Bombay High Court
Dr.Rajendra Narayanrao Wagh vs State Of Maharashtra And Others on 1 April, 2016
Bench: B.P. Dharmadhikari
1 wp1568.97
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.1568 OF 1997
1) Dr. Rajendra s/o Narayanrao Wagh,
since deceased, through his
legal heirs -
i) Smt. Bhagyarekha wd/o Dr. Rajendra
Wagh, aged about 63 years,
occupation : Household,
r/o Arvi, District Wardha.
ii) Gaurav s/o Dr. Rajendra Wagh,
aged about 34 years, occupation :
agriculturist, r/o Arvi, District
Wardha.
iii) Mandar s/o Dr. Rajendra Wagh,
aged about 32 years, occupation :
Service, r/o Pune.
2) Smt. Arti w/o Vinodrao Shende,
aged about 44 years,
occupation : service, r/o
Gangotri Apartment, 38-A,
Wanjari Nagar, Nagpur.
3) Smt. Kalyani w/o Vilasrao
Ghodki, aged about 33 years,
occupation : service, r/o near
Kamla Nehru High School,
Ram Nagar, Wardha. ... Petitioners
- Versus -
1) State of Maharashtra, through
its Secretary, Public Health
::: Uploaded on - 05/04/2016 ::: Downloaded on - 29/07/2016 20:34:03 :::
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Department, Mantralaya,
Mumbai - 32.
2) Additional Director of Health
Services, M.C.H. & S.M.,
Family Welfare Bhavan,
Pune - 1.
3) Kasturba Health Society,
Sevagram, Wardha, through
its Secretary.
4) Mahatma Gandhi Institute ofig
Medical Sciences, Sevagram,
Wardha, through its Dean.
5) Programme Director, Post Partum
Programme, Mahatma Gandhi
Institute of Medical Sciences,
Sevagram, Wardha.
6) Ministry of Health, Family
Welfare, New Delhi. ... Respondents
-----------------
Shri H. Dangre, Advocate for petitioner no.1.
Shri R.S. Kurekar, Advocate for petitioner no.2.
Smt. M.N. Hiwase, Assistant Government Pleader for
respondent nos.1 and 2.
Shri A.S. Manohar, Advocate for respondent nos.3 to 5.
Smt. A. Joshi, Advocate for respondent no.6.
----------------
CORAM : B.P. DHARMADHIKARI AND
P.N. DESHMUKH, JJ.
DATED : 31/03/2016 AND 01/04/2016
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ORAL JUDGMENT (PER B.P. DHARMADHIKARI, J.) :
By this petition filed under Article 226 of the
Constitution of India, the petitioners seek different
reliefs. The petition was tendered on 9/6/1997 and at
that time prayer was to quash and set aside orders of
termination dated 2/6/1997.
ig Interim stay of those
orders was also sought. As termination orders were to
come into effect from 30/6/1997, this Court on
27/6/1997 directed status quo. The said order was
continued on 14/7/1997 and thereafter on 20/10/1997
when rule came to be issued in the matter. The said
order continues to operate even today.
2) As the learned Counsel representing
petitioners earlier, ceased to practise, notice for
engagement of other Advocate was served upon
petitioners. The petitioner no.3 has not responded to
that notice. Thus, petition is being prosecuted on
behalf of petitioner nos.1 and 2 only.
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3) We have heard Adv. Dangre with Adv. Kurekar
for petitioner nos.1 and 2, Smt. Hiwase, learned
Assistant Government Pleader for respondent nos.1
and 2, Adv. Manohar for respondent nos.3 to 5 and
Adv. Joshi for respondent no.6.
4) The petitioner no.1 joined employment
ig as
Medical Officer vide order dated 22/8/1978 and he
reached the age of superannuation on 31/5/2010. He
expired on 15/1/2012 and his legal heirs have been
brought on record.
The petitioner no.2 joined in pursuance of
order dated 23/8/1978 as Lecturer and she reached the
age of superannuation on 31/5/2013.
