High Court Madhya Pradesh High Court

M.Selvendran vs Labour Commissioner on 5 October, 2010

Madhya Pradesh High Court
M.Selvendran vs Labour Commissioner on 5 October, 2010
                                              1                     W.P No.16859/2007

       HIGH COURT OF MADHYA PRADESH AT JABALPUR
                       WRIT PETITION NO.16859/2007


PETITIONER              :        M. SELVENDRAN


                                 Vs.

RESPONDENTS :                    LABOUR COMMISSIONER
                                 AND OTHERS.



Present       :   Hon'ble Shri Justice R.S. Jha.
For the petitioner               : Shri Rajneesh Gupta, Advocate.
For the respondent no.2 : Shri Parag Chaturvedi, Advocate.
For respondent no.3              : Shri Anshuman Singh, Advocate.
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                                      ORDER

(05/10/2010)

The petitioner has filed this petition being aggrieved by order

dated 7.11.2007 passed by the Labour Commissioner, Madhya

Pradesh Industrial Tribunal, Indore, whereby sanction has been

granted for prosecution of the petitioner under the provisions of

Section 29 read with Section 34 of the Industrial Disputes Act, 1947

(hereinafter referred to as ‘the Act’).

2. It is submitted by the learned counsel for the petitioner that

initially certain awards were passed by the Labour Court on

23.2.1988 and 29.4.1997, in the disputes raised by the Nagar Nigam

Jal Praday Shramik Sangh Avam Lok Karm Vibhag, Shramik Sangh,

Jabalpur, directing regularization of the employees of the Municipal

Corporation. It is stated that these awards were not complied with

and, therefore, the President of the Sangh again approached the

Labour Court under section 10(1)(c) of the Industrial Disputes Act,
2 W.P No.16859/2007

1947 and by award dated 23.11.2004 which was subsequently

modified by order dated 6.4.2005 the Municipal Corporation,

Jabalpur was directed to regularize the members of the petitioner’s

Union. As all the members of the petitioner’s Union were not

recognized, the Sangh filed a petition and thereafter an application

under section 29 read with section 34 of the Act on 20.8.2007 before

the Labour Commissioner, Indore seeking prosecution of as many

as 8 previous Commissioners of Municipal Corporation, Jabalpur

which application has been allowed by impugned order dated

7.11.2007 directing initiation of prosecution of the petitioner who was

the Commissioner of the Municipal Corporation, Jabalpur from

September 2007 onwards for a period of five months.

3. It is submitted by the learned counsel for the petitioner that in

the proceedings initiated by the Sangh the petitioner had neither

been impleaded nor was he made a party. It is, however, submitted

that he was, at the relevant point of time, Commissioner of the

Municipal Corporation, Jabalpur and in that capacity accepted the

notice issued by the Labour Commissioner though the Municipal

Corporation, Jabalpur had also not been impleaded as a respondent

in the application. It is stated that in the year 2005 the State

Government had imposed a total ban on regularization and that

there were conflicting orders of the State Government regarding

their policy for regularization and in such circumstances the

petitioner, who was posted as Commissioner, Municipal Corporation,

Jabalpur in the year 2007 could not have been directed to be
3 W.P No.16859/2007

prosecuted in view of the total ban on regularization imposed by the

State.

4. The learned counsel for the petitioner has also pointed out

that several employees of the Municipal Corporation, Jabalpur had

approached this Court by filing petitions claiming relief of

regularization which were disposed of by order dated 27.2.2003 with

the following directions:-

“(a) Respondent Corporation who has already
prepared the seniority list of daily rated employees who
are working prior to 31st December, 1988 will regularise
the services of daily rate employees strictly as per their
seniority and eligibility subject to availability of post.

(b) The respondent Corporation has prepared
aforesaid seniority list in two heads, technical and non-
technical, will be at liberty to fill up the technical post on
availability of technical post from daily rated worker who
possesses requisite qualification. If the technical post is
not available and the employee comes in the seniority
criteria then respondent Corporation will be at liberty to
regularise that person even on non-technical post, if
such employee so chooses or opts such regularization.

