Sangli Miraj Kupwad Cities Municipal Corporation, Sangli v. Mahapalika Kamgar Sabha

June 29, 2012 DATE OF PRONOUNCING THE JUDGMENT: July 23, 2012. JUDGMENT: Heard finally by consent of the parties at admission stage. 2 The Petitioner is a Local Body/Authority/Corporation and it's 2 wp-4647-11.sxw challenge is to the Award dated 28 February 2011 passed by the learned Member, Industrial Tribunal, Sangli, thereby allowed the Reference in respect of Demand Nos. 8 and 11 raised by the Respondent/Mahapalika Kamgar Sabha (Sabha) and partly allowed the Demand No.8. 3 On 9 February 1998, the Petitioner is constituted by the Government of Maharashtra as a Municipal Corporation for the Cities of Sangli, Miraj and Kupwad. 4 Prior to the constitution of Petitioner Miraj Municipal Council was functioning as a Municipal Council for the City of Miraj under Maharashtra Municipal Councils, Nagar Panchayat and Industrial Townships Act, 1965 (“The M. Council Act”). After 9/2/1998, petitioner governed and functions under the provisions of Bombay Provincial Municipal Corporations Act, 1949 (for short, “BPMC Act”). 5 On 17.10.1996, Miraj Kamgar Union claimed to be a recognized union of the employees had raised certain demands against the then existed Miraj Municipal Council (The Municipal Council). When the same were not accepted and the conciliation officer, made a failure 3 wp-4647-11.sxw report on 8 December, 1995. The Government of Maharashtra, by its order dated 17 October, 1996, in exercise of powers under sections 10(1)(d) and 12(5) of Industrial Disputes Act, 1947 (I.D. Act) referred the dispute to the Industrial Tribunal, Kolhapur for adjudication. It was registered as Reference (IT) 16 of 1991 and subsequently it was transferred to the Tribunal at Sangli and re-numbered as Reference (IT) 6 of 1996. 6 On 17.06.1997 the Miraj Kamgar Union filed a statement of claim in the Industrial Tribunal. The Petitioner filed an application raising preliminary objections to the maintainability of the said reference. The same was rejected on 20 September 2004 as it was on the verge of final decision and kept certain points open. On

21.07.2005, the Petitioner challenged the order of 4.4.2005 on the ground that the scope of Reference was enlarged. Writ Petition was also dismissed by the High Court. On 17.07.2006, the Respondent filed an amendment application. The same was opposed. By order dated 15.01.2007, the amendment application was allowed. The challenge to the same order was also dismissed by the High Court. The parties led evidence in support of their case. 4 wp-4647-11.sxw 7 By the impugned judgment and award 28 February 2011, the Respondent's complaint has been partly allowed. The operative of the Award is as under : “1)The Reference is answered partly in the affirmative. 2) It is hereby declared that the demand no. 4 and 7 are unjustified, the demand no.8 & 11 raised by the second party are justified and demand no.9 is partly justified. 3) The first party is hereby directed to make the employees involved in the demand no.8 excluding 10 in numbers viz.

4) Nandkishor Narayan Kambale, 13) Dnyaneshwar Topanna Kambale, 25) Suresh Bhupal Gade, 30) Sambhaji S. Salgar, 35)Prakash Gundu Athane, 27) Yasin Mahamad Hanif Momin, 36) Balasaheb Rajaram Lavand, 39) Akash Vasant Tavade, 40) Anant Kashiram Jagtap 41) Shabbir Malik Chabukswar permanent in service after one year from the date of their initial appointment and to pay the monetary benefits of 5 wp-4647-11.sxw permanency such as wages, allowances, leaves and difference of wages excluding uniform in 2 installments. The names of the employees involved in demand no.8 are attached with this Award. 4) The first party is further directed to consider the date of permanency of 106 employees involved in the demand no.9 after completion of one year from the date of their initial appointment and considered the same only for the purpose of pension and not otherwise. The names of the employee involved in this demand are attached with this Award.

