StateMr v. P. Golewar
Facts
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD909 WRIT PETITION NO. 5666 OF 2024THE COMMISSIONER LATUR MUNICIPAL CORPORATIONVERSUSPRITAM BALAJI KAMBLE AND ANOTHERANDWRIT PETITION NO. 5671 OF 2024THE COMMISSIONER LATUR MUNICIPAL CORPORATIONVERSUSSOHEL ANWAR SHAIKH AND ANOTHERANDWRIT PETITION NO. 5669 OF 2024THE COMMISSIONER LATUR MUNICIPAL CORPORATIONVERSUSRAMESHWAR DHONDIRAM JADHAV AND ANOTHERANDWRIT PETITION NO. 5670 OF 2024THE COMMISSIONER LATUR MUNICIPAL CORPORATIONVERSUSRAVI TATYARAO BHOSLE AND ANOTHERANDWRIT PETITION NO. 5667 OF 2024THE COMMISSIONER LATUR MUNICIPAL CORPORATIONVERSUSYUVRAJ MAHADEO DEVDE AND ANOTHER…..909.wp5666.24.odt1 of 16 ANDWRIT PETITION NO. 5706 OF 2024THE COMMISSIONER LATUR MUNICIPAL CORPORATIONVERSUSKRUSHNA SATISHRAO DIVE AND ANOTHER…..ANDWRIT PETITION NO. 5707 OF 2024THE COMMISSIONER LATUR MUNICIPAL CORPORATIONVERSUSMAHEBOOB ABDUL SHAIKH AND ANOTHER…..ANDWRIT PETITION NO. 5708 OF 2024THE COMMISSIONER LATUR MUNICIPAL CORPORATIONVERSUSSANDIP HARIBHAU RANKHAMB AND ANOTHER…..ANDWRIT PETITION NO. 5710 OF 2024THE COMMISSIONER LATUR MUNICIPAL CORPORATIONVERSUSSATISH YUVRAJ KHATAL AND ANOTHER…..ANDWRIT PETITION NO. 5711 OF 2024THE COMMISSIONER LATUR MUNICIPAL CORPORATIONVERSUSMOHASIN HAKKANI SHAIKH AND ANOTHER…..909.wp5666.24.odt2 of 16
Legal Reasoning
the complainants are seeking the regularization of their services on theground that they have completed 240 days of service. In this regardreference can be made to the judgment of Division Bench of this Court incase of Municipal Council, Tirora and Ors. Vs. Tulsidas Baliram Bindhadeand Ors., MANU/MH/1256/2016, wherein in paragraph Nos.19, 20 and 21has held as under:“19. In this reference, the position emerging before us issimilar. There is no conflict between the provisions of M.S.O. 4-C and the provisions of the S. 76 of the 1965 Act. In the eventof the appointment having been made validly, it may bepossible to invoke the provisions Cl. 4-C of M.S.O. A view to thecontrary would result in regularizing/validating a void act. Cl. 4-C neither permits nor contemplates the same. As held in theabove judgments, if the appointment is not made in accordancewith the constitutional scheme, it is void ab-initio and,therefore, there can be no claim to its regularization or forgrant of permanency in any manner. This is all the more so asCl. 32 of the M.S.O. clarifies that the Standing Orders are notto operate in derogation of any other law i.e. S. 76 of 1965 Act.Definitely any interpretation of Clause 4C conducive todefeating the Constitutional mandate is unwarranted. Violationof Clause 4C of the MSO may tantamount to an unfair labourpractice under item 9 of Sch. IV of the 1971 Act but unless &until, other additional factors are proved on record, finding ofindulgence in an unfair labour practice under item 6 of Sch. IVthereof can not be reached. As explained by the Hon. ApexCourt in case of Maharashtra SRTC v. Casteribe Rajya ParivahanKarmchari Sanghatana, (supra), existence of a legal vacancymust be established & as discussed above, the power to recruitwith the employer must also be demonstrated. In absencethereof, workman can not succeed in proving the commission ofunfair labour practice under item 6 by the employer. These twoingredients, therefore, also must be established when benefit ofCl. 4-C is being claimed. Unless availability of a vacancy isshown or then power with the employer to create the post andto fill it is brought on record, mere continuation of 240 dayscan not and does not enable the workman to claim permanency909.wp5666.24.odt12 of 16 by taking recourse to Cl. 4C read with item 9 of Sch. IV of 1971Act. Clause 4C does not employ word "regularisation" but thenit is implicit in it as no "permanency" is possible without it.Conversely, it follows that when a statutory provision like S. 76disables the employer either from creating or filling in theposts, such a claim can not be sustained. This also nullifies thereliance upon the judgment of learned Single Judge in case ofMaharashtra Lok Kamgar Sanghatana v. Ballarpur IndustriesLimited (supra) where the employer was a private Company notsubjected to such regulatory measures by any Statute andenjoyed full freedom to create the posts and to recruit. One ofus (B.P. Dharmadhikari, J.) is party to the judgment of thisCourt in Raymond UCO Denim Private Ltd. v. Praful Warade &Ors. (supra) which again needs to be distinguished for thesame reasons. The judgment of learned Single Judge in case ofIndian Tobacco Company Ltd. v. The Industrial Court and Ors.