Bombay High Court
The Commissioner Jalgaon City ... vs Sunanda Kashinath Choudhari on 30 August, 2016
Bench: R.V. Ghuge
WP/4618/2016
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4618 OF 2016
The Commissioner,
Jalgaon City Municipal
Corporation, Jalgaon. ..Petitioner
Versus
Smt. Sunanda Kashinath
Choudhari, age 49 years,
Occupation Nil, r/o Joshi Peth,
Near Panjarpole Water Tank,
Jalgaon. ig ..Respondent
...
Advocate for Petitioner : Shri Swamy M.C. h/f Shri Gunale V.D.
Advocate for Respondent : Shri Patil S.R.
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: August 30, 2016
...
ORAL JUDGMENT :-
1. Heard learned Advocates for the respective parties.
2. Rule.
3. By consent, Rule is made returnable forthwith and the
petition is taken up for final disposal.
4. The petitioner is aggrieved by the judgment and order dated
WP/4618/2016
7.12.2015, delivered by the Industrial Court, Jalgaon by which
Complaint (ULP) No.5 of 2014, filed by the respondent / employee
has been allowed.
5. Shri Gunale, learned Advocate for the petitioner has
strenuously criticized the impugned judgment. He relies upon the
judgment of the Honourable Supreme Court in the matter of
Secretary, State of Karnataka Vs. Umadevi & Others [(2006) 4 SCC
1], to contend that the respondent is a back door entrant and,
therefore, she could not be regularized in the employment by the
impugned judgment.
6. He further submits that though the proposal dated
13.6.2001, forwarded by the petitioner to the Government for
seeking regularization of daily wagers inclusive of the respondent
is pending, the earlier proposal has been rejected.
7. He further submits that since the petitioner does not have
the authority of creating posts, it cannot be held guilty of unfair
labour practice. The proposal of the respondent dated 13.6.2001,
at Exhibit U-19 before the Industrial Court was forwarded by the
petitioner and hence, there can be no declaration of unfair labour
practice against the respondent.
WP/4618/2016
8. Shri Patil, learned Advocate for the respondent has
supported the impugned judgment. He clarifies that the proposal
of the respondent forwarded earlier was rejected because she was
terminated, her termination was set aside by the Labour Court and
the matter was subjudice. However, the present proposal Exhibit
U-19 is pending and the directions to decide the same urgently,
since it is pending for more than 15 years, needs to be issued in
this matter.
9. I find that the respondent has been working with the
petitioner from 1988 as an Aaya in the hospital operated by the
Corporation. She has put in about 28 years in service. Exhibit
U/17, which is a communication dated 10.8.2013, by the
Establishment Superintendent to the respondent employee would
indicate that 3 posts of Aaya and 9 posts of Peons are vacant.
10. The proposal with regard to the respondent, Exhibit U-19 is
pending decision for the last 15 years. Considering the above facts,
there can be no dispute that the respondent / employee deserves
to be regularized in service on the post of Aaya and the date of
regularization should be from the date when the first post of Aaya
amongst the three, mentioned in Exhibit U-17 has fallen vacant.
WP/4618/2016
11. Paragraph No.44 of the judgment of the Honourable Apex
Court in the Umadevi's case (supra) reads as under:-
"44. One aspect needs to be clarified. There may be cases
where irregular appointments (not illegal appointments) as
explained in S.V. Narayanappa (supra), R.N. Nanjundappa
(supra), and B.N. Nagarajan (supra), and referred to in
paragraph 15 above, of duly qualified persons in duly
sanctioned vacant posts might have been made and the
employees have continued to work for ten years or more
but without the intervention of orders of courts or of
tribunals. The question of regularization of the services of
such employees may have to be considered on merits in the
light of the principles settled by this Court in the cases
above referred to and in the light of this judgment. In that
context, the Union of India, the State Governments and
their instrumentalities should take steps to regularize as a
one time measure, the services of such irregularly
appointed, who have worked for ten years or more in duly
sanctioned posts but not under cover of orders of courts or
of tribunals and should further ensure that regular
recruitments are undertaken to fill those vacant sanctioned
posts that require to be filled up, in cases where temporary
employees or daily wagers are being now employed. The
process must be set in motion within six months from this
date. We also clarify that regularization, if any already
made, but not sub judice, need not be reopened based on
this judgment, but there should be no further by-passing of
WP/4618/2016
the constitutional requirement and regularizing or making
permanent, those not duly appointed as per the
constitutional scheme."
12. As such, this petition is partly allowed only to the extent of
setting aside the declaration of ULP, only under item 6 of Schedule
IV against the petitioner, since the petitioner has taken efforts in
forwarding the proposal of the respondent for regularization. The
impugned judgment would, therefore, be modified with the
direction that the petitioner and the appropriate State
authorities / department shall accord approval to the
regularization of the respondent from the date on which the first
post amongst the three available posts of Aaya has fallen vacant.
The respondent shall, therefore, be entitled to all incidental and
consequential benefits, inclusive of monetary benefits from the
said date.
13. This direction shall be complied with by the petitioner and
the State authorities within a period of sixteen weeks from today.
The petitioner shall be under an obligation to place a copy of this
judgment along with the communication Exhibit U-17 before the
Director of Municipal Administration as expeditiously as possible
and within a period of three weeks from today.
WP/4618/2016
14. Rule is made partly absolute in the above terms.
15. No costs.
( RAVINDRA V. GHUGE, J. )
...
akl/d
