Bombay High Court
Municipal Council Tumsar vs Vikas Jagannath Ramteke And Another on 2 February, 2017
Author: Z.A.Haq
Bench: Z.A.Haq
Judgment 1 wp5137.04+7.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.5137 OF 2004
WITH
WRIT PETITION NO.5138 OF 2004
WITH
WRIT PETITION NO.5139 OF 2004
WITH
WRIT PETITION NO.5141 OF 2004
WITH
WRIT PETITION NO.5142 OF 2004
WITH
WRIT PETITION NO.5143 OF 2004
WITH
WRIT PETITION NO.5144 OF 2004
WITH
WRIT PETITION NO.5145 OF 2004
WRIT PETITION NO. 5137/2004.
Municipal Council, Tumsar, Taluq
Tumsar, District : Bhandara, through
its Chief Officer.
.... PETITIONER.
// VERSUS //
1) Ramesh Premlal Ghodichor,
major, Occupation : Service
R/o. Tumsar, Taluq : Tumsar,
District : Bhandara.
2) Industrial Court, Maharashtra,
Bhandara Bench, Bhandara.
3) State of Maharashtra, through
Secretary, Ministry of Urban
Development Department,
Mantralaya, Mumbai-32.
.... RESPONDENTS
.
WITH
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WRIT PETITION NO. 5138/2004.
Municipal Council, Tumsar, Taluq
Tumsar, District : Bhandara, through
its Chief Officer.
.... PETITIONER.
// VERSUS //
1) Vijay Dhanu Wahane, (Dead)
by LRs.
i) Smt. Vijaya wd/o.Vijay Wahane,
Aged about 45 years,
ii) Ku. Archana d/o. Vijay Wahane,
Aged about 22 years,
Both resident of Ambedkar Nagar,
Tumsar, Distt. Bhandara.
2) Industrial Court, Maharashtra,
Bhandara Bench, Bhandara.
3) State of Maharashtra, through
Secretary, Ministry of Urban
Development Department,
Mantralaya, Mumbai-32.
.... RESPONDENTS
.
WITH
WRIT PETITION NO. 5139/2004.
Municipal Council, Tumsar, Taluq
Tumsar, District : Bhandara, through
its Chief Officer.
.... PETITIONER.
// VERSUS //
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1) Vasant Lalji Meshram, (Dead)
by LRs.
a) Smt. Kiran Wd/o.Vasant Meshram,
Aged about 39 years, Occupation :
Nil, R/o. Sardar Nagar, Tumsar,
District : Bhandara.
2) Industrial Court, Maharashtra,
Bhandara Bench, Bhandara.
3) State of Maharashtra, through
Secretary, Ministry of Urban
Development Department,
Mantralaya, Mumbai-32.
.... RESPONDENTS.
WITH
WRIT PETITION NO. 5141/2004.
Municipal Council, Tumsar, Taluq
Tumsar, District : Bhandara, through
its Chief Officer.
.... PETITIONER.
// VERSUS //
1) Raju Premlal Suryavanshi,
major, occupation : service,
R/o. Tumsar, Taluq : Tumsar,
District : Bhandara.
2) Industrial Court, Maharashtra,
Bhandara Bench, Bhandara.
3) State of Maharashtra, through
Secretary, Ministry of Urban
Development Department,
Mantralaya, Mumbai.
.... RESPONDENTS.
WITH
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WRIT PETITION NO. 5142/2004.
Municipal Council, Tumsar, Taluq
Tumsar, District : Bhandara, through
its Chief Officer.
.... PETITIONER.
// VERSUS //
1) Vikas S/o. Jagannath Ramteke,
major, occupation : service,
R/o. Tumsar, Taluq : Tumsar,
District : Bhandara.
2) Industrial Court, Maharashtra,
Bhandara Bench, Bhandara.
3) State of Maharashtra, through
Secretary, Ministry of Urban
Development Department,
Mantralaya, Mumbai-32.
.... RESPONDENTS.
WITH
WRIT PETITION NO. 5143/2004.
Municipal Council, Tumsar, Taluq
Tumsar, District : Bhandara, through
its Chief Officer.
