Bombay High Court
Municipal Council vs Ku. Vibhavqari Vithal Saraf on 30 July, 2010
Author: K.U.Chandiwal
Bench: K.U.Chandiwal
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT NAGPUR
WRIT PETITION NO. 2390/1997
Municipal Council, Rajura,
through its Chief Officer,
R/o. Rajura, Distt. Chandrapur. Petitioners.
..versus..
1. Ku. Vibhavqari Vithal Saraf,
2. Rajjivan Domaji Waghmare
3. Dilip Bhagwan Umare
4. Rameshwar Trembak Raipure,
5. Ku. Babinanda Vithalrao Junghare,
6, Jahir Ahmad Burank Khan,
7. Mohammad Anwar Sheikh Bapumiya,
8. Sanjay Shankar Nishane,
9. Anand Patruji Zade,
10. Industrial Court, Maharashtra,
Naqgpur Bench, Nagpur.
11. Labour Court, Chandrapur.
12. State of Maharashtra,
through Regional Director,
Municipal Administrtion, Nagpur. Respondents.
AND
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2
WRIT PETITION NO. 3590/2006
Municipal Council, Rajura,
through its Chief Officer,
R/o. Rajura, Distt. Chandrapur. Petitioners.
..versus..
1. State of Maharashtra,
through Regional Director,
Municipal Administrtion, Nagpur.
2. Ramdas Govinda Umre
3. Industrial Court, Maharashtra,
Naqgpur Bench, Nagpur.
4.. Labour Court, Chandrapur. Respondents.
AND
WRIT PETITION NO. 1868/2006
Municipal Council, Rajura,
through its Chief Officer,
R/o. Rajura, Distt. Chandrapur. Petitioners.
..versus..
1. Purushottam Bhagwan Ragit,
2, Sanjay Ganpatrao Kondawar,
3. Kishor Babarao Jaipurkar,
4. Industrial Court, Maharashtra,
Naqgpur Bench, Nagpur.
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3
5. Labour Court, Chandrapur.
6. State of Maharashtra,
through Regional Director,
Municipal Administrtion, Nagpur.
7, Commissioner and Director,
Municipal Administration Government
Parivahan Sewa, Govt. Transport Service
Building, 3rd Floor, Mumbai. Respondents.
=-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Shri S.V.Sirpurkar, Counsel for petitioners.
Shri Manoj Rajan Pillai, counsel for respondents in WP 2390/97
Mrs. U.A.Patil, counsel for respondents in WP 3590 * 1868 of 2006
Shri A.D.Sonak, AGP, for Respondent State.
=================================================
C ORAM
: K.U.CHANDIWAL, J.
DATED : 30th JULY, 2010.
Judgment
Heard.
These three writ petitions are heard together and disposed of by common order as the issue involved relates to the employees of Municipal Council, Rajura.
2) The Municipal Council, Rajura, feels aggrieved by the judgment of learned Labour Court, Chandrapur, allowing the complaint moved by the daily-
wagers and affirmed by the learned Member, Industrial ::: Downloaded on - 09/06/2013 16:13:14 ::: 4 Court, Maharashtra, Nagpur Bench, directing reinstatement of the daily-wagers/employees, with continuity in service and full back-wages of their respective posts w.e.f. 30.9.1988, by order dated 7.8.1996.
3) The Municipal Council urged as under;
(a) In view of the Resolution passed by the Standing Committee dated 5.11.1987, the appointment of Respondent nos. 1 to 9 were only on temporary basis for certain exigencies and no right accrued to them.
(b) Municipal Council, Rajura, was a Corporate Body and provisions of the Maharashtra Municipalities Act, 1965, were applicable to it, it cannot afford expenses beyond 42% of its annual budget on its establishment, while the expenses incurred were much above the prescribed limit, consequently it was unable to make salaries.
(c ) The Government had directed the Municipal Council to reduce the strength of 94 workers as 31 posts only were sanctioned, hence, petitioner retained services of 31 persons in view of the Meeting of Standing Committee held on 15.3.1988.
