Bombay High Court
Municipal Labour Union vs State Of Maharashtra Through Secretary ... on 28 November, 2018
Author: Sandeep K. Shinde
Bench: A.S.Oka, Sandeep K. Shinde
901-CAW-1871-2015.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL APPLICATION NO.1871 OF 2015
IN
WRIT PETITION NO.5988 OF 2013
WITH
WRIT PETITION NO.1753 OF 2011
Municipal Labour Union ... Applicant
IN THE MATTER BETWEEN:
Municipal Labour Union ...Petitioner
Vs
State of Maharashtra & Ors. ... Respondents
...
Mrs. Neeta Karnik for the Applicant.
Ms. Sharan D'Souza I/by Global Juris Consults for the Petitioner in WP 1753/2011.
Mrs. R.A.Salunkhe AGP for the Respondent Nos.1 and 4 in Civil Application and for Respondent No.1 in WP 1753/2011. Mr. K.S.Bapat I/by Mr. Mandar Limaye for Respondent Nos.2 and 3 in Civil Application.
Mr. R.S.Apte, Sr.Adv. I/by Mr. Mandar Limaye for Respondent Nos.2 and 3 in WP 1753/2011.
CORAM : A.S.OKA & SANDEEP K. SHINDE JJ.
DATE : 28 NOVEMBER, 2018 P.C. :
Heard learned counsel appearing for the Applicant.
Heard the learned AGP for the first and fourth Respondents. Heard Shivgan 1/12 ::: Uploaded on - 06/12/2018 ::: Downloaded on - 30/12/2018 09:54:35 ::: 901-CAW-1871-2015.odt the learned counsel appearing for the second and third Respondents.
2 The main Petition (Writ Petition No.5988 of 2013) has been admitted for final hearing. Our attention is invited to the order dated 23rd October, 2013 passed by this Court while issuing Rule. Paragraphs 2 to 5 of the said order read thus:
"2 The learned counsel appearing for the second and third Respondents tenders across the Bar a compilation of documents. He also tenders a copy of proposal dated 22nd October, 2013 addressed by the Commissioner of the second Respondent Municipal Corporation to the Secretary of the Town Development Department of Government of Maharashtra. He states that though there is an error in the subject in the said proposal, in fact the proposal is for creation of 96 posts of Safai Kamgars on the establishment of third Respondent - Hospital and the Medical College which is attached to the said Hospital. He states that the said proposal will be forwarded today.
3 He states that a proposal shall be placed before the General Body of the Municipal Corporation on 20 th November, 2013 in terms of assurance of the Municipal Corporation recorded in the minutes of the meeting held on 7th May, 2010. The said assurance was given on behalf of the Municipal Corporation by its Deputy Commissioner Mr. Balaji Khatgaonkar. The said assurance is noted on page 128 of the petition.Shivgan 2/12 ::: Uploaded on - 06/12/2018 ::: Downloaded on - 30/12/2018 09:54:35 :::
901-CAW-1871-2015.odt 4 We accept the statements made by the learned counsel appearing for the second and third Respondents, on instructions.
5 The proposal which may be submitted today by the Municipal Corporation to the State Government for creation of posts as aforesaid, shall be considered by the State Government and appropriate decision shall be taken thereof as expeditiously as possible and preferably within a period of two months from today."
(underline supplied) 3 Accordingly, the proposal dated 22nd October, 2013 for creating 96 posts of 'Safai Kamgars' was submitted by the second Respondent-Municipal Corporation to the State Government (the Principal Secretary-2 of the Urban Development Department). It is an admitted position that till today, no decision has been taken by the State Government on the said proposal. There was a specific direction issued in terms of Clause 5 of the order dated 23 rd October, 2013 directing the State Government to take a decision thereon as expeditiously as possible and preferably within a period of two months from 23rd October, 2013. The present Civil Application is pending from the year 2015. There is no Shivgan 3/12 ::: Uploaded on - 06/12/2018 ::: Downloaded on - 30/12/2018 09:54:35 ::: 901-CAW-1871-2015.odt explanation placed on record by the State Government as to why there is a non-compliance with the directions issued in paragraph 5 of the order dated 23rd October, 2013 almost for a period of 5 years. Therefore, the only prima-facie conclusion which can be drawn is that the non-compliance is willful and deliberate especially when this Civil Application is pending from the year 2015 in which there is a prayer for initiating action for non-compliance with the order dated 23rd October, 2013.
