Heard finally by consent of the parties at admission stage.
2 The Petitioner is a Local Body/Authority/Corporation and it's challenge is to the Award dated 28 February 2011 passed by the learned Member, Industrial Tribunal, Sangli, thereby allowed the Reference in respect of Demand Nos. 8 and 11 raised by the Respondent/Mahapalika Kamgar Sabha (Sabha) and partly allowed the Demand No.8.
3 On 9 February 1998, the Petitioner is constituted by the Government of Maharashtra as a Municipal Corporation for the Cities of Sangli, Miraj and Kupwad.
4 Prior to the constitution of Petitioner Miraj Municipal Council was functioning as a Municipal Council for the City of Miraj under Maharashtra Municipal Councils, Nagar Panchayat and Industrial Townships Act, 1965 (âThe M. Council Actâ). After 9/2/1998, petitioner governed and functions under the provisions of Bombay Provincial Municipal Corporations Act, 1949 (for short, âBPMC Actâ).
5 On 17.10.1996, Miraj Kamgar Union claimed to be a recognized union of the employees had raised certain demands against the then existed Miraj Municipal Council (The Municipal Council). When the same were not accepted and the conciliation officer, made a failure report on 8 December, 1995. The Government of Maharashtra, by its order dated 17 October, 1996, in exercise of powers under sections 10(1)(d) and 12(5) of Industrial Disputes Act, 1947 (I.D. Act) referred the dispute to the Industrial Tribunal, Kolhapur for adjudication. It was registered as Reference (IT) 16 of 1991 and subsequently it was transferred to the Tribunal at Sangli and renumbered as Reference (IT) 6 of 1996.
6 On 17.06.1997 the Miraj Kamgar Union filed a statement of claim in the Industrial Tribunal. The Petitioner filed an application raising preliminary objections to the maintainability of the said reference. The same was rejected on 20 September 2004 as it was on the verge of final decision and kept certain points open. On 21.07.2005, the Petitioner challenged the order of 4.4.2005 on the ground that the scope of Reference was enlarged. Writ Petition was also dismissed by the High Court. On 17.07.2006, the Respondent filed an amendment application. The same was opposed. By order dated 15.01.2007, the amendment application was allowed. The challenge to the same order was also dismissed by the High Court. The parties led evidence in support of their case.
7 By the impugned judgment and award 28 February 2011, the Respondent's complaint has been partly allowed. The operative of the Award is as under:
â1) The Reference is answered partly in the affirmative.
2) It is hereby declared that the demand no. 4 and 7 are unjustified, the demand no.8 and 11 raised by the second party are justified and demand no.9 is partly justified.
3) The first party is hereby directed to make the employees involved in the demand no.8 excluding 10 in numbers viz.
4) Nandkishor Narayan Kambale,
13) Dnyaneshwar Topanna Kambale,
25) Suresh Bhupal Gade,
30) Sambhaji S. Salgar,
35)Prakash Gundu Athane,
27) Yasin Mahamad Hanif Momin,
36) Balasaheb Rajaram Lavand,
39) Akash Vasant Tavade,
40) Anant Kashiram Jagtap
41) Shabbir Malik Chabukswar
permanent in service after one year from the date of their initial appointment and to pay the monetary benefits of permanency such as wages, allowances, leaves and difference of wages excluding uniform in 2 installments. The names of the employees involved in demand no.8 are attached with this Award.
4) The first party is further directed to consider the date of permanency of 106 employees involved in the demand no.9 after completion of one year from the date of their initial appointment and considered the same only for the purpose of pension and not otherwise. The names of the employee involved in this demand are attached with this Award.
5) The party no.1 is also directed to pay 5% amount to the second party towards union fund from monetary benefits payable to the employees in 2 installments.
6) Award be sent to the State Government for publication.
7) Parties to bear their own costs.â
8 It is relevant to note that the Petitioner being âLocal Authorityâ and âStateâ within the meaning of Article 12 of the Constitution of India. It governs by BPMC Act and related rules, circulars etc. Article 309 gives the power to the Government to frame rules for the purpose of laying down the service conditions and recruitment, though initially Bombay Civil Services Rules (for short, âBCSRâ) were applicable, now substituted by the Maharashtra Civil Services Rules (for short, âMCS Rulesâ). Therefore, the governing service terms and conditions and related aspects have a foundation of MCS Rules. The Tribunal, admittedly, has not given any clear finding that the Petitioner is an Industrial establishment as contemplated under the Industrial Employment (Standing Orders) Act 1946, (for short, âIESO Actâ) and completely overlooked it's governing statute and rules and circular.
