In the present scenario of increasing demand for labour flexibility by employers, some practices are followed that would legally amount to unfair labour practices (ULPs). The Industrial Disputes Act 1947 has provided against ULPs by employers, workmen and unions. Another important state law protecting against ULPs is the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act 1971 (MRTU & PULP Act). It provides important legal safeguards for workers against victimisation and persecution at the hands of their employers.

In a Bombay High Court judgment delivered on 17 December 2007 in the Murlidhar s/o Atmaram Wani vs Dharangaon Nagarpalika (2008(1) CLR 825) case, the Hon`ble Court held that a litigant should be given an opportunity to prosecute for its remedy on merits rather than rejecting his claims on mere technicalities. In this case, the petitioner was working for the municipal council as a driver on daily wages. He filed a complaint under MRTU & PULP Act 1971, claiming various service benefits including permanency.

The Industrial Court had allowed the permanency benefit to the petitioner, awarded payment of relevant wage rates with retrospective effect and directed the council accordingly. When the council did not comply with the direction of the Industrial Court to grant permanent status to the petitioner and subsequently failed to pay pensionary and other retirement benefits upon his superannuation, the petitioner filed complaints under MRTU & PULP Act. The respondents objected to the complaints on the ground of undue delay without justification. The petitioner replied that the Chief Officer of the council had already paid some part of the benefit by installments and, therefore, he had reason to believe that the rest will also be paid to him. He cited the verbal assurances of the Chief Officer of the council that he would be paid his dues, in due course. The High Court observed that the delay in filing complaints was not on account of either negligence or callousness of the petitioner. The Court further observed that petitioner being a class IV employee belongs to that stratum of the society which cannot be expected to challenge the authority of his employer, more so after being given a verbal assurance by a high ranking official of the employer. A litigant should be given an opportunity to prosecute its remedy on merits because it advances the substantial cause of justice. Delay in the present case has been caused not by the fault of the party but by the circumstances of the case. Therefore, it has to be condoned, and the complaints filed by the petitioner for the ULPs of not granting retirement and pensionary benefits as well as permanent status would have to be decided on merits and in accordance with law.

In another case, Ratnagar Ramchandra Patil vs Municipal Corporation of Greater Bombay (2008 (1) CLR 923), before the same High Court, a similar judgment was given on 25 February 2008. The Justice BH Marlapalle held that refusing promotion from class IV to class III posts amounts to ULP if the rules of the organisation contain provision for such promotions.

The petitioner in this case was working as a peon in a school run by the corporation. The corporation invited applications for the posts of Librarian and Junior Clerk from amongst the class IV employees working in the secondary schools run by the corporation. The said posts also required well-defined educational qualifications. The candidature of the petitioner was not considered by the corporation. Therefore, he filed a complaint under the MRTU & PULP Act. The petitioner claimed that as per the provisions of the secondary school code, every post in the class III grade was to be filled through promotion from amongst class IV employees. Therefore, it is his legal right, under the present rules governing his service conditions, to be considered for these posts.  The Industrial Court held that the government is an appropriate authority for considering promotions under the secondary school code and there was no right created in favour of the petitioner for promotion.

The High Court held that it is well settled that to be considered for promotion is a legal right and if the same is infringed due to the inaction or wrong action of the employer, the employees have a right to seek redressal before the appropriate judicial forum. The Industrial Court has made manifest error in dismissing the complaint on reasons that are frivolous, baseless and unconnected with the relief sought. Under the rules of the corporation, most of the class III posts are required to be filled through promotions from amongst the class IV employees if they meet the eligibility criteria. The petitioner cannot pray for being promoted but his claim was required to be considered to a limited extent of directing the corporation to hold him eligible for being considered for promotion.  Therefore, the corporation was held to be guilty of ULP. The Court directed that the petitioner be considered as eligible for promotion to the class IV posts.

Interestingly, in both cases, the employer, held guilty of ULP, was the local authority.