Bombay High Court
The Municipal Council And Another vs Ratan Tulsiram Nagdeve on 22 July, 2016
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 5191 OF 2004
WITH
WRIT PETITION NO. 5199 OF 2004
WITH
WRIT PETITION NO. 5200 OF 2004
WITH
WRIT PETITION NO. 5201 OF 2004
WITH
WRIT PETITION NO. 5202 OF 2004
WITH
WRIT PETITION NO. 5203 OF 2004
WITH
WRIT PETITION NO. 5204 OF 2004
WITH
WRIT PETITION NO. 5205 OF 2004
WITH
WRIT PETITION NO. 5207 OF 2004
AND
WRIT PETITION NO. 5520 OF 2004
WRIT PETITION NO. 5191 OF 2004
1. The Municipal Council, Tirora,
through its Chief Officer.
2. The President,
Municipal Council, Tirora,
District - Gondia. ... PETITIONERS
Versus
Tulsidas Baliram Bindhade,
aged about 35 years,
r/o Tirora, District - Gondia. ... RESPONDENT
WRIT PETITION NO. 5199 OF 2004
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1. The Municipal Council, Tirora,
through its Chief Officer.
2. The President,
Municipal Council, Tirora,
District - Gondia. ... PETITIONERS
Versus
Vithoba Rajaram Bhandarkar,
aged about 45 years,
r/o Tirora, District - Gondia. ... RESPONDENT
WRIT PETITION NO. 5200 OF 2004
1. The Municipal Council, Tirora,
through its Chief Officer.
2. The President,
Municipal Council, Tirora,
District - Gondia. ... PETITIONERS
Versus
Ratan s/o Tulsiram Nagdeve,
aged about 35 years,
r/o Tirora, District - Gondia. ... RESPONDENT
WRIT PETITION NO. 5201 OF 2004
1. The Municipal Council, Tirora,
through its Chief Officer.
2. The President,
Municipal Council, Tirora,
District - Gondia. ... PETITIONERS
Versus
Kalu Mohammad Janmohammad ... (Amended as per Courts
Sheikh (through LR) order dated 02.06.2008.)
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Shakilabee Kalu Mohd. Sheikh,
r/o Killa Ward, Tirora,
r/o Tirora, District - Gondia. ... RESPONDENT
WRIT PETITION NO. 5202 OF 2004
1. The Municipal Council, Tirora,
through its Chief Officer.
2. The President,
Municipal Council, Tirora,
District - Gondia. ... PETITIONERS
Versus
Vishwanath Pandurang Tumsare,
aged about 44 years,
r/o Tirora, District - Gondia. ... RESPONDENT
WRIT PETITION NO. 5203 OF 2004
1. The Municipal Council, Tirora,
through its Chief Officer.
2. The President,
Municipal Council, Tirora,
District - Gondia. ... PETITIONERS
Versus
Smt. Vithabai wd/o Bhiwa Nagrikar ... (Amended as per Courts
Sheikh (through LR) order dated 13.08.2008.)
Shri Sadashio Bhiva Nagrikar,
r/o Near Raut Photo Studio,
r/o Tirora, District - Gondia. ... RESPONDENT
WRIT PETITION NO. 5204 OF 2004
1. The Municipal Council, Tirora,
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through its Chief Officer.
2. The President,
Municipal Council, Tirora,
District - Gondia. ... PETITIONERS
Versus
Balakdas s/o Sadhu Barekar,
aged about 30 years,
r/o Tirora, District - Gondia. ... RESPONDENT
WRIT PETITION NO. 5205 OF 2004
1. The Municipal Council, Tirora,
through its Chief Officer.
2. The President,
Municipal Council, Tirora,
District - Gondia. ... PETITIONERS
Versus
Smt. Sarojbai wd/o Sadashiv Chavan,
aged about 50 years,
r/o Tirora, District - Gondia. ... RESPONDENT
WRIT PETITION NO. 5207 OF 2004
1. The Municipal Council, Tirora,
through its Chief Officer.
2. The President,
Municipal Council, Tirora,
District - Gondia. ... PETITIONERS
Versus
Ashok Parasram Sansarede,
aged about 29 years,
r/o Tirora, District - Gondia. ... RESPONDENT
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WRIT PETITION NO. 5520 OF 2004
1. The Municipal Council, Tirora,
through its Chief Officer.
2. The President,
Municipal Council, Tirora,
District - Gondia. ... PETITIONERS
Versus
Gopal Nanaji Bhimate ... (Amended as per Courts
(through LR) order dated 23.03.2009.)
Tanuja Gopal Bhimate
aged 25 years,
r/o c/o Municipal Council,
Gondia. ... RESPONDENT
Shri A. Parihar, Advocate for the petitioners.
Shri M.P. Jaiswal with Shri B.M. Khan, Advocate for the
respondents.
.....
CORAM : B.P. DHARMADHIKARI &
KUM. INDIRA JAIN, JJ.
DATE OF RESERVE : JULY 11, 2016.
DATE OF PRONOUNCEMENT : JULY 22, 2016.
JUDGMENT : (PER B.P. DHARMADHIKARI, J.)
1. The Hon'ble The Chief Justice has in view of the
following orders dated 22.01.2015 passed by the learned Single
Judge in Writ Petition Nos. 5191/2004, 5199 to 5205/2004,
5207 & 5520 of 2004, referred to this Division Bench the
following question :---
"1. An unfortunate situation has arisen in the present
matters. Writ Petition No.1209 of 2002 along with
connected matters in respect of Class-IV employees of
Municipal Council, Tumsar, were allowed by a common
judgment and order delivered by the learned Single
Judge of this Court (Smt. Vasanti A. Naik, J.) on 20-8-
2011, and the common order passed by the Industrial
Court directing regularization on the basis of Clause 4C
of the Model Standing Orders under the Industrial
Employment (Standing Orders) Act read with Item 6 of
Schedule IV of the Maharashtra Recognition of Trade
Unions & Prevention of Unfair Labour Practices Act, has
been quashed and set aside and the complaints have
been dismissed. Same is the view taken by me in
respect of Class-IV employees of the same Municipal
Council in Writ Petition No.1207 of 2002 along with
connected matters decided by common judgment and
order dated 23-12-2013. In another set of Writ
Petition No.3087 of 2001 along with connected matters
decided by me by common judgment and order dated
17-6-2013, same view is followed. In Writ Petition
No.3436 of 2001 in respect of the employees from the
same Municipal Council, a different view is taken by the
learned Single Judge of this Court (Shri Z.A. Haq, J.) in
the judgment and order dated 22-11-2014, and the
writ petition filed by Municipal Council, Tumsar, has
been dismissed, confirming the judgment and order
passed by the Industrial Court, directing regularization
of the complainant in service, on the basis of Clause 4C
of the Model Standing Orders. I do not find any
distinction on facts in Writ Petition Nos.1209 of 2002,
1207 of 2002 and 3087 of 2001.
