Bombay High Court
The Municipal ... vs Urkuda W/O Mahadeo Nikhar & 17 Ors on 27 July, 2017
Bench: B.P. Dharmadhikari
jlpa389of08 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
LETTERS PATENT APPEAL NO. 389 OF 2008
IN
WRIT PETITION NO. 2891 OF 1995
1. The Municipal Council,
Bhandara, through its Chief Officer,
Bhandara
2. President,
Municipal Council, Bhandara ... APPELLANTS
Versus
1. Urkuda w/o. Mahadeo Nikhar
2. Yashoda w/o. Kisan Barapatre
3. Tulsabai w/o. Jagannath Hedau
4. Chindnibai Kisan Gonnade
5. Bhagubai w/o. Fakira Kumbhare (Abated against R-5
as per Courts order
dtd. 25.11.2008)
6. Nagabai w/o. Dudharam Hedau,
7. Kaushalyabai w/o. Ramkisan Dhakate,
8. Pachtula w/o. Nathuji golhar
9. Janabai w/o. Govinda Raut (Abated against R-9
as per Courts order
dtd. 25.11.2008)
10.Wanwas s/o. Dhanu Meshram
since deceased, through Lrs.
A. Jaiwantabai wd/o. Wanwas
Budhawari (Abated against 10-A
Ambedkar Ward, Bhandara as per Courts order
dtd. 08.1.2010)
B. Indua w/o. Namdeo Wahane,...(Abated as per Court
Garoab Maidan, Bhandara order dtd. 19.8.2015)
11.Kaushalya w/o. Dashrath Ninave.
12.Kusumbai w/o. Shriram Gote...... (abated as per Courts
order dtd.25.11.2000)
::: Uploaded on - 02/08/2017 ::: Downloaded on - 08/08/2017 01:49:35 :::
jlpa389of08 2
13.Gana S/o. Maroti Madame....... (abated as per Courts
order dtd.25.11.2000)
14. Kisan S/o. Sadashiv Deolkar,
15. Radha w/o. Kewalram Katore,
16.Parbatabai w/o. Mahadeo Gabhane..... (abated as per Courts
order dtd.25.11.2000)
17. Shewantabai w/o. Rameshwar Banasure,
above all the respondent nos. 1 to 17
are / were in service to the Municipal
Council C/o. Public Work Department,
Municipal Council, Bhandara.
18.Member, Industrial Court, Nagpur ... RESPONDENTS
Shri. M.I. Dhatrak, Advocate for the appellants.
Shri. Palshikar, AGP for the respondent no. 18..
.....
CORAM : B.P. DHARMADHIKARI &
ROHIT B. DEO, JJ.
JULY 27, 2017.
ORAL JUDGMENT : (PER B.P.DHARMADHIKARI, J.)
Employer - Municipal Council and its President are before
this Court assailing the judgment dated 03.07.2007 delivered by
learned Single Judge of this Court in Writ Petition No. 2891 of
1995. That Writ Petition was filed by 17 employees of Municipal
Corporation against the judgment dated 20.4.1992
(20.04.1990). This judgment is delivered by the Member,
Industrial Court in ULP Complaint No. 82 to 98 of 1987.
2. Member, Industrial Court did not grant any declaration or
relief under Item 9 of Schedule 4 of The Maharashtra
Recognition of Trade Unions & Prevention of Unfair Labour
Practices (M.R.T.U. & P.U.L.P.) Act, 1971, and on uniform basis
extended the benefit of Item 6 of Schedule 4. Learned Member
also observed that the complainants before him were entitled to
equal facilities and accordingly without directing absorption in
permanent cadre, a direction was given to employer to extend
to them the wages at par with permanent employees from date
of complaint i.e. from 10.3.1987.
3. Complainants were claiming benefit of Award dated
30.7.1975 delivered by Industrial Court, Nagpur and hence they
approached this Court in Writ Petition No. 2891 of 1995.
