Bombay High Court
Panvel Municipal Corporation vs Sarva Shramik Sangh on 14 September, 2022
Author: C.V. Bhadang
Bench: C.V. Bhadang
1 WP 3486-21 @ WP 5187-21.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3486 OF 2021
Panvel Municipal Corporation ..Petitioner
V/s.
Chhaya Mhatre and Ors. ..Respondents
WITH
WRIT PETITION NO. 5187 OF 2021
Panvel Municipal Corporation ..Petitioner
V/s.
Sarva Shramik Sangh ..Respondent
----
Mr. Mahendra Agvekar a/w Ms. Shraddha Chavan, Vijay Vaidya
i/b Shriniwas Kshirsagar for the Petitioners in both petitions.
Mr. Sanjay Singhvi a/w Rahil Fazelbhoy i/b. C.M. Lokesh and
Ravindra Nair for the Respondent Nos. 1 to 20 in WP/3486/
SNEHA
NITIN 2021.
CHAVAN
Digitally signed
Ms. Ashwini Jadhav i/b Sanjay Ghaisal for Respondent Nos. 21 to
by SNEHA
NITIN CHAVAN
Date: 2022.09.15
23 in WP/3486/2021.
17:57:04 +0530
Mr. G.S. Hegde a/w Ms. P.M. Bhansali for Respondent Nos. 24
and 25/CIDCO in Writ Petition No. 3486/2021.
----
CORAM : C.V. BHADANG, J.
RESERVED ON : 06 SEPTEMBER 2022
PRONOUNCED ON : 14 SEPTEMBER 2022
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:COMMON JUDGMENT :
. Rule in both petitions. The learned counsel for the
Respondents waives service. Heard finally by consent of parties.
2. Both these petitions can be conveniently disposed of by this
common judgment.
WRIT PETITION NO. 3486 OF 2021
3. The Respondent Nos. 1 to 23 (original complainants) are
working at Urban Health Center of Respondent-City Industrial
Development Corporation Limited (CIDCO) as General Nurse
Midwife (GNM) Auxiliary Nurse Midwife (ANM), Laboratory
Technicians, Pharmacists-cum-clerk, in the Health Department.
CIDCO is a company incorporated in 1970 and was established
to create a new township under the provisions of the Maharashtra
Regional and Town Planning Act. The Petitioner-Panvel
Municipal Corporation was established on 01.10.2016 comprising
of areas of New Panvel, Kharghar, Kalamboli and Kamothe etc.
and the Primary Health Center (PHC) falling in these area which
were earlier under the Management of CIDCO, were transferred
and came under the Management of the Respondent-
Corporation. It appears that there was an agreement executed
incorporating the terms of such transfer of employees and as per
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the said agreement, the employees came under the services of the
Respondent-Corporation w.e.f. 01.07.2018.
4. The original complainants filed complaint (ULP) No. 301
of 2016 before the Industrial Court at Thane alleging commission
of Unfair Labour Practice under Item 5, 6, 9 and 10 of the
Maharashtra Recognition of Trade Unions and Prevention of
Unfair Labour Practices Act, 1971 ('1971 Act' for short). It was
contended that the complainants were working under CIDCO
since the year 2012 to 2015 and inspite of the fact that they had
completed 240 days in a year, they were not treated as
regular/permanent employees. The complainants therefore, by
filing the aforesaid complaint against CIDCO inter alia sought
benefits of permanency and corresponding salary/wages.
5. It appears that subsequently, the Respondent Corporation
was impleaded as Respondent in the complaint.
6. The Respondent CIDCO resisted the complaint by
claiming that on constitution of the Respondent-Corporation, the
civic amenities provided by CIDCO including health services
were required to be ceased and they were accordingly transferred
to the Respondent-Corporation. It was thus, contended that
CIDCO cannot be saddled with the responsibility of continuation
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or grant of permanency to such employees whose services were
transferred to inter alia created Panvel Municipal Corporation.
7. It was next contended that the complainants were working
on temporary post on an Ad-Hoc basis and complainant were
aware of nature of their services which was contractual their
nature till corporation of the new local body. Thus, it was
contended that the completion of 240 days of service cannot
confer consequent permanency as thus principle may not apply.
It was thus, denied that CIDCO has engaged into any unfair
labour practice as alleged.
