Sarva Shrmik Sanghatna vs The Employees State Insurance ...
2017 Latest Caselaw 1917 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                ORDINARY ORIGINAL CIVIL JURISDICTION

                        WRIT PETITION NO. 2049 OF 2013

 Sarva Shramik Sanghatana                        ... Petitioner
        Vs.
 The Employees State Insurance 
 Corporation & Ors.                              ... Respondents
                                  ......
 Ms. Jane Cox i/b. Mr. Rajmohan A. Amonkar for the Petitioner.
 Mr. S. S. Pathak for Respondent No.1.
 Mr. P. M. Palshikar for Respondent No.2.
 Mr. L. T. Satelkar, Assistant Government Pleader for Respondent 
 No.3-State.
 Mr. Ashok Varma along with Ms. Jyotsna Pandhi for Respondent 
 No.4.
                                  ......
                                 CORAM :             S. C. DHARMADHIKARI &
                                                     B. P. COLABAWALLA, JJ.

ORDER RESERVED ON : MARCH 22, 2017.

ORDER PRONOUNCED ON : APRIL 21, 2017.

ORAL ORDER (PER S. C. DHARMADHIKARI, J) :

1. By this Writ Petition under Article 226 of the Constitution of

India, the petitioner prays for the following reliefs:

"(a) That this Hon'ble Court may be pleased by a Writ of Mandamus or in the nature of Mandamus directing the Respondent No.1 to pay the wages of the employees listed at Exhibit "A" their wages for the months January 2013 till date with interest at commercial rate till realization, and to deposit the said wages directly into the individual accounts of the said employees with Punjab National Bank, (MGM Hospital, Parel Branch (as listed at Exhibit

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"J"), and to continue to deposit the monthly wages of the said employees in the said accounts on the 1 st day of each proceeding month;

(b) That pending the hearing and final disposal of the Petition this Hon'ble Court may be pleased to direct the Respondent No.1 to That this Hon'ble Court may be pleased by a Writ of Mandamus or in the nature of Mandamus directing the Respondent No.1 to pay the wages of the employees listed at Exhibit "A" their wages for the months January 2013 till date with interest at commercial rate till realization, and to deposit the said wages directly into the individual accounts of the said employees with Punjab National Bank, MGM Hospital, Parel Branch (as listed at Exhibit "J"), and to continue to deposit the monthly wages of the said employees in the said accounts on the 1 st day of each proceeding month;"

2. The petitioner relies upon an advertisement issued in some

newspapers in respect of filling up of various posts at a hospital,

namely, Mahatma Gandhi Memorial Hospital.

3. After setting out the details of the posts created and the

subsequent appointment orders, it is stated that the wages were

agreed to be paid by the 1st respondent. The petitioner places

reliance upon several letters exchanged in that behalf. The

petitioner relies upon the fact that there was delay in payment of

salaries. Eventually, one letter dated 5 th March, 2013 is relied

upon. That was addressed to the Commissioner, Employees State

Insurance Scheme, Mumbai, by the Under Secretary, Public Health

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Department, Government of Maharashtra. Finally, the petitioner

relies upon the letters addressed by the employees to the Deputy

Medical Commissioner - 1st respondent, with copies to the 2nd

respondent. However, the wages and salaries have not been paid.

4. It is on such a Writ Petition, and in which various affidavits

came to be filed, that a Division Bench of this Court, on hearing

both sides, passed the following order on 21st November, 2013:

"1. Pleadings are complete. Place the matter for final disposal at the stage of admission on 7.12.2013.

2. Petitioners are employees/para medical staff of the Post Graduate Institute of Medical Science and Research, Mahatma Gandhi Memorial Hospital, Parel, Mumbai (Respondent No.2). Their grievance is that they have been receiving salary almost after 6 months, and not immediately at the end of the month. It is submitted that the directions may be given either to Respondent No.1 or the State Government (Respondent No.3), so that salary of the Petitioners is paid from month to month. There is no dispute between Respondent No.1 and Government of Maharashtra regarding the method in which the payment has to be made. According to Respondent No.1, they are not supposed to reimburse the payment, which has already been made by them through the State Government. They are accordingly willing to pay 100% amount which has been spent by the State Government on the salary.

3. On the other hand, State Government has filed affidavit-in-reply. In paragraph 6 of said reply they have stated that it is responsibility of Respondent No.1 to pay the salary of the Petitioners. Learned counsel appearing for the

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Petitioners submits that the amounts of salary for the month of July, August and September 2013 has already been deposited by Respondent No.1 - ESIC with the State Government. However, till today, said amount of salary has not been paid to the Petitioners. It is not disputed by the State Government that they have received this amount from Respondent No.1. That being the position, we direct Respondent No.3 to pay salary of the Petitioners for the month of July, August and September 2013 within 3 weeks from today."