2. All these petitions arise out of the common
order passed by the Industrial Court in the complaints
under Section 28 read with Items 6 and 9 of Schedule
IV of the Maharashtra Recognition of Trade Unions &
Prevention of Unfair Labour Practices Act, 1971
directing regularization of the complainants in service
upon completion of 240 days' continuous service as per
Clause 4C of the Model Standing Orders under the
Industrial Employment (Standing Orders) Act, 1946. It
is an undisputed fact that all the complainants were
appointed and working as daily wagers for years
together. They were neither working as badli or
temporary employees. There is neither any pleading
nor any evidence to prove that all of them were
appointed and working on the posts, which are
sanctioned, as required by Section 76 of the
Maharashtra Municipal Councils, Nagar Panchayats &
Industrial Townships Act, 1965. It is also not the case
either of the complainants or the employer-Municipal
Council that the proposal to create or sanction the posts
of Class-IV employees to accommodate the
complainants was forwarded to the Director of
Municipal Administration under Section 76 of the said
Act. Even if any such proposal is forwarded, no orders
are passed to create or sanction the posts to
accommodate the complainants as regular employees.
3. In the background of the aforesaid undisputed
factual position, the Industrial Court has recorded the
finding in all the matters that in terms of Clause 4C of
the Model Standing Orders under the Industrial
Employment (Standing Orders) Act, which are
applicable to the employees working in the Municipal
Council, the complainants have rendered 240 days'
continuous service and hence they are entitled to
regularization.
4. The facts stated in para 2 and the findings
recorded by the Industrial Court are similar in all these
decisions. There cannot be different view in the similar
facts and circumstances. In the decision given in Writ
Petition No.3436 of 2001, delivered by Shri Z.A. Haq,
J., I do not find any distinction on facts in Writ petition
Nos.1209 of 2002, 1207 of 2002 and 3087 of 2001.
The judicial discipline, therefore, requires all these
matters to be placed before the Larger Bench to resolve
the conflicting views and decide the following question
of law so as to avoid a different view being taken in
respect of Class-IV employees working in the same
Municipal Council :
Whether, in the absence of creation or sanction
of the posts under Section 76 of the Maharashtra
Municipal Councils, Nagar Panchayats & Industrial
Townships Act, 1965, the complainants were entitled to
claim permanency or regularization in service on the
basis of Clause 4C of the Model Standing Orders under
the Industrial Employment (Standing Orders) Act,
1946?
5. The matters be, therefore, placed before
Hon'ble the Chief Justice for constitution of appropriate
Bench in terms of Rule 7 of Chapter I of the Bombay
High Court Appellate Side Rules, 1960 to decide the
aforesaid question of law."
2. We find that the controversy already answered by at
least two Division Benches of this Court in 2006 & in 2008 in 2
LPAs and by at least two learned Single Judges S/Shri S. J.
Vazifdar J. & B.P. Dharmadhikari J, after appreciating the
binding precedents of the Hon'ble Apex Court. We have
therefore rejected the request of Adv. M.P. Jaiswal to place the
reference before Full Bench. Judgments of the Division Benches
of this Court in LPA 37 of 2006 in case of Pune Municipal
Corporation v. Dhananjay Prabhakar Gokhale, (2006) 7 LJ Soft
page 107 = (2006) 4 Mah. L.J. page 66 ( RMS Khandeparkar J.
& Roshan Dalvi J.) & in LPA 14 OF 2008 dated 31-7-2008
reported at 2008 (5) All M.R. 497 = 2008 (10) LJ SOFT 53 -
State of Maharashtra and Anr. Vs. Pandurang Sitaram Jadhav
(Swatanter Kumar, C.J., A.P. Deshpande, J.) as also of Single
Judge (S.J. Vazifdar, J.) in Ramesh Vitthal Patil & Ors. Vs.
Kalyan Dombivali Municipal Corporation & Ors. -- 2010(6) Bom.
C.R. 661--2010 (8) LJ SOFT 39 and another judgment of a
Single Judge (One of us- B.P. Dharmadhikari J.) reported at
2011 (2) CLR 336=2011 (4) Mh.L.J. 875-- Shrirampur
Municipal Council Vs. V.K. Barde, Member, Industrial Tribunal &
Ors., are helpful here. In fact, the respective learned Single
Judges whose concurring orders lead to this reference have also
taken note of this legal position. Though Shri Jaiswal made
request to place the matter before the Full Bench, he did not
invite our attention to any contrary view of the Division Bench
in the matter of public employment reached after considering
the binding precedents. The third learned Single Judge to
whom these two concurring views have been pointed out,
noted the difference in facts presented to him and therefore,
arrived at a different conclusion. As a question of law not
requiring factual investigation is before us, respective Counsel
have avoided to comment on merits of any of these orders and
we also do not find it necessary to delve into it.
3. Before proceeding further, it will be proper to
reproduce the relevant legal provisions here:--
Section 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."