5) The party no.1 is also directed to pay 5% amount to the second party towards union fund from monetary benefits payable to the employees in 2 installments. 6) 7) Award be sent to the State Government for publication. Parties to bear their own costs.” 8 It is relevant to note that the Petitioner being “Local Authority” and “State” within the meaning of Article 12 of the Constitution of India. It governs by BPMC Act and related rules, circulars etc. Article 309 gives the power to the Government to frame rules for the purpose of laying down the service conditions and recruitment, 6 wp-4647-11.sxw though initially Bombay Civil Services Rules (for short, “BCSR”) were applicable, now substituted by the Maharashtra Civil Services Rules (for short, “MCS Rules”). Therefore, the governing service terms and conditions and related aspects have a foundation of MCS Rules. The Tribunal, admittedly, has not given any clear finding that the Petitioner is an Industrial establishment as contemplated under the Industrial Employment (Standing Orders) Act 1946, (for short, “IESO Act”) and completely overlooked it's governing statute and rules and circular.

9 Sections 51 to 54 of the BPMC Act govern the power of Municipal Authorities to appoint employees/servants. As per Section 40 or 45 read with Section 52, no permanent officer or servant can be appointed unless covered by Section 1(5) of the BPMC Act, read with Chapter IV, which regulates and governs appointment and conditions of service. This being the position. Any appointment and/or employment by the Local Authorities like the Petitioner needs to be within the purview of Article 14 and 16 of the Constitution of India. Any appointment and/or contract and in breach of the statutory provisions and the rules and regulations are always tested on the anvil of above Articles. However, the fact of their appointment, a long 7 wp-4647-11.sxw standing service though subject to the particular project and/or scheme and the fact that such worker and requirement is continuing one, though there is no vacancy, the benefits which are available to such employees, except the claim of permanency, just cannot be overlooked.

The impugned order referring to this situation based upon the factual material placed on record by the rival parties need to be considered in the background of dispute between the parties since long. The Petitioner cannot, now, raise and/or permitted to raise its own default of not getting the employment through the prescribed procedure, but having got such employment and/or service for long period on the sole ground, cannot be deprived its rights which are otherwise available but subject to statute and the settled law. 10 It is clear even from Secretary, State of Karnataka v. Umadevi,1 and Maharashtra SRTC v. Casteribe Rajya Parivahan Karmachari Sanghatana,2 that the Apex Court (Umadevi) does not prevent the Industrial and Labour Court to exercise their statutory power under Section 30 read with Section 32 of the MRTU & PULP Act to order permanency of the workers, if case is made out, but where the post on 1 2006 II CLR 261 SC 2 2009 III CLR 262 SC 8 wp-4647-11.sxw which they have been working exists.

Importantly, the requirement of existence of vacant valid sanctioned post just cannot be overlooked while granting order of permanency. The continuity of service cannot be equated with the grant of permanency if there is no vacancy. The Supreme Court in Gangadhar Pillai Vs. Siemens Ltd. 3 considering the aspect of the regularization of the employee who had completed 240 days' continuous service referring to Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short, “MRTU and PULP Act, 1971”) and Section 25-F of the ID Act held that the reinstatement would only mean that the workman gets back the same status prior to termination of the services. He does not entitle to regularization and/or permanent status. The Apex Court accordingly, even distinguished the Chief Conservator of Forests Vs. Jagannath Maruti Kondhare.4 11 It is also relevant to note that the local bodies like the Petitioner/Municipal Corporation, admittedly govern and run by the statutory provisions and rules and regulations and service conditions so fixed and announced by the State Government through its Authorities under the Act.

All necessary formalities required to be ORDER a) The order of Member, Industrial Tribunal, Sangli dated 28 February 2011, to the extent of granting 17 wp-4647-11.sxw permanency is set aside. However, it is to be read as right to claim permanency on receiving sanction and/or approval from the Director of Municipal Administration and/or the State Government if the posts are vacant and/or there is a vacancy and/or the posts are created. b) Clause 5 of the operative part, directions to pay 5% amount towards the Union Fund from monetary benefits payable to employees, is also quashed and set aside being consequential part of grant of permanency and monetary benefits of permanency. c) The Writ Petition is accordingly disposed of. No costs.

(ANOOP V. MOHTA, J.)