Bombay High Court
Ahmednagar Mahanagar Palika ... vs Shivaji Sonyabapu Kadam on 6 April, 2016
Bench: R.V. Ghuge
WP/1823/2011
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1823 OF 2011
Ahmednagar Municipal Corporation,
Ahmednagar,
Through its Commissioner. ..Petitioner
Versus
1 Malan Kisan Asmar
Age : 60 years, Occu: Household,
R/o. Datrange Mala, Adarsha Colony,
Ahmednagar.
2
Smt. Jijabai Kisan Arade,
Age : 59 years, Occu: Household,
R/o. Sanjaynagar, Katwan Khandoba
Zopadpatti, Ahmednagar.
3 Smt. Shantabai Baban Kshirsagar
Age : 61 years, Occu: Household,
R/o. Maliwada, Patgalli,
Chandrakant Gadilkar Wada,
Ahmednagar.
4 Smt. Hawabi Munshi Khan
Age : 60 years, Occu: Household,
R/o. Mangalgate, Haveli, Kothala,
Ahmednagar.
5 Smt. Shaikh Khantunbi Gulab
Age : 59 years, Occu: Household,
R/o. Hatampura, Near Masjid,
Ahmednagar.
6 The Secretary,
Urban Development Department,
Govt. of Maharashtra,
Mumbai - 400 032.
7 The Regional Director,
Directorate of Municipal Administrative,
Nashik Region, Nashik Road,
Nashik, Maharashtra. ..Respondents
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WP/1823/2011
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WITH
WRIT PETITION NO. 1678 OF 2012
Ahmednagar Mahanagar Palika,
Ahmednagar, Through its,
Commissioner. ..Petitioner
Versus
Ahmednagar Mahanagar Palika,
Kamgar Union, "Shramik"
Tilak Road, Ahmednagar.
(Notice to be served on
Vice-President of Union). ..Respondent
ig WITH
WRIT PETITION NO. 6921 OF 2012
Ahmednagar Mahanagar Palika,
Ahmednagar, Through its,
Commissioner. ..Petitioner
Versus
Sayyed Ahmad Hazimiya
Age : 62 years, Occu: Nil,
R/o. Bara-Imam, Kothala,
Ahmednagar. ..Respondent
WITH
WRIT PETITION NO. 7892 OF 2015
Ahmednagar Mahanagar Palika,
Ahmednagar, Through its,
Commissioner. ..Petitioner
Versus
Shakuntala Vitthal Chabukswar,
Age : 62 years, Occu: Nil,
R/o. 1544, Milind Colony,
Alamgir, Bhingar, Ahmednagar. ..Respondent
WITH
WRIT PETITION NO. 7897 OF 2015
Ahmednagar Mahanagar Palika,
Ahmednagar, Through its,
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WP/1823/2011
3
Commissioner. ..Petitioner
Versus
Shakuntala Dadau Padale
Age : 60 years, Occu: Nil,
R/o. Behind Koti Power House,
Station Road, Ahmednagar. ..Respondent
WITH
WRIT PETITION NO. 8729 OF 2015
Ahmednagar Mahanagar Palika,
Ahmednagar, Through its,
Commissioner. ..Petitioner
Versus
Smt. Basanti w/o. Kishor Chavan
Age : 60 years, Occu: Labourer,
R/o. Near School No.15, Maliwada,
Ambedkar Road, Ahmednagar. ..Respondent
WITH
WRIT PETITION NO. 10569 OF 2015
Ahmednagar Mahanagar Palika,
Ahmednagar, Through its,
Commissioner. ..Petitioner
Versus
Shivaji Sonyabapu Kadam
Age : 63 years, Occu: Nil,
R/o. Manjar-Sumba, Post. Jeur-Baijabai,
Tq. & Dist. Ahmednagar. ..Respondent
...
Advocate for Petitioner : Shri Bedre V.S.
Advocate for Respondents : Shri Barde Parag Vijay
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: April 06, 2016
...
WP/1823/2011
ORAL JUDGMENT:-
1. Heard learned Advocates for the respective parties.
2. Since the issue involved in all these matters is identical, the
petitioner is the same Municipal Corporation and since all the respondents
are identically placed former employees of the petitioner / Corporation, I
have taken up all these matters together by the consent of the parties.