(c) So far as non-technical persons are
concerned, all the daily rated workmen will get their
regularization as soon as the posts become available as
per his seniority and eligibility.

(d) This order will not effect those employees
who have already been regularized because of the
order passed by the High Court or by Labour Court and
the aforesaid order has reached its finality. But so far
as the other employees are concerned, their services
will be regularized as per the direction issued today
4 W.P No.16859/2007

including those whose regularization are under
challenge before this Court.

(e) As the employees are to be regularized or
classified on particular post on the availability of vacant
post, as has been held in Full Bench decision by this
Court in Superintending Engineer vs. State of M.P.
and others
(1999 (1) MPJR 1), in the circumstances, if
any litigation in respect of employee who is working
prior to 31.12.1988 or after 1.1.1989 respondent
Corporation will place this order before the Labour
Court in that case and labour courts will strictly follow
the decision of Full Bench Judgment and directions
issued today in this case.

(f) In respect of those cases in which any
junior person has been regularized ignoring seniority of
other daily rated employees and if presently the order is
under challenge before this Court, the aforesaid order of
regularization by the labour court would stand modified,
as per this order.

(g) Those employees who are not satisfied
with their seniority in the seniority list will file fresh
representation before respondent Municipal Corporation
within a period of sixty days from today and Municipal
Corporation will decide the seniority of those unsatisfied
employees within a period of ninety days thereafter.

(h) So far as the regularization of the
employees working prior to 31.12.1988 are concerned,
the respondent will consider the cases for regularization
as and when the posts are available strictly according to
their seniority.

5. As the aforesaid directions were not complied with Contempt

Petition No.70/2004 was filed which was also disposed of with a

direction to the Commissioner, Municipal Corporation, Jabalpur to
5 W.P No.16859/2007

complete the exercise of regularization within three months. The

aforesaid orders, passed by the High Court including the one passed

in the case of Om Prakash Dubey vs. R. K. Goyal, Contempt

Petition No.70/2002 decided on 18.8.2005, travelled to the Supreme

Court and the Supreme Court in the case of Municipal

Corporation, Jabalpur vs. Om Prakash Dubey, 2007 (1) SCC

373 set aside the impugned order passed by this Court in C.P

No.70/2004, Annexure P-4, dated 18.8.2005 with the following

observations:-

“20. There is another aspect of the matter which
cannot be lost sight of. The Corporation may be bound
by the decision of the High Court, but it was also bound
by the directions of the State of Madhya Pradesh. If it
had violated the direction of the State (sic High Court),
in terms whereof its earlier policy decision stood
reversed, it cannot be said to have committed a
contempt of court. The question recently came up for
consideration in State of Orissa v. Aswini Kumar Baliar
Singh
, (2006) 6 SCC 759, wherein a Division Bench of
this Court held that the Court is primarily concerned with
the question of contumacious conduct of the party who
is alleged to have committed default in complying with
the directions in the judgment and order. It was held:
(SCC p.763, para 11).

“11. In the instant case, the action
taken by the respondent in purported
violation of the Court’s order arose owing to
a subsequent cause of action, namely,
orders passed by the State of Orissa and
unless the said orders were set aside, the
Inspector of Schools can (sic cannot) be
6 W.P No.16859/2007

said to have flouted the order of the High
Court.””

6. It is further stated that the Corporation has taken a policy

decision, in view of the subsequent circulars issued by the State

Government in the year 2008, to constitute a Screening Committee

and to consider the cases of all daily waged employees working in

the Municipal Corporation, Jabalpur on the basis of the parameters

and guidelines laid down therein and in case they are found to be

eligible for regularization, to pass appropriate orders in their case. It

is stated that the aforesaid exercise is in progress and, therefore, the

impugned order passed by the Labour Commissioner initiating

prosecution of the petitioner deserves to be quashed.

