The Municipal Council, Through ... vs Narendra S/O. Manikchand Bisen ...
2006 Latest Caselaw 1246 Bom

JUDGMENT

R.C. Chavan, J.

1. Rule Returnable forthwith. By consent of learned Counsel for the parties, heard finally.

2. This bunch of petitions has been filed by Municipal Council, Gondia and Fire Officer, Fire Brigade, Municipal Council, Gondia challenging order passed by learned Member, Industrial Court, Bhandara on complaints filed by employees working in Fire Brigade of Municipal Council, Gondia as 'Driver' and 'Firemen'. By impugned order the learned Member, Industrial Court, Bhandara directed the petitioners to take affirmative action to regularise the services of respondents w.e.f. 11.04.1997 in pay scale of Rs. 7751150 in respect of Firemen and Rs. 950-1150 in respect of Driver.

The learned Member also directed the petitioners to pay difference of wages to the respondents from 11.04.1997 till the date of order within three months of receipt of the order.

3. I have heard Adv. Parihar, learned Counsel for the petitioners, Adv. Kharkate, learned Counsel for respondents- employees and Adv. Deopujari and Adv. Ahirkar, learned Assistant Government Pleaders for respondent No.2 the Director of Municipal Administration.

4. The respondents-employees had been undisputedly engaged by the petitioner council for working in the Fire Brigade. However, it is the case of the petitioner council that they have been engaged as daily wagers. The petitioner council also stated that employees claiming to be fireman are in fact not qualified to be appointed because they have not obtained any qualification in fire fighting. According to the petitioners, the respondent-employees have entered by back door and not by following regular process of employment. They have not been appointed against duly sanctioned posts and therefore, the learned Member, Industrial Court was not justified in directing the regularisation of respondent employees. The learned Counsel for the petitioners placed reliance on judgment in Secretary, State of Karnataka v. Umadevi, reported at , M.P. Housing Board and Anr. v. Manoj Srivastava, reported at , and Municipal Council, Samarala v. Raj Kumar, reported at (2006) 3 SCC 81.

5. The learned Counsel for the petitioner Municipal Council submitted that a daily wager does not hold post or acquire any legal right in relation to such post unless he is appointed against a duly sanctioned post by following statutory rules operating in the field of appointments. He submitted that all the respondent-employees were appointed as daily wagers not against any sanctioned post and were also not appointed after following statutory procedure of appointment. Therefore, he submitted that as held by the Supreme Court in M.P. Housing Board v. Manoj Srivastava, reported at their appointment would not have been ordered to be regularised by the learned Member, Industrial Court. He submitted that the Supreme Court has categorically ruled in the above case that only because a person has been working for more than 240 days, he does not derive any legal right to be regularised in service.

6. On the other hand Adv. Kharkate, learned Counsel for the respondent-employees, submitted that the respondent-employees are not shown to have been irregularly appointed. They have been working for a number of years in the Fire Brigade of Municipal Council, Gondia. He pointed out that in the proceedings before the Industrial Court, on behalf of petitioner Municipal Council, one Kuwarsingh Bhardwaj was examined as a witness and this Kuwarsingh has categorically admitted that all the respondent- employees were working either as Firemen or as a Driver respectively. The witness had also stated that ten posts of Fireman and one post of Driver were vacant in the department. It was in this background that the learned Member of the Industrial Court held that the respondent employees who had been working for over ten years as Driver and Firemen were entitled to be regularised against the vacant posts in the department.

7. The learned Counsel for respondent employees also placed reliance on the same decision of the Supreme Court in State of Karnataka v. Umadevi (on which the learned Counsel for petitioners relied) which was followed by Supreme Court in Mineral Exploration Corporatio employees' Union v. Mineral Exploration Corporation Ltd., reported at . The learned Counsel submitted that the Supreme Court has not laid down that persons employed by the State Government or public bodies for a number of years should be left in the lurch. On the other hand in paragraph 44 of the judgment in State of Karnataka v. Umadevi the Court had specifically suggested that the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed employees who have worked for ten years or more in duly sanctioned posts, but not under cover of orders of courts or of tribunals. Therefore, respondents herein were qualified for being considered for regularisation as has been ordered by the learned Member, Industrial Court. He submitted that in the case of Mineral Exploration Corporation employees' Union v. Mineral Exploration Corporation Ltd. the Supreme Court had directed that the claim of workman should be reconsidered in accordance with the directions given by the constitution bench in Secretary, State of Karnataka v. Umadevi and the Industrial Court was directed to dispose of the matter afresh within nine months of the receipt of the judgment. The learned Counsel, therefore, submitted that since the order passed by the learned Member, Industrial Court does not violate observations of the Supreme Court in State of Karnataka v. Umadevi, there would be no case for intervention by this Court.

8. After having correctly considered the rival submissions it is clear that no fault can be found with the learned Member of the Industrial Court in directing that the petitioner should take affirmative action to regularise services of all the complainants as driver or firemen in face of categorical statement of petitioners' witness before the Industrial Court that necessary posts for accommodating respondent-employees were vacant. The contention that the respondent-employees did not qualify for being appointed as fireman has also to be negatived because petitioners' witness had admitted that out of sixteen employees working in the Fire Brigade of the petitioner council fourteen were not having any certificate of having completed fire fighting course. It seems that had it been the practice of the Municipal Council to send the employees for requisite training after they are regularised. Therefore, the learned Member, Industrial Court had rightly concluded on the basis of evidence tendered before him that the respondent employees had made a good case for regularisation of their services.