(d) There was valid notice of termination since there was no question of "last cum-first go"
question of seniority list in cases of daily- wagers.::: Downloaded on - 09/06/2013 16:13:14 ::: 5
(e) The respondents were terminated by termination order dated 30.9.1988, and they were informed for their entitlement to one month's salary and also retrenchment compensation in terms of Section 25F of Industrial Disputes Act. The respondents were informed that the amount was deposited with the Treasury of Municipal Council, Rajura, and could be lifted by them during the office hours.
(f) The respondents/employees have also accepted the retrenchment compensation except respondent nos. 1 and 5, namely Ku.
Vibhavaqri and Ku. Babinanda. Thus, fact that, all 7 out of 9 employees, had accepted the retrenchment compensation, would demonstrate that correct amount as per law was paid and made available and it was so accepted by the employees.
(g) Non acceptance of the amount by respondent nos. 1 and 5 inspite of such offer would not vitiate action of the Municipal Council.
(h) The appointment of the employees being on temporary basis and it was indeed associated with availability of work, it will not confer right of any particular posts in favour of the respondents.
(i) There was no challenge from these employees/ respondents to the recruitment of 31 workers, who were retained in service.
(j) The case of respondent no.3 - Dilip Bhagwan Umre, is not considered by the Labour Court and also by the learned Member, Industrial Court, consequently the respondent no. 3 in the present proceeding is a formal party.
::: Downloaded on - 09/06/2013 16:13:14 ::: 64) The learned counsel for the respondents made following averments, and canvassed, no interference is required in the order under challenge.
(A) The employees were appointed in Class III and Class IV posts w.e.f. 13.12.1987 and services were terminated on 30.9.1988.
(B) The respondents have completed 240 days of continuous service and therefore, termination was in violation of Section 25-F, 25-G and Rule 81 of the Industrial Disputes Act.
(C) The posts were duly advertised and after constituting the due Selection Committee, the respondents were appointed by undergoing recruitment process effected by the Selection Committee.
5) The Regional Director of Municipal Administration, Nagpur, by letter dated 6.7.1988, informed the Municipal Council, during inspection carried by the District Employment Officer, Chandrapur, on 11th and 12th February, 1987, it reveals that Municipal Council had employed 30 employees vide Office Order dated 20/22.10.1986 with effect from 1.8.1986. Similarly, other 64 candidates have also been ::: Downloaded on - 09/06/2013 16:13:14 ::: 7 appointed on monthly and fixed daily-wages. The appointments were not in accordance with the Regulation 1959 - Section 4(1) of the Employment Office Government Resolution No. RTI-1080/12, dated 12.8.1980 and RIR-1080/12,dated 7.10.1980 of the Government of Maharashtra, General Administration Department. The Municipal Council was informed, the appointment of 94 candidates which have been illegally made by it be cancelled with immediate effect and action taken be informed to the Government (Regional Director) immediately. This letter/communication sparked for action to convene General Body Meeting dated 30.9.1988. Admittedly, there was no sanction for the posts and since the Municipal Council did not require the services of the daily-wager/employees, the employees are to be removed. The Chief Officer got momentum pursuant to such decision and hence activated the procedure. The employees were informed, they will be given one month's salary (basic pay) instead of one month's advance notice and also retrenchment compensation. This amount was to be collected during ::: Downloaded on - 09/06/2013 16:13:14 ::: 8 office hours from the Cashier, Municipal Council, Rajura. The employees were relieved on 30.9.1988.
6) Now, let us see the nature of individual appointments.
(i) Sanjay - Respondent No. 8 (Complaint No. 310 of 90) - He worked as helper since 1984 in Water Supply Department on daily-wages of Rs.10/- discontinued. After few years, he was appointed as labour vide order dated 13.12.1987 for a period upto 30.4.1988. His appointment was on temporary basis.
He was continued upto 30.9.1988.
