Bombay High Court
Municipal Council (Nagar ... vs Vikas Machindra Mane & Ors on 26 November, 2015
Bench: R.V. Ghuge
WP/5427/1996/Group
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5427 OF 1996
Municipal Council (Nagar Parishad),
Osmanabad, through its Chief Officer. ..Petitioner
Versus
1. Shri Vikas Machindra Mane,
Age 21 years, Service, r/o Chavan
Galli, H. No.546, Osmanabad.
2. The Government of Maharashtra,
Through G.P.Office, High Court,
Aurangabad.
3. The Director of Municipal
Administration, Pune / Bombay. ..Respondents
WITH
WRIT PETITION NO. 5428 OF 1996
Municipal Council (Nagar Parishad),
Osmanabad, through its Chief Officer. ..Petitioner
Versus
1. Marathwada Sarva Shramik
Sanghatana, Latur, through its
Secretary, r/o Trade Union Centre,
Latur.
2. The Government of Maharashtra,
Through G.P.Office, High Court,
Aurangabad.
3. The Director of Municipal
Administration, Pune / Bombay. ..Respondents
AND
WRIT PETITION NO. 1645 OF 1997
Municipal Council (Nagar Parishad),
Osmanabad, through its Chief Officer. ..Petitioner
Versus
::: Uploaded on - 27/11/2015 ::: Downloaded on - 27/11/2015 23:59:45 :::
WP/5427/1996/Group
2
1. Marathwada Sarva Shramik
Sanghatana, Latur, through its
Secretary, r/o Trade Union Centre,
Latur.
2. The Government of Maharashtra,
Through G.P.Office, High Court,
Aurangabad.
3. The Director of Municipal
Administration, Pune / Bombay. ..Respondents
...
Advocate for Petitioners : Shri Naiknavare Ramesh V.
Advocate for Respondent 1 : Shri Bayas Anandsingh S.
AGP for Respondents 2 & 3 : Shri Korde D.R.
ig ...
CORAM : RAVINDRA V. GHUGE, J.
Dated: November 26, 2015
...
ORAL JUDGMENT :-
1. The petitioner in these three petitions is the Municipal Council,
Osmanabad. The daily wage employees involved in these three petitions
are represented by the respondent No.1 Union. This Union had preferred
Complaint (ULP) Nos. 395 of 1991, 468 of 1990 and 93 of 1989 before the
Industrial Court, seeking benefits of permanency for the workers mentioned
in the Annexure to the complaints. By identical three judgments, dated
11.1.1996, all these three complaints have been allowed. The petitioner
has questioned these three judgments in these petitions.
2. Since all the daily wage employees, represented by the respondent
Union are identically situated and an identical question of law is involved, I
have considered these three petitions together.
WP/5427/1996/Group
3. While admitting these petitions, this Court has protected the services
of the daily wage employees. Consequentially, barring a few who have
retired, all such employees are in employment and all of them have been
granted regularization by the order dated 31.10.2001, passed by the
Regional Director, Municipal Council Administration. It is, therefore, not in
dispute that all these daily wage employees are now regularized in
employment with effect from 31.10.2001.
4.
For the sake of brevity, the petitioner Municipal Council is being
referred to as the "Municipal Council" and the daily wage workmen at issue
are referred to as "daily wagers".
5. The contention of the Municipal Council in these petitions is that the
Industrial Court could not have granted regularization to the daily wagers.
Unless the posts were created by respondent No.3 - Director of Municipal
Administration, the Complaints preferred by the daily wagers could not
have been entertained by the Industrial Court. Reliance is placed upon the
judgment of this Court in the matter of Municipal Council, Bhandara and
another Vs. Mrs. Jaiwantabai and others [1998 (3) Mah. L.J. 765].
6. Shri Naiknavare, learned Advocate for the Municipal Council has
strenuously criticized the impugned judgment dated 11.1.1996. Grievance
is that unless a proper proposal was not forwarded by the Municipal Council
for creation of posts, the daily wagers could not have been regularized.
