Jaigopal and Others vs Municipal Council, Tumsar and Others

R.K. Deshpande, J.—The petitioner in Writ Petition No. 3863 of 2007 is the complainant who had filed Complaint (ULPA) No. 170 of 2004 invoking the jurisdiction of the Industrial Court under Section 28 read with Items 5, 6 and 9 of the Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short "MRTU & PULP Act"). The case of the complainant was that, he was substantively holding the post of a Sweeper/Peon in the services of the Municipal Council at Tumsar from 01.01.1991, pursuant to the office order of 26.12.1990. According to the complainant, from the month of April, 1999, he was asked to perform the work of a Tractor Driver, which he was continuously performing. It was the case of the complainant before the Industrial Court that one Vijay Bhagchand Shendre, who was joined as respondent No. 3 in the said complaint was junior to him in the post of Sweeper, and in a supersession of his claim, the respondent No. 3 was promoted to the post of Tractor Driver on 30.09.2003. This promotion was confirmed by the Regional Director of Municipal Administration on 13.04.2004. According to the complainant, he was provided the work of a Driver on the vehicles in the Fire Brigade Department of the Municipal Council. The petitioner claimed regularization on the post of a Driver, and also the payment as Driver equivalent to the pay of Driver given to the respondent No. 3 by the Municipal Council.

The Industrial Court has partly allowed the complaint, and the operative portion of the order passed by the Industrial Court is reproduced below:

Complaint filed by the complainant is hereby partly allowed.

It is hereby declared that by continuing the complainant as Class-IV employee and by not sending the proposal of complainant to the Director of Municipal Administration, Mumbai/State Government for regularization of his services as Driver and for creation of post of Driver the respondents have engaged in unfair labour practices under Item-9 of Schedule-IV of the MRTU & PULP Act.

The respondents are directed to prepare proposal of complainant for the post of Driver, if he is qualified to be appointed on the post of Driver and to send the same to Director of Municipal Administration/State Government through proper channel within 30 days from the date of receipt of this order to enable the Director of Municipal Administration/State Government to take decision on the said proposal sent by the Municipal Council, Tumsar within six months from the date of receipt of proposal.

The respondents are further directed to pay wages of the post of Driver to the complainant on minimum pay scale of driver on the basis of principle of ''equal pay for equal work'' from the date of this order till the date of decision of the Director of Municipal Administration/State Government on the proposal sent by Municipal Council, Tumsar.

No order as to costs.

The Municipal Council, Tumsar has filed Writ Petition No. 990 of 2008 challenging the aforesaid reliefs granted to the complainant, whereas the complainant has filed Writ Petition No. 3863 of 2007 to the extent the Industrial Court refused to grant regularization in service on the post of Driver. Both the matters are therefore, heard together, and are being decided by this common judgment.

The undisputed factual position is that the complainant is the permanent employee holding substantively the post of Sweeper/Peon since the date of his initial appointment w.e.f. 01.01.1991. The respondent No. 3 -Vijay Bhagchand Shendre was appointed on the post of Sweeper/Peon initially on 11.05.1990. The Regional Director of Municipal Administration has set aside/cancelled total 113 appointments in Class-IV category made during the period from 30.04.1990 to 16.05.1990, which includes the appointment of respondent No. 3 on the Class-IV post of Sweeper/Peon. In spite of this, the respondent No. 3 has been continued in service and was also promoted to the post of Tractor Driver on 30.09.2003, and this appointment was confirmed by the District Collector in exercise of his power under Section 308 of the Maharashtra Municipalities Act, 1965 on 13.04.2004 (for short "the said Act").

The Industrial Court has in categorical terms recorded the finding on the basis of the evidence of Chief Executive Officer of the Municipal Council, who entered the witness box that as per the revised pattern approved by the Government of Maharashtra only one post of Tractor Driver has been sanctioned and one post is purely temporary. It is the further finding recorded that one Jaigopal Shankar Ragde was working on the post of Driver, whereas the respondent No. 3 was promoted in the vacant post of Tractor Driver on 24.09.2003. It is also the categorical finding recorded by the Industrial Court on the basis of the evidence of the Chief Officer that the post of Driver was not a promotional post, but it was to be filled in by way of direct recruitment, and that the promotion granted by resolution dated 24.09.2003 to the respondent No. 3 on the post of Tractor Driver was illegal. I have verified these facts from the evidence of the Chief Officer of the Municipal Council, which is placed on record, and I do not find any infirmity in such findings recorded by the Industrial Court.