8. The Respondent corporation resisted the claim more or less
on similar lines. It was contended that the complainants were
employed purely on contractual/ad-hoc basis, for a fixed period,
under the National Urban Health Mission (NUHM) scheme as
per the provision of the said scheme. They were paid
consolidated pay/honorarium as mentioned in the scheduled. It
was contended that the complainants have not been recruited/
appointed against sanctioned/clear/vacant post as their services
were initially governed by NUHM scheme. It was next
contended that the complainant Nos. 1, 3, 5, 6 and 17 namely
Sweta, Shalini, Lalita, Pavitra have absented themselves since
long. In short, it was contended that there was no employer-
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employee relationship between the complainants/workmen and
the Corporation and the complainant was liable to be dismissed.
9. The Industrial Court framed issues on the basis of the rival
pleadings. The parties led evidence. The Tribunal by a
Judgment and Order dated 07.05.2021 has allowed the
complaint holding that the Respondent-Corporation has engaged
into unfair labour practices under Item 5 and 9 of Schedule-IV of
1971 Act. In the face of such finding, the Tribunal has granted
benefits of permanency to the Respondent-complainants
directing the Petitioner to pay all the benefits as admissible to the
permanent workmen. This Judgment and order is subject matter
of challenge in Writ Petition No. 3486 of 2021.
WRIT PETITION NO. 5187 OF 2021
10. The Respondent Sarva Shramik Sangh ('Union' for short)
filed Complaint (ULP) No. 268 of 2018 alleging unfair labour
practices against the Petitioner Corporation under item 9 and 10
of Schedule-IV of 1971 Act. The union represented about 17
employees/workmen who were in the employment of CIDCO on
a "fixed term contract" on a consolidated salary in the health
services. Pursuant to the agreement dated 20.06.2018 between
CIDCO and the Petitioner-Corporation.
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11. The case made out by the Union in the complaint was that
the concerned workmen were paid wages from July 2018 to
October 2018. Insofar as November 2018 is concerned, the
wages for 14 days were paid on 19.12.2018 and the workmen
were informed that the wages for the balance period would be
paid through the contractor. The union therefore, claimed that
there were unilateral, proposed change effected by the Petitioner
corporation, in the conditions of service which amounts to
commission of unfair labour practice. It was also contended that
the correspondence made with the Corporation for grant of
minimum wages and for general improvement of service
conditions, did not evoke any favourable response. It was
contended that unilateral change in the condition of service (by
introduction of an intermediary/contractor) was made in order to
frustrate the claim of permanency made in complaint (ULP) No.
301 of 2016.
12. The complaint was resisted by the Petitioner Corporation
on similar grounds about a dispute as to existence of employer-
employee relationship. It was contended that the services of the
concerned workmen were governed by the terms of NUHM
scheme and as they were employed on a consolidated
salary/wages through a contractor/agency by name Guruji
Infrastructure Private Limited, they are not entitled to reliefs as
claimed. However, it was subsequently conceded that there was a
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genuine error insofar as payment of only 14 days of wages/salary
to the workmen for November 2018 is concerned. However,
subsequently, the same has been rectified and the wages have
been paid. It was denied that the concerned workmen were
recruited or appointed by the Corporation. It was contended that
it was the Director of health services who is the head of a
committee which appoints the employees under NUHM scheme.
13. On the basis of the rival contentions, the Tribunal framed
issues. The parties led evidence. The Tribunal by Judgment and
Order dated 07.05.2021 has allowed the complaint, directing the
Petitioner-Corporation to pay wages directly to the employees-
workmen (as mentioned in Annexure -A to the complaint)
without any intermediary. That is subject matter of challenge in
Writ Petition No. 5187 of 2021.
14. I have heard Mr. Agvekar, the learned counsel for the
Petitioner and Mr. Sanghvi, the learned senior counsel for the
Respondent. With the assistance of the learned counsel for the
parties, I have gone through the record.
15. It is submitted by the learned counsel for the Petitioner
that impugned order could not have been passed directing the
Petitioner-Corporation to grant benefits of permanent employees.