.... PETITIONER.
// VERSUS //
1) Prakash Narayan Tandekar,
major, occupation : service,
R/o. Tumsar, Taluq : Tumsar,
District : Bhandara.
2) Industrial Court, Maharashtra,
Bhandara Bench, Bhandara.
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3) State of Maharashtra, through
Secretary, Ministry of Urban
Development Department,
Mantralaya, Mumbai-32.
.... RESPONDENTS.
WITH
WRIT PETITION NO. 5144/2004.
Municipal Council, Tumsar, Taluq
Tumsar, District : Bhandara, through
its Chief Officer.
.... PETITIONER.
// VERSUS //
1) Sanjay Damodhar Masulkar,
major, occupation : service,
R/o. Tumsar, Taluq : Tumsar,
District : Bhandara.
2) Industrial Court, Maharashtra,
Bhandara Bench, Bhandara.
3) State of Maharashtra, through
Secretary, Ministry of Urban
Development Department,
Mantralaya, Mumbai.
.... RESPONDENTS.
WITH
WRIT PETITION NO. 5145/2004.
Municipal Council, Tumsar, Taluq
Tumsar, District : Bhandara, through
its Chief Officer.
.... PETITIONER.
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// VERSUS //
1) Prabhu Ram Khobragade,
major, occupation : service,
R/o. Tumsar, Taluq : Tumsar,
District : Bhandara.
2) Industrial Court, Maharashtra,
Bhandara Bench, Bhandara.
3) State of Maharashtra, through
Secretary, Ministry of Urban
Development Department,
Mantralaya, Mumbai.
.... RESPONDENTS.
___________________________________________________________________
Shri S.A.Sahu, Adv. h/f. Shri M.I.Dhatrak, Advocate.
Ms Vijaya Thakre, Advocate for Respondent No.1.
Shri K.R. Lule, A.G.P. for Respondent No.3.
___________________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : FEBRUARY 02, 2017.
PURSIS STAMP NOS. 498/17, 499/17, 500/17, 501/17, 502/17,
503/17, 504/17, 505/17.
Shri M.I. Dhatrak, advocate who represented the petitioner
has filed pursis stating that the petitioner has taken away the papers
and has sought discharge.
Shri M.I. Dhatrak, advocate is discharged from appearing
for the petitioner in these petitions.
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ORAL JUDGMENT :
1. Shri M.I. Dhatrak, who represented the petitioner-
Municipal Council is discharged as per the order passed on Pursis Stamp No. 498 of 2017. No other advocate has appeared for the petitioner Municipal Council.
2. Heard Ms V.P. Thakre, advocate for the respondent No.1- employee and Shri K.R. Lule, A.G.P. for the respondent Nos. 2 and 3.
3. The employees had filed complaint under Section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as "Act of 1971") alleging that the Municipal Council/ employer indulged in unfair labour practice as contemplated under Items 5, 6 and 9 of Schedule IV of the Act of 1971 by not regularizing their services. According to the workmen, they had been working with the Municipal Council on daily wages for several years i.e. more than 240 days in preceding years and though posts were available on the establishment of the Municipal Council their services were not regularized.
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4. The Municipal Council opposed the claim of the employees on the ground that sanctioned posts were not available on the establishment of the Municipal Council to accommodate the employees (complainants) and continue them as regular employees. The claim was opposed further on the ground that the employees were not engaged/ appointed by following the prescribed procedure and the appointments were not given by the Chief Officer who was competent authority but the employees were appointed by the President who had no authority to make the appointments.
5. After considering the matter, the Industrial Court, by the impugned order recorded that the document (Exh.48) on record shows that 21 posts were lying vacant. The Industrial Court recorded that the Municipal Council committed unfair labour practice as contemplated by Item 9 of Schedule IV of the Act of 1971 by not regularizing the services of the complainants. The Industrial Court allowed the complaint and directed the Municipal Council to regularize the services of the complainants and to make available to them the difference of monetary benefits w.e.f. 1st January, 1995.
