Bombay High Court: State Instrumentalities or Local Authorities cannot create Permanent Employee Posts

Bombay High court Law Insider

Nishka Srinivas Veluvali

Published On: January 27, 2022 at 15:49 IST

The Bombay High Court stated that the Standing Order 4C of the Model Standing Orders, charged under the Industrial Employment (Standing Orders) Act, 1946 cannot be brought forth with reference to the State Instrumentalities or any such Local Authorities which do not possess any power to create posts.

The High Court was considering the Appeal challenging the impugned Order awarded by the Industrial Court, Thane which stated that the Respondents were engaged in unfair labour practice and further Ordered them to give permanent posts to the Complainants.

The impugned Order observed that the Respondents action fell foul as per Item 06 of the Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971.

The Single Judge Bench Justice Ravindra V Ghuge, noting the Industrial Court Judgement stated that, “This issue of invoking Standing Order 4C of the Model Standing Orders for granting permanence was considered by me at the Aurangabad Bench in the matters of Mukhladhikari, Nagar Parishad, Tuljapur Vs. Vishal VijalAmrutrao and others [2016(3) ALL MR 113] and Municipal Council, Tuljapur Vs. Baban Hussain Dhale [WP No.1843/2015 and connected matters, decided on 26/02/2015]. I had concluded that Standing Order 4C cannot be invoked with reference to State Instrumentalities or such local Authorities, which do not have the power of creating posts. When an establishment cannot create posts, the declaration of ULP under Item 6 cannot be made against such establishment since temporary workers cannot be regularized, in the absence of sanctioned permanent posts.”

High Court in the current Case observed that the Zila Parishad does not hold any power to create posts. It can only recommend the same to the competent Department of the State Government.

The Department of Rural Development deals with the same. It requests for the sanctions and permanency of the employees who work in the Class IV categories.

As per this, the Department of Rural Development can take the decision regarding the permanency of the posts whereas Zilla Parishad can recommend workers to the State Government to treat such employees as permanent ones.

Thus, the Single Judge Bench, set aside the directions issued by the Industrial Court and Ordered the Raigad Zilla Parishad to come up with a fresh list of all the workers of the Water Supply Department, including the original documents and forward the same to the Rural Development Department on or before 15 February, 2022 and the concerned Authority is directed to take decision on or before 30 June, 2022.

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