Learned Single Judge on 3.7.2007 has found that benefit of
earlier Award dated 30.7.1975 could not have been denied to
complainants. Hence, a direction has been issued to employer
to extend the benefit of permanency to all complainants from
the date they completed two years of continuous service. Only
continuity has been ordered from said date without any arrears.
4. Advocate Shri. Dhatrak points out that some complainants
had already expired during pendency of petition before learned
Single Judge and hence it was necessary to bring their legal
heirs on record. Those legal heirs were not brought on record
and hence by order dated 25.11.2008, this Court has expressly
mentioned that Writ Petition had abated in so far as petitioner
no. 5,9,12,13 and 16 are concerned. He points out that this
order has attend finality.
5. He adds that learned Member of Industrial Court did not
grant permanency on 20.4.1992 and the Award of which support
is taken by employees namely the Award of Industrial Court
dated 30.7.1975, also did not and does not grant such
permanency. He submits that there is difference between
regularization and grant of permanency. Inviting attention to
Judgment of Hon'ble Apex Court in case of Maharashtra State
Road Transport Corporation vs. Casteribe Rajya Parivahan
Karmachari Sanghatna, (2009) 8 SCC 556 he contend that
unless and until sanctioned vacant posts are demonstrated, no
direction to absorption can be given. He submits that the
appellant Municipal Council has no objection if the relief as
given by Industrial Court on 20.4.1992 / 1990 is maintained as it
is.
6. Nobody appears for respondents (employees), though
served.
7. Learned AGP has appeared for respondent no.18 -
Member, Industrial Court.
8. Perusal of judgment delivered by Industrial Court reveals
that employer has to extend equal facilities to complainants
before it and complainants need to be absorbed in permanent
cadre. Final, direction issued by Industrial Court is consistent
with these observations. The equal benefit are to be extended
from date of filing complaint i.e. from 10.3.1987.
9. Learned Industrial Court has declined to grant benefit of
1975 Award to 3 complainants named before it as it found that
they did not seek any benefit for more than 12 years. It
therefore, refused to grant any declaration under Item 9 in their
favour.
10. Once there was an Award, it was necessary for
employer to extend its benefit to everybody without asking.
Omission to implement Award is recognized as a continuous
cause. However, in present facts, employer has also pointed out
that employees had joined employment later and therefore,
Award did not regulate their services. The learned Single Judge
has not expressly found anything wrong with this defence. On
the contrary, accepting statement that complainant employees
would forego entire arrears, benefit of Award has been
extended. The learned Single Judge has directed the employer
to extend benefit of permanency to all the complainants from
the date they completed two years of continuous service. It is
also observed that Award provides that daily rated employees
completing two years of continuous service satisfactorily should
be considered for being made permanent by Municipal Council.
11. Perusal of that Award reveals that in para no. 21,
Industrial Court has directed Municipal Council to apply Bombay
Civil Services Rules to the employees in the matter of leave. It
further ordered that all daily rated employees who put in two
years continuous and satisfactory service, should be considered
for being made permanent. It has further directed that Award
be given effect from 5.2.1972 i.e. the date on which reference
of various demand was made to it.
12. Thus, paragraph no. 21 of the Award made by
Industrial Court in 1975 does not show grant of automatic
permanency. Only those who have put in two years of service
that too satisfactorily and continuously needed to be considered
for making permanent. As pointed out by Advocate Shri.
Dhatrak granting permanency depends upon availability of
sanctioned vacant post. This position is clearly overlooked by
the learned Single Judge on 3.7.2007. The direction issued in
writ petition is to confer benefits of permanency on all
complainants without any verification.
13. In this situation, we quash and set aside the order date
3.7.2007 and dismiss Writ Petition No. 2891 of 1995.
14. LPA is accordingly allowed.
15. No cost.
JUDGE JUDGE
*****
Belkhde, PA
