Presented on : 21.12.2011.

Registered on : 21.12.2011.
Decided on : 25.03.2015.
Duration : 03-Y 03-M 04-D.
Exhibit : .

BEFORE THE INDUSTRIAL COURT, MAHARASHTRA,

(AKOLA BENCH), A K O L A.

COMPLAINT ULP No.98/2011.

1. Tulsi Shriram Chaware. --- COMPLAINANTS

2. Malti Nandu Mogre.

3. Champa Bablu Hatekar.

4. Girdhari Battu.

5. Kamal Baddu.

6. Mahadev Prasad.

All R/o Akot.

------- Versus -------

Nagar parishad, Akot, --- RESPONDENT

Through Chief Officer,
Nagar Parishad, Akot.

IN THE MATTER OF COMPLAINT U/S.28 R/W. ITEM 5

AND 9 OF SCHEDULE IV OF THE MAHARASHTRA
RECOGNITION OF TRADE UNIONS AND PREVENTION
OF UNFAIR LABOUR PRACTICES ACT, 1971.

CORAM : Vivek W. Hood, Member.

APPEARANCES : Shri. R. R. Deshpande, Adv. for the Complainant No.1

and 4 and Shri Y. G. Shaikh, Rep. for the complainant
No.2, 3, 5 and 6.
Shri. M. K. Thosar, Adv. for the Respondent.

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COMPLAINT ULP No.98/2011. ... 2 ... Judgement.

J U D G E M E N T
(Delivered On 25-03-2015)

This is a complaint filed by the complainants under the

provisions of Sec.28 of the Maharashtra Recognition of Trade Unions and

Prevention of Unfair Labour Practices Act, 1971 (in short M.R.T.U. and

P.U.L.P. Act), contending that the respondent has committed unfair

labour practice under Item 5 and 9 of Schedule IV of the M.R.T.U. and

P.U.L.P. Act, 1971.

2. The complaint in short is as under :-

The complainants were working with the respondent since

the date 17.11.1989 as a Safai Kamgar. The respondent has

discontinued the services of the complainants. Therefore the

complainants through the Union by name Akhil Bhartiya Safai Majdoor

Congress Sanghatana has filed the complaint before the Labour Court,

challenged the discontinuation of their services. The complaint as filed

by the complainants has been dismissed on 11.10.2002. The Union has

filed Rev.-ULP-No.120/2002 and the same is pending.

3. The complainants have served with the respondent

continuously since 17.11.1989 to 1.4.1992. The respondent at the time

of discontinuing the services of the complainants has not followed the

mandatory provisions of law. After the date 1.4.1992 i.e. discontinuation

of the services of the complainants, the respondent has appointed Safai

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COMPLAINT ULP No.98/2011. ... 3 ... Judgement.

Kamgar in the services. The respondent has sent a letter dated

15.9.2011 to the Union and informed about the names of persons 1.

Sau. Sunanda Radhyesham Mardane, 2. Sau. Pramila Jagjiwan Mogare,

3. Rajesh Laxman Chaware, 4. Sunil Chhanu Bendwal, 5. Mulchand

Mangal Gunare, 6. Ratan Natthu Charare, 7. Vinod Tularam Mardane,

8. Sk. Kasam Sk. Chand, 9. Sk. Ajij Sk. Hanif, 10. Gopal Madhukar

Mardane appointed as the Safai Kamgar. The respondent while

appointing the new persons and the persons discontinued from the

services along with the complainants, have not sent information letter

for the re-employment to the complainant as per the provisions of Sec.

25-H of the Industrial Disputes Act, 1947 (in short I. D. Act). The

respondent has not adopted the procedure as laid down under Rule 78

and 82 of the Industrial Dispute Rules (Central). The respondent has

published the advertisement in the news paper and inspite of the

applications as submitted by the complainants has not provided the

work to the complainants. The above act of the respondent is against

the provisions of law and amounts to unfair labour practice.

4. After the year 1992, several employees working on the post

of Safair Kamgar are retired, some employees died. The population of

Akot city is increased at three times than the year 1992. The

respondent is in need of Safai Kamgar, the respondent is not

intentionally calling the complainants for the work.

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COMPLAINT ULP No.98/2011. ... 4 ... Judgement.

5. Therefore the complainants have filed present complaint,

claimed the relief of declaration of unfair labour practice on the part of

the respondent. The complainants have further claimed the relief of

issuance of the directions to the respondent to grant the re-employment

to them on the post of Safai Kamgar from the date on which the junior

employees are appointed and further to pay the wages.