(ii) The employee - Rajjivan - Respondent no. 2 (Complaint No. 312/90) was appointed as Valveman on 3.12.1987. He attended an interview held on 4.11.1987 and appointed in view of letter dated 27.11.87, worked upto 30.9.1988.
(iii) Mohammad Anwar - Respondent No.7 (Complaint No. 313/90) - He initially worked from 8.12.1983 as a labour at the rate of Rs.10/- per day. Thereafter he was again taken in the same cadre. His services ::: Downloaded on - 09/06/2013 16:13:14 ::: 9 were terminated on 30.11.1987. By order dated 3.12.1987, he was appointed as a labour, which he joined on 4.12.1987. His services were terminated on 30.9.1988.
(iv) Jahir Ahmad - Respondent no. 6 (Complaint No. 314/90) was appointed as a helper on 18.8.1986. By order dated 22.10.1986 he was appointed as a Naka Peon. His services were terminated on 26.11.1987. He was again appointed as a labour by order dated 3.12.1987, continued upto 30.9.1988.
(v) Anand Zade - Respondent No. 9 (Complaint 319/90) started working as a peon from 9.10.1985, for few days. He was posted as Clerk by order dated 15.4.1986 on temporary basis. He was terminated vide order dated 8.5.86. Thereafter again appointed w.e.f. 9.5.86 on a consolidated pay of Rs.400/- per month. he worked till 19.10.1986. Fresh appointment was issued on 22.10.1986, to treat him as Junior Clerk. His services were terminated w.e.f. 30.11.1987. By virtue of Resolution dated 16.3.1988, he was again appointed upto 30.9.1988.
::: Downloaded on - 09/06/2013 16:13:14 ::: 10(vi) Rameshwar - Respondent No. 4 (Complaint No. 320/90) was a peon w.e.f. 16.7.1987 on a consolidated salary of Rs.400/-. Fresh appointment order was issued to him on 3.12.1987, in the pay scale of Rs.200-280 as a peon, continued upto 30.9.1988.
(vii) Ku. Vibhavari - Respondent No.1 (Complaint No. 232/90) was a Junior Clerk from 3.12.1987, terminated on 30.9.1988.
(viii) Ku. Bebinanda - Respondent No. 5(Complaint No. 324/90) was appointed as a Clerk initially on 15.4.1986, terminated on 8.5.1986. Thereafter appointed on daily wages of Rs.10/- per day as a Clerk, then in a consolidated salary of Rs.400/-. On 22.10.1986 she was given fresh appointment as a Typist Clerk. She was terminated on 30.11.1987. She was again appointed as Junior Clerk on 3.12.1987, continued upto 30.9.1988.
(ix) Dilip Umre - Respondent No.3 (Complaint No. 222/90) worked as peon from 3.12.1987. His services were terminated on ::: Downloaded on - 09/06/2013 16:13:14 ::: 11 17.3.1988. He did not complete 240 days.
(x) Ramdas Umare (Respondent in WP 3590/06) has appeared for interview on 15.4.86 and by virtue of earlier Resolution of Standing committee dated 11.4.1986 he was temporarily appointed as a Junior Clerk in pay scale of Rs.260-10-290-15-420- increment-15-495. He was apprised, his services to be terminated any time without assigning any reason. He worked from 14.4.86 till 30.9.88.
(xi) Respondent Purushottam (ULP 300/1990) was taken as daily wager Safai Kamgar by order dated 15.04.1996. Later on he was confirmed in the post, getting regular salary.
(xii) Respondent Sanjay (ULP No.326/1990) worked as Peon from 04.11.1986.
(xiii) Respondent Kishore (ULP No.360/1990) worked as Safai Jamadar since 15.10.1986. He was then appointed as a clerk by order dated 03.12.1987 terminated on 30.09.1988.
::: Downloaded on - 09/06/2013 16:13:14 ::: 127) The grievance of each of the employees is, the resolution by which they were terminated was illegal and by way of victimization.
