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2024 Supreme(Bom) 485
IN THE HIGH COURT OF BOMBAY
Sandeep V. Marne, J.
The Chief Officer Pen Municipal Council & Ors. - Appellants
Versus
Shekhar B. Abhang At Parit Ali & Ors. - Respondents
Writ Petition No.4129 of 2009
Decided On : 06-05-2024
Mr. Rahul D. Oak for the Petitioner; Ms. Pavitra Manesh i/b Mr. M.S. Topkar for Respondent No.1.
IMPORTANT POINT
Regularization of services can be granted when an employee has been appointed against a sanctioned post and has undergone a proper selection process, even if the initial appointment was temporary, especially in cases of unfair labor practices.
Headnote:
REGULARIZATION - EMPLOYMENT LAW - Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965; Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971; Secretary, State of Karnataka & Ors. vs. Umadevi & Ors., 2006; MSRTC Vs. Casteribe Rajya Parivahan Karmachari Sanghatana, (2009) 8 SCC 556 - The court discussed the legal framework surrounding the regularization of services, particularly under the Maharashtra Municipal Councils Act and the Unfair Labour Practices Act. It highlighted that mere continuance in service does not confer a right to regularization unless the appointment was made in accordance with the relevant rules. The court interpreted the Umadevi judgment, emphasizing that regularization is permissible only in cases of unfair labor practices where employees have worked in sanctioned posts for a significant duration. The court concluded that Respondent No.1's appointment, although initially temporary, was valid and justified based on the established procedures and resolutions of the Municipal Council, leading to the decision to regularize his position as Tax Inspector.
Fact of the Case:
The Pen Municipal Council challenged the Industrial Court's order to regularize Respondent No.1 as Tax Inspector, arguing that he was not qualified and that his appointment was temporary. Respondent No.1 had been employed as a Clerk and later appointed as Tax Inspector for six months, after which he was terminated. He filed a complaint alleging unfair labor practices, leading to the Industrial Court's ruling in his favor.
Finding of the Court:
The court found that Respondent No.1's appointment was against a sanctioned post and followed a proper selection process, despite being initially temporary. The court ruled that the defenses raised by the Municipal Council were unfounded and that Respondent No.1 had a legitimate claim for regularization based on his long service and the absence of objections from senior clerks.
Issues: Whether Respondent No.1 was entitled to regularization as Tax Inspector despite the Municipal Council's claims of his lack of qualifications and the temporary nature of his appointment.
Ratio Decidendi: The court applied the principles established in Umadevi and subsequent cases, affirming that regularization can occur in cases of unfair labor practices where employees have worked in sanctioned posts for a significant duration. It emphasized that the appointment process followed for Respondent No.1 was valid and that denying regularization would violate principles of equity and fairness.
Final Decision: The court dismissed the Municipal Council's petition, upholding the Industrial Court's order to regularize Respondent No.1 as Tax Inspector.
JUDGMENT
Sandeep V. Marne, J. - Pen Municipal Council challenging the judgment and passed by Member, Industrial has filed this Petition order dated 7 March 2009 Court, Thane in Complaint (ULP) No.31 of 2004. The Industrial Court has partly allowed the Complaint filed by Respondent No.1 and has directed Petitioners to regularize Respondent No.1 on the post of Tax Inspector from the date of its order with further direction to pay consequential and monetary benefits arising out of such regularization.
2 Briefly stated, facts of the case are that Petitioner is Pen Municipal Council is established under the provisions of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (the Act). Respondent No.1 was engaged as Clerk to meet exigencies of service in accordance with the resolution adopted by the Municipal Council on 4 December 1997.
3 Respondent No.1 filed Complaint (ULP) No.616 of 1998 in the Industrial Court, Thane, alongwith three other Clerks apprehending the termination of their services. The said Complaint came to be allowed by Industrial Court by judgment and order dated 6 September 2001 directing Petitioner-Municipal Council not to terminate the services of the Complainants. It appears that in pursuance of the said order of Industrial Court services of Respondent No.1 were continued on the post of Clerk.
4 By order dated 30 July 2003, Respondent No.1 came to be appointed as Tax Inspector on the pay scale of Rs.4100-6000 with effect from 1 August 2003 for a period of six months on temporary basis. According to Petitioner-Municipal Council, Respondent No.1 is not entitled to be appointed on the post of Tax Inspector as he was neither qualified under the rules nor he was selected as a result of regular selection process but his appointment was merely temporary subject to the approval of the Regional Director of Municipal Council Administration. It is further submitted by Petitioner-Municipal Council that he was the juniormost Clerk and could not have been directly appointed as Tax Inspector by ignoring the claims of 14 other Senior Clerks working in the Municipal Council. Petitioner-Municipal Council terminated the services of Respondent No.1 after expiry of period of six months on 31 January 2004 by order dated 23 January 2004.
5. Respondent No.1 approached Industrial Court, Thane by filing Complaint alleging unfair labour practices under Items 5, 6 and 9 of Schedule IV of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. In his Complaint, Respondent No.1 sought direction to continue him in service. He also sought a prayer not to recruit fresh hands in his place on the post of Tax Inspector, unless sponsored by Selection Board. He also sought a direction for grant of preference for regular appointment on the post of Tax Inspector. By order passed at Exhibit-2 in Complaint (ULP) No.31 of 2004, the Industrial Court passed interim order not to appoint any other person as Tax Inspector on adhoc basis if work is available by denying opportunity to Complainant.
6. The Complaint was resisted by Petitioner-Municipal Council by filing Written Statement raising specific contention that Respondent No.1 is not qualified to be appointed on regular post of Tax Inspector. That as per the order issued by Director of Municipal Council Administration dated 10 April 2003, Senior Clerk is the feeder post for appointment as Tax Inspector.
7. Respondent No.1 examined himself before the Industrial Court. Petitioner-Council examined Mr. Prabhakar Vishwanath Kamble, Chief Officer of Pen Municipal Council as its witness.
8. After hearing both the sides, Industrial Court proceeded to deliver judgment and order dated 7 March 2009 partly allowing the Complaint and has directed Petitioner-Municipal Council to regularize the Respondent No.1 on the post of Tax Inspector from the date of the judgment and to pay him all consequential and monetary benefits arising out of such regularizatio
