Bombay High Court
Zilla Parishad Jalna Thr Ceo vs Deepak Narayanrao Wakle on 5 October, 2017
Bench: R.V. Ghuge
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.6941 OF 2007
1. Zilla Parishad, Jalna,
Through the Chief Executive Officer,
2. The Live Stock Development Officer,
Veterinary Hospital Grade I,
Mantha, Dist.Jalna -- PETITIONERS
VERSUS
Baban Marotrao Bokade,
Age-53 years, Occu-Service,
R/o Mantha, Tq.Mantha,
Dist.Jalna -- RESPONDENT
WITH
WRIT PETITION NO.6951 OF 2007
WITH CIVIL APPLICATION NO.5120 OF 2009
Zilla Parishad, Jalna,
Through the Chief Executive Officer -- PETITIONER
VERSUS
Deepak Narayanrao Wakle,
Age-33 years, Occu-Service,
R/o Mantha, Tq.Mantha,
Dist.Jalna -- RESPONDENT
Mr.A.S.Deshpande, Advocate for the petitioners.
Smt.A.N.Ansari and Smt.C.E.Gaikwad, Advocate for the respondents.
( CORAM : Ravindra V.Ghuge, J.)
DATE : 05/10/2017
ORAL JUDGMENT :
khs/OCT. 2017/6941-d
1. In both these matters, the petitioner/ Zilla Parishad has
challenged the judgment and order of the Industrial Court dated
19/10/2007 in Complaint (ULP) No.43/2006 and 15/10/2007 in
Complaint (ULP) No.130/2002, respectively .
2. I have considered the strenuous submissions of the learned
Advocates for the respective sides. Mr.Deshpande, learned Advocate
for the Zilla Parishad has drawn my attention to the 13 grounds
formulated in the petition. I have also considered the judgments
cited by Mr.Deshpande, which have been specifically mentioned in
Ground Nos.10, 11 and 12 of the petition.
3. This Court has already taken a view in similar set of facts in
the matter of Municipal Council, Tuljapur Vs. Baban Hussain Dhale
in WP No.1843/2015 and connected matters decided on 26/02/2015
and Mukhyadhikari, Nagar Parishad, Tuljapur Vs.Vishal Vijay
Amrutrao and others, [2015(5) Mh.L.J.75] that in service matters
pertaining to State instrumentalities, unless permanent vacant posts
are available, the Industrial Court cannot declare unfair labour
practices against the employer and cannot grant regularization in
service merely on the basis of having completed 240 days in
continuous employment in one calendar year preceding the date of
khs/OCT. 2017/6941-d
reference as is provided for u/s 25-B of the Industrial Disputes Act,
1947 and on the basis of Standing Orders 4-C of the Industrial
Employment (Standing Orders) Act, 1946.
4. In view of a difference of opinion amongst two learned Single
judges of this Court at Nagpur, the matter was referred to the learned
Division Bench in the case of Municipal Council, Tirora and another
Vs. Tulsidas Baliram Bindhade [2016(6) Mh.L.J.867]. It was
concluded that the deemed permanency concept under Standing
Order 4-C read with the obligation to issue an order of regularization
under Standing Order 4-D merely because an employee has
completed 240 days, would not be applicable to State
instrumentalities where the creation of posts is the obligation of the
State Government.
5. It is, therefore, trite that regularization cannot be granted in
the absence of permanent vacant posts. In such set of
circumstances, it becomes necessary for the employer to forward a
proposal of identically placed daily wagers or temporaries for
consideration on the basis of their seniority and for grant of
regularization depending on the availability of permanent vacant
posts.
khs/OCT. 2017/6941-d
6. Since the above view has been consistently taken by this Court,
I deem it appropriate to issue such directions in both these matters.
7. Mrs.Ansari, learned Advocate for the respondent in the first
petition namely Baban Marotrao Bokade submits that he has already
attained the age of superannuation. In his case, the appropriate
Authority will have to consider his notional regularization as like the
other respondent Dipak Narayanrao Wakle from the date a
permanent post has fallen vacant, on which these respondents can
be absorbed. Baban Marotrao will therefore be entitled to
regularization notionally with all monetary benefits. Dipak
Narayanrao will be entitled for regularization as is normally done. It
goes without saying that this decision would be arrived at by the
appropriate authorities on the basis of available permanent posts
and the deemed date for regularization would be the date on which
the post has fallen vacant.
8. As such, with the above directions, both these petitions are
partly allowed. The declaration of ULP against the respondents shall
stand quashed and set aside. The direction to regularize the
services of the Respondents from a particular date shall stand
modified. The petitioners shall forward the proposals of these two
khs/OCT. 2017/6941-d
respondents alongwith similarly placed daily wagers / temporaries,
who may have or may not have approached a Court, within a period
of 8 (eight) weeks to the Principal Secretary, Department of Rural
Development and Water Conservation. The details as like their dates
of employment, nature of work done and their duration of service
would be mentioned in the proposal to enable the appropriate
authority to take a decision as regards their regularization within a
period of 4 (four) months after receiving the proposal.
9. Needless to state, Dipak Narayanrao, who is in employment
today, shall not be terminated merely on the ground that he is a daily
wager or temporary, save and except in the event of any disciplinary
proceedings.
10. Both these petitions are partly allowed and Rule is made partly
absolute in the above terms.
11. Pending civil application does not survive and stands disposed
of.
( Ravindra V.Ghuge, J.)
khs/OCT. 2017/6941-d