4 Accordingly, we direct Registry to issue a notice under Rule 9(1) of the Contempt of Courts (Bombay High Court) Rules, 1994 to Shri Shrikant Singh, the Principal Secretary-2, Urban Development Department returnable on 14th December, 2018 at 3.00 p.m. 5 Our attention is invited to what is recorded in the minutes of the meeting held on 7th May, 2010 a copy of Shivgan 4/12 ::: Uploaded on - 06/12/2018 ::: Downloaded on - 30/12/2018 09:54:35 ::: 901-CAW-1871-2015.odt which is annexed at Exhibit 'X' to the Writ Petition. An assurance was given on behalf of the second Respondent- Municipal Corporation in the said meeting convened by the Secretary of the Labour Department of the State Government that a proposal for paying salary to the contract workers on par with the regular workers will be placed before the next General Body meeting. The said assurance was given on behalf of the second Respondent by the Deputy Commissioner. The order dated 23rd October, 2013 and in particular paragraph 3 thereof refers to the said assurance and records a statement that the proposal will be placed before the General Body meeting of the second Respondent on 20th November, 2013.
6 Accordingly, the proposal was placed before the General Body meeting of 19th December, 2013 and the said proposal to pay the salary to the contract workers which is payable to the regular workers was approved. The Shivgan 5/12 ::: Uploaded on - 06/12/2018 ::: Downloaded on - 30/12/2018 09:54:35 ::: 901-CAW-1871-2015.odt resolution was unanimously passed.
7 The aforesaid unanimous decision taken at the General Body meeting of the second Respondent is binding on the second Respondent and though it is in force till today, it is not being implemented. The perusal of the prayers made in this Civil Application show that prayers are essentially for implementation of the said General Body resolution and to pay arrears with interest. The prayer is also for initiating action for non-compliance of the order dated 23rd October, 2013. This Civil Application which is pending from the year 2015 was placed before a Division Bench of this Court on 10th September, 2018. The order dated 10th September, 2018 reads thus:
" The learned Counsel appearing for the Respondent No.2 i.e. Thane Municipal Corporation seeks time to file an affidavit to the above Civil Application. The above Civil Application as its number discloses has been filed in the year 2015 and an affidavit is yet to be filed on behalf of the main contesting party i.e. the Respondent No.2. However, Shivgan 6/12 ::: Uploaded on - 06/12/2018 ::: Downloaded on - 30/12/2018 09:54:35 ::: 901-CAW-1871-2015.odt as and by way of final opportunity, we defer the hearing of the above Civl Application to 01.10.2018. Affidavit-in-Reply to be filed on or before 27.09.2018. If the Affidavit is not filed then this Court would be constrained to impose costs on the Respondent No.2 i.e. Thane Municipal Corporation and would further proceed to hear the Civil Application as it is without the facts being controverted." (underline supplied)
8 This Court deferred the hearing of the Civil Application only with a view to enable the second Respondent-Municipal Corporation to file a reply. Time granted by this Court by way of indulgence to file a reply was utilised by the administration of the Municipal Corporation for doing something else. On 27th September, 2018, the Additional Commissioner of the Municipal Corporation submitted a proposal to the Principal Secretary of the Urban Development Department of the State Government by invoking Section 451 of the Maharashtra Municipal Corporation Act, 1949 (for short 'the said Act of 1949'). The proposal was for rescinding the aforesaid resolution of Shivgan 7/12 ::: Uploaded on - 06/12/2018 ::: Downloaded on - 30/12/2018 09:54:35 ::: 901-CAW-1871-2015.odt the General Body Meeting held on 19th December, 2013. When this Civil Application filed by the Petitioner in 2015 was pending seeking interim relief for enforcing the said resolution and when the Municipal Corporation was granted time to file a reply by way of indulgence on 10th September, 2018, in our view, the Municipal Corporation ought not to have submitted proposal on 27th September, 2018 without seeking leave of this Court or at-least without moving the Court for pointing out that notwithstanding the time granted to file reply to the Municipal Corporation, there was a move to submit a proposal for rescinding the resolution. 