5) Admittedly, both petitioner nos. 1 and 2 were
working under Post Partum Programme of respondent
no.6. The respondent nos.1 and 2 were acting as
Implementing Agencies and as per norms prescribed by
respondent no.6, the actual programme was executed
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through different Agencies. The respondent nos.3, 4
and 5 were managing that programme through Hospital
(respondent no.4). The funds were provided by
respondent no.6 and the programme was monitored by
respondent nos.1 and 2.
6) The orders of termination were required to be
issued by respondent no.5 Programme Director
because of communication dated 28/4/1997 of State
Family Welfare Bureau, Government of Maharashtra
informing respondent no.3 that no further grants for the
year 1996-97 would be released for Post Partum
Programe at respondent no.4 College.
7) After hearing respective Counsel for the
parties, before proceeding further, we find it
appropriate to take note of the judgment of learned
Single Judge of this Court delivered at Bombay in
relation to Post Partum Programme. The said judgment
is reported in 2002 II CLR 413 (Ramakant Laxman
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Sarmalkar Vs. Nowojee Wadia Maternity Hospital & Ors)
It is a writ petition decided after adjudication by
Industrial Court under Item 6 of Schedule IV of the
Maharashtra Recognition of Trade Unions and
Prevention of Unfair Labour Practices Act, 1971. By this
judgment, the learned Single Judge has found that
under that programme, which continued as temporary
programme for over 30 years, relationship as employer
and employee did not exist with Hospital or with State
Government, but employees working under the scheme
were employees of Central Government. That judgment
was maintained in Letters Patent Appeal No. 671/2002,
which was disposed of on 1/11/2007. In letters patent
appeal, interim orders were sought by the employee
and those interim orders were granted by the Division
Bench on 19/9/2002. The special leave petition was
preferred against those interim directions by State of
Maharashtra. The Hon'ble Apex Court granted leave in
the matter initially, but ultimately on 22/3/2012 Civil
Appeal No.1916/2008 came to be dismissed.
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8) It is in this background that Adv. Dangre has
invited our attention to various interim orders passed
by this Court in the present writ petition. He submits
that termination could not come into force on
30/6/1997 because of interim orders of this Court and
petitioners continued to work till 30/9/1999. On that
day, respondent nos.3 to 6 put a lock on premises of
Post Partum Programme Centre and petitioners were
thus physically prevented from working. He adds that
interim orders were not vacated and hence, even till
date of superannuation of respective petitioners, orders
of termination did not come into effect. According to
him, after superannuation, the said orders cannot come
into force and hence, in this background, entitlement of
the petitioners to salary for the period from 1/4/1997
onwards till the date of superannuation needs to be
examined. He further submits that relationship of
petitioners as employees with respondent no.6 is not in
dispute because of judgment of the learned Single
Judge mentioned supra and recognising that
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relationship, appropriate orders need to be passed. He
has taken us through the judgment delivered at
Bombay at length to show that though Central
Government released regular wages in pay scale, no
deduction was made towards provident fund. He
contends that consequent to superannuation,
retiral/terminal benefits as per law must also be
released to petitioners.
9) Adv. Manohar appearing for respondent nos.3
to 5 states that the petitioners were not employees of
either respondent no.3 or respondent no.4. They were
appointed under a scheme and the scheme was
monitored by respondent nos.1 and 2 as per norms
prescribed by respondent no.6. The funds were being
released by respondent no.6. The aim of scheme was
to curb population growth and respondent nos.3 to 5
assisted the Central Government and State
Government in executing the scheme. He contends
that in the light of judgment delivered at Bombay,
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these respondents cannot be treated as employer of
petitioners at all. As the grants were not released,
these respondents could not be and were not expected
to continue to execute the scheme and, therefore, the
Centre was required to be closed down for want of
finance.
10)
Adv. Joshi appearing for respondent no.6
invites our attention to the fact that appointment
orders actually issued to petitioner nos.1 and 2 are not
produced on record. An offer to join issued to them on
22/8/1978 and 23/8/1978 respectively have only been
produced. The appointment orders issued to them
thereafter ought to have been produced on record by
them. She has invited our attention to the fact that
petitioner no.3 has produced that appointment order on
record. She is relying upon the stipulation therein that
appointment was on temporary basis under a particular
programme (Voluntary Organization). She points out
that expressly it has been mentioned that petitioner
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no.3 would not be entitled to any retiral benefits, such
as contributory provident fund, gratuity, etc.
