Bombay High Court
Municipal Corporation Of Greater ... vs Mr. Pravin Shantaram Ghag on 21 October, 2016
Bench: R.M. Savant
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8548 OF 2015
Municipal Corporation of Greater Mumbai ]
Opp. C.S.T. Station, Fort, ]
Mumbai 400 001 ]..... Petitioner.
Versus
1] Mr. Pravin Shantaram Ghag ]
B Wing, Room No.106, ]
Safalya CHS Ltd., ]
Link Road, Goregaon (W), ]
Mumbai 400 104 ig ]
]
2] Mahesh Shantaran Ghag ]
A/406, Safalya Devi Kanya Kumari SRA Society ]
Link Road, Opp. Oshiwara Bus Depot Link Road ]
Goregaon (West), ]
Mumbai 400 014 ]
Mobile No. 9664112338 ]
]
3] Rakesh Vitthal Jadhav ]
302/A - Wing Safalya Devi Kanya Kumari SRA ]
Society, Link Road, Opp. Oshiwara Bus Depot ]
Link Road, Goregaon (West) ]
Mumbai 400 014 ]
Mobile No.9967174836 ]
]
4] Ashok Harishchandra Dabhade ]
Sajanbhai Mamulal Chawl No.482/83 ]
Room No.3, Bajpeyi Galli ]
Kurla (West), ]
Mumbai 400070 ]
Mobile No.9029420711/9867360845 ]
]
5] Nilesh Ramchandra Haryan ]
150/B/13 Sai Krupa CHS Ltd. ]
Near Vithal Mandir, RSC - 28 ]
Gorai-2, Borivli (West) ]
Mumbai - 400 091 ]
Mobile No.8652662222 ]
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]
6] Rajesh Ramchandra Haryan ]
D/613 V. B. Morewala Complex ]
Anand Nagar, Majaswadi ]
Jogeshwari (West) ]
Mumbai - 400060 ]
Mobile No. 9702163020 ]
]
7] Santosh Shriram Shelar ]
Room No.11, Mahadeo Haridas Patel Chawl ]
Hanuman Tekdi, Kajupada ]
Borivli (East) ]
Mumbai - 400 066 ]
Mobile No.9867076924 ]
]
8] Haresh Shriram Shelar ig ]
G-305, 3rd Floor, Rashmi Star City, ]
Cassie (East), Near Ashole Talav ]
Vasi ]
Mobile No. 9892798972 ]
]
9] Priyanka Prabhakar Ghag ]
Room No.2, Shardaben Chawl ]
Hanuman Tekdi ]
Kajupade, Borivli (East) ]
Mumbai - 400066 ]
Mobile No. 9920982148/8097238566 ]
]
10] Santosh Yashwant Salvi ]
A-Wing, 102 Kalpataru Classic ]
Chakradhar Nagar ]
Nalasopara (West) ]
Dist. Thane ]
Mobile No. 9967810301 ]
]
11] Vasant Babu Varose ]
Room No.17, Trimbak Cottage ]
Chawl, Bhawani Niwas ]
Tulji Road, Near Zilla Parishad Marathi Shala ]
Nalasopara (East) ]
Maharashtra Pin : 401 209 ]
Mobile No. 7738393389 ]
]
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12] Santosh Ramchandra Tambe ]
B/3 Om Vilas Co-op. Hsg. Soc. ]
Opp. Acharya Narendra High School ]
Borivli (West), Babai Naka ]
Mumbai 400 092 ]
Mobile No.9552466324/7715959492 ]
]
13] Nilesh Dattaram Patkare ]
Omshri Sai Darshan Bldg. Room No.103 ]
A Wing, Near Omsai Hospital ]
Sodawala Lane, Borivli (West) ]
Mumbai 400 092 ]
Mobile No.9892350980/9167415606 ]
]
14] Sandesh Shantaram Salvi ]
703, Prajot Tower ig ]
Kumbhar Aali, Mhatre Wada ]
Kalawa (West) ]
Thane - 400 605 ]
Mobile No. 98691988/75/8652393059 ]
]
15] Arvind Babu Varose ]