3.
The first and the third petition have been admitted. As such, the
second and fourth to seventh petitions are admitted.
4. By consent, Rule is made returnable forthwith and all the petitions
are taken up for final disposal.
5. For the sake of clarity, the petitioner in all these matters will be
referred to as the "petitioner" or the "Corporation" and all the respondents
in these matters would be referred to as the "employees".
6. Shri Bedre, learned Advocate on behalf of the Corporation has
strenuously criticized the impugned judgments of the Industrial Courts
delivered in Complaint (ULP) Nos. 254/1993, 472/1994, 197/1995,
193/1995, 38/1994, 119/1993, 261/1995, 41/1995, 45/1995, 51/1995 and
42/1995, which have been filed by the employees.
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7. Shri Bedre submits that the issue raised in these petitions is limited
to as to whether the employees could be granted their retiral and
pensionary benefits after having waived all such benefits in a proceeding
before the Industrial Court.
8. He submits that all the employees were working as Daily Wagers from
and about 1981. They were granted benefits of permanency and
regularization by the Industrial Court, vide its judgment dated 17.8.1998
delivered in a group of Complaints filed by the employees. There is no
dispute that the said judgment of the Industrial Court has not been upset or
set aside by this Court or by the Honourable Supreme Court.
9. He submits that since the employees felt that the Corporation was
delaying their regularization, they filed Complaint (ULP) No.127 of 2002
seeking those benefits from the Industrial Court.
10. Shri Bedre has drawn my attention to the pleadings in the Complaint
(ULP) No.127 of 2002, whereby the employees have harped upon an order
issued by the Directorate of Municipal Administration dated 31.10.2002, by
which the concerned 305 employees have been granted regularization
w.e.f. 31.10.2002 subject to the conditions set out therein. He then points
out the relevant Clauses set out in the said communication, thereby
indicating that the primary condition while granting regularization to these
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employees was that they would waive their entire benefits for the tenure of
service, prior to their dates of regularization. He further submits that by an
earlier communication, dated 20.4.2001, the Directorate of Municipal
Administration put forth the condition at Clause 7 that the employees
would waive their monetary benefits and service benefits for the earlier
period prior to their regularization.
11. He, therefore, submits that paragraph Nos. 2 and 3 of the Complaint
assumes importance since these employees had moved the Complaint (ULP)
No.127 of 2002 seeking directions to the petitioner to implement the order
dated 31.10.2002 issued by the Directorate of Municipal Administration.
12. In the above backdrop, he submits that the Industrial Court then
proceeded to pass an order in Complaint (ULP) No.127 of 2002 on 30.1.2002.
A specific statement by the respondents that they are ready to forgo their
rights arising out of the judicial orders was accepted and considering the
said concession given by the employees, the Industrial Court allowed the
Complaint in terms of the Government Resolution dated 31.10.2002,
circulated through the Regional Director, Municipal Administration. He,
therefore, submits that none of the respondent / employees were,
therefore, entitled to any retiral or pensionary benefits if, otherwise, they
were not eligible on account of having not put in qualifying service.
13. He further submits that the order dated 30.1.2002, by which,
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Complaint (ULP) No.127 of 2002 was allowed, has not been challenged by
the employees before this Court and has attained finality.
14. He further submits that eventually all these employees have retired
from service and post retirement, they have put forth their claims for
retiral and pensionary benefits under the Maharashtra Civil Services
(Pension) Rules, 1982. Since the employer did not grant such benefits, these
employees preferred Complaints under the the Maharashtra Recognition of
Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short
"the 1971 Act") which are mentioned herein above. By the impugned
judgments, all these complaints were allowed and the petitioner has been
directed to pay the retirement benefits like pension and gratuity to the
concerned employees considering their total length of service from the date
of joining as a daily rated employee. He submits that the Industrial Court
failed to appreciate that the respondents had waived their monetary and
service benefits for the past period prior to the dates of regularization and
hence none of the employees could be said to be entitled for pensionary
benefits as they have not put in the requisite years as permanent employees
by way of qualifying service.