Clause 4C of the Model Standing Orders (MSO) reads thus:-
"4C. A Badli or temporary workman who has put in 190
days' uninterrupted service in the aggregate in any
establishment of a seasonal nature or 240 days'
uninterrupted service in the aggregate in any other
establishment, during a period of preceding twelve
calendar months, shall be made permanent in that
establishment by an order in writing signed by the
Manager, or any person authorised in that behalf by the
Manager, irrespective of whether or not his name is on
the muster roll of the establishment throughout the
period of the said twelve calender months.
Explanation. _ For the purpose of this clause any period
of interrupted service, caused by cessation of work which
is not due to any fault of the workmen concerned, shall
not be counted for the purpose of computing 190 days
or 240 days or, as the case may be, for making a badli
or temporary workman permanent."
Clause 32 of the MSO reads as under :-
"Nothing contained in these Standing Orders shall
operate in derogation of any law for the time being in
force or to the prejudice of any right under a contract of
service, custom or usage or an agreement, settlement or
award applicable to the establishment."
4. It is apparent that a pure and simple question of law
not dependent upon or requiring any answer to the disputed
question of facts is placed before us. Hence, without touching
any finding on facts or examining correctness thereof and
without prejudice to the rival contentions in relation thereto,
We complete this exercise.
5. Adv. Parihar on behalf of the respective Municipal
Councils has relied upon the judgment of the Hon'ble Apex
Court reported at AIR 2015 SC 3473-- Vice-chancellor, Lucknow
University vs. Akhilesh Kumar Khare & Anr. He has also urged
that view taken by the learned Judge passing the order of
reference on 23.12.2011 in WP 1207/2012 and view of other
learned Single Judge dated 02.08.2011 followed by him are
correct. The cause for reference i.e. the order dated
11.11.2014 passed by the Hon. Single Judge noted as taking a
different view in fact does not disturb the legal position but
reaches a finding of fact and accordingly finds the settled law
not applicable. He adds that in present matter the posts are not
created or vacancies are not available. Hence, no recruitment
process could have been initiated and persons working on
daily wages do not acquire any right to post. S. 76 of the
Maharashtra Municipal Councils, Nagar Panchayats &
Industrial Townships Act, 1965 (hereinafter referred to as
1965 Act) as also the provisions of Maharashtra Civil Service
Rules (hereinafter referred to as MCSR) govern the recruitment
as also employment, hence, the provisions of MSO framed
under Industrial Employment Standing Orders Act, 1946 (IE
Act) cannot and do not apply. In absence of sanctioned posts,
no relief of regularization or permanency can be granted to the
workmen.
6. Adv. M.P. Jaiswal for the workmen submits that no
disputed question of fact needs answer here and hence, this
Court after resolving the question referred, should also decide
the writ petitions on merit. In all complaints filed under S. 28
r/w Sch. IV of Maharashtra Recognition of Trade Unions &
Prevention of Unfair Labour Practices Act, 1971-- hereinafter
1971 Act, entitlement to benefit of Clause 4C of MSO was
specifically added by amendment and the respondent Municipal
Councils have also replied to it. Their only defence as MCSR
applies, Cl. 4C of MSO cannot apply. He contends that MCSR
does not apply to municipalities here of its own but as
concerned Municipal Councils have adopted it. He invites
attention to Clause 32 of MSO to plead that by such adoption of
MCSR, applicability of Cl. 4C is not defeated. To substantiate
this, he draws support from Western India Match Company Ltd.
and Workmen 1973 Lab. I.C. 1602= 1973 (II) L.L.J. 403 (para
2), judgment of learned Single Judge reported at 1990(1)
C.L.R. 88- The Indian Tobacco Company Ltd. vs. The Industrial
Court and Ors. (para 17,19) which is affirmed by the Hon.
Apex Court and judgment of Single Judge of this Court at 2010
(6) Mah. L.J. 178 (para 7)- Raymond UCO Denim Private Ltd.
Vs. Praful Warade & Ors. which follows the same line.
7. To point out that a beneficial provision made in MSO
prevails over even clauses in certified Standing Orders and
sanctity of the arrangement in the Standing Orders, he relies
upon Raymond UCO Denim Private Ltd. Vs. Praful Warade & Ors.
(supra), May & Baker Ltd. v. Kishore Jaikishandas Icchaporia
-1991 II CLR 176 (para 7) and Full Bench judgment reported at
2007 (1) CLR 460-2007 (1) Mah. L.J. 754- Gangadhar Balgopal
Nair Vs. Voltas Limited & Anr.. Therefore, he stresses that S. 76
of 1965 Act cannot be used to defeat the welfare measure in Cl.
4C of MSO. He substantiates his stance by inviting attention to
AIR 1979 SC 65-(1978) 4 SCC 16-- U.P. State Electricity Board
v. Harishankar Jain. In addition, Adv. Jaiswal has placed heavy
reliance upon the Division Bench judgment in LPA reported at
2016 (3) Mah. L.J. 183 -- Ballarpur Industries Limited Vs.
Maharashtra Lok Kamgar Sanghatana and the judgment of
learned Single Judge upheld therein reported at Maharashtra
Lok Kamgar Sanghatana Vs Ballarpur
Industries Limited
reported at MANU/MH/0808/2010=2011(1) Mah. L.J. 93.
8. Adv. B.M. Khan invites attention to S. 2 (I) of the
Minimum Wages Act to show how the work of employees is
classified into either manual/clerical or then technical type for
their wages and they are graded as skilled, semi-skilled or
unskilled for determination thereof. Under the IE Act, 1946 the
model standing orders are separately framed for these
categories. Availability of the workload for 240 days is found by
law as sufficient indication of availability of a full time post. Cl.
4C does not envisage any post or vacancy and its object gets
defeated when it is attempted to be co-related with existence of
a post or vacancy. He also relies upon various judgments cited
by Adv. Jaiswal.
9. We can begin the discussion by pointing out an old
judgment which considers legal mode & manner of recruitment
in public employment. In 1972 Mah. L.J. 874- Uttam vs.
