(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 3238 OF 1992 (Aurangabad) (i.e. WRIT PETITION NO. 3348 OF 1988 (Bombay)) WITH WRIT PETITION NO. 1017 OF 1995 WRIT PETITION NO. 3238 OF 1992 (Aurangabad) (i.e. WRIT PETITION NO. 3348 OF 1988 (Bombay)) Shrirampur Municipal Council, Shrirampur, District : Ahmednagar, through Chief Officer, Municipal Council, Shrirampur. .. Petitioner. versus 1. Shri V.K. Barde, Member, Industrial Tribunal, Ahmednagar. 2. Sarva Sramik Sangha, Trade Union, having its office at Tilak Road, Ahmednagar. 3. Shrirampur Municipal Servants Union, C/o. Shankar Bhavan, Sangamner Road, Shrirampur, District Ahmednagar Both Respondent Nos.2 and 3 representing the workmen employed under the Municipal Council, Shrirampur. (2) 4. Director of Municipal Administration, New Administrative Building, 15th Floor, Opp. Mantralaya, Bombay 400 032. 5. The State of Maharashtra. .. Respondents. ....................... Mr. V.S. Bedre, Advocate, for the petitioner. Respondent no.1 is formal party. Mr. S.K. Shelke, Advocate, for respondent no.2. Mr. D.D. Pokharkar, Advocate, for respondent no.3. Mrs. V.A. Shinde, Assistant Government Pleader, for respondent nos.4 and 5. ........................ WRIT PETITION NO. 1017 OF 1995 Shrirampur Municipal Council, Shrirampur - At Post and Taluka Shrirampur, District : Ahmednagar, Through its Chief Officer. .. Petitioner. versus (3) 1. Ahmednagar Zilla Nagar Palika Kamgar Union, Trade Union Centre, Tehsil Kacheri Road, Shrirampur, Dist. : Ahmednagar, Through its President. 2. The Industrial Court, Ahmednagar. .. Respondents (No.1 - Original 3. The State of Maharashtra, complainant through Secretary, & Urban Development Department, No.2 - Tribunal Mantralaya, Bombay. below) .......................... Mr. V.S. Bedre, Advocate, for the petitioner. Mr. S.K. Shelke, Advocate, for respondent no.1. Respondent no.2 is formal party. Mrs. V.A. Shinde, Assistant Government Pleader, for respondent no.3. ************** CORAM : B.P. DHARMADHIKARI, J. DATE : 31ST MARCH 2011. ORAL JUDGMENT : 1. Petitioner before this Court in both the matters is a (4) local body constituted under the Maharashtra Municipal Councils, Nagar Panchayats & Industrial Townships Act, 1965 ( hereinafter referred to as 1965 Act) while the Trade Union of its workmen are the respondents. Basic challenge in the 1992 petition filed under Art. 226 of the Constitution of India is to award-II dated 8/10/1987 delivered by Industrial Tribunal, Ahmadnagar in Ref.(IT) 6 of 1984 with prayer to quash relief granted in relation to demand 1,2 & 4.The reference was made by State of Maharashtra under S.12(5) of the Industrial Disputes Act,1947 ie IDA hereafter. Demand no. 1 is about increase in sanctioned posts on establishment schedule of the Petitioner. Demand no. 2 is to grant permanency to all those who have put in more than 180 days work with consequential benefits like pay-scales, D.A.etc & to continue to confer permanency in future on all workmen completing that period. By demand no. 4 the Union sought wages per day calculated by dividing the salaried of permanent staff by 26 ie at 1/26 by invoking the concept of equal pay for equal work. 2. In W.P. 1017/1995, the employer Municipal Council has assailed the interim order passed on 23/1/1995 under provisions of S. 30(2) of the Maharashtra Recognition Of Trade Unions & Prevention Of Unfair Labour Practices Act,1971-- stated as ULP Act hereafter. By that order, the Industrial Court at (5) Ahmadnagar has directed to pay wages to 108 workmen in schedules A,B & C appended to Complt. ULP 391 of 1994 filed before it by following the principle of equal pay for equal work at 1/26th of the permanent workmen. Main complaint is under section 28(1) read with items 5,9 & 10 of schedule IV of the ULP Act. 3. W.P. 3238 of 1992 is filed at principal bench of this Court where it was registered as WP 3348 of 1988. On 30-11-1988, the Division Bench of this Court noted that grant of permanency by Petitioner in obedience to the orders of Labour Court did not constitute violation of any government circular or decision or direction. Respondent State government was given time to controvert this legal position which appeared to be "fairly clear" to the division bench. Bench also noted that out of 198 workmen covered by the decision of labour court, about 110 were already given permanency from 4/6/1988 on their giving up the claims for period prior to it. It appears that on 7/12/1988 the division bench admitted the petition only on prayer "(aa)" which sought direction to state government to sanction additional posts as per impugned award & to take them on establishment schedule. Rule on other prayers was rejected by saying--"Not granted, regarding other prayers". On 12/10/1992, matter came to be transferred to this bench. On 26/8/1994, (6) petition