Bombay High Court
Lalit Gopal Patil vs Municipal Council Bhusawal ... on 17 March, 2016
Bench: R.V. Ghuge
WRIT PETITION NO.917/2016/Group
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 917 OF 2016
Prakash Ghasit Dhikkyav,
Age 30 years, Occ. Labour,
R/o Walmiknagar, Bhusawal,
District Jalgaon. ..Petitioner
Versus
1. The State of Maharashtra
2. Municipal Council, Bhusawal
Through its Chief Officer,
Tq. Bhusawal, Dist. Jalgaon. ..Respondents
WITH
WRIT PETITION NO.2913 OF 2016
Mahendra Dattatraya Patil,
Age 30 years, Occ. at present nil,
R/o Bhusawal, Tq. Bhusawal,
District Jalgaon. ..Petitioner
Versus
Municipal Council Bhusawal,
Tq. Bhusawal, Dist. Jalgaon,
Through its Chief Officer. ..Respondent
WITH
WRIT PETITION NO.2915 OF 2016
Lalit Gopal Patil,
Age 39 years, Occ. at present nil,
R/o Bhusawal, Tq. Bhusawal,
District Jalgaon. ..Petitioner
Versus
Municipal Council Bhusawal,
Tq. Bhusawal, Dist. Jalgaon,
Through its Chief Officer. ..Respondent
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WRIT PETITION NO.917/2016/Group
2
WITH
WRIT PETITION NO.2916 OF 2016
Akash Narayan Bhoi,
Age 24 years, Occ. at present nil,
R/o Bhusawal, Tq. Bhusawal,
District Jalgaon. ..Petitioner
Versus
Municipal Council Bhusawal,
Tq. Bhusawal, Dist. Jalgaon,
Through its Chief Officer. ..Respondent
WITH
ig WRIT PETITION NO.3057 OF 2016
Vijay Motiram Kedare,
Age Major, Occ. Nil,
R/o Nandanvan Colony,
Bhusawal, Tq. Bhusawal,
District Jalgaon. ..Petitioner
Versus
Municipal Council Bhusawal,
Tq. Bhusawal, Dist. Jalgaon,
Through its Chief Officer. ..Respondent
WITH
WRIT PETITION NO.3073 OF 2016
Pravin Samadhan Bhalerao,
Age Major, Occ. Nil,
R/o Old RPF Barack,
Bhusawal, Tq. Bhusawal,
District Jalgaon. ..Petitioner
Versus
Municipal Council Bhusawal,
Tq. Bhusawal, Dist. Jalgaon,
Through its Chief Officer. ..Respondent
WITH
WRIT PETITION NO.3231 OF 2016
Pramod Ramdas Ahire,
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WRIT PETITION NO.917/2016/Group
3
Age 34 years, Occ. Labour,
R/o Sonit Chavade Wada,
Bhusawal, District Jalgaon. ..Petitioner
Versus
1. The State of Maharashtra
2. Municipal Council, Bhusawal
Through its Chief Officer,
Tq. Bhusawal, Dist. Jalgaon. ..Respondents
WITH
WRIT PETITION NO.3232 OF 2016
Vinod Ghasita Dhikkyav,
Age 35 years, Occ. Labour,
R/o Walmiknagar, Bhusawal,
District Jalgaon. ..Petitioner
Versus
1. The State of Maharashtra
2. Municipal Council, Bhusawal
Through its Chief Officer,
Tq. Bhusawal, Dist. Jalgaon. ..Respondents
WITH
WRIT PETITION NO.3233 OF 2016
Satish Suresh Sapkale,
Age 38 years, Occ. Labour,
R/o Hambardikar Chawl,
Bhusawal, District Jalgaon. ..Petitioner
Versus
1. The State of Maharashtra
2. Municipal Council, Bhusawal
Through its Chief Officer,
Tq. Bhusawal, Dist. Jalgaon. ..Respondents
WITH
WRIT PETITION NO.3234 OF 2016
Akshya @ Akshay Ramesh Gadhe,
Age 30 years, Occ. Labour,
R/o Behind Railway Hospital,
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WRIT PETITION NO.917/2016/Group
4
Bhusawal, District Jalgaon. ..Petitioner
Versus
1. The State of Maharashtra
2. Municipal Council, Bhusawal
Through its Chief Officer,
Tq. Bhusawal, Dist. Jalgaon. ..Respondents
WITH
WRIT PETITION NO.3235 OF 2016
Atul Balu Savkare,
Age 28 years, Occ. Labour,
R/o Tulja Bhavani Mandir,ig
Bhusawal, District Jalgaon. ..Petitioner
Versus
1. The State of Maharashtra
2. Municipal Council, Bhusawal
Through its Chief Officer,
Tq. Bhusawal, Dist. Jalgaon. ..Respondents
...
