Nagar Palika Nigam Sagar vs Dr. M.H. Khan and Another

Hon''ble Shri Justice Rajendra Menon

Challenging an award passed by the Labour Court Sagar in a reference made u/s 10 r/w 12 of the Industrial Dispute Act 1947 this writ petition has been filed by the Municipal Corporation. The award in question is dated 16.4.2004 and is Annexure P-5 to the writ petition, by the said award the labour court has held that respondent Dr. M.H. Khan be regularized as Homeopathy Doctor and all consequential benefit be granted to him. Facts that has come on record indicates that Dr. Khan was appointed as a Homeopathy Doctor in the establishment of Municipal Corporation Sagar vide oder dated 2.5.89, his appointment was made to grant benefit of homeopathy treatment to the citizens of the area in question. Initially he was granted wages as notified by the Collector under Minimum Wages Act from time to time and after his appointment on 2.5.1989 he continued to work continuously for more than 10 years upto 1999. Thereafter he represented for regularization and when regularization was not done, the case of Dr. Khan was taken up by an employees'' Union and the dispute was raised before the competent authority, failing conciliation, the appropriate government made a reference of the dispute on 14.5.1999 and the Labour Court on the basis of evidence and material that came on record having passed the award, the Municipal Corporation has filed this writ petition challenging Annexure P-5 dated 16.4.2004.

Shri G.P. Singh, learned counsel for the Corporation argued that in the establishment of the Municipal Corporation Sagar there were only two sanctioned post of Medical Officer, both these posts are already filled up and as there is no further post for appointment of respondent, the order passed by the Labour Court directing for regularization of Dr. Khan without there being any sanctioned post is unsustainable and illegal. It is also emphasized by him that in view of law laid down by the Supreme Court in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, , regularization of the employee is not permissible. It is argued by him that the Labour Court has given the award primarily on the basis of budget obtained by the Municipal Corporation every year for the post of Medical Officer against which petitioner was working. It is stated that the budget is procured every year from the State Government as routine administrative measure and by misconstruing this procedural aspect of the matter, without proper sanction, the Labour Court has committed an error in directing for regularization. Accordingly, contending that the regularization ordered is unsustainable, learned counsel for the petitioner/corporation seeks for indulgence into the matter.

Shri Shailesh Mishra, learned counsel for the respondents refute the aforesaid and taking me through the statement of workman concerned Dr. M.H. Khan (P.W.1) Annexure P-3, the statement of witness of the establishment Shri Rajendra Prasad Dubey, Annexure P-4, emphasized that ever since his appointment in the year 1989 respondent Dr. Khan was working against the vacant post for which budgetary sanction was granted by the State. He is now in employment for more than 24 years and the payment to him every year is being paid on the basis of the sanction and budget accorded by the State Government as demand made by the Corporation and, therefore as the respondent was working against the post of Homeopathy Doctor for which every year budget was being sanctioned by the State Government now merely on the technical ground that State Government has not sanctioned the post, Shri Shailesh Mishra submits that the claim of respondent workman cannot be rejected.

Taking me through the findings recorded by the Labour Court in para 8 & 9 of the impugned award and documents Exhibit P-1 to P-18 available on record showing that on the basis of the requirement, work of Homeopathy Doctor was taken, for which budget was sanctioned by the State Government every year. Shri Shailesh Mishra argued that now in the back drop of the aforesaid material that have come on record, award passed by the labour court does not call any interference. It is emphasized by Shri Shailesh Mishra that merely because State Government has not accorded the sanction it cannot be construed that post was not available. It is submitted that once budgetary sanction for a particular employee, who was discharging the duties, was obtained and budget was approved by the State Government, inference has to drawn on this act of authorities to show that post was available and, therefore, the contention of the Corporation that sanction was not accorded cannot be accepted.

I have heard learned counsel for the parties and perused the record, there is no dispute with regard to factual assertion as has been made. It is an admitted fact that respondent Dr. Khan was appointed as Homeopathy Doctor on 2.5.1989 and the appointment was made after passing of a due resolution by the Municipal Corporation looking to the need of a Homeopathy Medical Officer to work in the in Corporation area for establishing dispensary. The record also indicates that before appointing respondent Dr. Khan he was approved for appointment by the competent authority of the Corporation and is working for all this period right from 1989 till date of award in the year 2004, every year budgetary sanction was sought for payment of salary/honorarium to Shri Khan in the capacity as a Medical Officer Homeopathy. On the basis of budgetary sanction accorded by the State payments were being made, it was after taking note of all these factors that the Labour Court found that the employee concerned has been working for more than 20 years as budgetary sanction for his post is being granted by the State and, therefore, he is directed to be regularized.

Keeping in view the fact that requirement of workmen is there and sanction for the post is being obtained by the Corporation every year from the State Government, now the only contention of petitioner is that the post was not sanctioned by the State Government, the petitioner cannot be regularized. I am unable to accept the aforesaid contention, merely because the State Government has not sanctioned the post, it cannot be construed that work was not available or the appointment was illegal. On the contrary the overwhelming evidence available and considered by the Labour Court goes to indicate that every year since the respondent was appointed sanction was being sought for his post and for grant of budget for making payment of salary/honorarium to him. Once it is evident from the material available on record that budget was being provided by the State Government and it was only with the concurrence of the State Government that respondent employee continued to work for all this period from 1989 to 2004, I am of the considered view that the labour Court has not committed any error in directing regularization. Considering the fact that the State Government has provided budget for his work, the act of the State Government and the Municipal Corporation in continuing a person in this manner for more than 24 years without granting him proper pay-scale and certain other benefit is an act which amounts to unfair labour practice and is an arbitrary decision, in interfering into the matter and in directing for regularization under such circumstances the Labour Court has not committed any error.

In the present case the law laid down in the case of Uma Devi (supra) will not apply for the simple reason that in this case budget for payment of salary to the employee concerned and sanction of that budget was being granted by the State Government every year and even as on date the said procedure is being followed. It is with the knowledge of the State Government and on the basis of budget granted by the State Government that the employee was working and the fact that of the employee having worked for all this period it has to be assumed that sanction was accorded by implication, accordingly, I find no error in the award passed by the Labour Court directing for his regularization looking to the manner in which employee has worked for all this period. Keeping in view the award passed, the State Government should sanction the appropriate post and ensure that the employee is given adequate pay-scale and other benefit in pursuance to the award passed by the Labour Court. Finding a reasonable award to be passed on due appreciation of the material, which came on record and which does not call for any interference in this proceedings, the writ petition is dismissed. The petition is accordingly dismissed with the aforesaid.