Room No.17, Trimbek Cottage Chawl ]
Bhawani Niwas, Tulji Road ]
Near Zilla Parishad Marathi School ]
Nalasopara (East) ]
Thane, Maharashtra - 401 209 ]
Mobile No.9029282795 ]
]
16] Anil Ramnath Gound ]
Valmuki Co-op. Hsg. Soc. ]
Room No.10, Anand Nagar ]
Near Link Road ]
Jogeshwari (West) ]
Mumbai - 400 102 ]
]
17] Deepak Shyamu Kharat ]
Room No.103, 1st Floor, ]
Parwati Niwas, Near Atmaram Niwas ]
Navghar, First Lane ]
Mulund (East) ]
Mumbai 400 081 ]
Mobile No.9769466135/9322078883 ]
]
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18] Deepak Ganpat Sawant ]
Saidham Colony ]
Chawl No.7, Room No.1 ]
Nandivali, Bhopar Road ]
Near Kamani Nala ]
Dombivli (East) - 421 201 ]
Mobile No.9221919109/022-26539797 ]
]
19] Ajay Janardan Ahire ]
Ananddham Co-op. Hsg. Soc. Ltd. ]
Plot No.13, Room No.B/2, ]
Survey No.157, Ganesh Nagar ]
MHADA, Kandivli (East) ]
Mumbai - 400067 ]
Mobile No.8652292679/9867713998 ]
20] Arun Waman Thosar
Charang Baba Nagar
ig ]
]
Behind Barrack No.1416, ]
Maratha Section No.32 ]
Ulhasnagar Camp No.4 ]
Dist. Thane - 421 004 ]
Mobile No.9975999389 ]
]
21] Chandanshive Prashant Bhimrao ]
"B" Wing/16, 4th Floor, Aayare Road ]
Dombivli (East), ]
Near Smurti Bldg. ]
Near Water Tank ]
Pine : 421 201 ]
Mobile No.9819858119 ]
]
22] Pol Roshidas Keru ]
Sant Kakayya Marg ]
Room No.5, Gul Mohammad Chawl No.253 ]
Mumbai Dharavi ]
Mumbai 400 017 ]
Mobile No.8108732690 ]
]
23] Khan Amjad Mehmood ]
Marathwada Chawl, Room No.26 ]
Jaku Club, 9th Road, ]
Santacruz (East) Mumbai - 400 055 ]
Mobile No. 9975044284/8856929490 ]
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]
24] Solanki Vijay Chhaganlal ]
Room No.18, Tribhuvan Society ]
Konkan Nagar, Bhandup (West) ]
Mumbai - 400 076 ]
Mobile No. 7738708675/9867578366 ]
]
25] Waman Shivram Pawar ]
C/o. Mohinish Chandrakant Jadhav ]
202-B Wing, Omkar Villa Co-op. Hsg.Soc.Ltd. ]
Near Hariom Mandir ]
Sector 23, Jui Nagar, ]
New Mumbai - 400 706 ]
Mobile No.9604069086 ]
26] Santosh Shivram Pawar ig ]
Malcom Baug, Parsi Colony ]
S.V.Road, Jogeshwari (West) ]
Mumbai - 400 102 ]
Mobile No.8879451573 ]
]
27] Jangale Sanjay Zilu ]
603-20/E Ashthavinayak Co-op. CHS Hsg. ]
Chandivli, D-Farm ]
Sangrash Nagar ]
Powai, Andheri (East) ]
Mumbai 400 072 ]
Mobile No.9969515624/9167046240 ].. Respondents
ALONG WITH
CIVIL APPLICATION NO.46 OF 2016
IN
WRIT PETITION NO.8548 OF 2015
Ashok Harishchandra Dabhade : Applicants/
& Anr. Org.Respondent Nos.4 & 17
In the matter between
Municipal Corporation of
Greater Mumbai : Petitioner
Versus
Mr. Pravin S Ghag & ors. : Respondents.
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Mr. A V Bukhari, Senior Advocate a/w Mr. B V Bukhari and Mrs. Fauzia
Bukhari i/by Mr. Vinod Mahadik for the Petitioner.