6. In the petition, the petitioner Municipal Council has raised the ground that if any additional post is required, it has to be ::: Uploaded on - 04/03/2017 ::: Downloaded on - 27/08/2017 15:22:59 ::: Judgment 9 wp5137.04+7.odt sanctioned as per the provisions of Section 76 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (hereinafter referred to as "the Act of 1965") and as the appointments of the complainants were made by the President unauthorizedly and without seeking prior permission of the Director of Municipal Administration as required by Section 76 of the Act of 1965, the services of the employees/ complainants cannot be regularized.
On 18th June, 2015 this Court passed an order as follows :
"Heard respective counsel for some time. It is brought to the notice of this Court that by order dated 22.01.2015 passed in Writ Petition no. 5191/2004 and connected matters, the following question has been referred to the larger bench.
"Whether, in the absence of creation or sanction of the posts under Section 76 of the Maharashtra Municipal Councils, Nagar Panchayats & Industrial Townships Act, 1965, the complainants were entitled to claim permanency or regularization in service on the basis of Clause 4C of the Model Standing Orders under the Industrial Employment (Standing Orders) Act, 1946 ?"
The aforesaid question also arises in all these matters.
Hence, list the writ petitions after eight weeks."
The reference which was made to the larger Bench is answered by the Division Bench of this Court by the judgment given on 22nd July, 2016. The relevant conclusions are in para No.19 of the judgment as follows :
::: Uploaded on - 04/03/2017 ::: Downloaded on - 27/08/2017 15:22:59 :::Judgment 10 wp5137.04+7.odt "19. In this reference, the position emerging before us is similar. There is no conflict between the provisions of M.S.O. 4-C and the provisions of the S. 76 of the 1965 Act. In the event of the appointment having been made validly, it may be possible to invoke the provisions Cl. 4-C of M.S.O. A view to the contrary would result in regularizing/ validating a void act. Cl. 4-C neither permits nor contemplates the same. As held in the above judgments, if the appointment is not made in accordance with the constitutional scheme, it is void ab-initio and, therefore, there can be no claim to its regularization or for grant of permanency in any manner. This is all the more so as Cl. 32 of the M.S.O. clarifies that the Standing Orders are not to operate in derogation of any other law i.e. S. 76 of 1965 Act. Definitely any interpretation of Clause 4C conducive to defeating the Constitutional mandate is unwarranted. Violation of Clause 4C of the MSO may tantamount to an unfair labour practice under item 9 of Sch. IV of the 1971 Act but unless & until, other additional factors are proved on record, finding of indulgence in an unfair labour practice under item 6 of Sch. IV thereof can not be reached. As explained by the Hon. Apex Court in case of Maharashtra SRTC v. Casteribe Rajya Parivahan Karmchari Sanghatana, (supra), existence of a legal vacancy must be established & as discussed above, the power to recruit with the employer must also be demonstrated. In absence thereof, workman can not succeed in proving the commission of unfair labour practice under item 6 by the employer. These two ingredients, therefore, also must be established when benefit of Cl. 4C is being claimed. Unless availability of a vacancy is shown or then power with the employer to create the post and to fill it is brought on record, mere continuation of 240 days can not and does not enable the workman to claim permanency by taking recourse to Cl. 4C read with item 9 of Sch. IV of 1971 Act. Clause 4C does not employ word "regularisation" but then it is implicit in it as no "permanency" is possible without it. Conversely, it follows that when a statutory provision like S. 76 disables the employer either from ::: Uploaded on - 04/03/2017 ::: Downloaded on - 27/08/2017 15:22:59 ::: Judgment 11 wp5137.04+7.odt creating or filling in the posts, such a claim can not be sustained. This also nullifies the reliance upon the judgment of learned Single Judge in case of Maharashtra Lok Kamgar Sanghatana Vs Ballarpur Industries Limited (supra) where the employer was a private Company not subjected to such regulatory measures by any Statute and enjoyed full freedom to create the posts and to recruit. One of us (B.P. Dharmadhikari, J.) is party to the judgment of this Court in Raymond UCO Denim Private Ltd. Vs. Praful Warade & Ors. (supra) which again needs to be distinguished for the same reasons. The judgment of learned Single Judge in case of Indian Tobacco Company Ltd. vs. The