WP/5427/1996/Group
The Municipal Council cannot be termed to be an "Industry." Since the
burden of providing amenities and health services to the residents falling
within the Municipal Council was growing day by day, the Municipal Council
could not cope up with the rise in work. Permanent vacant posts were not
available. Since the permanent strength of workmen was insufficient to
shoulder the burden of providing civic amenities, the Municipal Council had
to engage daily wagers.
7.
It is further submitted that merely because the daily wagers were
working regularly, it would not mean that they were entitled for
regularization only because they had completed 240 days in continuous
employment. It is, therefore, prayed that the impugned judgments of the
Industrial Court be set aside and the regularization granted to the daily
wagers by order dated 31.10.2001 be sustained.
8. Shri Bayas, learned Advocate appearing on behalf of the daily wagers
submits that the Municipal Council itself did not move an appropriate
proposal for creation of posts. Had they so done with promptitude, the
daily wagers would have been conferred with the privileges of
regularization and would have been entitled for retiral benefits. He
submits on the basis of the evidence recorded before the Industrial Court,
that the witness of the Municipal Council admitted that the proposals were
not promptly forwarded and hence the posts were not created early.
9. He further submits that the Municipal Council cannot continue the
WP/5427/1996/Group
daily wagers for years together and exploit them. Security of employment
is more important than merely continuing as daily wagers. Since the
proposals were delayedly forwarded, the daily wagers have been
regularized in employment by order dated 31.10.2001. He submits that
there is no legal infirmity in the conclusions drawn by the Industrial Court
and hence these petitions deserve to be dismissed.
10. I have considered the submissions of the learned Advocates as
recorded herein above and have gone through the record available with
their assistance.
11. It is trite law that the Municipal Council does not have the powers to
create posts. Such power vests with the Director of Municipal
Administration. It is not in dispute that vacant posts were created and all
the daily wagers have been bestowed with benefits of regularization by
order dated 31.10.2001.
12. The issue, however, is as to what should be the date from which
these daily wagers could be held to be regularized in employment and
entitled for monetary benefits.
13. An identical issue fell for the consideration of this Court in the
Municipal Council, Bhandara case (supra). The issue, "Whether the
Municipal Council, Bhandara could create posts or not and what should be
the date from which the daily wagers should be given benefits of
WP/5427/1996/Group
permanency?" has been dealt with by this Court. It would be apposite to
reproduce paragraph Nos.7 to 13 of the said judgment as under:-
"7. I have heard the Counsel at length as also considered
the various judgments which have been cited on the
proposition. In the first case, it would be important to
consider the provisos of the Maharashtra Municipal Councils,
Nagar Panchayats and Industrial Townships Act, 1965 and
more specifically section 76 thereof. We are concerned with
section 76(1) and (2) which reads as under :--
"76(1) A Council may, with the sanction of the
Director, create such posts of officers and
servants other than those specified in sub-sections
(1) and (2) of section 75 as it shall deem necessary
for efficient execution of its duties under this Act.
(2) Subject to the provisions of sub-section (3),
the qualifications, pay, allowances and other
conditions of service and the method of
recruitment of any such officers and servants,
excluding the posts equivalent to class IV posts in
the State Government, shall be determined by
general or special order made by the Director in
this behalf. In case of posts equivalent to Class IV
posts in the services of the State Government, the
qualifications, pay, allowances and other
conditions of service and method of recruitment
shall be determined by bye-laws made by the
Council in this behalf" .....
(3) ....
(4) ...."
WP/5427/1996/Group
From a reading of the section, it is clear that the posts have
to be created if they do not exist with the sanction of the Director.