9. The learned Counsel for the petitioners submitted that the question of respondents' entry in the employment of the petitioner council had not been considered by the Industrial Court. He submitted that as held by the Supreme Court in M.P. Housing Board v. Manoj Srivastava the appointment has to be made by following law operating in the field of employment. He submitted that the Supreme Court has frowned upon practice of regularising service of persons who enter by back door. The learned Counsel for respondent employees submitted that a person in need of job left with no alternative, may seek admittance even by the back door. For such a helpless unemployed person, the prospect of being thrown out of employment because he was found to have entered by back door would amount to being subjected double jeopardy. While entering by back door he would have made some efforts to have the back door opened. Rather than taking action against those opening back door for such if helpless labourers if they are to be punished by being thrown out of employment after a decade of service, it would amount to punishing innocent victims.

10. The learned Counsel for employees submitted that apart from this, since there is no regular procedure prescribed for engaging a person as labourer, at least to his knowledge, and since labourers would not have been engaged after calling applications by issuing advertisement, and selecting candidates after a selection process, it cannot be said that the entry of respondents in the employment of petitioner Municipal Council is by back door. He submitted that the question whether the respondents entered by back door would have to be dealt with on the basis of scheme prevailing at the time of their entry, and since the petitioner council has not shown that in the year 1983-1986, when the respondent employees entered employment of the Municipal Council, there was any rule which was violated while appointing respondents the contention that they as labourers have entered by back door has to be rejected.

11. There is considerable force in the contentions of the learned Counsel for the respondents. The learned Counsel for the respondents is also correct in saying that the learned Member, Industrial Court had rightly decided the complaints on the basis of material which was placed before him. The learned Member, did not have benefit of three judgments which were cited before me when he decided the complaints. These three judgments, which have come in the year 2006 after the complaints were decided in the year 2004, have changed the course of wind in the matter of regularisation of employment. Therefore, though the order passed by the learned Member could not have been faulted when it was passed, since it is not with the tune of law declared by the Supreme Court in 2006 it would have to be modified. As held by the Supreme Court in State of Karnataka v. Umadevi, all that the respondent employees would be entitled to is regularisation in the sense explained in the judgment in Umadevi's case.

12. In paragraph 14 of the judgment in Umadevi the Court had quoted from previous judgment in B.N. Nagarajan v. State of Karnataka, reported at where the Court had observed that the words regular or regularization. do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. This view has not been changed and has, in fact, been reiterated by the Supreme Court in Secretary, State of Karnataka v. Umadevi. The learned Counsel for the respondent employees, therefore, submitted that even if it is taken for a while that there were some irregularities in the initial entry of the respondents in the service of petitioner Municipal Council, considering length of service rendered by them without any break, this irregularity has to be regularised.

13. The learned Counsel for the petitioners and learned AGPs appearing for the Director of Municipal Administration submitted that there are no vacant sanctioned posts against which the respondent-employees can be appointed. They submitted that the petitioner Municipal Council is not in a position to bear burden of wage bill since its expenditure on establishment already exceeds statutory limits of 50% and therefore, it would not be possible for the Municipal Council to accommodate respondent-employees as regular employees on particulars scales of pay as directed by the Industrial Court. Both, the learned Counsel for the petitioner and learned AGPs appearing for the Director of Municipal Administration submitted that apart from whether there is any procedure for being employed as labourer, the question as to how regular appointments are to be made would have to be considered while directing that the respondent employees should be appointed to regular posts carrying scale of pay. They submitted that appointments can be made only after complying with the statutory requirements of reservation of posts and after considering all relevant facts for entry into municipal service. Therefore, they submitted that the matter need not be looked at only from the point of whether as labourers the respondents had entered by appropriate process or not. They submitted that directing regularisation of the respondent-employees would result in injustice to others who may be better qualified for employment with the Municipal Council but did not have opportunity because proper procedure for filling up those posts had not been initiated by the council.

14. The learned Counsel for the petitioner submitted that the judgment of the Supreme Court in Municipal Council, Samrala v. Rajkumar directly considers question of employment with local self Government body. The Court had observed that since the Municipal Council is 'State' in the meaning of Article 12 of the Constitution employment by Municipal Council must be in accordance with the provisions of statute or rules. Therefore, the learned Counsel for the petitioner rightly submitted that the impugned order can be obeyed only by breaching the rules framed under the Municipal Law as also by breaching the constitutional mandate about reservation of the posts in public employment.

15. In view of this, the impugned order, would have to be set aside. It may not have been permissible for the Industrial Court to direct regularisation of respondent employees from 11.04.1997 in regular scales of pay. To that extent, the order would have to be set aside.

16. The order by the Member, Industrial Court, directing the petitioner Municipal Council to take affirmative action to regularise the services of the respondent employees, would, however, have to be maintained by adding that the regularisation contemplated by the said order would be regularisation as described in paragraph 14 of the judgment in Secretary, State of Karnataka v. Umadevi, referred to above, which would entitle the respondents to be considered for appointment in regular scale of pay as and when such vacancies are advertised, having due regard to all other statutory requirements.

The petitions are, therefore, allowed.

Rule made absolute in the above terms.

No order as to costs.