. Thimmiah 9 and A
r·
I B.N. Nagarajan v. State of Kamataka10 and said:
"53. One aspect needs to be clarified. There may be
cases where irregular appointments (not illegal
appointments) as explained in S. V. Narayanappa (AIR
B
1967 SC 1071), R.N. Nanjundappa (1972) 1 SCC 409
and B.N. Nagarajan (1979) 4 SCC 507 and referred to
-\.- in para 15 above, of duly qualified persons in duly
~
sanctioned vacant posts might have been made and the
employees have continued to work for ten years or more
but without the intervention of orders of the courts or of
c
tribunals. The question of regularisation of the services of
such employees may have to be considered on merits in
the light of the principles settled by this Court in the cases
J abovereferred to and in the light of this judgment. In that
context, the Union of India, the State Governments and their D
"" instrumentalities should take steps to regularise as a one-
time measure, the services of such irregularly appointed,
who have worked for ten years or more in duly sanctioned
posts but not under cover of orders of the courts or of
tribunals and should further ensure that regular recruitments E
are undertaken to fill those vacant sanctioned posts that
,k_
require to be filled up, in cases where temporary
employees or daily wagers are being now employed. The
"' process must be set in motion within six months from this
;.-
date. We also clarify that regularisation, if any already F
made, but not sub judice, need not be reopened based
on this judgment, but there should be no further bypassing
of the constitutional requirement and regularising or
making permanent, those not duly appointed as per the
constitutional scheme. n G
..-(
-' 26. The question that arises for consideration is: have the
8. AIR 1967 SC 1071.
9. (1972) 1 sec 409.
10. (1979) 4 sec so7. H
964 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
A provisions of MRTU & PULP Act denuded of the statutory status
by the Constitution Bench decision in Umadevi1. In our
judgment, it is not. The purpose and object of MRTU & PULP- .
Act, inter alia, is to define and provide for prevention of certain
unfair labour practices as listed in Schedule II, Ill and IV. MRTU
B & PULP Act empowers the Industrial and Labour Courts to
decide that the person named in the complaint has indulged in
or is indugled in unfair labour practice and if the unfair labour
practice is proved, to declare that an unfair labour practice has
been engaged in or is being engaged in by that person and
c direct such person to cease and desist from such unfair labour
practice and take such affirmative action (including payment of
reasonable compensation to the employee or employees
affected by the unfair labour practice, or reinstatement of the
employee or employees with or without back wages, or the
payment of reasonable compensation), as may in the opinion
0
of the Court be necessary to effectuate policy of the Act. The
power given to the Industrial and Labour Courts under Section
30 is very wide and the affirmative action mentioned therein is
inclusive and not exhaustive. Employing badlis, casuals or
temporaries and to continue them as such for years , with the
E object -of depriving them of the status and privileges of
permanent employees is an unfair labour practice on the part
of the employer under item 6 of Schedule IV. Once such unfair
labour practice on the part of the employer is established in the
, complaint, the Industrial and Labour Courts are empowered to
F issue preventive as well as positive direction to an erring
J
employer. The provisions of MRTU & PULP Act and the powers
of Industrial and Labour Courts provided therein were not at all
under consideration in the case of Umadevi1• As a matter of
fact, the issue like the present one pertaining to unfair labour
G practice was not at all referred, considered or decided in
Umadevi1 • Unfair labour practice on the part of the employer
in engaging employees as badlies, casuals or temporaries and
to continue them as such for years with the object of depriving
them of the status and privileges of permanent employees as
H provided in item 6 of Schedule IV and the power of Industrial
MAHARASHTRA STATE ROAD TRANSPORT CORPN. v. CASTERIBE 965
RAJYA P. KARMCHARI SANGHATANA [RM. LODHA, J.]
