Bombay High Court

Arvind Kashinath Mone And 2 Ors vs State Of Maharashtra And 2 Ors on 9 February, 2022

Bench: Prasanna B. Varale, N. R. Borkar

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DINESH                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SADANAND
SHERLA                                ORDINARY ORIGINAL CIVIL JURISDICTION
Digitally signed by
DINESH SADANAND
SHERLA
                                         WRIT PETITION NO. 1364 OF 2021
Date: 2022.02.09
15:01:58 +0500
                      1.        Arvind Kashinath Mone
                      2.        Qureshi Mohd. Arshad Akbar Ali
                      3.        Chandrakant Jivalappa Phadke         ..Petitioners

                                       vs.

                      1.        State of Maharashtra
                      2.        Municipal Corporation of Greater Mumbai
                      3.        Brihan Mumbai Electric Supply
                                and Transport Undertaking
                                of Municipal Corporation of
                                Greater Mumbai.                     ..Respondents


                      Mr. Sanjay Singhvi, Sr. Advocate a/w. Mr. Ramesh Bhat for the
                      Petitioners.
                      Ms Uma Palsuledesai, AGP for Respondent No.1/State.
                      Ms Rupali Adhate for the Respondent No.2 /MCGM.
                      Mr. S.C. Naidu a/w. Mr. Rakesh Singh i/b M.V. Kini and Co. for
                      Respondent No.3.

                                             CORAM :      PRASANNA B. VARALE &
                                                          N.R.BORKAR, JJ.

                                                RESERVED ON   :           28.09.2021.
                                                PRONOUNCED ON :           09.02.2022.

                      JUDGMENT (PER: N.R. BORKAR, J.)

1] The petitioners are ex-ofcers of respondent Nos.2 and 3.

Respondent No.2 - Municipal Corporation of Greater Mumbai is

the statutory body constituted under the Mumbai Municipal

Corporation Act, 1888 (for short MMC Act). Respondent No.3 -

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Brihan Mumbai Electric Supply and Transport Undertaking is

constituted under Chapter XVI-A of the MMC Act.

2] The petitioners have fled the present petition in a

representative capacity. The grievance of the petitioners is non

payment of legal dues such as encashment of leave, leave

travel assistance, arrears arising out of revision of pay scales

and gratuity to the petitioners and other similarly situated

employees.

3] According to the petitioners, as per Administrative Order

No. 97 dated 20.01.1992, all such payments are required to be

made within 15 days of employee ceasing to be in service.

According to the petitioners, respondent No.3 followed this

Administrative order till October 2016 and thereafter

respondent No.3 has stopped making such payments for

indefnite time compelling the employees to approach

appropriate courts and obtain orders for making payments of

such dues though there is no dispute either with regard to

eligibility or the quantum.

Dinesh Sherla

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4] The petitioners have stated that as per prevailing

practice as soon as any member of staf is superannuated a

fnal dues bill is prepared, which includes recoveries, if any,

from the superannuated members of the staf, payment due to

the superannuated staf. According to the petitioners, care is

taken to calculate income tax due and rent for service quarters

after superannuation even a penal rate from the members of

staf residing in the service quarters. The fnal bill is even

audited by the internal audit and is sent to cash section for

payment. The cash section recovers the income tax which is

remitted to income tax authorities, but the concerned

employee is not paid his dues including gratuity.

5] According to the petitioners after October 2016, the

Administrative Order No.97 is being followed selectively in

case of some employees and others are not paid dues for

years together on the pretext that respondent No.3 is facing

fnancial constraints thereby discriminating similarly placed

employees.

Dinesh Sherla

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6] According to the petitioners, there is no provision for

payment of pension to employees of respondent No.3. They

get pension under the provision of Provident Fund Act. The

retirement age of employees of respondent No.3 is 58 years,

which is relatively a young age where retired employees still

have obligations such as daughter's marriage, education of

sons and repayment of loans, if any. It is stated that due to

sudden loss of income, superannuated employees face acute

fnancial difculties, still they are driven to seek redressal by

approaching courts and spend avoidable expenses.

7] It is stated that approximately 1000 total applications are

flled before Controlling Authority appointed under the

Payment of Gratuity Act and even after the directions of

Controlling Authority the orders are not complied with and the

employees are compelled to take out recovery proceedings. It

is stated that a group of 32 ofcers of respondent No.3 had

fled individual Wrrit Petition No. 291 of 2021 and other

connected petitions in this Court and this court directed the

respondent No.3 to make the payments within 3 months.

Dinesh Sherla

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8] It is further stated that 138 employees of respondent

No.3, who are in the category of workmen have fled a

complaint under the Unfair Labour Practices in the Industrial

Court and the Industrial Court had directed by an interim order

to deposit the amount of legal dues as per fnal bills prepared

by respondent No.3 within three months from the date of

order.

