Chief Officer, Municipal ... vs Anil Vishnu Sherekar And Anor
2016 Latest Caselaw 2453 Bom

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                                                          1




                                                                                              
                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              NAGPUR BENCH AT NAGPUR




                                                                    
                                     WRIT PETITION NO.3112/2007

         PETITIONERS:               1.  Chief Officer, 




                                                                   
                                         Municipal Council, Malkapur, 
                                         Distt. Buldana. 

                                    2.  President, Municipal Council, 
                                         Malkapur, Distt. Buldana. 




                                                   
                                 ig                    ...VERSUS...

         RESPONDENTS :    1.  Anil Vishnu Sherekar, 
                                Age Major, r/o Shivaji Nagar, 
                               
                                Ward No.8, Malkapur, Distt. Buldana. 

                                    2.  District Collector, Buldana. 

         -----------------------------------------------------------------------------------------------------
      

                           Shri Abhay Sambre, Advocate for petitioners 
                           Shri R.E. Moharir, Advocate for respondent no.1
   



                           Shri A.M. Balpande, AGP for respondent no.2
         -----------------------------------------------------------------------------------------------------

                                                         CORAM  :  SMT. VASANTI A. NAIK, J.

                                                         DATE      :  10.05.2016 





         ORAL JUDGMENT   

By this writ petition, the petitioners - Municipal Council and

another, challenge the judgment of the Industrial Court, Akola, dated

26.4.2007, allowing the complaint filed by the respondent no.1 under

Section 28 of the M.R.T.U. and P.U.L.P. Act and directing the Municipal

Council to reinstate the respondent no.1 in service with continuity of

service and with all monetary benefits.

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The father of the respondent no.1 Shri Vishnu Sherekar was

working in the Octroi Department of the Municipal Council. Since

Shri Vishnu Sherekar was declared medically unfit for performance of his

duties, the respondent no.1 applied for appointment in a Class-III -

Class-IV post on compassionate ground as per the policy of the

Government. The application of the respondent no.1 was favourably

considered by the petitioners and the Municipal Council passed a

Resolution on 21.3.1997 to appoint the respondent no.1 on

compassionate ground. In pursuance of the said Resolution, the

respondent no.1 was appointed on compassionate ground on 1.4.1997.

The proposal in respect of the appointment of the respondent no.1 as a

'Chaparasi' was sent to the Collector for approval. The Collector, however,

did not approve the appointment of the respondent no.1 and rejected the

proposal on the ground that the selection of the respondent no.1 was not

made by a properly constituted Selection Committee. In view of the

rejection of the proposal of the respondent no.1, the petitioners

terminated the services of the respondent no.1. The services of certain

other employees that were appointed on compassionate ground were also

likewise terminated. The respondent no.1 and the other employees

approached this Court in a writ petition, raising a challenge to the order

of the District Collector as well as the Municipal Council. While the said

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writ petition was pending, the respondent no.1 filed a complaint before

the Industrial Court alleging unfair labour practice on the part of the

Municipal Council. The complaint filed by the respondent no.1 was

allowed and the petitioners were directed to reinstate the respondent no.1

in service with continuity of service and with all monetary benefits. The

judgment of the Industrial Court is challenged by the Municipal Council in

the instant petition.

Shri Sambre, the learned Counsel for the Municipal Council

submitted that the Industrial Court was not justified in allowing the

complaint filed by the respondent no.1. It is submitted that the

respondent no.1 could not have availed two remedies at the same time,

one of filing a writ petition in the High Court and the other of filing a

complaint before the Industrial Court. It is submitted that the admission

of the respondent no.1 in his cross-examination that he had filed a writ

petition and the said writ petition was pending could not have been

ignored by the Industrial Court. It is submitted that there was an

inordinate delay in filing the complaint, inasmuch as the services of the

respondent no.1 were terminated in the year 1997 and the respondent

no.1 had filed the complaint in the year 2002. It is submitted that the

Industrial Court has not considered the aspect of delay in the right

perspective and has condoned the huge delay without recording any

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cogent reasons. It is submitted that the Industrial Court was not justified

in directing the reinstatement of the respondent no.1 in service with

continuity of service and with full monetary benefits. It is submitted that

the respondent no.1 had worked only for a few days with the Municipal

Council and when the complaint was filed belatedly, the Municipal

Council could not have been penalized by directing it to pay the arrears of

emoluments to the respondent no.1.

Shri Moharir, the learned Counsel for the respondent no.1

supported the order of the Industrial Court. It is submitted that the

challenge raised by the petitioner in the writ petition and before the

Industrial Court was not identical. It is submitted that in any case the

respondent no.1 had withdrawn the writ petition as soon as the Industrial

Court passed the order allowing the complaint. It is submitted that though

there was some delay in filing the complaint, the delay was satisfactorily

explained. It is submitted that the respondent no.1 was making

representations to the Municipal Council and the Municipal Council had

asked the respondent no.1 to wait till the High Court decides the writ

petition. It is submitted that since the High Court did not decide the writ

petition for long, there was no course open for the respondent no.1 but to

file the complaint before the Industrial Court. It is submitted that the

Industrial Court rightly held that the petitioners had committed unfair

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labour practice by terminating the services of the respondent no.1, though

he was rightly appointed on compassionate ground in view of the

Government policy.