(supra), judgment of Hon'ble Apex Court affirming it or thenjudgment of Hon'ble Apex Court reported at Western IndiaMatch Company Ltd. and Workmen are all considered therein &are distinguishable as the same do not pertain to the provinceof public employment or consider inherent Constitutionalrestraints (the suprema lex – see Mahendra L. Jain v. IndoreDevelopment Authority and others (supra) and Cl. 32 of theMSO. For same reasons, law laid down by the Full Benchjudgment of this Court in MANU/MH/0888/2006 : 2007 (1) CLR460 : 2007 (1) Mah. L.J. 754- Gangadhar Balgopal Nair v.Voltas Limited & Anr. does not advance the cause of workmen.The Division Bench of this Court in May & Baker Ltd. v. KishoreJaikishandas Icchaporia (supra) while construing Section 10-A(3) held that the expression "other law" would not refer to themodel standing orders or the certified standing orders sincethey are laws made under the provisions of parent act itselfand not under any other law. The Model Standing Orders andCertified Standing Orders, held the Division Bench, "are laws nodoubt but they are laws made under the provisions of the Act".They were held not to be provisions under any other law. Thisdiscussion therefore shows how these words "in derogation ofany law for the time being in force" in Cl. 32 of MSO need to beunderstood & does not help Adv. Jaiswal or Adv. Khan.20. In Vice-chancellor, Lucknow University v. Akhilesh KumarKhare & Anr. (supra) relied upon by Adv. Parihar, Hon. ApexCourt follows its Constitution Bench in Umadevi (III) and whilerejecting relief of regularization to the daily wagers who were909.wp5666.24.odt13 of 16 engaged in public employment without proper procedure,grants them compensation of Rs. 4 Lakh each by way ofcompassion. This judgment does not consider any welfarelabour legislation and, therefore, can not provide direct answerto the reference made. Judgment of this Court taking similarview in the light of 1971 Act in the case of Punjabrao KrishiVidyapeeth, Akola v. General Secretary, Krishi VidyapeethKamgar Union & Anr. (supra) is already considered above. TheDivision Bench of this Court in State of Maharashtra and Anr. v.Pandurang Sitaram Jadhav (supra) finds that therespondents before it were employed as daily wagers in theestablishment of the government milk dairy for a longer periodof 12 to 20 years. There were no sanctioned posts andvacancies in existence in the concerned department.Respondents failed to demonstrate that their appointmentswere made in accordance with the procedure prescribed forselection. The Division Bench finds it wholly unjust to direct theappellant State Government to grant permanency to therespondents. It points out that the provisions of Model StandingOrders are subject to the Rules regulating selection andappointment so also subject to the constitutional scheme ofpublic employment. Respondents - Daily wagers are declared topossess no legal right to claim permanency. Order passed bythe learned Single Judge to the contrary have been quashed.State Government is held obliged to make appointments inadherence to the constitutional scheme of Public employment.Respondents -Daily Wagers appointed without following theprescribed procedure for selection by passing publicparticipation did not acquire any legal right to claimpermanency. It is apparent that no inconsistency exists andcannot be worked out in State of Maharashtra & Anr. v.Pandurang Sitaram Jadhav as also Pune Municipal Corporationv. Dhananjay Prabhakar Gokhale (supra) on one hand andBallarpur Industries Limited v. Maharashtra Lok KamgarSanghatana (supra) on the other hand. Status of employer,nature of employment and inherent Constitutional limitation onpublic employer or absence of such fetters on any privateemployer or absolute freedom available to it to create post/sand recruit, are some of the distinguishing features whichprohibit this exercise. 