Bombay High Court
Municipal Council, Gondia Thr. ... vs Purshottam S/O Punjabrao ... on 8 December, 2009
Bench: B.P. Dharmadhikari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 2641 OF 2005
1. The Municipal Council,
Gondia, through its
Chief Officer.
2. The President,
Municipal Council, Gondia,
Tahsil & District - Gondia.
3. The Standing Committee,
Municipal Council, Gondia. ... PETITIONERS
Versus
Purshottam s/o Punjabrao Mankawade,
Sanitary Inspector, Municipal Council,
Gondia, District - Gondia. ... RESPONDENT
Shri Abhijit Parihar, Advocate holding for Shri Anoop Parihar,
Advocate for the petitioners.
.....
CORAM : B.P. DHARMADHIKARI, J.
DECEMBER 08, 2009.
ORAL JUDGMENT :
Heard Shri Abhijit Parihar, Advocate holding for Shri
Anoop Parihar, learned counsel for the petitioners. Shri Borkar,
learned counsel for respondent is not available. The matter was
called out yesterday but both the advocates were absent. Today
again Shri Abhijit Parihar, Advocate was seeking adjournment,
however, his request has been rejected.
2. With the assistance of Shri Parihar, learned counsel, I
have perused the records. The learned Member of Industrial
Court by judgment dated 09.12.2004 delivered in Complaint ULP
No. 62 of 2000, directed the present petitioners to release to
respondent the benefits of regularization for the period from
08.03.1996 till 22.02.1999. It has been held that by not
regularizing him as Sanitary Inspector from 08.03.1996, the
petitioners have indulged in Unfair labour practice under item 9
of Scheduled IV of the Maharashtra Recognition of Trade Unions
and Prevention of Unfair Labour Practices Act, 1971.
Accordingly, the difference of wages on that count are also
directed to be paid and Complaint ULP filed by present
respondent has been partly allowed.
3. The facts show that the respondent was earlier
appointed as Sanitary Inspector for three months on fixed pay of
Rs.400/- per month and thereafter at fixed pay of Rs.550/- per
month. Shri Thakare regular Sanitary Inspector was not keeping
good health and in his absence, this arrangement was made.
Shri Thakare applied for voluntary retirement and Standing
Committee of the petitioners - Municipal Council on 06.09.1996
allowed that request. After retirement of Shri Thakare with
effect from 02.02.1999, the petitioners have regularized
appointment of the respondent as Sanitary Inspector against that
vacancy.
4. In these circumstances, the respondent approached the
Industrial Court invoking provisions of Section 4-C of Model
Standing Orders, claiming regularization after completion of 240
days and contending that resolution dated 02.02.1999 should
have been fully implemented.
5. The perusal of Industrial Court order reveals that first
appointment of the respondent was by the President of Municipal
Council without any permission of General Body and this was
accepted by the respondent in his cross examination. He also
stated that General Body was the competent appointing authority
for the post of Sanitary Inspector and that he was getting regular
scale from 23.02.1999. The regular pay scale has been given to
him as per resolution dated 02.02.1999 at Exh. 19. This is also
accepted by witness for the petitioners Shri T.A. Pendharkar,
Establishment Clerk, who was examined at Exh. 24. It is,
therefore, apparent that initial service by the respondent from
1992 till his regular appointment on 23.02.1999 could not have
been treated as service with public body as his recruitment was
not in accordance with law. He was not appointed after
following prescribed procedure against any sanctioned vacant
post. He was initially appointed as stop gap arrangement on
consolidated salary in the absence of regular Sanitary Inspector
Shri Thakare. That arrangement was made by the President of
the Municipal Council without any resolution of General Body.
6. The learned Member of the Industrial Court, therefore,
erred in granting relief of pay-scale to the respondent from
08.03.1996 till 22.02.1999. The issue stands concluded by the
Constitution Bench judgment of the Hon'ble Apex Court in the
case of Secretary, State of Karnataka vs. Umadevi, reported at AIR
2006 SC 1806 and also the recent judgment of the Hon'ble Apex
Court in the case of Maharashtra SRTC vs. Casteribe Rajya
Parivahan Karmchari Sanghatana, reported at (2009) 8 SCC
556.
7. Writ Petition is, therefore, allowed. The impugned
judgment dated 09.12.2004 is hereby quashed and set aside.
Complaint ULP No. 62 of 2000 is hereby dismissed. No order as
to costs.
JUDGE
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*GS.
