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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 682 OF 2007
WITH
WRIT PETITION NO. 3809 OF 2007
AND
WRIT PETITION NO. 3810 OF 2007
WRIT PETITION NO. 682 OF 2007
The Municipal Council,
Chandrapur, through its
Chief Officer, Chandrapur,
District - Chandrapur. ... PETITIONER
Versus
1. Bhartiya Nagar Parishad Kamgar
Sangh, District Chandrapur and
Gadchiroli, through its President
Shri Suresh s/o Ganpatrao
Deshmukh, Tq. Chandrapur,
District - Chandrapur.
2. The Director of Municipal
Administration, Government
Transport Service Building,
3rd Floor, Sir Pochkhanwala Marg,
Worli, Mumbai 400 030. ... RESPONDENTS
Shri M.I. Dhatrak, Advocate for the petitioner.
Shri A.P. Wachasunder for respondent No.1.
Shri D.B. Patel, AGP for respondent No.2 .
.....
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WRIT PETITION NO. 3809 OF 2007
The Municipal Council,
Ballarshah, through its
Chief Officer, Ballarshah,
District - Chandrapur. ... PETITIONER
Versus
1. Bhartiya Nagar Parishad Kamgar
Sangh, District Chandrapur and
Gadchiroli, through its President
Shri Suresh s/o Ganpatrao
Deshmukh, Tq. Chandrapur,
District - Chandrapur.
2. The Director of Municipal
Administration, Government
Transport Service Building,
3rd Floor, Sir Pochkhanwala Marg,
Worli, Mumbai 400 030. ... RESPONDENTS
Shri M.I. Dhatrak, Advocate for the petitioner.
Shri A.P. Wachasunder for respondent No.1.
Shri D.B. Patel, AGP for respondent No.2 .
.....
WRIT PETITION NO. 3810 OF 2007
The Municipal Council,
Mul, through its Chief Officer,
Mul, District - Chandrapur. ... PETITIONER
Versus
1. Bhartiya Nagar Parishad Kamgar
Sangh, District Chandrapur and
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Gadchiroli, through its President
Shri Suresh s/o Ganpatrao
Deshmukh, Tq. Chandrapur,
District - Chandrapur.
2. The Director of Municipal
Administration, Government
Transport Service Building,
3rd Floor, Sir Pochkhanwala Marg,
Worli, Mumbai 400 030. ... RESPONDENTS
Shri M.I. Dhatrak, Advocate for the petitioner.
Shri A.P. Wachasunder for respondent No.1.
Shri P.D. Kothari, AGP for the respondents.
.....
CORAM : B.P. DHARMADHIKARI, J.
NOVEMBER 11, 2008.
ORAL JUDGMENT :
All these three writ petitions challenge common order
dated 14.12.2006 delivered by the Member, Industrial Court,
Chandrapur, directing the petitioners – Municipal Councils to pay
15% incentive payable in naxal affected areas from August 2002
as per Government Resolution dated 6.8.2002 to its employees.
2. This Court has on 13.8.2007, while issuing Rule,
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permitted the Municipal Councils to pay such allowance to its
employees, if it wanted to implement its own resolution. By
order dated 30.8.2007, this Court has granted interim relief and
stayed the operation and effect of impugned order dated
14.12.2006.
3. The facts are not much in dispute. Respondent No.1 in
all these writ petitions is a Registered Trade Union and had filed
a Complaint (ULPA) No. 65 of 2005 on behalf of its members
spread over in Municipal Council, Chandrapur, Municipal
Council, Mul and Municipal Council, Ballarshah, contending that
by not extending benefit of Government Resolution dated
6.8.2002, to those members, the respective Municipal Councils
have indulged in Unfair Labour Practice falling under item No. 9
of Schedule IV of Maharashtra Recognition of Trade Unions and
Prevention of Unfair Labour Practices, Act, 1971 (hereinafter
referred to as MRTU & PULP Act). The respective Municipal
Councils filed their written statements and opposed the claim. By
common order dated 14.12.2006, the learned Member of
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Industrial Court found that Respondent No.1 – Trade Union
succeeded in establishing that there was unfair labour practice
falling under item No. 9 and present petitioners were found to
have indulged in it by not implementing the Government
Resolution dated 6.8.2002 and subsequent Government
Resolutions dated 18.8.2004 and 7.12.2004. It is to be noted
that the General body of petitioners – Municipal Councils in the
meanwhile had also passed a resolution sanctioning similar
payment as incentive to its employees and the implementation of
resolution was to be done after the approval of State
Government.
