1. The petitioner has filed this petition being aggrieved by order dated 7.11.2007 passed by the Labour Commissioner, Madhya Pradesh Industrial Tribunal, Indore, whereby sanction has been granted for prosecution of the petitioner under the provisions of Section 29 read with Section 34 of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act').
2. It is submitted by the learned counsel for the petitioner that initially certain awards were passed by the Labour Court on 23.2.1988 and 29.4.1997, in the disputes raised by the Nagar Nigam Jal Praday Shramik Sangh Avam Lok Karm Vibhag, Shramik Sangh, Jabalpur, directing regularization of the employees of the Municipal Corporation. It is stated that these awards were not complied with and, therefore, the President of the Sangh again approached the Labour Court under section 10(1)(c) of the Industrial Disputes Act, 1947 and by award dated 23.11.2004 which was subsequently modified by order dated 6.4.2005 the Municipal Corporation, Jabalpur was directed to regularize the members of the petitioner's Union. As all the members of the petitioner's Union were not recognized, the Sangh filed a petition and thereafter an application under section 29 read with section 34 of the Act on 20.8.2007 before the Labour Commissioner, Indore seeking prosecution of as many as 8 previous Commissioners of Municipal Corporation, Jabalpur which application has been allowed by impugned order dated 7.11.2007 directing initiation of prosecution of the petitioner who was the Commissioner of the Municipal Corporation, Jabalpur from September 2007 onwards for a period of five months.
3. It is submitted by the learned counsel for the petitioner that in the proceedings initiated by the Sangh the petitioner had neither been impleaded nor was he made a party. It is, however, submitted that he was, at the relevant point of time, Commissioner of the Municipal Corporation, Jabalpur and in that capacity accepted the notice issued by the Labour Commissioner though the Municipal Corporation, Jabalpur had also not been impleaded as a respondent in the application. It is stated that in the year 2005 the State Government had imposed a total ban on regularization and that there were conflicting orders of the State Government regarding their policy for regularization and in such circumstances the petitioner, who was posted as Commissioner, Municipal Corporation, Jabalpur in the year 2007 could not have been directed to be prosecuted in view of the total ban on regularization imposed by the State.
4. The learned counsel for the petitioner has also pointed out that several employees of the Municipal Corporation, Jabalpur had approached this Court by filing petitions claiming relief of regularization which were disposed of by order dated 27.2.2003 with the following directions:-
"(a) Respondent Corporation who has already
prepared the seniority list of daily rated employees who are working prior to 31st December, 1988 will regularise the services of daily rate employees strictly as per their seniority and eligibility subject to availability of post. (b) The respondent Corporation has prepared aforesaid seniority list in two heads, technical and non- technical, will be at liberty to fill up the technical post on availability of technical post from daily rated worker who possesses requisite qualification. If the technical post is not available and the employee comes in the seniority criteria then respondent Corporation will be at liberty to regularise that person even on non-technical post, if such employee so chooses or opts such regularization. (c) So far as non-technical persons are concerned, all the daily rated workmen will get their regularization as soon as the posts become available as per his seniority and eligibility.
(d) This order will not effect those employees who have already been regularized because of the order passed by the High Court or by Labour Court and the aforesaid order has reached its finality. But so far as the other employees are concerned, their services will be regularized as per the direction issued today 4 W.P No.16859/2007
including those whose regularization are under challenge before this Court.
(e) As the employees are to be regularized or classified on particular post on the availability of vacant post, as has been held in Full Bench decision by this Court in Superintending Engineer vs. State of M.P. and others (1999 (1) MPJR 1), in the circumstances, if any litigation in respect of employee who is working prior to 31.12.1988 or after 1.1.1989 respondent Corporation will place this order before the Labour Court in that case and labour courts will strictly follow the decision of Full Bench Judgment and directions issued today in this case.
(f) In respect of those cases in which any junior person has been regularized ignoring seniority of other daily rated employees and if presently the order is under challenge before this Court, the aforesaid order of regularization by the labour court would stand modified, as per this order.
(g) Those employees who are not satisfied with their seniority in the seniority list will file fresh representation before respondent Municipal Corporation within a period of sixty days from today and Municipal Corporation will decide the seniority of those unsatisfied employees within a period of ninety days thereafter. (h) So far as the regularization of the employees working prior to 31.12.1988 are concerned, the respondent will consider the cases for regularization as and when the posts are available strictly according to their seniority.