7. The learned counsel appearing for the respondent no.2

submits that the Sangh had obtained awards from the Labour Court

and had thereafter approached this court by filing a petition seeking

a direction against the Municipal Corporation, Jabalpur for

implementing the award dated 23.11.2004 and 6.4.2005 which was

registered as W.P No.1430/2006 (S) and which was disposed of by

order dated 30.7.2007 with liberty to the respondents to initiate

proceedings under section 29 read with section 34 of the Act. It is

stated that in view of the aforesaid direction issued by this court, the

petitioner had filed an application initiating prosecution of the

petitioner which has been allowed by the impugned order dated

7.11.2007 and in such circumstances no fault can be found with the

impugned order directing initiation of prosecution against the

petitioner.

7 W.P No.16859/2007

8. The learned counsel appearing for the respondent

Corporation submits that the cases of the daily wage workers in the

Corporation are being scrutinized as per the policy of the State

Government which has been adopted by the Corporation and also in

view of the judgment of the Supreme Court in the case of

Secretary, State of Karnataka and Others vs. Umadevi (3) and

Others, (2006) 4 SCC 1. In such circumstances the respondent

authorities are already taking steps permissible in law towards

consideration of cases for regularization and orders in respect of as

many as 150 persons have already been issued.

9. I have heard the learned counsel for the parties at length.

From a perusal of the averments and the documents on record it is

clear that the petitioner had not been impleaded as a respondent in

the application filed by the respondent Sangh for initiating

proceedings for prosecution filed by them under section 29 read with

section 34 of the Act. It is also clear that the petitioner had joined as

Commissioner, Municipal Corporation, Jabalpur only in the year

September 2007 by which time the State had already taken a policy

decision imposing a total ban on regularization in the year 2005.

The law as laid down by the Supreme Court in the case of Umadevi

(supra) had also come into existence and the order passed by the

Supreme court in the case of Municipal Commissioner, Jabalpur

(supra) on 5.12.2006 had also come on record. From a perusal of

the documents it is clear that the petition, W.P No.1430/2006 (S)

filed by the respondent Sangh and W.P No.1464/2001 for

implementation of the award passed by the Industrial Tribunal dated
8 W.P No.16859/2007

23.11.2004 and 6.4.2005 were disposed of by stating that no case

for interference by this Court i.e. the High Court was made out with

an observation that the petitioner may move the appropriate

authority for initiating proceedings under section 29 read with section

34 of the Act.

10. It is also undisputed and a fact agreed to by the learned

counsel for the parties that the process for scrutiny of cases of

regularization, in accordance with the direction issued by the

Supreme Court in the case of Umadevi (supra) and the subsequent

circulars issued by the State Government, has been undertaken by

the Municipal Corporation, Jabalpur and eligible persons are being

scrutinized and regularized by them. It is infact stated that the

process is going on.

11. In view of the aforesaid facts and circumstances it is clear that

the petitioner cannot be held responsible for non-implementation of

the impugned award passed in favour of the respondent Sangh in

the year 1988 or 1997 or in view of the orders passed by the

Division Bench dated 23.11.2004 and 6.4.2005 as the petitioner had

joined the Municipal Corporation, Jabalpur as Commissioner only in

September 2007 and remained there only for five months. It is also

clear in view of the observations made by the Supreme Court in the

case of Om Prakash Dubey (supra) in para-20 that there were

conflicting orders of the State Government and in such

circumstances no person can be held to have committed contempt

of Court that the petitioner cannot be prosecuted.
9 W.P No.16859/2007

12. In view of the aforesaid facts and circumstances, the order

dated 7.11.2007 passed by the Labour Commissioner, Indore, is

hereby quashed. The petition, filed by the petitioner, stands

allowed.

13. In the facts and circumstances of the case there shall be no
order as to the costs.

( R. S. JHA )
JUDGE
05/10/2010
mms/-