Bombay High Court
Kundalwadi Nagar Parishad ... vs Janardan Shrikant Bhore And ... on 8 August, 2016
Bench: R.V. Ghuge
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.4690 OF 2016
Kundalwadi Nagar Parishad,
Kundalwadi, Tq.Biloli,
District : Nanded,
Through Chief Officer,
Navnath S/o Baliram Wagwad,
Age-40 years, Occu-Service,
R/o Kundalwadi, Tq.Biloli,
District : Nanded
ig PETITIONER
VERSUS
1. Janardan S/o Shrikant Bhore,
Age-40 years, Occu-Service,
R/o Kundalwadi, Tq.Biloli,
Dist.Nanded,
2. The Director,
Municipal Administration,
3rd floor, Sir Pochchanwala Road,
Warli, Mumbai-30. RESPONDENTS
Mr.S.S.Patunkar h/f J.P.Legal Associates, Advocate for the petitioner.
Mr.P.V.Jadhavar, Advocate for respondent No.1.
Mr.S.W.Munde, AGP for respondent No.2.
( CORAM : RAVINDRA V. GHUGE, J.)
DATE : 08/08/2016
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard finally by the
consent of the parties
khs/AUGUST 2016/4690-d
2. The petitioner is aggrieved by the judgment and order dated
05/10/2015 delivered by the Industrial Court, Jalna by which
Complaint (ULP) No.117/2010, filed by respondent No.1/employee,
has been allowed and the petitioner is directed to grant permanency
to the employee with status and privileges of permanent employee.
3. Learned Advocate for the petitioner has strenuously criticized
the impugned judgment. He submits that though the employee was
working from 01/10/1994 and is in employment even today, he was
engaged as a daily wager without following the due process of
selection. In public employment, a proper selection process is to be
followed. The Municipal Council has engaged the employee by
passing a Resolution. His services were approved on 08/07/1998 by
Resolution No.206. Thereafter, by a Resolution No.69, his wages were
increased from Rs.20/- to Rs.30/-.
4. Grievance is that the petitioner cannot be directed by the
Industrial Court to create posts and consequentially the direction to
grant permanency on a non-existing post is unsustainable. Reliance
is placed upon the judgment of this Court in the matter of Sandip
Baliram Sandbhor and others Vs. Pimpri Chinchwad Municipal
Corporation and others, 2016(3) Mh.L.J. 563.
khs/AUGUST 2016/4690-d
5. Learned Advocate for respondent No.1/employee has supported
the impugned judgment. Reliance is placed upon the judgment of
this Court in the matter of Mukhyadhikari, Nagar Parishad, Tuljapur
Vs. Vishal Vijay Amrutrao and others, 2015(5) Mh.L.J. 75 and the
unreported judgment of this Court dated 09/07/2015 in WP
No.4745/2002 in the matter of Municipal Council, Parbhani Vs.
Vishwas Uttamrao Latpate and dtd.21/10/2015 in WP No.1266/2015
in the matter of Udgir Municipal Council Vs. State of Maharashtra
and others.
6. I have considered the submissions of the learned Advocates
and have gone through the reports cited.
7. There is no dispute that the employee is working with the
petitioner from 01/10/1994 and is still in employment.
8. The view taken by this Court in the Sandip Baliram case
(supra) would not be applicable to this case since the contention of
the workers, in their complaint itself, was that,
"h. The complainant realizing and anticipating the end and
closure of contract of M/s. M.P.Enterprises with the respondents,
personally met the respondent Nos.2 and 3 on or about
khs/AUGUST 2016/4690-d
28/09/2004 and got them alighted of the situation that there
used to be heavy working load in Talera Hospital and the current
total staff of class IV employees in Talera Hospital was not
sufficient to meet the exigencies of urgent hospital work, and
that, the complainants were working for number of months and
years in Talera Hospital and thus acquired the practical working
knowledge on these posts in the Hospital, and therefore, they
requested the respondent Nos. 2 and 3 to absorb them as the
regular permanent employees of the corporation and to allow to
continue to work them in Talera Hospital instead of appointing
other employees on these posts. The respondent Nos.2 and 3
sympathetically appreciated the submissions of the complainants
and promise to absorb them on the regular permanent
employment of the corporation. However, the respondent Nos. 2
and 3 told to the complainants that they would have to go
through some procedural and such other legal formalities in order
to absorb the complainants as regular permanent employees in
the corporation, and it will take some reasonable time of about ¾
months. The respondent Nos. 2 and 3 therefore asked the
complainants to continue to work in Talera Hospital as
probationers as Class IV employees and promised them to give
due appointment orders as regular permanent employees of the
corporations within a period of ¾ months, after completing such
compliance and formalities and also the period of probation. The
complainants in good faith believe these representations and
agreed to continue to work as Class IV employees in Talera
Hospital as probationers, and even without any written
appointment orders with expectations that they would get due
khs/AUGUST 2016/4690-d
appointment orders as permanent employees in due course. The
respondent No.3 then immediately instructed telephonically to the
Senior Medical Officer and in charge of Talera Hospital to allow
the complainants to continue to work on the posts, they were
already working as Class IV employees in Talera Hospital."
9. It is, therefore, obvious that the workers in the Sandip Baliram
case (supra) were contract labourers and they had approached the
Court when they realized that the contract with their labour
contractor was being terminated and they would lose their
employment. In the instant case, respondent No.1 has been directly
engaged by the petitioner and without any intervention of the Court,
he is in employment for about 22 years.
10. In similar circumstances and set of facts, this Court has
already taken a view in the 3 judgments cited by the learned
Advocate for the employee. This Court had modified the judgment of
the Industrial Court and had directed the Municipal Council to
prepare a proposal and forward the same for granting benefits of
regularization to the employee so as to be considered by the
Directorate of Municipal Administration (Maharashtra).
11. Needless to state, the direction of the Industrial Court in the
khs/AUGUST 2016/4690-d
impugned judgment in Clause B, C and D therefore deserves to be
modified keeping in view the earlier judgments of this Court in the
matter of Vishal Vijay Amrutrao, Municipal Council, Parbhani and
Udgir Municipal Council (supra).
12. In the light of the above, this petition is partly allowed. Since
the Municipal Council cannot create posts, the declaration of ULP
under Item 6 and 9 of Schedule IV of the MRTU and PULP Act, 1971
is quashed and set aside.
13. The petitioner shall forward the proposal of respondent No.1 /
employee to respondent No.2 Directorate of Municipal Administration
within a period of 8 (eight) weeks from today. The petitioner shall
indicate the vacancy available and the date on which the post has
fallen vacant. After receiving the proposal, respondent No.2 shall
pass necessary orders within 12 (weeks) for regularizing the services
of the employee with effect from the date on which the first available
post has fallen vacant and alongwith incidental and consequential
benefits.
14. Clause Nos. B, C and D of the impugned judgment are
therefore replaced by the above directions.
khs/AUGUST 2016/4690-d
15. Rule is made partly absolute in the above terms.
( RAVINDRA V. GHUGE, J.)
khs/AUGUST 2016/4690-d
