DIVISIONAL FOREST OFFICER GADCHIROLI Vs. MADHUKAR RAMAJI UNDIRWADE

JUDGEMENT

(1.) GROUP of these ten writ petitions arises out of the common order passed by the Industrial Court, Maharashtra, Nagpur on 24-3-1992 and since common questions are involved in all these writ petitions, this group of writ petitions has been heard together and is disposed of by common judgment.

(2.) THE facts of all the ten writ petitions are almost identical except that the respondents-complainants in all these writ petitions have been initially appointed on different dates from 2-5-1983 to 2-11-1985 on the post of Forest Guard by the petitioner. For the sake of convenience and to appreciate the contentions raised by the learned Counsel for the parties, the facts in Writ Petition No. 1972 of 92 may be adverted to. The respondent No. 1 in the said writ petition filed a complaint before the Industrial Court, Nagpur on 16-12-1987 under section 28 read with Items 6 and 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short, the Unfair Labour Practices Act, 1971 ). It was inter-alia averred by the respondent No. 1 (for short, the complainant-employee) in the said complaint that he has been working as Forest Guard since 2-5-1983. The petitioner (for short, the employer) is an appointing authority of the complainant-employee and Administrative Head for the Gadchiroli Forest Division. The complainant-employee was appointed as a candidate recommended by the Employment Exchange and prior to the appointment, interview was taken by the employer and on finding fit for the post of Forest Guard, the complainant-employee was given appointment. The employer was causing artificial breaks in the services of the complainant-employee and was not engaging the complainant-employee continuously and thereby committing unfair labour practice. The complainant-employee also averred that sometimes the order of appointment was issued on time scale of pay while at other times, the appointment orders were issued on daily rates of wages and sometime the complainant-employee was appointed even without orders. The attendance of the complainant-employee was marked on the muster roll and the complainant-employee worked continuously, whether on time scale of pay or on daily rates of wages. The work of the complainant-employee was of continuous nature and was satisfactory and there was no reason in continuing the complainant-employee as daily wage earner or temporarily for years together. According to the complainant-employee, his conditions of services are governed by Model Standing Orders framed under the Bombay Industrial Employment (Standing Orders) Rules, 1958 (for short, the Rules of 1959 ). The employer has not framed any Standing Orders and has also not got certified any such Standing Order under the Industrial Employment (Standing Orders) Act, 1946 (for short, the Act of 1946) or the Rules of 1959. The complainant-employee also averred that the parties were in agreement that the provisions of the Model Standing Orders shall govern the relationship as employer and employee. The complainant-employee having completed more than 240 days of continuous and uninterrupted service, under the provisions of the Model Standing Orders, was entitled to be made permanent on the post of Forest Guard and by not making the complainant-employee permanent, the employee has indulged in unfair labour practice under the Unfair Labour Practices Act. The Complainant-employee prayed for permanency in the post of Forest Guard with effect from 13-11-1983 or from such other date as may be deemed fit by the Industrial Court.

(3.) THE employer contested the complaint filed by the complainant-employer and it was denied that the complainant-employee was working as Forest Guard. The employer inter-alia set up the defence that the complaint-employee was working in the Department of the employer as labourer on daily wages and was performing various duties as Chowkidar, number-marker etc. It was denied that the complainants-employees services were utilised as Forest Guard. However, it was admitted that the employee was a candidate sponsored by the Employment Exchange. It was also admitted that the complainant-employee was appointed as formal grand for a short period of one month and the said appointment was given after his name was recommended by the Employment Exchange and after holding the interview. According to the employer, however, on expiry of one month, the appointment of the complainant-employee was automatically discontinued. Thus, the employer denied that the complainant-employee had been working continuously as Forest Guard. The employer also submitted that the nature of work at the time of appointment of complainant-employee as Forest Guard during the Tendu Leave period, was of temporary nature and the appointment orders of the period from 1983-87. However, thereafter this practice has completely been stopped in view of the Government orders. The employer admitted that the attendance of the complainant-employee as marked on the muster roll. The employer denied that service conditions of the complainant-employee were governed by the Model Standing Order under the Rules of 1959 and it was submitted that the complainants-employeess services were as daily wages workers and, therefore, question of Model Standing Orders did not arise, because Model Standing Orders were applicable only in case of permanent employees. It was denied that complainant-employee has put in service of 240 days during the period of one year and that he was entitled to be made permanent on the post of Forest Guard.