6. The respondent has submitted the Written Statement at

Exh.36-A, denied all the adverse averments as made in the complaint,

denied unfair labour practice as complained. The respondent has

denied the fact that the complainants were working as a Safai Kamgar

since 17.11.1989. The respondent has not disputed the complaint filed

by the Union before the Labour Court and Rev.-ULP-No.120/2002 as

filed. The respondent has denied the fact that the complainants were

working continuously since 17.11.1989 to 1.4.1992. The respondent has

denied the fact that the provisions of I. D. Act are not followed while

terminating the services of the complainants. The respondent has

denied the fact that after the date 1.4.1992 new Safai Kamgar are

appointed.

7. The respondent has submitted that Akhil Bhartiya Safai

Majdoor Congress Sanghatana, Branch Akot has filed the complaint

before the Labour Court, claimed that the workman of Trade Union were

illegally terminated and the Labour Court vide order dated 11.10.2002

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COMPLAINT ULP No.98/2011. ... 5 ... Judgement.

has dismissed the complaint, the Rev.-ULP-No.120/2002 as filed is also

dismissed. The respondent has submitted that the persons as

appointed are appointed as per the recommendation of 'Lad

Committee'. The respondent has submitted that as per Sec.76(1) of

Maharashtra Municipal Council Nagar Panchayat and Industrial Town-

sheep Act, 1965. The Municipal Council can not create the post of

Officers and served other than those satisfied u/s.75(1) and 75(2) for

execution of duties under Act with the sanction of Director of Municipal

Council Administration. The respondent has submitted that, there is no

vacant post and therefore the question does not arise to fill up the post

of Safai Kamgar. Thus, the respondent has prayed for the dismissal of

the complaint.

8. On the pleadings of the parties, the following Issues are

framed at Exh.37 and my findings thereon with reasons are as under :-

Issues Findings

1. Whether the complainants prove that the No.

respondent has committed unfair labour
practice under Item 5 and 9 of Schedule
IV of the M.R.T.U. and P.U.L.P. Act, 1971
by not granting their reemployment as
per the provisions of Sec.25-H of the
I. D. Act ?

2. Whether the complainants are entitled No.

for the reliefs as claimed ?

3. What order ? As per final order.

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COMPLAINT ULP No.98/2011. ... 6 ... Judgement.

Reasons

9. The complainant No.1 Tulsi Chaware has examined herself

by submitting her affidavit at Exh.21-A and closed her evidence. The

complainant No.3 Champabai Hatekar has examined herself on oath by

submitting her affidavit at Exh.27 and closed her evidence. The

respondent has examined the witness Chief Officer, Sameer Rathi by

submitting the affidavit at Exh.42 and closed their evidence.

10. Heard Shri R. R. Deshpande Advocate for the complainant

No.1 and 4 and Representative Shri Y. G. Shaikh for the complainant No.

2, 3, 5 and 6. Heard Shri M. K. Thosar Advocate for the respondent.

Perused the documents as produced by both the sides.

11. As to Issue No.1 to 3 :- The complainants have filed the complaint

under the provisions of Sec.28 of the M.R.T.U. and P.U.L.P. Act, 1971,

contended that the respondent has committed unfair labour practice

under Item 5 and 9 of Schedule IV of the M.R.T.U. and P.U.L.P. Act, 1971

by not granting the reemployment under the provisions of Sec.25-H of

the I. D. Act.

12. Item 5 and 9 of Schedule IV of the M.R.T.U. and P.U.L.P. Act,

1971 read as under :-

Item 5 :- “To show favouritism or partiality to one set of workers,

regardless of merits”.

Item 9 :- “Failure to implement award, settlement or agreement”.

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COMPLAINT ULP No.98/2011. ... 7 ... Judgement.

The complainants while claiming the reliefs have claimed

that they were working with the respondent as a Safai Kamgar, claimed

that their services were discontinued. The complainants have claimed

themselves to be the retrenched/terminated employees and therefore

entitled for the re-employment under the provisions of Sec.25-H of the I.

D. Act under the respondent. The respondent has not much disputed

the fact that the complainants have worked as a Safai Kamgar, their

services were discontinued. The respondent has come with a specific

case that the complaint as filed by the complainants through the Union

against the discontinuation of the services has been dismissed. The

respondent has further come with a specific case that the appointments

of the Safai Kamgar are made as per the recommendation of 'Lad

Committee'.