15. He places reliance upon the judgment of the Honourable Supreme
Court in the matter of Thiru John Vs. Returning Officer and others [(1997) 3
SCC 540], in support of his contention that once a specific statement /
admission is made by a party, it amounts to an admission under Section 17
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and 21 of the Evidence Act and that would be a substantive evidence
proprio vigore and would continue to bind the litigant making the
admissions.
16. He then relies upon an unreported order of this Court dated
29.9.2015 in Civil Revision Application No.168 of 2007, wherein, this Court
had concluded in paragraph No.11 that the admission given in an earlier
proceeding is a substantive evidence proprio vigore and hence the
concerned litigant cannot resile from the statement made. He,
submits that these petitions deserve to be allowed and the impugned
therefore,
judgments of the Industrial Court deserve to be quashed and set aside.
17. Shri Barde, learned Advocate appearing on behalf of the employees
submits that the employees were working from about 1981. After the
Industrial Court granted permanency on 17.8.1998, the management
forwarded the proposal of the employees for regularization. By order dated
20.4.2001, the Directorate of Municipal Administration imposed the
condition of waiver of monetary benefits and service benefits for the period
prior to their regularization.
18. He submits that the employees, who had no bargaining power, were
helpless and had no option but to accept whichever condition that would be
imposed, only for the sake of acquiring job security. It was never made
known to them, nor does the communication dated 20.4.2001 or 31.10.2002
WP/1823/2011
ever indicate that the employees would be deprived of their retiral and
pensionary benefits. It was made known to the employees that they would
not get monetary benefits for the past period as daily wagers. On this
belief, the employees had filed Complaint (ULP) No.127 of 2002 and which
has been decided by order dated 30.1.2002.
19. He further submits that since the words "past daily wage service"
was mentioned in the two documents issued by the Municipal
Administration, none of the employees were ever made aware that their
pensionary and retiral benefits would be compromised. He, therefore,
submits that such a concession given by the employees cannot be used
against the employees so as to deprive them of their retiral and pensionary
benefits which were not even whispered about in both the Government
Resolutions.
20. Shri Barde then relies upon the judgment of the Industrial Court
dated 7.7.1998 by which the complaints of the respondents were allowed
and all of them were granted permanency and benefits incidental and
consequential thereto. He, therefore, submits that the judgment of the
Industrial Court, dated 17.7.1998 has attained finality and the petitioners
are duty bound to implement the directions of the Industrial Court.
21. He draws my attention to the Government Circular dated 13.5.1970,
by which, the Government resolved that half of the continuous service of all
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work charged and daily rated employees would be considered and would be
accounted for calculating pension and retiral benefits. He, therefore,
submits that once the Government has resolved to bestow these pensionary
and retiral benefits on the daily wagers, the petitioner cannot take away
these benefits on the pretext of a compromise arrived at before the
Industrial Court.
22. He further submits that as it was no where stated that the
employees would be deprived of their pensionary and retiral benefits, they
accepted the terms and conditions and waived all monetary benefits with
regard to their daily wage service. However, they had not waived their
right to retiral and pensionary benefits.
23. He then draws my attention to a judgment dated 3.3.2016, delivered
by this Court (to which I am a party) in Writ Petition No. 8000 of 2015
(Mahatma Phule Krushi Vidyapeeth Rahuri Vs. Ganpat Kisan Karle). He
submits that this Court has concluded in paragraph No. 36 of the said
judgment that a notification or Government Resolution, which is introduced
to over bear the Rules or the Law will have to be struck down. He,
therefore, submits that the Circular / Notification issued by the Municipal
Administration, dated 20.4.2001 and 31.10.2002 cannot take away the
benefits of the employees as are provided under the law.
24. He has then relied upon the following judgments to support his
WP/1823/2011
contention that an incorrect concession given by a litigant cannot be used
to deprive him of the benefits of pension, retiral benefits and such other
benefits to which he is legally entitled to:-
(i) Union of India Vs. Mohallal Likumal Punjabi - AIR 2004 SC 1704
(ii) Union of India Vs. Shammi Bhan - AIR 1998 SC 1681
(iii) Waliuddin Pashasaheb Vs. State and another -
Writ Petition No.1542 of 2008, dated 25.8.2010,
(iv)
Syed Afzaluddin Ustad Vs. State and another -
Writ Petition No.815 of 2011, dated 24.8.2011,
(v) Raghavendra Acharya Vs. State of Karnataka - AIR 2006 SC 2145,
(vi) State of Jharkhand & Ors. Vs. Jintendra Kumar Srivastava & Ors. -
Civil Appeal No.6770 of 2013, dated 14.8.2013 - Supreme Court.
