Bombay High Court
The Municipal Council, Beed vs Laxmanrao Shankarrao Salunke And ... on 22 August, 2016
Bench: R.V. Ghuge
WP/10276/2014
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 10276 OF 2014
The Municipal Council, Beed
Through its Chief Officer. ..Petitioner
Versus
1. Laxmanrao Shankarrao Salunke
Age 60 years, Occ Retired,
R/o Rajuri Ves, Beed.
2. The Deputy Director,
Nagar Palika Prashasan,
Mantralaya, Mumbai 32. ..Respondents
...
Advocate for Petitioner : Shri Thombre S.S.
AGP for Respondent 1 : Shri Kutti P.N.
Advocate for Respondent 2 : Shri Tapse A.P.
h/f Shri Suryawanshi P.D.
...
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.
WP/10276/2014
4. The petitioner is aggrieved by the judgment and order dated
20.12.2013 delivered by the Industrial Court, Aurangabad by which,
Complaint (ULP) No.46 of 2009 has been allowed and the respondent
No.1 / employee is granted the pensionary benefits considering his
service rendered as a Daily Wager from 24.4.1984 till his
regularization on 1.5.2001 and thereafter, till his superannuation
dated 28.2.2001.
5.
Shri Thombre, learned Advocate for the petitioner contends
that the respondent / employee has been regularized on 1.5.2001.
His earlier engagement as a Daily Wager from 24.4.1984 till his
regularization cannot be reckoned for calculating his pensionary
benefits. Reliance is placed on the Maharashtra Civil Services
(Pension) Rules, 1982 to contend that ten years of service has to be
completed by the employee for getting pensionary benefits. Said
period is termed as 'qualifying service'. The respondent has
completed only eight years as a permanent employee and hence he
cannot be granted pension by taking into account his earlier service
from 1984.
6. Shri Thombre strenuously indicates from the grounds raised in
the memo of petition that the Industrial Court has not given
appropriate opportunity for enabling the petitioner to lead oral
evidence. Opportunity to cross-examine the respondent / employee
WP/10276/2014
was also not given. Complaint (ULP) No.46 of 2009 has been
mechanically allowed and the reliefs have been granted without
proper application of mind.
7. He further submits that notwithstanding whether the
petitioner has led evidence or not, the Industrial Court should have
considered the material available before it and based on the same,
the Industrial Court should have assessed as to whether the service
put in by the employee as a permanent employee, alone needs to be
considered for grant of pensionary benefits. Merely because the
petitioner did not lead evidence, would not justify allowing of the
complaint.
8. He further submits that the respondent / original complainant
was initially terminated in 1985 and he preferred Complaint (ULP)
No.93 of 1985. Same was allowed with continuity and full
backwages, which led to the reinstatement of the respondent. It is,
therefore, submitted that the Complaint should have been dismissed.
As such, the impugned judgment deserves to be quashed and set
aside.
9. Shri Suryawanshi, learned Advocate for the respondent /
employee has supported the impugned judgment. He further submits
that this Court had an occasion to consider an identical issue as to
WP/10276/2014
whether the period of service as a Daily Wager can be added to the
tenure of service as a regularized employee for the grant of
pensionary benefits in the matter of Mahatma Phule Krushi
Vidyapeeth Rahuri Vs. Ganpat Kisan Karle - Writ Petition No. 8000 of
2015. He submits that this Court, by its judgment dated 3.3.2016, has
dealt with the said issue and has finally concluded in paragraph
Nos.37 and 38 that the temporary service as a Daily Wager will have
to be taken into account in the light of Rule 30 and Rule 57, while
awarding pensionary benefits. He, therefore, prays that this petition
be dismissed.
10. I have considered the submissions of the learned Advocates
and the judgment delivered by this Court dated 3.3.2016.
11. The date of joining of the respondent / employee from
24.4.1984 is not disputed. The termination of the respondent /
employee was set aside by the judgment of the Labour Court and he
has been reinstated in service with continuity and backwages, is also
not disputed. So also, the superannuation of the respondent /
employee on 28.2.2001 is undisputed.
12. The facts of the instant case are identical to the facts of the
Mahatma Phule Krushi Vidyapeeth's judgment (supra). This Court has
considered the entire scheme of the Maharashtra Civil Services
WP/10276/2014
(Pension) Rules, 1982. Catena of judgments of the Honourable
Supreme Court and of this Court cited by the litigating sides were
also considered and this Court has concluded in paragraph Nos. 37
and 38 as under:-
"37. In addition to the above, in my view, the second
proviso to Rule 30 has been lost sight of by the litigating
sides. I also do not find from any of the judgments cited by
both the sides that the second proviso to Rule 30 has been
brought to the notice of this Court or the Hon'ble Apex Court
in any of the said matters. It is, in this backdrop that I am
considering the said proviso.
38. A careful perusal of the second proviso to Rule 30 will
indicate that it is with regard to the case of a temporary
Government servant who retires on superannuation. So also,
an employee being declared permanently incapacitated by the
appropriate medical authority or an employee who has
voluntarily retired from service is also held eligible for grant
of superannuation, invalid or as the case may be, retiring
pension, retirement gratuity and family pension at the same
scale, as is admissible to a permanent Government servant. It
is, therefore, provided by the said proviso that a temporary
Government servant, who retired on superannuation and who
has completed not less than ten years of service, obviously as
a temporary employee, is also held entitled for retiring
pension, retirement gratuity and family pension at the same
scale as is admissible to a permanent Government servant. As
such, in my view, Rule 30 is aimed at covering the cases of all
such employees, who have been working temporarily for a
WP/10276/2014
period of atleast ten years, are held to have satisfied the
definition of "Qualifying Service" under Rule 30 and who are
not covered by Rule 57."
13. As such, the conclusions arrived at by the Industrial Court
cannot be termed as perverse or erroneous considering the
applicability of Rule 30 of the Pension Rules, that was taken into
account by the Industrial Court.
14.
This petition being devoid of merits is, therefore, dismissed.
Rule is discharged. No order as to costs.
( RAVINDRA V. GHUGE, J. )
...
akl/d
