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.16859/2007including 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.16859/2007said 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/-