Ahmednagar Mahanagar Palika ... vs Muktabai Bhaskar Temkar And ...
2016 Latest Caselaw 6692 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         BENCH AT AURANGABAD




                                                                                  
                                WRIT PETITION NO.11012 OF 2015




                                                          
    Ahmednagar Mahanagar Palika,
    Ahmednagar.
    Through its Commissioner.




                                                         
                                                      ...PETITIONER

              -VERSUS-

    1         Muktabai w/o Bhaskar Temkar,




                                               
              Age : 40 years, Occupation : Labourer.

    2
                                     
              Vikram s/o Bhaskar Temkar,
              Age : 20 years, Occupation : Labourer.
                                    
              Both R/o Bhingardive Mala,
              Bhutkarwadi, Balika Ashram Road,
              Ahmednagar.
                                                      ...RESPONDENTS
       


                                               ...
    



                    Advocate for Petitioner : Shri Bedre Vinayak Sudhakar.
                     Advocate for Respondents : Shri Barde Parag Vijay.
                                               ...





                                           CORAM:  RAVINDRA V. GHUGE, J.

DATE :- 25th November, 2016

Oral Judgment :

1 Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

    2                  The Petitioner is aggrieved by the judgment and order dated 





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16.04.2015 delivered by the Industrial Court, Ahmednagar by which

Complaint (ULP) No.77/2012 filed by the Respondents has been allowed

and Respondent No.2 (Vikram son of deceased Bhaskar Temkar) is

directed to be appointed on compassionate basis on the post of "Bigari".

3 I have heard the learned Advocates for the respective sides for

quite sometime.

Considering the submissions of the learned Advocates, the

following aspects, which are relevant and significant for adjudicating the

claim of the Respondents, are as under:-

(a) The Government Resolution dated 05.03.2001 has not been

considered by the Industrial Court.

(b) 511 temporary workers from Class-IV category are granted

certain benefits by the Government Resolution dated

05.03.2001.

(c) Shri Barde, learned Advocate for the Respondents, submits

that the deceased Bhaskar does not figure in the list of 511

employees.

(d) Shri Bedre, learned Advocate for the Petitioner, points out

that the Respondents admitted in the cross examination

before the Industrial Court that the deceased Bhaskar was in

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the list of the said 511 daily rated employees.

(e) The corrigendum was issued on 05.03.2001 along with the

Government Resolution dated 05.03.2001 indicating that

temporary/ daily rated employees working in Class III and IV

categories have been granted regularization as a one time

case and they shall occupy the said positions as permanent

employees. Upon their retirement and upon relinquishing the

said posts for any reason whatsoever, the said posts would be

abolished. This was also not considered by the Industrial

Court.

(f) The grievance of the Petitioner is that the corrigendum dated

05.03.2001 establishes the fact that if any post out of the said

511 posts, falls vacant for any reason, the said post shall

stand abolished and therefore, neither the wife of the

deceased nor the son of the deceased can claim

compassionate appointment in place of the deceased.

(g) There is no discussion in the impugned judgment that the

Respondent Vikram son of deceased Bhaskar had ever applied

for being appointed on compassionate basis within the

limitation as is provided by the relevant Government

Resolutions.

    (h)        There is no dispute that the wife of the deceased Bhaskar had 





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applied for compassionate appointment within limitation.

5 All the above mentioned aspects have been lost sight off by

the Industrial Court while dealing with the complaint. It cannot be

ignored that the claim of the Respondent for compassionate appointment

is not a crystallized right or an inherent right. An opportunity to be

appointed on compassionate basis is under the Rules or Service Conditions

or Settlement, if any. The above aspects go to the root of the matter and

the Industrial Court was obliged to take those factors into account while

dealing with the impugned judgment. Since these factors were not

considered, the impugned judgment is rendered perverse and

unsustainable.

6 In the light of the above, this Writ Petition is partly allowed.

The impugned judgment dated 16.04.2015 is quashed and set aside and

Complaint (ULP) No.77/2012 is remitted back to the Industrial Court on

the following conditions:-

(a) The litigating sides shall appear before the Industrial Court on

09.12.2016.

(b) Both the litigating sides are at liberty to place on record the

relevant documentary material and lead oral evidence in

order to prove the documents on which they place reliance.

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                  (c)        If Respondent No.2 (Virkam) has not filed an application for 




                                                                                                 

seeking appointment on compassionate basis with the

Petitioner within the limitation period, his claim for

compassionate appointment shall not be considered by the

Industrial Court.

(d) Needless to state, the Industrial Court shall be obliged to

consider the factors listed in the foregoing paragraphs of this

judgment, while deciding the complaint afresh.

(e) Since the issue of compassionate appointment is involved, the

Industrial Court shall endeavour to decide the said complaint

as expeditiously as possible, with the due cooperation of the

litigating sides.

7 Rule is made partly absolute in the above terms.

    kps                                                            (RAVINDRA V. GHUGE, J.)