Bombay High Court
The Dhule Municipal Corporation ... vs Laxmi Fattesing Vasave on 5 December, 2016
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 9868 OF 2016
The Dhule Municipal Corporation,
Dhule, District Dhule.
Through its Commissioner.
...PETITIONER
-VERSUS-
Laxmi Fattesing Vasave,
Age : years, Occupation : Nil,
R/o Plot No.38, Vankhedkar Nagar,
Deopur, Dhule, District Dhule.
...RESPONDENT
WITH
WRIT PETITION NO.9869 OF 2016
The Dhule Municipal Corporation,
Dhule, District Dhule.
Through its Commissioner.
...PETITIONER
-VERSUS-
Nirmala Gulab Ahire,
Age : years, Occupation : Nil,
R/o Plot No.38, Vankhedkar Nagar,
Deopur, Dhule, District Dhule.
...RESPONDENT
WITH
WRIT PETITION NO.9871 OF 2016
The Dhule Municipal Corporation,
Dhule, District Dhule.
Through its Commissioner.
::: Uploaded on - 09/12/2016 ::: Downloaded on - 10/12/2016 00:28:54 :::
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...PETITIONER
-VERSUS-
Baban Vasant Zote,
Age : years, Occupation : Nil,
R/o Plot No.28/B, Yashwant Nagar,
Sakri Road, Dhule, District Dhule.
...RESPONDENT
...
Advocate for Petitioner : Shri Desale Nilesh N.
Advocate for Respondents : Shri S.R. Patil.
...
ig CORAM: RAVINDRA V. GHUGE, J.
DATE :- 05th December, 2016
Oral Judgment :
1 Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2 On 05.10.2016, after hearing the learned Advocates for the
respective sides, I had noted the submissions of the Petitioner in the order
dated 05.10.2016 as under :-
"1. In all these petitions, the same
petitioner/corporation is challenging the award
dated 29/12/2015 delivered by the Labour
Court, Dhule by which Ref.(IDA) No.2/2014,
1/2014 and 3/2014 respectively, have been partly
allowed.
2. The brief facts narrated by the petitioner are as
under:-
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[a] These 3 identically placed respondents have been
appointed on 13/03/1990 by the then Dhule
Municipal Council on the strength of a
resolution passed for appointing 94 such
employees.
[b] On the report of the Chief Officer dated 14/03/1990
submitted to the District Collector, the
resolution was stayed by the District Collector
on 22/03/1990 under Section 308 of the
Maharashtra Municipal Councils, Nagar
Panchayats and Industrial Townships Act, 1965.
[c] The President of the Municipal Council challenged the
order of the District Collector before the Divisional
Commissioner.
[d] These 94 employees preferred WP
No.2560/1990 and were granted protection by
order dated 25/06/1990 by this Court.
[e] On 13/07/1997, one petitioner out of the
94 withdrew the petition, which was therefore
disposed of and interim relief was vacated.
[f] These employees were terminated on 05/07/2001.
[g] WP No.2560/1990 was restored by this Court on
24/07/2002 and disposed off on the same
day directing the Divisional Commissioner to
decide the challenge posed by the Municipal Council
against the order of the District Collector.
[h] On 31/12/2002, the Divisional Commissioner
confirmed the order of the District Collector.
[i] Only 17 employees, not including these 3
respondents, approached the State Government u/s
[j] On 07/08/2003, the Hon'ble Minister set aside the
orders of the District Collector and the Divisional
Commissioner and directed the appointment of those
17 employees.
[k] These 3 respondents have filed these reference cases in
2014 and by the impugned award, the Labour Court,
by allowing the reference cases, has granted
reinstatement with continuity of service, but
without back wages. Costs of Rs.5,000/- in each
matter has been imposed on the petitioner.
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3. Issue notice before admission to the respondents in
these matters, returnable on 19/10/2016. Mr.Patil,
learned Advocate waives service on behalf of these
respondents.
4. Considering the fact that these respondents
are out of employment from 2001, they shall
not resort to coercive steps or execution
proceedings for seeking the execution of the
impugned awards until further orders."
