The Administrative Officer, ... vs Shri Rajendra Ramchandra Tasgava ...
2004 Latest Caselaw 337 Bom

JUDGMENT

R.S. Mohite, J.

1. Since these writ petitions involve a common set of facts and same issues, the same are being disposed of by this common Judgment and order.

2. The brief facts of the case are as under:

a) That, there was a requirement of peons in the Municipal Schools then run by Miraj Municipal Council, Miraj, District Sangli.

b) Therefore, on 22.12.1989 the Municipal Primary Education Board, Miraj which is represented by she petitioners in these petitions passed a resolution being Resolution No. 152, the translation of which is in the following terms.

"Looking at the work load of the board, in order to facilitate the work of the board and the Municipal Schools, it is necessary so appoint peons in these schools. Therefore, 45 peons, would be required to be appointed. Since the salary of these peons, will have to be paid through the Municipal funds, it would be necessary to take the permission of the Municipal Council. Therefore, it is necessary to correspond with the Municipal Council for obtaining their approval of the appointment of such peons. This resolution is passed unanimously"

c) On the same day, after receipt of the resolution passed by the board, Municipal Council considered the matter in its General Body meeting and passed the following resolution, translation of which runs as under.

Resolution No. 152 dated 22.12.1989 of the School Board, Miraj was perused and the report thereon made by the Chief Officer of the Municipal Council was also perused. Since, it is necessary to appoint 45 new peons in the pay scale of 200-3-230-5-255-V-5-280 plus allowances, this meeting approves creation of such posts. It is the decision of the house. The action be taken in accordance with rules".

d) In this background, on 12.1.1990, 15.1.1990 and 1.2.1990, the Administrator of Municipal Primary Education School Board, Miraj issued orders of appointment appointing 44 persons as peons on a purely temporary basis for a period of 11 months.

e) After making these appointments, on 21.5.1990, the Administrative Officer of the School Board informed the Municipal Council about the making of such appointments and requested for approval there-for be immediately given by the Municipal Council.

f) On 7.7.1990, Municipal Council Miraj wrote a letter to the Administrative Officer of the School Board stating that the appointments had been made although no posts have been created. It was stated therein that since no approval was granted by the Municipal Council, Municipal Council would not be in a position to give grants concerning the amounts payable as wages to these new appointments.

g) Faced with such a letter of the Municipal Council, on 11.7.1990, all the 44. newly appointed peons with whom we are concerned in these petitions were given notices terminating their services w.e.f. 11.7.1990. Reasons given for their termination, as contained in the termination letter could be translated as under.

"You had been appointed as peons on a temporary basis to work in the schools run by this office on the expectation of approval being Granted by the Municipal Council. Municipal Council has flatly refused to give grant to the board pertaining to your salary. In the circumstances you are being dismissed from service after closing hours from 11.7.1990".

h) On 16.7.1990 and 17.7.1990 three complaints bearing (ULP) Nos. 331/1990, 339./1990 and 361/1990 were filed by the affected 44-peons before the Labour Court at Sangli. The complaint (ULP) No. 331/1990 was filed by six persons, Complaint No. 339/1990 was filed by 11 peons and Complaint No. 361/1990 was filed by 27 peons. In these complaints, the Administrative Officer of she school board who had issued dismissal orders was impleaded as Respondent No. 1 the Chairman of the School Board was Respondent No. 2, Chief Officer of the Miraj Municipal Council was shown as Respondent No. 3 and the President of the Municipal Council was Respondent No. 4. All these complaints were filed challenging the dismissal order, under Section 28 read with Item 1 of Schedule IV of the M.R.T.U. and PULP Act, l947.

i) All these complaints came to be allowed by Judgment and Order dated 13.6.1993 passed by the Labour Court, Sangli. The Labour Court declared that the respondents had engaged in unfair labour practice and were directed to desist and cease the unfair labour practice and were also directed to continue all the complainants in service with continuity of service and to pay arrears of back wages within one month from the date of the order.

3) Appellants who represent the school board preferred three revision applications bearing Nos. 129 of 1993, 130 of 1993 and 131 of 1993 in the Industrial Court at Kolhapur. However, by its order dated 21.12.1994 the Industrial Court, Kolhapur was pleased to dismiss all the aforesaid revision applications.

4) The appellants then filed aforesaid three writ petitions. It may be mentioned here that there is no dispute that under interim orders passed by this court services of the concerned peons were continued and were directed to be paid salary in accordance with certain interim directions. There are some disputes regarding payment of back wages as per the courts order. A separate bunch of Writ Petitions being W.P. No. 1804 of 1994, 1805 of 1994 and 3342 of 1994 are pending in this court but we are not concerned with the issues arising in those matters and hence those matters have been separated as a different group.

5) The main contentions raised by the appellants are as under :

a) Appointments of the peons made by them were illegal.

b) In any case the finding of unfair labour practice was untenable in so far as it could not be said in the facts of the present case that there was any victimisation of the peons. It was contended that it also could not be said that the termination was not in good faith but in the colourable exercise of the employer's right. That it also could not be said that the termination was for a patently false reason.

