Labour Law; Municipal Council Vs. Balakdas Sandhu Barekar [Bombay High Court, 22-07-2016]

Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 – Section 28 r/w. Items 6 and 9 of Schedule IV – Industrial Employment (Standing Orders) Act, 1946 – Model Standing Orders (MSO) – Clause 4C – Maharashtra Municipal Councils, Nagar Panchayats & Industrial Townships Act, 1965 – Section 76 – Badli or Temporary Employees – Regularization of Service – Completion of 240 days’ continuous service – Held, In absence of vacant sanctioned posts with the Municipal Council, a workman who has put in continuous service of 240 days or more in span of 12 months, can not invoke Clause 4C of the MSO to claim either permanency or regularization.

Model Standing Orders (MSO)


IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH

CORAM : B.P. DHARMADHIKARI & KUM. INDIRA JAIN, JJ.

DATE OF PRONOUNCEMENT : JULY 22, 2016.

WRIT PETITION NO. 5191 OF 2004 WITH WRIT PETITION NO. 5199 OF 2004 WITH WRIT PETITION NO. 5200 OF 2004 WITH WRIT PETITION NO. 5201 OF 2004 WITH WRIT PETITION NO. 5202 OF 2004 WITH WRIT PETITION NO. 5203 OF 2004 WITH WRIT PETITION NO. 5204 OF 2004 WITH WRIT PETITION NO. 5205 OF 2004 WITH WRIT PETITION NO. 5207 OF 2004 AND WRIT PETITION NO. 5520 OF 2004 WRIT PETITION NO. 5191 OF 2004

1. The Municipal Council, Tirora, through its Chief Officer. 2. The President, Municipal Council, Tirora, District – Gondia. … PETITIONERS Versus Tulsidas Baliram Bindhade, aged about 35 years, r/o Tirora, District – Gondia. … RESPONDENT WRIT PETITION NO. 5199 OF 2004 1. The Municipal Council, Tirora, through its Chief Officer. 2. The President, Municipal Council, Tirora, District – Gondia. … PETITIONERS Versus Vithoba Rajaram Bhandarkar, aged about 45 years, r/o Tirora, District – Gondia. … RESPONDENT WRIT PETITION NO. 5200 OF 2004 1. The Municipal Council, Tirora, through its Chief Officer. 2. The President, Municipal Council, Tirora, District – Gondia. … PETITIONERS Versus Ratan s/o Tulsiram Nagdeve, aged about 35 years, r/o Tirora, District – Gondia. … RESPONDENT WRIT PETITION NO. 5201 OF 2004 1. The Municipal Council, Tirora, through its Chief Officer. 2. The President, Municipal Council, Tirora, District – Gondia. … PETITIONERS Versus Kalu Mohammad Janmohammad … (Amended as per Courts Sheikh (through LR) order dated 02.06.2008.) 3 Shakilabee Kalu Mohd. Sheikh, r/o Killa Ward, Tirora, r/o Tirora, District – Gondia. … RESPONDENT WRIT PETITION NO. 5202 OF 2004 1. The Municipal Council, Tirora, through its Chief Officer. 2. The President, Municipal Council, Tirora, District – Gondia. … PETITIONERS Versus Vishwanath Pandurang Tumsare, aged about 44 years, r/o Tirora, District – Gondia. … RESPONDENT WRIT PETITION NO. 5203 OF 2004 1. The Municipal Council, Tirora, through its Chief Officer. 2. The President, Municipal Council, Tirora, District – Gondia. … PETITIONERS Versus Smt. Vithabai wd/o Bhiwa Nagrikar … (Amended as per Courts Sheikh (through LR) order dated 13.08.2008.) Shri Sadashio Bhiva Nagrikar, r/o Near Raut Photo Studio, r/o Tirora, District – Gondia. … RESPONDENT WRIT PETITION NO. 5204 OF 2004 1. The Municipal Council, Tirora, 4 through its Chief Officer. 2. The President, Municipal Council, Tirora, District – Gondia. … PETITIONERS Versus Balakdas s/o Sadhu Barekar, aged about 30 years, r/o Tirora, District – Gondia. … RESPONDENT WRIT PETITION NO. 5205 OF 2004 1. The Municipal Council, Tirora, through its Chief Officer. 2. The President, Municipal Council, Tirora, District – Gondia. … PETITIONERS Versus Smt. Sarojbai wd/o Sadashiv Chavan, aged about 50 years, r/o Tirora, District – Gondia. … RESPONDENT WRIT PETITION NO. 5207 OF 2004 1. The Municipal Council, Tirora, through its Chief Officer. 2. The President, Municipal Council, Tirora, District – Gondia. … PETITIONERS Versus Ashok Parasram Sansarede, aged about 29 years, r/o Tirora, District – Gondia. … RESPONDENT WRIT PETITION NO. 5520 OF 2004 1. The Municipal Council, Tirora, through its Chief Officer. 2. The President, Municipal Council, Tirora, District – Gondia. … PETITIONERS Versus Gopal Nanaji Bhimate … (Amended as per Courts (through LR) order dated 23.03.2009.) Tanuja Gopal Bhimate aged 25 years, r/o c/o Municipal Council, Gondia. … RESPONDENT Shri A. Parihar, Advocate for the petitioners. Shri M.P. Jaiswal with Shri B.M. Khan, Advocate for the respondents. …..

