Bombay High Court
Municipal Council Higanghat, Thr. ... vs Sau Rekha W/O Vijaysingh Solanki, ... on 28 January, 2016
Author: Z.A. Haq
Bench: Z.A. Haq
1 wp3406.08
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO .3406 OF 2008
Municipal Council,
Hinganghat, through its Chief Officer,
Hinganghat, District-Wardha. .... PETITIONER
VERSUS
1) Sau. Rekha w/o Vijaysingh Solanki,
R/o C/o Municipal Council, Hinganghat,
District-Wardha.
2) Regional Director of Municipal
Administration, State Transport
Building, 32nd Floor, Worli, Mumbai-30.
(Maharashtra) .... RESPONDENTS
______________________________________________________________
Shri Anjan De, Advocate for the petitioner,
Shri M.V. Mohokar, Advocate for the respondent No.1,
Ms. H.N. Prabhau, A.G.P. for the respondent No.2.
______________________________________________________________
CORAM : Z.A. HAQ, J.
DATED : 28
JANUARY, 2016.
th
ORAL JUDGMENT :
1. Heard Shri Anjan De, learned Advocate for the petitioner-
employer, Shri M.V. Mohokar, learned Advocate for the respondent No.1-employee and Ms. H.N. Prabhu, learned Assistant Government ::: Uploaded on - 04/02/2016 ::: Downloaded on - 31/07/2016 02:39:57 ::: 2 wp3406.08 Pleader for the respondent No.2.
2. The petitioner-employer has challenged the order passed by the Industrial Court allowing the complaint filed by the respondent No.1-employee and directing the employer to regularise the services of the employee with effect from 17-09-1997 and to make available all the consequential benefits from that day.
3. Shri Anjay De, learned Advocate for the petitioner-
employer has submitted that during the relevant period, the sanctioned post was not available on the establishment of the petitioner to enable the petitioner to regularise the services of the respondent No.1.
Relying on the provisions of Section 76 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965, it is submitted that prior approval of the Regional Director, Municipal Administration is required for creation of additional posts and the respondent No.1 has not been able to show that sanctioned posts were available with the petitioner and still the services of the respondent No.1 were not regularised. It is submitted that the Industrial Court has failed to frame this relevant issue and therefore, the impugned order is unsustainable. It is prayed that the impugned order be set aside and ::: Uploaded on - 04/02/2016 ::: Downloaded on - 31/07/2016 02:39:57 ::: 3 wp3406.08 the matter be remitted to the Industrial Court for considering the matter afresh after framing the relevant issue and giving an opportunity to the parties to prove their case. In support of the submission, the learned Advocate has relied on the judgment given by this Court in Writ Petition No.5632/2013 and connected matter on 16-01-2014.
4. It is further submitted that the services of the respondent No.1 cannot be regularised only because she had been continued in the employment for several years. It is submitted that the Industrial Court ought to have examined as to whether the sanctioned posts were available on the establishment of the petitioner to enable the petitioner to regularise the services of the respondent No.1. To support this contention, the learned Advocate has relied on the judgment given by this Court in the case of Municipal Council vs. Jaiwantabai w/o Wanvas Meshram reported in 1998(3) Mh.L.J. 765 and the judgment given by the Hon'ble Supreme Court in the case of Hari Nandan Prasad and Another vs. Employer I/R to Management of Food Corporation of India and Another reported in (2014) 7 SCC 190.
5. Shri Anjan De, learned Advocate has pointed out the ::: Uploaded on - 04/02/2016 ::: Downloaded on - 31/07/2016 02:39:57 ::: 4 wp3406.08 seniority list (Exhibit No.27 on the record of the Industrial Court) and has submitted that the name of the respondent No.1 appears at Sr. No.181 and her date of appointment is shown as 21-09-1993 and it is admitted that the respondent No.1 had not taken any objection to the details mentioned in the seniority list. It is submitted that as per the directions given by the Regional Director of Municipal Administration by the communication dated 22-08-2006, the services of the employees who were appointed prior to 10-03-1993 were only to be regularised and the date of appointment of the respondent No.1 is 21-09-1993.
6. It is submitted that the Industrial Court has committed an error in recording that the petitioner has illegally deprived the respondent No.1 the benefit of regularisation and has regularised the services of Shri Tunna and Shri Satpute who are junior to the respondent No.1 and whose names are not found in the seniority list (Exhibit No.27). The learned Advocate for the petitioner has submitted that the Chief Officer of Municipal Council has stated in his evidence that the appointment of Shri Tunna and Shri Satpute are made as per the procedure and this fact is not controverted by the respondent No.1. It is submitted that the respondent No.1 has not been able to establish that Shri Tunna and Shri Satpute are junior to ::: Uploaded on - 04/02/2016 ::: Downloaded on - 31/07/2016 02:39:57 ::: 5 wp3406.08 the respondent No.1. It is prayed that the impugned order be set aside and the complaint filed by the respondent No.1 be dismissed.