21. Thus, in the light of this discussion, it follows that inabsence of vacant sanctioned posts with the Municipal Council,909.wp5666.24.odt14 of 16 a workman who has put in continuous service of 240 days ormore in span of 12 months, can not invoke Clause 4C of theMSO to claim either permanency or regularization.”16.With regard to the challenge to order passed below Exhibit U-12, record indicate that, in reply to this application, Corporation hadcome out with a specific case before the Industrial Court that there are50 posts vacant and out of which 30 posts are contemplated to be filledin by way of the recruitment process undertaken. In the light of the saidfact the Industrial Court passed order directing the Corporation not to fillup the posts held by the complainants. Though this court finds primafacie substance in the case sought to be made out by Corporation,however, for the time being as per statement made before the Tribunalno process of filling all vacant posts is undertaken by the Corporation. Insuch circumstances, by permitting the Corporation to go ahead withcurrent recruitment process, Industrial Tribunal can be directed to decidethe complaint expeditiously. No prejudice, therefore would be caused tothe Corporation if order passed below Exhibit U-12 is continued for theperiod till decision of complaint, as even if any advertisement ispublished, the time would certainly require for the completion of process.Thus, the Corporation is permitted to continue and complete presentrecruitment process, which shall be subject to outcome of complaint. 17.Having regard to the above situation, the Industrial Court is909.wp5666.24.odt15 of 16 directed to decide the complaint within a period of six months fromtoday. All these observations are prima facie and the Industrial Courtshall not be bound while deciding the complaint on merit.18.In view of the above, all petitions stand disposed of in aboveterms.19.At this stage learned counsel for the complainants seekscontinuation of order dated 08/06/2023 passed in Writ Petition No.6072/2023 for a period of six weeks. Learned counsel for the Corporationopposed the said request. 20.Since the order dated from 08/06/2023 is in force for morethan 1 ½ years, to enable the complainants to approach the Hon’bleSupreme Court, the said order is continued for a period of four weeksfrom today. (R. M. JOSHI, J.)ssp909.wp5666.24.odt16 of 16
Arguments
ANDWRIT PETITION NO. 5712 OF 2024THE COMMISSIONER LATUR MUNICIPAL CORPORATIONVERSUSRADHAKRISHNA RAMAKANT KASLE AND ANOTHER…..ANDWRIT PETITION NO. 5713 OF 2024THE COMMISSIONER LATUR MUNICIPAL CORPORATIONVERSUSANIKET VISHWANATH YEROLKAR AND ANOTHER…..Mr. S. P. Urgunde, Advocate for the petitioner Mr. B. A. Shinde, AGP for the respondent/StateMr. A. N. Irpatgire, Advocate for respondentANDWRIT PETITION NO. 6072 OF 2023RADHAKISHAN RAMAKANT KASLE AND OTHERSVERSUSTHE STATE OF MAHARASHTRA THROUGH THE SECRETARY AND ANOTHERMr. A. N. Irpatgire, Advocate for the petitioners Mr. B. A. Shinde, AGP for the respondent/StateMr. S. P. Urgunde, Advocate for respondent No.2ANDWRIT PETITION NO. 5668 OF 2024THE COMMISSIONER LATUR MUNICIPAL CORPORATION LATURVERSUSTHE STATE OF MAHARASHTRA THROUGH ITS SECRETARY AND OTHERSMr. S. P. Urgunde, Advocate for the petitioner 909.wp5666.24.odt3 of 16 Mr. B. A. Shinde, AGP for the respondent/StateMr. V. P. Golewar, Advocate for respondent Nos. 2 to 5, 7 to 9. CORAM: R. M. JOSHI, J.DATE: 11th MARCH, 2025PER COURT :-1.Writ Petition Nos. 5668/2024, 5666/2024, 5667/2024,5669/2024, 5670/2024, 5671/2024, 5706/2024, 5707/2024,5708/2024, 5710/2024, 5711/2024, 5712/2024 and 5713/2024 are filedby Latur Municipal Corporation, Latur challenging order passed belowExhibit U-12 in Complaint (ULP) No. 139/2023 and Exhibit U-19 in43/2023, dated 03/02/2024 and 19/01/2024 respectively, whereby theCorporation is prohibited from filling up the vacancies under theprocedure of recruitment to the extent of posts held by complainants.2.Whereas Writ Petition No. 6072 of 2024 takes exception tothe order passed by the Industrial Court rejecting application Exhibit U-2in Complaint (ULP) No. 43/2023, dated 28/04/2023, which was filed forseeking protection of the services of the complainants during thependency of the complaint.3.Parties are referred to as ‘Corporation’ and ‘complainants’ forthe sake convenience. 4.It is the case of the complainants before the Industrial Court909.wp5666.24.odt4 of 16 that they have been appointed as Firemen and Drivers in the fire fightingand emergencies services department of Corporation. They claimed tohave been entered into the service on 27/11/2018 through contractor,however, after the period of 11 months they are continued in the serviceof respondent No.2 and they are discharging the permanent nature ofwork. It is further their case that considering the services rendered bythem the General Body of respondent-Corporation in meeting held on02/03/2022 passed resolution deciding to absorb the petitioners in theservices of the Corporation with approval of respondent No.1-State. Onthe basis of this resolution and by contending that the complainants havecompleted 240 days of continuous service and they claim regularizationin the service. In view of these averments complaint came to be