8] The learned counsel for the respondent took recourse to following judgments.
[a] Maharashtra State Road Transportation Corporation and another vs. Casteribe Rajya P. Karmarchari Sanghatana [2009 (12) Scale 25). The Apex Court considered the judgment of Constitution Bench in the matter of Secretary of State of Karnataka and others vs. Umadevi and others ([2006] 4 SCC 1) and observed that status of permanency cannot be granted by the Court where no such post exists and that executive functions and powers with regard to the creation of post cannot be arrogated by the Courts. In paragraph 26, it is observed;
"26. The question that arises for ::: Downloaded on - 09/06/2013 16:13:15 ::: 13 consideration is : have the provisions of MRTU & PULP Act denuded of the statutory status by the Constitution Bench decision in Umadevi. In our judgment, it is not. The purpose and object of MRTU & PULP Act, inter alia, is to define and provide for prevention of certain unfair labour practices as stated in Schedule II, II and I., MRTU & PULP Act empowers the Industrial and Labour Courts to decide that the person named in the complaint has engaged in or is engaged in unfair labour practice and if the unfair labour practice is proved, to ig declare that an unfair labour practice has been engaged in or is being engaged in by that person a nd direct such person to cease and desist from such unfair labour practice and take such affirmative action (including payment of reasonable compensation to the employee or employees affected by the unfair labour practice, or reinstatement of the employee or employees with or without back wages, or the payment of reasonable compensation), as may in the opinion of the Court be necessary to effectuate policy of the Act. The power given to the Industrial and Labour Courts under Section 30 is very wide and the affirmative action mentioned therein is inclusive and not exhaustive. Employing badlis, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees is an unfair labour practice on the part of the employer under item 6 of Schedule IV. Once such unfair labour practice on the part of the employer is established in the complaint, the Industrial and Labour Courts are empowered to issue preventive as well as positive direction to an ::: Downloaded on - 09/06/2013 16:13:15 ::: 14 erring employer. The provisions of MRTU & PULP Act and the powers of Industrial and Labour Courts provided therein were not at all under consideration in the case of Umadevi......"
The Apex Court also observed, the purpose and object of MRTU & PULP Act inter-alia is to define and provide for prevention of certain unfair labour practice as listed in Schedule II, III and IV. MRTU & PULP act empowers the Industrial Court and Labour Court to decide that the person named in the complaint has engaged in or is engaged in unfair labour practice and if the unfair labour practice is proved, to declare that an unfair labour practice has been engaged in or is being engaged in by that person and direct such person to cease and desist from such unfair labour practice and take such affirmative action (including payment of reasonable compensation of the employee or employees affected by the unfair labour ::: Downloaded on - 09/06/2013 16:13:15 ::: 15 practice, or reinstatement of the employee or employees with or without back wages, or the payment of reasonable compensation), as may in the opinion of the Court be necessary to effectuate policy of the Act.
[b] Management of M/s. Willcox Buckwell INdia Ltd vs. Jgannath and others [AIR 1974 SC 1166]. The Apex Court in paragraph 6 and 7 observed that, the services of the workmen were terminated on the grounds of surplus labour and if it is so, the provisions contained in Industrial Disputes Act relating to payment of retrenchment compensation would be attracted.
[c] Prakash Murlidhar Dalal vs. TATA Engineering and Locomotive Co. Ltd.
[ 1996(1) Mh.L.J. 654]. The case revolves to termination of services of employee appointed in TELCO on probation for a ::: Downloaded on - 09/06/2013 16:13:15 ::: 16 period of one year as Watchman. After completion of probation period, the Company by an order dated 22.2.1979 confirmed the complainant/workman as a Watchman. On 10th October, 1984, the complainant/workman was informed by the company that as a result of closure of its Regional Sales Office at Amravati, the services of the complainant has become surplus to its requirement and accordingly with effect from 15.10.1984, he would stand relieved from service. One month's pay in lieu of notice, retrenchment compensation @ 15 days per each completed year of service, ex gratia payment; gratuity, were paid by cheque. The court found that the Regional Sales Office at Amravati was not an independent Unit or independent establishment for that purpose. However, one of the watchman who was transferred from Amravati to Allahabad at the time of ::: Downloaded on - 09/06/2013 16:13:15 ::: 17 closure had died and therefore, there was vacancy at Allahabad. This fact was not specifically denied by the Company. The Court observed that, the retrenchment of the employee in breach of Section 25-G of the Industrial Disputes Act was not justified.