9 Sections 51 to 54 of the BPMC Act govern the power of Municipal Authorities to appoint employees/servants. As per Section 40 or 45 read with Section 52, no permanent officer or servant can be appointed unless covered by Section 1(5) of the BPMC Act, read with Chapter IV, which regulates and governs appointment and conditions of service. This being the position. Any appointment and/or employment by the Local Authorities like the Petitioner needs to be within the purview of Article 14 and 16 of the Constitution of India. Any appointment and/or contract and in breach of the statutory provisions and the rules and regulations are always tested on the anvil of above Articles. However, the fact of their appointment, a long standing service though subject to the particular project and/or scheme and the fact that such worker and requirement is continuing one, though there is no vacancy, the benefits which are available to such employees, except the claim of permanency, just cannot be overlooked. The impugned order referring to this situation based upon the factual material placed on record by the rival parties need to be considered in the background of dispute between the parties since long. The Petitioner cannot, now, raise and/or permitted to raise its own default of not getting the employment through the prescribed procedure, but having got such employment and/or service for long period on the sole ground, cannot be deprived its rights which are otherwise available but subject to statute and the settled law.
10 It is clear even from Secretary, State of Karnataka v. Umadevi, (2006 II CLR 261 SC) and Maharashtra SRTC v. Casteribe Rajya Parivahan Karmachari Sanghatana, (2009 III CLR 262 SC) that the Apex Court (Umadevi) does not prevent the Industrial and Labour Court to exercise their statutory power under Section 30 read with Section 32 of the MRTU and PULP Act to order permanency of the workers, if case is made out, but where the post on which they have been working exists. Importantly, the requirement of existence of vacant valid sanctioned post just cannot be overlooked while granting order of permanency. The continuity of service cannot be equated with the grant of permanency if there is no vacancy. The Supreme Court in Gangadhar Pillai Vs. Siemens Ltd. (2007) 1 SCC 533)considering the aspect of the regularization of the employee who had completed 240 days' continuous service referring to Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short, âMRTU and PULP Act, 1971â) and Section 25F of the ID Act held that the reinstatement would only mean that the workman gets back the same status prior to termination of the services. He does not entitle to regularization and/or permanent status. The Apex Court accordingly, even distinguished the Chief Conservator of Forests Vs. Jagannath Maruti Kondhare (1996) 2 SCC 293).
11 It is also relevant to note that the local bodies like the Petitioner/Municipal Corporation, admittedly govern and run by the statutory provisions and rules and regulations and service conditions so fixed and announced by the State Government through its Authorities under the Act. All necessary formalities required to be followed by the State are normally applicable to such local authorities while entering into any contract and/or including dealing with the appointment of servant and/or employees. The servant/employees are governed by the specific terms and conditions as prescribed and agreed and fixed for their employment. The local authorities empower to deal with their affairs in case of particular project and scheme and/or requirement of the time. The appointment of daily wages or casual workers or temporary workers, though fall within the power, but when it comes to a question of grant of permanency even though case is made out, unless sanctioned posts are vacant and/or available, the Court cannot compel and/or direct to create supernumerary posts and/or absorb them without clear permission and/or authority from the Government basically when it comes to financial burden on the State Government. The local body may move or make an application and/or representation to grant sanction and/or create post, but unless the same is granted and/or sanctioned the order of permanency, in my view, is impermissible.
12 The employees of the local authorities like Municipal Corporation in question cannot be treated as Government employees. They are governed by their own terms and conditions of appointment, oral and/or written and/or by various circulars/resolutions issued by the Municipal Corporation through its Director under the Act. Therefore, if there is no vacancy, unless sanctioned by the State Government, the issue of creating supernumerary posts and/or additional posts as there are no vacancies is beyond their power and jurisdiction, as controlling authority is the State Government. Therefore, as and when posts are created and/or arise vacancies, the local body/Municipal Corporation and/or its authority is under obligation to fill it in accordance with law and regulations, specifically when related employees have been working for long.
13 The employees and/or workers working through contractor are also cannot be equated with the Municipal employees employed by the Authority though for casual workers/daily workers and/or temporary work. This is also for the fact that such local bodies/authorities cannot be equated with the profit earning and/or profit based undertaking or establishment. Even the employees of such local bodies, if have no right to claim bonus or such benefits having financial implication unless decided and/or resolved accordingly, the grant of permanency and/or to direct to implement such order is illegal and beyond the provisions of the law. It is made clear that we are concerned with the existing employment aspect of local authority only. The Government may frame such scheme or sanction posts to absorb or adjust these employees.
14 I am not inclined to accept the submissions and as not decided by the learned Tribunal to say that IESO Act is applicable to the local authority like the petitioner merely such Department by treating one such local bodies department as separate industrial establishment and merely because more than 50/100 workers have been employed and/or working in the particular department for particular work. Unless this issue is decided, there is no question of utilising and/or invoking the provisions of this Act basically for the grant of order of permanency as awarded. No law and/or Act permits to grant permanency if there are no vacant sanctioned posts. The perennial requirement of workers and/or employees and the long services of such employees and if case is made out, may entitle them to claim continuity of service and all related benefits, unless terminated in accordance with law. Mere reliance on a Judgment of Sitaram Tukaram Walunj Vs. Municipal Corporation of Greater Mumbai and Ors. (WP No. 8711 of 2007 dated 15 April 2008)itself is not sufficient to say that the Petitioner being the local body is also governed by the IESO Act. Even otherwise, the facts and circumstances were different. I am, therefore, inclined to observe that the provisions of IESO Act, is not applicable to the Petitioner so far as the grant of permanency and the financial burden so ordered.