Advocate for Petitioners : S/Shri Satej S. Jadhav,
Vinod Prakash Patil and G.A.Nagori
AGP for Respondent 1 : Shri P.G.Borade
Advocate for Respondent 2 : Shri B.S.Deshmukh
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: March 17, 2016
...
ORAL JUDGMENT :-
1. Heard.
2. Rule.
3. By consent, Rule is made returnable forthwith and the petition is
taken up for final disposal.
WRIT PETITION NO.917/2016/Group
4. In all these matters, the petitioners are Class IV workmen, who are
identically situated and fall in the same Class. The respondents in all these
matters is the Municipal Council, Bhusawal. The issue involved is identical
and hence all these petitions have been taken up together for common
hearing.
5. I have heard Shri Patil, Shri Jadhav and Shri Nagori, learned
Advocates appearing on behalf of all the petitioners. I have heard Shri
Deshmukh, learned Advocate on behalf of the respondent - Municipal
Council and the learned Assistant Government Pleader.
6. The petitioners have contended that they had been appointed as
Field Workers in the Malaria Section of the respondent Municipal Council, in
the year 2009 and 2010. Their common date of termination is 17.11.2011.
All of them have completed 240 days in the continuous and uninterrupted
service of the respondent, in every calendar year.
7. The petitioners had approached the Labour Court at Jalgaon, by
filing their individual ULP Complaints under Section 28(1) read with item 1
of Schedule IV of the the Maharashtra Recognition of Trade Unions and
Prevention of Unfair Labour Practices Act, 1971 ("the said Act").
Applications for interim relief under Section 30(2) were also filed praying to
the Labour Court for grant of interim relief. It is contended that though the
petitioners were protected by the interim orders of the Labour Court, the
WRIT PETITION NO.917/2016/Group
respondent council has not complied with the said orders.
8. The petitioners further submit that by the judgment of the Labour
Court, the Complaints were partly allowed and the order of terminating the
services of the petitioners, dated 17.11.2011 were quashed and set aside.
The judgment of the Labour Court in all these matters is dated 4.12.2013.
The respondent was directed to reinstate the petitioners in service with
continuity and 50% backwages.
9.
The petitioners submit that the Municipal Council filed individual
Revision (ULP) petitions before the Industrial Court at Jalgaon, bearing Nos.
27 to 49 of 2014. The petitioners are some of the respondents / employees
in those revisions, who have approached this Court. By the impugned
judgment and order dated 27.11.2015, all the revision petitions filed by the
respondent / Council were allowed. The judgments of the Labour Court
were set aside and all the complaints were dismissed.
10. It is strenuously submitted on behalf of the petitioners that the
Municipal Council has issued the order of termination dated 17.11.2011
under the orders of the Collector. The Collector did not have the power to
direct the Municipal Council to suspend the Resolution by virtue of which
the petitioners were appointed as Class IV employees. Similarly, the
Collector did not have the power to direct the Municipal Council to
terminate the services of the petitioners.
WRIT PETITION NO.917/2016/Group
11. It is then submitted that none of the petitioners were heard by the
Municipal Council before terminating their services. No notice of hearing
was issued. Since, there was no issue of any misconduct committed by the
petitioners, there was no reason for the Municipal Council to terminate the
services of the petitioners. It is also submitted that Principles of Natural
Justice have been grossly violated.
