The Commissioner - Nashik Municipal Corporation v. Mujaffarali Arifali Pirjade And ANR.

IN THE HIGH COURT OF JUDICATURE AT MUMBAI

CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7147 OF 2007 WITH CIVIL APPLICATION NO.158 OF 2015 The Commissioner Nashik Municipal Corporation .. Petitioner Vs.

Mujaffarali Arifali Pirjade and another .. Respondents Mr.M.L.Patil, Advocate for Petitioner.

Mr. A.S.Peerzade, Advocate for Respondent No.1.

CORAM

: R. G. KETKAR, J.

RESERVED ON : 26th FEBRUARY, 2015 Pronounced on : 26th MARCH, 2015 P.C. :

.

Heard Mr.M.L.Patil, learned Counsel for the petitioner and Mr. A.S.Peerzade, learned Counsel for respondent No. 1at length. 2.

By this petition under Article 226 of the Constitution of India, the petitioner, hereinafter referred to as 'Corporation', has challenged the judgment and order dated 17/08/2006 passed by the learned Member, Industrial Court, Nashik (for short 'Tribunal') in Complaint (ULP) No. 67 of 2004. By that order, the Tribunal allowed the complaint instituted by respondent No.1, hereinafter referred to as 'Complainant', under section 28 read with Items No. 5, 9 & 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for 1/8

short 'Act') and declared that the Corporation by changing the deemed date and ordering recovery of salary on the basis of the audit report amounted to commission of unfair labour practices under Item 9 of Schedule IV of the Act. The Corporation was directed not to change the deem date given to the Complainant as well as not to make the proposed recovery. The order issued to that effect to the Complainant was set aside. The relevant and material facts, giving rise to filing of the petition, briefly stated, are as under. 3.

It is the case of the Corporation that the Complainant passed S.S.C. in 1981 and was appointed as a Peon on 05/11/1982 by the then Nashik Municipal Council. On 07.11.1982, the Municipal Corporation of City of Nashik was constituted upon amalgamation of - (i) Nashik Municipal Council, (ii) Nashik Road Devlali Municipal Council, (iii) Satpur Municipal Council and some villages. On 17/02/1990, he was promoted as a Junior Clerk. On 06/11/1992, the Municipal Commissioner issued order giving deemed date of promotion to the complainant as a Junior Clerk with effect from 05/11/1982 (as against 17/02/1990).

4.

On 24/01/2001, the Chief Auditor submitted a report to the Municipal Commissioner pointing out therein that the deemed date of promotion given to the Complainant was illegal and could not be 2/8

accepted. In view thereof, the Municipal Commissioner issued a show cause notice on 30/07/2001 enclosing therewith the copy of report dated 24/01/2001 as to why the deemed date given to him be not cancelled and recovery be not made from him. The Complainant gave reply to the show cause notice on 08/08/2001. After taking into consideration all the circumstances, the Municipal Commissioner issued order on 26/06/2002 cancelling the deemed date of promotion as 05/11/1982 and directed to fix the pay scale of the Complainant. In pursuance thereof, the Deputy Municipal Commissioner (Administration) issued order on 05/04/2004 and fixed the pay scale of the Complainant and further directed to recover excess salary paid to the Complainant. 5.

The Complainant instituted Complaint (ULP) No. 67 of 2004 before the Tribunal challenging the orders dated 26/06/2002 and 05/04/2004 passed by the Municipal Commissioner and Deputy Municipal Commissioner (Administration) respectively. The Corporation resisted the complaint by filing written statement. On the basis of the pleadings, the Tribunal framed the necessary issues. The parties led evidence. By the impugned order, the Tribunal held that the Corporation has committed unfair labour practices under Item 9 of Schedule IV of the Act. It is against this order, the Corporation has instituted the present petition under Article 226 of 3/8

the Constitution of India.

6.

In support of this petition, Mr.Patil strenuously contended that basically, the order of the Municipal Commissioner dated 26/06/2002 and of Deputy Municipal Commissioner (Administration) dated 05/04/2004 are legal and valid. The order dated 06/11/1992 passed by the Municipal Commissioner giving deemed date of promotion to the Complainant as a Junior Clerk with effect from 05/11/1982 amounted to creation of imaginary post and making appointment of the Complainant in that post with retrospective effect. This has resulted in severe financial burden on the Corporation. He submitted that by the impugned order, the Tribunal disposed of several complaints instituted by the employees of the Corporation raising identical grievances. This Court (Coram : Abhay S. Oka, J.) has allowed the Writ Petition No.

4091 of 2007 on 20/12/2007 by holding that there is no allegation in the complaint regarding the failure on the part of the Corporation to implement any award, settlement or agreement and therefore, Item 9 of Schedule IV of the Act is not attracted. The Tribunal has held that Items 5 & 10 of Schedule IV of the Act are not attracted. For all these reasons, he submitted that the impugned order deserves to be quashed and set aside, thereby allowing the Writ Petition.

7.

