Chief Officer, Municipal ... vs Rajaram S/O Tukaram Kajale And ...
2021 Latest Caselaw 12185 Bom

                                                     1          230-J-LPA-115-2011.odt

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     NAGPUR BENCH, NAGPUR
                LETTERS PATENT APPEAL NO.115 OF 2011
                                 IN
                  WRIT PETITION NO. 4068 OF 2009 (D)

 APPELLANT :                   Chief Officer,
                               Municipal Council,
                               Mangrulpir, Distt. Washim.

                               // V E R S U S //
 RESPONDENTS :                 1.     Rajaram s/o Tukaram Kajale,
                                      a/a 69 years, Occu-pensioner,

                               2.     Kishor s/o Rajaram Kajale,
                                      a/a 37 yrs, Occu-Panpatti business,

                                     both r/o Ward no.15,
                                     old Ward No.10 - Mangrulpir,
                                     Tq. Mangrulpir, Distt. Washim.

                               3.    Collector, Washim,
                                     Tq. & Distt. Washim.

                               4.    Director, Municipal
                                     Administration, Gruhnirman Bhavan
                                     (MHADA), Ground floor, Rooms
                                     nos. 73 to 76, Kala Nagar, Bandra,
                                     East-Mumbai - 400051.

                               5.     Secretary,
                                      Urban Development Department,
                                      Mantralaya, Mumbai-32.
 -------------------------------------------------------------------------------------------
 Shri N. R. Saboo, Advocate for appellant.
 Shri P. N. Varma, Advocate for respondent Nos.1 and 2.
 Ms.S. S. Jachak, AGP for respondent Nos.3 to 5.
 -------------------------------------------------------------------------------------------
                                CORAM: A.S. CHANDURKAR AND
                                             G. A. SANAP, JJ.

DATED : 31/08/2021

2 230-J-LPA-115-2011.odt

ORAL JUDGMENT : (PER : G. A. SANAP, J.)

1. In this Letters Patent Appeal, challenge is to the

Judgment and order passed in Writ Petition No.4068 of 2009

dated 10/12/2009, whereby the learned Single Judge dismissed

the writ petition with a direction to the petitioner - appellant

herein to serve the waiting list of similarly situated candidates to

the respondent No.2 and liberty to respondent No.2 to point out

the suppression of the facts. The learned Single Judge, thereby

upheld the order passed by the Industrial Court, Akola dated

08/07/2009, whereby the Industrial Court had allowed the

complaint ULP No.303/2000 filed under Section 28 for

committing unfair labour practice as per Items 5 and 9 of

Schedule IV of the Act, 1971 and consequently directed the

petitioner to recruit the complainant No.2 in its employment on

Class-IV category post.

The facts leading to the filing of this Letters Patent

Appeal are as follows :-

2. The appellant is the Municipal Council, Mangrulpir,

Dist. Washim represented by its Chief Officer. The respondent

Nos.1 and 2 filed the complaint before the Industrial Court, Akola

3 230-J-LPA-115-2011.odt

and contended that the respondent No.1 was employed as a Peon

with the appellant w.e.f. 18/11/1968 to 31/07/2000. It is stated

that as per the Maharashtra Government Resolutions dated

14/04/1981 and 10/12/1981, the respondent No.2 being his son

was entitled to get the employment in his place after retirement in

Class-IV category. It is stated that the application made for this

purpose on 05/07/2000 was rejected without assigning the reason

by appellant. It is further stated that the respondent No.2 is a

physically handicapped and as such entitled to get the benefit of

the above Government Resolution. It is further stated that the

similar benefit was extended to the son of employee by name

Mr.Ram Bhaskarrao Karkal. According to the respondent Nos.1

and 2, the respondent No.2 as per the Government Resolution was

entitled to get the employment in place of his father on his

retirement.

3. The Chief Officer of the appellant filed the reply

and denied the claim. It is contended that the respondent Nos.1

and 2 have made incorrect statement in the claim. The benefit of

the Government Resolution was available to the employee, who

had retired before 14/04/1981. The respondent No.2 was also not

4 230-J-LPA-115-2011.odt

otherwise entitled to get the benefit of the said Government

Resolution. It is contended that there was no discrimination, as

alleged. There is no substance in the complaint.

4. The record reveals that the parties have adduced

the evidence before the Member of the Industrial Court. The

learned Member of the Industrial Court allowed the complaint as

mentioned above. Being dissatisfied with this order dated

08/07/2009 passed by the Member of the Industrial Court, the

appellant filed the writ petition. The learned Single Judge

dismissed the writ petition with directions as mentioned above.

5. Being aggrieved and dissatisfied with the Judgment

and order passed by the learned Single Judge, the appellant has

come before this Court in the Letters Patent Appeal. The grounds

of the challenge to the impugned order have been set out in the

Memo of Appeal. The main ground is that the very foundation of

the claim of the respondent Nos.1 and 2 is based on the

Government Resolution dated 14/04/1981 and further clarified by

the Government Resolution dated 10/12/1981 is not at all

sustainable. It is contended that the respondent No.2 was not

5 230-J-LPA-115-2011.odt

entitled to get the employment as per this Government Resolution

but the learned Industrial Court as well as learned Single Judge

have not considered the said Government Resolution in proper

perspective.