The petitioners by themselves have no power to create posts. All
that they can do is, depending upon the nature of work, forward to
the Director of Municipal Administration, their recommendations
and/or resolutions for the creation of the posts. It is for the
Director thereafter to sanction the said posts. In the instant case,
admittedly, no posts have been sanctioned though the petitioners
have written to the Director for sanction of various posts which,
according to them, are required for the purpose of conservancy,
maintenance etc. within the jurisdiction of the Council. No rules or
bye-laws pertaining to recruitment or conditions of service have also
been placed before me. On pointed query to the Counsel for
petitioners, it is pointed out that at least at the relevant time when
the complainants/workmen were engaged on daily wage basis, there
were no rules governing their conditions of service and/ or
qualifications for the appointment. This becomes relevant for the
purposes of examining the various contentions that if the
appointments have not been made in terms of the rules, the
question of making such workers who have been recruited on daily
wages as permanent, would not arise. In the absence of any such
rules, the power would vest in the Council and/or delegated in
terms of its business rules, to the Officers to make such
recruitment. In the instant case, admittedly, all the workmen in the
various complaints have been engaged on daily wages right from the
time of appointment and have been working continuously with the
petitioner. It is also important to bear in mind and note that the
petitioner is a Local Authority. The petitioner cannot discriminate
amongst its employees and as such Articles 14 and 16, would be
attracted insofar as the petitioner Council is concerned. Once the
tribunal or this Court has arrived at a conclusion that the workmen
engaged by the petitioners and who had filed complaints before the
Industrial Court were doing the same job or similar job and that the
WP/5427/1996/Group
job done by the complainants was also done by regular workers in
the Establishment, then in that case, merely because they were
engaged on daily wage basis, they cannot be denied the benefit of
regular pay-scale or pay after they have worked for a long time. The
very fact that the complainants-workmen have been continued for a
long time by itself would be an indication that the job was not a
temporary, but in fact, regular jobs are available. From the fact
that the petitioners have themselves written to the Director of
Municipal Administration to sanction the posts also will be relevant
for the purpose of arriving at a conclusion that there is a need for
permanent posts and that is the reason why the petitioners have
sought sanction for the said posts. Once there are persons doing the
same work, can the petitioner discriminate in the matter of pay-
scales and/or pay? In the case of Randhirsingh v. Union of India,
(1982) ILLJ 344 SC, the Apex Court has laid down the law i.e. Equal
Pay for equal work. It is true that in respect of casual employees in
the matter of pay scale, the Apex Court has thereafter approached
it from a different angle. However, what is relevant for
consideration is the fact that in the instant case the workmen could
not be made permanent not because no regular posts are available,
but because the Director of Municipal Administration has not
sanctioned the posts. The workmen, therefore, cannot be denied the
benefit to which they are legitimately entitled to on the precious
plea that they are daily wage workers. The very fact that they are
working continuously and many of them, for about 10 years by itself
would suggest that it is a constitutional imperative that they must
be entitled to regular pay which the similarly circumstanced
employees in the Council are drawing.
8. As noted earlier, the question of making the employees
permanent in the absence of posts would not arise. If there is no
post available, there is no question of conferring permanency. In the
instant case, it is nobody's case that the posts are available. On the
WP/5427/1996/Group
contrary, the evidence on record is that the petitioners have written
to the Director of Municipal Administration for sanctioning the
posts. It is only after the posts are sanctioned and the posts become
available that the complainants-workmen could be made permanent
against the said posts, Therefore, the question of making them
permanent in the absence of sanction against the non-existing posts
would not arise.
9. That leads us to main question to be decided in the petition
as to what is the date from which the workmen are entitled to the
benefit of pay or pay-scales and the other benefits which the
employees who are regularly appointed are entitled to. In this
context, let me first deal with the contentions raised on behalf of
the workmen as it is the contention of the workmen that they are
entitled to be regularised in terms of the Settlement. It is,
therefore, important to consider the said statement.
10. The appropriate Government i.e. the State of Maharashtra
was pleased to refer a dispute for the adjudication existing between
the petitioner and the workmen employed under it with respect to
the following two demands :--
"(1) The Council should apply the Bombay Civil Service
Rules, to the conservancy employees as made applicable
by the Council to all other employees so that the
conditions of service regarding annual leave, holiday etc.
could be regulated on par with other employees of the
Council. The application of Bombay Civil Services Rules,
should be given retrospective effect from the date of
order.
(2) All the daily rated employees be made permanent
with effect from the date of order".
We are not concerned with the first demand, but what would
WP/5427/1996/Group
be relevant would be demand No. 2. Demand No. 2 has been
discussed at paragraphs 18 and 19 of the Award. At the time,
the demand was made, apart from 117 regular sweepers in
the Sanitary Department, there were also 26 Safai coolies who
were daily rated employees, it was also brought on record
that the Council itself had represented to the concerned
authority to create the posts, but no sanction had been
received. Thereafter in para 19, the Industrial Tribunal
observed that most of the Safai coolies are engaged on the
work of permanent nature lasting throughout the year and
they have to work for all working hours and all working days.
