Case Note & Summary
The case arose from individual complaints filed by employees of the Sangli, Miraj and Kupwad Cities Municipal Corporation under Section 30(2) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, seeking permanency in service on the ground of completing more than 240 days of continuous service. The employees also sought interim relief for status quo in their service. The Industrial Court, Sangli, by order dated 21 October 2011, partly allowed the interim applications, directing the corporation to continue the employees in service in accordance with the Bombay Provincial Municipal Corporations Act, 1949 till the final disposal of the complaints. The corporation filed writ petitions in the Bombay High Court challenging this interim order. The corporation contended that as a local body governed by the B.P.M.C. Act, all posts require state government approval, and permanency could not be granted without sanctioned posts. The Industrial Court itself had observed in its order that failure to implement a resolution for permanency did not amount to an unfair labour practice under Item 9 of Schedule IV of the MRTU & PULP Act. The corporation argued that the interim relief effectively prevented it from taking any lawful action against the employees and that the main relief of permanency was prima facie not tenable. The employees argued that they had a long tenure of service and needed protection from possible termination. The High Court, after hearing both sides, held that the Industrial Court's interim order was passed overlooking the fundamental issue of maintainability of the main relief. It noted that a municipal corporation could not be treated as an independent establishment ignoring its governing Act. Since the main relief itself might not be grantable, granting such interim relief would create complications. However, the court also considered the employees' interest and directed that the interim order would continue for six months, while giving liberty to the corporation to take appropriate action against any employee after giving prior notice in accordance with law. The Industrial Court was directed to dispose of the complaints within six months. The writ petitions were disposed of accordingly, keeping all points open. The decision balances the statutory constraints of the municipal corporation with the interim protection of the employees pending final adjudication.
Headnote
A) Labour Law - Interim Relief - Section 30(2) Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 - Industrial Court may not grant interim direction to continue service pending complaint for permanency when the main relief is prima facie not tenable due to statutory constraints of a municipal corporation under the Bombay Provincial Municipal Corporations Act, 1949; interim order set aside but continued for six months subject to employer's liberty to take action with prior notice - (Paras 6-12).
B) Service Law - Permanency - Local Bodies - Employees of a municipal corporation governed by Bombay Provincial Municipal Corporations Act, 1949 cannot claim permanency as a right without sanctioned posts and state government approval; mere completion of 240 days service does not create an entitlement to permanency - (Paras 6-8).
C) Labour Law - Employer's Rights - Blanket injunction restraining employer from taking any action against employees not justified; employer may terminate services in accordance with law after giving prior notice - (Paras 9-11).
Issue of Consideration
Whether the Industrial Court was justified in granting interim relief directing continuation of employees' service when the main relief of permanency was prima facie not tenable due to statutory constraints of the municipal corporation under the Bombay Provincial Municipal Corporations Act, 1949.
Final Decision
Writ petitions disposed of; interim order of Industrial Court directed to continue for six months subject to liberty to petitioner to take appropriate action against any employee after giving prior notice in accordance with law; Industrial Court to dispose of complaints within six months; all points kept open.
Law Points
- Local body cannot be directed to grant permanency without sanctioned posts
- interim relief cannot be granted if main relief of permanency may not be maintainable
- blanket injunction against employer is impermissible
- employer must give prior notice before termination
- complaints under MRTU & PULP Act must be decided expeditiously
Case Details
2012 LawText (BOM) (07) 121
Writ Petition No. 928 of 2012 along with Writ Petition Nos. 929, 930, 931, 932, 933, 934 of 2012
N. V. Walawalkar, G. H. Keluskar, P. D. Dalvi
The Commissioner, Sangli, Miraj and Kupwad Cities Municipal Corporation at Sangli
Ashiven Manohar Chougule, Abhijeet Ashok Kavtekar, Vishal Dattatray Zambre, Ranvir Sahebrao Panbude, Dhanvir Sahebrao Panbude, Shrikant Madhukar Salunkhe, Rajendra Shamrao Koli
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Nature of Litigation
Writ petitions by municipal corporation challenging interim order of Industrial Court directing continuation of employees' service pending complaint for permanency.
Remedy Sought
Petitioner sought to set aside interim order dated 21 October 2011 passed by Industrial Court, Sangli, which directed continuation of the respondents' service till final disposal of complaints under MRTU & PULP Act.
Filing Reason
The Industrial Court allowed interim relief on the ground that employees completed 240 days service and prima facie unfair labour practice made out; petitioner contended that main relief of permanency not tenable as posts require state approval and standing orders not applicable, and interim order would prevent lawful termination.
Previous Decisions
Industrial Court, Sangli passed order dated 21 October 2011 granting interim relief; that order is impugned.
Issues
Whether the Industrial Court could grant interim relief directing continuation of service when the main relief of permanency is prima facie not maintainable due to statutory constraints of a municipal corporation?
Whether individual employees can maintain complaints for unfair labour practice when a recognized union exists?
Whether a blanket interim order preventing the employer from taking any action against employees is permissible?
Submissions/Arguments
Petitioner argued that complaints for permanency not maintainable as municipal corporation governed by B.P.M.C. Act and posts require state government approval; Industrial Court itself observed that failure to implement resolution for permanency does not amount to unfair labour practice; granting interim relief while main relief not possible would cause prejudice; also existence of recognized union makes individual complaints non-maintainable.
Respondents argued they completed 240 days service and sought parity with previous practice; threat of termination requires interim protection.
Ratio Decidendi
When the main relief of permanency is prima facie not tenable due to statutory constraints of a local body under the Bombay Provincial Municipal Corporations Act, 1949, the Industrial Court cannot grant interim relief that effectively preserves the status quo pending complaint. Blanket interim orders preventing employer from taking any action are impermissible; employer may take action subject to prior notice.
Judgment Excerpts
i. The applications for interim relief are partly allowed. ii. The opponentcorporation is directed to continue the applicants in service in accordance with the B.P.M.C. Act as per previous practice till the decision of these complaints finally. iii. No order as to cost.
Needless to say that, the recruitment, appointment and promotions of the employees working in corporation are being made as per B.P.M.C. Act. The corporation cannot create the post and the posts are approved only State Government and even if the General Body of the corporation resolved about the permanency of the applicants permanent unless sought necessary approval from the State Government in view of this it cannot be said that, there is failure on the part of the opponent to implement the Resolution No.77 dated 30/04/2008.
Therefore, taking over all view of the matter, I am inclined to observe that the interim order so passed shall continue for six months subject to right that the Petitioner is at liberty to take appropriate action and/or step as and when occasion comes and that will be subject to prior notice in accordance with law.
Procedural History
The respondents, employees of the petitioner municipal corporation, filed individual complaints under Section 30(2) of the MRTU & PULP Act before the Industrial Court, Sangli, seeking permanency in service and interim relief of status quo. The Industrial Court, by order dated 21 October 2011, partly allowed the interim applications and directed the corporation to continue the respondents in service as per B.P.M.C. Act till final disposal. The corporation challenged this order by filing the present writ petitions in the Bombay High Court.
Acts & Sections
- Bombay Provincial Municipal Corporation Act, 1949:
- Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971: Section 30(2), Item 9 of Schedule IV
- Industrial Employment (Standing Orders) Act, 1946:
