Republic Shramik Brigade And ORS. v. Bhiwandi Nizampura Municipal Corporation And ORS.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 11806 OF 2017 Republic Shramik Brigade and others

...Petitioners

Vs.

Bhiwandi Nizampura Municipal Corporation and others

...Respondents

Mr. Mahesh Thorat, along with C.G. Jadhav, for the Petitioners. Mr. N.R. Bubna for the Respondents.

CORAM: S. J. KATHAWALLA, J.

DATE: 1 ST NOVEMBER, 2017 P.C.:

1.

By the above Writ Petition, the Complainants have challenged the interim order dated 22nd September, 2017, passed by the Member, Industrial Court, Thane in Complaint (ULP) No. 328 of 2013 rejecting the Complainants application seeking restraint orders against the Respondent-Corporation from reverting the employees shown in Annexure-A to the Complaint, from their post of Peon to the post of Safai Kamgar and for other reliefs. 2.

The Complainant No.1 is a registered trade union and amongst others the workers involved in the above complaint are its members, In the above complaint, the Complainants have alleged that the employees listed in

2 / 8 Annexure-A to the complaint are working on vacant posts as Peon since the date of their joining but on record they are shown as Safai Kamgar in the order of appointment and further communications. As they are working on the said post continuously for years, they have right to continue to work on the said posts. The Respondents have proposed to alter their said service conditions informing them to work on the post of Sanitary Workers. The said act of the Respondents amounts to an illegal change. The Respondents are deliberately not promoting eligible Class IV employees to Class III cadre. As per the provisions of the Model Standing orders, on completion of 240 days continuous service as Peon, these employees are deemed to be permanent on the said post. The Complainants also moved an application seeking interim relief restraining the Respondents from reverting the employees from their post of Peon to the post of Safai Kamgar.

3.

The Respondents filed their written statement ( Exhibit C-5) as well as reply ( Exhibit C-2) to the interim relief application before the Industrial Tribunal, Thane and denied commission of unfair labour practices alleged in the Complaint. The Respondents have admitted that they have issued orders directing the employees involved in the present complaint to join their original duty. It is submitted that Safai Kamgar is their original post. Therefore, the

3 / 8 order of the Corporation is valid and binding on them. It is specifically denied that the work of employees as Peon is continuous in nature and they are working on permanent vacant post. The Respondents submitted that the job of Peon was allotted to the employees due to administrative exigencies of work, therefore, they are not at all entitled to get permanency in the said posts. It cannot be termed as a service condition because they joined as Safai Kamgar on permanent regular post. They are fully aware about their duties being Safai Kamgar. They anyhow managed postings to comparatively comfortable jobs. However, these postings are temporary and without following any selection procedure. Therefore, Complainants have no right to continue on said posts. Employment, recruitments, promotions etc.

in the Corporation are governed by the provisions of the Maharashtra Municipalities Act, 1949 and the Maharashtra Civil Service Rules. Roster is prepared as per directions of the Government for filling vacant posts, caste-wise reservations etc. Complainants have not established prima facie case. Balance of convenience is also not in their favour and the interim relief application be rejected.

4.

The Learned Member of the Industrial Court has whilst rejecting the Application of the Complainants seeking interim relief held as follows : 4.1 That undisputedly the employees involved in the Complaint are

4 / 8 governed by the Municipal Rules and Regulations being permanent employees. They are claiming benefits of permanency over another post. They have produced documents on record to show that there are vacant sanctioned posts available in the category of Peon. However, it cannot be ignored that the Corporation being a quasi-Governmental authority is bound by Rules and Regulations framed by the Government from time to time in respect of employment, recruitment and promotion. 4.2 That though it appears that these employees worked as Peon for some period and performed work other than their original work, it does not prima facie mean that they acquired any right over the said post. 4.3 That working on post of Peon temporarily, while holding another permanent post prima facie cannot create right of permanency over the said post. These instances at the most can be termed as allotment of work in administrative exigencies.

4.4 That therefore prima facie there is substance in the argument of the Respondents that it will not create any right over other vacant posts, particularly when the Complainants are working on regular permanent sanctioned post of Safai Kamgar.