Municipal Council, Darwha, Division bench of this court in
relation to recruitment of teachers in municipal council held
that provisions of Art. 14 of the Constitution of India made it
mandatory to provide an opportunity to all eligible aspirants to
compete for said posts. Comparatively recent judgment of this
Court in case of Priyadarshini Education vs. Ratis Bano - 2007
(9) LJ SOFT 18 = 2007 (6) Mah. L.J. 667 again reiterated
same law in relation to employment of teachers/ staff in private
aides schools. As these schools received grants from public
exchequer, contention that as there is no express provision for
public advertisement in statute, the public invitation for filling
in vacancies was not necessary has been rejected. The
Constitution bench judgment of Hon'ble Apex Court in case of
Secretary, State of Karnataka vs. Umadevi - AIR 2006 SC 1806 is
relied upon.
10. Other leading judgment of Hon'ble Apex Court
relevant in the matter is Maharashtra SRTC v. Casteribe Rajya
Parivahan Karmchari Sanghatana, 2009 (12) LJ SOFT (SC) 306
= (2009) 8 SCC 556 . There at page 574, Hon'ble Apex Court
states :
"36. Umadevi (3) does not denude the Industrial and
Labour Courts of their statutory power under Section 30
read with Section 32 of the MRTU and PULP Act to
order permanency of the workers who have been victims
of unfair labour practice on the part of the employer
under Item 6 of Schedule IV where the posts on which
they have been working exist. Umadevi (3) cannot be
held to have overridden the powers of the Industrial and
Labour Courts in passing appropriate order under
Section 30 of the MRTU and PULP Act, once unfair
labour practice on the part of the employer under Item 6
of Schedule IV is established."
Little earlier Apex Court has, in this judgment
observed that:-
"29. In the cases of irregular appointments (not illegal
appointments) and their regularisation as one-time
measure, however, the Constitution Bench referred to
earlier decisions of this Court in State of Mysore v. S.V.
Narayanappa, R.N. Nanjundappa v. T. Thimmiah and
B.N. Nagarajan v. State of Karnataka and said:
(Umadevi (3) case1, SCC p.42, para 53)
"53.
ig One aspect needs to be clarified. There may
be cases where irregular appointments (not illegal
appointments) as explained in S.V. Narayanappa, R.N.
Nanjundappa and B.N. Nagarajan and referred to in
para 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 the courts or of
tribunals. The question of regularisation 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 regularise 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 the 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 regularisation, if any already made, but not
subjudice, need not be reopened based on this judgment,
but there should be no further bypassing of the
constitutional requirement and regularising or making
permanent, those not duly appointed as per the
constitutional scheme."
"37. There cannot be any quarrel with the
proposition that courts cannot direct creation of posts.
In Mahatma Phule Agricultural University v. Nasik Zilla
Sheth Kamgar Union this Court held: (SCC pp 352-53,
paras 12-14)--
"12. Mrs Jaising, in support --- ...... ------ in undergoing
any such exercise."
"13. To be seen that, ------ ......... -------- benefits payable
to other permanent workmen."
"14. Further, Item 6 of Schedule IV of the MRTU and
PULP Act reads as follows:
6. To employ employees as "badlis", casuals or
temporaries and to continue them as such for years,
with the object of depriving them of the status and
privileges of permanent employees.' The complaint was
against the Universities. The High Court notes that as
there were no posts the employees could not be made
permanent. Once it comes to the conclusion that for lack
of posts the employees could not be made permanent,
how could it then go on to hold that they were
continued as 'badlis', casuals or temporaries with the
object of depriving them of the status and privileges of
permanent employees? To be noted that the complaint
was not against the State Government. The complaint
was against the Universities. The inaction on the part of
the State Government to create posts would not mean
that an unfair labour practice had been committed by
the Universities. The reasoning given by the High Court
to conclude that the case was squarely covered by Item 6
of Schedule IV of the MRTU and PULP Act cannot be
sustained at all and the impugned judgment has to be
and is set aside. It is however clarified that the High
Court was right in concluding that, as per the law laid
down by this Court, status of permanency could not be
granted. Thus all orders wherein permanency has been
granted (except award dated 1-4-1985 in IT No.27 of
1984) also stand set aside."
"38. In State of Maharashtra v. R.S. Bhonde this
Court relied upon an earlier judgment in Mahatma
Phule Agricultural University and reiterated the legal
position thus: (SCC p 754, para 7)
"7. Additionally, as observed by this Court in
Mahatma Phule Agricultural University v. Nasik Zilla
Sheth Kamgar Union the status of permanency cannot
be granted when there is no post. Again in Gram Sevak
Prashikshan Kendra v. Workmen, it was held that mere
continuance every year of seasonal work obviously
during the period when the work was available does not
constitute a permanent status unless there exists post
and regularisation is done."
"39. In Indian Drugs & Pharmaceuticals Ltd. v.
Workmen this Court stated that courts cannot create a
post where none exists. In para 37 of the Report, this
Court held: (SCC p. 426)
"37. Creation and abolition of posts and regularisation
are purely executive functions vide P.U. Joshi v.
Accountant General. Hence, the court cannot create a
post where none exists. Also, we cannot issue any
direction to absorb the respondents or continue them in
service, or pay them salaries of regular employees, as
these are purely executive functions. This Court cannot
arrogate to itself the powers of the executive or
legislature. There is broad separation of powers under
the Constitution, and the judiciary, too, must know its
limits."
11. In Maharashtra SRTC v. Casteribe Rajya Parivahan
Karmchari Sanghatana, (supra) Hon'ble Apex Court also
observes ---
"42. However, the factual matrix of the present
controversy reveals that it was an admitted position
before the Industrial Court, Thane in Complaint (ULP)
No.442 of 1992 that the posts of cleaners in the
Corporation were in existence.........."
Thus because of this finding that posts of cleaner
were in existence and there was no violation of any statutory
provision while providing work to members of the respondent
union and MSRTC itself had power to create post or fill in
vacancies, the Hon. Apex Court upheld the relief granted by the
Industrial Court. It also found that MSRTC could not have
taken advantage of its own lapse which itself amounted to an
unfair labour practice. These distinguishing features must be
born in mind while considering grievance of such nature.