13. Thus, on perusal of the complaint, Written Statement and

reliefs as claimed, it reveals that the dispute in the complaint is

restricted to the extent of grant of re-employment as per the provisions

of Sec.25-H of the I. D. Act and the breach of the same by the

respondent.

The provisions of Sec.25-H of the I. D. Act relates to the re-

employment of retrenched workman reads as under :-

“25-H. Re-employment of retrenched workman. -

Where any workmen are retrenched and the employer
proposes to take into his employment any persons, he shall,
in such manner as may be prescribed, give an opportunity
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COMPLAINT ULP No.98/2011. ... 8 ... Judgement.

to the retrenched workmen who are citizens of India to offer

themselves for re-employment, and such retrenched
workman who offer themselves for re-employment shall
have preference over other persons”.

Principle under this provision is that, if an employer

retrenches workman on the ground that he has become surplus, it is

necessary that whenever he has occasion to reemploy other hand, the

retrenched workman should be given an opportunity to join services.

This provision now cast a statutory obligation on the employer to give

an opportunity to the retrenched workman to offer themselves for

reemployment, whenever he intends to fill up the vacancy. If the

retrenched workman offer themselves to reemployment, the employer is

bound to give preference to them over other persons. If themselves not

done and the appointments are given in violation of this provision, the

retrenched workman can raise an industrial dispute. This Section only

gives right to retrench employee to be reemployed in the events a

vacancy arises in the establishment. If the services of the workman has

been terminated for any other reason than the retrenchment, he would

not be entitled to reemployment under this Section.

Rule 77 of Industrial Disputes (Central) Rules 1957 creates

an obligation on the part of the employer to prepare a list of all

workmen in particular category from which retrenchment is completed.

Rule 78 deals with the re-employment of retrenched workmen, provides

... 9 ...
COMPLAINT ULP No.98/2011. ... 9 ... Judgement.

that the employer is under legal obligation to give the notice to the

workmen 10 days before vacancies are to be filled to offer themselves

for the employment.

14. In the case of Central Bank of India -Vs- S. Satyam and

others, reported in 1996 (74) F.L.R. 2063, the Hon'ble Supreme Court

has observed that,

“Section 25-H which is couched in wide language and is

capable of application to all retrenched workmen, not
merely those covered by Section 25-F. It does not require
curtailment of the ordinary meaning of word 'retrenchment'
used therein. The provisions for re-employment of
retrenched workmen merely gives preference to a
retrenched workman in the matter of re-employment over
other persons. It is enacted for the benefit of retrenched
workmen and there is no reason to restrict its ordinary
meaning which promotes the object of enactment without
causing any prejudice to a better placed retrenched
workman”.

In order to claim any preference in the employment under

this provisions, the following conditions should be satisfied by the

workman. 1) he should be a citizen of India. 2) The workman should

have been retrenched prior to reemployment. 3) He should have been

retrenched from same category of service in the industrial

establishment, in which the reemployment is proposed. 4) He should

offer himself for reemployment in response to the notice by the

employer under Rule 76 of the Industrial Disputes (Central) Rules, 1957

or under any Rule framed by the State.

... 10 ...
COMPLAINT ULP No.98/2011. ... 10 ... Judgement.

15. In the present complaint, the complainants have claimed

that they were working with the respondent since 17.11.1989 as a Safai

Kamgar, claimed that their services were discontinued and therefore

they are retrenched workmen. The respondent has initially denied the

fact that the complainants were working since 17.11.1989. The

complainants in para No.2 of the complaint have pleaded that they have

worked continuously for the period 17.11.1989 to 1.4.1992, pleaded

about the discontinuation from the services, the complaint as filed. The

complainants have not specifically pleaded the details of their

employment including their appointments, the work as carried and

further have not pleaded about the reasons for the discontinuation of

their services. The complainant No.1 and 3 in their respective affidavits

have affirmed the contents of the complaint on oath. It is pertinent to

note that, the complainant No.2, 4, 5 and 6 have chosen not to stepped

into the witness box, have not adduced the evidence in support of their

respective claim. The complainants have not produced the copy of the

complaint as filed before the Ld. Labour Court and further have not

produced the copy of the decision in the complaint. In that case,

positive evidence about the employment of the complainants, the work

as carried out and the discontinuation from the services is not available

on record. On the other hand, it has come on record that the complaint

filed by the Union in respect of the discontinuation of the complainants

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COMPLAINT ULP No.98/2011. ... 11 ... Judgement.

from the work has been dismissed, the Revision as filed has been also

dismissed.