(vii) The Hindustan Construction Co. Ltd. Vs. Shri G.K.Patankar and anr.-
(1976) 1 SCC 810 and
(viii) Roshan Deen Vs. Preeti Lal - AIR 2002 SC 33.
25. I have considered the submissions of the learned Advocates and have
gone through the judgments cited.
26. The whole issue turns upon whether Clause 7 of the Notification
dated 20.4.2001 and Clause 6 of the Notification dated 31.10.2002 could be
interpreted to mean that the employees have been or could be deprived of
their pensionary and retiral benefits.
WP/1823/2011
27. Having considered the record available, I do not find that in any of
these two Resolutions / Notifications, the petitioner has made it clear to
the employees that they would be deprived of their retiral and pensionary
benefits by discounting their service as daily rated employees. It is now
sought to be interpreted by the petitioner that the term monetary and
service benefits necessarily means that the employees would not be
entitled for even retiral and pensionary benefits by excluding the temporary
period of service.
28. This Court in the case of Mahatma Phule Krushi Vidyapeeth (supra)
has considered the effect of Rule 110, Rule 57 read with Note 1 and Rule 30
of the 1982 Pension Rules. It has, therefore, been settled that all such
daily wage employees, who have been paid daily wages and which have not
been drawn from the Contingency Fund, would be squarely covered under
Rule 30 of the 1982 Rules and therefore, are entitled for the pensionary
benefits by reckoning their temporary service and by adding the same to
the permanent service period for satisfying the definition of "qualifying
service". It is, therefore, no longer res integra that the temporary
employment put in by the daily rated employees has to be reckoned with
for grant of pensionary benefits.
29. In the Union of India Vs. Mohanlal's judgment (supra), the Honourable
Supreme Court has dealt with a 'wrong concession' made by the parties.
WP/1823/2011
Even if it is presumed that the condition of waiver imposed upon the
employees by the Directorate of Municipal Administration is construed to
mean and include retiral, pensionary and statutory benefits, it has to be
considered as to whether a wrong concession given for waiving statutory
benefits can be held to be binding on the employees. Paragraph Nos.8 and
9 of the Mohanlal Judgment (supra) read as under:-
"8. We shall first deal with the effect of concession, if any, made
by learned counsel appearing for the present appellants before the
High Court. Closer reading of the High Court's order shows that the
High Court took the view that in view of the revocation of the order
on 19th December, 1994 and the order passed by the High Court in
11th January, 1995, no further order could have been passed under
Section 7 of SAFEMA. After having expressed this view, the so-called
concession is recorded. In our view the concession, if any, is really of
no consequence, because the wrong concession made by a counsel
cannot bind the parties when statutory provisions clearly provided
otherwise. It was observed by Constitution Bench of this Court
Sanjeev Coke Manufacturing Company v. Bharat Coking Coal Limited
and Anr. : [1983]1SCR1000 that courts are not to act on the basis of
concession but with reference to the applicable provisions. The view
has been reiterated in and Central Council for Research in Ayurveda
& Siddha and Anr. v. Dr. K. Santhakumari [2001] 3 SCR 519. In para
12 of Central Council's case (supra) it as observed as follows:
"In the instant case, the selection was made by the
Departmental Promotion Committee. The Committee
must have considered all relevant facts including the
inter se merit and ability of the candidates and prepared
the select list on that basis. The respondent, though
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senior in comparison to other candidates, secured a
lower place in the select list, evidently because the
principle of "merit-cum-seniority" had been applied by
the Departmental Promotion Committee. The respondent
has no grievance that there were any mala fides on the
part of the Departmental Promotion Committee. The
only contention urged by the respondent is that the
Departmental Promotion Committee did not follow the
principle of "seniority-cum-fitness". In the High Court,
the appellants herein failed to point out that the
promotion is in respect of a "selection post" and the
principle to be applied is "merit-cum-seniority". Had the
appellants pointed out the true position, the learned
Single Judge would not have granted relief in favour of
the respondent. If the learned counsel has made an
admission or concession inadvertently or under a
mistaken impression of law, it is not binding on his client
and the same cannot ensure to the benefit of any party."