was allowed to be amended. It was thereafter found in October or November,2003 that surviving subject matter pertained to domain of the division bench. Division Bench vide judgment dated 12/12/2003 disposed of the petition by directing petitioner to regularise remaining workmen from 1/9/1988 with all consequential benefits like permanent workmen. A direction to pay difference in minimum wage & actual payment to others not regularised for the period from 4/6/1980 till 31/8/1988 was also issued. Retired workmen or legal representatives of deceased workmen were also declared entitled to these benefits. Their claims for compassionate employment were also directed to be disposed of according to policy governing it. service rendered from 4/6/1980 was directed to be computed for all such purposes. Director of Municipal Administration & State Government were directed to dispose of proposal submitted by petitioner municipal council for creation of posts within 3 months. 4. Developments in WP 1017 of 1995 are not much different. By very first order dated 7/3/1995, this Court extended time to comply with the impugned interim directions of Industrial court "until further orders". On 30/3/1995, this Court directed State Government to keep its responsible officer not below the rank of under secretary present on 5/4/1995 in so far (7) as liability of State is concerned. On 18/4/1995, State government is added as party in this petition after noting that it was already party respondent in connected matters. On 27/4/1995, the above order of division bench dated 30/11/1988 at Bombay is also noticed. Rough calculation of burden to be shouldered by Municipal Council is noted to be Rs. 2,59,42,320/ as disclosed by it and contention that State Government has to pay D.A. at 85% on it is also recorded. That 85% amount is stated to be about Rs.1.26 Crores for 200 workmen. State was then directed to deposit sum of Rs. 30 lac in this Court. Municipal Council was then directed to pay minimum wages to all persons involved in writ petition. Petition was then placed before the same Division Bench which had then disposed of WP 3238/1992 on 12/12/2003 on very same date. Because of its directions in said judgment, Division Bench also disposed of WP 1017/1995 by modifying the impugned directions of Industrial Court to that extent. Amount of Rs. 30 lacs in deposit was refunded to State Government with accrued interest. 5. These judgments dated 12/12/2003 & order dated 7/12/2008 of division bench admitting the writ petition 3238/1992 only on prayer "(aa)" were then questioned before the Hon. Apex Court in Civil Appeal no. 3651,3652,3653 & 3654 of 2005. Hon. Apex Court found rejection of other prayers (8) in WP 3238/1992 on 7/12/1988 without recording any reasons in support unsustainable. Hon. Apex Court noted that question whether Industrial tribunal was justified in directing regularisation of adhoc workmen in absence of sanctioned posts against which it could have been done did arise. Question whether Industrial Court could have issued a direction to obliging Municipal Council or State Government to create posts when none existed also had arisen. Hence, the dismissal of petition in part on 7/12/1988 has not been upheld. In relation to judgment dated 12/12/2003, Hon. Apex Court found that said division bench did not consider whether a direction to pay higher emoluments arising out of sanction subsequently granted by the government or independent thereof could have been issued. Hon. Apex Court has noted the admitted inability of Municipal Council to bear additional financial burden and its heavy dependence on Government for aid to meet even the wage bill. As all these aspects are not looked into, the Hon. Apex Court has allowed Civil appeals before it on 3/2/2010 & remitted matters back for fresh hearing in accordance with law. 6. Both the matters were then placed before the division bench and on 13/9/2010, the Division bench after noting the submission of respective Counsel for parties ordered that as per chapter XVII Rule 18 clause 9 of the Bombay High Court (9) Appellate Side Rules,1960 matters needed to be heard by the Single Judge of this Court. Accordingly, I have heard the respective Counsel. It needs to be mentioned that no arguments in relation to any of the amended prayer clauses in WP 3238/1992 are advanced by any of the parties & hence, learned AGP was also not required to place side of Government in that respect before this Court. Thus, the reliefs in terms of those prayers is given up in said writ petition. 