Industrial Court and Ors. (supra), judgment of Hon'ble Apex Court affirming it or then judgment of Hon'ble Apex Court reported at Western India Match Company Ltd. and Workmen are all considered therein & are distinguishable as the same do not pertain to the province of public employment or consider inherent Constitutional restraints (the suprema lex - see Mahendra L. Jain v. Indore Development Authority and others (supra) and Cl. 32 of the MSO. For same reasons, law laid down by the Full Bench judgment of this Court in 2007 (1) CLR 460 - 2007 (1) Mah. L.J. 754- Gangadhar Balgopal Nair Vs. Voltas Limited & Anr. does not advance the cause of workmen. The Division Bench of this Court in May & Baker Ltd. v. Kishore Jaikishandas Icchaporia (supra) while construing Section 10-A(3) held that the expression "other law" would not refer to the model standing orders or the certified standing orders since they are laws made under the provisions of parent act itself and not under any other law. The Model Standing Orders and Certified Standing Orders, held the Division Bench, "are laws no doubt but they are laws made under the provisions of the Act". They were held not to be provisions under any other law. This discussion therefore shows how these words "in derogation of any law for the time being in force" in Cl. 32 of MSO need to be understood & does not help Adv. Jaiswal or Adv. Khan. "
::: Uploaded on - 04/03/2017 ::: Downloaded on - 27/08/2017 15:22:59 :::Judgment 12 wp5137.04+7.odt It is held that Clause 4C of the Model Standing Orders cannot be invoked for seeking regularization in a post which is not sanctioned as per Section 76 of the Act of 1965. But after considering the facts of the present case, I find that the Industrial Court has recorded a definite finding that 21 posts of Safai Coolies were vacant and the Industrial Court directed the Municipal Council to regularize the services of these 9 workmen/ complainants. Thus, it cannot be said that the claim made by the workmen/ complainants could not have been granted by the Industrial Court.
7. In the judgment given in the case of Maharashtra SRTC vs. Casteribe Rajya Parivahan Karmachari Sanghatana, reported in 2009 (8) SCC 556 the Hon'ble Supreme Court maintained the findings recorded by the Industrial Court in that case that the employer indulged in unfair labour practice by not regularizing the workmen though posts of cleaners existed with the Corporation (see para Nos. 43 and 44 of the judgment given in Maharashtra State Road Transport Corporation Vs. Casteribe Rajya Parivahan Karmachari Sanghatana).
The Hon'ble Supreme Court found that the two complaints filed by Casteribe Rajya Parivahan Karmachari Sanghatana were not maintainable for seeking redressal of grievance regarding unfair labour practice under Item 6 of Schedule IV of the Act of 1971, but granted ::: Uploaded on - 04/03/2017 ::: Downloaded on - 27/08/2017 15:22:59 ::: Judgment 13 wp5137.04+7.odt relief to the workmen under Article 142 of the Constitution of India. In the present case, the complaints are filed by the workmen. The Industrial Court has recorded that 21 posts of Safai Coolies were vacant with the Municipal Council. There is nothing in the memo of petition filed by the Municipal Council to show that the finding recorded by the Industrial Court that 21 posts of Safai Coolies were vacant on the establishment of the Municipal Council, is unsustainable.
8. The employer opposed the claim of the employees on the ground that while engaging / appointing the employees prescribed procedure was not followed. It is undisputed that the employees had been working with the Municipal Council for several years. The Industrial Court has recorded finding that 21 posts of Safai Coolies were vacant. It is presumed that the engagement/ appointments of the employees was as per prescribed procedure. The Municipal Council has not brought any evidence on record to substantiate its contention that the engagement/ appointment of the employees was not as per the prescribed procedure. Therefore, this submission also cannot be accepted.
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9. In view of the above, I find that the order passed by the Industrial Court is proper and cannot be faulted with. I see no reason to interfere with the impugned order. The petition is dismissed.
The petitioner Municipal Council has not rendered any assistance at the time of hearing of the writ petitions. Therefore, the Municipal Council shall pay costs of Rs.5,000/- in each of the petition to the employee and produce receipt of it on the record of this petition within two months.
JUDGE RRaut..
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