Some of the workers had put in a few months and some had
put in few days' service. In this context, the Industrial
Tribunal observed that there was no valid reason as to why
the Safai coolies who had put in sufficient length of service,
should not be confirmed. The Tribunal then observed that at
the same time, the general demand made by the workers that
all the daily rated employees should be made permanent
cannot be accepted. The Tribunal then went on to observe
that only those daily rated employees who have put in
continuous and satisfactory service for 2 years, should be
considered for being made permanent. The Tribunal was
thereafter pleased to order that all daily rated employees
who have put in two years continuous and satisfactory service,
should be considered for being made permanent by the first
party i.e. the Municipal Council, Bhandara. It is, therefore,
clear that the direction to make them permanent was on
putting two years continuous service and the service being
satisfactory. This does not show and/or indicate that in fact,
this was the general demand for all years to come. From the
facts as emerge, what is seen is that this was the demand put
on behalf of all employees who were then engaged on daily
rates to be made permanent. The Tribunal rejected the
WP/5427/1996/Group
demand as generally made, but directed that only those
employees who have put in two years of continuous service
and whose work is satisfactory, should be made permanent. In
this context the judgment cited by the learned Counsel in the
case of Regional Manager, MSRTC (supra), to my mind, is for
the general proposition that violation of settlement would
amount to unfair labour practice within the meaning of Item
(9) of Schedule IV of the Unfair Labour Practices Act. In the
instant case, the Industrial Court itself has held that by not
giving the benefit of permanent employees to the workers,
the petitioners have committed an act of unfair labour
practice. The question is, whether the settlement, as
referred to earlier, could be availed of by the complainants-
workmen to contend that they are entitled to regularisation
from the date of completing two years from the date of their
regular continuous employment. From perusal of the
complaints filed in these cases, which in all respects, are
more or less the same what the complainants have averred is
that the workmen are well qualified to hold the permanent
status in employment of the respondent and has rendered
honest and diligent service. Reference has been made to the
Award which was passed on 30th July, 1975. It is evident that
the said Award has not taken into consideration the provisions
of section 76 of the Maharashtra Municipal Councils, Nagar
Panchayats And Industrial Townships Act, 1965 to grant
permanency, which would entail that there are posts which
are available. If there are no posts available, question of
making the workers permanent would not arise. It has been
contended that the Award of the Industrial Tribunal was not
challenged and has become final. The mere fact that on an
earlier demand, the petitioner had accepted the Award would
not mean that on a complaint being filed, it was not entitled
to contend that the workmen could not be made permanent
WP/5427/1996/Group
on account of non-existing posts. Once that plea was raised,
the matter had to be considered by the Industrial Court. All
the more, this Court has to consider the effect taking into
consideration that what is being sought in support of their
cases is the Award of 1975. It is impossible to accept the
contention of the learned Counsel for respondents that the
workmen are entitled to the benefits of the Award which was
passed in the year 1975. Even if the said Award can be said to
be continuing as a condition of service ex-facie in the face of
section 76 of the Maharashtra Municipal Councils, Nagar
Panchayats and Industrial Townships Act, 1965, the question
of making the workers permanent would not arise. This
contention, therefore, has to be rejected.
11. Once the above contention is rejected, the question is the
date on which the employees are to be given the benefit which the
permanent employees are entitled to. Section 30 of the Unfair
Labour Practices Act, confers powers on the Industrial and Labour
Court to direct all such persons to cease and desist from such unfair
labour practice, and take such affirmative action (including payment
of reasonable compensation to the employee or employees affected
by the unfair labour practice, or reinstatement of the employee or
employees with or without backwages, or the payment of reasonable
compensation), as may in the opinion of the Court be necessary to
effectuate the policy of the Act. This is, therefore, at the discretion
which is vested in the courts. No doubt, the discretion must be
exercised fairly. It must be exercised based on the material before
it. Extraneous consideration cannot be used for the purpose of
exercising this discretion or for forming the opinion. Once the
Tribunal has exercised discretion based on relevant principles, this
Court in the exercise of its writ jurisdiction under Articles 226 and
227 of the Constitution would not interfere with the said exercise
unless it is so irrational and/or perverse which no reasonable person
WP/5427/1996/Group
could have arrived at. In the instant case, however, I am confronted
with the fact that there are five different orders passed on various
complaints. The nature of the relief granted in one set of complaints
is different from the relief granted on another set of complaints.
