The Chief Officer Municipal ... vs Vitthal Laximan Timkikar
2016 Latest Caselaw 4782 Bom

                                                                     WP/10889/2015
                                            1

                    IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD




                                                                              
                             WRIT PETITION NO. 10889 OF 2015




                                                     
     The Chief Officer,
     Municipal Council, Loha,
     District Nanded.                                  ..Petitioner




                                                    
     Versus

     Vitthal Laximan Timkikar
     Age 35 years, Occ. Nil,
     R/o Loha, Dist. Nanded.                    ..Respondent




                                          
                              ig           ...
                       Advocate for Petitioner : Shri Bhumkar R.P.
                      Advocate for Respondent : Shri Panpatte V.S.
                                           ...
                            
                              CORAM : RAVINDRA V. GHUGE, J.

Dated: August 22, 2016 ...

ORAL JUDGMENT :-

1. Heard learned Advocates for the respective parties.

2. Rule.

3. By consent, Rule is made returnable forthwith and the petition

is taken up for final disposal.

4. The petitioner is aggrieved by the judgment and order dated

22.6.2012 delivered by the Labour Court, Nanded by which, the

complaint filed by respondent No.1, along with three other

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complainants, was allowed.

5. Shri Bhumkar, learned Advocate for the petitioner submits that

considering the judgment of this Court dated 7.3.2016, delivered in

Writ Petition Nos. 3951 of 2015 and 4014 of 2015, the judgment of

the Labour Court to the extent of the complainants - Mohan Venkati

Rathod and Hari Madhavrao Avhad has been set aside. He submits

that the Revision Petition filed by the petitioner before the Industrial

herein.

Court has been rejected only to the extent of respondent No.1

The Industrial Court has set aside the judgment of the

Labour Court with regard to Hari M. Pawar, Madhukar I. Gondhale

and Mohan V. Rathod. The petitioner is, therefore, aggrieved by the

impugned judgment of the Industrial Court dated 19.1.2015,

whereby, the appointment of respondent No.1 Vithal Laximan

Timkikar has been upheld.

6. Shri Bhumkar has strenuously submitted that the appointment

of the respondent is unsustainable. He was appointed on

compassionate grounds by the passing of a Resolution by the

Municipal Council. Though his father passed away, while on duty / in

service, on 11.7.2006, the appointment of the respondent is an

irregular appointment.

7. He further submits that the Collector has set aside the

WP/10889/2015

appointment of the respondent on the ground that the same is

against the Rules. He further submits that the Lad Committee

recommendations do not apply to a Pump Operator and hence the

respondent cannot be appointed on compassionate basis. He further

submits that the Government Resolution dated 22.8.2005 would not

be applicable to the case of the respondent and the subsequent

circular dated 22.1.2008 would render the Government Resolution

dated 22.8.2005 inapplicable to the case of the respondent.

8.

He further submits that the appointment of the respondent

was in opposition to Clauses 5(a-1) and 5(b-2) of the Standing Orders

dated 14.10.2004. He further states that since the Collector has set

aside the appointment, the Municipal Council, petitioner herein has

issued the impugned termination order and relieved the respondent

from service. He, therefore, contends that the Industrial Court could

not have granted relief to the respondent herein and as such, the

impugned judgment deserves to be quashed and set aside. He places

reliance upon the judgment of this Court dated 7.3.2016 in the

matter of Mohan V. Rathod (supra) and prays that the impugned

judgment of the Industrial Court deserves to be quashed.

9. Shri Panpatte, learned Advocate for the respondent supports

the impugned judgment by stating that the other employees like

Mohan Rathod and Hari Pawar, who were before this Court, had

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based their case on the illness of their father as a ground for

compassionate appointment. This Court concluded that the

Government Resolution dated 22.8.2005 is with regard to

compassionate appointment being available only to those employees,

whose parent has passed away. In the case of the other three

complainants, their parents were alive and in the case of the

respondent herein, his appointment is protected by the Court

because his father has died while in service.

10.

I have considered the submissions of the learned Advocates

and the learned AGP and have gone through the petition paper book

with their assistance.

