The Mavelikkara Municipality Vs. Nirmala W/O. Stephen, Substitute and the Director of Urban Affairs - Court Judgment

Excerpt:
- k. balakrishnan nair, j.1. the second respondent in the writ petition is the appellant. the first respondent herein was the writ petitioner.2. the brief facts of the case are the following: the writ petitioner was appointed as a substitute contingent sanitation worker under the appellant municipality. when regular vacancies arise in the post of contingent sanitation worker, such substitute workers are regularized according to their seniority. on finding that there are regular vacancies, the first respondent/petitioner submitted a representation before the appellant municipality. the municipality replied by ext.p4 stating that owing to financial difficulties, the vacancies cannot be filled up on a regular basis. challenging ext.p4, the petitioner approached this court, by filing w.p.(c) no. 17184/06. that writ petition was disposed of by ext.p5 judgment. in paragraph 4 of the said judgment, it was ordered as follows:the writ petition is disposed of with a direction that the case of the petitioner for regularization shall be considered as and when representation in that behalf is filed before the director of urban affairs with sufficient particulars in support of the claim. it will be open to the director of urban affairs to call for necessary details regarding the sanctioned strength of sanitation workers, the actual strength and the financial condition of the municipality coupled with its duty to perform the sanitation work in accordance with law. if representation is filed by the petitioner before the director of urban affairs within one month from today, the same shall be considered and orders passed within three months thereafter.in obedience to the above direction, the petitioner submitted ext.p6 representation before the second respondent. the said respondent, after obtaining necessary report from the municipality, passed ext.p7 order directing to regularize the petitioner/1st respondent according to her seniority, and relevant government orders. upon receipt of ext.p7, the municipality passed ext.p9 resolution, resolving to challenge ext.p7 and also to consider the case of the petitioner as and when financial condition improves. since ext.p7 was not implemented, the petitioner filed ext.p8 representation before the first respondent. thereafter, the present writ petition was filed, challenging ext.p9 and seeking a direction to the appellant to implement ext.p7. the municipality resisted the prayers in the original petition, contending that the second respondent has no authority to direct appointment in a post of contingent worker. it is for the municipality to decide on such matters. it was also contended that owing to financial constraints, a conscious decision was taken, not to make any further appointments on a regular basis in the post of contingent sanitation worker. but, the learned single judge overruled both the objections and allowed the writ petition, directing the municipality to implement ext.p7. aggrieved by the said direction, this writ appeal is preferred.3. we heard the learned counsel for the appellant. he reiterated the contentions which were unsuccessfully canvassed before the learned single judge. it is true, the municipality is the appointing authority of contingent workers. but when it is failing to discharge its duty, the superior officer may issue appropriate directions, pointing out its duty. in this case, the direction in ext.p7 was issued, pursuant to the direction of this court in ext.p5 judgment, to which the appellant was a party. therefore, the appellant cannot turn round and say that the second respondent has no authority in the matter. we agree with the view taken by the learned single judge on this aspect. even if there are vacancies, the employer can decide not to fill up them. if overnight the mavelikkara municipality becomes a waste-free zone, then it may not be necessary to engage contingent workers to do the cleaning work. the appellant does not have any such case. as there is cleaning work, the workers are being engaged to do the removal of waste and garbage. but the said work is being done engaging casual workers. that means the workers who are eligible for regularization are denied that benefit, even though their work is required. whether this can be done taking shelter behind the plea of financial stringency? we think that the action of the municipality is an unfair labour practice, expressly prohibited by section 25t of the industrial disputes act, 1947 and it is made punishable under section 25u of the said act. see item 10 of part i of the 5th schedule of the industrial disputes act, which reads as follows:to employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.financial difficulty is a poor alibi for continuing the unfair labour practice. the employer's right to engage or not to engage workers has no relevance in this case. here, the employer is engaging workmen, but paying only wages at a lesser rate applicable to casual workers. so, the plea of the municipality regarding the employer's right to take a conscious decision, not to engage the workmen, has no application in this case.in the result, we find no reason to interfere with the judgment under appeal. accordingly, the writ appeal is dismissed.