Sunil Ramchandra Kamdi and Others Vs the Nagpur-District Central Co-Op. Bank Ltd. Nagpur Thr. Chief Executive Officer and Anr.

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2025:BHC-NAG:6665 1

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wp 2914.22 judg.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR

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Writ Petition No.2914/2022

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Sunil Ramchandra Kamdi, Aged about 52 years, Occ.-Service in the respondent bank.

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Sau. Chetna w/o Swapnil Rokde, Aged about 38 years, Occ.-Service in the respondent bank.

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Swapnil s/o Gendraj Thamke, Aged about 39 years, Occ.-Service in the respondent bank.

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Sau. Indu Nandkishore Ramkelkar, Aged about 47 years, Occ.-Service in the respondent bank.

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Vinod s/o Sewakramji Umathe, Aged about 40 years, Occ.-Service in the respondent bank.

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Pavan s/o Rambhau Khambalkar, Aged about 42 years, Occ.-Service in the respondent bank.

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Abhijit s/o Janardhan Narnavre, Aged about 37 years, Occ.-Service in the respondent bank.

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Sanjeeo s/o Pandurangji Kohad, Aged about 38 years, Occ.-Service in the respondent bank.

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Meghraj s/o Shriram Tagde, Aged about 42 years, Occ.-Service in the respondent bank.

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Sau. Shubhangi w/o Sanjay Moon, Aged about 40 years, Occ.-Service in the respondent bank.

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Sau. Mona Tilokchand Yadav, Aged about 44 years, Occ.-Service in the respondent bank.

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Ku. Kavita Rambhauji Godbole, Aged about 37 years, Occ.-Service in the respondent bank.

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Ku. Chaya Pandurang Pawar, Aged about 44 years, Occ.-Service in the respondent bank.

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Sau. Sangita Krushnamurti Khode, Aged about 42 years, Occ.-Service in the respondent bank.

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Ku. Sita Chintaman Masram, Aged about 42 years, Occ.-Service in the respondent bank.

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Sau. Varsha Hiralal Rathod, Aged about 39 years, Occ.-Service in the respondent bank.

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17 Ku. Priya Laxmanrao Petkar, Aged about 40 years, Occ.-Service in the respondent bank.

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Niranjan Anil Rathod, Aged about 41 years, Occ.-Service in the respondent bank.

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Ku. Trupti Siddhartha Chahande, Aged about 37 years, Occ.-Service in the respondent bank.

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Ku. Pranita Shivlal Dudhane, Aged about 54 years, Occ.-Service in the respondent bank.

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Sachin Kawaduji Dhoke, Aged about 34 years, Occ.-Service in the respondent bank.

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Sandip Arvindrao Deshmukh, Aged about 47 years, Occ.-Service in the respondent bank.

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Sau. Hemlata Rajesh Motghare, Aged about 42 years, Occ.-Service in the respondent bank.

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Ku. Sima Shrawanji Gajbe, Aged about 37 years, Occ.-Service in the respondent bank.

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Vinod Wamanrao Ghode, Aged about 39 years, Occ.-Service in the respondent bank.

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Nitin Bahurao Nagrale, Aged about 49 years, Occ.-Service in the respondent bank.

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Atin Ramesh Kunghadkar, Aged about 40 years, Occ.-Service in the respondent bank.

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Ratnapal Pundlik Zile, Aged about 44 years, Occ.-Service in the respondent bank.

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Sanjay Charandas Mahure, Aged about 46 years, Occ.-Service in the respondent bank.

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Ananta Ramchandra Wagde,

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Aged about 50 years, Occ.-Service in the respondent bank.

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Ku. Bharti Shivshankar Wandhare, Aged about 39 years, Occ.-Service in the respondent bank.

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Parmanand Janraoji Gayakwad, Aged about 39 years, Occ.-Service in the respondent bank.

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Anand Jaywant Barokar, Aged about 49 years, Occ.-Service in the respondent bank.

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Sandip Sudhakarrao Mahalkar, Aged about 44 years, Occ.-Service in the respondent bank.

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Sachin Ramu Mundharikar, Aged about 40 years, Occ.-Service in the respondent bank.

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Tulshiram Krushnaji Narnaware, Aged about 44 years, Occ.-Service in the respondent bank.

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Rajikali Ramjanali Jalali, Aged about 45 years, Occ.-Service in the respondent bank.