7. Shri Bedre for petitioner Municipal Council has after briefly pointing out the facts as above, contended that the Industrial tribunal does not possess jurisdiction to order even indirectly the creation of posts which is purely an executive feat dependent on several factors. He states that demand no. 1 & 2 before the Industrial Court in reference proceedings are not relatable to any entry in third schedule of IDA and it is not classification by grades also as envisaged by item 7 therein. He invites attention to relevant provisions of the 1965 Act to urge that petitioner has no power to create posts and that power is with State Government. He also argues that back door entrants like present workmen can not be made permanent or regularised and award of Industrial Court is unsustainable. The direction to pay them at 1/26th the minimum wage payable to permanent workman is without jurisdiction as in the absence of wholesale (10) identity, doctrine of equal pay for equal work is also not attracted. In the alternative, he urges that the benefit flowing from impugned award needs to be restricted only to those 198 workmen before the Industrial Court and same can not be extended to subsequent entrants and it can not be used as a precedent. According to him some other workmen joining subsequently have used this award to obtain similar directions from industrial court. Further, he pleads that said award does not entitle the beneficiary to any pension or retirement benefits like a permanent workman and to compassionate job. He further attempts to demonstrate that all 198 workmen involved in reference matter are yet to be absorbed against sanctioned strength for want of vacancies. He also points out that as this Court did not grant any interim relief, the petitioner municipal council had no option but to comply with impugned directions and to spend from its own funds which adversely affected its development activities. Therefore only though State Government sanctioned about 110 posts,as D.A. therefor was not to be reimbursed by the Government, Municipal Council could absorb only 20 or 21 of the 198 workmen and ultimately those posts lapsed. 8. He relies upon the judgment of Hon. Apex Court reported at (2001) 7 SCC 346--Mahatma Phule Agricultural (11) University v. Nasik Zilla Sheth Kamgar Union to argue that when there are no sanctioned vacancies, no permanency can be granted. (2007) 13 SCC 231-- State of Punjab vs. Surinder Singh is pressed into service to submit that doctrine of equal pay for equal work has no application in these facts. He buttresses his stand by pointing out (2007) 8 SCC 279 -- AIR 2007 S.C. 3021 "S. C. Chandra v. State of Jharkhand" & (2007) 13 SCC 231-- State of Punjab vs. Surinder Singh. Constitution Bench judgment of Hon. Apex court in case of Secretary, State of Karnataka vs. Umadevi reported at AIR 2006 SC 1806 is pressed into service to contend that these daily rated workmen had no right to post or to claim regularisation or permanency. Judgment of Hon. Apex Court reported at (2009) 8 SCC 556-- Maharashtra SRTC v. Casteribe Rajya Parivahan Karmchari Sanghatana, is also heavily relied upon to show how the existence of vacancy/sanctioned post is pre-requisite for issuing such a direction even by Industrial Court. 9. Adv. Shelke and Adv. Pokharkar for respective trade union support the award & the impugned interim order of the Industrial Court. According to them, law does not envisage any procedure for recruitment to class IV or grade IV posts in municipal establishment. The challenge therefore on the ground of alleged back-door recruitment has to fail. On 4/6/1980, (12) registered trade union and hence, for computation of seniority & service benefits including gratuity/pension said date was correctly accepted by this Court on 12/12/2003.Demand no. 3 in Ref. 6/1984 was settled by giving permanency to 50 workmen as per award-I dated 20/7/1982. That award was never challenged by Municipal Council and has attained finality. Instant impugned award ie award-II is dated 8/10/1987 & is published in government gazette dated 7/7/1988. While granting relief under demand 2. Industrial Court directed all those who had put in 240 days continuous service prior to 4/6/1980, to be accorded permanency from the said date & on post on which he rendered that service. In relation to demand no. 4. Industrial Court directed payment of daily wage at 1/26th of monthly salary of the permanent workman doing same work from 4/6/1980 till grant of permanency. In 1988, 110 workmen gave up past arrears from 4/6/1980 to 31/8/1988 and hence, Municipal council regularised 110 workmen from 1/9/1988 against the newly sanctioned posts. 21 workmen who did not relinquish their past benefits were given permanency from 1/7/1994. By that time, 13 workmen had expired and their legal heirs have still not received any benefits due & payable to these 13. He states these orders to 21 workmen are due to directions of this Court in WP 5816/1995 & 5817/1995. WP 4044/1991 came to be filed by trade union for direction to employer & State to implement (13) award II dated 8/10/1987. As there was no stay and WP 3238/1992 (Old 3348/1988-Bombay) rejected the challenge on merits, WP 4044/1991 came to be admitted for hearing along- with WP 3238/1992. 