[d] Rajasthan Small Scale Industries Employees Union vs. State of Rajasthan (High Court of Rajasthan) [1990 (2) CLR 485]. The case revolve to termination of service of workman on account of closure of undertaking. The Division Bench observed that, the results arising out of retrenchment and closure for the workmen are the same, however, there is vital difference between the procedures for payment of compensation in case of retrenchment and that of closure.
[e] Rup Naren Shukla vs. Learned Presiding Officer, Industrial Tribunal [ 1997 (2) CLR ::: Downloaded on - 09/06/2013 16:13:15 ::: 18 279]. The Division Bench was dealing with the provisions and applicability of Section 25-F of the Industrial Disputes Act.
[f] Damodar Mahipat Gawande vs. Deputy Engineer, G.S.D.A.Buldhana [2010 (4) Mh.L.J. 96] Benefit of permanency was considered. It was observed, the moment the employee completes 240 days of continuous service and if the work of permanent nature is available, whether post was sanctioned or not, the employee would be entitled to the benefit of permanency.
[g] In the matter of Pramod Jha and others vs. State of Bihar and others [2003(4) Mh.L.J. 214], the Apex Court while explaining the scope of Section 25-F of the Industrial Disputes Act, observed that the underlying object of Section 25-F is twofold. Firstly, a retrenched employee must have one month's ::: Downloaded on - 09/06/2013 16:13:15 ::: 19 time available at his disposal to search for alternate a employment, and so, either he should be given one month's notice of the proposed termination or he should be paid wages for the notice period. Secondly, the workman must be paid retrenchment compensation at the time of retrenchment, or before, so that once having been retrenched there should be no need for him to go to his employer demanding retrenchment compensation and the compensation so paid is not only a reward earned for his previous services rendered to the employer but is also a sustenance to the worker for the period which may be spent in searching for another employment.
9] The learned counsel for the petitioner heavily relied to the judgment in the matter of Secretary, State of Karnataka and others vs. Umadevi and others [2006 (4) SCC 1] and also on the following judgments.
::: Downloaded on - 09/06/2013 16:13:15 ::: 20i] Satyaprakash and others vs. State of Bihar and others [2010 (4) SCC 179] ii] Ghaziabad Development Authority and another vs. Ashok Kumar and another [2008 (I) CLR 892 SC] iii] Central Bank of India vs. Presiding Officer and another [2008 (II) CLR 1020] iv] Executive Engineer and another vs. Presiding Officer Labour Court and another; [2008 (III) CLR 888] v] U.P. State Brassware Corporation Ltd and another vs. Uditnarayan Pande [2006 (1) SCC 479] vi] Mohammad Shaukat Ali vs. Industrial Labour Court, Warangal and others [2008 (I) CLR 144] 10] The Apex Court in the matter of Umadevi in paragraph 43, 45 and 47 has observed as under;
::: Downloaded on - 09/06/2013 16:13:15 ::: 21"43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, ::: Downloaded on - 09/06/2013 16:13:15 ::: 22 regularisatioin, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as "litigious employment" in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.
45. While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a consideration length of time. It is not as if the person who accept an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain - not at arm's length - since he might have been searching for some employment so as to eke out his livelihood and ::: Downloaded on - 09/06/2013 16:13:15 ::: 23 accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment.
It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, ::: Downloaded on - 09/06/2013 16:13:15 ::: 24 it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not (sic) one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution.