Under these circumstances, it would not be possible to call on the
petitioners/employer to implement the orders of the Industrial
Court which has fixed different criteria for workers similarly
situated to be given the benefits of pay and regularisation from
different dates. To that effect, the orders of the Industrial Court
insofar as giving permanency to the employees and the benefits of
the pay-scales would have to be set aside in order to enable this
Court to pass an appropriate order which would be uniform and
treat all the employees alike considering the date of the
employment, the date on which the complaint was filed and the
category in which they are working. What would, therefore, be
relevant criteria to fix the pay of the complainants to give them the
pay which the permanent employees are entitled to. The learned
Counsel has invited my attention to the judgment of the Apex Court
to the context that mere fact that additional financial burden would
be occasioned, would be no reason to reject the relief if the
workmen would be otherwise entitled to. In the case of Chief
Conservator of Forest & another (supra), it was pointed out to the
Apex Court that the effect of regularisation in case of employees in
the office of the Chief Conservator of Forest, would work upto Rs.
300 crores. The Apex Court rejected the said argument on the
ground that what they were considering was not the case of 1.4 lacs
of employees, but the cases of employees who were deprived. What
is also to be borne in mind that this seems to have been a last
desperate attempt on the part of the petitioners before the Apex
Court to argue that the workmen were not entitled to be
regularised. To be fair to the petitioners herein, throughout they
have contended that they have applied for sanction and as there has
been no sanction, they could not appoint the petitioners to the post.
WP/5427/1996/Group
However, though they did not appoint the workmen to regular posts
in the absence of posts, on the plea that if there are no posts
available, the workmen are also not entitled to regular pay-scales or
pay, they have not granted the said benefit to the workers.
Therefore, the case of a Department of State which was not
reconciled to regularisation of its employees, cannot be equated on
the same footing as the petitioners before this Court who have at no
point of time opposed the contention of the complainants that they
were not entitled to permanency. Ultimately a Local Body is not on
the same footing as the State Government. Local Body is dependent
on the grants received from the State Government and the limited
revenue it receives by way of taxes and fees. The Local Bodies have
been set up to carry out the functions which, in fact, the
Government ought to have, but is not in a position to do. In these
circumstances, the economic aspects will have to be borne in mind
considering the limited resources of the petitioners herein.
12. A large number of authorities have been cited before me in
the matter of regularisation and/or non-regularisation. For the view
of that is being taken it has been not necessary for me to discuss the
various authorities. After the judgment of the Apex Court in the
case of Randhirsingh, a public body cannot refuse to give the same
benefits to its employees who are doing similar work. In the instant
case, though the workmen have been styled to be engaged on daily
wage basis nonetheless they have been working continuously without
any break. In case of workmen of the same employer, daily/casual
workmen were directed to be regularised on completion of two years
service in terms of the award. In such a situation, the judgment of
the Apex Court in Conservator of Forests (supra) would be
applicable. Permanency is writ large in the work the petitioners are
doing. On account of a technical requirement of posts not being
sanctioned they have not been made regular. However, they are
doing work of a regular nature and usually these employees would
WP/5427/1996/Group
be entitled to the same pay-scales which the permanent employees
are entitled to. Another contention which was canvassed on behalf
of the workmen and which has not been adverted to earlier, is the
question of the Model Standing Orders. As far back as the judgment
of the Apex Court in the case of Corporation of City of Nagpur, it is
now laid down that the departments of the municipality which carry
on industrial activities would be governed by the provisions of the
Industrial Disputes Act. It is the contention on behalf of the
complainants that no Standing Orders have been framed and in the
absence of Standing Orders, the Model Standing Orders would be
applicable to the Establishment and as such according to the
respondents, on completion of 240 days, they have to be made
regular. As pointed out earlier, the question of confirmation of an
employee or making him regular in the post would arise if
permanent post was available. In the instant case, no permanent
posts are available. The question, therefore, of making the workmen
permanent on completion of 240 days would not arise. The said
situation would have arisen if the posts had been created and
employee had been engaged and had completed 240 days of
continuous service. This question would not, therefore, arise in this
case.