filedseeking relief of regularization in service and during the pendency of thecomplaint Exhibit U-2 was filed for seeking protection of their services.5.In response, it is the case of the Corporation that thecomplainants are not employed by regular through procedure adoptedfor the recruitment. It is also contended that the complainants arecontract employees and hence not entitled for grant of relief ofregularization as well as protection from the termination of service wassought to be canvassed before the Industrial Court.6.Record indicates that the Industrial Court initial granted ad-909.wp5666.24.odt5 of 16 interim order vide Exhibit U-2 restraining the Corporation fromterminating the services of the complainants till next date of hearing.This order was continued till decision of Exhibit U-2. Though applicationExhibit U-2 came to be dismissed by order dated 28/04/2023, the ad-interim order granted on 06/04/2023 was continued for a period of sixweeks and thereafter the same is continued till date by the order passedby this Court.7.Learned counsel for the complainants submit that thecomplainants are entitled for the regularization on the basis of theresolution passed by the geneal body of the Corporation. They drewattention of the Court to the provisions of the Municipal Corporation Act,more particularly Section 53(2) of the Act which according to themempowers the General Body to recruit / regularize the services of theemployees. It is their further submission that there is no challenge to theresolution by Corporation or any party till date under the provisions ofSection 451 of the Act. According to them the complainants were thoughinitially appointed on contract basis, as per the evidence placed onrecord by the Corporation itself, the said contract was only for a period of11 months and thereafter the complainants are performing the regularduties with the Corporation. To support said submission reliance is placedon the judgment of the Hon’ble Supreme Court in case of Jaggo Versus909.wp5666.24.odt6 of 16 Union of India and Ors. in SLP (C) No. 5580 of 2024. It is theircontention that the Hon’ble Supreme Court after taking intoconsideration the judgment of Secretary, State of Karnataka Vs. UmaDevi, (2006) 4 SCC 1 has held that the said judgment cannot be appliedin all cases and that the Court is required to take into consideration thefactum of long service rendered by the workman and the situation inwhich the services has sought to be terminated.8.Learned counsel for the Corporation opposed the saidcontention by submitting that the contract employment is not permissibleto be continued and except for the due process being undergone by theemployees, they are not entitled to claim regular service. It is hissubmission that the appointment which is not following due procedure ofrecruitment cannot be confirmed by passing resolution, which is a backdoor entry. He on instructions submits that the resolution passed byGeneral Body has already been challenged under the provisions ofMunicipal Corporation Act. 9.As far as the challenge the order passed below Exhibit 12 bythe Industrial Court is concerned, it is the submission of the learnedcounsel for the Corporation that there cannot be any prohibition for theemployment of any employee after following due procedure of law. It ishis submission that the complainants have no right of permanency and909.wp5666.24.odt7 of 16 has observed by the Industrial court while passing order below Exhibit U-2 that there is no material on record placed by the complainants toindicate that they are employed by following regular process ofrecruitment. In this regard reference is made to the observations madeby the Industrial Court in paragraph Nos.11 and 12 of the order passedbelow Exhibit U-2. According to him, in public employment, back doorentry is not permitted as held in case of Secretary, State of KarnatakaVs. Uma Devi (supra). It is his submission that in spite of theseobservations being made in Exhibit U-2, solely relying upon the interimrelief granted by this Court in Writ Petition No. 6072/2023 on08/06/2023, order impugned came to be passed vide Exhibit 12 which isnot sustainable in law.10.This contention is vehemently opposed by the learnedcounsel for the complainants by contending that before the IndustrialCourt specific say was filed by the Corporation stating that they are 50vacant posts of out which only 30 sought to be filled in. It is theircontention that in such circumstances no fault could be found with theorder passed by Industrial Court vide Exhibit U-2. In respect of