3 The Respondents/ Employees in all these matters have filed
their affidavits in reply. Shri Patil, learned Advocate for the Respondents,
has strenuously supported the impugned awards. He submits that the
Labour Court has arrived at a finding on facts and as such, this Court
should not interfere with the said conclusions. It is prayed that these
petitions be dismissed.
4 Shri Patil then places on record the two documents which are
collectively marked as Exhibit X for identification. He submits that the
document at page 1 below Exhibit X would indicate that these
Respondents had preferred the appeals before the Honourable Minister
after the Appeal filed by the Municipal Council before the Divisional
Commissioner was rejected on 31.12.2002. The said appeals were pending
before the Honourable Minister. Page 2 of Exhibit X is a communication
from the Desk Officer, Government of Maharashtra, to one of the
Respondents that their appeals could not be decided since the Municipal
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Council has got converted into a Municipal Corporation. Thereafter, after
a passage of 10 years, the Respondents were before the Labour Court in
Reference (IDA) Nos.2/2014, 1/2014 and 3/2014.
5 It is apparent that all these Respondents were sought to be
appointed by the resolution dated 13.03.1990 passed by the Dhule
Municipal Council. 94 persons including these Respondents were the
beneficiaries. There is no dispute that despite the issue of public
employment, neither any advertisement was published, nor any selection
process was followed. It appears that merely on the strength of the will of
the elected Councillors, these 94 persons were sought to be appointed.
When the District Collector received the report from the Chief Officer
dated 14.03.1990, the resolution was stayed on 22.03.1990 under Section
308 of the Maharashtra Municipal Councils, Nagar Panchayats and
Industrial Townships Act, 1965 (for short "the 1965 Act").
6 Section 308 of the 1965 Act reads as under:-
"308. Powers to suspend execution of orders and resolution
of Council on certain grounds:-
(1) If, in the opinion of the Collector, the execution of any
order or resolution of a Council, or the doing of
anything which is about to be done or is being done by
or on behalf of a Council, is causing or is likely to
cause injury or annoyance to the public or is against
public interest or to lead to a breach of the peace or is
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unlawful, he may by order in writing under his
signature suspend the execution or prohibit the doing
thereof.
(2) When the Collector makes any order under his
signature, he shall forward to the Council affected
thereby a copy of the order, indicating therein the
reasons for making it and also submit a report to the
Director, along with a copy of such order.
(3) Within [thirty days] from the receipt of such order of
the Collector, the Council shall, if it so desires, forward
a statement to the Director indicating therein why the
order of the Collector should be rescinded, revised or
modified. If no such statement is received by the
Director within time, the Director shall presume that
the Council has no objection if the order of the
Collector is confirmed.
(4) On receipt of such report from the Collector and the
Council's statement referred to in sub-section (3), if
any, the Director may [within a period of six months,
from the receipt of such report or within such period
beyond six months as may, on the request of the
Director, be extended by the state Government] rescind
the order or may revise or modify or confirm the order
or direct that the order shall continue to be in force
with or without modifications:
Provided that, the Director shall take into
account the statement of Council, if received, before
such an order is made by him."
7 All these 94 employees including the Respondents had
approached this Court in Writ Petition No.2560/1990 and were protected
by the order dated 25.06.1990. It is on the basis of the order of this Court
that the Respondents continued till 13.07.1997, when one of the
employees withdrew the said writ petition and interim relief was vacated.
All the employees were terminated thereafter on 05.07.2001.
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8 Pursuant to the above, though this Court restored Writ
Petition No.2560/1990, the same was disposed of by directing the
Divisional Commissioner to decide the challenge posed by the Municipal
Council against the order of the District Collector. The employees were out
of service. The Divisional Commissioner rejected the appeal and confirmed
the order of the District Collector, vide order dated 31.12.2002. Only 17
amongst the 94 employees approached the State Government under
Section 318 of the 1965 Act. By order dated 07.08.2003, the Honourable
Minister set aside the order of the District Collector as well as the
Divisional Commissioner and directed the appointment of 17 employees.
According to the Petitioner, about 07 to 08 amongst these 17 employees
have been reinstated. The Respondents submit that all 17 out of 94
employees have been reinstated.