11. This Court has dealt with a matter between Sanjay Jagannath

Pardshi Vs. The Chief Officer, Municipal Council, Pachora - Writ

Petition No. 6865 of 2015, dated 1.2.2016, wherein a similar issue

was considered. However, in the said case, the issue of

compassionate appointment was not involved. It was a clear case of

illegal appointment made by the Municipal Council.

12. There were four complainants in Complaint (ULP) No.90 of

2009, as mentioned above. The judgment of the Labour Court

allowing the Complaint was interfered with by the Industrial Court in

the impugned judgment only to the extent of the first three

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complainants. The respondent herein was the fourth complainant,

who has succeeded before the Industrial Court. As such, I am not

required to refer to the judgment of the Labour Court since the

Industrial Court has revisited the entire facts and has upheld the

appointment of respondent No.4.

13. There is no dispute that by a cryptic order dated 14.9.2009,

the petitioner - Municipal Council has terminated the services of the

respondent on the ground that the Collector has set aside the

Resolution appointing him. The entire termination order is totally

silent as regards the reasons for termination, save and except the

statement that the Collector has set aside the Resolution.

14. It is strenuously canvassed by Shri Bhumkar that the Collector

has set aside the resolution since proper procedure of appointment

was not followed. The written statement filed by the petitioner

before the Labour Court indicates that besides the above contention,

no other ground has been canvassed, but the submission that the

employee should approach the Director of Municipal Administration.

It is nowhere stated as to what were the irregularities in the

appointment of respondent so as to take away his appointment on

compassionate basis notwithstanding that his father had passed away

while in service.

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15. The Industrial Court has noted in it's conclusions that the

respondent / employee had applied for compassionate appointment

and he was appointed on the basis of the death of his father on

11.7.2006 by passing a resolution on 13.8.2008. The case of this

respondent is therefore, distinguishable from the case of

Complainant Nos.1 to 3 before the Labour Court.

16. The Industrial Court considered the two clauses pointed out by

the petitioner from it's Standing Orders and concluded that Clause

5(a-1) was with regard to internal appointments and absorption of

excess temporary employees. Clause 5(b-2) was with regard to

promotions. None of these two clauses were applicable to the case

of the respondent in the backdrop of the contention of the Council

that the respondent's appointment was against these provisions of

the Standing Orders.

17. Since the Industrial Court has sustained the conclusion of the

Labour Court to the extent of respondent / employee alone, Shri

Bhumkar submits that 100 percent backwages have been granted by

the Labour Court. The Municipal Council is not a profit making body.

It has paucity of funds and the backwages will have to be paid from

the Government exchequer. Shri Panpatte submits that since the

termination has been set aside by concurrent judgments, backwages

have been rightly granted and no interference is called for in the

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supervisory jurisdiction of this Court.

18. The respondent had led evidence before the Labour Court and

had stated that after the death of his father, he is the only earning

member of the family, no other member is employed and the

respondent is also not gainfully employed. So also, it cannot be

overlooked that the petitioner is a Municipal Council which is not a

profit making body and will have to pay the backwages from the

State exchequer.

19. In this backdrop, I deem it proper to rely upon the ratio of the

Honourable Apex Court in the matter of Gauri Shankar Vs. State of

Rajasthan [2015 II CLR 497], wherein the Honourable Apex Court has

held that grant of 25 percent backwages would reduce the hardships

of the employee, whose termination is found to be illegal.

20. As such, this petition is partly allowed. The judgment of the

Labour Court dated 22.6.2012 and of the Industrial Court dated

19.1.2015 stands modified in relation to the respondent / employee

Vithal Laximan Timkikar only to the extent of grant of 100 percent

backwages. Consequentially, the petitioner shall pay 25 percent of

the last drawn wages to the respondent as back wages within a

period of sixteen weeks from today, failing which the said amount

shall carry interest at the rate of 6 percent from the date of the

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judgment of the Labour Court.

21. Rule is made partly absolute in the above terms.

( RAVINDRA V. GHUGE, J. ) ...

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