10. Union also filed ULP Complt. 507 of 1988 for declaration of non-implementation of award-II dated 8/10/1987 as an unfair labour practice and on 22/10/1992, Industrial Court while granting that declaration directed Municipal Council to make permanent 30 workmen mentioned in the list from 4/6/1980 and to pay their arrears within 3 months. Similar direction was given in relation to 15 dead workmen and their arrears were directed to be paid to legal heirs. WP 176/1993 filed against it by Employer is admitted but no interim relief has been given. Misc. ULP 3/1993 came to be filed by the Union for recovery of amount under S.50 of ULP Act and objection of Municipal Council to its tenability was rejected on 8/4/1994. WP 1641/1994 filed by Municipal Council is admitted & stay has been granted on 14/4/1999 to further proceedings. In Misc. ULP 6/1993, Industrial Court granted recovery certificate for Rs. 5,84,700/- under S. 50 of ULP Act in respect of 50 workmen and this Court has on 22/7/1996 in WP 5816/1995 granted stay to further proceedings. Similar recovery certificate issued on 29/9/1995 in Misc. ULP 9 of 1993 for Rs. 15,00761/- in relation (14) to 40 workmen is stayed in WP 5817/1995 on 22/7/1996. He also points out how for different period and for different number of workmen these three Misc. ULP Applications under S. 50 of ULP Act have been filed. Total 121 workmen or their interests are claimed to be involved in these matters with claim amount of Rs. 50,21,758/-.He therefore urges that a simple direction to Employer to release these amounts is essential. Further, all these workmen are entitled to benefits of pay revision/fixation as per 4th & 5th pay commissions reports. He further argues that some of these 198 workmen who were made permanent retired upon reaching the age of superannuation & are also receiving pension. In other matters, service from 4/6/1980 should be directed to be taken into account for grant of such retirement benefits. In cases where the workmen have expired, the due benefits including consideration of claim for compassionate service should be made available to legal heirs. He also claims interest @15% on such withheld amounts. WP 1641/1994,176/1993, 5816 & 5817 of 1995 filed by the Municipal Council have been dismissed by this Court and that was not questioned further. Hence, the situation as on to-day is irreversible and this Court should refuse to interfere at this stage. He also contends that against later vacancies becoming available in due course, remaining workmen could have been accommodated but then malafidely, new persons or juniors have been preferred and legal claims of (15) these workmen have been defeated. Therefore also this Court should not interfere. 11. On merits of the challenge, learned Counsel invite attention to provisions of S. 17,17A of IDA and contends that decision not to withhold the publication of award is the conscious decision of the State Government and having permitted award-II to become operative, State can not now back out of its consequential obligations to take necessary steps to see that it is honoured. He contends that State Government itself is party to the proceedings. He also reads out relevant paragraphs of the impugned award to show how all relevant facts and law find due consideration therein. According to him financial condition of petitioner is not bad and its expenditure on administration also does not exceed the ceiling imposed by State. Grant of permanency is as per model standing orders and after completion of 240 days. The demand 2 is correctly found covered by item 7 of third schedule of IDA. Alleged bar under S. 76 of 1965 Act is also noted and it is correctly found that as workforce does not increase, there is no creation of new posts. They also point out two judgments of Hon. Apex Court relied upon by Industrial Court to apply doctrine of equal pay for equal work. They draw support from (2009) 8 SCC 556--Maharashtra SRTC v. Casteribe Rajya Parivahan Karmchari Sanghatana, to (16) demonstrate how AIR 2006 SC 1806 does not deprive Industrial Court of its welfare jurisdiction & special powers as an industrial adjudicator under IDA or ULP Act. Heavy reliance is placed on (2001) 7 SCC 346--Mahatma Phule Agricultural University v. Nasik Zilla Sheth Kamgar Union & AIR 1996 SC 2898—Chief Conservator of Forest vs. Jagnnath Maruti Kondhare to justify the approach of the Industrial Court. No duty is cast upon any workman to find out whether vacancies exist in sanctioned strength or number of sanctioned posts. According to learned Counsel, it is normal practice to first obtain appropriate order under relevant labour law from either the labour or the Industrial Court and then to approach State Government for sanction. Reliance is also being placed on unreported judgment of Division Bench of this Court in SCA 641/1977-- Kopargaon Municipal Council vs. Municipal Kamgar Union, Kopargaon & another decided on 4/8/1986 at Bombay. Stand of Municipal Council that many out of 110 posts sanctioned in 1994 lapsed is argued to be false. Lastly, it is prayed that impact of an adverse order disturbing the prevailing position on workmen , now at advanced stage of life and their dependents or legal heirs after so many years must also be considered. 