In the submission of the learned counsel, the learned Industrial
Court has failed to appreciate that the Petitioner is bound by
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provisions of the Maharashtra Municipal Corporations Act, 1949
('1949 Act' for short) and the impugned direction is in
contravention of the agreement dated 20.06.2018. It is
submitted that the impugned order has an effect of altering terms
of said agreement. It is submitted that the learned Industrial
Court has failed to properly appreciate the terms of the said
agreement. It is submitted that findings in paragraphs 28 and 29
of the impugned judgment are in relation to the Respondent
CIDCO and cannot bind the Petitioner. It is submitted that the
concerned employees were engaged on fixed term contract basis
on a consolidated salary from the funds of NUHM and the same
could not have been altered. It is submitted that the names of
Respondent Nos. 18 to 23 (original complainant Nos. 18 to 23)
do not figure in the annexure to the agreement dated 20.06.2018
and thus, the relief granted even in respect to these Respondents
is clearly beyond documents on record. On behalf of the
Petitioner, reliance is placed on the decision of this Court in
Municipal Council, Tirora, through its Chief Officer and Anr. v/s
Tulsidas Baliram Bindhade,Gondia in Writ Petition No. 5191 of
2004 and the decision of Gujarat High Court in Sajipur Bogha
Nagar Palika Octroi Karmachari Mandal and Anr. v/s.
Ahmedabad Municipal Corporation and Anr.1
16. Insofar as the Writ Petition No. 5187 of 2021 is concerned,
it is submitted that although a statement was made on behalf of
1 1991 SCC Online Guj 305
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the Petitioner that the intermediary is withdrawn, the declaration
of unfair labour practice could not have been given.
17. Mr. Singhvi, the learned senior counsel for the Respondents
has submitted that CIDCO has rightly been found to be
competent in law to create posts. The learned senior counsel has
referred to the findings of the Tribunal in this regard on the basis
of applicable provisions. It is submitted that admittedly the posts
were filled by CIDCO on the basis of an advertisement and after
following the regular procedure after finding the concerned
employees to be eligible and qualified for such appointment. It is
submitted that it was also not in dispute that these employees
were working for more than 240 days in a year. The learned
senior counsel submitted that the work is indeed of a permanent
nature and not temporary or seasonal, inasmuch as the health
services are to be provided round the year. It is submitted that
the agreement between CIDCO and the Petitioner Corporation
makes it clear that services were transferred without any change
in pay structure and service conditions. He, therefore, submitted
that the impugned direction is legal and proper.
18. On behalf of the Respondents, reliance is placed on the
decision of the Supreme Court in Western India Match Company
Limited v/s. Workmen2
2 (1974) 3 Supreme Court Cases 330
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19. Insofar as Writ Petition No. 5187 of 2021 is concerned, it is
submitted that there was an attempt to introduce intermediary,
where the wages for the balance period in November 2018 were
sought to be paid through the Contractor. He, further pointed
out that the statement about withdrawal of intermediary was
made belatedly before the learned Industrial Court and therefore,
the learned Industrial Court was justified in recording the
finding about the Petitioner having engaged in unfair labour
practice.
20. I have carefully considered the rival circumstances and the
submissions made.
21. I would first propose to deal with the challenge in Writ
Petition No. 5187 of 2021. That petition arises out of a complaint
lodged by the Union alleging unfair labour practice under Items
9 and 10 of Schedule-IV of 1971 Act. A perusal of the impugned
judgment would show that at the stage of arguments before the
learned Industrial Court, it was submitted that a bonafide
mistake, in trying to handover the employment to the private
contractor, was made and the same has been rectified. The
Industrial Court has dealt with this aspect in paragraph 9 of the
Judgment.
22. It is in these circumstances that the Industrial Court has
directed that the wages shall directly be paid to the employees
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without an intermediary. It is true that the Petitioner claimed
before the Industrial Court, albeit at a belated stage, that there
was an error in introducing intermediary/contractor which error/
mistake has been rectified. However, the fact remains that such
an attempt was made and therefore, I do not find that the
impugned order suffers from any infirmity so as to require
interference. All that the impugned order directs is to pay, the
employees without any intermediary. Thus, insofar as the
challenge to the judgment and order in complaint (ULP) No. 268
of 2018 is concerned, the same has to fail.
23. This takes me to the challenge in Writ Petition No. 3486 of
2021. The material facts are not in dispute. CIDCO had
established Urban Health Centers in which the medical staff
which is covered by the complaint was employed. On
establishment of the Petitioner-Corporation certain areas
including the health and other services were transferred to the
Petitioner-Corporation. Insofar as the health services are
concerned, there is an agreement dated 20.06.2018 which is
styled as "agreement for handing over health services". Clause 3
of the agreement which is relevant for the purpose, reads thus:
"3. Along with the above services, the CIDCO shall
also hand over the manpower engaged by CIDCO,
directly or through agency on contract basis, for
providing the above services in the said nodes, there
will be no change in pay structure and service
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condition. The said manpower has been more
particularly mentioned in Schedule-A to the present
agreement. The said list also includes the manpower
engaged for rendering the said services under the
National Urban Health Mission Scheme."