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Dhyaneshwar Fagoji Gajbe, Aged about 53 years, Occ.-Service in the respondent bank.

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Prashant Vinod Rathod, Aged about 43 years, Occ.-Service in the respondent bank.

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Saheb Lal Ladku Patle, Aged about 49 years, Occ.-Service in the respondent bank.

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Pramod Kisan Pawar, Aged about 41 years, Occ.-Service in the respondent bank.

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Nitin Purushottam Kilnake, Aged about 46 years, Occ.-Service in the respondent bank.

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Ananta Sitaramji Londhe, Aged about 40 years, Occ.-Service in the respondent bank.

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Ajay Kisanrao Pawar, Aged about 42 years, Occ.-Service in the respondent bank.

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Ananta Shrikrushna Lonagre, Aged about 36 years, Occ.-Service in the respondent bank.

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46 Mohankumar Dnyaneshwar Pande, Aged about 41 years, Occ.-Service in the respondent bank.

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Rahul Haribhauji Kshirsagar, Aged about 41 years, Occ.-Service in the respondent bank.

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48 Milind Madanrao Hood, Aged about 52 years, Occ.-Service in the respondent bank.

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Bhujang Barkuji Kamatkar, Aged about 42 years, Occ.-Service in the respondent bank.

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Tantrapal Sudammrao Borkar, Aged about 50 years, Occ.-Service in the respondent bank.

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Ku. Lina Hansaraj Borkar, Aged about 42 years, Occ.-Service in the respondent bank.

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Pankaj Chandrakantrao Shinde, Aged about 38 years, Occ.-Service in the respondent bank.

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Ganesh Shankarrao Gahukar, Aged about 41 years, Occ.-Service in the respondent bank.

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Chudamani Abhimanyu Nagpure, Aged about 52 years, Occ.-Service in the respondent bank.

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Kishor Dnyaneshwar Ingole, Aged about 48 years, Occ.-Service in the respondent bank.

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Sandip Ganeshrao Narule, Aged about 49 years, Occ.-Service in the respondent bank.

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Vijaya Keshorao Girde, Aged about 43 years, Occ.-Service in the respondent bank.

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Krishna Rajeshwar Mume, Aged about 43 years, Occ.-Service in the respondent bank.

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Amol Bhaurao Dhongde, Aged about 35 years, Occ.-Service in the respondent bank.

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Sachin Gunwantrao Mahajan, Aged about 43 years, Occ.-Service in the respondent bank.

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Gopal Ramnath Jawarkar, Aged about 39 years, Occ.-Service in the respondent bank.

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Sachin Pandurang Meshram, Aged about 40 years, Occ.-Service in the respondent bank.

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Romeshwar Domaji Babhare, Aged about 50 years, Occ.-Service in the respondent bank.

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Vijay Tulshiram Meshram, Aged about 38 years, Occ.-Service in the respondent bank.

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Sau. Bharati Prashant Telang, Aged about 40 years, Occ.-Service in the respondent bank.

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Ku. Smita Raju Kale, Aged about 40 years, Occ.-Service in the respondent bank.

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Ku. Archana Wamanrao Nagpure, Aged about 44 years, Occ.-Service in the respondent bank.

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Abhijit Anilrao Khanke, Aged about 37 years, Occ.-Service in the respondent bank.

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Smt. Manisha Kamlesh Gorle, Aged about 38 years, Occ.-Service in the respondent bank.

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Sau. Arti Ramesh Shastri, Aged about 39 years, Occ.-Service in the respondent bank.

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Prashant Sriram Bawane, Aged about 41 years, Occ.-Service in the respondent bank.

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Rajasaheb Namdeo Walwate, Aged about 42 years, Occ.-Service in the respondent bank.

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Ku. Shanti Ringuji Darshimbhe, Aged about 45 years, Occ.-Service in the respondent bank.

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Samadhan Gajananji Gite, Aged about 50 years, Occ.-Service in the respondent bank.

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Prabhakar Ramrao Petkar, Aged about 44 years, Occ.-Service in the respondent bank.

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Kamlesh Ramdayal Tembhre,

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Aged about 49 years, Occ.-Service in the respondent bank.

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Ashokkumar Marotrao Sontakke, Aged about 41 years, Occ.-Service in the respondent bank.

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Mohan Sukhdeorao Raut, Aged about 45 years, Occ.-Service in the respondent bank.