JUDGMENT

(PER B.P. DHARMADHIKARI, J.)

1. The Hon’ble The Chief Justice has in view of the following orders dated 22.01.2015 passed by the learned Single Judge in Writ Petition Nos. 5191/2004, 5199 to 5205/2004, 5207 & 5520 of 2004, referred to this Division Bench the following question :—

“1. An unfortunate situation has arisen in the present matters. Writ Petition No.1209 of 2002 along with connected matters in respect of Class-IV employees of Municipal Council, Tumsar, were allowed by a common judgment and order delivered by the learned Single Judge of this Court (Smt. Vasanti A. Naik, J.) on 20-8- 2011, and the common order passed by the Industrial Court directing regularization on the basis of Clause 4C of the Model Standing Orders under the Industrial Employment (Standing Orders) Act read with Item 6 of Schedule IV of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, has been quashed and set aside and the complaints have been dismissed. Same is the view taken by me in respect of Class-IV employees of the same Municipal Council in Writ Petition No.1207 of 2002 along with connected matters decided by common judgment and order dated 23-12-2013. In another set of Writ Petition No.3087 of 2001 along with connected matters decided by me by common judgment and order dated 17-6-2013, same view is followed. In Writ Petition No.3436 of 2001 in respect of the employees from the same Municipal Council, a different view is taken by the learned Single Judge of this Court (Shri Z.A. Haq, J.) in the judgment and order dated 22-11-2014, and the writ petition filed by Municipal Council, Tumsar, has been dismissed, confirming the judgment and order passed by the Industrial Court, directing regularization of the complainant in service, on the basis of Clause 4C of the Model Standing Orders. I do not find any distinction on facts in Writ Petition Nos.1209 of 2002, 1207 of 2002 and 3087 of 2001.

2. All these petitions arise out of the common order passed by the Industrial Court in the complaints under Section 28 read with Items 6 and 9 of Schedule IV of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 directing regularization of the complainants in service upon completion of 240 days’ continuous service as per Clause 4C of the Model Standing Orders under theIndustrial Employment (Standing Orders) Act, 1946. It is an undisputed fact that all the complainants were appointed and working as daily wagers for years together. They were neither working as badli or temporary employees. There is neither any pleading nor any evidence to prove that all of them were appointed and working on the posts, which are sanctioned, as required by Section 76 of the Maharashtra Municipal Councils, Nagar Panchayats & Industrial Townships Act, 1965. It is also not the case either of the complainants or the employer-Municipal Council that the proposal to create or sanction the posts of Class-IV employees to accommodate the complainants was forwarded to the Director of Municipal Administration under Section 76 of the said Act. Even if any such proposal is forwarded, no orders are passed to create or sanction the posts to accommodate the complainants as regular employees.

3. In the background of the aforesaid undisputed factual position, the Industrial Court has recorded the finding in all the matters that in terms of Clause 4C of the Model Standing Orders under the Industrial Employment (Standing Orders) Act, which are applicable to the employees working in the Municipal Council, the complainants have rendered 240 days’ continuous service and hence they are entitled to regularization.

4. The facts stated in para 2 and the findings recorded by the Industrial Court are similar in all these decisions. There cannot be different view in the similar facts and circumstances. In the decision given in Writ Petition No.3436 of 2001, delivered by Shri Z.A. Haq, J., I do not find any distinction on facts in Writ petition Nos.1209 of 2002, 1207 of 2002 and 3087 of 2001. The judicial discipline, therefore, requires all these matters to be placed before the Larger Bench to resolve the conflicting views and decide the following question of law so as to avoid a different view being taken in respect of Class-IV employees working in the same Municipal Council : Whether, in the absence of creation or sanction of the posts under Section 76 of the Maharashtra Municipal Councils, Nagar Panchayats & Industrial Townships Act, 1965, the complainants were entitled to claim permanency or regularization in service on the basis of Clause 4C of the Model Standing Orders under the Industrial Employment (Standing Orders) Act, 1946?

5. The matters be, therefore, placed before Hon’ble the Chief Justice for constitution of appropriate Bench in terms of Rule 7 of Chapter I of the Bombay High Court Appellate Side Rules, 1960 to decide the aforesaid question of law.”

2. We find that the controversy already answered by at least two Division Benches of this Court in 2006 & in 2008 in 2 LPAs and by at least two learned Single Judges S/Shri S. J. Vazifdar J. & B.P. Dharmadhikari J, after appreciating the binding precedents of the Hon’ble Apex Court. We have therefore rejected the request of Adv. M.P. Jaiswal to place the reference before Full Bench. Judgments of the Division Benches of this Court in LPA 37 of 2006 in case of