15 The learned Tribunal has held that as on August 2008 there were 314 posts vacant in the Corporation, but failed to considered while passing the impugned order in the year 2011 that there exists no vacancy while passing the order of permanency. The case of the Petitioner throughout was that there exists no vacancy and whatever posts available, if any, in the year 2008, were always subject to the list and the roster and procedure to be followed in such public office. It is also relevant to note that the learned Tribunal has not considered and/or decided by supporting reason that the local body like the Petitioner/Municipal Corporation is an industrial establishment. Mere observation that a particular Department has more than 50 working workmen itself is not sufficient to extend the said Act as done in the present case. Merely because workers appointed dehors as there were no vacant and sanctioned posts available and that they have been working for long period, the order of grant of permanency just cannot be followed. However, I am not inclined to interfere with the order/reasoning given with regard to their right to claim permanency as and when occasion arises. I am not inclined even to accept the case of the Petitioner that those workers were never appointed as per the mandatory provisions and, therefore, they are not entitled for any benefits.
16 The finding so recorded with regard to the appointment of the Respondents/members/workers and their entitlement to claim permanency and as it is based upon admitted documents (Exhibit U-103), but still the order to the extent of granting that permanency though not with retrospective effect, yet in view of above finding, is unacceptable. However, it is made clear that they have right to claim permanency as and when posts are made available and/or vacant. Pending the same they are entitled for all the benefits in accordance with law.
17 The aspect of financial position of the Petitioner/Corporation just cannot be gone into while deciding the claim of permanency in such fashion unless Government sanctions and/or creates and/or permits them to grant permanency in accordance with law.
18 In Municipal Council, Bhandara Vs. Mrs. Jaiwantabai and Ors (1998(3) Mh.L.J. 765), while considering the aspect of permanency of employees of Municipal Council on daily wages for long time, this Court has observed as under:-
âUltimately a Local Body is not on the same footing as the State Government. Local Body is dependent on the grants received from the State Government and the limited revenue it receives by way of taxes and fees. The Local Bodies have been set up to carry out the functions which, in fact, the Government ought to have, but is not in a position to do. In these circumstances, the economic aspects will have to be borne in mind considering the limited resources of the Petitioners herein.â
19 Considering the above observations and the reasons already given in earlier paragraphs, I am inclined to observe that the Petitioner employer cannot be directed to bear the financial burden of the benefits claimed and/or arising out of demand, as directed unless the same is sanctioned and approved by the Government and the concerned authorities, under the Act. In Sitaram (Supra) this aspect was also not considered. The judgment of Municipal Council Bhandara (Supra) was also not referred and/or relied. I am inclined to accept the view of Municipal Council Bhandara (Supra), basically in view of the Apex Court Judgment referred in para 14 i.e. Umadevi and Maharashtra SRTC (Supra). These Supreme Court Judgments are definitely binding and hold the field. In the impugned order these aspects have not at all considered while granting the order of permanency and related claims.
20 It has nothing to do with the concept of âprofit makingâ establishment by the local authority, as it is not even âestablishmentâ contemplated under Bombay Shops Act and âIndustrial Undertakingâ as contemplated under Industrial Undertaking Act, to grant permanency as claimed, specially when admittedly, the Petitioner âLocal authorityâ is not private business, trade or manufacture undertaking and/or establishment. Any local authority cannot be equated with âestablishmentâ or âIndustrial undertakingâ for granting permanency and/or related claim as it is always subject to grant/approval and sanctioned and vacant posts. All these ingredients are interlinked, therefore, undissectable only for grant of permanency. The submission to extend these concepts âestablishmentâ or âIndustrial establishmentâ to local authority is unacceptable for the purpose of claiming permanency from local authority in view of the Supreme Court's judgment as referred.
21 Therefore, taking overall view of the matter, I am not inclined to accept that the provisions of IESO Act is applicable to the Petitioner/Municipal Corporation for the purposes of grant of permanency as ordered. I am also not inclined to accept that the Petitioner can bear the financial burden of the benefits claimed arising out of the demand as referred for adjudication. The Petitioner is not an Industrial establishment within the meaning of Section 2(e) of the IESO Act for the purposes of permanency as claimed and/or as granted.
22 There is nothing even pointed out and/or even discussed that the Respondents are governed by any service rules like employees of the Petitioner. In Sitaram (supra), the situation was different. That was not a case of such huge number of employees.
23 Resultantly, the following order.
ORDER
a) The order of Member, Industrial Tribunal, Sangli dated 28 February 2011, to the extent of granting permanency is set aside. However, it is to be read as right to claim permanency on receiving sanction and/or approval from the Director of Municipal Administration and/or the State Government if the posts are vacant and/or there is a vacancy and/or the posts are created.
b) Clause 5 of the operative part, directions to pay 5% amount towards the Union Fund from monetary benefits payable to employees, is also quashed and set aside being consequential part of grant of permanency and monetary benefits of permanency.
c) The Writ Petition is accordingly disposed of. No costs.