Writ Petition Nos. 443 and 565 of 2010. Case: 1. Mr. Ramesh Vitthal Patil and Ors., 2. Kalyan Dombivli Municipal Corporation and Anr. Vs 1. Kalyan Dombivli Municipal Corporation and Anr., 2. Shri Ramesh Vithal Patil and Ors., [Alongwith Writ Petition No. 901 of 2010]. High Court of Bombay (India)
| Case Number | Writ Petition Nos. 443 and 565 of 2010 |
| Counsel | For Appellant: Y.M. Pendse, Adv. and A.S. Rao, Adv. and For Respondents: A.S. Rao, Adv. and Y.M. Pendse, Adv. , For Intervenor - Municipal Karmachari Kamgar Sena: Gayatri Singh, Adv. |
| Judges | S.J. Vazifdar, J. |
| Issue | Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 - Sections 28, 28(1), 30, 30(1) and 32; Industrial Disputes Act - Sections 2 and 25F; Industrial Employment (Standing Orders) Act, 1946 - Sections 2, 2A, 2A(1), 2A(2), 13B, 15 and 15(2); Bombay Provincial Municipal Corporation Act, 1949 - Sections 40, 45... |
| Judgement Date | June 07, 2010 |
| Court | High Court of Bombay (India) |
Judgment:
S.J. Vazifdar, J.
1. The first two matters are cross Writ Petitions. The 25 petitioners in Writ Petition No. 443 of 2010 are the respondents in Writ Petition No. 565 of 2010. The petitioners in Writ Petition Nos. 565 of 2010 and 901 of 2010 viz. The Kalyan-Dombivali Municipal Corporation and its Commissioner respectively, are respondent Nos. 1 and 2 in Writ Petition No. 443 of 2010. I will for convenience refer to the petitioners in Writ Petition Nos. 443 of 2010 as the complainants and to respondent No.1 therein i.e. the petitioner in Writ Petition Nos. 565 of 2010 and 901 of 2010 as the Corporation.
The counsel agree that the decision in Writ Petition No. 901 of 2010 will follow the decision in the other Writ Petitions.
2. The petitioners in all the writ petitions have challenged the order passed by the learned Member of the Industrial Court, Thane in the complaint filed by the complainants under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The Corporation has challenged the order in so far as it allows the complaint filed by the workers granting them permanency and the benefits of permanency and all other consequential benefits arising therefrom. The complainants have challenged the said order in so far as the reliefs granted are only with effect from the date of the filing of the complaint.
The Complaint:
3. The complainants filed the complaint under Section 28 and 30 read with items 5, 6, 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. They sought a declaration that the Corporation had engaged in and was engaging in unfair labour practices as defined under the said provisions and an order directing them to cease and desist from doing so and to confer upon them the status of permanency and benefits and privileges thereof. As consequential reliefs they sought a declaration that they are the permanent employees of the Corporation and an order directing the Corporation not to discontinue their employment.
4. The complaint alleged that the complainants had been in the employment of the Corporation since 1997; that they had in response to an advertisement issued by the Corporation under the signature of the Commissioner applied for employment and that they were accordingly appointed pursuant to and in accordance with the advertisement. The complaint states that their service conditions are governed by various settlements under the provisions of the Industrial Disputes Act and the Model Standing Orders framed under the Industrial Employment (Standing Orders) Act, 1946 in its application to the State of Maharashtra. It is alleged that though the complainants are appointed on a temporary basis the nature of their work is permanent and perennial in nature and that they are entitled for permanency as the posts in which they are appointed are sanctioned posts. It is also averred that even assuming that the workmen are discharging the work which is of temporary nature they are entitled to permanency by virtue of Model Standing Order 4C. It is further alleged that the complainants had entered into a settlement with the union whereby an employee who is appointed on a temporary basis is entitled for permanency after completion of five years of employment. The complainants alleged that they had completed 240 days or more in any preceding 12 calendar months. The Corporation not having granted them permanency despite these facts is, according to them, guilty of unfair labour practices as alleged. The workers have averred that all the posts on which they have been appointed have been sanctioned by the state government. Therefore, according to them their engagement on a temporary basis itself indicates that they were intentionally kept as temporary with the sole intention of depriving them the benefits, privileges and status of permanent employees. For that reason too it is alleged that the Corporation had engaged in unfair labour practices under item 6 of schedule IV of the MRTU and PULP Act.