12. Case of Punjabrao Krishi Vidyapeeth, Akola Vs.
General Secretary, Krishi Vidyapeeth Kamgar Union and Anr.
(1993 (2) Mah. L.J. 1394), is also important here. Therein the
employer was an Agricultural University and question was,
whether in the absence of any power in the employer to
create / sanction posts, the object of depriving badlies or
casuals or temporaries of status and privileges of permanent
employees can be gathered. This Court found that unless and
until availability of the power with the employer to create a
new post is established, the unfair labour practice cannot be
proved. The establishment was a State within the meaning of
Article 12 of the Constitution of India and employment with it
was public employment. In the case of Gangadhar Pillai Vs.
M/s. Siemens Ltd. -(2007) 1 SCC 533, Item 6 of Schedule IV of
the Act of 1971 has been looked into by Hon. Apex Court and
in paragraph 24, it has been noticed that intermittent
engagement as a casual or temporary for number of years is
essentially a question of fact. It is further noted by the Hon.
Apex Court that such long service for number of years by itself
may not lead to conclusion that such appointment has been
made with the object of depriving him of status and privileges
of permanent employee. It is also noted by the Hon. Apex Court
that unlike other statutes, employer before it did not have
statutory liability to give permanent status to an employee on
completion of period specified. The said judgment of the Hon.
Apex Court further shows that burden to prove unfair labour
practice was upon workmen and there was a finding that the
breaks given were not artificial. Looking to the nature of
establishment and its activity, the Hon'ble Apex Court found
that requirement of engaging employees on temporary basis
was writ large. The nature of work/activity of that employer
was engineering and field service, undertaking jobs of
industrial project installation, erection, commissioning of
electrical / electronic equipments supplied by it or then
purchased by clients on various projects and sites. Observations
in paragraph 27 also show that period of employment had all
along been commensurate with the period of work undertaken
by employer under respective contracts. The object behind
granting temporary employment was, therefore, found to be
bona fide and not actuated with any intention to deprive
workman from benefits of permanency. The Hon'ble Apex
Court has also considered the earlier judgment delivered by it
and reported in the case of Chief Conservator of Forests and
another Vs. Jagannath Maruti Kondhare and Ors. (1996) 2 SCC
293, and distinguished it after noticing that the 25 workmen in
that matter were kept as casuals for long years. The other
judgment reported at 2005 I CLR 604 SC, in the case of Union
of India and others Vs. Ramchander and Anr., is also considered
in paragraph 34 to note that sufficient work was shown to be
available. It has also been held in paragraph 35, that the Hon.
Apex Court did not lay down any law having any universal
application in the matter.
13. In W.P. No. 4557 of 2005 - Municipal Council
Savada, Savada, V. Madhusudhan Narayan Patil, with W.P. No.
4558 & 4559 of 2005 decided on 1st February, 2011, Single
Judge (B.P. Dharmadhikari J) has held :-
"14. The judgment, therefore, clearly holds that
Constitution Bench Judgment of Hon'ble Apex Court can
not curtail powers of Labour Court or Industrial Court
in relations to unfair labour practice under Items 6 and
9 of Schedule IV of the M.R.T.U. & P.U.L.P. Act.
However, the relief has been given by the Hon'ble Apex
Court to the respondents before it after noticing that
post of cleaners were in existence. The question,
therefore, which falls for consideration in the present
matter is, whether any such posts are shown to be in
existence by the present respondents. It is admitted
position before me that Industrial Court has not
recorded any finding about availability of any posts
with petitioner-Municipal Council."
"15. The judgment of the Industrial
Court briefly noted above proceeds on the basis that
work essential for administration of petitioner-
Municipal Council and of permanent nature is
available. The learned Counsel for the respondents-
complainants has also urged that availability of said
work itself shows that post is also available. However,
work and post are two different things. The
complainants before Industrial Court were working on
daily wages and they have no where pleaded that any
post for their absorption was available or vacant. The
Judgment in the case of "Maharashtra State Road
Transport Corporation and Anr Vs. Casteribe Rajya P.
Karmchari Sanghatana (Supra)" shows the important
distinction noticed in this respect by the Hon'ble Apex
Court. When employer himself has power to create or
sanction post, the finding of indulgence in unfair labour
practice under Item 6 can be readily reached. When
Hon'ble Apex Court noted that University as employer
had no power to create or sanction posts, it has found
that it can have no "object" of depriving casuals or
Badlis of their status as permanent workmen. This
position applies with same vigour in present facts. The
Municipal Council itself does not have power either to
create or sanction the posts."
14.
Adv. Jaiswal has placed strong reliance upon
Maharashtra Lok Kamgar Sanghatana Vs. Ballarpur
Industries
Limited (supra). There the learned Single Judge (B.P.