9 The peculiarity in these cases is that these Respondents after
passage of 10 years, approached the Labour Court by raising an industrial
dispute. When the issue of granting back door entries by the Municipal
Council was subject matter of the procedure under Section 308 of the
1965 Act, these Respondents should have approached the State
Government as is the scheme of law. After sleeping for about 10 years,
they have raised an industrial dispute. It is nowhere stated in the
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statement of claim that the appeals preferred by these Respondents before
the Honourable Minister were pending or that they were disposed of. The
said aspect has been suppressed by the Respondents in their statement of
claim.
10 When Section 308 of the 1965 Act lays down the procedure to
deal with such resolutions, these Respondents kept silent for 10 years and
then raised an industrial dispute before the Labour Court, which has
granted them reinstatement with continuity of service without back
wages. It is, therefore, apparent that the resolution passed by the
Municipal Council dated 13.03.1990 to appoint these Respondents was
stayed within 09 days by the District Collector on 22.03.1990. Yet, the
Municipal Council appointed the Respondents against the orders of the
District Collector. Thereafter, they approached this Court and due to the
protective orders of this Court, they have continued in employment for 11
years. There can be no dispute that all these appointments are back door
entries and the District Collector and the Divisional Commissioner have
followed the procedure under Section 308 of the 1965 Act by suspending
the resolution to appoint persons as like these Respondents.
11 From the record available and the pleadings of the parties, I
do not find that Section 76 of the 1965 Act was followed while making
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appointments of these Respondents or any of the 94 persons. Section 76
reads as under:-
"76. Appointment of other Officers and servants.
(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) Subject to any general or special orders, which may,
from time to time, be made by the State Government
in this behalf, appointments to the posts created under
sub-section (1), shall be made by the Chief Officer
from the list of the candidates selected by such
selection authority or such other body, as the State
Government may, by general or special order, specify.
(4) No Council shall employ any person, who has not
completed fifteenth year, to serve as a member of its
sanitary staff."
12 The learned Division Bench, in the case of Municipal Council
Tirora vs. Tulsidar Baliram Bindhade, 2016 (6) Mh.L.J. 867 (decided on
22.07.2016) has dealt with illegal appointments and has concluded in
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paragraph 19 as under:-
"19. In this reference, the position emerging before us is
similar. There is no conflict between the provisions of
M.S.O. 4-C and the provisions of the S. 76 of the
1965 Act. In the event of the appointment having
been made validly, it may be possible to invoke
the provisions Cl. 4-C of M.S.O. A view to the
contrary would result in regularizing/validating a
void act. Cl. 4-C neither permits nor contemplates the
same. As held in the above judgments, if the
appointment is not made in accordance with the
constitutional scheme, it is void ab-initio and,
therefore, there can be no claim to its regularization
or for grant of permanency in any manner. This is all
the more so as Cl.32 of the M.S.O. clarifies that the
Standing Orders are not to operate in derogation of
any other law i.e. S. 76 of 1965 Act. Definitely any
interpretation of Clause 4C conducive to defeating the
Constitutional mandate is unwarranted. Violation of
Clause 4C of the MSO may tantamount to an unfair
labour practice under item 9 of Sch. IV of the
1971 Act but unless & until, other additional factors
are proved on record, finding of indulgence in an
unfair labour practice under item 6 of Sch. IV thereof
can not be reached. As explained by the Hon.Apex
Court in case of Maharashtra SRTC v. Casteribe
Rajya Parivahan Karmchari Sanghatana, (supra),
existence of a legal vacancy must be established & as
discussed above, the power to recruit with the
employer must also be demonstrated. In absence
thereof, workman can not succeed in proving
the commission of unfair labour practice under
item 6 by the employer. These two ingredients,
therefore, also must be established when benefit
of Cl. 4-C is being claimed. Unless availability
of a vacancy is shown or then power with
the employer to create the post and to fill it is brought
on record, mere continuation of 240 days can not
and does not enable the workman to claim
permanency by taking recourse to Cl. 4C read
with item 9 of Sch. IV of 1971 Act. Clause 4C does not
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employ word "regularisation" but then it is implicit in
it as no "permanency" is possible without it.
Conversely, it follows that when a statutory
provision like S. 76 disables the employer
either from creating or filling in the posts, such a
claim can not be sustained. This also nullifies the
reliance upon the judgment of learned Single Judge in
case of Maharashtra Lok Kamgar Sanghatana Vs.