It is also the categorical finding recorded by the Industrial Court that the complainant has been working as Driver continuously from April, 1999. This finding is recorded on the basis of the documents produced by the Municipal Council at Exh.49 dated 26.06.2001, Exh.50 dated 16.10.2002 and Exh.51 dated 06.12.2003. It is also the finding recorded that though, there are no written orders to the complainant to work on the post of Driver, but he had worked on such post on the basis of oral instructions of his superiors. The evidence brought on record clearly shows that there are about 4 to 5 vehicles in the Health Department, and one vehicle in the Fire Brigade Department. There is also an order placed on record dated 05.02.2002 showing that the complainant was working as Tractor Driver, and was temporarily transferred to work in the Fire Brigade Department. The complainant is continuously working on the post of Driver is the fact, which is not disputed any where.

In view of the aforesaid undisputed factual position and the findings recorded by the Industrial Court, it is apparent that there is discrimination practiced by the Municipal Council. Though, the initial appointment of the respondent No. 3 -Vijay Bhagchand Shendre was held to be illegal on the post a Sweeper/Peon, he was granted promotion on the post of a Tractor Driver by resolution dated 24.09.2003. The Chief Officer of the Municipal Council has admitted in his deposition that such promotion was illegal. The respondent No. 3 was working on the post of Tractor Driver from the date of his promotion on 24.09.2003, and he is being paid the salary as a Tractor Driver. The complainant was holding substantively the post of Sweeper/Peon from the month of April, 1999, the Municipal Council is extracting from him the work of a Driver, but the complainant is being paid salary as Sweeper/Peon. This attracts the provision of Item 5 of Schedule IV of the Unfair Labour Practices Act, showing favoritism or partiality to one set of workers, regardless of merits. Even otherwise on the basis of ''equal pay for equal work'' the complainant was entitled to get the salary on the post of Driver, which is being extracted from him continuously. In view of this, no fault can be found with the relief granted by the Industrial Court in favour of the complainant by directing the Municipal Council to pay the complainant salary in the minimum scale of Driver on the basis of the principle of ''equal pay for equal work''. However, the Industrial Court should have held that the complainant is entitled to such salary from the date of his appointment as Driver in the month of April, 1999.

The complainant has not made out any case for regularization in service. It is not the case that the respondent No. 3 has been regularized on the post of a Tractor Driver and, there is no such order produced on record regularizing his service as Tractor Driver. There is only one post of Tractor Driver in Fire Brigade Department, and there are other post of Drivers in the Health Department of the Municipal Council. It is for the Regional Director of Municipal Administration to decide as to whether such post should be sanctioned or not, and whether the persons working on such posts are to be regularized in service. In the absence of existence of sanctioned post and the recruitment to such post in accordance with law or granting regularization to the employees who are already working on the post by the Competent Authority, the Industrial Court could not have passed an order directing consideration of proposal for regularization. The order to that extent passed by the Industrial Court, therefore, need to be set aside.

In the result, both these petitions are partly allowed. The judgment and order dated 05.10.2006 passed by the Industrial Court in Complaint (ULPA) No. 170 of 2004 is modified as under:

a] It is declared that the respondent -Municipal Council was engaged in an unfair labour practice as contemplated under Item 5 and 9 of Schedule IV of the MRTU and PULP Act in depriving the complainant wages in the minimum scale available for the post of Driver.

b] The respondent -Municipal Council, Tumsar is directed to pay the complainant wages in the minimum scale of Driver w.e.f. April, 1999 till this date, and to further continue to pay him such wages till the work is extracted from him on the post of a Driver.

c] The entire arrears due and payable to the complainant shall be released and paid to him within a period of 90 days from the date of this judgment.

d] The order passed by the Industrial Court to the extent it directs consideration of proposal for regularization of the complainant on the post of a Driver, is hereby quashed and set aside.

e] It shall be at the discretion of the Competent Authority to consider the question of regularization of the employees on the post of Driver, if it is so advice in accordance with law and any observation made in this judgment shall not come in the way of parties. No order as to costs.