Mr. S C Naidu a/w Mr. Manoj Gujjar i/by Mr. Aniketh Poojari for the
Respondent Nos.2, 3, 5, 6, 8 to 16 and 18 to 27.
Mr. S C Naidu a/w Mr. Manoj Gujjar i/by Mr. Rahul G Tanwani for the
Respondent No.1
Ms. Suvarna Joshi for the Respondent Nos.4 and 17 in Writ Petition and
for the Applicants in Civil Application.
Mr. Shaikh Nasir Masih i/by Mr. Vishal Jagwani for the Respondent No.7.
ig CORAM : R. M. SAVANT, J.
DATE : 21st October 2016.
ORAL JUDGMENT :
1 Rule with the consent of the learned counsel for the parties made
returnable forthwith and heard.
2 The writ jurisdiction of this Court is invoked against the Award
dated 07/03/2015 passed by the learned Presiding Officer of the Industrial
Tribunal, Mumbai by which Award the Reference in question filed by the
Respondent Nos. 1 to 27 came to be allowed and resultantly the directions as
contained in the operative part of the impugned Award came to be issued. The
reference to the said directions would be made in the latter part of this
judgment.
3 Shorn of unnecessary details a few facts giving rise to the above
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Petition can be stated thus :-
The Petitioner herein is the Municipal Corporation for Greater
Mumbai ("MCGM" for short). The Respondent Nos. 1 to 27 herein were
working as gardeners-cum-caretakers on temporary basis in various schools run
by the Petitioner - MCGM. The Respondents had worked between the period
from 1991 to 2002, barring a few of them who had worked intermittently till
the year 1997. A chart of the number of days each of the Respondents had
worked has been annexed to the Statement of Claim as also the Justification of
Demands filed by the Respondents which are part of the annexure to the above
Petition. The said chart discloses that the Respondents have worked for a
period ranging between 30 days to about 1085 days during the said period of
their temporary appointment. The Respondents along with the persons who
were similarly situated as them, had filed Writ Petition in this Court being Writ
Petition (L) No.585 of 2012 seeking a direction against the MCGM to grant
them permanency and other attendant benefits. A Division Bench of this Court
by the order dated 13/09/2012 directed the Respondents to approach the
Labour Court in view of the fact that the dispute raised by them was liable to
be decided by the said Court.
4 Pursuant to the said order dated 13/09/2012 but after sometime
had elapsed the Respondents raised a demand as regards their absorption and
regularization in the MCGM. On the said demand being not accepted by the
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MCGM, the matter was referred to conciliation and on the conciliation
proceedings ending in failure, a Reference was made to the Industrial Tribunal
for adjudication of the dispute. The terms of the Reference are reproduced
herein under :-
"1. Absorption and regularization of worker listed in
Annexture "A" in the service of Corporation as Class IV
employees
V/s
2. Pay the salary benefits annual increments and
continuity of service from January 2003 onwards
continuously.
5 On the Reference being made, a Statement of Claim came to be
filed on behalf of the Respondents. Suffice it would be to state that in the said
Statement of Claim the Respondents inter alia relied upon the Circular dated
23.1.1992 by which the Administrative Officer, Education was given the
powers to make appointment to the post of gardeners-cum-caretakers on
temporary basis in leave vacancies, and the Circular dated 27/11/2002 inter
alia containing the modality adopted by the MCGM for regularizing the
services of the temporary employees. By which circular two categories were
carved out. It seems that pursuant to the Circular dated 27/11/2002 further
circulars came to be issued by the MCGM for working out the modalities of
absorption or regularization of the temporary gardeners-cum-caretakers who
were appointed as a stop gap arrangement on account of the person going on
leave or retiring. On behalf of the Respondent reliance was also placed on the
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further circulars, Minutes of the meetings, directions issued by the Chief
Labour Officer of the MCGM, the Additional Municipal Commissioner (Admn)
in the matter of preparing a list of the temporary gardeners-cum-caretakers for
absorption. The case of the Respondents in the said Statement of Claim was
also based on discrimination inasmuch as it is the case of the Respondents that
except the Respondents about 8400 have been granted benefits of permanency
in the various departments of the MCGM as also in the abattoir of the MCGM.