According to her, appointment orders of petitioner
nos.1 and 2 could not have been on different lines.
11) By placing reliance on the very same
appointment order,
ig Adv. Joshi submits that
appointment order was issued by Dean of respondent
no.4 College and Conduct, Discipline and Appeal Rules
of respondent no.3 have been made applicable to
petitioners. She, therefore, states that service
conditions of Central Government were never made
applicable and respondent no.6 was not aware of any
such arrangement. Even the orders of termination are
issued by respondent no.4 without knowledge of
respondent no.6. Her submission is, therefore, there
cannot be any employer-employee relationship
between respondent no.6 on one hand and petitioners
on the other. She points out that in the reported
judgment, provisions of Maharashtra Recognition of
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Trade Unions and Prevention of Unfair Labour Practices
Act, 1971 have been looked into and thereafter a
particular finding has been recorded. According to her,
the said finding has no application in the present
matter.
12) Adv. Joshi has further pointed out that Ministry
of Health, Family Welfare, New Delhi has been added as
respondent no.6 in this matter for the first time on
5/7/2000, i.e. after more than three years of filing of
writ petition. Thus, respondent no.6 was not aware of
the dispute till then. Affidavit filed on behalf of
respondent no.6 is pressed into service to show that
Post Partum Programme scheme has been handed over
to State Government with effect from 1/4/2002.
Adv. Joshi, therefore, contends that today when the
scheme is no longer with respondent no.6, no liability
therefor can be enforced against it and the issue needs
to be resolved by other respondents.
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13) Adv. Joshi further contends that the
termination was ordered by respondent no.4 and grants
have been discontinued by respondent nos.1 and 2.
The respondent no.6 is, therefore, not responsible
either for termination or for discontinuation of grants.
The petitioners have not produced on record any
material to show that they were without any source of
employment after 30/6/1997 or then 1/10/1999.
Hence, no back wages can be granted to them. She
further states that as petitioners did not work after
1/10/1999 till their superannuation, principle of `no
work, no pay' must apply and wages for the said period
must be declined to them.
14) Smt. Hiwase, learned Assistant Government
Pleader appearing for respondent nos.1 and 2, points
out that State Government has only functioned as
conduit between respondent no.6 and respondent nos.3
to 5. The funds were released by the Central
Government for implementation of scheme framed by
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it. Norms therefor were prescribed by the Central
Government and in terms thereof, respondent nos.1
and 2 have only monitored release of funds. As
respondent nos.3 to 5 did not achieve expected results,
grants were declined to them by State Government.
The grants have been declined by applying the norms
prescribed by respondent no.6 only.
ig She further
contends that respondent nos.1 and 2 have not taken
recourse to any recruitment and recruitment under the
scheme was done by respondent nos.3 to 5. As such,
there cannot be any relationship as employer and
employee between petitioners and respondent nos.1
and 2. She submits that scheme was temporary and as
proper procedure for effecting recruitment is not shown
to have been followed, no liability of any employee can
be fastened on State Government. She further
contends that scheme has been discontinued on
1/4/2002 and the petitioners have not made any prayer
against State Government. She, therefore, prays for
dismissal of writ petition.
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15) Adv. Dangre, in reply, points out that
petitioners worked continuously from 1978 till the
purported date of termination and thereafter till the
Centre was closed by putting lock upon it by
respondent nos.3 to 5, i.e. upto 30/9/1999. He submits
that thus till 30/9/1999, deceased petitioner no.1 and
petitioner no.2 had put in more than 21 years of
service. He has invited our attention to paragraph 5-B
of writ petition added by way of amendment to urge
that assertions therein show readiness and willingness
of both the petitioners to work. Civil Application
No.5857/2003 was filed on 18/9/2003 and it has been
allowed on 22/9/2004. According to him, therefore,
material on record shows that as on that date,
petitioners have shown their readiness and willingness
to work. He contends that only because of said
readiness and willingness, the Centre was required to
be locked to physically prohibit them from reporting
and working. He states that as orders of termination
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never became effective, the petitioners must be
declared entitled to back wages till date of
superannuation.