12. Learned Advocates for the petitioners have further submitted that
since they have completed 240 days in continuous and uninterrupted
services with the respondents, their termination amounts to illegal
retrenchment and hence Section 25(F) of the Industrial Disputes Act read
with Rule 81 of the Industrial Disputes Bombay Rules were required to be
complied with. Since the Municipal Council failed to do so, the impugned
orders of termination are rendered illegal.
13. The petitioners have placed heavy reliance on the judgment of this
Court dated 12.1.2016, delivered in the matter of Chief Officer, Municipal
Council, Bhusawal Vs. Prashant Ashok Bhole and others - Writ Petition
No.7584 of 2014 along with a group of petitions. Contention is that in these
cases, the employees like the petitioners were terminated by the same
Municipal Council / respondent herein. They had succeeded before the
Industrial Court. The Municipal Council was the petitioner before this
Court. This Court relied upon the judgment of the Honourable Supreme
Court in the cases of Ajaypal Singh Vs. Haryana Warehousing Corporation,
[(2015) 6 Supreme Curt Cases 321], Sudarshan Rajpoot Vs. Uttar Pradesh
WRIT PETITION NO.917/2016/Group
State Road Transport Corporation, [(2015) 2 Supreme Court Cases 317] and
Mackinnon Mackenzie and Company Limited Vs. Mackinnon Employees Union
[(2015) 4 Supreme Court Cases 544 and concluded that when Section 25F of
the ID Act was not complied with, the employee deserves to be reinstated.
It is, therefore, prayed that these petitions be allowed.
14. It is prayed in the alternative that if this Court is not inclined to
entertain these petitions, compensation be awarded to the petitioners
along with retrenchment compensation for having made the petitioners
suffer rigors of litigation when the are not at fault.
15. Shri Deshmukh, learned Advocate appearing on behalf of the
respondent / Council submits that the appointments of these petitioners
have been made by way of back door entries. There was no advertisement
published and no applications were called for. No procedure was followed
by the respondent for recruiting the petitioners.
16. He further submits that the Standing Committee comprising of
politicians and councilors has passed Resolutions on different occasions,
thereby appointing the petitioners in the Class IV category. It was by virtue
of such a resolution passed by the Standing Committee that these
petitioners were issued with appointment orders without following any
procedure. These types of appointments were brought to the notice of the
Collector, who called for a report from the respondent / Council. The
respondent submitted it's report which was placed before the Labour Court
WRIT PETITION NO.917/2016/Group
at Exhibit C-23, wherein, the respondent investigated into the manner of
appointments of these petitioners. The fact situation was brought to the
notice of the Collector through the report C-23. It was divulged that there
was no procedure followed in recruiting the petitioners and they were
recruited purely on the basis of the Resolutions passed by the Standing
Committee on different occasions.
17. Shri Deshmukh further submits that the Collector acted on the report
C-23 and directed the Municipal Council not to execute the said
Resolutions. The Municipal Council is bound to obey the directions of the
Collector, which were issued under Section 308 of the Maharashtra
Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965
("Act of 1965").
18. Shri Deshmukh further submits that had the Municipal Council not
obeyed the directions of the Collector, the issue of payment of monthly
wages of these petitioners would have created a serious issue as the
Municipal Council could not have paid their wages in the wake of the
directions of the Collector. He further submits that the decision of the
Collector under Section 308(1) of the Act of 1965 has been further sustained
by the Director of the Municipal Administration. The said decision has,
therefore, attained finality. The order of the Collector was also placed
before the Labour Court at Exhibit C-21.
19. Shri Deshmukh then draws the attention of this Court to the
WRIT PETITION NO.917/2016/Group
judgment dated 12.1.2016, delivered by this Court in the case of the same
respondent Municipal Council, Bhusawal in Writ Petition No.7584 of 2014.
He submits that the judgment delivered by this Court is totally on different
set of facts and would not be applicable in these cases. In the said cases,
decided by this Court on 12.1.2016, the employees were working for quite
some time and the Municipal Council had terminated their services. Issue
of Section 308 of the Act of 1965 or a direction issued by the Collector
under Section 308(1) was not a feature. In fact, no such direction was
issued in those group of cases and hence the judgment of this Court dated
12.1.2016 would not be applicable.
20. He, therefore, submits that all these petitions deserve to be
dismissed.
