The Aurangabad Municipal ... vs Quazi Jaweed Ahmed Siddique
2017 Latest Caselaw 1564 Bom

                                         1                     WP No.8731/2015

        IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                   BENCH AT AURANGABAD

                     WRIT PETITION NO. 8731 OF 2015


  The Aurangabad Municipal
  Corporation, Aurangabad,
  Through it's Commissioner                       =        PETITIONER

           VERSUS

  Quazi Jaweed Ahmed Siddique,
  Age: 43 Yrs., occu. Nil
  R/o H.No.3/9/18, Kirana Chawdi,
  Aurangabad.                     =                        RESPONDENT



  Mrs. Deshpande Manjusha Advocate for Petitioner; 
  Mr. Kasliwal Ajit D., Advocate For Respondent.
                                   -----
                               CORAM :  P.R.BORA, J.

DATE :

10 th

April,2017.

ORAL JUDGMENT:

1) Heard. Rule. Rule made returnable

forthwith by consent of learned Counsel

appearing for the parties.

2) Order dated 26th December, 2013 passed by

Judge, Labour court (II) Aurangabad in Reference

(IDA) No.18/2006, is challenged in the present

petition. The respondent had filed the aforesaid

Reference Application, seeking his reinstatement

with continuity of services and full back wages

w.e.f. 1st April, 2007. The learned Judge of the

Labour court, vide the impugned order, has

directed the petitioner Corporation to reinstate

the respondent as Sub-Overseer within two months

from the date of publication of the Award. The

Labour court has not held the respondent entitled

for the relief of continuity as well as back

wages.

3) Smt. Deshpande, learned counsel

appearing for the petitioner Corporation, has

assailed the impugned order on various grounds.

The learned Counsel submitted that the respondent

was appointed on 'work charge basis' as Sub-

Overseer for three months, vide order dated

7.5.1999 and thereafter was continued for next

three months on similar conditions. The learned

counsel submitted that the respondent was

appointed on the project, which was funded by the

Central Government and it was clarified in the

order issued in favour of the respondent that his

appointment will automatically come to an end on

expiry of the terms mentioned in the said

appointment order.

. The learned counsel further submitted

that since the appointment itself was for fixed

period and was to end by efflux of time, the

services of the respondent had automatically come

to an end and as such, there was no question of

commission of any unfair labour practice by the

corporation.

. The learned counsel further submitted

that, in fact, the respondent had accepted the

said order and did not challenge the same for the

period of about seven years. The learned counsel

submitted that the respondent had approached to

the Labour Commissioner much belatedly and the

Dispute referred by him was referred for

adjudication in the year 2006, i.e. after six

years of his alleged oral termination. The

learned Counsel further submitted that in fact

the Labour court ought not have entertained such

Reference at the belated stage and no relief was

liable to be granted in favour of the respondent.

4) The leaned counsel further submitted

that since the appointment of the respondent was

for temporary fixed period, no recruitment

procedure was followed before giving him the

appointment. The learned counsel further

submitted that the petitioner Corporation has its

own recruitment Rules. However, since the post

was not permanent and vacant, no recruitment

process was followed while giving appointment to

the respondent. The learned counsel further

submitted that subsequently, the instructions

were also issued by the State government for not

making appointment without following due process

of law. On all these grounds, it was the

contention of the petitioner corporation that the

order passed by the Labour Court is unsustainable

and in fact no relief was liable to be granted in

favour of the respondent.

5) The learned counsel has relied upon the

judgment of the Hon'ble Apex court in the case of

Bhavnagar Municipal Corporation Vs. Salimabhai

Umarbhai Mansuri - AIR 2013 SC 2762. The learned

Counsel submitted that the Labour court did not

appreciate the legal provisions in its proper

perspective. The learned counsel, therefore,

prayed for allowing the writ petition and

consequently to quash and set aside the order

passed by the Labour court, which has been

impugned in the present petition.

6) Shri Kasliwal, learned counsel appearing

for the respondent, has resisted the contentions

raised on behalf of the petitioner corporation.

The learned counsel submitted that at the

relevant time two other employees, viz. Sanjay

Murlidhar Kombde and Amol Baburao Kulkarni, were

also appointed by the Corporation on work charge

establishment on the post of Sub-Overseer on

similar terms and conditions. The learned

counsel submitted that said Sanjay Kombde worked

with the Corporation for about nine months,

whereas Amol Kulkarni had worked for about eight

months.

. The learned counsel further submitted

that after the services of these employees were

orally terminated by the petitioner Corporation,

on the same grounds on the basis of which

respondent was terminated, they have approached

the Labour court by filing Complaints under the

provisions of M.R.T.U. & P.U.L.P. Act and the

Complaints filed by these employees were allowed

by the Labour court. The said decision was

challenged by the petitioner Corporation, first

in the Industrial Court and thereafter before

this court by filing a Writ Petition. The

learned counsel submitted that, however, neither

the Industrial Court not the High court gave any

relief in favour of the petitioner corporation

and eventually the orders passed by the Labour

court were confirmed. The learned Counsel

further submitted that both these employees have

now been taken in service by the petitioner

Corporation. The learned counsel submitted that

at present also, 32 posts of Sub-Overseers are

lying vacant on the establishment of the

petitioner Corporation. The learned Counsel

submitted that the present respondent stands at

par with the aforesaid two employees viz. Sanjay

Kombde and Amol Kulkarni.