16) Adv. Dangre further points out that by interim
directions issued by this Court on 21/12/2004,
respondents were called upon to examine the situation
emerging after review of entire staff working under Post
whole Partum Programme and to place on record
ultimate decision taken by them. However,
respondents have not placed on record any such
material. He contends that treatment extended to
other similarly situated employees under Post Partum
Programme should have been brought on record and
petitioners before this Court are entitled to be treated
similarly.
17. In the backdrop of facts noted supra, it is
apparent that the petitioners were not terminated
though they could not perform their duty after
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1.10.1999. Judgment delivered by learned Single Judge
of this court in case of Ramakant Laxman Sarmalkar &
Os. Vs. Nowrojee Wadia Maternity Hospital & Ors.
(Supra) lays down the law and there the very same
case has been looked into. It is no doubt true that the
challenge reached the High court after adjudication by
Industrial Court in ULP complaint. Employee Ramakant
had filed complaint before Industrial Court seeking
benefits and privileges of permanency. Industrial Court
found that there was no employee-employer
relationship between employee and hospital. After
hearing respective counsel and also the counsel for
Central Government, this court in paragraph 10 has
noted that hospital before it had accepted and
undertaken to implement the PPP scheme at the
request of Central Government. The scheme was
framed in 1969 to check and control population. It
further found that Government of India provided funds
and had prescribed norms for engagement of required
staff or employees. There was no decision whether
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such staff would be made permanent or not and there
was no provision in grant-in-aid scheme for the release
of provident fund, gratuity etc. Actually there was no
deduction towards provident fund. Grants were
released by Central Government according to scales of
such employees who were working under the scheme.
It is found that scheme continued in excess of 30 years
and entire blame for unfair labour practice under Item
6 Schedule IV of MRTU & PULP Act was put upon Union
of India. In paragraph 13 of the judgment it is,
therefore, directed that Central Government should
review entire position of staff working under PPP and
seek appropriate decision in that regard. Central
Government was obliged to inquire from the
implementing agencies and all other hospitals whether
they can absorb and regularize such staff in their own
organisation and that Central Government should
reimburse them only for such additional burden
resulting therefor. Time of three months was given to
Central Government to take appropriate decision.
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18. This court has in present petition in order
dated 21.12.2004 in paragraph 1 has taken note of this
direction and also inability of learned counsel then
appearing for Central Government to explain
subsequent developments. In paragraph 4 it has taken
note of the contention that Central Government was
still funding the scheme and releasing grants to State
Government. Central Government was directed to
clarify as to how much amount was being paid to State
Government for implementing PPP programme and
whether any grants have been released to State
government for implementing that programme in
respondent nos. 3 & 4 institute. In paragraph 3 in the
backdrop of directions issued at Bombay, this court has
observed that entire material should be placed before it
with necessary document within period fixed by it.
19. An affidavit accordingly has been tendered on
2.3.2005 by respondent no. 6. In that affidavit, filing of
LPA before Bombay Bench, passing of order therein on
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19.9.2004 is disclosed. In paragraph 7 it has been
pointed out that w.e.f. 1.4.2002 PPP scheme has been
transferred to State Government and Central
Government has not proceeded further with the
scheme under bonafide impression and as such there
was no question of any review being undertaken by it.
Copy of reply filed in LPA and copy of SLP filed by State
Government are annexed along with this reply.
20. Record also shows that an additional affidavit
had been tendered on 22.3.2005 by respondent no. 6
and it is clarified that with effect from 10 th Five Year
Plan (2002-2007) and Annual Plan ( 2002-2003) i.e.
with effect from 1.4.2002 the PPP scheme has been
transferred to State Government. It is further pointed
out that the State Government was also requested to
take over all responsibility for salary and maintenance
cost in respect of existing PPP scheme. A chart
showing the amount paid to the Maharashtra
Government for PPP scheme as per 9th plan is also
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mentioned in that affidavit.