47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post."
11] The respondents/employees were found to be surplus than the requirement of Municipal Council.
::: Downloaded on - 09/06/2013 16:13:15 ::: 25The appointment of the respondents/employees was on an unsanctioned post. They were daily wagers. It is a matter of record, the Municipal Council is sympathetic for the employees and a proposal was even sent to the Government for absorption of the employees. However, it could not be done.
12] In M.P. State Agro Industries vs. S.C. Pande [2006 (2) SCC 716], the Apex Court reiterated that completion of 240 days continuous service does not by itself confer any legal right for permanency. It is also explained in the said judgment, if two statutes are governing the employee, one dealing with the selection and appointment, while the other relating to the terms and conditions of service, an endeavour should be made to give effect to both the statutes. However, it is clarified that daily-wager does not hold any post as he is not appointed in terms of the provisions of the Act and Rules framed thereunder and in that view of the matter, he does not derive any legal right.
::: Downloaded on - 09/06/2013 16:13:15 ::: 26The Apex Court while dealing with the matter also referred to the judgment of MP Housing Board vs. Manoj Shrivastava [2006 (2) SCC 702]. In the matter of Manoj Shrivastava, the Apex Court has categorically held that daily-wager does not hold the post or derive any legal right in relation thereto, unless he is appointed, (a) against a duly sanctioned vacant post and (b) upon following the statutory law operating in the filed. If the appointment is made in contravention of either of the two requirements, such appointment would be void and such appointment does not confer any legal right on the appointee.
13] A question was raised of non-compliance of Section 25-F, however, on perusal of record, it is seen, the respondents have been served of termination notice and they were paid one month's salary and the retrenchment compensation. The observation of the learned Labour Court that the procedure of retrenchment is not followed is contrary to law. Almost all the employees, as indicated above, have collected ::: Downloaded on - 09/06/2013 16:13:15 ::: 27 the amount which was deposited in their accounts with Municipal Council. The order was issued on 3rd September, 1988, effective from 30.9.1988 and the employees collected the charges on 03.10.1988. It was for the employees to collect the amount which was credited in their account. It cannot be said, there is violation of Section 25-F in the spirit it was envisaged.
The Apex Court, in the matter of Jagbir Singh vs. Haryana State Agriculture Marketing Board (2009) 15 SCC 327, in paragraph 14, has observed as under;
"14. It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee".::: Downloaded on - 09/06/2013 16:13:15 ::: 28
14] The other contention that was raised was, no seniority list was made/published. There could not be a seniority list, as a list of temporary 94 workers was prepared by the Municipal Council. The employees were in different categories. Some were Clerks,Peon, Valveman etc., The list could not be treated to be a seniority list, which is primarily available for permanent employees. The appointment of the respondents, as could be seen, was a daily-wager, temporary and not on a sanctioned posts. It was clearly in excess of the sanctioned strength, including excess of budget expenses of the Municipal Council. The Municipal Council, as stated earlier, though showered sympathies, it was the lasso of Government, which forced it to relieve excess workers and retain service of 31 persons, pursuant to meeting held of the Standing Committee on 15.3.1988.
15] It was said that termination was in violation of Section 25-G and Rule 81. However, as indicated above, the list of temporary employees could not be ::: Downloaded on - 09/06/2013 16:13:15 ::: 29 prepared and it cannot be said that 'last come first go"
principle was not adhered to. The said rule would be applicable when the respondent belongs to a particular category of workman. It is for the employer to consider case of a suitable workman to discharge specialized activity, than strictly adhering to the so called seniority.
The termination of services was with other temporary employees. These respondents have never challenged recruitment of 31 workers who were retained as daily-
wagers.
16] The advertisement to which reference is given was not for regular appointment in all category.
As could be seen, though all these employees were appointed on temporary basis to meet exigencies, their period illustrated herein above also highlight that it was for a limited duration. The employees though had worked in past as labour or valveman, however, it was not a continuous service. They were on daily-wages of Rs.10/- or so. If actual period of employment strictly applied, barely few employees could be within the ::: Downloaded on - 09/06/2013 16:13:15 ::: 30 bracket of completing 240 days before their termination.