7) The learned Counsel further submitted

that even otherwise, no such grounds are set out

in the present petition in exception to the

observations made and findings recorded by the

Labour Court in the impugned order so as to cause

interference in the said order. The learned

Counsel further submitted that when the posts of

Sub-Overseers were lying vacant on the

establishment of the petitioner Corporation and

the work was also perennially available, to issue

an appointment order to the respondent and other

similarly situated employees on a fixed period

was a camouflage. The learned Counsel further

submitted that in such circumstances merely

because the appointment orders indicate that the

appointment will come to an end by efflux of

time, no much importance can be attached to such

a stipulation. The learned Counsel further

submitted that there was thus no reason for

discontinuing the services of the respondent.

The learned Counsel, therefore, prayed for

dismissal of the writ petition.

8) I have carefully considered the

submissions advanced by learned Counsel appearing

for the respective parties. I have also perused

the impugned judgment and order as well as other

material placed on record. I need not to enter

into the detailed discussion as about the issues

raised by the petitioner Corporation whether the

recruitment process was followed or what was the

nature of appointment issued in favour of the

respondent as well as other two employees,

referred to above. From the material on record

it is quite evident that all the three persons,

i.e. Sanjay Kombde, Amol Kulkarni and present

respondent were appointed on similar terms and

conditions and all were appointed as Sub-

Overseers. The appointment of all these

employees were on Work charge establishment. It

is further evident from the material on record

that similar defenses were raised in the

petitions filed against the orders passed in

favour of the said two employees and these

objections have been turned down by this court in

Writ Petition Nos.1484/2008, 1485/2008 and

1486/2008. I deem it appropriate to reproduce

herein below para 3 of the aforesaid order, which

reads thus, -

"3. I have perused the order passed by the labour court, Aurangabad as well as order passed in revision application by the industrial court, Aurangabad. It is contended by learned counsel appearing for the petitioner that services of the employees were hired for a project which was sponsored by the State Government. It is contended that on completion of the project, respondents/employees were

discontinued from services. However, on perusal of the judgments passed by the labour court as well as industrial court. I do not find such a contention having been raised by the employer. It is for the first time in these writ petitions, a stand is being taken that the services of the employees were hired for completion of project funded by the State Government and on completion of such project, services of the employees were dispensed with. It is impermissible to raise such contention for the first time in writ petition presented by the employer in this court. I not find that the courts below have committed any irregularity which calls for interference by this court in exercise of extra ordinary jurisdiction under Article 227 of the Constitution of India. Petitions are devoid of merit.

                    Petitions              stands                  rejected 
                    summarily."







  9)               In view of the observations made and the 

findings recorded, as above, by this Court, the

present writ petition also needs to be dismissed.

The petitioner has placed on record the copies of

the letter of appointment issued in favour of

Sanjay Kombde and Amol Kulkarni. The petitioner

has also placed on record the appointment orders

issued in favour of these employees after

dismissal of the writ petition Nos.1484/2008,

1485/2008 and 1486/2008 filed by the petitioner

Corporation against the order of reinstatement

passed in favour of the aforesaid two employees.

The learned Counsel appearing for the petitioner

Corporation has not disputed the aforesaid facts.

It has also not been disputed by the Corporation

that presently 32 posts of Sub-Overseers are

lying vacant on the establishment of the

petitioner Corporation. On making a query by the

Court as about the vacancies of the posts of Sub-

Overseers on the establishment of the petitioner

Corporation, the counsel for the Corporation was

fair enough to put on record a communication

received to her from the petitioner Corporation,

evidencing that at present 32 posts of Sub-

Overseers are vacant on the establishment of the

petitioner Corporation.

10) From the aforementioned facts, there

remains no doubt that the present Respondent

stands at par with Sanjay Kombde and Amol

Kulkarni. The petitioner corporation has already

reinstated these two employees in pursuance of

the order passed by the Labour court in favour of

said employees after making unsuccessful attempts

to challenge the said orders, first in the

Industrial Court and thereafter by filing writ

petition in the High court. Thus, the principles

of parity would apply in the instant case. The

petitioner Corporation cannot give discriminatory

treatment to the present respondent.

. As has come on record, 32 posts of Sub-

Overseers are still vacant on the establishment

of petitioner Corporation. Even otherwise, it

does not appear to me that the Labour court has

committed any error in directing the

reinstatement of the respondent without the

relief of back wages.

11) For the foregoing circumstances and for

the reasons stated, as above, I am not inclined

to cause any interference in the impugned order.

The writ petition, therefore, stands dismissed,

however without any order as to costs. Rule

discharged.

(P.R.BORA,J.)

bdv/