21. However, the position qua petitioners before
this court has not been explained. They were directed
to maintain status quo and those directions were
already operating. In this situation how by unilateral act
of Central Government, the liability, if any, on account
of employment of petitioners could have been
transferred to State Government has not been
explained.
22. At the same time, after petitioners were
specifically prohibited from working from 1.10.1999
petitioners did not make any grievance thereabout
before this court. They have not pointed out that
though they were ready and willing to work, they were
not in position to discharge their duties. They did not
apply to this court for direction either to respondent
nos. 3 to 5 or other respondents to see that work of
PPP scheme with respondent nos. 3 & 4 is restarted and
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they are given work as before.
22. As pointed out by learned counsel for
respondent nos. 1, 2 & 6, petitioners have not pointed
out to this court on affidavit that after 1.10.1999 they
were reporting for duty every day and were prohibited
from working. They have also not placed on record any
affidavit to show that they were not gainfully employed
elsewhere during this period.
23. In this situation, the question is, whether the
petitioners, when technically the order of termination
did not take effect, can be given any relief. Prayers in
the petition show challenge to termination order and
seek direction to release salary regularly. There is also a
direction sought against respondent nos. 1, 2 & 6 to
make payment of entire salary and to absorb/regularise
petitioners from the date of the initial appointment and
to release all consequential benefits in appropriate
service under Central Government.
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24. The act of Central Government in transferring
PPP programme to State Government with effect from
1.4.2002 has not been assailed before this court.
25. Benefit of regularization or permanency can be
extended under MRTU AND PULP Act as the act of
employer in continuing
ig employee/workman as a
temporary employee for years together with a view to
deny him benefit or privilege of permanency has been
declared as an unfair labour practice. In present
matter, except for pointing out that scheme has
continued from 1969 till it is handed over by Central
Government to State Government on 1.2.2004, there is
no other material before this court to enable us to hold
that the petitioners were being continued as temporary
with any oblique motive. But the fact of having put in
21 years of service under scheme cannot be ignored.
26. Considering the interim orders passed by this
court, not filing of suitable affidavit by petitioners about
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absence of any gainful employment thereafter or about
reporting for duty every day and specific prohibition by
respondent nos. 3 to 5, absence of challenge to or
transfer of PPP Scheme, all lead us to the conclusion
that in present matter, the relief of regularization or
absorption cannot be given to petitioners. Similarly,
"no work no pay" cannot be fully overlooked as
petitioners also have not shown due diligence.
27. It appears that pension or provident fund or
gratuity was not the service condition under the
employment terms. As pointed out by respondent no.6,
appointment order issued to petitioner no. 3 is only
available on record. If any such order is issued to other
petitioners, that order has not been produced before
us. Petitioner no. 3 is not prosecuting the matter before
this court.
28. Taking overall view of the matter, we direct
respondent nos. 1 & 2 and respondent no. 6 to release
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salary of three years ( thirty six months only) in this
petition as compensation for service rendered by them
and also in lieu of loss of employment.
29. The said period of thirty six months shall be
immediately preceding the date of superannuation of
concerned petitioner.
30.
The compensation shall be worked out in
appropriate pay scale to which petitioners would have
been entitled had they continued in service.
31. The resulting burden shall be shouldered
equally by State Government and by respondent no. 6.
32. The amount due to petitioner no. 1 shall be
released to legal heirs while amount due to petitioner
no. 2 shall be paid to her.
33. Petition as filed on behalf of petitioner no. 3 is
dismissed for want of prosecution.
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34. The exercise of computation shall be
completed within period of six months from today and
resulting payment shall be made to the parties within
next three months.
35. Acceptance ig of such payment shall not
preclude the petitioners from questioning correctness
of the exercise undertaken.
36. Writ petition is thus partly allowed and
disposed of. No costs.
JUDGE. JUDGE
Jeswani/Hirekhan