21. I have considered the submissions of the learned Advocates and have
gone through the petition paper book with their assistance.
22. Before I delve into the contentions of the petitioners, I find it
imperative to deal with the reliance placed by the petitioners on the
judgment of this Court dated 12.1.2016 in the group of petitions, referred
to herein above.
23. In order to appreciate the contentions of the petitioners, I called for
the papers in Writ Petition No.7584 of 2014 and connected matters, which
were decided by this Court on 12.1.2016. I have considered the Writ
WRIT PETITION NO.917/2016/Group
Petition paper book threadbare. I do not find even a whisper, either by the
Municipal Council, Bhusawal or by the employees in the proceedings before
the Labour Court, Industrial Court or even before this Court, of any order
purportedly passed by the Collector, under Section 308(1) and any order
passed by the Director of the Municipal Administration under Section 308(4)
of the Act of 1965. In fact, it was nobody's case, either before the Labour
Court or the Industrial Court, or even before this Court that some orders
were passed by the Collector under Section 308 which led the Municipal
Council to terminate the services of the petitioners.
24. In the light of above, I find it necessary to observe that the judgment
delivered by this Court dated 12.1.2016 in the matter of Chief Officer,
Municipal Council, Bhusawal Vs. Prashant Ashok and others in the group of
Writ Petition No.7584 to 7588 of 2014 is restricted to the facts emerging in
those four cases and the said judgment shall, therefore, not be cited as a
precedent except in matters in which identical set of facts are involved.
The said judgment, therefore, would be, of no assistance to the present
petitioners.
25. This Court, in an identical situation had dealt with Writ Petition
No.6865 of 2015 in the matter of Sanjay Jagannath Pardeshi Vs. The Chief
Officer, Municipal Council, Pachora decided on 1.2.2016. The facts
emerging from the said case are practically identical to the facts emerging
in these group of cases.
WRIT PETITION NO.917/2016/Group
26. In the Sanjay Jagannath Case (supra), the issue of a Resolution having
been passed by the Standing Committee of the Municipal Council, thereby
appointing the petitioner Sanjay Jagannath was brought to the notice of the
District Collector. He invoked his powers under Section 308 of the Act of
1965 and suspended the Resolution of the Municipal Council. It was
contended by the employee that the President of the Municipal Council had
appointed him on the basis of a Resolution passed and the District Collector
had no authority to interject with the said Resolution or decision under
Section 308 of the Act of 1965. It was contended that neither the Collector
could have dealt with the said Resolution, nor the Collector could have
directed the Municipal Council to stay the execution of the Resolution.
27. This Court has considered the law laid down by the learned Full
Bench of this Court in the matter of Sanjay Govind Sapkal and others Vs.
Collector, Dhule and others [2004 (2) Mah. L.J. 874]. The learned Full
Bench in the said judgment had considered the earlier judgments delivered
by the learned Division Bench in the matters of Chandrashekhar Shankarrao
Zade Vs. Additional Collector 1984 MLJ 821 and Prakash Choudhary Vs.
Collector, Dhule [1989 I CLR 374]. The learned Division Bench in the said
two cases of Chandrashekhar and Prakash (supra) had mandated the
opportunity of hearing and compliance of principles of natural justice
before the Collector exercises its powers under Section 308 of the Act of
1965. The learned Full Bench, by its judgment in the matter of Sanjay
Govind Sapkal (supra) has expressly overruled the two judgments of the
learned Division Bench in the matters of Chandrashekhar and Prakash
WRIT PETITION NO.917/2016/Group
(supra). In my view, the judgment of the Full Bench in the Chandrashekhar
Case (supra) and the judgment delivered by this Court dated 1.2.2016 in the
Sanjay Jagannath's case (supra) are squarely applicable to the facts of the
petitioners in the present cases.
28. It would, therefore, be apposite to reproduce paragraph Nos.5 to 16
of the Sanjay Jagannath's judgment of this Court, dated 1.2.2016 (supra),
herein under:-
"5.
Mr.Tiwari, therefore, strenuously submits that when
the President of the Municipal Council was authorized to
appoint daily wagers, the Collector had no authority to stay
the resolution confirming the services of the petitioner.
