1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6792 OF 2009 Mr. Bapu Baban Kale .. Petitioners Vs The President, Nagar Panchayat, Malkapur, Tal. Karad, Dist. Satara .. Respondents Nitin A. Kulkarni for the petitioners Umesh R. Mankapure for the respondent CORAM : Smt. V.K. TAHILRAMANI, J. DATE : 7th August, 2009 P.C.: 1. Heard the learned counsel for the petitioners (the original complainants) and the learned counsel for the respondents (Nagar Panchayat). 2. It is the case of the petitioners that they were appointed by the Grampanchayat, Malkapur pursuant to the resolution dated 28th March, 2008 passed by the Grampanchayat and pursuant to the said resolution, they came to be appointed and they started working since Rma wp6792-09.sxw 2 2nd April, 2008. According to them, the resolution dated 28th March, 2008 was passed pursuant to the agreement between Malkapur Grampanchayat and the Jaybhavani Hamal Mazoor Kamgar Sanghtana on 25th March, 2008 wherein as per the Clause 14, nine new employees were to be taken in employment of the Grampanchayat. However, thereafter, by notification dated 5th April, 2008 issued by the Government , Malkapur Nagar Panchayat came into existence. Thereafter, administrator came to be appointed who has taken charge on 21st April, 2008. The case of the petitioners is that the administrator has threatened them that they would be terminated as their appointments were illegal. On apprehending that they would be terminated, the petitioners preferred complaint being ULP NO. 31 of 2008 before the Labour Court at Satara. In the said complaint, an application came to be preferred for interim relief. The main prayer in the said application was that the respondent - Nagar Panchayat be directed not to discontinue the services of the complainants i.e the present petitioners till final disposal of the main complainant. The learned Labour Judge by its order dated 5th March, 2009 rejected the said application. Being aggrieved thereby, the petitioners filed Rma wp6792-09.sxw 3 Revision ULP No. 18 of 2009. The Industrial Court by order dated 6th July, 2009 dismissed the said Revision. Hence, this petition. 3. The learned counsel for the petitioners submitted that pursuant to the resolution dated 28th March, 2008 passed by the Grampanchayat, the petitioners came to be appointed and they started working from 2nd April, 2008 and thereafter, the Labour Court by its order dated 20th June, 2008 had granted interim relief in respect of termination which has been continued by the Industrial Court till today. He submitted that though both the courts have rejected the interim applications for protection against termination, yet by orders of the court, they are in service till today. He further submitted that resolution dated 28th March, 2008 has been misread and misconstrued by the courts below to hold that the appointments of the petitioners had not been made pursuant to the resolution. He has pointed out that the Labour Court in Para 13 of its order has specifically observed that the resolution dated 28th March, 2008 is legal. He submitted that in such case, when the Labour court has observed that the resolution dated 28th March, 2008 is legal, the Labour Court could not have held Rma wp6792-09.sxw 4 that the appointments of the petitioners were not made purusant to the said resolution. 4. A few dates would be relevant to understand the controversy involved. The Grampanchayat meeting in which resolution came to be passed to appoint nine members is dated 28th March, 2008. Thereafter, another Grampanchayat meeting was called. This meeting was to take place on 19th April, 2008. The Government Resolution whereby Malkapur Nagar Panchayat came into existence is dated 5th April, 2008. The said Government Resolution was received on 11th April, 2008. The Collector, Satara appointed an administrator for day to day work of Malkapur Nagar Panchayat on 19th April, 2008 and the administrator took charge on 21st April, 2008. 5. In respect of this appointment, the applications were preferred on 1st April, 2008 by the petitioners. No application is prior to 31st March, 2008. Admittedly, there was agreement between the Grampanchayat and Jay Bhavani Hamal Mazoor Kamgar Sanghatana on 25th March 2008 wherein it was agreed that the Grampanchayat Rma wp6792-09.sxw 5 will appoint nine more employees. By the petitioners, reliance is placed solely on the resolution dated 28th March, 2008 to show that they were appointed pursuant to the said resolution. On perusal of the said resolution, it states that henceforth, recruitment of employees will be done on recommendations by the members of Grampanchayat and henceforth the appointments will be made after taking approval of the Grampanchayat members. There is no mention of any name of person / persons who have been recommended or appointed on recommendations of any member of the Gram Panchayat. No names have been disclosed in the said resolution that any member of the Grampanchayat has given recommendation or intends to give recommendations