Municipal Council Through Its President, Municipal Councif L and the Chief Officer, Municipal Council Vs. Bhandara Zilla General Workers Union - Court Judgment

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- - 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. 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 scheduleiv of the maharashtra recognition of trade unions and prevention of unfair labour practices act since it was not a recognised union. however, whether the entry was after following prescribed procedure or a fair procedure is a question of fact and would require pleading as well as proof. therefore, there is nothing wrong in the direction given, except granting permanency, since permanency would depend on several other factors like better claim of other regular employees as contrasted with daily wagers appointed temporarily to regular posts.r.c. chavan, j.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 regularised 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 scheduleiv of the maharashtra recognition of trade unions and prevention of unfair labour practices act since it was not a recognised union. he submitted that sub-section (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 recognised union. the respondent has not shown that it was the recognised 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 regularised 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)iillj722sc .7. in uttam v. 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 public service must be by following not only prescribed procedure, but also by ensuring that all similarly placed persons had an opportunity to compete. however, whether the entry was after following prescribed procedure or a fair procedure is a question of fact and would require pleading as well as proof. the contention of the learned counsel for the petitioner that it was for the respondent to plead and prove that employees concerned had entered service after following prescribed procedure, since a negative burden to prove that they had not so entered could not be cast upon the petitioner, has to be rejected, in view of illustration (e) of section 114 of the evidence act. petitioner, a local self governing body, could not be presumed to have acted irregularly in or about 1972 when the employees concerned were appointed. in any case the petitioner had nowhere even whispered that the employees concerned were appointed in violation of prescribed procedure. lastly, throwing away such employees on the assumption that their entry was illegal would amount to punishing the victim for bully's wrongs without proof of victim being an accessory to the wrong.9. the learned counsel for the petitioner next submitted that it is notorious that office bearers of such bodies go on appointing their cronies without there being any work and add to the wage bill. therefore, since the workmen were appointed to nonexistent posts, they could not have been ordered to be regularised. again, this contention is not open now since the petitioner had itself painted a picture before the industrial court that workmen were required to be regularised but for sanction of posts by director of municipal administration. in the face of such a stand taken before the industrial court it would have to be presumed that the petitioner needed the posts for which it had sought sanction. one cannot lose sight of the fact that with rapid urbanization, municipal areas and number of inhabitants therein have been growing at a high rate, which would require a corresponding increase in employees to cater to growing needs. in any case the learned member, industrial court has only directed regularization/ permanency upon approval by the government to create such posts. therefore, if and when posts, for which the petitioner has itself sought sanction are created, respondent's members, having been in the employment of the petitioner for almost a quarter century when the petition was filed, would have a first claim to absorption. they were not clinging to the posts under protection of court orders. therefore, there is nothing wrong in the direction given, except granting permanency, since permanency would depend on several other factors like better claim of other regular employees as contrasted with daily wagers appointed temporarily to regular posts.10. the learned counsel for the petitioner submitted that it would have been impermissible that the industrial court to direct payment of equal wages on par with regular employees. in state of u.p. v. u.p. m.s.p. shramik sangh reported at : air1996sc708 on which the learned counsel for the petitioner placed reliance. the supreme court held that direction for payment of equal wages on par with regular employees or regularization of their service could not be granted. however, this contention is not open to the petitioner in view of the fact that in paragraph 2 to the reply filed before the industrial court the petitioner had denied that the workers were not being paid wages which are being paid to the persons employed by the petitioner municipal council on a permanent basis implying that they were being paid wages on par with the regular employees.11. in view of this, the only objection that can be taken to the impugned order passed by the learned member, industrial court is to the direction to give to the workmen 'benefits and privileges of permanent employees that of classiii and classiv' as per their designation from the date of filing of the complaint i.e. 03.07.1992 till the sanction is received from 8 the government for the posts concerned, and the direction to grant permanency.12. the petition is, therefore, partly allowed.13. the impugned order in so far as it directs the petitioner to make the workmen permanent upon receipt of sanction for creation of posts, as also the direction to give benefits and privileges of permanent employees of classiii and classiv to the workmen as per their designation from the date of complaint i.e. 03.07.1992 is set aside.14. direction of the learned member, industrial court to regularise services of the workmen concerned as soon as sanction is received from the government for creation of posts is maintained as also entitlement of these workmen to wages on par with the persons employed by the municipal council on permanent basis in view of petitioner's admission in paragraph 2 of the reply before the industrial court.15. in the circumstances, there shall be no order as to costs.