6. He further submits that Section 25F of the I.D.Act and
Rule 81 of the I.D.Bombay Rules, 1957 were not complied with
and hence the termination is bad in law.
7. He further submits that the Labour Court had rightly
allowed the complaint and had granted reinstatement with
continuity and 50% back wages. The Industrial Court, by the
impugned judgment, has set aside the judgment of the Labour
Court and has permitted the Municipal Council to pay
retrenchment compensation to the respondent. He, therefore,
prays that this petition be allowed and the judgment of the
Labour Court be sustained.
8. Mr.Thoke, learned Advocate has appeared on behalf of
the Municipal Council. He submits that the Council had passed
a Resolution authorizing the President to issue appointment
orders in the Class IV category. Similar resolution was passed
empowering him to confirm the services of the daily wagers.
WRIT PETITION NO.917/2016/Group
After the Collector invoked his powers u/s 308 and suspended
the Resolution appointing the petitioner, the petitioner was
terminated w.e.f. 20/06/2001. The Municipal Council had
supported the petitioner and similar employees and had
preferred an appeal before the Regional Director of the
Municipal Administration by filing an appeal. By judgment
dated 20/07/2001, the decision of the District Collector was
sustained and the appeal of the Municipal Council was
dismissed.
9. He further submits that the petitioner had thereafter
approached the Labour Court by filing the complaint which
was partly allowed. The Municipal Council preferred Revision
Petition No.76/2012. The petitioner also filed Revision (ULP)
No.66/2012 for claiming full back wages. By the impugned
judgment, the revision petition of the Municipal Council was
allowed. He, therefore, submits that no interference is called
for in the impugned judgment.
10. The learned AGP has appeared on behalf of respondent
No.2.He submits that Section 308 empowers the Collector to
suspend execution of orders and resolution of the Municipal
Council on specific grounds. After such an order is passed u/s
308(1), the said order is forwarded to the Council as well as
to the Director of Municipal Administration u/s 308(2). The
Municipal Council is empowered to prefer an appeal u/s
308(3) before the Director. In the instant case, the Municipal
Council had filed such a proceeding which was rejected by the
Director u/s 308(4). The order of the Collector was,
therefore, confirmed. He, therefore, submits that no
interference is called for in the light of the provisions u/s 308
and the order passed by the Director. The impugned judgment
of the Industrial Court, therefore, cannot be faulted and this
WRIT PETITION NO.917/2016/Group
petition be dismissed.
11. I have considered the submissions of the learned
Advocates for the respective sides as have been recorded
hereinabove. It is not in dispute that there was no procedure
followed by the Municipal Council while appointing the
petitioner and similarly situated employees. No applications
were invited by publishing an advertisement and no procedure
was followed while recruiting him. The President of the
Municipal Council was empowered to make such appointments
and confirm them.
12. Respondent No.2/Collector has invoked his powers u/s
308 of the Act of 1965, which reads as under :
" 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 he 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
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.
WRIT PETITION NO.917/2016/Group
(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.
ig On receipt of such report from the Collector and
the Council's statement preferred 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 Statement 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 a Council, if received, before
such an order is made by him."
13. An identical situation was before the Full Bench of this
Court in the matter of Sanjay Govind Sapkal and others Vs.
Collector, Dhule and others, 2003(3) BCR 550 = 2004(2)
Mh.L.J. 874. The Full Bench considered the law laid down by
the Division Bench in the matter of Chandrashekhar
Shankarrao Zale Vs. Additional Collector, Nagpur, 1984
Mh.L.J. 821 and the judgment of the Division Bench of this
Court in the case of Prakash Kutik Chaudhary Vs. Collector of
Dhule, 1989(1) CLR 374 and expressly overruled both these
judgments which mandated an opportunity of hearing and
WRIT PETITION NO.917/2016/Group
compliance of the principles of natural justice before the
Collector exercised its power u/s 308(1).
