wp3112.07.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.3112/2007
PETITIONERS: 1. Chief Officer,
Municipal Council, Malkapur,
Distt. Buldana.
2. President, Municipal Council,
Malkapur, Distt. Buldana.
ig ...VERSUS...
RESPONDENTS : 1. Anil Vishnu Sherekar,
Age Major, r/o Shivaji Nagar,
Ward No.8, Malkapur, Distt. Buldana.
2. District Collector, Buldana.
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Shri Abhay Sambre, Advocate for petitioners
Shri R.E. Moharir, Advocate for respondent no.1
Shri A.M. Balpande, AGP for respondent no.2
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CORAM : SMT. VASANTI A. NAIK, J.
DATE : 10.05.2016
ORAL JUDGMENT
By this writ petition, the petitioners - Municipal Council and another, challenge the judgment of the Industrial Court, Akola, dated 26.4.2007, allowing the complaint filed by the respondent no.1 under Section 28 of the M.R.T.U. and P.U.L.P. Act and directing the Municipal Council to reinstate the respondent no.1 in service with continuity of service and with all monetary benefits.
::: Uploaded on - 06/06/2016 ::: Downloaded on - 30/07/2016 01:35:31 :::wp3112.07.odt 2 The father of the respondent no.1 Shri Vishnu Sherekar was working in the Octroi Department of the Municipal Council. Since Shri Vishnu Sherekar was declared medically unfit for performance of his duties, the respondent no.1 applied for appointment in a Class-III -
Class-IV post on compassionate ground as per the policy of the Government. The application of the respondent no.1 was favourably considered by the petitioners and the Municipal Council passed a Resolution on 21.3.1997 to appoint the respondent no.1 on compassionate ground. In pursuance of the said Resolution, the respondent no.1 was appointed on compassionate ground on 1.4.1997.
The proposal in respect of the appointment of the respondent no.1 as a 'Chaparasi' was sent to the Collector for approval. The Collector, however, did not approve the appointment of the respondent no.1 and rejected the proposal on the ground that the selection of the respondent no.1 was not made by a properly constituted Selection Committee. In view of the rejection of the proposal of the respondent no.1, the petitioners terminated the services of the respondent no.1. The services of certain other employees that were appointed on compassionate ground were also likewise terminated. The respondent no.1 and the other employees approached this Court in a writ petition, raising a challenge to the order of the District Collector as well as the Municipal Council. While the said ::: Uploaded on - 06/06/2016 ::: Downloaded on - 30/07/2016 01:35:31 ::: wp3112.07.odt 3 writ petition was pending, the respondent no.1 filed a complaint before the Industrial Court alleging unfair labour practice on the part of the Municipal Council. The complaint filed by the respondent no.1 was allowed and the petitioners were directed to reinstate the respondent no.1 in service with continuity of service and with all monetary benefits. The judgment of the Industrial Court is challenged by the Municipal Council in the instant petition.
Shri Sambre, the learned Counsel for the Municipal Council submitted that the Industrial Court was not justified in allowing the complaint filed by the respondent no.1. It is submitted that the respondent no.1 could not have availed two remedies at the same time, one of filing a writ petition in the High Court and the other of filing a complaint before the Industrial Court. It is submitted that the admission of the respondent no.1 in his cross-examination that he had filed a writ petition and the said writ petition was pending could not have been ignored by the Industrial Court. It is submitted that there was an inordinate delay in filing the complaint, inasmuch as the services of the respondent no.1 were terminated in the year 1997 and the respondent no.1 had filed the complaint in the year 2002. It is submitted that the Industrial Court has not considered the aspect of delay in the right perspective and has condoned the huge delay without recording any ::: Uploaded on - 06/06/2016 ::: Downloaded on - 30/07/2016 01:35:31 ::: wp3112.07.odt 4 cogent reasons. It is submitted that the Industrial Court was not justified in directing the reinstatement of the respondent no.1 in service with continuity of service and with full monetary benefits. It is submitted that the respondent no.1 had worked only for a few days with the Municipal Council and when the complaint was filed belatedly, the Municipal Council could not have been penalized by directing it to pay the arrears of emoluments to the respondent no.1.
Shri Moharir, the learned Counsel for the respondent no.1 supported the order of the Industrial Court. It is submitted that the challenge raised by the petitioner in the writ petition and before the Industrial Court was not identical. It is submitted that in any case the respondent no.1 had withdrawn the writ petition as soon as the Industrial Court passed the order allowing the complaint. It is submitted that though there was some delay in filing the complaint, the delay was satisfactorily explained. It is submitted that the respondent no.1 was making representations to the Municipal Council and the Municipal Council had asked the respondent no.1 to wait till the High Court decides the writ petition. It is submitted that since the High Court did not decide the writ petition for long, there was no course open for the respondent no.1 but to file the complaint before the Industrial Court. It is submitted that the Industrial Court rightly held that the petitioners had committed unfair ::: Uploaded on - 06/06/2016 ::: Downloaded on - 30/07/2016 01:35:31 ::: wp3112.07.odt 5 labour practice by terminating the services of the respondent no.1, though he was rightly appointed on compassionate ground in view of the Government policy.