(underlined for emphasis)
9. In Uptron (India) Ltd. v. Shammi Bhan and Anr. [1998] 1 SCR
719, it was held that a case decided on the basis of wrong concession
of a counsel has no precedent value. That apart, the applicability of
the statute or otherwise to a given situation or the question of
statutory liability of a person/institution under any provision of law
would invariably depend upon the scope and meaning of the
provisions concerned and has got to be adjudged not on any
concession made. Any such concession would have no acceptability or
relevance while determined rights and liabilities incurred or
acquired in view of the axiomatic principle, without exception, that
there can be no estoppel against statute."
WP/1823/2011
30. In the case of Uptron (India) Ltd. v. Shammi Bhan and Anr. [1998] 1
SCR 719, the Honourable Supreme Court further dealt with the issue of
wrong concession given in paragraph No.23 which reads as under:-
"23. In view of this observation, the question whether the
stipulation for automatic termination of services for overstaying the
leave would be legally bad or not, was not decided by this Court in
the judgment relied upon by Mr. Manoj Swarup. In that judgment
the grounds on which the interference was made were different.
The judgment of the High Court was set aside on the ground that it
could not decide the disputed question of fact in a writ petition and
the matter should have been better left to be decided by the
Industrial Tribunal. Further, the High Court was approached after
more than six years of the date on which the cause of action had
arisen without there being any cogent explanation for the delay. Mr.
Manoj Swarup contended that it was conceded by the counsel
appearing on behalf of the employee that the provision in the
Standing Orders regarding automatic termination of services is not
bad. This was endorsed by this Court by observing that "Learned
counsel for the respondent rightly made no attempt to support this
part of the High Court's order." This again cannot be treated to be a
finding that provision for automatic termination of services can be
validly made in the Certified Standing Orders. Even otherwise, a
wrong concession on a question of law, made by a counsel, is not
binding on his client. Such concession cannot constitute a just
ground for a binding precedent. The reliance placed by Mr. Manoj
Swarup on this judgment, therefore, is wholly out of place."
31. In Syed Afzaluddin case (supra), decided by this Court on 24.8.2011,
this Court considered the submissions of the litigating sides and has
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considered in paragraph Nos. 4 and 5 as under:-
"4. The respondent no.2 submits that since at the time of
regularization of the services, the petitioner agreed that his past
services would not be counted for any purposes and now he is not
entitled for any pensionary benefits by computing his earlier
service. Mr. Barde, learned counsel for the respondent no.2
submitted that the petitioner is now estopped from claiming the
benefit, as he has accepted the condition to regularization of the
services that he would not claim any benefit of the past services.
Reliance is placed in the cases of (i) Steel Authority of India Ltd. Vs.
Union of India and ors. AIR 2006 S.C. 3229, (ii) Krishna Bahadur v.
M/s. Purna Theatre and ors. AIR 2004 S.C. 4282, (iii) State of Tripura
and ors. Vs. K.K. Roy AIR 2004 S.C. 1249 and (iv) Prabhakar S/o
Marotirao Dalal Vs. State of Maharashtra and anr. 2008(5) ALL MR
306. In all the cases, the principle of estoppel was held to be
operative against the concerned persons since they on fact had
agreed contrary to their claims made in the Court.
5. In the present case, the petitioner is relying over the
provisions of Rule 57 and more particularly note 1 of the said Rules
for computation of past services. Therefore, there cannot be
estoppel against the statutory instrument."
(Emphasis supplied).