The Petitioner MCGM filed its Written Statement and dealt with
the claims and contentions raised in the Statement of Claim. The MCGM
denied the employer-employee relationship. The stand taken by the MCGM
was that the employees who had completed 240 days of service were granted
benefit of permanency and no others. The MCGM at the outset questioned the
maintainability of the Reference, however, the ground on which the
maintainability was questioned was not articulated. The MCGM also denied
the case of the Respondents based on discrimination by contending that the 18
workmen who were absorbed were pursuant to the order passed by the Labour
Court. It was the case of the MCGM that pursuant to the judgment of the Apex
Court reported in AIR 2006 SC 1806 in the matter of Secretary, State of
Karnataka and others v/s. Umadevi and others the Municipal Commissioner
had issued directions that there could be no absorption.
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7 The parties led evidence in respect of their respective assertions.
In so far as the Respondents are concerned, they led evidence of one witness
i.e. the Respondent No.1 whereas the Petitioner MCGM led the evidence of its
Deputy Education Officer, Central, Shri Ravindra Kale. In so far as the
Respondents are concerned, they have placed on record 70 documents vide
Exhibit U-5 which Exhibit inter alia contained the circulars as also other
documents which were relevant to the case of the Respondents. The Petitioner
also produced documents, amongst which was the ward-wise list of gardeners-
cum-caretakers and the number of days that they had worked.
8 The learned Presiding Officer of the Industrial Tribunal as
indicated above by the impugned Award dated 07/03/2015 has allowed the
said Reference and issued direction in terms of Clause (2) thereof which is to
the following effect :-
"(2) The first party Municipal Corporation of Greater
Mumbai shall absorb on regular basis the 27 workmen
of the second party as shown in the Annexure "A" from
the date of the award and pay them the wages and
consequential benefits as per the rule in prevail."
Hence the direction is to absorb the 27 Respondents in the service of the
MCGM. The gist of the reasoning of the learned Presiding Officer of the
Industrial Tribunal as can be seen from the impugned order is that the benefits
of permanency have not been granted to the 27 Respondents whereas the said
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benefits were granted to 18 temporary gardeners-cum-caretakers who were
similarly situated as the Respondents and about 83 safai kamgars who were
working in the slaughter house at Deonar. Significantly though it was the case
of the Respondents which was founded in the policy of the MCGM as
enunciated by the Circular dated 27/11/2002 and subsequent circulars and the
Minutes of the various meetings which were held and the directions issued, the
learned Presiding Officer has not even adverted to the said case of the
Respondents except referring to the said circulars, Minutes of the Meetings and
the directions in the impugned Award. It is required to be noted that the
impugned Award is only based on the fact that there was alleged
discrimination qua the Respondents inasmuch as the similarly situated 18
gardeners-cum-caretakers and 83 safai kamgars working in the abattoir were
granted permanency. The evidence adduced on behalf of the parties has also
not been analyzed by the learned Presiding Officer of the Industrial Tribunal.
9 Having regard to the nature of the controversy involved it was
incumbent upon the learned Presiding Officer to address the Reference from
the perspective of whether there was a policy for absorption of the temporary
gardeners-cum-caretakers and whether the Respondents were entitled to the
benefit of the said policy and then arrive at a conclusion whether they were
discriminated in the matter of absorption. This was necessitated more so on
account of the judgment of the Apex Court in Umadevi's case (supra) where
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the only exception for regularization of irregularly appointed persons is where
there is a policy for such regularization. However, unfortunately what seems to
have weighed with the learned Presiding Officer is only the fact that the
similarly situated 18 gardeners-cum-caretakers and 83 safai kamgars working
in the abattoir have been absorbed in service and made permanent.