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Ku. Priti Chindhuji Damdu, Aged about 39 years, Occ.-Service in the respondent bank.

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Vilas Baliramji Kurutkar, Aged about 42 years, Occ.-Service in the respondent bank.

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Shantanu Manoharrao Maraskolhe, Aged about 49 years, Occ.-Service in the respondent bank.

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Sau. Yogini Rajesh Tikkas, Aged about 39 years, Occ.-Service in the respondent bank.

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Vilas Udaysingh Rathod, Aged about 51 years, Occ.-Service in the respondent bank.

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Ramesh Faguji Dahake, Aged about 58 years, Occ.-Service in the respondent bank.

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Ku. Chhya Devendra Ikhar, Aged about 43 years, Occ.-Service in the respondent bank. All petitioners no.1 to 85 c/o petitioner no.86 Maharashtra State Co-Operative Bank Employees Union, Registration No.2561, C/o M.S.C. Co-operative Bank, Regional Office, Tilak Putla, Mahal, Nagpur, Nagpur 440 018.

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Maharashtra State Co-operative Bank Employees Union [Registration No.2569], C/o M.S.C. Co-operative Bank, Regional Office, Tilak Putla, Mahal, Nagpur,

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through its General Secretary. .... Petitioners.

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(Original Complainants)

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Versus -

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The Nagpur-District Central Co-Operative Bank Limited, Head Office at Ruikar Road, Gandhi Sagar, Mahal, Nagpur. Through its Chief Executive Officer.

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The Manager, Industrial Court Maharashtra, Nagpur Bench,

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Nagpur (Industrial Court No.4), Nagpur. .... Respondents.

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(Original respondents)

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- - - - -----Mr. D.M. Thakur, Advocate for petitioners. Mr. S.S. Ghate, Advocate for respondents.

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CORAM : R.M. Joshi, J. Reserved on : 08-07-2025 . Pronounced on : 14-07-2025.

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JUDGMENT

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By consent of both sides heard finally at the stage of

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admission.

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The petitioners are employees of respondent bank,

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being aggrieved by the judgment and order passed by the Industrial Court in Complaint ULP No.81/2017 dated 30-11-2021 rejecting the complaint and claim of the petitioners for regularization in the service have preferred this petition.

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The facts which are necessary for the decision of this petition are narrated in brief as under :-

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Respondent no.1 who is a Cooperative Bank having 83 branches all over the Maharashtra. Respondent no.1 is governed by the provisions of the Maharashtra Industrial Relations Act, 1946 and under Section 35 of the said Act, the Certified Standing Orders are duly approved by the competent authority and the same govern conditions of service of the

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employees. On 02-01-2009 an advertisement was issued in the newspapers inviting the applications from the candidates for their appointment as Clerks in the bank. Pursuant to the said advertisement, scrutiny was done and interviews were undertaken by the bank. Thus, after following due procedure for recruitment, the petitioners came to be appointed from 20-07-2009.

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In the meantime, one of the members of the respondent no.1-bank filed Writ Petition bearing No.1025/2009 taking exception to the recruitment on the ground that the financial condition of the bank is not sound. This petition came to be disposed of by issuing certain directions. It was directed by the Division Bench of this Court that the recruitment process can be continued further, however, the appointments of the employees should be communicated to the candidates for the period of two years and further extension of one more year depending upon the financial condition of the bank. In this backdrop, the order of appointment came to be issued to the petitioners dated 20-07-2009.

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It is a case of the petitioners that they could not have been appointed on three years probation as only one year

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probation is contemplated under the Certified Standing Orders. It is also claimed that since their appointment they are continuously working with respondent bank and that after completion of three years of service, they are being issued order of appointments for specific periods. They claimed that they are doing permanent nature of work and since they are recruited through proper channel, they are entitled for regularization.

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Respondent Bank admitted their employment against the clear vacant posts. However claimed that under the directions of the Division Bench of this Court, the orders came to be issued appointing them on probation for a period of three years. It is also admitted by the respondent that after the period of probation is over, they are issued with appointment orders for the fixed period. There is no dispute made with regard to the fact that the Certified Standing Orders exist but it is claimed that model standing orders have no application, to the present case.

