w w w . L a w y e r S e r v i c e s . i n



Ayubkhan Dildarkhan Pathan & Others v/s State of Maharashtra Through its Secretary Urban Development Department, Mantralaya & Others

    Writ Petition Nos. 5355, 5354, 5356, 7567 & 7573 of 2019

    Decided On, 27 January 2022

    At, In the High Court of Bombay at Nagpur

    By, THE HONOURABLE MR. JUSTICE A.S. CHANDURKAR & THE HONOURABLE MRS. JUSTICE M.S. JAWALKAR

    For the Petitioners: A.M. Ghare, R.R. Dawda, Advocates. For the Respondents: R1 & R2, Kalyani R. Deshpande, AGP, R3, Aditya Satpute, Advocate.



Judgment Text

Common Judgment: (A.S. Chandurkar, J.)

1. Rule. Rule made returnable forthwith. Heard the learned counsel for the parties.

2. Since similar challenges have been raised in these writ petitions they are being decided together by this common judgment.

3. The petitioners who are about sixty employees of Municipal Council, Mul have approached this Court challenging the order dated 12.12.2008 that has been issued by the Director of Municipal Administration whereby while regularizing services of eighteen petitioners with the Municipal Council, Mul certain conditions have been imposed in the matter of continuity of service, seniority, pay fixation and other service benefits. A challenge is also raised to the subsequent order dated 03.05.2011 issued by the said authority imposing similar conditions on the remaining forty-two petitioners.

4. Facts in brief are that the petitioners were engaged as Junior Clerks, Peons and Labourers with Municipal Council, Mul. Their initial engagement was on daily wages. Since they were discharging duties continuously for a long period, they sought their absorption on the rolls of the Municipal Council. As their services were not regularised, the petitioners filed various complaints under Section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971(for short the “Act of 1971”) before the Industrial Court, Nagpur. By its common judgment dated 29.11.1991, the Industrial Court allowed all the complaints by observing that:

“The Complaints (ULPN) Nos. 133, 291 to 293, 608 and 653 all of 1990 are allowed. It is declared that the respondent has engaged in unfair labour practice as envisaged in Items 6 and 9 of Schedule IV of the Act.

The respondent is directed to cease and desist from practicing the said unfair labour practice. The respondent is further directed to regularise the services of the complainants from the date they completed 240 days of their service, from the date of their appointment.”

5. The Municipal Council challenged the aforesaid judgment of the Industrial Court in Writ Petition No. 391/1992. This writ petition, however, came to be dismissed for want of prosecution on 04.04.2005. The said proceedings were not restored as a result of which the order passed by the Industrial Court attained finality. Thereafter, the petitioners sought implementation of the aforesaid decision of the Industrial Court. On 20.10.2008, the Urban Development Department through its Secretary issued a communication to the Director of Municipal Administration calling upon said authority to take appropriate steps in that matter of regularizing the services of the said employees. Pursuant thereto on 12.12.2008, the Director of Municipal Administration issued an order regularizing the services of eighteen employees named therein subject to conditions. The conditions imposed were that the services rendered on vacant post would be taken into consideration for the purpose of pensionary benefits from the date of such absorption. However, the concerned employees were held not entitled to any service benefits in the form of continuity, seniority, promotion and increments for a period of five years. Such note was directed to be taken in their service books. Another condition imposed was that for a period of five years from the date of absorption, the said employees would not be entitled to any dearness allowance. However, it was for the Municipal Council to make such payment of dearness allowance through its funds. For the remaining forty-two employees a similar order was issued on 03.05.2011 imposing identical conditions.

The petitioners thus made various representations protesting against the conditions imposed while regularizing there services. The Chief Officer of the Municipal Council issued a communication to the Urban Development Department on 28.02.2017 for withdrawal of the said conditions but such a request was turned down on 13.09.2017. The State Government then on 16.02.2018 sought information from Director of Town Planning as to the financial implication that would arise as a result of withdrawal of the conditions imposed while regularising the services of said employees. In response, it was stated that if the aforesaid conditions were withdrawn a financial burden of about Rs.1,36,38,265/- would arise. Since the aforesaid conditions were not withdrawn, the petitioners have approached this Court.