Shri Balpande, the learned Assistant Government Pleader appearing for the respondent no.2 - Collector supported the order of the Collector and submitted that the Industrial Court was not justified in directing the reinstatement of the respondent no.1 in service. It is submitted that proper procedure was not followed by the Municipal Council while making the appointment of the respondent no.1. The learned Assistant Government Pleader supported the case of the Municipal Council.
On hearing the learned Counsel for the parties, it appears that the Industrial Court was justified in directing the reinstatement of the respondent no.1 in service, though it was not justified in directing the petitioners to give the monetary benefits, flowing from the order of reinstatement and continuity of service to the respondent no.1. It is not the case of the Municipal Council that the father of the respondent no.1 was not medically unfit and the respondent no.1 was not entitled to be employed on compassionate ground. The Municipal Council had passed a Resolution on 21.3.1997 for appointing the respondent no.1 on the post of 'Chaparasi' on compassionate ground. The appointment of the ::: Uploaded on - 06/06/2016 ::: Downloaded on - 30/07/2016 01:35:31 ::: wp3112.07.odt 6 respondent no.1 is not stated to have been made in violation of the policy of the State Government. It appears that the Collector had refused to grant approval to the appointment of the respondent no.1 on the ground that the selection procedure was not followed while making the appointment. It was not necessary to constitute a Selection Committee while making the appointment on compassionate ground, in the year 1997, as per the policy of the Government, when the respondent no.1 was appointed. It is not the case of the Municipal Council that the appointment of the respondent no.1 was wrongly made or that he was not entitled for appointment. Merely because the Collector had refused to grant sanction to the appointment of the respondent no.1 as a 'Charapasi', the Municipal Council was not justified in terminating the services of the respondent no.1. The respondent no.1 and some others had filed a writ petition, challenging the order of their termination as also the orders of the Collector, refusing to approve their appointments. During the pendency of the said writ petition, the respondent no.1 had filed the complaint and had withdrawn the writ petition. Normally, a party cannot be permitted to avail two remedies simultaneously. It is the case of the respondent no.1 that the questions involved in the writ petition and the complaint were not the same. Be that as it may, since the respondent no.1 was out of job and had no means whatsoever for his livelihood, he had ::: Uploaded on - 06/06/2016 ::: Downloaded on - 30/07/2016 01:35:31 ::: wp3112.07.odt 7 approached the Industrial Court alleging the commission of unfair labour practices by the petitioners. In the aforesaid background, the Industrial Court rightly held that the respondent no.1 waited for long for a decision in his writ petition but since the writ petition was not being decided, the respondent no.1 approached the Industrial Court for appropriate relief and the Industrial Court, therefore, rightly condoned the delay in filing the complaint. In the circumstances of the case, the Industrial Court did not commit any mistake in directing the reinstatement of the respondent no.1 in service with continuity of service but the Industrial Court was not justified in directing the Municipal Council to pay the arrears of salary and all the other monetary benefits to the respondent no.1. Admittedly, the respondent no.1 had worked only for a couple of months with the petitioners and was out of service for almost ten years till the matter was decided by the Industrial Court. In the absence of any services rendered by the respondent no.1 to the Municipal Council for a long time, the Industrial Court could not have directed the Municipal Council to pay the arrears of salary to the respondent no.1. While granting back wages, the Industrial Court also failed to consider that the respondent no.1 had not approached the Industrial Court immediately after his dismissal from service and had filed the complaint belatedly. In the circumstances of the case, the Industrial Court ought to have directed the petitioners to ::: Uploaded on - 06/06/2016 ::: Downloaded on - 30/07/2016 01:35:31 ::: wp3112.07.odt 8 reinstate the respondent no.1 in service with continuity but without any monetary benefits. Since the Industrial Court was justified in holding, on the basis of the material on record, that the petitioners had indulged in unfair labour practice in terminating the services of the respondent no.1 despite the Resolution of the Municipal Council dated 21.3.2017, that was not withdrawn or cancelled, there is no scope for interference with the order of the Industrial Court, directing the reinstatement of the respondent no.1 in service. The submission made on behalf of the respondent no.2 - Collector that proper procedure was not followed while appointing the respondent no.1 on the post of 'Chaparasi' and hence, the proposal of the respondent no.1 was rightly rejected by the respondent no.2 - Collector, is liable to be rejected as the State policy did not require selection while while making compassionate appointment.
Hence, for the reasons aforesaid, the writ petition is partly allowed. The impugned order of the Industrial Court is modified. The part of the order that directs the reinstatement of the respondent no.1 with continuity of service stands confirmed. The petitioners should reinstate the respondent no.1 in service, within a period of one month. The part of the order that directs the petitioners to pay the monetary benefits to the respondent no.1 is hereby set aside. It is declared that though the respondent no.1 would be entitled to continuity of service on his ::: Uploaded on - 06/06/2016 ::: Downloaded on - 30/07/2016 01:35:31 ::: wp3112.07.odt 9 reinstatement, the respondent no.1 would not be entitled to back wages or any other monetary benefits that would normally flow from the order of reinstatement and continuity of service.
Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE Wadkar ::: Uploaded on - 06/06/2016 ::: Downloaded on - 30/07/2016 01:35:31 :::