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Learned Industrial Court after considering the evidence on record and hearing both the sides has dismissed the complaint essentially on the ground that since the appointment has been made pursuant to the order passed by the High Court

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for specific period, it cannot be said that any unfair labour practices have been committed by the employer. It is also held that any order passed in directing regularization would amount to contempt of the order of the Division Bench. Though on merit the findings of Industrial Court are in favour of petitioners, for these predominant reasons, the order impugned came to be passed of dismissal of complaint.

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Learned Counsel for the petitioners submits that the order passed by the Division Bench of this Court is without taking into consideration the provisions of law and standing orders applicable to the establishment of the respondent and hence the said order is per incurium. To support his submission, he placed reliance on judgment of the Hon'ble Supreme Court in case of Secretary to Government of Kerala, Irrigation Department and others vs James Varghese and others , reported in (2022) 9 SC 593 . It is his submission that the Certified Standing Orders applicable to the establishment do not permit the employer to engage an employee except for the three categories provided therein and creation of any other category of employees is not permissible even by order of Court. It is his submission that once

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it is admitted fact that the employees were engaged after following due procedure of recruitment and when the work is of permanent nature, non regularization of the employees and conferring them permanent status, amounts to unfair labour practices. It is his submission that as far as financial condition of the bank and the permanent nature of work is concerned, the financial condition of the employer would not become relevant for deciding issue of permanency, once the employees are engaged by following due procedure of law and entitled for permanency. Without prejudice to this submissions he argued that admittedly Wage Board has granted 15% rise in the wages and allowances to the employees, which indicates respondent's sound financial condition. It is his submission that since 2009 till date the petitioners are working which indicate that the work is of permanent nature. According to

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him the order of Division Bench of this Court cannot come in way of regularization of petitioners and hence impugned order deserves interference.

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Learned Counsel for respondent no.1 Bank opposed the petition and supported the impugned order. It is his contention that unless employer has engaged into unfair labour

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practices, there is no jurisdiction with the Industrial Court to grant any relief. It is his submission that as the appointment of the employees has been done pursuant to the order passed by the Division Bench, it cannot be said that there was any act of unfair labour practices on the part of the respondent Bank. It is his submission that the continuation of the employees till date has been done on the basis of interim order passed by the Industrial Court and therefore it cannot be allowed to be said that since 2009 till date they are continuously working. On these amongst other submissions he supports the impugned order.

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Since the order passed by Division Bench in Writ Petition No.1025/2009, has become Focal Point in issue in this petition, it would be appropriate to reproduce the order passed, which reads thus -

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"Heard Mr. K. S. Narwade, Adv. for petitioner, Mrs.Dangre, Additional Government Pleader for respondent nos. 1, 2 and 4 and Mr.Anand Parchure, Adv. for respondent no.5.

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In the instant petition, the grievance of petitioner is in respect of recruitment process undertaken by the respondent/Administrator in view of communication of the State Government dt. 26.12.2008. Counsel for petitioner has submitted that the Administrator has no power to undertake recruitment process in view of

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provisions of Section 78 (2) of the Maharashtra Cooperative Societies Act, 1960. It is further contended that the bank is not doing well financially and therefore, further recruitment, which is not necessary at this stage, will impose heavy financial burden on the bank. It is, therefore, contended that the process of recruitment undertaken by respondent/Administrator is inconsistent with the provisions of law and the same is not necessary considering the strength of employees already working in the bank. It is further contended that the said procedure is also inconsistent with the communication dt. 12.2.2009 issued by the National Bank for Agricultural and Rural Development.

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Mr. Anand Parchure, Adv. for respondent no.5 has submitted that, in the instant case, appointment of respondent no.5 is made by the Administrator u/s. 110A, sub-section (iii) of the Maharashtra Co-operative Societies Act. It is further contended that, since there are 125 vacancies in the clerical cadre, the issue of recruitment is undertaken by respondent no.5 in view of communication of Government dt. 26.12.2008 and therefore, the process of recruitment is sustainable in law.

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Vide order dt. 4.5.2009, this Court had directed the Secretary, Ministry of Co-operation, Marketing and Textile to file an affidavit giving the following details :

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a) Since the Administrator is appointed by superseding the Committee of the bank u/s. 110-A for preventing the affairs of bank being conducted in the manner detrimental to the interest of depositors or for securing proper management of the bank, how the process of recruitment is going to protect interest of depositors. On the other hand, will it not impose heavy financial burden on the bank and whether the Bank can sustain the same ?