4-- and Labour Courts under Section 30 of the Act did not fall for A
adjudication or consideration before the Constitution Bench. It
is true that the case of Dharwad District PWD Literate Daily
Wage Employees Assn. 7 arising out of industrial adjudication
has been considered in Umadevi1 and that decision has been
held to be not laying down the correct law but a careful and B
complete reading of decision in Umadevi1 leaves no manner
_. of doubt that what this Court was concerned in Umadevi was
.,.. the exercise of power by the High Courts under Article 226 and
this Court under Article 32 of the Constitution of India in the
matters-of public employment where the employees have been c
engaged as contractual, temporary or casual workers not based
on proper selection as recognized by the rules or procedure
and yet orders of their regularization and conferring them status
of permanency have been passed. Umadevi1 is an
authoritative pronouncement for the proposition that Supreme
•.4 D
Court (Article 32) and High Courts (Article 226) should not issue
• directions of absorption, regularization or permanent
continuance of temporary, contractual, casual, daily wage or ad-
hoc employees unless the recruitment itself was made regularly
in terms of constitutional scheme. Umadevi1 does not denude
the Industrial and Labour Courts of their statutory power under E
Section 30 read with Section 32 of MRTU & PULP Act to order
~
permanency of the workers who have been 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. Umadevi cannot be held to have overridden the powers F
of Industrial and Labour Courts in passing appropriate order
under Section 30 of MRTU & PULP Act, once unfair labour
practice on the part of the employer under item 6 of Schedule
IV is established.
G
27. There cannot be any quarrel to the proposition that
-.\
J.. courts cannot direct creation of posts. In Mahatma Phule
Agricultural University and Others v. Nasik Zilla Sheth
Kamgar Union and Others11 , this Court held:
11. (2001) 7 sec 346. H
966 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
_... ~
A "12. Mrs Jaising, in support of Civil Appeals Nos. ~
4461-70 and 4457-60 [arising out of SLPs (C) Nos. 418-
21 of 1999 and SLPs (C) Nos. 9023-32of1998) submitted
that the workmen were entitled to be made permanent. She
however fairly conceded that there were no sanctioned
B posts available to absorb all the workmen. In view of the
law laid down by this Court the status of permanency
cannot be granted when there are no posts. She however
._
submitted that this Court should direct the Universities and ~
the State Governments to frame a scheme by which, over
c a course of time, posts are created and the workmen
employed on permanent basis. It was however fairly
pointed out to the Court that many of these workmen have
died and that the Universities have by now retrenched most
of these workmen. In this view of the matter no useful J..
D
purpose would be served in undergoing any such exercise.
13. To be seen that, in the impugned judgment, the
..
High Court notes that, as per the law laid down by this
Court, status of permanency could not be granted. In spite
of this the High Court indirectly does what it could not do
E directly. The High Court, without granting the status of
permanency, grants wages and other benefits applicable
to permanent employees on the specious reasoning that -;i.._
inaction on the part of the Government in not creating posts A
amounted to unfair labour practice under Item 6 of J
F Schedule IV of the MRTU & PULP Act. In so doing the High
Court erroneously ignores the fact that approximately 2000
workmen had not _even made a claim for permanency
· before it. Their claim for permanency had been rejected
by the award dated 20-2-1985. These workmen were only
G seeking quantification of amounts as per this award. The
challenge, before the High Court, was only to the
quantification of the amounts. Yet by this sweeping order
the High Court grants, even to these workmen, the wages
and benefits payable to other permanent workmen.
H
MAHARASHTRA STATE ROAD TRANSPORT CORPN. v. CASTERIBE 967
RAJYA P. KARMCHARI SANGHATANA [R.M. LODHA, J.]
A-- 14. Further, Item 6 of Schedule IV of the MRTU & A
PULP Act reads as follows:
"6. To employ employees as 'badlis', casuals or
temporaries and to continue them as such for years, with
the object of depriving them of the status and privileges
B
of permanent employees."