On the other hand, Mr.Peerzade reiterated the submissions that were advanced before the Tribunal. He submitted that the Municipal Commissioner had issued order on 06/11/1992 giving deemed date of promotion as a Junior Clerk. The Complainant was not at fault. He submitted that appointment of the Complainant with the Corporation is itself a contract and/or an agreement and therefore, failure to implement the said contract/agreement amounts to commission of unfair labour practices under Item 9 of Schedule IV of the Act. The Tribunal rightly held that the action of the Corporation in withdrawing the deemed date and benefits given to the employees amounts to the commission of unfair labour practices. He further submitted that the petition is also hopelessly barred by delay and latches. He, therefore, submitted that no case is made out for invocation of powers under Article 226 of the Constitution of India. For all these reasons, he submitted that the impugned order deserves to be quashed and set aside.

8.

I have considered the rival submission made by the learned Counsel appearing for the parties. I have also perused the material on record. As noted earlier, the Complainant was promoted as a Junior Clerk on 17/02/1990. By order dated 06/11/1992, the Municipal Commissioner gave deemed date of promotion as a Junior Clerk with effect from 05/11/1982. The moot question is whether 5/8

the Complainant can be given deemed date of promotion as a Junior Clerk with effect from 05/11/1982. It is evident that the Complainant did not work as a Junior Clerk between 05/11/1982 nd 17/02/1990. Thus, without actually working during that period, he was given deemed date of promotion as a Junior Clerk with effect from 05/11/1982 as also benefits flowing therefrom. I, therefore, find merits in the submission of Mr. Patil. In my opinion, the complainant could not have been given deemed date of promotion as a Junior Clerk with effect from 05/11/1982.

9.

Mr.Patil further relied upon decision of this Court in Writ Petition No. 4091 of 2007 dated 20/12/2007. He submitted that for the reasons set out therein, the impugned order deserves to be set aside. In paragraphs 10 &11 of that Judgment, this Court observed thus :

10. The learned Member of the Industrial Tribunal has held that Items 5 and 10 of Schedule IV of the said Act of 1971 are not attracted and only item which is attracted is Item 9 of Schedule IV. Therefore, the only question to be decided is whether item 9 of Schedule IV is attracted. In the present case it is obvious that there is no allegation in the complaint regarding the failure on the part of the Petitioner to implement any award, settlement or agreement. The learned Counsel for the Petitioner has relied upon a decision of this Court in the case of Divisional Manager v/s. Chimna Arjun Jadhav ( 2001 (4) Mah.L.J. 97). In paragraph 14 the learned Judge held thus:

"To attract item 9 of Schedule IV of the Act it was incumbent upon the complainants to establish that there was any award, settlement or agreement between the parties. In the absence of such evidence, it is not possible to conclude that the petition corporation had engaged in any unfair labour practice within the meaning of item 9 of Schedule IV of the Act". 6/8

11. Reliance has been placed by the learned Counsel for the Respondent on four different decisions of this Court, viz.:

1. 1996 (II) CLR 102 (Hindustan Lever Ltd. v/s. Hindustan Lever Mazdoor Sabha & others)

2. 1981 Mah.L.J. 316. (Petroleum Employees Union v/s. Industrial Court, Maharashtra, Bombay & anr.)

3. 2001 (4) Mah.L.J. 919. (Crest Communication Ltd. Mumbai & others V/s. Ms.Sheetal Shenoy.)

4. 2001 (4) Bom.C.R. 713. (Ceat Limited (Electronics Division) v/s. Anand Aba Saheb Hawaldar & others.) Her submission based on aforesaid decisions is that an agreement between the parties will have to be inferred. It is very difficult to come to the conclusion that there existed any agreement between the parties which provided that the employment of the Respondent will be regularised right from the year 1976. In fact in paragraph 6 of the impugned Judgment and order, the learned Member has observed that the law does not provide for regularisation. In fact there is no finding recorded by the learned Member regarding existence of any agreement or settlement. The learned Judge has not drawn any inference regarding existence of any Agreement.

11. It is thus apparent that Item 9 of Schedule IV is not at all attracted. In the result the impugned order will have to be quashed and set aside.

10.

Perusal of the complaint shows that there is no allegation as regards failure on the part of the petitioner to implement any award, settlement or agreement as contemplated by Item 9 of Schedule IV of the Act. In view thereof, I find that the decision in Writ Petition No. 4091 of 2007 squarely applies even to the facts of the present case. 11.

In the light of the aforesaid discussion, petition succeeds and is allowed. Rule is made absolute in terms of prayer clause (b) and the Complaint (ULP) No. 67 of 2004 instituted by the Complainant 7/8

stands dismissed. In the circumstances of the case, however, there shall be no order as to costs.

12.

In view of the disposal of the Petition, nothing survives in Civil Application No.158 of 2015 filed by the Corporation for stay of the impugned judgment and order and the same is disposed of accordingly.

(R. G. KETKAR, J.) ingale 8/8