17] The retrenchment notice also highlight the grounds for discontinuation of the temporary services of the respondents. The respondents were aware and conscious that from the temporary wagers, junior most workers were removed from the service. It cannot be said, that a discrimination was adhered to by the authorities in retaining few of the labours/clerks. The daily-wagers/respondents were certainly not appointed against any post. They were appointed according to need of the work and they had no right to posts. They were surplus in view of the Government as their appointment was in excess of staff pattern. The appointment was abrupt and arbitrary as no list of unemployed deserving/suitable candidate from Employment Exchange was invited. Hence, the disengagement by issuing termination notice and pay retrenchment charges, would not reflect to be a arbitrary affair.::: Downloaded on - 09/06/2013 16:13:15 ::: 31
18] The learned counsel representing the Municipal Council has stated that a proposal was sent to the Government for its sanction and after receipt of the same, a resolution was to be taken for absorption of the respondents in the employment of the municipal Council. It was informed during the course of the submission that the Government has not yet taken policy decision on the resolution moved by the Municipal Council. The learned counsel for the Municipal Council reiterates, no sooner the Government approves the resolution, the Municipal Council will be able to absorb the respondents wherever such posts are available or to provide appropriate work to them.
19] The petitioner in an affidavit dated 9/5/08 in W.P. No.1868/2006 has mentioned as under;
"2. Petitioner further submits that, since the year 1999, State Government has closed Octroi Check Posts and therefore, process for absorption of Class III and Class IV staff at those check posts is going on.
3. Petitioner states that the State Government has accorded sanction to 32 permanent posts ::: Downloaded on - 09/06/2013 16:13:15 ::: 32 of Class III and 37 permanent posts of Class IV. Out of these sanctioned posts, 18 posts of Class III and 27 posts of Class IV are already filled up. Remaining 14 Class III posts are of technical nature and, therefore, the power to make appointment on the said posts vests in the Selection Committee.
4. Petitioner further states that, as on today, as the expenditure of the petitioner council is more than 60%, no vacant posts are filled in. Petitioner states that, besides these 14 posts in Class III which are of technical nature, no posts in Class III and IV are vacant as on today in the petitioner Municipal Council, and until the staff from Octroi Department is absorbed, it will not be possible for the petitioner council to fill in any vacancy.
These factual details also warrants consideration applying test for reinstatement of respondents. It would be neglecting claims of employees who worked as permanent employees and have now been found excess.
20] The analysis of the above details illustrate that the Municipal Council is also helpless in appointment the respondents. Even if it is accepted that there was a continuous length of service by the daily-
wagers as they have canvassed, by virtue of the excess strength of employees, the period during which the ::: Downloaded on - 09/06/2013 16:13:15 ::: 33 services were rendered, the Municipal Council has stopped some of its activities, the order of termination being of 1988, it will not be a fit case to direct the respondents to be reinstated in service.
21] The discretion in the Industrial Court is to be exercised judiciously. The relevant factors essential as indicated above including nature of appointment should also have its impact with the Court for determination of such issue. The length of time spent in litigation, reinstatement by itself would not provide the answer. I feel, having regard to the facts and circumstances of the case, each of the respondents/employees except respondent no. 2 - Dilip Bhagwan Umre should be paid an amount of Rs.1,00,000/- (Rupees One Lakh) by the Municipal Council. It would meet ends of justice. It would be subject to decision of Government, if the Government takes a policy decision to absorb the employees pursuant to the resolution of Municipal Council dated 18.1.2007, preference will be given to the respondents.::: Downloaded on - 09/06/2013 16:13:15 ::: 34
The Apex Court, in the matter of Sita Ram and others vs. Motilal Nehru Farmers Training Insitute, [(2008) 5 SCC 75], considered the question as to whether the Labour Court was justified in awarding reinstatement and observed in paras 21, 22, 23, 24, & 25, as under.