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b) Whether the existing clerical staff of the bank is wholly inadequate to carry out day-to-day functions of the bank ?

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c) What is the financial position of the bank as on today and in view thereof, whether the bank can sustain additional financial burden and whether it is really necessary to do so at this stage ?

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d) Since the Committee of the bank was superseded by appointing Administrator, it is apparent that the Committee has failed to protect interest of the depositors; whether fresh recruitment will protect the interest of depositors and in what manner ?

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Pursuant to the above referred order, the Principal Secretary to Government, Co-operation, Marketing and Textiles Department, Mantralaya, Mumbai has filed an affidavit dt. 18.6.2009. In the said affidavit, it is specifically stated that the appointment of Administrator is made u/s. 110-A of the Maharashtra Co-operative Societies Act, 1960 and the Administrator is acting as per the directions of the State Government. It is also stated that the advertisement though is issued by the Administrator, but, the same is issued as per the directions of the State Government. It is further mentioned in the affidavit that present staff is inadequate to cater the needs of depositors and therefore, there is an urgent need to fill up 125 vacancies in the clerical cadre; since the deposits have gone upto Rs.889.36 crores, disbursement of loan is already made to the extent of Rs.489.31 crores and Rs.161.67 crores towards agricultural loan. It is also stated in the affidavit that some of the employees are due for promotion in A and B category which will create further vacancies to the tune of 239 and will hamper normal working of the bank.

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The affidavit further discloses that the recruitment would not put any financial burden on the bank because the posts advertised are sanctioned posts for which budgetary provision has already been made by the Bank.

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Mrs. Dangre, Additional Government Pleader states that advertisement for filling up 125 posts have already been issued and about 4000 applications were also received by the Bank. It is submitted that while issuing the order of appointment to the selected candidate, Bank shall mention in the order of appointment that appointment initially would be for a period of two years and on completion of the said period, the Bank shall take a review of the financial position of the Bank and if it is sound, appointment be continued for a further period of one more year on the same terms and conditions.

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Considering the above referred facts and circumstances and on taking the overall view of the matter, we feel that the recruitment process undertaken by the respondent will not prima- facie affect the interest of the Bank. However, while issuing the order of appointment, care should be taken to inform the selected candidates that the appointments are for two years and further extension of one year would depend upon financial condition of the Bank at that time. With these observations, the petition is disposed of accordingly.

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Interim order, if any, stands vacated.

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Copy of this order duly authenticated be given to the Additional Government Pleader."

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The order therefore indicates that the Administrator

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was appointed to manage affairs of the Bank and he was acting as

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per directions of State Government. The advertisement for recruitment was issued as per directions of State Government. The urgent need of filling up of 125 vacancies in Clerical cadre was emphasized. The need of recruitment arose on account of increase in business so also promotion of employees. It was also found that if no recruitment is done, on account of promotion of due employees of A and B category, will create further vacancies to the tune of 239 and it will hamper normal working of the Bank.

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It is thus clear that the recruitment process was undertaken to fill up regular and vacant posts available. Therefore, it can be conclusively held that the persons who are recruited through the selection process concerned in the said petition, are not employed for the work which is temporary in nature. Neither employer can engage an employee to do permanent nature of work and more particularly when posts so filled in are vacant and approved, nor any Court would direct so.

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The order further indicates that an affidavit was filed disclosing that the recruitment would not put of any financial burden on the bank as post advertised are sanctioned posts for

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which budgetary provision has already been made by the Bank. In the light of these facts the final directions came to be issued as

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recorded above.

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The directions issued by the Division Bench do not speak about appointment of candidate on probation for the period of two years with one year extension thereof depending upon the financial condition of the Bank. The intention of the Court and understanding of the parties of the import of the said order, however is reflected from further actions of respondentBank. After being fully conscious of the order of this Court appointment of petitioners has been done on probation in accordance with the Certified Standing Orders applicable to Bank.