The Corporation's written statement:
5. The Corporation in its Written Statement denied all the averments and submissions in the complaint. The Corporation challenged the jurisdiction of the industrial court constituted under the MRTU & PULP Act. It is contended that the the Corporation is established by the Government of Maharashtra under the Bombay Provincial Municipal Corporation Act, 1949 (hereinafter referred to as the BPMC Act); that they had to carry on their affairs within the framework laid down under this Act and as per the orders, guidelines or directives issued by the Government of Maharashtra from time to time; that as per the provisions of the BPMC Act every corporation may make rules prescribing qualifications required for each post and the procedure for recruitment in respect thereof; that they had made draft rules and sent the same for approval to the State Government; that the State Government raised various queries and directed them to rectify the same and that the respondents withdrew those rules with an intention to resubmit fresh/modified rules. It is submitted that permanent appointments can be made only on the posts approved by the government; that they sent the establishment personnel schedule for sanction to the State Government on 30.5.1997 and the same was sanctioned on 9.12.1999. Thus the appointments of the said workmen were not based on the sanctioned establishment schedule and their appointments were made purely on temporary/ad hoc basis without following the due process as prescribed by the BPMC Act and the rules made thereunder as applicable to the Corporation. Moreover, it was submitted, that as per the report of the Jha Committee, personnel expenses of the Corporations are not to be more than 35% but that as of date this limit has been exceeded by the Corporations. It is submitted that as and when the Corporation finds that there is permanent increase in the work and/or posts are sanctioned by the government the same are filled up by recruitment and/or promotions as per the recruitment policy, reservation policy, roster, recruitment/selection procedure and merit-cum-seniority. The corporation then publishes an advertisement giving details of the vacancies to be filled up for permanent positions setting out therein the requirements as per the recruitment policy. Eligible candidates are accordingly appointed after following the entire procedure. In the case of the present workmen it is alleged that the procedure was not followed and that they were recruited and appointed only on a temporary and an ad-hoc basis. It is averred that under the provisions of the BPMC Act the Commissioner does not have power to appoint a person for a period exceeding six months. The Commissioner has to prepare an establishment schedule from time to time which has to be submitted to the standing committee and the Corporation for approval. The establishment schedule has thereafter to be sanctioned by the State Government. The appointments for the various posts are also required to be approved by the Corporation.
6. It appears that the respondents noticed various irregularities and illegalities in the matter of appointments to various posts. The government accordingly issued an order dated 1.1.1998 directing that the appointments made in violation of the provisions of the BPMC Act should not continue in excess of six months. The respondents accordingly scrutinized the appointments made.
According to the Corporation the employees have been working as ad-hoc Kamgars (workers) with the Corporation purely on a temporary basis. Their last appointments from 18.7.2006 to 17.1.2007 were again for the fixed period of six months on a temporary ad-hoc basis as Kamgars. The same was renewed from 20.1.2007 to 19.7.2007. In the year 1997, the Corporation gave a notice affixed on the notice board which did not mention the post of Kamgar or garden worker (Bag kamgar). One post in this notice was mentioned as the post of workman (helper-cum-gardener) at serial No. 35 with a specified pay scale. The notice did not mention the post of Kamgar. The notice mentioned the post of workman. It was therefore contended on behalf of the Corporation that the post was only for helper. A few of the workmen are stated to have been appointed as gardening workmen (Bagkam Kamgars) from 23.5.1997 purely on a temporary ad-hoc basis for the period of one month as stipulated in the appointment orders dated 23.5.1997. Thus the appointments of these particular workers have nothing to do with the said notice. Sixteen other complainants had been appointed since the beginning as Kamgars only i.e. to a post not mentioned in the said notice. It was contended therefore that the complainants had failed to show any connection between their appointments and the said notice. The appointments, therefore, it was further contended, were not in accordance with the statutory provisions/procedure.
7. The Corporation and the Complainants examined one witness each.
Complainant's witness:
On behalf of the Complainants, one Dinesh Dharya, a Complainant himself was examined by filing his affidavit in lieu of examination-in-chief dated...11.2008. He stated that the employees had applied for the post of workers in response to an advertisement published in a local newspaper on 28.5.1997. It is pertinent to note at this stage that the appointment of these workers was prior thereto on 23.5.1997. It was contended on behalf of the complainants that there were in fact advertisements even prior thereto. It is further stated by the witness that the workers had applied for the post in the manner prescribed by the advertisement and that the employment of each of the complainants was continued by passing various orders and giving a one day artificial break each time. He stated that as per the advertisements, the posts were sanctioned on 9.12.1999...
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