Bombay High Court

Ahmednagar Mahanagar Palika ... vs Gangaram Sahadu Sathe on 11 February, 2021

Bench: M. G. Sewlikar

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         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                     BENCH AT AURANGABAD

                       WRIT PETITION NO. 4738 OF 2020

Ahmednagar Mahanagar Palika                                   Petitioner

       Versus

Gangaram Sahadu Sathe                                         Respondent

Mr. V.S. Bedre, Advocate for the petitioner.
Mr. P.V. Barde, Advocate for the respondent.

                                  CORAM : M.G. Sewlikar, J.

DATE : 11th February, 2021.

PER COURT :

1. This petition is preferred by the petitioner-Ahmednagar

Municipal Corporation against the order passed by the learned

Member, Industrial Court, Ahmednagar in complaint ULP No.

60/2017 dated 26.09.2018.

2. The factual matrix leading to this petition is that in the

year 1985, the respondent was appointed as a daily rated worker. In

the year 1991, along with the respondent, 180 employees were made

permanent. On 04.05.2000, the respondent retired from the service.

Vide notifcation dated 05.03.2001, the Government sanctioned these

posts. It was stated in the notifcation that their past service will not

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be considered. Accordingly, the pension of the respondent was fxed.

3. It is further alleged that in the year 2017, the respondent

fled an application for revision of his pension. The learned Member,

Industrial Court, Ahmednagar, by the impunged order, allowed the

application and directed the pension of the respondent to be revised.

This order is impugned in this petition.

4. Learned counsel Shri Bedre submitted that the

employees had agreed to waive the benefts but after passage of 17

years, the respondent preferred complaint for revision of pension. He

further submitted that the Government had issued notifcation to the

effect that the employees would be regularised and their past service

would not be considered for pensionary benefts.

5. Shri Barde, learned counsel for respondent submitted

that the notifcation does not say anything of this sort. The

notifcation only mentions that the past service will not be

considered. He further submitted that this issue is no longer res

integra in view of the judgment of this Court in the case of

Ahmednagar Municipal Corporation vs. Malan Kisan Asmar reported

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in 2018(1) ALL MR 759 (confrmed by the Honourable Apex Court) in

which it has been held that what was waived was monetary and

service benefts and not retiral benefts. He further submitted that

this issue was not before the learned Industrial Court. The only

issue before the learned Industrial Court was whether the pension

was not revised only because the employee was made permanent

because of the order of the Court.

6. All these facts are admitted. The said notifcation was

not produced before the learned Industrial Court. On the basis of

the judgment of the Industrial Court and the submissions made by

learned counsel for both the sides, it is stated that in the

Government notifcation it was mentioned that past service of the

employees will not be considered. Therefore, there was nothing to

indicate that the retiral benefts were waived.

7. In the case of Ahmednagar Municipal Corporation

(supra), it has been observed thus :-

28. This Court in the case of Mahatma Phule Krushi Vidyapeeth (supra) has considered the effect of Rule 110, Rule 57 read with Note 1 and Rule 30 of the 1982 Pension Rules. It has, therefore, been settled that all such daily wage employees, who have

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been paid daily wages and which have not been drawn from the Contingency Fund, would be squarely covered under Rule 30 of the 1982 Rules and therefore, are entitled for the pensionary benefts by reckoning their temporary service and by adding the same to the permanent service period for satisfying the defnition of "qualifying service". It is, therefore, no longer res integra that the temporary employment put in by the daily rated employees has to be reckoned with for grant of pensionary benefts.

29. In the Union of India Vs. Mohanlal's judgment (supra), the Honourable Supreme Court has dealt with a 'wrong concession' made by the parties. Even if it is presumed that the condition of waiver imposed upon the employees by the Directorate of Municipal Administration is construed to mean and include retiral, pensionary and statutory benefts, it has to be considered as to whether a wrong concession given for waiving statutory benefts can be held to be binding on the employees. Paragraph Nos. 8 and 9 of the Mohanlal Judgment (supra) read as under:-

"8. We shall frst deal with the effect of concession, if any, made by learned counsel appearing for the present appellants before the High Court. Closer reading of the High Court's order shows that the High Court took the view that in view of the revocation of the order on 19th December, 1994 and the order passed by the High Court in 11th January, 1995, no further order could have been passed under Section 7 of SAFEMA. After having expressed this view, the so- called concession is recorded. In our view the concession, if any, is really of no consequence, because the wrong concession made by a counsel cannot bind the parties when statutory provisions clearly provided

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otherwise. It was observed by Constitution Bench of this Court Sanjeev Coke Manufacturing Company v. Bharat Coking Coal Limited and Anr.: [1983] 1 SCR 1000 that courts are not to act on the basis of concession but with reference to the applicable provisions. The view has been reiterated in and Central Council for Research in Ayurveda & Siddha and Anr. v. Dr. K.Santhakumari [2001] 3 SCR 519. In para 12 of Central Council's case (supra) it as observed as follows :

" In the instant case, the selection was made by the Departmental Promotion Committee. The Committee must have considered all relevant facts including the inter se merit and ability of the candidates and prepared the select list on that basis.

The respondent, though senior in comparison to other candidates, secured a lower place in the select list, evidently because the principle of "merit-cum- seniority" had been applied by the Departmental Promotion Committee. The respondent has no grievance that there were any mala fdes on the part of the Departmental Promotion Committee. The only contention urged by the respondent is that the Departmental Promotion Committee did not follow the principle of "seniority-cum-ftness". In the High Court, the appellants herein failed to point out that the promotion is in respect of a "selection post" and the principle to be applied is "merit-cum-seniority". Had the appellants pointed out the true position, the learned Single Judge would not have granted relief in favour of the respondent. If the learned counsel has made an admission or concession inadvertently or under a

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mistaken impression of law, it is not binding on his client and the same cannot ensure to the beneft fo any party". (underlined for emphasis)

9. In Uptron (India) Ltd. v. Shammi Bhan and Anr. [1998] 1 SCR 719, it was held that a case decided on the basis of wrong concession of a counsel has no precedent value. That apart, the applicability of the statute or otherwise to a given situation or the question of statutory liability of a person/institution under any provision of law would invariably depend upon the concerned and has got to be adjudged not on any concession made. Any such concession would have no acceptability or relevance while determining rights and liabilities incurred or acquired in view of the axiomatic principle, without exception, that there can be no estoppel against statute."

8. From the abovereferred judgment, the Honourable

Supreme Court has held that any concession wrongly made or made

in a wrong belief shall not deprive the employees from the statutory

benefts available to them. It is observed that any such concession

given against the statutory right would have no acceptability or

relevance while determining the rights and liabilities incurred or

acquired on the principle that there cannot be any estoppel against

the Statute. Therefore, direction for consideration of past service of

the respondent No. 1 by the Industrial Court cannot be faulted with.