# } AND ANR v. CASTERIBE RAJYA P. KARMCHARI SANGHATANA

- **Citation:** [2009] 13 S.C.R. 937
- **Court:** Supreme Court of India
- **Decided:** 2009-08-28
- **Case number:** Civil Appeal No. 3433 of 2007
- **Bench:** TARUN CljATTERJEE, R.M. Lodha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/and-anr-v-casteribe-rajya-p-karmchari-sanghatana-25168
- **Pages:** 41

## Headnote

-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 isan 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
H
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
MAHARASHTRA STATE ROAD TRANSPORT CORPN. v.
939
CASTERIBE RAJYA P. KARMCHARI SANGHATANA
).
prevention of certain unfair labour practices as list'ed in A
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
empl

## Text

_Characters 0–39,930 of 79,088. This is a partial read: ask again with offset=39930 for what follows._

(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)
AUGUST 28, 2009
B
[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 isan 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
H
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
MAHARASHTRA STATE ROAD TRANSPORT CORPN. v.
939
CASTERIBE RAJYA P. KARMCHARI SANGHATANA
).
prevention of certain unfair labour practices as list'ed in A
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
F
employer. [Para 26] [964-A-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
;i(
Corporation and Anr. v. S. G. Kotturappa and Anr. (2005) 3
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 57 4; 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
E
have been working exists. [Para 26) [965-C-F]
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]
H
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.
.
'
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;
D
Santuram. Khudai v. Kimatrai Printers & Processors(P) Ltd . .
(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
G import, comprehensive and embraces within itself the act
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-AD]
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
fcomplaints are not maintainable. But in the fact situation,
...
it would be travesty of justice if because of nonF
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]
=3
Case Law Reference:
(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
..
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 57 4
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
(2001) 1 sec 408
referred to
Para 29
i
~
-.
(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 PELLA TE JURISDICTION : Civil Appeal No.
3433 of 2007.
From the Judgment & Order dated 6.5.2005 of the High
B
Court of Judicature at Bombay in Letters Patent Appeal No.
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
E
appeals by special leave are:
(one): Whether a direction to the Maharashtra State Road
Transport Corporation (for short, "Corporation") by the
IIndustrial 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
unrecognised 'union under Maharashtra Recognition of G
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
0 Corporation yet these employees have been kept on casual
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.
A before ·the High Court of Judicature at Bombay (appellate side)
F=
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.
D
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)
E
9. Mr. Altaf Ahmad, learned Senior Counsel for the
• Corporation, heavily relied upon General Standing Order No.
~--:
503 dated 19th June, 1959 and the decision by the Constitution
.:;;c-
-Bench of this Court in the case of Secretary, State of Kamataka
F
and Others v. Umadevi and Others1 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
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.
_,.
,4.
12. A "recognized union" under Section 3(13) means a
F
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
G
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.
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.
of Schedule IV of this Act except through the
.-~.
I
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
H
ninety days of the· occurrence of S\JCh unfair labour
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 c
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 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 E
practice alleged is said to have occurred, and make such
)<
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
~
the person complained against.
1
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
.....
D
16. Section 30 sets out the powers of Industrial and Labour
~-
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
H
of the Court be necessary to effectuate the policy
-~-,..
;.._
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 c
just and proper (including directions to the person
to withdraw temporarily the practice complained of,
which is an issue in such proceeding), pending final
decision:
......
J.
Provided that, the Court may, on an application in that· D
l
~
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.
(4)
The Court shall also have powers to call upon any
G
\
of the parties to proceedings before it to furnish in
i
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-
. ..,
D
Judge Bench decisions i.n AshwaniKumar v. State of
.-L
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
E
·Verma; (1996) 7 SCC 564, State of Punjab v. Surinder
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 1F
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
G
learned Judges (Constitution Bench).
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 Chief Justice 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
B
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
~-
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
G
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
tcareful in ensuring that they do not interfere unduly with the
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 D
..
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
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
-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:
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.