10 During the course of the hearing of the above Writ Petition, the
learned Senior Counsel appearing on behalf of the Petitioner - MCGM Shri A V
Bukhari sought to controvert the case of the Respondents by seeking to rely
upon the documents which are admittedly not on record of the Industrial
Tribunal in the said Reference. The learned Senior Counsel sought to question
the relief granted in the Reference on the basis of the judgment of the Apex
Court in Umadevi's case (supra) which governs public employment and the
principles that ought to weigh with the Court whilst considering the relief of
regularization/permanency.
The learned Senior Counsel sought to demonstrate how the case of
the 18 gardeners-cum-caretakers as also the 83 safai kamgars was
distinguishable from the case of the Respondents. In support of the said
contention, he sought to rely upon the documents which were not on record.
The learned Senior Counsel sought the setting aside of the impugned Award on
the ground of the maintainability of the Reference, which ground though
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fleetingly taken in the Written Statement, does not seem to have been urged
before the Industrial Tribunal.
11 Per contra, the learned counsel appearing for the Respondents
Shri S C Naidu sought to justify the impugned Award on the basis of the policy
as contained in the Circulars etc. which as indicated above has not been taken
into consideration by the Industrial Tribunal. The learned counsel Shri S C
Naidu also sought to draw this Court's attention to the exceptions which have
been carved out in so far as applicability of the judgment in Umadevi's case
(supra) is concerned. The learned counsel Shri Shaikh Nasir Masih appearing
for the Respondent No.7 and the learned counsel Ms. Suvarna Joshi appearing
for the Respondent Nos.4 and 17 would adopt learned counsel Shri S C Naidu's
submissions but in addition made submissions as to why there is no merit in
the above Petition.
12 Having heard the learned counsel for the parties, in my view, it is
not necessary for this Court in its writ jurisdiction under Article 227 of the
Constitution of India to carry out a judicial review of the impugned Award on
the basis of the material which has not been taken into consideration by the
Industrial Tribunal or the material which was not before the Industrial Tribunal
whilst it adjudicated the Reference in question. In my view, the interest of
justice would be served if the impugned Award is set aside and the Reference
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in question is relegated back to the Industrial Tribunal, Mumbai for a de-novo
consideration.
13 In view of the conclusion that this Court had reached, this Court
has not referred to the facts in great detail. This Court also did not deem it
appropriate to consider the rival contentions lest the same causes prejudice to
the parties on remand.
The learned counsel Shri S C Naidu appearing for the
Respondents except Respondent Nos.4, 7 and 17 and the learned counsel Ms.
Suvarna Joshi appearing for the Respondent Nos.4 and 17 and the learned
counsel Shri Shaikh Nasir Masih appearing for the Respondent No.7 are
agreeable to the aforesaid course of action being followed.
15 Hence the following directions :-
1] The impugned Award dated 07/03/2015 is quashed
and set aside and the Reference in question being
Reference (IT) No.10 of 2014 is relegated back to the
Industrial Tribunal, Mumbai for a de-novo
consideration.
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2] The parties are agreeable to additional pleadings being
filed by the parties, for additional documentary and
oral evidence being led. The Industrial Tribunal would
accordingly allow the parties to file additional
pleadings and to lead additional evidence both oral
and documentary.
3] The contentions of the parties are kept open for being
urged before the Industrial Tribunal Mumbai including
the maintainability of the Reference in question.
Needless to state that the Industrial Tribunal would
decide the Reference in question on its own merits and
in accordance with law.
4] The parties to appear before the Industrial Tribunal,
Mumbai on 28/11/2016 at 3.00 pm. The Respondents
would file their additional Statement of Claim within
four weeks thereafter. The Petitioner MCGM would file
its Written Statement within six weeks thereafter.
5] The learned counsel appearing on behalf of the
Respondents Shri S C Naidu states that the
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Respondents would withdraw the Complaint (ULP)
No.242 of 2015 filed for implementation of the
impugned Award. Statement is accepted.
6] On remand, the hearing of the Reference in question is
expedited.
7] The above Writ Petition is allowed to the aforesaid
extent. Rule is accordingly made absolute with parties
to bear their respective costs of the Petition.
8] In view of the disposal of the above Writ Petition, Civil
Application No.46 of 2016 does not survive and the
same to accordingly stand disposed of as such.
[R.M.SAVANT, J]
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