32. It is apparent that the Directorate of Municipal Administration did
not specifically use the term "retiral and pensionary benefits" to be
connected with the deprivation of the backwages or difference in wages to
the employees for their temporary periods of employment, prior to their
regularization. It is, therefore, evident that this aspect had been
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camouflaged and the employees, who had no bargaining power, were made
to believe that they would be deprived of the monetary benefits for the
temporary period. It was only when they retired and started demanding
retiral benefits inclusive of pensionary benefits, that they were informed
that the waiver of the benefits for the temporary period of employment
would dis-entitle them to retiral benefits unless they render themselves
eligible purely on the strength of their permanent service for acquiring
benefits under the 1982 Rules.
33.
In the above referred judgments, the Honourable Supreme Court as
well as this Court has laid down the law that any such concession wrongly
made or made under a wrong belief, would not dis-entitle the employees
from the statutory benefits available to them. It is concluded that any such
concession given, against a statutory right, would have no acceptability or
relevance while determining the rights and liabilities incurred or acquired
in view of the axiomatic principle that there cannot be any estoppel against
the Statute.
34. In so far as the notifications dated 20.4.2001 and 31.10.2002 are
concerned, it is trite law that any Government Notification or Circular,
which amounts to taking away the benefits available to a litigant under the
law or the Statute, would not affect such rights and cannot be enforced.
This Court has also taken the said view in the Mahatma Phule Krushi
Vidyapeeth's judgment (supra). Therefore, owing to the Government
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Resolution dated 13.5.1970 and the provisions of the 1982 Rules, the daily
rated employees would be entitled to pension by reckoning their temporary
periods of service along with their tenure of permanent service.
35. In the U. Raghavendra Acharya's judgment (supra), the Honourable
Supreme Court has held that by an executive fiat, pensionary benefits
available to employees under the law cannot be reduced or prejudicially
affected. Such executive directions will not have the force of law and will
have to be discarded.
36. In the State of State of Jharkhand Vs, Jitendra Kumar's case (supra),
the Honourable Supreme Court has equated the right to receive pension
with the provisions under Article 300-A of the Constitution of India and has
held that the right to pension was recognised as a right to property, pension
being hard earned benefit, which accrues to an employee and the said right
cannot be taken away without following the due procedure of law.
37. The Industrial Court has allowed all the Complaints by holding that
statutory benefits available to the employee cannot be taken away by an
admission or by the act of the employees agreeing to waive the benefits
considering that they had no bargaining power. The Industrial Court has
assigned reasons for allowing the Complaints. When substantial justice has
been done, this Court should not interfere in the matter, merely because,
there may be some error in the impugned judgment or if a different view is
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possible.
38. The Honourable Supreme Court in the Hindustan Construction
Company's case (supra), has concluded that the refusal by the High Court to
interfere with the impugned judgment was justified when substantial
justice has been done even though the order complained off may be
suffering from a legal infirmity. Same cannot be termed as being failure of
justice.
39.
The Honourable Supreme Court in the case of Roshan Deen (supra)
has also held that the power conferred on the High Court under Articles 226
and 227 of the Constitution of India, is to advance justice and not to thwart
it. The very purpose of such constitutional powers being conferred on the
High Court is that no man should be subjected to injustice by violating the
law. The endeavour of the High Court is not merely to pick out any error or
law through an academic angle, but to see whether injustice has resulted
on account of any erroneous interpretation of law. If justice became the
by- product of an erroneous view of law, the High Court is not expected to
erase such justice in the name of correcting the error of law.
40. In the light of the above, I do not find that the impugned judgments
could be termed as being perverse or erroneous or likely to cause gross
injustice to the petitioners. These petitions being devoid of merits are,
therefore, dismissed.
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41. Rule, in all these petitions, is discharged.
42. Pending Civil Applications stand disposed off.
43. At this juncture, it is informed that in Writ Petition No.6921 of 2012,
the Corporation has deposited Rs.96,900/- towards pensionary benefits of
the employee by name Sayyed Ahmad Hazimiya. Shri Barde prays for
withdrawal of the said amount with accrued interest.
44. Shri Bedre opposes the request on the ground that the Corporation
may consider approaching the Honourable Supreme Court.
45. In the light of the same, the said employee, namely, Sayyed Ahmad
Hazimiya shall not be permitted to withdraw the said amount for a period
of four weeks from today.
( RAVINDRA V. GHUGE, J. )
...
akl/d