4.5 That the contention raised by the Learned Counsel for the Complainants in respect of work done by these employees for 240 days and more, and

5 / 8 the applicability of the Model Standing Orders to acquire permanency over said posts has to be decided on merits and on the basis of appropriate oral and documentary evidence at the appropriate stage. Further, applicability of Rule of 240 days, to employees who are already holding permanent regular cadre post is necessary to be decided on merits. Hence, considering the peculiar facts of their case, interim relief cannot be granted only on the basis of work done for more than 240 days by the Complainants.

4.6 That the contention of the employees that they have relinquished their right of employment to legal heirs on compassionate ground, is not established by any documentary evidence. However, even if it is presumed that these workers have filled the proforma as required by the Corporation, the question that arises is whether the submission of the said form automatically entitles them to claim permanency in other posts. No Rule/Regulation or Government Resolution is produced to show that by giving such consent, these workers will get benefit of the post of Peon as a matter of right.

4.7 That the employees involved in the present complaint have joined their services as permanent Safai Kamgar. It is a regular cadre appointment and they accepted it voluntarily with full knowledge about the status of the

6 / 8 said post. After working on some other post for temporary period, now they cannot deny their original/permanent post on the ground of lowering of status.

4.8 That the decision of the Hon'ble Apex Court in Secretary, State of Karnataka vs. Umadevi and others1 is well applicable to the present case in which it is held by the Hon'ble Apex Court that jurisdiction of Court cannot be exercised on misplaced sympathy.

4.9 That the Complainants will not be benefitted by the G.R. dated 15th April, 1991 to establish a prima facie case of unfair labour practice under Item 9 of Schedule IV of the MRTU & PULP Act and at this stage it is not established by the Complainants that the Corporation has violated the Government Resolutions.

4.10 That in view of the ratio laid down by the Constitutional Bench of the Hon'ble Apex Court in Umadevi's case (supra), working for some period on any particular post without following proper procedure of appointment, cannot confer any right over the said post. Therefore, prima facie, no violation of Item 9 of Schedule IV of the MRTU & PULP Act has taken place.

4.11 That the contention of the Complainants that the Respondents have 1 [2006 II CLR 261 (SC)]

7 / 8 committed unfair labour practices falling under Item 6 of Schedule IV of the MRTU & PULP Act, by using these employees as "badli, casual or temporary" and continued them as such for years, thereby deprived their status of permanency to the said post cannot be accepted. The documents on record produced by the Respondents prima facie goes to show that these employees are appointed as Safai Kamgar on permanent vacant posts, their appointment on said post is by following the due procedures and they are getting all the benefits, which are applicable to the said permanent post. The complainants now cannot claim that the subsequent post is "badli, casual or temporary" and also cannot claim violation of provisions of item 6 of Schedule IV of the Act in respect of the permanent post. The same would be a misuse of the said provision, which is meant for helping the actual badli, casual and temporary employees working for long time without getting benefits of the permanent post.

4.12 That the Counsel for the Corporation has submitted a copy of common judgment of the Industrial Court, Thane given in Complaint (ULP) No. 352 of 1997 and other 4 complaints dated 13th February, 2004 wherein similar type of cases were decided finally by the Industrial Court, Thane in which the claim of Safai Workers claiming post of either Clerk/Peon

8 / 8 etc. was rejected. The said decision was upheld by this Court. The said decision is therefore binding on the Tribunal. 4.13 That the Complainants have not established prima facie case of unfair labour practices. No irreparable loss will cause if these employees will be again directed to work on the same post for which they were permanently appointed. There is no question of lowering the status by doing the work of Safai Kamgar which is their original post and accepted by them with full knowledge. The balance of convenience lies in favour of the Corporation. 5.

Therefore, in my view, the order passed by the Member, Industrial Court is a well reasoned order passed after appreciating the facts as well as law on the subject and needs no interference by this Court under Articles 226 and 227 of the Constitution of India. The above writ petition is therefore dismissed. (S.J. KATHAWALLA, J.)