7. Shri M.V. Mohokar, learned Advocate for the respondent No.1 has pointed out that the claim of the respondent No.1 is that she was working in the school administered by the petitioner, since 11-12-1992 and to support this, the respondent No.1 had filed the experience certificates issued by the Head Master of the school which are on the record of the Industrial Court at Exhibit No.24 and Exhibit No.25. It is submitted that the Industrial Court, relying on the above documents has recorded the finding of fact that the respondent No.1 was working in the school administered by the petitioner since 11-12-1992 and therefore, she was entitled for regularisation as per the communication sent by the Regional Director of Municipal Administration on 22-08-2006. It is further submitted that the respondent No.1 had specifically pleaded that Shri Tunna and Shri Satpute were absorbed and their services were regularised though they were junior to the respondent No.1. It is argued that inspite of the specific case of the respondent No.1 in this regards, the petitioner has failed to produce any material on the record to show that Shri Tunna and Shri Satpute are not junior to the respondent No.1 and that their ::: Uploaded on - 04/02/2016 ::: Downloaded on - 31/07/2016 02:39:57 ::: 6 wp3406.08 services are regularised properly and as per the communication issued by the Regional Director of Municipal Administration on 22-08-2006.
The learned Advocate has submitted that in these facts, the reliance placed by the learned Advocate for the petitioner on the judgments cited by him, is misplaced and they are not relevant for deciding the controversy. It is submitted that now the respondent No.1 is on the verge of retirement and she has been continued on daily wages throughout and therefore, it cannot be said that the services of the respondent No.1 are not required to be regularised. It is prayed that the impugned order be maintained and the petition be dismissed.
8. Ms. H.N. Prabhu, learned Assistant Government Pleader has submitted that the services of the respondent No.1 cannot be regularised as the respondent No.1 has not been able to show that her appointment is made after following the prescribed procedure. It is further submitted that the expenditure of the petitioner has already crossed the permissible limit and therefore, the petitioner cannot be burdened with additional expenditure of making payment to the respondent No.1 by regularising her services.
9. After examining the documents placed on the record of ::: Uploaded on - 04/02/2016 ::: Downloaded on - 31/07/2016 02:39:57 ::: 7 wp3406.08 the petition and the original record of the Industrial Court, I find that the respondent No.1 came out with the case that she had been working in the school administered by the petitioner from 11-12-1992. To substantiate this contention, the respondent No.1 has placed on the record, the experience certificates issued by the Head Master of the school. The petitioner has failed to discharge its burden and has neither pleaded to the contrary, nor has produced the documentary evidence to falsify the claim made by the respondent No.1. The petitioner has not given any explanation as to why the relevant documents of the concerned school are not produced by which it could have falsified the claim of the respondent No.1 and could have shown that the respondent No.1 was not working in the school since 11-12-1992. Similarly, in spite of the specific pleading of the respondent No.1 that the services of Shri Tunna and Shri Satpute, whose names are not appearing in the seniority list (Exhibit No.27) and who are junior to the respondent No.1, have been regularised.
However, the petitioner has again failed to discharge its burden by producing the documents and leading evidence to show that Shri Tunna and Shri Satpute are not junior to the respondent No.1 and that their appointments are made as per the prescribed procedure. The Industrial Court has rightly appreciated the pleadings, documents and ::: Uploaded on - 04/02/2016 ::: Downloaded on - 31/07/2016 02:39:57 ::: 8 wp3406.08 the evidence on the record and has rightly concluded that the respondent No.1 has established that she had been in the employment of the petitioner since 11-12-1992 and the services of Shri Tunna and Shri Satpute who are junior to the respondent No.1, have been regularised. The petitioner has not been able to point out any illegality or perversity in the findings recorded by the Industrial Court.
Consequently the conclusions of the Industrial Court that the services of the respondent No.1 are to be regularised with effect from 17-09-1997 i.e. on the date on which the services of Shri Tunna and Shri Satpute are regularised, cannot be faulted with.
10. In view of the above findings, the reliance placed by the learned Advocate for the petitioner on the judgments cited by him is of no assistance to the petitioner. The issue of availability of sanctioned post on the establishment of the petitioner does not arise in the facts of the case. The relief is granted to the respondent No.1 on the ground that she had been in the employment of the petitioner since 11-12-1992 and even according to the petitioner, the services of the employees who were in the employment of the petitioner prior to 10-03-1993 are to be regularised. The relief is granted to the respondent No.1, further on the ground that the services of Shri Tunna ::: Uploaded on - 04/02/2016 ::: Downloaded on - 31/07/2016 02:39:57 ::: 9 wp3406.08 and Shri Satpute who are junior to the respondent No.1, have been regularised.
11. In view of the above, I see no reason to interfere with the impugned order. The petition is dismissed. In the circumstances, the parties to bear their own costs.
JUDGE pma ::: Uploaded on - 04/02/2016 ::: Downloaded on - 31/07/2016 02:39:57 :::