9 Thus, prima-facie it appears to us that taking undue advantage of the pending of this Civil Application for such a long time, that after a lapse of almost 5 years after the date of resolution of the General Body that the proposal was moved on 27 th September, Shivgan 8/12 ::: Uploaded on - 06/12/2018 ::: Downloaded on - 30/12/2018 09:54:35 ::: 901-CAW-1871-2015.odt 2018 by the Additional Municipal Commissioner. 10 Thus, for a period of almost 5 years , the said resolution unanimously passed at the General Body meeting has not been implemented by the Municipal Corporation. The State Government has not granted any stay. Therefore, we propose to direct the Municipal Corporation to immediately start implementation of the said resolution by paying requisite salary/wages to the contract workers subject to final order which may be passed by the State Government on the proposal dated 27th September, 2018.
11 The submission of the learned counsel appearing for the second and third Respondents is that in the event the State Government accepts the prayer, the recovery of additional amount paid will be difficult. We do not accept the submission for two reasons. Firstly, recovery can always be made from the Shivgan 9/12 ::: Uploaded on - 06/12/2018 ::: Downloaded on - 30/12/2018 09:54:35 ::: 901-CAW-1871-2015.odt salary/wages payable for the subsequent period. Secondly, as of today the resolution, which was passed by the General Body about 5 years back binds the Municipal Corporation.
12 The learned counsel appearing for the Applicant submits that the State Government may be directed to hear the applicant on the proposal under Section 451 of the said Act of 1949. At this stage, we are not making any adjudication on the question whether it is mandatory to give personal hearing to the affected parties before exercising the power under Section 451. However, the applicant can always make appropriate representation to the State Government which will be considered by the State Government. If the State Government finds that personal hearing should be given to the applicant, the Government can always do so. Shivgan 10/12 ::: Uploaded on - 06/12/2018 ::: Downloaded on - 30/12/2018 09:54:35 ::: 901-CAW-1871-2015.odt 13 The power under Section 451 of the said Act of 1949 is an extraordinary power. We are sure that while considering the question of exercising the said power, the State Government will keep in mind gross delay in moving the State Government and the manner in which the proposal was submitted by the Municipal Corporation pending the present Civil Application. The learned AGP on instructions states that the said proposal will be decided within a period of one week from the date on which comments called for from the Municipal Corporation are received by the State Government. We accept the said statement.
14 Hence, by way of interim relief in this Civil Application, we direct the second Respondent to forthwith start implementation of the resolution dated 19th December, 2013 by paying requisite amounts to the contract workers. Compliance affidavit shall be filed by Shivgan 11/12 ::: Uploaded on - 06/12/2018 ::: Downloaded on - 30/12/2018 09:54:35 ::: 901-CAW-1871-2015.odt the Municipal Corporation on or before the next date. If the State Government has taken a decision on the proposal 27th September, 2013 even the same shall be placed for the perusal of the Court on the same date.
Place the Civil Application on 14.12.2018 at 3.00 p.m. (SANDEEP K. SHINDE, J.) (A.S.OKA, J.) Shivgan 12/12 ::: Uploaded on - 06/12/2018 ::: Downloaded on - 30/12/2018 09:54:35 :::