16. The witness as examined by the respondent in his evidence

has admitted the fact that the complainants were working as a Safai

Kamgar and further deposed that the complainants were working as

Cantrati Kamgar. This witness has denied the knowledge about the fact

as to whether the complainants have served regularly for the period

17.11.1989 to 1.4.1992. This witness has admitted the fact that the

complainants were discontinued form the work and further failed to

state about the ground for which the complainants were discontinued

from the work. In that case, now it has to be seen as to whether the

only fact that the complainants have worked as a Safai Kamgar under

the respondent, they were discontinued from the work, will be sufficient

to attract the provisions of Sec.25-H of the I. D. Act and that the

complainants are entitled for the re-employment as claimed.

17. I have already discussed about the provisions of Sec.25-H of

the I. D. Act and the conditions required to be satisfied by the employee

to claim the preference in the employment under the provisions of Sec.

25-H of the I. D. Act. The respondents have specifically denied that they

have proposed to take into employment any person, denied the

appointment of any person as a Safai Kamgar as claimed. The

respondent has come with a specific case of appointment of Safai

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COMPLAINT ULP No.98/2011. ... 12 ... Judgement.

Kamgar by following the due procedure of recommendation of 'Lad

Committee'. The complainants in para No.2 of the complaint have

pleaded that after the date 1.4.1992 the respondent has appointed Safai

Kamgar in the services, pleaded about the letter dated 15.9.2011 and

the information as supplied by the respondent. The complainants

further in para No.3 of the complaint have pleaded that the respondent

has not followed the procedure as given in Rule 78 and 82 of Industrial

Disputes (Central) Rule, 1957, pleaded about the advertisement as

published in the news paper, the applications as submitted and that the

respondent has not given the work to them. The complainants have not

specifically pleaded about the details of the appointments as claimed

including the dates of appointment, the procedure as adopted. The

complainants have never claimed about the vacancies as arose and

therefore the vacancies as filled up by the respondent. The

complainants have not specifically pleaded about the details of the

advertisement, the post of Safai Kamgar as vacant. The complainants

have not pleaded about the date on which they have submitted the

applications. The complainants have not produced the copy of the

advertisement as claimed and further the copies of the applications if

any offering themselves for the re-employment.

18. The copy of the letter dated 15.9.2011 produced on record

and admitted by the respondent appears to be issued by the Chief

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COMPLAINT ULP No.98/2011. ... 13 ... Judgement.

Officer to the Vice President of the Union in response to the application

dated 8.9.2011 and supplied the information as called. The contents of

the letter disclosed the information as supplied in respect of the Safai

Kamgar as engaged and further disclosed the engagement on the basis

of 'Varsa Paddhat'.

19. Thus, the above evidence as produced on record can not be

said to be sufficient to hold that the respondent has proposed to take

into employment any person on the post of Safai Kamgar and that the

complainants have offered themselves for the re-employment. The

witness as examined by the respondent deposed that since January

2014 he is working as a Chief Officer and further deposed that after

taking the charge he has made appointment on 6 to 7 Safai Kamgar. In

this regard, the record shows that the complainants have never claimed

about the appointments by the respondent on the post of Safai Kamgar.

The complainants have not produced evidence about the appointment if

any in the year 2014. In that case, the above isolated version of this

witness can not be said to be sufficient to hold the appointments on the

posts of Safai Kamgar and thus, to attract the provisions of Sec.25-H of

the I. D. Act.

20. Considering all these circumstances, legal position, I hold

that the evidence as produced by the complainants is not sufficient to

fulfill and satisfy the requirement to attract the provisions of Sec.25-H of

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COMPLAINT ULP No.98/2011. ... 14 ... Judgement.

the I. D. Act and thus, for grant of re-employment under the provisions

of Sec.25-H of the I. D. Act. In that case, it is difficult to hold that the

respondent has committed an unfair labour practice as claimed.

Therefore, I hold that the complainants have failed to make out the case

of unfair labour practice and therefore, the complainants are not entitled

for the reliefs as claimed.

21. In result, the complaint is liable to be dismissed. Hence

order.

ORDER

1. The Com.-ULP-No.98/2011 is hereby dismissed.

2. Parties to bear their own costs.

Sd/-.
Date :-25.03.2015. (Vivek W. Hood)
Member,
Akola. Industrial Court, Akola.

SVK/-.