for any particular person's appointment. Thus, it is seen that the only decision taken in the resolution dated 28th March, 2008 is that in future the appointments will be made on recommendation of the members of the Grampanchayat. From the resolution, it is evident that there were no names in existence under contemplation on 28th March,2008. The word "henceforth" used in the resolution clearly shows that it was applicable to the recruitments which were to be made after the date of the meeting. It is pertinent to Rma wp6792-09.sxw 6 note that in this meeting held on 28th March, 2008, it was only decided that thereafter appointments will be made as per recommendation of Grampanchayat members and appointments will be made after the names are approved by the members. It also says that appointments will be as per rules. 6. It is pertinent to note that another meeting was called by the Grampanchayat on 19th April, 2008. This was called by notice dated 10th April, 2008. In the said meeting, the agenda for the meeting to be held on 19th April, 2008 is mentioned. The entry relevant for deciding this matter is at serial no. 15 which states as under : "to take the decision about the appointment of the employees, as per the discussion between the Grampanchayat members and union on 28th March, 2008." Thus, if the contention of the petitioners is accepted that they were appointed pursuant to the resolution passed in the meeting dated 28th March, 2008, then in that case, there would not have been any question of having a subject i.e to take decision about the appointment of employees as per the discussion between the Rma wp6792-09.sxw 7 Grampanchayat and the Union on 28th March, 2008 on 19th April, 2008. Thus, from this notice dated 10th April, 2008 which relates to the agenda of the meeting to be held on 19th April, 2008, it can be safely inferred that as on 10th April, 2008, no appointments had been made because the agenda of the meeting of 19th April, 2008 clearly states that the decision about the appointment has to be taken. However, it is seen that prior to the meeting on 19th April, 2008, the Collector on 18th April, 2008 had appointed administrator for day to day work of the Malkapur Nagar Panchayat and the administrator took charge on 21st April, 2008. However, as Malkapur Nagar Panchayat came into existence from 5th April, 2008 which resolution was received on 11th April,2008; after 5th April, 2008, neither the Malkapur Grampanchayat nor the members of the Malkapur Grampanchayat had any right to take any decision for either Malkapur Grampanchayat or Malkapur Nagar Panchayat as the ex-members of the Malkapur Grampanchayat. Thus, it is seen that the resolution taken in the meeting dated 28th March, 2008 by the Grampanchayat did not attain finality so far as the matter of actual appointments are concerned. Rma wp6792-09.sxw 8 7. On behalf of the petitioners, reliance was placed on muster roll for the month of April, 2008. This shows that some of the petitioners had signed the muster from 02nd April, 2008. Reliance is also placed on the documents to show that they had started working in Grampanchayat from 31st March, 2008. However, it is strange that it is their case that they started working from 31st March, 2008, yet there are no signatures on the muster roll on 31st March, 2008 or even on 1st April, 2008. Both these days were not holidays. The signatures appeared for the first time on the muster roll on 2nd April, 2008 that too of some of the petitioners and not of all. This shows that the petitioners without waiting for regular appointment orders started working and signing the muster of Grampanchayat though the regular appointments were not given to any of them till that day. Even, though reliance is also placed on the resolution dated 28th March, 2008, however, as observed by me, earlier the process of appointment was not completed pursuant to the said resolution and no regular appointment were made or regular appointment letters were given to any of the petitioners. In such case, it cannot be said that their appointments would be legal and proper. The resolution dated 28t Rma wp6792-09.sxw 9 March,2008 also makes it clear that appointments are to be made after obtaining approval of all the members and appointments will be made as per rules. No order of approval has been produced and the facts show that there was no appointment as per rules. 8. Looking to all the above facts, no interference is called for in the order dated 05th March, 2009 passed by the Labour Court in Complaint (ULP) No. 31 of 2008 and order dated 06th July, 2009 in the Revision application (ULP) No. 18 of 2009. The writ petition is dismissed. 9. However, as the main complaint is pending, it is made clear that the said complaint is to be decided on its own merits without being influenced by any observations in this order or the order of Labour Court dated 5th March, 2009 and order of the Industrial Court dated 6th July, 2009. (SMT. V.K. TAHILRAMANI, J) Rma wp6792-09.sxw 10 Rma wp6792-09.sxw