6. We have heard the learned advocate for the

appellant, learned advocate for the respondent Nos.1 and 2 and

the learned Assistant Government Pleader for the respondent

Nos.3 to 5. Perused the record and proceedings.

7. Shri N.R. Saboo, learned advocate for the appellant

submitted that the very foundation of the claim of the respondent

Nos.1 and 2 is shaky. The learned advocate submitted that the

benefit of the Government Resolution dated 14/04/1981 as

clarified by the Government Resolution dated 10/12/1981 was

made available to the son / unmarried daughter of the Class-IV

employee retiring before 14/04/1981 and also within one year

from 14/04/1981. The learned advocate submitted that the

respondent No.1 retired on 31/07/2000 and as such, the benefit

of the said Government Resolution was not available to the

respondent Nos.1 and 2. Besides, the learned advocate submitted

6 230-J-LPA-115-2011.odt

that the respondent No.2 did not fulfill the remaining conditions

of the said Government Resolution. The learned advocate

submitted that the order passed by the learned Single Judge is

required to be set aside. He further submitted that consequently,

the order passed by the learned Member of the Industrial Court is

also required to be set aside.

8. Shri P. N. Varma, learned advocate for the

respondent Nos.1 and 2 submitted that on proper appreciation of

the oral and documentary evidence, the respondent No.2 was

found entitled to get the employment on the retirement of the

respondent No.1. The learned advocate submitted that the learned

Member of the Industrial Court has considered the Government

Resolution in question and found that the respondent No.2 was

entitled to get the benefit of the same. The learned advocate in

substance supported the order passed by the learned Single Judge

as well as the order passed by the Member of the Industrial Court.

9. In order to appreciate the rival submissions, we

have gone through the record and proceedings. The basis of the

claim of respondent Nos.1 and 2 is the Government Resolution

7 230-J-LPA-115-2011.odt

dated 14/04/1981 and the Government Resolution dated

10/12/1981, clarifying the Government Resolution dated

14/04/1981. It is seen on perusal of the Government Resolution

dated 10/12/1981 that the Government resolved to relax the

condition of recommendation of the name of the son or daughter

of the retired employee by the Employment Exchange. Save and

except this condition, remaining conditions postulated by the

Government Resolution dated 14/04/1981 were not relaxed.

Perusal of the Government Resolutions would show that the

benefit of the Government Resolution was available to the retired

Class-IV employee retired before 14/04/1981 and within one year

from 14/04/1981 subject to other conditions. The Condition No.1

provided for the educational qualification. The Condition No.3

provided that the name of son or daughter of the retired employee

must be registered with the Local Employment Exchange Office.

The prima facie perusal of the Government Resolution would

show that the benefit was available to the retired employee within

one year from 14/04/1981. As noted above, the respondent No.1

retired on 31/07/2000. It is therefore, ex-facie seen that the

respondent Nos.1 and 2 had no right to claim the benefit of this

Government Resolution. Minute perusal of the Judgment and

8 230-J-LPA-115-2011.odt

order passed by the Industrial Court would show that the learned

Member of the Industrial Court has not considered this important

aspect. In our opinion, this was the crux of the matter. The

learned Member of the Industrial Court has missed the very crux

and basis of the matter.

10. It is further pertinent to note that the respondent

No.2 did not produce certificate from the Competent Authority to

show that he was physically handicapped. Similarly, no evidence

was placed on record before the Industrial Court to show that the

name of the respondent No.2 was registered with the Local

Employment Exchange Office. It is, therefore, apparent that the

benefit of the Government Resolution was extended to the son /

unmarried daughter of the retired Class-IV employee within one

year from the date of Government Resolution namely;

14/04/1981. Similarly, the benefit of the Government Resolution

was available to the Class-IV employee retiring before

14/04/1981. On minute consideration of the record and evidence

would show that the respondent Nos.1 and 2 have failed to

establish the basic requirements to extend the benefit of the

Government Resolution dated 14/04/1981 to the respondent

9 230-J-LPA-115-2011.odt

No.2. In our view, the complaint filed by the respondent Nos.1

and 2 before the learned Industrial Court was without substance.

Perusal of the Judgment and order passed by the learned Single

Judge would show that the aspect of applicability or non-

applicability of the Government Resolution dated 14/04/1981 has

not been dealt with. In view of this position, we find that there is

substance in the appeal.

11. As a result of the abovesaid observations, we

conclude that the order passed by the learned Single Judge dated

10/12/2009 in Writ Petition No.4068/2009 deserves to be set

aside. We accordingly set aside the same. As a consequence of

setting aside the order passed by the learned Single Judge, the

order passed by the learned Member of the Industrial Court dated

08/07/2009 is also required to be set aside. The same is

accordingly set aside. The complaint made by the respondent

Nos.1 and 2 bearing ULP No.303/2000 stands rejected. No order

as to costs.

              (G. A. SANAP, J.)              (A.S. CHANDURKAR, J.)


 Choulwar