Ballarpur Industries Limited (supra) where the
employer was a private Company not subjected
to such regulatory measures by any Statute and
enjoyed full freedom to create the posts and to recruit.
One of us (B.P. Dharmadhikari, J.) is party to
the judgment of this Court in Raymond UCO
Denim Private Ltd. Vs. Praful Warade & Ors.
(supra) which again needs to be distinguished
for the same reasons. The judgment of learned
Single Judge in case of Indian Tobacco Company
Ltd. vs. The Industrial Court and Ors.
(supra), judgment of Hon'ble Apex Court affirming it
or then judgment of Hon'ble Apex Court reported
at Western India Match Company Ltd. and
Workmen are all considered therein & are
distinguishable as the same do not pertain to the
province of public employment or consider
inherent Constitutional restraints (the suprema lex
- see Mahendra L. Jain v. Indore Development
Authority and others (supra) and Cl. 32 of
the MSO. For same reasons, law laid down by
the Full Bench judgment of this Court in 2007 (1)
CLR 460- 2007 (1) Mah.L.J. 754-Gangadhar
Balgopal Nair Vs. Voltas Limited & Anr. does
not advance the cause of workmen. The Division
Bench of this Court in May & Baker Ltd. v.
Kishore Jaikishandas Icchaporia (supra) while
construing Section 10-A(3) held that the expression
"other law" would not refer to the model
standing orders or the certified standing orders since
they are laws made under the provisions of
parent act itself and not under any other law.
The Model Standing Orders and Certified Standing
Orders, held the Division Bench, "are laws no doubt
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but they are laws made under the provisions of the
Act". They were held not to be provisions
under any other law. This discussion therefore
shows how these words "in derogation of any law for
the time being in force" in Cl. 32 of MSO need to be
understood & does not help Adv. Jaiswal or Adv.
Khan."
13 In the above backdrop, the issue of violation of Section 25-F
of the Industrial Disputes Act, 1947 and an opportunity of hearing would
not arise when in fact the District Collector had stayed the illegal
resolution dated 13.03.1990 on 22.03.1990 and yet, the Councillors of the
Municipal Council got these Respondents illegally appointed, which can
never be said to be a lawful procedure followed for appointing them under
Section 76 of the 1965 Act.
14 The Labour Court has allowed the reference on the ground
that these Respondents have suffered discrimination. THERE CAN BE NO
EQUALITY OR PARITY IN ILLEGALITY. Few who approached the
Honourable Minister, were granted reinstatement. Therefore, few of them
have been accommodated by the Petitioner. It is undisputed that these
Respondents have not acquired any order from the Honourable Minister.
These aspects coupled with the fact that all these Respondents were in
service only on account of the interim protective orders of this Court,
should have been considered by the Labour Court before concluding that
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the Petitioner is guilty of unfair labour practices under clauses (a), (b) and
(f) of Item (5) of Schedule V of the Industrial Disputes Act, 1947.
15 Item 5(a, b and f), Schedule V of the Industrial Disputes Act,
1947 read as under:-
"5. To discharge or dismiss workman --
(a) by way of victimization;"
"(b) not in good faith, but in the colourable exercise
of the employer's right;"
"(f) in utter disregard of the principles of natural
justice in the conduct of domestic enquiry or with
undue haste;"
16 In the peculiar facts as above and when none of these
Respondents had acquired an order from the Honourable Minister
directing their reinstatement and when the appeal filed by the Municipal
Council challenging the staying of appointments of these Respondents was
dismissed by the Divisional Commissioner, I do not find that these
Respondents had suffered "victimization" or that the Petitioner had acted
in "bad faith", or in the "colourable exercise of it's right" or in "utter
disregard of the principles of natural justice in the conduct of domestic
enquiry" or with "undue haste". None of the three clauses under Item (5)
of Schedule V of the Industrial Disputes Act, 1947, can be said to be
attracted.
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17 In the light of the above, these Writ Petitions are allowed. The
impugned judgments and awards dated 29.12.2015 are quashed and set
aside. Reference (IDA) Nos.2/2014, 1/2014 and 3/2014, respectively,
stand rejected. Rule is made absolute in the above terms.
kps (RAVINDRA V. GHUGE, J.)