14. It would be apposite to reproduce the observations of
this Court from paragraph Nos. 35 to 44 as under :
"35. In the instant case, the case of the Municipal
Council was that the posts were not sanctioned posts;
there was no necessity of making appointments of
employees, there were surplus and excess employees,
no prior permission of the competent authority was
taken; no applications were invited; no names from
Employment Exchange were called; the provisions of
the Act. Rules and Regulations were not observed; and
the President made the appointments of his kiths and
kins in violation of statutory provisions. A prayer was,
therefore, made to the Collector to exercise power
under Section 308(1) of the Act. The Collector, by a
speaking order and recording reasons, suspended the
said order, once it has been held that the Collector
could exercise the power, the action cannot be held
illegal on the ground of absence of authority.
Declaration of law by different Division Benches of this
Court in Chandrashekhar and Prakash Kutik reiterated
in subsequent cases, in our considered opinion, did not
lay down correct law on the interpretation of Section
308. We, therefore, overrule all the decisions. We hold
that even if an order or resolution passed by the
Municipal Council is implemented, executed or given
effect to, power under Section 308(1) of the Act can be
exercised and execution or implementation can be
suspended by the Collector if the conditions laid down
in the said provision are shown to be present.
WRIT PETITION NO.917/2016/Group
36. Whether in a given set of circumstances, such
power could or could not be exercised or whether or
not such power was exercised bona fide, is a question
of fact and must be decided in the light of attenuating
circumstances of the case. As a proposition of law,
however, it cannot be laid down that once an order or
resolution is executed, the authority of Collector
comes to an end, in our judgment, therefore, the
Court, in earlier cases has committed an error of law
and the said view deserves to be interfered with by
overruling those decisions.
37. It was finally contended that in any case, such an
order would adversely affect the employees inasmuch
as their appointments will be set aside by the
Collector. It was, therefore, obligatory on the Collector
even if it is assumed that he has power to invoke Sub-
section (1) of Section 308 of the Act that he should
comply with principles of natural justice and fair play.
In the instant case, no notice was issued; no
explanation was sought and no reasonable opportunity
of hearing was afforded to the petitioners before
taking an action of suspension of the order and on that
ground also, the order passed by the Collector was
liable to be set aside. For the submission, Prakash Kutik
was relied upon. There, the Division Bench held, over
and above the authority of the Collector, that while
exercising statutory power, the Collector was obliged
to comply with the principles of natural justice.
38. In our opinion, however, the submission of the
learned Counsel for the Municipal Council is well-
WRIT PETITION NO.917/2016/Group
founded and deserves to be accepted that in the
present proceedings, the question before the Collector
related to the validity of an order passed by the
Municipal Council, Dhule. If no action could have been
taken by the Municipal Council or by the President and
the action was unlawful, the same could have been
suspended by the Collector and in exercise of power
under Section 308(1) of the Act and by recording
reasons, the Collector passed an order, which cannot
be said to be without authority of law. If the case of
employees was that the action taken by the Municipal
Council was unlawful, it was open to them to take
appropriate proceedings in accordance with law. But
once it has been held that the Collector has power to
press into service Section 308(1) of the Act and suspend
an order or resolution of the Council, the matter must
necessarily end there. In our opinion, therefore, even
those observations in Prakash Kutik are not sound and
we do not approve them.
39. We are supported in our conclusion by a decision of
the Supreme Court in Subhash Chandra and Ors. v.
Municipal Corporation of Delhi and Anr. There, the
question of observance of principles of natural justice
was raised against an order passed by the State
Government under the Punjab Municipal Act, 1911. In
that case, since an action of the Municipal Committee
in granting certain benefits to the employees was not
found to be in consonance with law, the execution was
suspended. The aggrieved employees approached the
Supreme Court by filing a petition under Article 32 of
the Constitution.
WRIT PETITION NO.917/2016/Group
40. It was contended on behalf of the employees that
no opportunity was afforded to the Municipal
Committee to show cause. Such opportunity could not
be dispensed with. Non-compliance with natural justice
rendered the order void and ineffective. Support was
sought from a decision of the High Court of Madras in
Abdul Gafoor v. State of Madras.