5. As the aforesaid directions were not complied with Contempt Petition No.70/2004 was filed which was also disposed of with a direction to the Commissioner, Municipal Corporation, Jabalpur to 07 complete the exercise of regularization within three months. The aforesaid orders, passed by the High Court including the one passed in the case of Om Prakash Dubey vs. R. K. Goyal, Contempt Petition No.70/2002 decided on 18.8.2005, travelled to the Supreme Court and the Supreme Court in the case of Municipal Corporation, Jabalpur vs. Om Prakash Dubey, 2007 (1) SCC 373 set aside the impugned order passed by this Court in C.P No.70/2004, Annexure P-4, dated 18.8.2005 with the following observations:-
"20. There is another aspect of the matter which cannot be lost sight of. The Corporation may be bound by the decision of the High Court, but it was also bound by the directions of the State of Madhya Pradesh. If it had violated the direction of the State (sic High Court), in terms whereof its earlier policy decision stood reversed, it cannot be said to have committed a contempt of court. The question recently came up for consideration in State of Orissa v. Aswini Kumar Baliar Singh, (2006) 6 SCC 759, wherein a Division Bench of this Court held that the Court is primarily concerned with the question of contumacious conduct of the party who is alleged to have committed default in complying with the directions in the judgment and order. It was held: (SCC p.763, para 11).
"11. In the instant case, the action taken by the respondent in purported violation of the Court's order arose owing to a subsequent cause of action, namely, orders passed by the State of Orissa and unless the said orders were set aside, the Inspector of Schools can (sic cannot) be said to have flouted the order of the High Court.""
6. It is further stated that the Corporation has taken a policy decision, in view of the subsequent circulars issued by the State Government in the year 2008, to constitute a Screening Committee and to consider the cases of all daily waged employees working in the Municipal Corporation, Jabalpur on the basis of the parameters and guidelines laid down therein and in case they are found to be eligible for regularization, to pass appropriate orders in their case. It is stated that the aforesaid exercise is in progress and, therefore, the impugned order passed by the Labour Commissioner initiating prosecution of the petitioner deserves to be quashed.
7. The learned counsel appearing for the respondent no.2 submits that the Sangh had obtained awards from the Labour Court and had thereafter approached this court by filing a petition seeking a direction against the Municipal Corporation, Jabalpur for implementing the award dated 23.11.2004 and 6.4.2005 which was registered as W.P No.1430/2006 (S) and which was disposed of by order dated 30.7.2007 with liberty to the respondents to initiate proceedings under section 29 read with section 34 of the Act. It is stated that in view of the aforesaid direction issued by this court, the petitioner had filed an application initiating prosecution of the petitioner which has been allowed by the impugned order dated 7.11.2007 and in such circumstances no fault can be found with the impugned order directing initiation of prosecution against the petitioner.
8. The learned counsel appearing for the respondent Corporation submits that the cases of the daily wage workers in the Corporation are being scrutinized as per the policy of the State Government which has been adopted by the Corporation and also in view of the judgment of the Supreme Court in the case of Secretary, State of Karnataka and Others vs. Umadevi (3) and Others, (2006) 4 SCC 1. In such circumstances the respondent authorities are already taking steps permissible in law towards consideration of cases for regularization and orders in respect of as many as 150 persons have already been issued.
9. I have heard the learned counsel for the parties at length. From a perusal of the averments and the documents on record it is clear that the petitioner had not been impleaded as a respondent in the application filed by the respondent Sangh for initiating proceedings for prosecution filed by them under section 29 read with section 34 of the Act. It is also clear that the petitioner had joined as Commissioner, Municipal Corporation, Jabalpur only in the year September 2007 by which time the State had already taken a policy decision imposing a total ban on regularization in the year 2005. The law as laid down by the Supreme Court in the case of Umadevi (supra) had also come into existence and the order passed by the Supreme court in the case of Municipal Commissioner, Jabalpur (supra) on 5.12.2006 had also come on record. From a perusal of the documents it is clear that the petition, W.P No.1430/2006 (S) filed by the respondent Sangh and W.P No.1464/2001 for implementation of the award passed by the Industrial Tribunal dated 23.11.2004 and 6.4.2005 were disposed of by stating that no case for interference by this Court i.e. the High Court was made out with an observation that the petitioner may move the appropriate authority for initiating proceedings under section 29 read with section 34 of the Act.
10. It is also undisputed and a fact agreed to by the learned counsel for the parties that the process for scrutiny of cases of regularization, in accordance with the direction issued by the Supreme Court in the case of Umadevi (supra) and the subsequent circulars issued by the State Government, has been undertaken by the Municipal Corporation, Jabalpur and eligible persons are being scrutinized and regularized by them. It is infact stated that the process is going on.
11. In view of the aforesaid facts and circumstances it is clear that the petitioner cannot be held responsible for non-implementation of the impugned award passed in favour of the respondent Sangh in the year 1988 or 1997 or in view of the orders passed by the Division Bench dated 23.11.2004 and 6.4.2005 as the petitioner had joined the Municipal Corporation, Jabalpur as Commissioner only in September 2007 and remained there only for five months. It is also clear in view of the observations made by the Supreme Court in the case of Om Prakash Dubey (supra) in para-20 that there were conflicting orders of the State Government and in such circumstances no person can be held to have committed contempt of Court that the petitioner cannot be prosecuted.
12. In view of the aforesaid facts and circumstances, the order dated 7.11.2007 passed by the Labour Commissioner, Indore, is hereby quashed. The petition, filed by the petitioner, stands allowed.
13. In the facts and circumstances of the case there shall be no order as to the costs.