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A specimen appointment order so issued is

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reproduced herein below :-

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1- ek-mPPk U;k;ky;] [kaMihB ukxiwj ;kauh fnysY;k funsZ'kkuqlkj R;kapk ifjfo{kk/khu dkyko/kh 2 o"kkZapk jkghy- 2 o"kkZuarj cWadsph vkfFkZd ifjfLFkrh y{kkr ?ksowu R;kapk ifjfo{kk/khu dkyko/khckcr fu.kZ; ?ks.;kr ;sbZy-

¶178

2- R;kauk dkekoj :tw >kY;kiklqu 6 efgU;kPks vkar R;kaP;k iqoZ bfrgklkckcr iksyhl [kkR;kdMwu izkIr gks.kk&;k lR;kiu vgoky ekxfo.;kr ;sbZy- lnj vgokykr izfrdqy vfHkizk; vk<Y;kl R;kauk dks.krhgh iqoZ lqpuk u nsrk lsosrwu deh dj.;kr ;sbZy-

¶179

3- R;kaph irh@iRuh g;kr vlrkauk nqljk fookg djrk ;s.kkj ukgh-

¶180

4- R;kauk lax.kd gkrkG.kh@okijkckckrps Kku vgZrk Eg.kqu vko';d dsysys vkgs] rsOgk fu;qDrh vkns'kkP;k fnukadkiklwu nksu o"kkZPkk vkar MS-CIT gh ifj{kk mRrh.kZ dj.ks vko';d jkghy- foghr eqnrhr lnj ifj{kk mRrh.kZ u dsY;kl R;kauk lsosrqu deh dj.;kr ;sbZy-

¶181

5- R;kauk uofu;qDr inkoj :tw gks.;kdfjrk dks.krkgh izokl HkRrk vuqKs; ukgh-

¶182

6- R;kauk ;k vkns'kkP;k fnukadkiklwu 15 fnolkaps vkar use.kwdhP;k inkoj :tw Ogkos ykxsy- use.kwdhP;k inkoj fnysY;k eqnrhr :tw u >kY;kl gk vkns'k vkiksvki jn~n letY;k tkbZy-

¶183

7- R;kauk dkekoj :tw >kY;kiklwu 7 fnolkaPks vkar ukxiwj ukxjhd lgdkjh :X.;ky;] ukxiwj] ukWFkZ vack>jh jksM] ukxiwj ;sFkqu oSn;fd; n"V;k l{ke vlY;kckcrps izek.ki= lknj djkos ykxsy- oSn;dh;n"V;k vik= BjY;kl gh use.kwd jn~n dj.;kr ;sbZy-

¶184

8- R;kaph fu;qDrh gh R;kauh fu;qDrhps osGh fnysY;k dkxni=kaP;k vk/kkjs dj.;kar vkysyh vkgs-

¶185

9- R;kauk ifjfo{kk/khu dkyko/khr :-3500@& ,df=r osru njegk fnY;k tkbZy-

¶186

10R;kauk ifjfo{kk/khu dkyko/khe/;s 14 vkBoMs eqnrhpk lgdkjh vf/kdks"k.k infodk ikB;dze Lo[kpkZus /kuat;jko xkMxhG lgdkjh izca/k laLFkku] ukxiwj ;sFkqu ;'kfLofjR;k iq.kZ djkok ykxsy-

¶187

11R;kauk cWadsP;k ukxiwj ftYg;karhy dks.kR;kgh 'kk[ksr fu;qDrh feGsy-

¶188

12R;kaph fu;qDrh gh R;kaP;k tkrhP;k vk/kkjs dj.;kr vkysyh vlY;keqGs tkrhP;k izek.ki=kph oS/krk iMrkG.khlkBh izLrko tkr iMrkG.kh lferh ;kaP;kdMs cWdsekQZr lknj dj.;kr ;sbZy- R;kaps tkrhps izek.ki= voS/k BjY;kl R;kaph use.kwd jn~n dj.;kr ;sbZy-

¶189

(fnid oSn;) izHkkjh O;oLFkkid ukxiwj ftYgk e/;orhZ lgdkjh cWad e;kZ-] ukxiwj

¶190

izfr-

¶191

laca/khr deZpkjh dq- r`Irh fl/nkFkZ pgkans iRrk tquk lDdjnjk] larks"kh ekrk uxj] fo'o'kkarh ckS/n fogkjktoG] ukxiwj

¶192

20 wp 2914.22 judg.odt

¶193

izfryhih&

¶194

1- 'kk[kk O;oLFkkid 'kk[kk &&&&

¶195

2- eq[;kf/kdkjh&&&&&foHkkx] eq[; dk;kZy;] ukxiwj

¶196

3- foHkkxh; vf/kdkjh foHkkx&&&&

¶197

4- LVkQ vkWfQlj&&&&&&&eq[; dk;kZy;] ukxiwj

¶198

5- ixkj fcy vf/kdkjh] eq[; dk;kZy;] ukxiwj

¶199

6- lsokiqLrd fyihd] eq[; dk;kZy;] ukxiwj

¶200

7- oS;Drhd /kkfjdk&&&&&&&

¶201

(fnid oSn;)

¶202

izHkkjh O;oLFkkid

¶203

ukxiwj ftYgk e/;orhZ lgdkjh cWad e;kZ-] ukxiwj

¶204

Similar orders are issued to the other petitioners.