-~ The complaint was against the Universities. The High Court
~ notes that as there were no posts the employees could not
be made permanent. Once it comes to the conclusion that
for lack of posts the employees could not be made c
permanent, how could it then go on to hold that they were
continued as "badlis", casuals or temporaries with the
object of depriving them of the status and privileges of
permanent employees? To be noted that the complaint
,;.
was not against the State Government. The complaint was D
... against the Universities. Ths inaction on the part of the
State Government to create posts would not mean that an
unfair labour practice had been committed by the
Universities. The reasoning given by the High Court to
conclude that the case was squarely covered by Item 6 of E
Schedule IV of the MRTU & PULP Act cannot be sustained
at all and the impugned judgment has to be and is set
,.& aside. It is however clarified that the High Court was right
in concluding that, as per the law laid down by this Court,
~
status of permanency could not be granted. Thus all orders F
wherein permanency has been granted (except award
dated 1-4-1985 in IT No. 27 of 1984) also stand set
aside."
28. In the case of State of Maharashtra and Another v.
R.S.Bhonde and Ors12., this Court relied upon earlier judgment G
__. in the case of Mahatma Phule Agricultural University and
"""" J,
reiterated the legal position thus:
". Additionally, as observed by this Court in
12. (2005) 6 sec 751. H
968 SUPREME COURT REPORTS (2009] 13 (ADDL.) S.C.R.
A Mahatma Phule Agricultural University v. Nasik Zilla
Sheth Kamgar Union (2001) 7 SCC 346 the status of
permanency cannot be granted when there is no post.
Again in Gram Sevak Prashikshan Kendra v. Worl<men
(2001) 7 sec 356, it was held that mere continuance every
B year of seasonal work obviously during the period when
the work was available does not constitute a permanent
status unless there exists post and regularisation is done."
29. In the case of Indian Drugs & Pharmaceuticals Ltd.
v. Workmen, Indian Drugs & Pharmaceuticals Ltd1 3 ., this
C Court stated that courts cannot create a post where none exists.
In paragraph 37 of the report, this Court held:
"37. Creation and abolition of posts and
regularisation are purely executive functions vide P.U.
D Joshi v. Accoudtant General (2003) 2 SCC 632. Hence,
the court cannot create a post where none exists. Also, we
cannot issue any direction to absorb the respondents or
continue them in service, or pay them salaries of regular
employees, as these are purely executive functions. This
E Court cannot arrogate to itself the powers of the executive
or legislature. There is broad separation of powers under
the Constitution, and the judiciary, too, must know its limits."
30. In yet another case of Divisional Manager, Aravali Golf
Club and Another v. Chander Hass and Another 4 , this Court
F said:
"15. The court cannot direct the creation of posts.
Creation and sanction of posts. is a prerogative of the
executive or legislative authorities and the court cannot
G arrogate to .itself this purely executive or legislative function,
and direct creation of posts in any organisation. This Court
has time and again pointed out that the creation of a post
13. c2001) 1 sec 408.
H 14. c2008) 1 sec 683.
MAHARASHTRA STATE ROAD TRANSPORT CORPN. v. CASTERIBE 969
RAJYA P. KARMCHARI SANGHATANA [R.M. LODHA, J.]
is an executive or legislative function and it involves A
A.- economic factors. Hence the courts cannot take upon
themselves the power of creation of a post. Therefore, the
directions given by the High Court and the first appellate
court to create the posts of tractor driver and regularise
the services of the respondents against the said posts B
cannot be sustained and are hereby set aside."
