Case Note & Summary
The High Court of Judicature at Bombay, Nagpur Bench, heard a writ petition filed by Akola Municipal Corporation challenging an award dated 06.01.2023 passed by the Industrial Tribunal, Akola, in Reference (I.T.) No.02 of 2011. The reference was made by the Commissioner of Labour, Nagpur, at the instance of the respondent Union, Akola Zilla Nagar Parishad & Mahanagar Palika Thekedari Sanghatna. The dispute concerned the employment status of safai karmacharis engaged in solid waste collection, who the Union claimed were de facto employees of the Corporation but were projected as contract workers to deprive them of regular benefits. The Industrial Tribunal, after noting that the workers had been performing perennial work for several years and that the Contract Labour Board had recommended regularization, directed their absorption in Class‑IV posts from 01.08.2011 with all consequential monetary benefits. The Corporation challenged this award on the ground that no sanctioned posts existed against which absorption could be ordered, and that the power to create posts in a Municipal Corporation under the Maharashtra Municipal Corporations Act, 1949 vested solely with the State Government. The Union defended the award by invoking precedents such as Uma Devi, Casteribe, Durgapur Casual Workers Union, Umrala Gram Panchayat, and municipal case law, arguing that long‑serving daily wagers were entitled to regularization. The Court examined the legal principles governing regularization. It observed that the Supreme Court in Uma Devi had explicitly held that regularization is not a mode of employment and that daily wagers cannot claim a right to be regularized solely on account of long service; the only exception carved out was for employees who had worked for ten years against sanctioned posts without court intervention, as a one‑time measure. The Court further noted that in Casteribe, the Supreme Court reiterated that Industrial Courts could order regularization only when there were existing sanctioned posts, and that courts could not direct creation of posts. The Industrial Tribunal, the Court found, had not recorded any finding that the workers were engaged against sanctioned posts. The Court also relied on its own earlier decision in Subhash Sukhdev Sahare v. NMC, where it was held that Section 51 of the Maharashtra Municipal Corporations Act, 1949 places the authority to create posts with the State Government, not the Municipal Corporation, and that in the absence of sanctioned posts, no right to regularization existed. The Court distinguished the cases cited by the Union, noting that Umrala Gram Panchayat involved regularization against existing vacancies and Durgapur Casual Workers Union did not involve the creation of posts as the contract system had been terminated. Consequently, the Court held that the impugned award could not be sustained, allowed the writ petition, and quashed the award dated 06.01.2023. The decision thus clarified that regularization of daily wagers is impermissible without sanctioned posts, and that the Industrial Tribunal erred in directing absorption without the necessary factual foundation.
Headnote
A) Labour Law - Regularization of Daily Wagers - No automatic right to regularization on basis of long service - Industrial Disputes Act, 1947; Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 - The Industrial Tribunal directed absorption of safai karmacharis into Class-IV posts from 01.08.2011 with consequential benefits. The petitioner Corporation challenged the award on ground that no sanctioned posts exist. The Court, relying on Uma Devi, held that regularization is not a mode of employment and no right vests in such employees unless they have worked for 10 years in sanctioned posts. Held that the Tribunal failed to record any finding that the workers were engaged against sanctioned posts; therefore, the direction of absorption cannot be sustained. (Paras 13-17) B) Labour Law - Power to Create Posts - Section 51 of Maharashtra Municipal Corporations Act, 1949 - The authority to create posts in a Municipal Corporation is vested with the State Government, not the Corporation. The Court, following Subhash Sahare v. NMC, held that in the absence of any sanctioned posts, an employee does not have a right of regularization. Held that the impugned award is unsustainable and must be quashed. (Paras 20) C) Precedents - Applicability of Uma Devi and Casteribe - The Supreme Court in Uma Devi carved an exception for irregular appointments in sanctioned vacant posts where employees have worked for 10 years without court intervention, but Casteribe clarifies that regularization must be against sanctioned posts and courts cannot direct creation of posts. The Court distinguished Durgapur Casual Workers Union as not involving creation of posts. Held that the ratio of Uma Devi and Casteribe applies; relief cannot be granted without sanctioned posts. (Paras 13-15,19)
Issue of Consideration
Whether daily wager employees engaged for solid waste collection are entitled to regularization in service in the absence of sanctioned posts against which they can be absorbed; and whether the Industrial Tribunal could direct absorption without recording a finding that the employees were working against sanctioned posts.
Final Decision
The writ petition is allowed. The judgment and award dated 06.01.2023 passed by the Industrial Tribunal, Akola, in Reference (I.T.) No.02 of 2011 is quashed and set aside. The direction to absorb the members of the respondent Union in Class-IV category from 01.08.2011 with consequential benefits is set aside.
Law Points
- Regularization is not a mode of employment
- No right to regularization without sanctioned posts
- Exception for 10 years non-litigious service against sanctioned posts
- Courts cannot direct creation of posts
- Section 51 of Maharashtra Municipal Corporations Act
- 1949