¶205

Pertinently the posts held by petitioners are referred for S.C., S.T., N.T., O.B.C. and S.B.C. categories. The order of appointment indicates that it was not for the fixed period of two years but on probationary period of two years. It further records that depending upon financial condition of Bank, decision of extension of probation would be taken. Admittedly, period of probation came to be extended for one year thereafter. Pertinently, thereafter the petitioners are continued in service up to year 2017 i.e till date of filing of complaint before Industrial Court for permanency and also thereafter till date.

¶206

21 wp 2914.22 judg.odt

¶207

Most importantly without there being specific wording used by the Division Bench of this Court in the order, the petitioners were appointed as probationers. The appointment so done has not been taken exception to, by petitioner in Writ Petition No.1025/2009 nor by any other party. Thus the parties having understood the implicit meaning of the order proceeded to act upon it and appointment of petitioners came to be made on probation initially for two years. The understanding of the order by the parties cannot be faulted with as the facts and circumstances in which the said order was passed, leads to only inference that considering apprehension raised by the petitioners in the said petition, only issue of financial condition of Bank was kept in mind and further action was contemplated. Moreover, in view of the position of law that an employer cannot be permitted to engage employees for temporary period for performing the work which is perennial in nature, and Court would not become party to such illegality and hence no other interpretation to the said order could have been given. Any other interpretation would be not only against the position of law but also against the right

¶208

22 wp 2914.22 judg.odt

¶209

created in favour of the petitioners who belong to the marginalized class of the society.

¶210

Similarly there is no dispute about the fact that the petitioners are employees of respondent no.1 Bank, the standing orders duly certified under Section 35 of the Act of 1946 has application. Clause 4 of the Standing Orders classifies the employees as permanent employees, probationers, temporary and part-time employee. Permanent employee is defined as an employee who has been appointed in a clear vacancy on a permanent basis or whose appointment has been confirmed in writing by the Manager or any other officer authorized. It also includes an employee who has completed a probationary period of one year in the aggregate in the same or other posts in the bank. Clause 4(c) defines temporary employee, means who has been appointed for a temporary period but such period shall not exceed 240 days in any case.

¶211

A bare perusal of this provision indicates that a person

¶212

who has worked for 240 days and more cannot be termed/treated as temporary employee.

¶213

23 wp 2914.22 judg.odt

¶214

It is thus clear from this provision that a person who is appointed in a clear vacancy and on permanent basis is entitled to become permanent employee on his completion of period of probation. The standing orders contemplate one year's period of probation. In the instant case, however in view of the order passed by the Division Bench of this Court the appointment of the petitioners on probation was done for a period of three years. In view of the order of Division Bench of this Court appointment of petitioners on probation for a period of three years, though contrary to Certified Standing Orders, which becomes part of service condition of employees, cannot be held to be unfair labour practices. However, question arises as to whether the same analogy can be applied to the subsequent act of the Bank of not making petitioners permanent in service. Once appointment is on probation, in any event, after completion of period of three years, the provisions of the Standing Order would apply and that petitioners would be entitled to become permanent employees of the bank.

¶215

Perusal of the written statement indicates that it is admitted fact that the employment of the petitioners was against

¶216

24 wp 2914.22 judg.odt

¶217

clear vacant post and after following due procedure of recruitment. Thus, once these two conditions are fulfilled, it was obligatory on the part of the employer to make the petitioners permanent in view of Certified Standing Orders applicable to Bank and failure thereto amounts to unfair labour practices within the meaning of Item 6 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 ('MRTU and PULP Act', for short).