4. In this background, I have heard Shri Dhatrak, learned
counsel for the petitioners – Municipal Councils, Shri
Wachasunder, learned counsel for respondent No.1 and Shri
Patel and Shri Kothari, learned AGPs for respondent No. 2 in
respective writ petitions.
5. Shri Dhatrak, learned counsel has contended that the
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learned Member of Industrial Court has erroneously held that
Government Resolutions mentioned above are applicable to the
employees of Municipal Councils. He has invited attention to
these resolutions to contend that these resolutions are applicable
only to employees of State Government and not to employees of
Municipal Councils. He points out that though the Municipal
Councils have passed the resolutions to implement these
resolutions of State Government, the said implementation is
subject to prior approval of State Government and State
Government has not granted such approval. He states that
Respondent No.1 did not approach the Industrial Court with
grievance that the State Government has given necessary no
objection to the petitioners and still the petitioners are not
implementing the resolutions and not paying 15% incentive to its
members. He, therefore, argues that there is non application of
mind by the learned Member of Industrial Court and the
impugned order is unsustainable. He further contends that as the
resolutions are not ipso facto applicable to the petitioners, its non
implementation cannot attract item No. 9 of Schedule IV of
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MRTU & PULP Act and the learned Member of Industrial Court,
therefore, erred in concluding that the petitioners have indulged
in unfair labour practice.
6. Shri Wachasunder, learned counsel appearing for
Respondent No.1 – Trade Union has relied upon the very same
resolutions to urge that the resolutions are not applicable only to
State Government employees. He contends that resolutions are
applicable to various other categories also like employees of Zilla
Parishads, Teaching and Non-Teaching staff of Private un-aided
educational institutions and Colleges. He states that this
illustration of employees covered by Government Resolution
dated 6.8.2002 is only illustrative and not exhaustive. According
to him, when employees of Zilla Parishads or Teaching and Non
Teaching staff working in the town of Chandrapur, Mul or
Ballarshah, where the members of Respondent No.1 – Trade
Union are also working, are entitled to payment of such incentive,
it cannot be contended that the State Government intended to
deny such payment only to employees of Municipal Councils. He,
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therefore, states that as per the narration of various categories in
above mentioned Government Resolutions, the employees of
Municipal Councils must be deemed to be included in this
resolution. In the alternative, he also argues that for the purpose
of these resolutions, employees of Municipal Councils are entitled
to be treated and recognized as Government employees and lastly
he contends that if arguments of petitioners are accepted, it
creates hostile discrimination between two sets of employees who
are otherwise working in similar environment and it would
violate Article 14 of Constitution of India and extension of State
policy decision to members of Respondent No.1 – Trade Union by
the Industrial Court cannot be faulted with. It is his argument
that as the placement and working of employees i.e. members of
Respondent No.1 – Trade Union in Naxalite area is not in dispute
in any way, writ petitions are liable to be dismissed.
7. The respective Assistant Government Pleaders
appearing for the Director of Municipal Administration in all
three matters have supported the arguments of the petitioners.
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They contend that narration of categories of employees to whom
the benefit of payment of incentive is extended is not illustrative
but it is exhaustive. They contend that employees of Municipal
Council are not State Government employees and as Municipal
Councils were aware of this, while passing the resolutions in
favour of their employees, Municipal Councils have expressly
made those resolutions subject to prior approval of State
Government.
