The Bombay High Court (“Bombay HC”), vide its judgement dated May 6, 2024, in the case of The Chief Officer, Pen Municipal Council and Another v. Shekhar B. Abhang and Another [Writ Petition No. 4129 of 2009], held that long-term continuance of employment does not constitute as a ground to seek regularization of services.

Facts

Pen Municipal Council (“Petitioner”) is established under the provisions of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 and Shekhar B. Abhang (“Respondent No. 1”) was engaged as a clerk to meet exigencies of service in accordance with the resolution adopted by the Municipal Council on December 4, 1997.

Respondent No. 1 had filed a complaint in the Industrial Court, Thane (“Industrial Court”) accompanied by 3 other clerks apprehending the termination of their services. The said complaint was partly allowed by the Industrial Court by its order dated September 6, 2001, directing the Petitioner not to terminate the services of the complainants. Accordingly, the services of Respondent No. 1 were continued on the post of clerk. Further, Respondent No. 1 was appointed as the tax inspector with effect from August 1, 2003 for 6 months on temporary basis.

However, the services of Respondent No. 1 were terminated after 6 months by the Petitioner on January 31, 2004 by an order dated January 23, 2004. Consequently, Respondent No. 1 filed a complaint before the Industrial Court alleging unfair labour practices under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 and sought direction for continuation of his service.

The Industrial Court, vide its judgement dated March 7, 2009 (“Impugned Judgement”), partly allowed the complaint filed by Respondent No. 1 and directed the Petitioner to regularize Respondent No. 1 on the post of tax inspector from the date of its order with further direction to pay consequential and monetary benefits arising out of such regularization. Being aggrieved by the Impugned Judgment, the Petitioner filed a petition before the Bombay HC.

Issue

Whether Respondent No. 1 is entitled to regularization of his services.

Arguments

Contentions of the Petitioner:

It was contended by the Petitioner that the Industrial Court had erred in directing regularization of services of Respondent No. 1 to the post of a tax inspector and the said appointment of Respondent No. 1 was invalid as he was not qualified to be appointed on regular post of tax inspector and he was also not selected as a result of regular selection process, but his appointment was merely temporary subject to the approval of the Regional Director of Municipal Council Administration.

It was submitted by the Petitioner that Respondent No. 1 is not entitled to be appointed on the post of tax inspector as he was merely the junior most clerk who could not have been directly appointed as tax inspector by ignoring the claims of 14 other senior clerks working in the establishment of the Petitioner.

The Petitioner further argued that the temporary appointment of Respondent No. 1 did not confer any right to seek regularization. Furthermore, the post of tax inspector had been vacant and lapsed until revived by the Directorate of Municipal Administration, with a directive to follow due selection procedures. Therefore, the Petitioner argued that the Impugned Judgment should be set aside.

Contentions of Respondent No. 1:

Respondent No. 1, by relying upon the letter of District Employment and Self-Employment Guidance Center, Alibag, dated July 14, 2003, contended that his name was sponsored by the employment exchange and thus he was not a backdoor entrant. He was appointed after following due process of selection.

Respondent No. 1 also contended that his appointment was backed by resolution adopted by general body of the Petitioner and placed reliance on resolution of the general body dated May 24, 2003.

Respondent No. 1 contended that the post of tax inspector clearly exists in the establishment of the Petitioner and therefore the Industrial Court has not committed any error in directing regularization of his services.

It was also submitted by Respondent No. 1 that it would be too late to disturb his appointment by the virtue of interfering with the Impugned Judgment as Respondent No. 1 has been working as a tax inspector for a considerable period of time.

Observations of the Bombay HC

The Bombay HC took into consideration the case of Secretary, State of Karnataka and Others v. Umadevi and Others [2006 (4) SCC 1], wherein the Supreme Court (“SC”) had held that mere continuance of an employee for a long period does not create any right of regularization in the service. The SC has however carved out an exception in respect of only those employees whose appointments were made in an irregular manner against duly sanctioned vacant posts and where the employees have continued to work for 10 years or more, but without the intervention of orders of the courts or of tribunals, the Union of India, the State Governments and their instrumentalities were directed to take steps to regularize their services as a one-time measure.

The Bombay HC also took into consideration the case of Hari Nandan Prasad and Another v. Employer I/R to Management of Food Corporation of India and Another [(2014) 7 SCC 190], wherein the SC ruled that if posts are not available, issuance of directions for regularization would be impermissible and that such directions cannot be issued only on the basis of number of years put in by a daily wager. However, the SC carved out certain exceptions to this general principle.

The Bombay HC after relying upon the material placed on record by Respondent No. 1 observed that the initial appointment of Respondent No. 1 was a regular appointment and not a backdoor entry who was virtually appointed on regular basis and his tenure was restricted to merely 6 months, possibly on account of apprehension that the post would lapse if not filled in within 6 months. It was also observed by the Bombay HC that appointment of Respondent No. 1 is made against the sanctioned vacant post and he was eligible to be appointed on the post as he underwent the selection process after his name was sponsored by the employment exchange.

The Bombay HC observed that Respondent No. 1 has been working on the post of tax inspector at least since the year 2012 and has put more than 10 years of service which is in addition to initial 6 months of service. Hence, Respondent No. 1 has clearly made out a case for regularization of his services.

Further, the Bombay HC also observed that the Petitioner has raised fallacious defence before the Industrial Court with respect to Respondent No. 1 not being qualified to be appointed as tax inspector and that only senior clerks were eligible to be promoted to the said post. The defences raised by Petitioner were clearly false and the material information was suppressed by them from the Industrial Court.

Therefore, it was held by the Bombay HC that denying the relief of regularization to Respondent No. 1 would be against the principles of equity and fairness.

Decision of the Bombay HC

The Bombay HC dismissed the writ petition filed by the Petitioner, thereby upholding the Impugned Judgment.

VA View:

The Bombay HC has, in an appropriate manner, dealt with the issues pertaining to the regularization of services of employee who have been employed for a considerably long period of time. The Bombay HC has taken into consideration various rules established under various judicial pronouncements governing the regularization of workers and the general exceptions as well as the reasoning put forth by the judiciary while dealing with the regularization of workers.

Thus, in the present case, the Bombay HC while upholding the appointment of Respondent No. 1’s observed that mere continuance of an employee for a long period does not inherently grant the right to regularization to an employee.

For any query, please write to Mr. Bomi Daruwala at [email protected]

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