IMPORTANT POINT
The obligation of the employer to regularise the service of workmen and the prohibition against unfair labour practices under Section 25T of the Industrial Disputes Act 1947.

JUDGMENT :

1. Rule. Mr.Jeet Rajyaguru, learned advocate waives service of Rule on behalf of respondent-workman.

2. The petitioner-municipality has filed this petition challenging an award dated 05.10.2021 of Industrial Tribunal in Reference (IT) No.49 of 2010 wherein, the petitioner was directed to regularise the service of respondent-workman from 11.03.2008. Benefits of seniority, such as salary grade and other benefits of seniority, promotion, gratuity and other retirement benefits shall be awarded from 11.03.2008. Labour Court directed that the service of respondent-workman from 11.03.2008 (date of joining) to 05.10.2021 (date of award) is to be considered as Notional and no arrears shall be paid for this period.

3. Heard Mr.Vivek Bhamare, learned advocate for the petitioner and learned advocate for the respondent- workman.

4. Mr.Vivek Bhamare, learned advocate for the petitioner- municipality submitted that award of the Industrial Tribunal is erroneous because the award amounts to creation of post of Clerk and thereafter to regularise his service by making necessary representation/ requisition before the appropriate authority. Creation of post is not permissible under the law. Further, there is no sanctioned post available for the post of Clerk and therefore, the award of the Industrial Tribunal is erroneous. He also highlighted the financial difficulties faced by the petitioner-municipality and thus, requested to quash and set aside the award.

4.1. Learned advocate for the petitioner tendered a compilation of decisions to submit that when sanctioned posts are not available, Industrial Tribunal ought not to have directed the petitioner to make requisition to the State Authority for sanctioning of the posts and to grant regularisation. Referring to the set-up of Petitioner-Municipality, learned advocate submitted that there is no sanctioned post of Clerk and therefore, the award is erroneous.

5. On the other hand, learned advocate for respondent- employee submitted that the issue under consideration is no more res-integra in view of decision of this Court in Special Civil Application No.13183 of 2016 and allied matters. Special Civil Application No.13183 of 2016 and allied matters were subject matter of appeal in Letters Patent Appeal No.973 of 2023 and other connected matters, wherein the appeals filed by the petitioner- Municipality were rejected.

6. Considered the submissions and decisions relied upon. Submission of learned advocate for the respondent-workman that the issue involved in this petition was subject matter of proceedings before this Court and the same could not be disputed by learned advocate for the petitioner Mr.Bhamare.

7. Further, it is noticed that in similar facts situation, co-ordinate bench of this Court in the order dated 05.08.2022, in Special Civil Application No.13183 of 2016 , has held as under:

“6. The petitioner-Municipality has placed on record information regarding sanctioned set up in the petitioner-municipality in a tabular form, wherein under various departments, 84 posts are reported to be vacant. Therefore, it is evident from the record of the Municipality itself that there are sanctioned vacant posts even within the establishment in various departments. A cursory reference to such tabular information would indicate that majority of such vacant posts are still vacant which are in Class-IV. In the opinion of the Court, regardless of the posts on which the respondent may be engaged with the petitioner-Municipality, the same being Class-IV post, there should not be any hesitation in accommodating such respondent- workman on any Class-IV post which has fallen vacant and in fact, the respondent-workmen who have litigated for such long years, would also be interested in the employment of the Municipality as Class-IV employees. Therefore, in the opinion of the Court, directions issued by the Industrial Tribunal are as per the requirements of the Municipality.

7. The only issue which requires to be consid