13. Having considered all the above aspects, in normal cases, the
relief monetary or otherwise is three years from the date on which a
person approaches the Court based on a cause of action. In the case
of continuing wrong like denial of wages, the cause of action may be
continuous. If the workman does not approach the Court within the
period of limitation, question of granting relief by way of arrears
would not arise. In the instant case, the workers have come to the
Court in the year 1988. The normal rule in such circumstances would
be to extend benefit of the pay-scale without giving arrears for the
period barred by limitation. As such, in the instant case, the
workmen who would be entitled to pay-scales for three years before
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filing of the complaints. As pointed out earlier, the issue involves
payment to a large number of workmen. The petitioners if called
upon to pay benefits as prayed for by the workmen, would be
crushed by the financial burden considering the numbers involved.
At the same time, the workers who have worked with the petitioners
cannot also be denied benefit on the ground that the petitioner is
not able to make good the payment. Consequences may be large
scale retrenchment which is not in the interests of the workmen and
citizens. Considering these various aspects, it would be appropriate
to pass the following order. The order/s of the Industrial Court are
set aside to the extent of monetary and other benefits. It is made
clear that the finding of the Industrial Court that the petitioners
have committed unfair labour practice is not being set aside and
that is being affirmed. The following order is passed.
(1) The complainants before the Industrial Court would
be entitled to be paid wages in the scale which a regular
workman doing the same work is getting, from the date
of complaint.
(2) In computing the Pay that the workman would be
entitled to, it will be deemed that his pay is fixed three
years previous to the date of the complaint is so made
and he would be placed in the appropriate pay on the
date of the complaint. If he has not completed three
years as on the date of complaint, the pay will be fixed
as on the date of his complaint.
(3) The complainants would also be entitled to other
benefits which the permanent employees are entitled
from the date of the complaint.
(4) Insofar as permanency is considered, the petitioners
to make permanent the complainants on receiving
sanction from the Director of Municipal Administration
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in terms of section 76 of the Maharashtra Municipal
Councils, Nagar Panchayats and Industrial Townships Act,
1965." (Emphasis supplied).
14. In the instant cases, the dates of joining duties as daily wagers have
been placed on record in these petitions. Many of these daily wagers have
been working from 1985 and onwards. It is not in dispute that they have
been continuously working with the petitioners in the Class IV category. The
Industrial Court has granted the status and benefits of permanency from the
date of completion of five years to all the daily wagers drawing an analogy
from the Kalelkar Award / Settlement, applicable to several departments of
the State Government. This Court in the Municipal Council, Bhandara case
(supra) has concluded that the daily wagers could be entitled to fixed pay,
three years prior to the date of the complaint. They were held entitled for
the benefits, which the permanent employees are entitled from the date of
the complaint.
15. It is not disputed that these daily wagers have filed their complaints
in 1989, 1990 and 1991. Same have been decided on 11.1.1996. The
financial burden of the petitioners cannot be ignored.
16. In the light of the above, since the posts were created and the daily
wagers were absorbed as permanent employees from 31.10.2001, I find it
appropriate to modify the impugned judgments and especially in the light of
the fact that the daily wagers have not challenged the benefits granted to
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them by order dated 31.10.2001, as follows:-
(A) The directions of the Industrial Court in Clauses I, II and III
are sustained.
(B) The direction of the Industrial Court in Clause IV is modified
to the extent that all the daily wagers, who are parties to these
complaints shall be entitled for retiral / pensionery benefits,
considering their initial date of joining as daily wagers and shall be
entitled for monetary benefits incidental to regularization with
effect from the date of the judgment of the Industrial Court, which
is 11.1.1996.
17. The petitions are partly allowed and Rule is made partly absolute in
the above terms.
( RAVINDRA V. GHUGE, J. )
...
akl/d