"21. The question, which, however, falls for our consideration is as to whether the Labour Court was justified in awarding reinstatement of the appellants in service.
22. Keeping in view the period during which the services were rendered by the respondent (sic appellants); the fact that the respondents had stopped its operation of bee farming, and the services of the appellants were terminated in December, 1996, we are of the opinion that it is not a fit case where the appellants could have been directed to be reinstated in service.
23. Indisputably, the Industrial Court, exercises a discretionary jurisdiction, but such discretion is required to be exercised judiciously. Relevant factors therefor were required to be taken into consideration; the nature of appointment, the period of appointment, the availability of the job, etc., should weigh with the court for determination of such an issue.::: Downloaded on - 09/06/2013 16:13:15 ::: 35
24. This court in a large number of decisions opined that payment of adequate amount of compensation in place of a direction to be reinstated in service in cases of this nature would subserve the ends of justice. (See Jaipur Development Authority vs. Ramsahai, M.P. Admn. V. Tribhuban and Uttaranchal Forest Development Corpn vs. M.C.Joshi).
25. Having regard to the facts and circumstances of this case, we are of the opinion that payment of a sum of Rs.1,00,000/- to each of the appellfyduhants, would meet the ends of justice. This appeal is allowed to the aforementioned extent. In the facts and circumstances of this case, there shall be no order as to costs."
22] The order of the learned Judge, Labour Court and that of learned Member, Industrial Court.
Chandrapur, requires interference as the compliance of Section 25-F, 25-G, of Industrial Disputes ACt, Rule 81 is reflected, that apart, necessary retrenchment charges are paid to the employees. The employees were not appointed against regular posts, it was more or less a back door entry on the part of daily-wages to meet the exigencies of work in the Municipal Council. Hence the following order.
::: Downloaded on - 09/06/2013 16:13:15 ::: 36(A) The Judgment of the learned Labour Court, Chandrapur, dated 7.8.1996 and of the Member, Industrial Court, Nagpur, dated 16.6.1997, challenged in Writ Petition No.2390/1997; Judgment of learned Labour Court, Chandrapur, dated 18.06.1997 and of the Member, Industrial Court, Maharashtra, Chandrapur Bench, dated 23.02.2006 challenged in Writ Petition No. 3590/2006 and Judgment of learned Labour Court, Chandrapur, dated 25.06.2002 and of the Member, Industrial Court, Maharashtra, Chandrapur Bench, dated 20.09.2005 challenged in Writ Petition No. 1868/2006 are set aside.
(B) The Municipal Council, Rajura shall pay an amount of Rs.1,00,000/- (Rupees One Lakh) each to the respondents/employees in each of the writ petitions except respondent No. 2 -
Dilip Bhagwan Umre of Writ Petition No. 2390/97.
::: Downloaded on - 09/06/2013 16:13:15 ::: 37(c ) The respondents/employees shall be eligible to be considered for employment in the Municipal Council, Rajura, if the Government of Maharashtra takes a decision on its own merits, to absorb employees pursuant to the Resolution of the Municipal Council dated 18.1.2007, or as per the Government Policy.
(d) The Government is expected to take decision on the proposal of absorption within three months from receiving the copy of order through learned AGP. If the Government favouably decides in favour of the employees/ respondents, the respondents shall not be entitled to claim the amount of Rs.1 lakh indicated herein above.
(e) If the Government does not take a positive decision for absorption of the respondents/ employees in the Municipal Council, Rajura, ::: Downloaded on - 09/06/2013 16:13:15 ::: 38 then within a period of three months thereafter, the Municipal Council, Rajura, to pay and disburse the amount of Rs.1,00,000/- each to the Respondent/employees as indicated herein above.
No costs.
(K.U.Chandiwal) JUDGE.
Rvjalit ::: Downloaded on - 09/06/2013 16:13:15 :::