The Municipal Council Tirora ... vs Bhandara Z.P. Kamgar Sanghatna ...
2017 Latest Caselaw 3203 Bom

   lpa347.07                                                                     1



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           NAGPUR BENCH

              LETTERS PATENT APPEAL NO. 347  OF  2007
                                IN
                 WRIT  PETITION NO.  2148  OF  1999

  The Municipal Council,
  Tirora, through its
  Chief Officer, Tirora,
  District - Gondia.                            ...   APPELLANT

                               Versus

  1. Bhandara Zilla Nagar Parishad
     Kamgar Sanghatna, Tirora,
     through its new President
     Shri Mahendra Walde r/o
     Mahatma Fule Ward, Tirora,
     District - Gondia.

  2. Asgar Khan Mohd. Khan Pathan
     (died on 11.09.2006) through
     his legal heirs -

  2-A. Smt. Jamila Begum wd/o Asgar
        Khan Pathan, aged about 50 years,

  2-B.  Mrs. Halima Begum w/o Sharif
        Khan Pathan, aged about 37 years,

  2-C.  Salim Khan Pathan s/o Asgar Khan
        Pathan, aged about 35 years,

  2-A to 2-C r/o Sant Ravidas Ward, Tirora,
  District - Gondia.

  3. The Collector, Gondia,
     District - Gondia.

  4. The Member, Industrial Court,
     Nagpur.                                    ...   RESPONDENTS




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    lpa347.07                                                                      2




  Shri R.V. Kalia, AGP for respondent Nos. 3 & 4.
                     .....

                               CORAM :      B.P. DHARMADHIKARI &
                                            ROHIT B. DEO, JJ.

JUNE 15, 2017.

ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)

The order passed by the learned Single Judge of this

Court on 11.10.2007 on Civil Application No. 1562 of 2007,

refusing to recall the earlier order dated 17.07.2006 on Civil

Application No. 6876 of 2004 in Writ Petition No. 2148 of 1999

and disposing of that writ petition has been questioned before

this Court.

2. Nobody has appeared for the appellant - Municipal

Council. There is no appearance for respondent No. 1 - Union

or for legal heirs of respondent No. 2 - workman.

3. Ms. Kalia, learned AGP has appeared for respondent

Nos. 3 & 4. With her assistance, we have perused the records.

4. The Member, Industrial Court at Nagpur, on

05.05.1999 allowed Complaint ULP No. 595 of 1993 instituted

by the workman and declared that the employer has engaged in

Unfair labour practice under Articles 6 & 9 of Scheduled IV of

the Maharashtra Recognition of Trade Unions and Prevention

of Unfair Labour Practices Act, 1971, (hereinafter referred to as

the Act). The employer was directed to grant status and

privileges of permanent employee to the workman from the

date of filing of the complaint i.e. 22.04.1993.

5. The employer - Municipal Council approached this

Court in Writ Petition No. 2148 of 1999. It appears that writ

petition was admitted for final hearing and the impugned

judgment delivered by the Industrial Court was also stayed on

05.08.1999. Civil Application No. 6876 of 2004 was then

moved by the workman who pointed out that the impugned

judgment of the Industrial Court was implemented by the

employer and as such the petition did not survive. The request

was made in Civil Application to dispose of the writ petition. It

is recorded that this position was not disputed by the learned

counsel appearing for the Municipal Council and, therefore, the

civil application was allowed and with the result, writ petition

was disposed of.

6. The employer - Municipal Council thereafter filed

MCA for review of this order. This request was considered on

11.10.2007. Delay in moving the review petition was

condoned and after noticing the fact that the order dated

17.07.2006 was passed with consent of both parties, the review

petition was rejected. In review petition, the Chief Officer,

Municipal Council specifically pointed out that its counsel was

not authorized and instructed to give consent to the Court on

17.07.2006.

7. The learned Single Judge has noted resolution

dated 29.10.2001 passed by the employer - Municipal Council.

By that resolution, decision was taken to follow the orders of

the Court and to make all payments to the workman. In the

wake of this resolution, the learned Single Judge found that the

consent given by the Advocate on 17.07.2006 was based upon

this resolution dated 29.10.2001. The prayer for review was,

therefore, rejected with cost of Rs.2,000/-.

8. A perusal of resolution dated 29.10.2001 shows

that it is passed by the Standing Committee of the Municipal

Council on a subject which has been taken up with permission

of the Chair i.e. at the eleventh hour. Subject, therefore, was

not included and did not form part of agenda. The subject was

put up by the Chairman of the Standing Committee and the

subject as mentioned is to pay dues of workman and to absorb

him in service. It has been mentioned that as the workman had

filed court proceedings, accordingly it was decided to pay him

his dues as per court orders. It was resolved to make him

permanent as per that order.

9. The learned Single Judge, while refusing to review

on 11.10.2007, has observed that the Resolution was passed by

the Municipal Council consciously. As the subject came up

without previous notice to administration, it is apparent that

developments before this Court i.e. filing of writ petition by the

Municipal Council, interim orders operating therein, could not

be pointed out to the Standing Committee. The resolution

could have been labeled as conscious had these developments

been noticed by the members of Standing Committee and

thereafter they decided to implement the judgment of the

Industrial Court, though it was stayed in writ petition by the

High Court. That is not the situation. The members of the

Standing Committee do not appear to be aware of the High

Court proceedings or interim orders passed therein and,

therefore, they found it necessary to implement and act as per

judgment of the Industrial Court. We, therefore, find that the

resolution cannot be labeled as a conscious resolution. On the

contrary, it appears that without any previous notice to

administration, the Chairman of the Standing Committee got

the resolution cleared.

10. Section 301 of the Maharashtra Municipal Councils

and Nagar Panchayats and Industrial Townships Act, 1965,

deals with power to institute, defend suits, etc. Its sub-section

confers power to the Chief Officer to institute and prosecute

any suit or to withdraw from or compromise or compound any

such suit or any claim. Thus, before court, power needs to be

exercised by the Chief Officer only. Section 8 of the Act which

deals with Establishment and Incorporation of Councils,

specifies that Municipal Council can enter into contracts and

may sue or be sued through its Chief Officer. However, the

power of the Chief Officer to institute suits or other proceedings

or to withdraw or compromise or compound it, is to be

exercised subject to general control of the Council. Section

7(a) shows that General body of the Municipal Council

constitute "Council" while "Standing Committee" is a smaller

part thereof. Hence, here, there is no resolution of General

body (Council) compromising the claim with workman. The

Standing Committee lacked powers and jurisdiction to pass

such resolution.

11. In this situation, we find that the review ought to

have been allowed by the learned Single Judge. Hence, we

quash and set aside the order dated 11.10.2007 insofar as it

rejects the prayer for review. MCA (Stamp) No. 2961 of 2007

is accordingly allowed and the order dated 17.07.2006 passed

by the learned Single Judge on Civil Application No. 6876 of

2004 and consequential order on Writ Petition No. 2148 of

1999 is recalled. Writ Petition No. 2148 of 1999 and Civil

Application No. 6876 of 2004 are restored back to file for its

further consideration as per law.

12. Letters Patent Appeal is accordingly allowed and

disposed of. However, in the facts and circumstances of the

case, there shall be no order as to costs.

           JUDGE                                                      JUDGE
                                              ******

  *GS.