challengeto the order passed below Exhibit 12 it is argued that since the complaintfor regularization is pending, it would not be in the interest of justice thatposts held by the complainants are allow to be filled in. This according909.wp5666.24.odt8 of 16 to them, would lead to deny permanency to the complaints.11.As far as the order passed below Exhibit U-2 by the IndustrialCourt is concerned, perusal of the same clearly indicates that the Courthas taken into consideration the averments made in the complaint soalso the prima facie evidence placed on record before it. In the light ofthe averments and record before it, except for the resolution dated02/03/2022 passed by the geneal body confirming permanency of theemployees working in the Water Supply Department, there was no othermaterial placed on record to show that the complainants herein areemployed by following due procedure. This resolution otherwise is said tohave been challenged under the Act. In any case this Court finds primafacie substance in the arguments of Corporation that the initialemployment by not following procedure of recruitment would be ratifiedby passing of resolution. Prima facie the finding of the facts recorded bythe Industrial Court in the light of the material placed before this Courtcannot be faulted with.12.In so far as the judgment of the Hon’ble Supreme Court incase of Jaggo Versus Union of India and Ors (supra) relied upon by thelearned counsel for the complainants is concerned, in the said case theemployee is concerned, were directly engaged by the department on parttime/ ad-hoc basis. These employees had more than 10 years909.wp5666.24.odt9 of 16 continuously. The services of employees were terminated by thedepartment, and after termination of the services of the employees thework done by them was sought to be undertaken by outsourcing. TheHon’ble Supreme Court therefore has held that such practice is notpermissible. Even otherwise it is observed therein that there was adiscrimination done between similarly placed employees i.e. employeesfrom the same category that even those employees who had a shortservice duration than then terminated employees were made permanent.In the light of this fact, the Hon’ble Supreme Court has held that saidpractice is not justifiable to a Government department. As against this inthe instant case, though it is sought to be contended that the JuniorEngineers in Water Supply Department are made permanent on the basisof resolution passed by the General Body, there is nothing on record toindicate that as to the nature of engagement of their services by theCorporation. As far as present complainants are concerned, undisputedlythey were employed through a contractor. Moreover, this is not the casethat their services are being utilized for years together. In consideredview of this Court the judgment of Hon’ble Supreme Court in case ofJaggo Versus Union of India and Ors (supra) would not come to their aid.13.In the light of these facts, there is no fault can be found withthe order passed below Exhibit U-2 by the Industrial Court. As a result of909.wp5666.24.odt10 of 16 which, the writ petition filed by the complainants stands dismissed.14.There cannot be any two opinions with regard to theproposition laid down by the Hon’ble Supreme Court in case of Secretary,State of Karnataka Vs. Uma Devi (supra) which was aimed that curtailingthe practice of back door entries and to ensuring the appointments byfollowing constitutional principles in the Government employment andinstrumentalities of the Government. As far as present case is concerned,it is admitted fact that the complainants herein appointed through acontractor. Though it is sought to be contended that now that after theexpiry of period of 11 months they are performing regular work, there isprima facie nothing on record to show that they were so employed byfollowing process of law. In this regard a communication is relied by thelearned counsel for the complainants dated 14/01/2019. Thiscommunication is addressed to the Superintendent of Police for seekingthe character certificate of complainants. It is necessary to take notethat irrespective of whether the person is employed by direct recruitmentor through contractor, the character certificate is essential as theemployees are required to perform public duty. This isolated documenttherefore does not prima facie show that the complainants are recruitedby following regular process in order to accept their claim.15.The complaint filed before the Industrial Court indicates that909.wp5666.24.odt11 of 16