41. Negativing the contention, interpreting the
provisions of the Act and distinguishing Abdul Gafoor
and holding that, the petitioners could not raise such
contention, the Supreme Court stated :
"Section 235 requires the State Government to
give an opportunity to the Municipality and to
none else. No grievance is alleged to have been
made by the Committee of the omission by the
Government to give it the opportunity
contemplated by "Section 235. It has to be borne
in mind that an order under "Section 235 takes
effect immediately and its operation is not made
dependent upon the action contemplated under
"Section 235. Where an order is made thereunder
by an authority other than the State Government
that authority has to report to the State
Government. But, though such authority is bound
to make a report is not inoperative or inchoate.
It has to be given effect to by the Committee. It
is true that till the procedure set out in "Section
235 is complied with, it cannot be regarded as
final. But want of finality does not vitiate the
order under "Section 232. The order is, unless
modified or annulled by the State Government,
WRIT PETITION NO.917/2016/Group
legally effective and binding on the Committee.
The Committee can, therefore, acquiesce in it
and waive the noncompliance by the State
Government with the provisions of "Section 235
Since "Section 235 does not require an
opportunity to be given to parties affected by
the order other than the Municipality the
petitioners are not entitled to say that the order
is bad."
42. The above observations in Subhash Chandra apply
with equal force in interpreting the provisions of
"Section 308 of the Act as well. The Collector has
passed an order and as per the requirement of Sub-
section (2) of Section 308, he has forwarded the said
order to the Municipal Council, Dhule, affected by the
said order, indicating therein the reasons for making
the order. The Collector has also submitted a report to
the Director along with a copy of the order. It was,
therefore, open to the Municipal Council, Dhule, to
invoke Sub-section (3) of Section 308 of the Act and to
forward a statement to the Director within 30 days
from the receipt of the order of the Collector
indicating that the order of the Collector should be
rescinded, revised or modified. Sub-section (3) clarifies
that if no such statement is received by the Director
within time, it shall presume that the Council has no
objection if the order of the Collector is confirmed.
Sub-section (4) of Section 308 of the Act enjoins the
Director on receipt of the report from the Collector,
and Council's statement referred to in Sub-section (3),
if any, to rescind the order or revise, modify or confirm
it or direct that the order shall continue to remain in
WRIT PETITION NO.917/2016/Group
force with or without modification. The proviso to the
said Sub-section casts a duty on the Director to take
into account the statement, if received before such an
order is made by him.
43. It is thus clear that the order passed by the
Collector is subject to confirmation, modification or
setting aside by the Director and if the Municipal
Council was aggrieved by such action or was of the view
that no such order could have been made, the
legislature had provided remedy and it was open to the
Municipal Council to make grievance against the action
taken by the Collector by invoking Sub-section (3) of
Section 308. The provision expressly declares that if no
such communication has been sent by the Council to
the Director, the latter will presume that the former
has no objection if the order passed by the Collector is
confirmed. It is not the case of the Municipal Council or
even the petitioners that an action was taken by the
Municipal Council under Sub-section (3) of Section 308
and yet, the Director had failed to perform his
statutory obligation under Sub-section (4) of Section
308 of the Act. Nor it is the case of the Municipal
Council that the procedure required by the section had
not been followed and in spite of objections raised by
it against the report of the Collector, the Director, in
violation of statutory provisions, confirmed the order
passed by the Collector. It, therefore, cannot be said
that the principles of natural justice were violated.
The action taken by the respondents, hence cannot be
said to be invalid, illegal or contrary to the principles
of natural justice and fair-play.
WRIT PETITION NO.917/2016/Group
44. For the aforesaid reasons, in our opinion, the
reference deserves to be accepted. We hold that the
Collector has power, authority and jurisdiction to
invoke Sub-section (1) of Section 308 of the Act if he is
satisfied that one of the eventualities mentioned in the
said Sub-section exists. His power, authority and
jurisdiction does not come to an end even if the order
or resolution is implemented, executed or effected.
The reference is answered accordingly. In the facts and
circumstances, however, there shall be no order as to
costs."
ig (Emphasis supplied)
15. In the light of the ratio laid down by the Full Bench of
this Court and in view of the declaration that the law laid
down in the case of Chandrashekhar and Prakash Kutik (supra)
do not lay down the correct law on the interpretation of
Section 308, the issue is therefore no longer res-integra. The
observations of the Full Bench in the reproduced paragraph
clearly indicate that by overruling the said two judgments of
the Division Bench, the Collector was not held to be under an
obligation to issue a notice of hearing, before invoking his
powers u/s 308(1), to the petitioner.
