Bombay High Court
Municipal Council, Hinganghat vs Vitthal Marotrao Kamdi on 22 June, 2017
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
LETTERS PATENT APPEAL NO.68 OF 2008
WITH
LETTERS PATENT APPEAL NO.140 OF 2008
LETTERS PATENT APPEAL NO.68 OF 2008
IN
WRIT PETITION NO. 391 OF 2006
Municipal Council Hinganghat
through its Chief Officer ... APPELLANT
// VERSUS //
Vitthal Marotrao Kamdi,
aged about 35 years,
R/o. Hinganghat, Dist. Wardha ...RESPONDENT
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Mr.Deshpande, Advocate for Appellant
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LETTERS PATENT APPEAL NO.140 OF 2008
IN
WRIT PETITION NO. 6565 OF 2005
Municipal Council Hinganghat
through its Chief Officer ... APPELLANT
// VERSUS //
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Sanjay Dhanraj Yelorkar,
aged about 28 years,
R/o. Tilak Ward, near
Lala Lajpatrai School,
Hinganghat, Dist. Wardha ...RESPONDENT
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Mr.Deshpande, Advocate for Appellant
Mr.Gupte for Respondent
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CORAM : B.P.DHARMADHIKARI, J.
R.B.DEO, J.
DATE : 22.06.2017.
ORAL JUDGMENT (Per B.P.Dharmadhikari, J) :
1 Heard Advocate Shri Deshpande for appellant -
Municipal Council and Advocate Shri Gupte for
respondent employee in LPA No. 140/2008. Counsel
appearing for employee in LPA No.68/2008 is not
available.
2 By inviting attention to written statement filed
before Industrial Court, Advocate Shri Deshpande
submits that there in absence of sanctioned and vacant
post as also back door recruitment were expressly
pleaded to oppose prayer for grant of regularization and
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permanency. This aspect has been lost sight of and
merely because there was a Resolution of Municipal
Council in favour of or then in case of other employees,
and it was actually implemented, the complaint has
been allowed. He is relying upon judgment of Full Bench
of Hon'ble Apex Court reported in the case of Secretary,
State of Karnataka & Ors. Vs. Umadevi & Ors. reported AIR
2006 SC 1806, and judgment reported in the case of
Maharashtra State Road Transport Corporation vs.
Casteribe Rajya Parivahan Karmachari Sanghatna,
(2009) 8 SCC 556. He contends that, Constitution Bench
judgment was cited before the learned Single Judge but
in impugned judgment, the controversy arising out of it
has not been properly looked into. Mere completion of
240 days of continuous service does not result in grant
of regularization or permanency and provisions of model
standing order clause 4-C are not applicable in case of
establishment of Municipal council.
3 Advocate Shri Gupte appearing for complainant
(respondent in LPA 140 of 2008) heavily relied upon
impugned judgment delivered by learned Single Judge.
He submits that Constitution Bench Judgment of the
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Hon'ble Apex Court has been appreciated therein and
long service put in by complainant has weighed with the
Court. He also states that when juniors have been
regularized, even in equity, the benefit flowing through
Item 5 of Schedule IV of The Maharashtra Recognition of
Trade Unions & Prevention of Unfair Labour Practices
(MRTU & PULP) Act, 1971 ought to have been given.
4 He further contends that in identical matters
earlier, learned Single Judge of this Court had remanded
the controversy back to Industrial Court in the wake of
Constitutional Bench judgment. Industrial Court,
thereafter, gave fresh opportunity to the parties and
delivered judgment again in favour of employees. That
judgment form subject matter of various petitions before
this Court. One such petition i.e. writ petition no.
3406/2008 filed by Municipal Council was rejected by
learned Single Judge on 28.1.2016. Against that
adjudication, SLP was preferred and that SLP has been
dismissed by Hon'ble Supreme Court on 16.1.2017.
Thereafter, in about 11 writ petitions i.e. writ petition no.
560 of 2014 and other matters, considering refusal by
Hon'ble Apex Court and judgment dated 28.12.2016,
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same contentions of Municipal Council were negated and
its writ petitions have been dismissed. This dismissal
has attained finality. Shri Gupte submits that when other
employees in similar situation are getting the benefits of
adjudication by Industrial Court and hence, it will not be
appropriate on part of this Court to take any other view.
5 After hearing respective counsel, we find that
respondent workman in LPA No. 68/2008 must be now
about 53 years old and has put in more than 27 years of
service on daily wages. Similarly, employee /
complainant in other LPA is about 50 years old and has
put in about 23 years of service as of now.
6 The facts show that learned Member of
Industrial Court has taken a note of continuous work
done by respective employee since their joining. Finding
of fact that they have worked for more than 240 days
continuously in every year does not appear to be
erroneous or perverse. In this situation, whether clause
4-C of model standing order applies or not, it is clear that
workload was always available for them and their
services have been utilized by Municipal Council to
discharge its various obligations. The Municipal Council
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has in fact passed a Resolution in their favour and
resolved to make them permanent. Those Resolutions
were also produced before Industrial Court and are dully
accepted. Though these Resolutions were not
implemented / executed, similar Resolutions in case of
employee namely Shri chandrabhan Kamdi and others
were implemented and they were made permanent by
Municipal Council. It is in the wake of these facts that
Industrial Court vide its order dated 15.10.2005, found it
a hostile discrimination. It, therefore, directed Municipal
Council to extend similar treatment to complainant
before it.
7 Learned Single Judge has maintained this
application of mind.
8 This Court while admitting LPA has granted
interim stay and therefore, respondent employee
continue even today on daily wages.
9 Identical controversy raised before Industrial
Court by other set of employees reached up to Hon'ble
Apex Court and Hon'ble Apex Court has on 16.1.2017,
while rejecting special leave to Appeal in case No.
873/2017, maintained judgment of learned Single Judge
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of this Court dated 28.1.2016 in writ petition no.
3406/2008. Same view thereafter has been taken in
large number of matters by this Court.
10 Taking overall view of the matter, we find
substance in contention of Shri Gupte that at this
juncture it will be inhuman to take any other view on the
controversy presented to us.
11 In this situation, in facts noted Supra, we
dismiss LPA. Rule discharged. No cost.
JUDGE JUDGE
belkhede, PA