Dharmadhikari, J.) has considered the provision in Cl. 4-C of
the Model Standing Orders & observed -
"29. The Standing Orders on additional matter i.e. item
10C in Schedule to Central Act are inserted on
28.09.1977. Clause 4A states that every probationer
who has completed three months service uninterruptedly
in the post in which he is provisionally employed, is to
be made permanent. It is, therefore, apparent that after
completion of such service, Respondent No. 1 has no
option but to make him permanent workman. Even as
per definition of probationer, he ceases to be a
probationer if he completes three months of service in
aggregate on such post. The management can terminate
services if found unsatisfactory after or during such
period of probation but in present matter, there is no
such termination. Clause 4B dealing with Badli workers
or Badli system is not relevant here. Clause 4C
stipulates that a Badli or temporary workman
completed 240 days uninterrupted service during
preceding 12 months is to be made permanent. Its
interpretation by this Court in the case of Rashtriya Mill
Mazdoor Sangh v. S.L. Mehendale and Ors., (supra)
and Gangadhar Balgopal Nair v. Voltas Limited,
(supra) has already been considered above by me. This
Court has found that by virtue of said clause, a Badli or
Temporary gets permanency automatically and post
stands created for him. Standing Orders in Clause 3(2)
(b) uses the words vacancy or post. This requirement of
vacancy or post is also specified in Clause 4A. However,
Clause 4C does not use these words because a Badli may
be employed against a permanent post, temporarily
vacant while temporary workman is not employed
against any post or vacancy. Thus, as per Clause 3 itself,
their employment and engagement is of limited
duration. Clause 4C steps in only when these provisions
are sought to be abused by unduly continuing such
Badli or temporary workman for longer periods. The
Rule making authority has found 240 days in a
calender month a period sufficiently long to draw
inference of availability of permanent workload and,
therefore, a post or vacancy. In view of this position
only, the post or vacancy is automatically presumed to
be created under that provision. The reliance upon the
judgment of the Hon'ble Apex Court in the case of
M.S.R.T.C. and Anr. v. Casteribe Rajya P. Karmachari
Sanghatana, (supra) by Respondent No. 1 to contend
that permanency cannot be granted until and unless
there is a vacancy is, therefore, misconceived in present
facts. The Hon'ble Apex Court there has found existence
of vacancies and, therefore, has maintained the order of
regularization. The observations in para 33 can be
looked into for this purpose. The argument that
recruitment of workers was not in conformity with
Standing Order 503 did not find favour with the
Hon'ble Apex Court as it found that General Standing
Order 503 applicable to MSRTC services is contractual
in nature and does not have any statutory force. It has
noticed that breach of Standing Orders by Corporation
is itself an unfair labour practice and MSRTC exploited
concerned employees. Here also, violation of Model
Standing Order 4C has been established and
exploitation of daily wagers going on for various periods
ranging from five years to 26 years has been
established."
This judgment is recently upheld at 2016 (3) Mah.
Industries Limited Vs. Maharashtra Lok
L.J. 183-- Ballarpur
Kamgar Sanghatana, by the Division Bench while dismissing the
LPA. Thus the change in perspective when the posts are vacant
or the employer itself has right to create such posts & fill it in,
depending upon the nature of employment as in public domain
or private one, is brought out therein. S. 76 of the 1965 Act
does not permit the employer Municipal Council either to
create the posts or to fill it. The Municipal Councils can not of
its own create posts or proceed to fill it in. It has to obtain
sanction of the Director & after the posts are sanctioned,
candidates for appointment against it are to be selected by
such selection authority or such other body, as the State
Government may specify. In any case, procedure for
recruitment prescribed in bye-laws made by the Council in this
behalf, must be followed. The fact that Municipal Council can
not create the posts of its own is not in dispute. Such procedure
in any case must be in conformity with mandate of Art. 14 of
the Constitution Of India. Obligation cast upon the Employer
by Cl. 4C of MSO shows that the Manager or the person
authorised is duty bound to issue an order in writing making
any workman, who had completed 240 days of uninterrupted
service in the previous 12 calendar months, permanent. Thus,
law envisages a Manager or authorised person having power to
appoint. When the employer is denuded of this power by the
Legislature vide S. 76 of 1965 Act, this clause 4C itself can not
apply. It is also important to note that as per clause 32 of the
Model Standing Orders, nothing therein can derogate from the
legal provisions like S. 76. Section 76 of the 1965 Act prevails
over cl. 4C of the Model Standing Orders.
15. The Learned Single Judge of this Court in Ramesh
Vitthal Patil & Ors. Vs. Kalyan Dombivali Municipal Corporation
& Ors. (supra), had an occasion to consider similar controversy.
Impact of clause 32 of the MSO and the Constitution of India is
also examined in this precedent. In paragraph 31 of the
judgment, it is found that benefits of M.S.O. 4-C would apply
only in cases where the concerned duly qualified person was
appointed in accordance with the rules and so long as a
permanent post exists. The right conferred by M.S.O. 4-C is not
absolute. Clause 4-C does not operate either independently or
in derogation of other laws. In fact it is the converse. Said
clause 32 is already reproduced above by us. Its first part
expressly provides that nothing contained in the Standing
Orders shall operate in derogation of any law for the time being
in force. In this judgment in case of Ramesh Vithal Patil the
provisions of the B.P.M.C. Act are therefore held to be not
affected by the Standing Orders. Second part of Clause 32
providing that nothing contained in the Standing Orders
operates to the prejudice of any right under a contract of
service, custom or usage or any agreement, settlement or award
applicable to the establishment has nothing to do with first
part. In the event of a workman being entitled to any higher or
better rights under a contract of service, agreement, settlement
etc. than that provided in the Standing Orders, the Standing
Orders do not deprive the workman of the same. The judgment
of a learned single Judge of this Court in The Indian Tobacco
Co. Ltd. v. The Industrial Court & Ors. (supra) relied upon by
Adv. Jaiswal is an authority only for the second part of clause
32 and not the first. Paragraph 19 of the said judgment in The
Indian Tobacco Co. Ltd. v. The Industrial Court & Ors. (supra)
reveals that what fell for the consideration there was not the
conflict between a clause in M.S.O. and a legislation but with a
contractual condition. It does not lay down that the model
standing orders operate in derogation of any existing
Enactment. The judgment of a Division Bench of this Court in
Pune Municipal Corporation v. Dhananjay Prabhakar Gokhale,
(supra), after referring to the judgment of the Supreme Court,
in paragraphs 8 and 9 observes that merely because an
employee continued to render service for 240 days in a year,
that by itself will not be sufficient for him to claim permanency
in the post, unless he is able to establish that such a permanent
post duly approved by the competent authority is vacant and
the claimant is duly eligible for being appointed in such post.
Mere completion of 240 days of service by itself is not a carte
blanche to an employee to claim permanency in the service of
his employer. In paragraph 9 of its judgment, this Division
Bench notes that under the valid and lawful settlement of
September, 1989, the employees had agreed with the appellant
Municipal Corporation that their claim for permanency would
be available only on completion of five years of continuous
service and depending upon the availability of permanent
vacant post duly approved by the Government. Hence, in the
light of clause 32 of MSO, the Division Bench holds that no
claim under Clause 4-C of the Standing Orders ignoring the
settlement arrived at could have been entertained.