They invited attention to communication dated
28.4.2005 issued by the Regional Director of Municipal
Administration, to respective Chief Officers communicating to
them that the Government Resolution dated 6.8.2002 is not
applicable to them and it is not meant for Municipal Councils.
According to them, there is no question of hostile discrimination
because employees of Municipal Councils work in town only and
not subjected to transfer in rural/interior areas. They urged that
the incentive has been provided for and made applicable only to
those employees whose services are transferable outside
Municipal limits i.e. rural areas which are more prone to Naxalite
attacks. In fact, they also tried to show that the area of respective
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Municipal Council is not recognized as relevant for the purposes
of entitlement to present incentive but it is the place of work of
concerned employees, which has been given importance by the
State Government.
8. With the assistance of learned counsel, I have perused
the impugned order dated 14.12.2006. Its perusal itself reveals
that the learned Member of Industrial Court has not considered
all these facets of the controversy. It appears that the learned
Member of Industrial Court has proceeded with premise that
Government Resolutions dated 6.8.2002, 18.8.2004 and
7.12.2004 are straightway applicable to members of Respondent
No.1 – Trade Union. It found that earlier in Government
Resolution dated 6.8.2002, there was a condition which restricted
the payment of incentive allowance to employees working outside
Municipal limits but then that restriction was deleted by letter
dated 5.9.2002. In view of this deletion, it recorded a finding
that the employees within the Municipal limits were also eligible
for payment of incentive. It has then found that by not
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implementing these Government Resolutions and by not paying
incentive to its employees, the petitioners indulged in unfair
labour practice falling under item No. 9 of Schedule IV of MRTU
& PULP Act. Though it mentioned the communication dated
28.4.2005 by the office of Regional Director of Municipal
Administration, to Chief Officer, Chandrapur, Exh. 28, it
concluded that the Director of Municipal Administration did not
take into consideration the clarification issued vide order dated
5.9.2002. It has, therefore, allowed the complaint.
9. The perusal of Government Resolution dated 6.8.2002
shows that the Scheme of paying incentive has been made
applicable to Officers and employees in government service,
officers and employees of Zilla Parishad, full time Teaching and
Non Teaching staff in granted Educational institutions and
Colleges. Earlier, the incentive was specified at fixed rate but it
has been modified and the system of paying allowance at 15% of
basic was introduced with minimum of Rs.200/- and maximum of
Rs.1,500/- per month. It is also apparent that earlier the
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increased incentive was not extended to employees working in
Municipal Corporation or Municipal area situated in Naxalite
affected zone but then that condition was deleted. The effect of
deletion of said condition is, the employees to whom the
incentive allowance was made applicable, became entitled to
receive even if they were working in Municipal Corporation area
or Municipal area. The modification, therefore, does not have the
effect of including employees of Municipal Corporation or
employees of Municipal Council in the categories of employees to
whom Government Resolution is applicable. Because of this
deletion, the employees of four categories mentioned in
resolution dated 5.2.1999 are eligible for its receipt even if place
of their service falls within the Municipal Corporation limits or
Municipal limits. The inference of the learned Member of
Industrial Court that because of such exercise of deleting that
condition, the Scheme for payment of incentive is extended to
employees of Municipal Council is erroneous and perverse.
10. The contention of Shri Wachasunder, learned counsel
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about interpretation of categories mentioned in Resolution dated
5.2.1999 is again liable to be rejected. The four categories
mentioned are already reproduced above. It is to be noted that
the Zilla Parishad is also a local authority like Municipal Council
and still its officers and employees have been specifically
mentioned by the State Government. The contention of learned
AGPs that it is the place of discharge of duty which has been
given paramount importance in said policy by the State
government may also be relevant while considering whether
these four categories are illustrative or exhaustive in nature. But
then the basic question is whether while attempting to find out
indulgence in unfair labour practice under item No. 9 of
Schedule IV of MRTU & PULP Act, the learned Member of
Industrial Court can undertake such an exercise. The argument
of Shri Wachasunder, learned counsel that if the Municipal
employees like members of Respondent No.1 are held as excluded
from said Scheme because they are not covered by four categories
mentioned above and enumeration of categories is held to be
exhaustive, it results in hostile discrimination and violates Article
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14 of Constitution of India also could not have been gone into by
the Industrial Court while trying to find out whether there is any
unfair labour practice under item 9 of Schedule IV of MRTU &
PULP Act. The questions, therefore, need to be left open for
consideration before appropriate forum in appropriate challenge.