6. Shri A.M. Ghare and Shri R.R. Dawda, learned Counsel for the petitioners submit that the Director of Municipal Administration had no authority in law to deprive the petitioners of the benefits that flowed from the judgment of the Industrial Court. In the complaints filed by the petitioners, the Industrial Court had held that the Model Standing Orders framed under the Industrial Employment (Standing Orders) Rules, 1959 were applicable. It is found that each petitioner was placed on daily wages with a view to deprive him of the benefits of permanency of service. The Industrial Court directed regularization of their services from the date when each petitioner completed 240 days of service. This adjudication having attained finality, it was not open for the Regional Director to have imposed various conditions which resulted in depriving the petitioners of the fruits of such adjudication. Such conditions could not have been imposed by having a resort in the provisions of Section 76(2) and Section 337 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (for short the “Act of 1965”). The conditions as imposed resulted in depriving the petitioners the benefit of service of five years as regards continuity, seniority, promotion and increment. The conditions imposed were penal in nature and were thus beyond the jurisdiction of the Regional Director. It was thus submitted that after setting aside the aforesaid conditions, the petitioners be granted full benefits of adjudication by the Industrial Court that had attained finality.

7. Ms. Kalyani R. Deshpande, learned Assistant Government Pleader for respondent nos. 1 and 2 relied upon the affidavit filed on behalf of respondent no. 2 and supported the imposition of such conditions. It was submitted that since the entry of each petitioner in service was a backdoor entry and without following the due process of selection, the Director of Municipal Administration was justified in imposing such conditions. The said conditions were imposed with a view to discourage such appointments being made by the Municipal Council. It was further submitted that if the aforesaid conditions were withdrawn the same would result in financial burden on the State Exchequer. It was thus submitted that the Director of Municipal Administration was justified in imposing the impugned conditions.

Ms. Kirti Satpute, learned Counsel for respondent no. 3 submits that the General Body of the Municipal Council had passed a Resolution of dated 23.02.2016 recommending the withdrawal of the aforesaid conditions. The proposal in that regard was sent to the State Government. The Director of Municipal Administration was the competent authority to take appropriate decision in the matter.

8. We have heard the learned Counsel for the parties and we have given due consideration to the respective submissions. It is an undisputed fact that each petitioner or his/her predecessors who were engaged on daily wages by the Municipal Council had approached the Industrial Court by filing various complaints under Section 28 of the Act of 1971. After due contest the Industrial Court had allowed each complaint and declared that by not regularizing the services of each petitioner, the Municipal Council had engaged in an unfair labour practice. Consequently, the Municipal Council was directed to regularize the services of the complainants from the date they completed 240 days of service from their date of appointment. It is also not in dispute that Writ Petition No. 391/1992 preferred by the Municipal Council challenging aforesaid judgment was dismissed for want of prosecution on 04.04.2005. Thus in effect, the order passed by the Industrial Court directing the services of the petitioners to be regularized has attained finality.

9. Since the petitioners claim entitlement to their rights in view of the judgment of the Industrial Court dated 29.11.1991, it would be necessary to first refer to that adjudication. The case of the petitioners before the Industrial Court was that they had been engaged on daily wages for a considerable period of time. Despite the fact that the work done by them was consistently available, their services were not being regularised so as to deprive them of the benefit of regular appointment. On the basis of the evidence on record the Industrial Court recorded the finding that the petitioners had proved that they had been working continuously since the year 1988 and in the light of Clause 4C the Model Standing Orders framed under the Industrial Employment (Standing Orders) Rules, 1959, they were entitled to be made permanent on their respective posts. It was found that the Municipal Council by refusing to regularise their services had committed an unfair labour practice. On behalf of the Municipal Council a specific contention was raised with reference to Sections 75 and 76 of the Act of 1965 by urging that in the absence of sanction from the Director of Municipal Administration the petitioners could not have been appointed. The learned Judge of the Industrial Court referred to the decision of this Court in Chief Officer, Sangli Municipal Council Vs. Dharamsing Hiralal Nagarkar 1991 Mh.L.J. 981 and held that consultation with the Selection Board was necessary while making fresh appointment and not while considering the aspect of regularization. The stand taken by the Municipal Council as regards absence of sanction from the Director of Municipal Administration was specifically turned down. Yet another finding recorded by the Industrial Court was that the Administrator had appointed the petitioners after advertising the said posts and by interviewing them. In that regard, the Industrial Court observed as under:-

“The complainants were employed by previous Administrator after advertising the posts and interviewing the complainants as appears from the evidence of the complainants. The complainants actually worked on the posts for more than 2 years. The respondent now cannot raise their hands by saying that they cannot regularise the services of the complainants because there is no sanction from the Director of Municipal Administration and the complainants are not selected by the Selection Board. The defence of the respondent must fail……”

As stated above, this adjudication has attained finality and the rights of the parties would therefore be governed by this adjudication.