16. The Learned Single Judge of this Court in Ramesh
Vitthal Patil & Ors. Vs. Kalyan Dombivali Municipal Corporation
& Ors. (supra) also considers the submission that this judgment
of the Division Bench is per-incuriam as it did not consider the
judgment of the Supreme Court in Western India Match Co. Ltd.
v. Workmen, (1974) 3 SCC 330. We agree with the finding of
the learned Single Judge that this judgment of the Supreme
Court is of no assistance to the workmen (before us in this
reference also) as it dealt with an entirely different challenge.
In that case, the workman's letter of appointment stated, he
would be on probation for a period of six months. He however,
continued to serve even after the expiry of said period.
Thereafter he came to be discharged for the reason that his
services were no longer required by the Company. The
Workers Union contended that his employment on probation
for six months was in contravention of the Standing Order
which provided only a two month probation period and that he
automatically became permanent thereafter. According to the
Standing Order, the workman could not to be kept on
probation for more than two months. If he had worked during
it to the satisfaction of the Company, he became permanent.
Thus, when the Standing Orders stipulated "confirm him on the
expiry of two months", the agreement stated, "no, wait till the
expiry of six months." There was thus a conflict between the
agreement and the Standing odder. The Hon'ble Apex Court
held that the two could not co-exist and that the agreement
was inconsistent with the Standing Order to the extent of
prescription of an additional four months of probation. The
Hon'ble Supreme Court held that the terms of the employment
specified in the Standing order prevail over the corresponding
terms in the contract of service in existence on the date of the
enforcement of the Standing order. It was however, held that
while the Standing orders were in force, it would not be
permissible to the employer to seek statutory modification of
them so that there may be one set of Standing Orders for some
employees and another set for the rest of the employees. The
Hon. Supreme Court was not called upon to consider the effect
of the Standing Orders qua any legislative enactment.
17. We also find that the submission that the judgment
of the Division Bench in Pune Municipal Corporation v.
Dhananjay Prabhakar Gokhale, (supra) and the judgments of
the Supreme Court referred to therein are not good law and are
per-incuriam as the judgment of the Supreme Court in U.P.
State Electricity Board v. Harishankar Jain, (1978) 4 SCC 16
=(1978) 2 LLJ 399, is not looked into, is also rightly rejected.
The question which arises in the present reference and which
arose before the Division Bench did not arise for the
consideration of the Supreme Court in U.P. State Electricity
Board v. Harishankar Jain. In that case the Respondent was
originally employed by partners who were licensees for the
distribution of electricity under the Indian Electricity Act, 1910.
There were certified standing orders for this industrial
establishment which did not prescribe any age of
superannuation. The electricity undertaking of the firm was
purchased by the Appellant under the Electricity (Supply) Act,
1948, as a result whereof the workmen became the employees
of the U.P.S.E.B. It was conceded that the Standing Orders as
applicable to the said firm continued to apply to the U.P.S.E.B.
The U.P.S.E.B. itself did not have certified Standing Orders.
Thereafter the Governor of U.P. notified under Section 13-B of
the Industrial Employment Standing Orders Act, a regulation
under Section 79(c) of the Electricity (Supply) Act, 1948 fixing
the age of superannuation at 55 years. Thus whereas the
Standing Orders fixed no age of superannuation permitting a
contention that the workmen could continue to work as long as
they were fit and able to discharge their duties, this notification
fixed the age of superannuation at 55 years. The Hon. Apex
Court held that the Industrial Employment Standing Orders Act
is a special law in regard to the matters enumerated in the
Schedule and regulations made by the Electricity Board with
respect to any of those matters are of no effect unless such
regulations are either notified by the Government under
Section 13-B or are certified under the Industrial Employment
Standing Orders Act. The Learned Single Judge of this Court in
Ramesh Vitthal Patil & Ors. Vs. Kalyan Dombivali Municipal
Corporation & Ors. (supra) holds that this judgment of Hon'ble
Apex Court in U.P. State Electricity Board v. Harishankar Jain is
not relevant in matter before him. While endorsing it, we find
that reliance upon said judgment of the Supreme Court in U.P.
State Electricity Board v. Harishankar Jain by Adv. M.P. Jaiswal
is misconceived even in this case. There is no conflict between
the provisions of the 1965. Act and M.S.O. 4-C. M.S.O. 4-C
does not contain the provision for recruitment. M.S.O. 4-C, as
held above, can not & does not operate in derogation of any
other law. Moreover, the impact of clause 32 of the MSO did
not arise for consideration before the Hon'ble Apex Court.
18. Reference to Mahendra L. Jain v. Indore
Development Authority and Ors., (2005) 1 SCC 639, is
warranted here in some details. The Petitioners before the
Hon. Apex Court learnt of the existence of the vacancies in the
Respondent Authority and applied although no advertisement
was issued. They were appointed and posted to an overseas
project implemented through the Overseas Development
Authority on daily wages. The Respondent deducted the
provident fund and also granted them benefit of leave. As their
services were not being regularized, they raised an industrial
dispute which was referred for adjudication to the Labour
Court. It was contended on behalf of the Petitioners that as the
vacancies were available and as the Petitioners had worked for
more than six months, they became permanent employees in
terms of the Madhya Pradesh Industrial Employment (Standing
Orders) Act, 1961 and the rules framed thereunder known as
the M.P. Industrial Employment (Standing Orders) Rules, 1963.
Clause 2(4) of the Standard Standing Orders provided that in
case a temporary employee is required to work continuously for
more than six months, he shall be deemed to be a permanent
employee within the meaning of that term in clause 1 thereof.
The Respondent Authority had been constituted under the
Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973.
Section 47 thereof, provides that all the appointments to the
posts of officers and servants, specified therein which included
the Petitioners' posts, must be made by the State Government
and the appointments to the posts of officers and servants
included in the local cadre in the said services by the Town and
Country Development Authority concerned. The proviso to
Section 47 mandates that no posts shall be created by any
authority without the prior sanction of the State Government.
