The central legal point established in the judgment is the validity of the complaint of unfair labour practice, the entitlement of workmen to wages on par with permanent employees, and the direction to regularize the services of the workmen.

1. This petition by Municipal Council is directed against order dated 19.11.1996 passed by the Industrial Court at Nagpur holding the petitioner guilty of unfair labour practice in not granting permanency to respondent’s members and directing the council to seek approval of Government for creating requisite posts and make respondents permanent upon approval by the Government, as also to extend to respondent’s members all the benefits and privileges of permanent employees from the date of complaint, i.e. 03.07.1992.

2. Facts material for deciding the petition are as under:

Fifty three members of respondent union were working with the petitioner council as daily wagers, some of them since 1972. They were not absorbed or regularized and were not being paid wages on par with permanent employees. The Union, therefore, complained of unfair labour practice as defined in item 6 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act.

3. The Municipal Council contested the proceedings contending that respondent union not being recognized union had no right to file such a complaint. The Council contended that the daily wagers could not be absorbed for want of sanction for the posts from Regional Director of Municipal Administration/ Collector and the State Government, who had not sanctioned the posts in spite of repeated requests by the Council and therefore, were necessary parties. It, therefore, prayed for dismissal of the complaint.

4. After considering the evidence of General Secretary of the Union and an employee on behalf of Municipal Council, the learned Member Industrial Court passed the impugned order. Shri Rahamatkar who was examined on behalf of the council reiterated that only difficulty in absorbing concerned daily wagers was absence of sanction for posts by Director of Municipal Administration which the Municipal Council had sought, clearly giving the impression that petitioner council itself did not oppose the prayers.

5. The learned counsel for the petitioner first submitted that respondent could not have complained of unfair labour practice under item 6 of Schedule-IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act since it was not a recognized union. He submitted that subsection (1) of Section 21 of the Act forbids an employee to be represented in complaints relating to unfair labour practice under item 6 except through the recognized union. The respondent has not shown that it was the recognized union. The learned counsel, therefore, submitted that the complaint ought to have been dismissed on this ground alone. This contention cannot be countenanced, first, as the objection was not seriously pressed before the Industrial Court and secondly, as the petitioner itself seemed to concede that members of respondent union deserved to be absorbed.

6. The learned counsel for the petitioner next submitted that merely because respondent’s members had completed 240 days of continuous service, they were not entitled to be regularized unless it was shown that they were appointed by following prescribed procedure of issuing an advertisement etc. He submitted that such appointments which contravene articles 14 and 16, apart from having been made to nonexistent posts, do not give any right to the workmen concerned beyond the period of appointment. For this purpose he relied on the celebrated judgment of the Supreme Court in Umadevi reported at (2006) 4 SCC 1.

7. In Uttam Vs. Municipal Council, Darwha, reported at 1972 Mh.L.J. 874 on which Advocate Shri Shelat placed reliance a Division Bench of this Court held that Municipal Council being State within the meaning of Article 12 of the Constitution, it is necessary that the Municipality should make known to the public by issuing an advertisement or public notice, its intention to make appointments to the posts under the municipality.

8. There can be no doubt that entry in pu