31. Thus, there is no doubt that creation of posts is not
-~·
}-
within the domain of judicial functions which obviously pertains
to the executive. It is also true that the status of permanency
cannot be granted by the Court where no such posts exist and
c
that executive functions and powers with regard to the creation
of posts cannot be arrogated by the Courts. However, the
factual matrix of the present controversy reveals that it was an
.. admitted position before the Industrial Court, Thane in
,. Complaint (ULP) No. 442/92 that the posts of cleaners in the D
Corporation were in existence. The Industrial Court, Thane
~
recorded the following findings:
"9. Undisputedly, there are posts of cleaners in the
Corporation and not only these employees but the other E
regularly appointed are working under the supervision and
control of the Corporation's officers and Supervisors. The
Respondent Corporation has filed the statement showing
.):
attendance of these Complainants in different depots
;,. showing the day from which the work was allotted during F
the period from 1992 to 1994. It is at Ex.C-9. This
document is already referred above. Therefore, the case
of the complainants that they are working in different
depots is not a disputed one. It is for the corporation to
point out how many posts are in the depot and how many
G
persons are working in those depots. Therefore, it cannot
be said that for want of any material on record that all
-~ these persons cannot be absorbed in permanent posts.
When there is deliberate attempt on the part of the
corporation not to employ them as regular employees in
H
970 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
A the posts of cleaners for years together the intention is very
clear and in my opinion, this is the fit case where the ->-
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
c 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
~
D 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
E 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
F 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
G
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
H
MAHARASHTRA STATE ROAD TRANSPORT CORPN. v. CASTERIBE 971
RAJYA P. KARMCHARI SANGHATANA [R.M. LODHA, J.]
"'- Corporation that, they are designated as Swachhak, and A
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 B
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
c
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 D
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 E
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 F
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 G
. ~
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
H
972 SUPREME COURT REPORTS (2009] 13 (ADDL.) S.C.R.
nature, and their work continued round the clock, which ->..
A
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
B 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
c 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.
D 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
E 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 "'
F 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
G 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
H
MAHARASHTRA STATE ROAD TRANSPORT CORPN. v. CASTERIBE 973
RAJYA P. KARMCHARI SANGHATANA [R.M. LODHA, J.)
-'-
industrial court having found that the Corporation indulged in A
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 B
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 c
to the employees affected by such unfair labour practice.
35. Seen thus, the direction of giving status, wages and
all ot her 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 D
~ answered accordingly.
re. : question (two)
36. A recognised union is a union which has been issued E
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
F
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. G
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
H
974 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
""'
A Woollen Mills Ltd. and Others15• this Court after extensively \
->..
surveying the provisions of MRTU & PULP Act and on
consideration of the judgments in Girja Shankar Kashi Ram
v. Gujarat Spg. & Wvg. Co. Ltd.1916 , Santuram Khudai v.
Kimatrai Printers & Processors(P) Ltd17, Workers' Union V.
B Balmer Lawrie and Co. Ltd18 • and Crescent Dyes and
Chemicals Ltd. v. Ram Naresh Tripathi19 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
c 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 ,..
D 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
E 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."
F 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
G
15. (1995) 3 sec 78. (
16. 1962 Supp (2) SCR 890.
~
11. (1978) 1 sec 162.
18. 1984 Supp. sec 663
H 19. (1993) 2 sec 11s.
MAHARASHTRA STATE ROAD TRANSPORT CORPN. v. CASTERIBE 975
RAJYA P. KARMCHARI SANGHATANA [R.M. LODHA, J.]
em~oyee in an undertaking to which the provisions of Industrial A
--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 c
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
.;,.. D
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)
E
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 F
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.
G
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. H
976 SUPREME COURT REPORTS [2009) 13 (ADDL.) S.C.R.
A 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
B
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 >--
in Items 2 and 6 of the fourth schedule. Where there is no -1
recognized union an employee may himself appear or act
c 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 himself if he so chooses."
\..
D
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.
E 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 -.\
....
F 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
G 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
H at the instance of the unrecognized union, these employees are
MAHARASHTRA STATE ROAD TRANSPORT CORPN. v. CASTERIBE 977
RAJYA P. KARMCHARI SANGHATANA [RM. LODHA, J.]
A- deprived of the benefits of status, wages and permanency A
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 B
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 D
l""
appeals must fail and are dismissed with no order as to cQsts.
,,,
D.G. Appeals dismissed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "unfair labour practice"Sign in to search