Vasant Manaji Kamble vs The Chairman Bhaskar Pandurang ...
2016 Latest Caselaw 6258 Bom

                                             1




                                                                               
             IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                         BENCH AT AURANGABAD




                                                       
                           WRIT PETITION NO.10137 OF 2016

    Vasant S/o Manaji Kamble,
    Age-56 years, Occu-Nil,




                                                      
    R/o Punammoti Nagar,
    Ahmednagar                                               -- PETITIONER 

    VERSUS




                                            
    1.     The Chairman,
           Bhaskar Pandurang Hiwale Education 
                              
           Society, Vishwast Sanstha,
           Ahmednagar,
                             
    2.     The Director,
           The Centre for Rural Development
           Institute of Social Work and Research
           Station Road, Ahmednagar,
      


    3.     The Special District Welfare Officer,
           Office of Social Welfare,
   



           Datarange Mala,
           Ahmednagar,

    4.     Shashikant s/o Anand Hiwale,





           Age-60 years, Occu-Nil,
           R/o Bungalow No.27,
           Anandbhagya, Prakashpur,
           Ahmednagar, Dist.Ahmednagar                       -- RESPONDENTS

Mr.S.V.Natu, Advocate for the petitioner. Mr.Ashok Patil h/f Mr.A.R.Joshi, Advocate for respondent Nos.1 & 2. Mr.S.B.Joshi, AGP for respondent No.3.

Respondent No.4 is deleted.

( CORAM : RAVINDRA V. GHUGE, J.)

DATE : 21/10/2016

khs/OCT.2016/10137-d

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

25/07/2016 by which Complaint (ULP) No.23/2009 filed by the

petitioner, has been dismissed. There were two complainants before

the Industrial Court. Complainant No.2 alone is the petitioner in this

petition.

3. I have heard the strenuous submissions of the learned

Advocates for the respective sides and I have also gone through the

affidavit in reply filed by respondent Nos.1 and 2 dated 19/10/2016.

Considering the short issue involved, I am not inclined to advert to

the entire submissions of the learned Advocates. Suffice it to say, the

issue is as regards the unpaid difference in the subsistence allowance

from 1996 to 2005 as per the 5th Pay Commission recommendations.

4. The affidavit in reply placed on record indicates that the

respondents have calculated the subsistence/suspension allowance

payable to the petitioner under the 4th Pay Commission from

khs/OCT.2016/10137-d

November 1997 till 18/10/2005. An amount of Rs.6,10,386/- has

been paid to the petitioner by the Management.

5. There is no dispute that the 5th Pay Commission

recommendations are applicable to the petitioner and he was entitled

to the subsistence allowance as per the 5 th Pay Commission from the

date it was made applicable to the establishment and its employees.

6. Considering the above, in my view, the Industrial Court has

fallen in a patent error by concluding that the ULP complaint filed by

the petitioner was time barred and he should have approached the

Labour Court u/s 33(C)(2) of the I.D.Act, 1947. It is trite law that if

an amount is payable and the employer continues to fail in making

the payment, it would amount to a recurring cause of action.

7. As such, the petitioner can be held to be entitled for the

difference in the subsistence allowance as per the 5th Pay

Commission recommendations.

8. It is informed by Mr.Patil, learned Advocate for the

Management that the Directorate of Social Welfare has granted

permission to suspend the petitioner vide its order dated

khs/OCT.2016/10137-d

03/03/1998. Said order has been issued by the Director of Social

Welfare represented by respondent No.3 Pursuant thereto, the

Management has sent almost 8 letters seeking release of grants so as

to pay the subsistence allowance to the petitioner. It is not stated

that the said grants are not available for the purpose of Payment of

subsistence allowance.

9.

In the light of the above, this petition is partly allowed. The

impugned judgment of the Industrial Court dated 25/07/2016 is

quashed and set aside and the Complaint (ULP) No.23/2009 stands

partly allowed by directing the respondent/Management to pay the

difference in the subsistence allowance as per the recommendations

of the 5th Pay Commission within a period of 12 weeks from today.

10. Needless to state, respondent No.3 and the Directorate of Social

Welfare would consider the 8 reminders sent by the Management for

seeking release of grants for payment of the subsistence allowance.

Respondent No.3 and the competent authority shall therefore take a

decision on the said communications within a period of 3 weeks from

today and communicate the same to the respondent/Management

forthwith.

khs/OCT.2016/10137-d

11. So also, the Management is at liberty to submit a proposal, if

not already submitted, for release of grants so as to pay the difference

in subsistence allowance as per the 5 th Pay Commission

recommendations and the Competent authority, upon receipt of the

said proposal, shall decide the same within a period of 4 weeks from

the date of receipt of the said proposal. It be noted that the claim for

reimbursement and release of grants put forth by the

respondent/Management shall be considered by the competent

authority in accordance with the rules applicable.

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

13. Pending civil application, does not survive and is disposed of.

( RAVINDRA V. GHUGE, J.)

khs/OCT.2016/10137-d