¶218

At this stage, it would be relevant to take note of the findings recorded by the Industrial Court on the issue about the legality of the appointment of the petitioners and as to whether they have completed 240 days of continuous service. In paragraphs 15 to 22 of the judgment impugned, learned Industrial Court has dealt with the issue with regard to the appointment of the petitioners. After considering the evidence on record it is concluded that the appointments of the petitioners and others are against 121 posts of the Clerks have been made by following due process of law. It is further categorically held that the said posts were vacant and sanctioned. The appointment of petitioners is also held to be not as per the original advertisement

¶219

25 wp 2914.22 judg.odt

¶220

published or as per the Certified Standing Orders. The issue no.1 therefore came to be answered partly in affirmative by the Industrial Court. Insofar as issue of completion of 240 days of service, the Industrial Court has taken into consideration the pleadings and the evidence on record and concluded that the petitioners have duly proved that they have completed 240 days of continuous service in every calendar year with the respondent bank since their appointment.

¶221

The Industrial Court after recording these findings and also accepting the fact that the Certified Standing Orders are applicable to the respondent bank, still proceeded not to grant relief on the ground that the appointment for two years was not objected. Similarly, it is held that by order dated 02-07-2009 passed in Writ Petition No.1025/2009 this Court has converted these appointments into temporary fixed time frame appointment. The Industrial Court however hesitated in granting relief out of fear that any order passed of regularization will amount to contempt of the order of the Division Bench. As held above, the order of Division Bench was correctly interpreted and appointment was made initially on probation for a period of three

¶222

26 wp 2914.22 judg.odt

¶223

years. The said order did not create any embargo on Bank to apply provisions of the Certified Standing Orders. More particularly when appointments are made on clear, vacant and sanctioned post, by following due procedure of recruitment, then, on completion of period of probation, there would be no justification in not granting regularization to such employees. It can never be intention of order of any Court to permit the employer to engage employees temporarily when the work performed by them is permanent in nature and thereby exploit their services for years together.

¶224

The conclusion from above discussion would be that though no fault can be found with respondent Bank action of appointing the petitioners on probation initially for the period of two years, though contrary to the standing order, but in view of order of High Court and hence at that stage it cannot be said that respondent Bank committed any unfair labour practices.

¶225

However, at subsequent stage, when the respondent Bank denied benefits of regularization to the employees, who are recruited by due procedure of law and also against permanent vacant pots, it must be held that by doing so, unfair labour

¶226

27 wp 2914.22 judg.odt

¶227

practice is committed by employer. The provisions of law, even if not written explicitly in the contract of employment, form part thereof. In the instant case standing orders would therefore become service condition and therefore an agreement between employer and employee. Item 6 of Schedule IV of the MRTU and PULP Act, makes an act of employer of failure to implement, award, agreement and settlement, an unfair labour practices. It is therefore held that respondent Bank committed unfair labour practice under the said provision.

¶228

As a result of above discussion and more particularly having regard to the findings recorded by the Industrial Court with regard to nature of employment and that completion of 240 days of service coupled with the fact that the recruitment has been done by following due procedure of law, there remains no scope of not making the petitioners regular in the service.

¶229

Apart from the facts involved in this case, it would be unjust to permit the employer to take services of the employees for years together without giving benefits of regularization more particularly when their appointment is by following due

¶230

28 wp 2914.22 judg.odt

¶231

procedure of law. Non granting of relief of regularization therefore would lead to miscarriage of justice.

¶232

In the peculiar facts of the case, impugned order deserves to be set aside. Hence, order :-

¶233

(i) Complaint ULP No.81/2017 stands allowed.

¶234

(ii) It is held that respondent Bank engaged in unfair labour practices under Item 6 of Schedule IV of the MRTU and PULP Act, 1971.

¶235

(iii) Respondents are directed to cease and desist from unfair labour practices.

¶236

(iv) The petitioners/original complainants are directed to be regularized in the service of the bank with effect from their completion of three years of period of probation with grant of all consequential benefits.

¶237

Petition stands allowed in the aforestated terms.

¶238

( R.M. Joshi, J. )

¶239

Deshmukh

Sunil Ramchandra Kamdi and Others v. the Nagpur-District Central Co-Op. Bank Ltd. Nagpur Thr. Chief Executive Officer and Anr.

Case brief

What is this about?

What did the court decide?

Sunil Ramchandra Kamdi and Others v. the Nagpur-District Central Co-Op. Bank Ltd. Nagpur Thr. Chief Executive Officer and Anr.

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

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