24. Annexure-A to the agreement which lists the names of the
employees/staff is in two parts. The first part contains the details
of staff in Urban Health Center, under CIDCO, while the second
part contains details of staff in Urban Health Centers under
NUHM. It appears that the names of Respondent Nos. 18 to 23
do not figure in annexure A to the agreement.
25. Be that as it may. Both parties have placed reliance on
clause 3 of the agreement and therefore, the question is essential
one of interpretation of the said clause.
26. A perusal of the impugned judgment shows that the
learned Industrial Court has essentially considered the issue about
the creation of the posts in relation to the applicable provisions,
insofar as the Respondent CIDCO is concerned. In particular the
learned Industrial Court has considered clause 190(cc) of the
Articles of Association and the recruitment Rules of CIDCO,
which are framed in 1977. It is precisely in this context, it is
submitted on behalf of the Petitioner that there is no
consideration insofar the provisions for creation of posts by the
Petitioner-Corporation in the Context of the 1949 Act. The
learned Industrial Court has considered the case with reference to
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the Petitioner-Corporation from paragraph 30 onwards and has
placed reliance on clause (3). The learned counsel for the
Petitioner has urged that there is no consideration so far as the
restriction placed on the powers of the Petitioner-Corporation for
creation of such posts in the context of Section 76 of 1949 Act.
27. A brief reference at this stage may be made to the decision
of the Division Bench of this Court at Nagpur in Municipal
Council Tirora case. In that case, the following issue was referred
for decision of the Division 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?"
28. The Division Bench in paragraph 21 has concluded that in
the absence of vacant/sanctioned posts, with the Municipal
Council, workmen who have put in continuous service of 240
days or more in a span of 12 months cannot invoke clause 4C of
the Model Standing Orders (MSO) to claim either permanency
or regularisation. The Division Bench has referred to the earlier
decisions of the co-ordinate Bench of this Court in Pune
Municipal Corporation v/s Dhananjay Prabhakar Gokhale and
State of Maharashtra and Anr. v/s. Pandurang Sitaram Jadhav,
taking a similar view.
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29. The said submissions is sought to be countered on behalf of
the Respondent claiming that the posts were duly created in
CIDCO and even there was a regular process of recruitment
followed and therefore, in terms of agreement of the year 2018,
the same terms and conditions would continue. In my
considered view, the specific issue about whether such a direction
can be issued which would ultimately bind the Corporation
governed by 1949 Act in the light of decision in Municipal
Council, Tirora(supra) and other decisions referred to above has
not been considered by the learned Industrial Court. I find that
those decisions were not brought to the notice of the learned
Industrial Court.
30. The decision in the case of Western India Match Company
Limited (supra) involved the question whether the terms of
employment specified in the Standing Order should prevail over
corresponding terms in the contract of service. Incidentally, the
question was whether a special agreement can be imposed inspite
of existence of standing order.
31. There is one more aspect. It is pointed out on behalf of the
Petitioner that the names of the complainant Nos. 18 to 23 do
not figure in the agreement. This aspect has also not been
considered by the Industrial Court. In such circumstances, I find
it appropriate to remit the complaint (ULP) No. 301 of 2016
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back to the learned Industrial Court for deciding it afresh in
accordance with law.
32. The observations aforesaid are only to find the necessity
and justification of the remand. It is for the learned Industrial
Court to decide the complaint on its own merits.
33. In the result, the following order is passed:
ORDER
(i) Writ Petition No. 3486 of 2021 is partly allowed. The impugned Judgment and order is hereby set aside. The Complaint (ULP) No. 301 of 2016 is restored back to the file of learned Industrial Court at Thane for deciding it afresh in accordance with law in the light of the observations made above.
(ii) The Industrial Court shall proceed to hear and decide the complaint as expeditiously as possible and preferably within a period of six months from the appearance of the parties.
(iii) The parties to appear before the Industrial Court on 26.09.2022.
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(iv) The status quo regarding the present service conditions of the employees shall be maintained during the pendency of the complaint.
(v) Writ Petition No. 5187 of 2021 is hereby dismissed.
(vi) Rival contentions of parties are left open.
(vii) In the circumstances, no order as to costs.
C.V. BHADANG, J.
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