Bombay High Court
The Commissioner vs Ashiven Manohar Chougule on 25 July, 2012
Author: Anoop V. Mohta
Bench: Anoop V. Mohta
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rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 928 OF 2012
The Commissioner,
Sangli, Miraj and Kupwad Cities
Municipal Corporation at Sangli .. Petitioner
V/s.
Ashiven Manohar Chougule .. Respondent
ALONGWITH
WRIT PETITION NO. 929 OF 2012
The Commissioner,
Sangli, Miraj and Kupwad Cities
Municipal Corporation at Sangli .. Petitioner
V/s.
Abhijeet Ashok Kavtekar .. Respondent
ALONGWITH
WRIT PETITION NO. 930 OF 2012
The Commissioner,
Sangli, Miraj and Kupwad Cities
Municipal Corporation at Sangli .. Petitioner
V/s.
Vishal Dattatray Zambre .. Respondent
ALONGWITH
WRIT PETITION NO. 931 OF 2012
The Commissioner,
Sangli, Miraj and Kupwad Cities
Municipal Corporation at Sangli .. Petitioner
V/s.
Ranvir Sahebrao Panbude .. Respondent
ALONGWITH
WRIT PETITION NO. 932 OF 2012
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The Commissioner,
Sangli, Miraj and Kupwad Cities
Municipal Corporation at Sangli .. Petitioner
V/s.
Dhanvir Sahebrao Panbude .. Respondent
ALONGWITH
WRIT PETITION NO. 933 OF 2012
The Commissioner,
Sangli, Miraj and Kupwad Cities
Municipal Corporation at Sangli .. Petitioner
V/s.
Shrikant Madhukar Salunkhe .. Respondent
ig ALONGWITH
WRIT PETITION NO. 934 OF 2012
The Commissioner,
Sangli, Miraj and Kupwad Cities
Municipal Corporation at Sangli .. Petitioner
V/s.
Rajendra Shamrao Koli .. Respondent
....
Mr. N. V. Walawalkar, Senior Counsel with Mr. G. H. Keluskar for the
Petitioner.
Mr. P. D. Dalvi for Respondent No.1.
....
CORAM : ANOOP V. MOHTA, J.
DATE : JULY 25, 2012.
ORAL JUDGMENT:
Heard finally at the admission stage. As common issues are involved, therefore, this common judgment.
2 The Petitioner is a local body governed by the Bombay ::: Downloaded on - 09/06/2013 18:51:27 ::: 3 wp928-12-group Provincial Municipal Corporation Act 1949 (hereinafter referred to as "the said Act"), has challenged the impugned order dated 21 st October, 2011, passed by the Industrial Court, Sangli. The operative part is as under:
"i. The applications for interim relief are partly allowed.
ii. The opponent-corporation is directed to continue the applicants in service in accordance with the B.P.M.C. Act as per previous practice till the decision of these complaints finally.
iii. No order as to cost."
3 In the main complaint the basic prayer is to grant them permanency as they completed more then 240 days in service.
They have filed separate applications under Section 30 (2) of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1971 (MRTU & PULP Act) for interim reliefs, for status-quo of their service. The Petitioner opposed the same.
4 The objection was raised that the individual complaints filed may not be entertained as there exists a recognized union to fight such cause. The objection was also raised that the interim applications to filed in respect of the proposed termination basically on the foundation of applicability of the alleged standing order as ::: Downloaded on - 09/06/2013 18:51:27 ::: 4 wp928-12-group contemplated under Industrial Employment (Standing Orders) Act, 1946 (for short, IESO Act). The Respondents are not entitled to claim permanency as averred in the facts and circumstances.
5 The learned Judge held that the independent applicants/complainants have made out a prima facie case of unfair labour practice, balance of convenience is in favour of them and, therefore, entitled to the interim relief in part and grant the order as quoted above.
6 Importantly, the learned Judge while granting the interim relief has observed in paragraph 8 as under:
"8. Needless to say that, the recruitment, appointment and promotions of the employees working in corporation are being made as per B.P.M.C. Act. The corporation cannot create the post and the posts are approved only State Government and even if the General Body of the corporation resolved about the permanency of the applicants permanent unless sought necessary approval from the State Government in view of this it cannot be said that, there is failure on the part of the opponent to implement the Resolution No.77 dated 30/04/2008.
Not only this but, it seems that, the Resolution No.77 has been cancelled by subsequent Resolution dated 10/10/2008, therefore there is no question of implementing the earlier Resolution dated 30/04/2008. Moreover, I do not think at this prima-facie state that, failure of the part of the opponent to implement ::: Downloaded on - 09/06/2013 18:51:27 ::: 5 wp928-12-group Resolution dated 30/04/2008 passed by General Body amounts to any unfair labour practice under item 9 of Sch. IV of the ULP Act."
7 In my view, having once observed as above and unless it is decided finally that the Petitioner being a local body is always under the control of the State of Maharashtra in various aspects including finance whether can be directed to give permanency without vacancy and/or sanctioned posts, even though not decided, the applicability of the standing order, as contended and/or averred. The law is settled by the Apex Court in this regard.
8 The Local body like the Petitioner cannot be treated as an independent establishment, by overlooking the provisions of their controlling Act and authorities who control such activities. The learned Judge has noted the basic things in paragraph 8 as recorded.
The grant of interim relief by overlooking and without deciding the basic issue is unacceptable. It cannot be stated to be an "unfair labour practice" and/or "prima facie case" and/or "balance of convenience lies in favour of the Respondents/employees".
9 There is no basic or specific averment that the Petitioner is likely to take any action immediately to terminate their services and ::: Downloaded on - 09/06/2013 18:51:27 ::: 6 wp928-12-group as admittedly they are in service from the last 11 years and this is definitely more then 240 days. The learned senior counsel appearing for the Petitioner is right in contending that if the main relief cannot be granted in view of the observations in paragraph 8 and unless it is decided the local body like the Petitioner is also governed by the standing order as observed is incorrect. The grant of interim reliefs of such nature would take away the right of the Petitioner to take action against the employee, if case is made out.
Such blanket order is against the statutory obligations to take action in accordance with law.
10 The main relief itself if cannot be granted by the Industrial Court, the question of granting of such interim relief based upon the same will definitely create more complications then solving it. The issue needs to be adjudicated first including the maintainability of the complaint and the entitlement of main relief.
11 The learned senior counsel appearing for the Petitioner fairly stated that they will take action against the individual complainants and/or such employees as and when occasion comes and/or circumstance arises. They will give clear notice with sufficient time if ::: Downloaded on - 09/06/2013 18:51:27 ::: 7 wp928-12-group they want to take any action against such individual based upon the material available with them.
12 Therefore, taking over all view of the matter, I am inclined to observe that the interim order so passed shall continue for six months subject to right that the Petitioner is at liberty to take appropriate action and/or step as and when occasion comes and that will be subject to prior notice in accordance with law. It is also made clear that this will be in operation pending the main complaints which will be disposed off within six months from today.
All points are kept open.
13 The Industrial Court in the facts and circumstances, directed to disposed of the complaint preferably within six months. The parties are at liberty to take appropriate steps and/or file appropriate applications for early disposal of the complaint including the preliminary objections, if any.
14 All the Writ Petitions are accordingly disposed of with liberty.
15. All the points are kept open. No costs.
(ANOOP V. MOHTA, J.) ::: Downloaded on - 09/06/2013 18:51:27 :::