16. In the instant case, the judgment of the Full Bench in
the case of Sanjay Govind Sapkal (supra) was not brought to
the notice of the Labour Court, which has interfered with the
action of the Collector purely on the count that Section 25F
was not complied with. The Industrial Court after considering
the law, has concluded that at best, the complainant could be
entitled to notice pay and retrenchment compensation for the
period of work that he has performed."
29. Though the above factors in these cases have not been dealt with by
WRIT PETITION NO.917/2016/Group
the Industrial Court, they have been dealt with by this Court. I, therefore,
do not find any reason to cause any interference in the impugned judgments
delivered by the Industrial Court.
30. The submissions of the learned Advocates for the petitioners
canvassed in the alternative, need to be dealt with. First of all, despite the
distinguishing features in these cases, I am inclined to grant retrenchment
compensation to the petitioners, which under any circumstances, they were
Act.
entitled to considering their length of service, as per Section 25F of the ID
The respondent Municipal Council, shall therefore, calculate the
retrenchment compensation under Section 25F in each of these cases
considering the length of service of the petitioners and pay the said
amounts to the petitioners within eight weeks from today. Any fraction of
service of six months or there beyond shall be rounded off to one year while
computing the compensation. Since this compensation was due to be paid
in November 2011, same shall carry simple interest at the rate of 3% p.a.
which the respondent Municipal Council shall pay to the petitioners.
31. The petitioners have contended that they have been mislead and on
account of misrepresentation, they were made to believe that their
appointments were of a regular nature. They had a legitimate expectation
of continuing in employment.
32. Learned Advocate for the Municipal Council has submitted that all
these petitioners had their own connections with the councilors /
WRIT PETITION NO.917/2016/Group
politicians. Their proposals for appointment were brought to the Standing
Committee by such politicians. Owing to the indulgence of the Standing
Committee, these petitioners were appointed. Naturally, after their
appointments were found to be irregular, they were terminated.
33. The Honourable Supreme Court in the matter of Secretary, State of
Karnataka Vs. Umadevi & Others [(2006) 4 SCC 1], has observed in
paragraph No.44 that irregular appointments could be regularized by
framing particular schemes only for such candidates who have been working
for ten years or more. The observations of the Honourable Supreme Court
in the cases of Umadevi (supra) would therefore, be of no assistance to the
petitioners.
34. I find some force in the submissions of Shri Deshmukh, learned
Advocate for the respondent. The names of these petitioners were not
called for from the Employment Exchange. Had that been the case it could
have been appreciated that they were considered for appointment on the
basis of their enrollment with the Employment Exchange and not on account
of their proximity with the Councilors / Politicians. There is no dispute that
their appointments were an out come of the Resolution passed by the
Standing Committee and no procedure for recruitment in public
employment had been followed. In the light of this factual matrix, I do not
find the contentions of the petitioners that they are innocent and were
misled in their appointments, could be accepted. I am, therefore, not
inclined to grant costs / compensation to these petitioners.
WRIT PETITION NO.917/2016/Group
35. These petitions are, therefore, disposed off with the direction to the
Municipal Council to pay retrenchment compensation amount with interest
to the petitioners as directed herein above. Rule in all these petitions
stand discharged.
36. Learned Advocates for the petitioners submit at this juncture that
liberty may be granted to the petitioners to assail the decision of the State,
if arrived at, under Section 308(4) of the Act of 1965.
37.
Considering the fact that the challenge of the petitioners to their
termination under the Labour Legislation and their challenge to the
decision of the Collector under Section 308(1) of the Act of 1965 has been
put to rest by this Court,only in the event the petitioners have any legal
right or remedy available for assailing the decision of the State arrived at
under Section 308(4) of the Act of 1965, they are at liberty to avail of such
remedy, if available. It shall not be construed that this Court has carved
out a remedy for the petitioners.
( RAVINDRA V. GHUGE, J. )
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