12. Adv. Bedre, in brief reply points out that all writ (17) petitions filed by Municipal Council arose out subsequent cases filed by Union to execute the impugned award dated 8/10/1987 only and were disposed of by same Division Bench because of its directions in judgment dated 12/12/2003 in WP 3238/1992 (present WP) which has been set aside on 3/2/2010 by the Hon. Apex Court. He therefore argues that there was no need to separately assail those orders before the Hon. Apex Court. 13. At this stage, it will be proper to first briefly consider the application of mind by the Industrial Court in award II dated 8/10/1987. Demand 1 is about increasing the number of posts on establishment schedule. Demand co-related with it by the Industrial Court is demand 2 of grant of permanency. In its statement of claim itself filed in justification of this demand it is pleaded by Union that permanent post cab be sought in municipal council only after Government approves establishment schedule and it takes time of 3 to 5 years. It is also expressed that even thereafter there is no guarantee that while filling in those posts precedence would be given to daily wagers. Paragraphs 28 to 54 of the award show consideration of demand 1 & 2. Industrial Court has found these demands interlinked in para 32. In para 28, S. 76 of 1965 Act requiring prior sanction of State Government for creation of additional posts is noticed. In para 29 item 11 of fourth schedule of IDA giving jurisdiction to (18) it to consider increase or decrease in number of persons to be employed in any process or occupation or department or shift after S. 9A notice is noted. It also found that there is no such specific item in third schedule and hence demand to increase number of posts is not be covered by that schedule or then S.7A of IDA under which Union had given the notice. Demand 1 & 2 are then held to be connected with the service conditions and effort was to regularise the classification & grades of daily wagers working as such for years together. It is held that already there are various workmen with municipal council on various posts mentioned in schedule A being paid wages but then their services were not properly classified. By grant of permanency, their services would be classified & graded and result in no new workman or new employment. The demand is therefore found covered under item 7 of third schedule. In para 30, contention that creation of new post is managerial job & not of Industrial Court or then of bar under S. 76 of 1965 Act is mentioned and due to its previous finding, it is held to be not creation of new post. It is also held that when workmen are continuing since long and there is unfair labour practice, as Municipal Council or State were not doing their job, the Court has to step in. Paragraph 31 continues very same logic further to observe that in so doing the Industrial Court was not encroaching on authority of Municipal Council or State Government and to hold otherwise would (19) render the very creation of machinery under IDA meaningless. Analogy applied by Hon. Apex Court in Workmen employed by Hindustan Lever Ltd. & Hindustan Lever Ltd. reported at AIR 1984 SC 1683 - 1984 (49) FLR 364 to confirm employees acting continuously in higher grade in those grades is found applicable to facts before it. Para 33 then mentions the evidence about weak financial condition and ceiling of 40% on establishment expenditure. Para 34 finds that then Municipal Council was paying entire wages to daily wagers and after grant of permanency, State would be required to pay 80% of the DA and Government would be paying more grants. In para 35 it accepted that financial condition of Municipal Council was not good. But then it found that with grant of permanency to daily wagers as it would receive grants from State, its burden would be reduced. Then it expresses its own views on mode & manner of calculation of establishment expenditure in para 36. it found that there is no ceiling on expenses the Municipal Council has to incur to render services to citizens & wages being paid to workmen employed for cleaning town & sewers, maintaining and supplying water, fire fighters, ambulance