Bombay High Court
Kisan S/O Sadashiv Deolkar vs State Of Maharashtra, Through Its ... on 22 April, 2016
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 5414 OF 2015.
PETITIONER: Kisan s/o Sadashiv Deolkar,
aged 60 years, Occu: Retired,
resident of Shivaji Nagar, Khat Road,
Near House of Meerabai Bhoyar, Bhandara,
Tq. and Distt.Bhandara.
: VERSUS :
RESPONDENTS: 1. State of Maharashtra
through its Secretary, Nagar Vikas,
Mantralaya, Mumbai - 400 032.
2. Director/Commissioner,
Directorate of Nagar Parishad Administration
(Nagar Parishad Prashashan Sanchanalaya),
Government Transport Service Building, 3rd
Floor,Sir, Poch Khanwala Marg, Worli,
Mumbai, Maharashtra State.
3. Collector, Bhandara,
Tq. and Distt.Bhandara.
4. Chief Officer, Nagar Parishad, Bhandara.
5. President, Nagar Parishad, Bhandara.
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Mr.A.N.Ansari, Advocate for the petitioner.
Mr.M.M.Ekre, AGP for respondent nos.1 to 3.
Mr.M.I.Dhatrak, Advocate for respondent nos.4 and 5.
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CORAM: B.P.DHARMADHIKARI
AND P.N.DESHMUKH, JJ.
DATE: 22nd APRIL, 2016.
ORAL JUDGMENT : (Per B.P.Dharmadhikari, J.)
1. Heard Advocate Shri Ansari for the petitioner, Advocate
Shri Dhatrak for respondent nos.4 and 5 and learned AGP for
respondent nos.1 to 3.
2. Petitioner, a senior citizen now aged about 63 years,
seeks benefit of pension because of his superannuation in 2013.
Hence, Rule. It is made returnable forthwith and the matter is
heard finally with consent.
3. These facts are not in dispute that he filed Complaint
(ULP) No.95 of 1987 before the Industrial Court under Section 28
read with Items Nos. 5,6 and 9 of Schedule IV of the Maharashtra
Recognition of Trade Unions and Prevention of Unfair Labour
Practices Act, 1971 (Maharashtra Act No.1 of 1972) and sought
permanency and regularization. Learned Industrial Court allowed
his complaint along other similar matters on 20th of April, 1990
and granted permanency from the date of filing of complaint i.e.
from 10th of March, 1987. On 16th of May, 1990, Chief Officer of
Municipal Council accordingly issued an order appointing
petitioner in pay-scale w.e.f. 10th of March, 1987.
4.
The adjudication by Industrial Court was questioned by
employees in Writ Petition No.2891 of 1995. They claimed
regularization and grant of permanency after completion of 240
days of continuous service. Learned Single Judge of this Court
decided said petition on 3rd of July, 2007 by placing reliance upon
award dated 30th of July, 1975 between employees and employer.
The learned Single Judge extended benefits from date of
completion of two years of service. This direction is questioned by
employer by filing L.P.A.No.389 of 2008 before Division Bench of
this Court. Thus, only benefit given from a prior date is
questioned in LPA. It is not in dispute that said Letters Patent
Appeal has been admitted and benefit from a date prior to date of
filing of complaint is stayed by this Court.
5. Advocate Shri Ansari in this background submits that
denial of pension to petitioner on the ground that he was not
working on a sanctioned post is unsustainable. He, therefore,
prays for quashing and setting of order dated 23rd of July, 2013.
6. Learned AGP supports arguments of Advocate Dhatrak.
He contends that entitlement of petitioner can be looked into if the
post is sanctioned and after LPA is decided.
7. Petitioner is still alive and pension after superannuation
is admittedly a condition of service. He has not received that
pension, therefore there is a continuous cause and as such it
cannot be said that the petition as filed is belated.
8. The judgment of Industrial Court granting benefit of
permanency to petitioner from date of filing of complaint has
attained finality, inasmuch as respondent - employer never
questioned it. Employees approached this Court for securing
additional benefit i.e. for grant of permanency from a date prior to
date of filing of ULP complaint. Learned Single Judge has granted
that benefit and it is only this preponement of date which forms
subject-matter of LPA. Thus, grant of benefit from date of filing of
complaint i.e. from 10th of March, 1987 by Industrial Court cannot
be up set in Letters Patent Appeal.
9. The Industrial Court has power to find out whether
employer has indulged in unfair labour practice by continuing
employee on daily wages for large number of days with a view to
deny him the benefits and privileges of permanency. Its finding in
this respect against the employer has attained finality. In this
situation, the employer cannot plead absence of sanctioned post as
an answer to the consequential benefit of release of pension. The
said exercise of sanction is an internal matter between the State
Government and Municipal Council. Petitioner is not concerned
with it in present facts.
10. In this situation, in present facts, we find that petitioner
is entitled to grant of pension by treating him as permanent from
10th of March, 1987. From 10th of March, 1987 till July, 2013 he
has put in service which is much more than the requisite qualifying
service. Refusal by Municipal Council to release superannuation
pension to him is therefore unsustainable.
11. Impugned order dated 23rd of July, 2013 is therefore
quashed and set aside. We direct respondent no.4 to release
superannuation pension to petitioner by treating him as permanent
from 10th of March, 1987. This exercise be completed within
period of four months from today. The petitioner shall be entitled
to interest in accordance with provisions of Rule 129-A of the
Maharashtra Civil Services (Pension) Rules, 1982. Similarly, if he
is entitled to other superannuation benefits, same shall also be
released to him.
Petition is therefore partly allowed and disposed of. No
costs.
JUDGE JUDGE
Chute.