In present matter, I am not inclined to hold that while
considering the challenge in item No. 9 of Schedule IV, the
Industrial Court could have through interpretative process
concluded that employees of Municipal Councils are also covered
in Government Resolution dated 5.2.1999. The four categories
are expressly specified and as such it is difficult to hold that
categories not mentioned therein are also included in or are
meant to be covered by said resolution. In any case Municipal
employees who are not employees of State Government cannot be
subjected to said policy decisions via itam 9 of Schedule IV of the
M.R.T.U. & P.U.L.P. Act.
11. Insofar as Municipal Councils are concerned, their
working and administration is controlled by State Government as
also by the Regional Director of Municipal Administration within
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four corners of Maharashtra Nagar Panchayat and Industrial
Townships Act, 1965. Respondent No.2 – Director of Municipal
Administration has expressly communicated to the petitioners on
28.4.2005 that the said Scheme and resolution is not meant for
employees working with Municipal Councils. It is apparent that
Municipal Councils cannot violate such direction issued by the
Regional Director of Municipal Administration and State
Government. The learned Member of Industrial Court has not
given any reasons as to why such direction issued by Respondent
No.2 is illegal and constitutes unfair labour practice under item
No. 9 of Schedule IV of MRTU & PULP Act. It is also clear that
the indulgence by Respondent No. 2 in such unfair labour
practice could not have been considered by the learned Member
of Industrial Court in present facts, as there is no employer –
employee relationship between respondent no.2 and employees
of petitioners.
12. Though there are resolutions passed by Municipal
Councils to extend the Scheme of payment of incentive to its
employees, the Municipal Councils have rightly observed that said
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resolution can not be extended until after approval of State
Government. Such a rider became essential because above
mentioned Government Resolution was not ipso facto applicable
to Municipal Council. The respondent no.1 has not pointed out
either to Industrial Court or to this Court that such an approval
has been given by the State Government at any point after
28.4.2005. It is, therefore, clear that as on date, there is no
material on record to show that benefits of Government
Resolution dated 6.8.2002 or 18.8.2004 or 7.12.2004 are
extended to the members of Respondent No. 1 – Trade Union. In
fact perusal of later two Government Resolutions only reveal that
State Government has declared certain areas or villages as Naxal
infested areas for the purposes of implementation of said scheme
of payment of incentives. It is not in dispute that Municipal areas
of petitioners Municipal Councils are covered by these
resolutions. However, as already observed above, government
resolutions thereby do not become applicable to the employees
working with Municipal Council and, therefore, they are not
entitled to claim 15% incentive.
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13. In the circumstances, I find that the learned Member of
Industrial Court has not properly considered the facts presented
to it by the parties. The impugned common order dated
14.12.2006 is unsustainable and same is accordingly quashed and
set aside. Complaint (ULPA) No. 65 of 2005 filed by Respondent
No.1 is, therefore, dismissed. However, it is made clear that
Respondent No.1 or its members are free to raise appropriate
challenge before appropriate forum to seek application or
extension of this policy decision to them in accordance with law.
It is made clear that this Court under Articles 226 of 227 of
Constitution of India in the matter has only examined the
correctness or otherwise of jurisdiction exercised by the learned
Member of Industrial Court under item No. 9 of Schedule IV of
MRTU & PULP Act. Thus, all writ petitions are allowed. Rule
accordingly, However, in the circumstances of the case, there
shall be no order as to costs.
JUDGE
*******
*GS.
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