6) On behalf of the respondents as regards the aforesaid two submissions, the argument advanced were as follows:

a) As regards the first contention, it was their case that illegality of the appointment was not an issue which could be decided in a complaint under the M.R.T.P. and PULP Act. What was in issue was the illegality of the termination.

b) There were concurrent findings of the two Lower Courts on the termination being an unfair labour practice. There was nothing perverse in the orders passed by the Lower Courts and therefore, this was not a fit case for interference.

7) As regards appointments being made illegal, reference was made to Rule 36(2) of the Bombay Primary Education Rules, 1949. The relevant part of the said rule is in the following terms.

"36(2)-Every Municipal Board shall prepare a schedule which the authorised municipality shall sanction, with or without modification, of the staff permanently required by it setting forth the designations, grades and pay of the different members of the staff.

In addition, the municipal school board may, with the sanction of the authorised municipality employ such temporary staff as may be required provided that the period of appointment of such temporary staff shall not exceed three years except with the sanction of Government and provided farther that the expenditure on such staff (whether permanent or temporary) shall not be admitted for grant unless it has been previously sanctioned and held admissible for grant by Government".

8) It was contended on behalf of the appellants that this was the only rule under which the board could appoint temporary staff. On plain reading of the rule, it was pointed out that even such a appointment be made with the sanction of the Municipal authority and that too for a period not exceeding three years except with the sanction of the Government. The contention was in the present case that there was neither sanction of the Municipality nor of the Government was obtained. In my view the illegality of the appointment is not the question that would be required to be gone into in a complaint under M.R.T.P. and P.U.L.P. Act. What is the issue in the said complaint is the unfair nature of the order of termination. In the present case, the reply filed by the appellants in the Lower Court clearly indicates that they had relied upon Rule 36(2) to justify their making of such temporary appointments. The argument made in this court was contrary to their own pleadings. Be that as it may, I find it unnecessary to go into the question of illegality or other wise of the appointments as that cannot be an issue in proceeding under M.R.T.U and P.U.L.P. Act.

9) As regards the second contention that there was no unfair labour practice which could be said to have been committed by the appellants or the Municipal council, the reason given by the Lower Courts is that in Industrial law, non availability of finance was not a ground for terminating the services. This approach cannot be considered to be perverse. In the circumstances, the finding given by the Lower Court relating to commission of unfair labour practice will have to be affirmed though it need to be clarified that such unfair labour practice was committed only by the appellants and cannot be said to have been committed by the Municipal Council who had never appointed the peons in the first place.

10) However, on the question of grant of ultimate relief, I find that there is no justification for directing reinstatement with back wages and continuity of service. It is seen from the original appointment orders that the appointment orders were only for the period of 11 months. Even assuming that the appellants had committed a mistake, they ought to have suffered their mistake at least for the period of 11 months during which the temporary appointments were made. They have terminated the services of the peons within a period of seven months. In my view since there was no continuation order, the concerned peons could not have been directed to be taken back in the service. Their original appointment orders and tenure of service had been extinguished by efflux of time. No doubt, the concerned peons have continued to serve under orders of this court. However, it is also not in dispute that the Municipal Council never acted upon on its resolution dated 22.12.1989 and did not forward the same to the State Government for sanction regarding creation of new posts. There is no explanation whatsoever coming forward from the Municipal Council. The record indicates that the Municipal Council had been informed that those peons had been appointed. They could have sent the matter urgently for sanction to the Government, specially when they themselves have agreed that the peons were badly required by the Municipal schools. The board had no power and the Municipal council is the only authority who can seek creation the posts. Taking an over all view of the matter, I feel that compensation will have to be paid in lieu of the reinstatement to these peons and certain further directions in order to protect their interest will have to be passed. While doing so, the respondents will offer jobs if any available to these peons by granting relaxation of age. The peons who are older will be given earlier opportunity,. Their inaction and negligence in doing their duty to seek creation of the posts is also responsible for the sorry situation in which these peons were placed today. I am inclined therefore, to direct the compensation as per the operative portion of the order given herein below, which should be borne by the Respondent No. 7 which has taken over all rights, liabilities, obligations of the erstwhile Municipal Council. Following order is therefore passed.

ORDER

i) The orders dated 13.6.1993 passed by the Labour Court Sangli and the order dated 21.2.1994 is modified as above and the operative portions of the orders will stand substituted as under.

ii) All three complaints are hereby partly allowed.

iii) It is declared that the petitioners have engaged in unfair labour practice.

iv) The petitioners may discontinue the services of the peons after paying them compensation of Rs. 10,000/-each which amount of compensation will be paid by Sangli Miraj Kupwad Municipal Corporation i.e. newly added respondent No. 7.

v) It is directed that the petitioners and respondent No. 7 will not appoint any peons in the Corporation or in the Municipal Schools without first giving an opportunity to the 44-peons who are respondents in these writ petitions and their cases will be considered by giving them relaxation of age.

vi) Rule is made absolute in above terms.

vii) All concerned to act on the copy of this order duly authenticated by the C.S./Sheristedar of this court.