In this backdrop, the Hon'ble Apex Court has held as under :-
"18. The posts of Sub-Engineers in which the appellants
were appointed, it is nobody's case, were sanctioned
ones. Concededly, the respondent Authority before
making any appointment neither intimated the
employment exchange about the existing vacancies, if
any, nor issued any advertisement in relation thereto.
Indisputably, the conditions precedent for appointment
of the officers and servants of the Authority, as
contained in the Service Rules had not been complied
with. The appointments of the appellants were,
therefore, void ab initio being opposed to public policy
as also violative of Articles 14 and 16 of the
Constitution."
"27. No notification has been brought to our notice that
the Standard Standing Orders had been made
applicable to the appellants. It is furthermore not in
dispute that the Adhiniyam came into force in 1973.
The statute, rules and regulations framed by the State
govern the terms and conditions of service of the
employees of the respondent. The terms and conditions
of service contained in the 1973 Act and the 1987 Rules
are not in derogation of the provisions contained in the
Schedule appended to the 1961 Act."
"28. The 1961 Act provides for classification of
employees in five categories. The 1973 Act, as noticed
hereinbefore, clearly mandates that all posts should be
sanctioned by the State Government and all
appointments to the said cadre must be made by the
State Government alone. Even the appointments to the
local cadre must be made by the Authority. The said
provisions were not complied with. It is accepted that no
appointment letter was issued in favour of the
appellants. Had the appointments of the appellants been
made in terms of the provisions of the Adhiniyam and
the Rules framed thereunder, the respondent Authority
was statutorily enjoined to make an offer of
appointment in writing which was to be accepted by the
appellants herein. Who made the appointments of the
appellants to the project or other works carried on by
the Authority is not known. Whether the person making
an appointment had the requisite jurisdiction or not is
also not clear. We have noticed hereinbefore that in the
case of Om Prakash Mondloi, the CEO made an
endorsement to the effect that he may be tried in daily
wages and should be entrusted with the work of
progress collection of ODA work. The said order is not
an "offer of appointment" by any sense of the term."
"33. For the purpose of this matter, we would proceed
on the basis that the 1961 Act is a special statute vis-a-
vis the 1973 Act and the Rules framed thereunder. But
in the absence of any conflict in the provisions of the
said Act, the conditions of service including those
relating to recruitment as provided for in the 1973 Act
and the 1987 Rules would apply. If by reason of the
latter, the appointment is invalid, the same cannot be
validated by taking recourse to regularisation. For the
purpose of regularisation which would confer on the
employee concerned a permanent status, there must
exist a post. However, we may hasten to add that
regularisation itself does not imply permanency. We
have used the term keeping in view the provisions of the
1963 Rules."
We find the following exposition of law by the
Hon'ble Apex Court apt in present proceedings :--
"31. The Standing Orders governing the terms and
conditions of service must be read subject to the
constitutional limitations wherever applicable.
Constitution being the suprema lex, shall prevail over all
other statutes. The only provision as regards
recruitment of the employees is contained in Order 4
which merely provides that the manager shall within a
period of six months, lay down the procedure for
recruitment of employees and notify it on the notice
board on which Standing Orders are exhibited and shall
send copy thereof to the Labour Commissioner. The
matter relating to recruitment is governed by the 1973
Act and the 1987 Rules. In the absence of any specific
directions contained in the Schedule appended to the
Standing Orders, the statute and the statutory rules
applicable to the employees of the respondent shall
prevail."
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
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
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.
20. In Vice-chancellor, Lucknow University vs. Akhilesh
Kumar Khare & Anr. (supra) relied upon by Adv. Parihar, Hon.
Apex Court follows its Constitution Bench in Umadevi (III) and
while rejecting relief of regularization to the daily wagers who
were engaged in public employment without proper procedure,
grants them compensation of Rs. 4 Lakh each by way of
compassion. This judgment does not consider any welfare
labour legislation and, therefore, can not provide direct answer
to the reference made. Judgment of this Court taking similar
view in the light of 1971 Act in the case of Punjabrao Krishi
Vidyapeeth, Akola Vs. General Secretary, Krishi Vidyapeeth
Kamgar Union & Anr. (supra) is already considered above. The
Division Bench of this Court in State of Maharashtra and Anr.
Vs. Pandurang Sitaram Jadhav (supra) finds that the
respondents before it were employed as daily wagers in the
establishment of the government milk dairy for a longer period
of 12 to 20 years. There were no sanctioned posts and
vacancies in existence in the concerned department.
Respondents failed to demonstrate that their appointments
were made in accordance with the procedure prescribed for
selection. The Division Bench finds it wholly unjust to direct
the appellant State Government to grant permanency to the
respondents. It points out that the provisions of Model Standing
Orders are subject to the Rules regulating selection and
appointment so also subject to the constitutional scheme of
public employment. Respondents - Daily wagers are declared to
possess no legal right to claim permanency. Order passed by
the learned Single Judge to the contrary have been quashed.
State Government is held obliged to make appointments in
adherence to the constitutional scheme of Public employment.
Respondents -Daily Wagers appointed without following the
prescribed procedure for selection by passing public
participation did not acquire any legal right to claim
permanency. It is apparent that no inconsistency exists and
cannot be worked out in State of Maharashtra & Anr. Vs.
Pandurang Sitaram Jadhav as also Pune Municipal Corporation
v. Dhananjay Prabhakar Gokhale (supra) on one hand and
Ballarpur Industries Limited Vs. Maharashtra Lok Kamgar
Sanghatana (supra) on the other hand. Status of employer,
nature of employment and inherent Constitutional limitation on
public employer or absence of such fetters on any private
employer or absolute freedom available to it to create post/s
and recruit, are some of the distinguishing features which
prohibit this exercise.
21. Thus, in the light of this discussion, it follows that in
absence of vacant sanctioned posts with the Municipal Council,
a workman who has put in continuous service of 240 days or
more in span of 12 months, can not invoke Clause 4C of the
MSO to claim either permanency or regularization. We
accordingly answer the question referred. Registry to place the
writ petitions before the learned Single Judge as per roaster
assignment for further consideration.
JUDGE JUDGE
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