10. Since the Director of Municipal Administration has referred to the provisions of Sections 76(2) and 337 of the Act of 1965 in the impugned communications, it would be necessary to consider said provisions as they then stood when the rights of the petitioners were determined and thereafter crystallized. The judgment of the Industrial Court is dated 29.11.1991 and Section 76 of the Act of 1965 as it then stood prior to its amendment by Maharashtra Act No. 18 of 1993 reads thus:-

“76. Appointment of other officers and servants:-

(1) A Council may, with the sanction of the Director, create such posts of officers and servants other than those specified in sub-sections (1) and (2) of section 75 as it shall deem necessary for efficient execution of its duties under this Act.

(2) Subject to the provisions of sub-section (3), the qualifications, pay, allowances and other conditions of service and the method of recruitment of any such officers and servants, -

(a) if the minimum salary (exclusive of allowances) of the post does not exceed Rs.200 per month shall be determined by by-laws made by the Council in this behalf; and

(b) if the minimum salary (exclusive of allowances) of the post is exceeds Rs.200 shall be determined by general or special order made by the Director in this behalf.

(3) Subject to any general or special orders, which may, from time to time, be made by the State Government in this behalf, appointments to the posts created under sub-section (1), but excluding the posts of municipal officers and servants, the minimum salary (exclusive of allowances) of which does not exceed Rs.200, shall be made by the Chief Officer or any person duly authorised by the Council for the purpose, from the list of candidates selected by such agency or organisation, by whatever name called, as the State Government may, by general or special order, specify.

(4) No Council shall employ any person, who has not completed fifteenth year, to serve as a member of its sanitary staff.”

Perusal of the provisions of Section 76 of the Act of 1965 indicates that the same does not confer upon the Director of Municipal Administration the authority to deprive the petitioners’ of various service benefits as has been done by the orders dated 12.12.2008 and 03.05.2011. The said provision does not empower the Director of Municipal Administration to deprive an employee of the Municipal Council from the benefits of seniority, promotion, increment, and other service benefits for a period of five years as has been done by the impugned orders. We, therefore, find that the Director of Municipal Administration has travelled beyond the jurisdiction conferred upon him by Section 76 of the Act of 1965 in that regard. Similar is the case with the direction to deprive the petitioners from benefit of dearness allowance for a period of five years.

Section 337 of the Act of 1965 deals with the power of the Authority whose previous sanction is required but not obtained to accord ex post facto sanction.

11. We are, therefore, satisfied that the Director of Municipal Administration had no jurisdiction to impose such conditions that have been impugned herein while granting ex post facto sanction under Section 337 of the Act of 1965. The rights accrued in favour of the petitioners pursuant to the adjudication by the Industrial Court on 29.11.1991 could not have been taken away in such manner which is not recognized by the Act of 1965.

12. A submission was made on behalf of respondent nos. 1 and 2 that in view of the backdoor ent

Please Login To View The Full Judgment!

ry of the petitioners in service the Director of Municipal Administration was justified in imposing such conditions and depriving the petitioners of service benefits for a period of five years. This submission cannot be accepted as the Industrial Court in paragraph 12 of its judgment has recorded a clear finding on the basis of the evidence led before it that the petitioners were engaged after advertising the posts and were interviewed by the Administrator. The petitioners are thus entitled to all benefits that accrued in their favour pursuant to the adjudication by the Industrial Court. 13. Hence for the aforesaid reasons, the following order is passed:- (i) The writ petitions are allowed. (ii) Condition No. 2 in the impugned communications dated 11/12.12.2008 and 03.05.2011 depriving the petitioners’ of the benefit of service for a period of five years, seniority, promotion, increments and other service benefits is set aside. Condition No. 4 to the extent the petitioners have been deprived of dearness allowance for a period of five years is set aside. The petitioners would be entitled to all benefits of the adjudication by the Industrial Court dated 29.11.1991. The arrears admissible to the petitioners shall be paid by respondent no. 1 through respondent no. 3 in three equal installments within a period of one year from 01.02.2022. (iii) It is clarified that the present adjudication is restricted to the petitioners who have got their rights adjudicated in the Industrial Court. 14. Rule is made absolute in the aforesaid terms with no order as to costs.
O R