5. Thereafter, on 16th December, 2013, the above order was

corrected by the Division Bench in the following terms:

"1. An application is made for speaking to the minutes of the order dated 21/11/2013. It is submitted that from the fourth sentence of para 2 viz "There is no dispute between Respondent No.1 and Government of Maharashtra regarding the method in which the payment has to be made." which is on page 2 of the said order, the word "no" which is wrongly typed needs to be deleted. Hence, the word "no" is deleted from the said sentence, which shall now read as under :-

"There is dispute between Respondent No.1 and Government of Maharashtra regarding the method in which the payment has to be made."

2. It is also submitted that from the 5 th sentence of para 2 viz. "According to Respondent No.1, they are not supposed to reimburse the payment, which has already been made by them through the State Government." which is on page 2 of the said order, the words "not" and "by them" are wrongly typed and need to be deleted. Hence, the said words "not" and "by them" are deleted from the said sentence, which shall now read as under:-

"According to Respondent No.1, they are supposed to reimburse the payment, which has already been made through the State Government."

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3. It is further submitted that in the cause title of the said order, Mrs. Madhubala Kajale, AGP may be shown to be appearing for Respondent No.3 instead of Respondent 2 & 3, Mr. P.S. Jetly & A.R. Jetly may be shown to be appearing for Respondent No.4 instead of Respondent No.5 and Mr. P.M.

Palshikar may be shown to be appearing for Respondent No.2 instead of Respondent No.4. Hence, the said appearance is corrected as under:-

Mrs. Madhubala Kajale, AGP for Respondent No.3. Mr. P.S. Jetly with A.R. Varma for Respondent No.4. Mr. P.M. Palshikar for Respondent No.2.

4. The order dated 21/11/2013 is modified to the aforesaid extent. Stand over to 19/12/2013 at 3.00 P.M."

6. On 19th December, 2013, the Division Bench of this Court

then made a further order, which reads as under:

". Pursuant to the directions given by this Court by order dated 21.11.2013, the Petitioners have been paid salary for the month of July, August, and September 2013 by Respondent No.3. Said payment has been made without prejudice to the rights and contentions of the State Government.

2. The controversy which has been raised regarding the method and manner in which salary of the para-medical staff of the Post Graduate Institute of Medical Science and Research, Mahatma Gandhi Memorial Hospital, Parel, Mumbai, has to be paid. It is contended by the counsel appearing on behalf of Respondent No.1 that they are willing to reimburse the salary which is to be paid to the Petitioners. It is, however, submitted that the State Government first has to pay that amount and only thereafter the said amount will be reimbursed by the Corporation to the State Government.

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3. On the other hand, learned counsel appearing for the State Government submits that the entire responsibility of paying the salary of the staff is of Respondent No.1 Corporation.

4. Both-Respondent No.1 and the State Government have filed their respective affidavit-in-reply.

5. In our view, the petition will have to be disposed of finally at the stage of admission. In the meantime, however, by way of interim relief, we direct that the bill shall be raised by the competent authority of the State Government in respect of payment of salary which has to be made to the Petitioners for the next six months. This bill should be raised within a period of 2 weeks from today.

3. Upon the said bill being raised and sent to the hospital authorities, the hospital authorities shall forward this bill to Respondent No.1 ESI Corporation. Thereafter the Corporation shall deposit the said salary from month to month in the account of the hospital. The hospital shall then pay salary to the para-medical staff of the Post Graduate Institute of Medical Science and Research, Mahatma Gandhi Memorial Hospital, Parel, Mumbai, on or before 7 th day of each month. This arrangement shall continue till the hearing and final disposal of the petition. Place the petition for final hearing on 22nd January, 2014.

4. The hospital shall calculate the break-up of the various heads of which payments are to be made per employee. The ESI Corporation shall deposit salary which is payable for the month of October, November and December 2013 in the account of the hospital towards reimbursement of the salary of the said para-medical staff within 2 weeks from today. Upon the said salary being deposited, within one week thereafter the hospital shall disburse the salary of the said para-medical staff.

. Parties to act on authenticated copy of this order."

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7. Though the Writ Petition was directed to be disposed of

finally and we heard both sides at some length, it is agreed by

them that the Writ Petition can be disposed of in terms of the

orders passed by this Court from time to time, and specifically the

order passed on 19th December, 2013.

8. We accordingly make the petition absolute in terms of the

order dated 19th December, 2013. All benefits and allowances,

including maternity allowances, shall be admissible and payable to

the concerned members of the petitioner Union/employees. It is

clarified that this order is passed in the peculiar facts and

circumstances and shall enure to the benefit of the concerned

employees alone. The Writ Petition is allowed in these terms.

There shall be no order as to costs.

(B. P. COLABAWALLA, J.) (S. C. DHARMADHIKARI, J.)