Shri Balpande, the learned Assistant Government Pleader

appearing for the respondent no.2 - Collector supported the order of the

Collector and submitted that the Industrial Court was not justified in

directing the reinstatement of the respondent no.1 in service. It is

submitted that proper procedure was not followed by the Municipal

Council while making the appointment of the respondent no.1. The

learned Assistant Government Pleader supported the case of the

Municipal Council.

On hearing the learned Counsel for the parties, it appears

that the Industrial Court was justified in directing the reinstatement of the

respondent no.1 in service, though it was not justified in directing the

petitioners to give the monetary benefits, flowing from the order of

reinstatement and continuity of service to the respondent no.1. It is not

the case of the Municipal Council that the father of the respondent no.1

was not medically unfit and the respondent no.1 was not entitled to be

employed on compassionate ground. The Municipal Council had passed a

Resolution on 21.3.1997 for appointing the respondent no.1 on the post

of 'Chaparasi' on compassionate ground. The appointment of the

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respondent no.1 is not stated to have been made in violation of the policy

of the State Government. It appears that the Collector had refused to

grant approval to the appointment of the respondent no.1 on the ground

that the selection procedure was not followed while making the

appointment. It was not necessary to constitute a Selection Committee

while making the appointment on compassionate ground, in the year

1997, as per the policy of the Government, when the respondent no.1 was

appointed. It is not the case of the Municipal Council that the

appointment of the respondent no.1 was wrongly made or that he was not

entitled for appointment. Merely because the Collector had refused to

grant sanction to the appointment of the respondent no.1 as a 'Charapasi',

the Municipal Council was not justified in terminating the services of the

respondent no.1. The respondent no.1 and some others had filed a writ

petition, challenging the order of their termination as also the orders of

the Collector, refusing to approve their appointments. During the

pendency of the said writ petition, the respondent no.1 had filed the

complaint and had withdrawn the writ petition. Normally, a party cannot

be permitted to avail two remedies simultaneously. It is the case of the

respondent no.1 that the questions involved in the writ petition and the

complaint were not the same. Be that as it may, since the respondent no.1

was out of job and had no means whatsoever for his livelihood, he had

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approached the Industrial Court alleging the commission of unfair labour

practices by the petitioners. In the aforesaid background, the Industrial

Court rightly held that the respondent no.1 waited for long for a decision

in his writ petition but since the writ petition was not being decided, the

respondent no.1 approached the Industrial Court for appropriate relief

and the Industrial Court, therefore, rightly condoned the delay in filing

the complaint. In the circumstances of the case, the Industrial Court did

not commit any mistake in directing the reinstatement of the respondent

no.1 in service with continuity of service but the Industrial Court was not

justified in directing the Municipal Council to pay the arrears of salary

and all the other monetary benefits to the respondent no.1. Admittedly,

the respondent no.1 had worked only for a couple of months with the

petitioners and was out of service for almost ten years till the matter was

decided by the Industrial Court. In the absence of any services rendered

by the respondent no.1 to the Municipal Council for a long time, the

Industrial Court could not have directed the Municipal Council to pay the

arrears of salary to the respondent no.1. While granting back wages, the

Industrial Court also failed to consider that the respondent no.1 had not

approached the Industrial Court immediately after his dismissal from

service and had filed the complaint belatedly. In the circumstances of the

case, the Industrial Court ought to have directed the petitioners to

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reinstate the respondent no.1 in service with continuity but without any

monetary benefits. Since the Industrial Court was justified in holding, on

the basis of the material on record, that the petitioners had indulged in

unfair labour practice in terminating the services of the respondent no.1

despite the Resolution of the Municipal Council dated 21.3.2017, that was

not withdrawn or cancelled, there is no scope for interference with the

order of the Industrial Court, directing the reinstatement of the

respondent no.1 in service. The submission made on behalf of the

respondent no.2 - Collector that proper procedure was not followed while

appointing the respondent no.1 on the post of 'Chaparasi' and hence, the

proposal of the respondent no.1 was rightly rejected by the respondent

no.2 - Collector, is liable to be rejected as the State policy did not require

selection while while making compassionate appointment.

Hence, for the reasons aforesaid, the writ petition is partly

allowed. The impugned order of the Industrial Court is modified. The part

of the order that directs the reinstatement of the respondent no.1 with

continuity of service stands confirmed. The petitioners should reinstate

the respondent no.1 in service, within a period of one month. The part of

the order that directs the petitioners to pay the monetary benefits to the

respondent no.1 is hereby set aside. It is declared that though the

respondent no.1 would be entitled to continuity of service on his

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reinstatement, the respondent no.1 would not be entitled to back wages

or any other monetary benefits that would normally flow from the order

of reinstatement and continuity of service.

Rule is made absolute in the aforesaid terms with no order

as to costs.

JUDGE

Wadkar