9] The petitioners have stated that in all cases of non-

payment of retirement dues, respondent No.3 has only

pleaded fnancial constraints and the said defense was

rejected by all the courts. It is stated when employees

approaches the courts, respondent No.3 indulges in raising

unnecessary objections such as status of employees, thereby

requiring the courts to hear them on preliminary objections,

which delays the proceedings.

10] It is stated that the employees are not only deprived of

their legitimate dues but are forced to take out expensive,

time consuming exercise. It is stated that repeated acts on the

part of respondent No.3 in avoiding payment of gratuity by

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false representation is an ofence under sections 9(1) and 9(2)

of the Payment of Gratuity Act.

11] It is stated that the petitioners herein are similarly placed

as those 32 petitioner mentioned in Wrrit Petition No. 291 of

2021 and other connected petitions. It is stated that in the

case of these petitioners also fnal bills are prepared by

respondents, however, the petitioners have not been paid their

fnal dues, though the petitioners have retired more than one

year back.

12] The petition is contested inter alia on the ground that

leave under Order 1 Rule 8 of Code of Civil Procedure, 1908 to

prosecute and maintain the present petition on behalf of 120

retired employees cannot be granted as date of retirement of

all these employees is diferent; their designations and

departments are diferent, and thus cause of action for each of

the employees is distinct and diferent.

13] According to the respondent No.3, the present petition is

fled in representative capacity on behalf of 120 employees

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and thus it was necessary to pay the court fees accordingly.

According to respondent No.3, the court fees paid by the

petitioners is neither proper nor sufcient and thus the present

petition cannot be entertained.

14] Respondent No.3 has stated that admittedly, the

designation of 120 employees at the time of retirement were

either Assistant Admin Ofcer/Foreman, General/Charge,

Engineer/Assistant Admin Manager/Junior Engineer/Deputy

Depot Manager/Superintendent Electrical / Supervisor/ Budget

Ofcer/Divisional Engineer/Superintendent (ES) in various

divisions of respondent No.3 and thus, the petitioners can

always avail remedy under the Industrial Disputes Act, 1947

by raising a reference under section 10 or by fling complaint

under Unfair Labour Practice under section 25T of the

Industrial Disputes Act, 1947. It is stated that in addition to

above remedy, so far as gratuity is concerned, the petitioners

can also avail the remedy under the Payment of Gratuity Act,

1972 by approaching the Controlling Authority under section 7

of the Payment of Gratuity Act, 1972.

Dinesh Sherla

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15] Respondent No.3 has stated that three petitioners have

not vacated the service quarters. It is further stated that they

have paid the provident fund dues to almost all the petitioners.

It is stated that in the above facts and circumstances, the

present petition has no merit as the case is based on disputed

facts and thus needs to be dismissed.

16] Wre have heard the learned counsel for the petitioner and

the learned counsel for the contesting respondent.

17] Learned counsel for the petitioners submits that the

grievance in the present petition is common, i.e., non payment

of legal dues to superannuated staf. It is submitted that the

present petition is thus very much maintainable in the

representative capacity. In support of his submission, the

learned counsel for the petitioners has relied upon the

following judgements.

" (i) Amrit Lal Berry vs. Collector of Central Excise, New Delhi and ors.1;

(ii) Chairman, Tamil Nadu Housing Board, Madras vs. T.N. Ganapathy2

1 (1975) 4 SCC 714 2 (1990) 1 SCC 608 Dinesh Sherla

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18] On the other hand, the learned counsel for the contesting

respondent submits that the date of retirement of the

petitioners is diferent. It is submitted that their designations

and departments are diferent. It is submitted that in such

situation the petition in a representative capacity cannot be

entertained.

19] The Hon'ble Supreme Court in the case of Tamil Nadu

Housing Board (supra), while interpreting Order 1 Rule 8 of

C.P.C., has observed :

"7. ........ The provisions of Order I of Rule 8 have been included in the Code in the public interest so as to avoid multiplicity of litigation. The condition necessary for application of the provisions is that the persons on whose behalf the suit is being brought must have the same interest. In other words either the interest must be common or they must have a common grievance which they seek to get redressed. In Kodia Goundar v. Velandi Goundar (ILR 1955 Mad 339) a Full Bench of the Madras High Court observed that on the plain language of Order I Rule 8, the principal requirement to bring a suit within that rule is the sameness of interest of the numerous persons on whose behalf or for whose beneft the suit is instituted.

The court, while considering whether leave under the rule should be granted or not should examine whether there is sufcient community of interest to justify the adoption of the procedure provided under the rule. The object for which this provision is enacted is really to facilitate the decision of questions, in which a large number of persons are interested, without recourse to the ordinary procedure. The provision must, therefore, receive an

Dinesh Sherla

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interpretation which will subserve the object for its enactment. There are no words in the rule to limit its scope to any particular category of suit or to exclude a suit in regard to a claim for money or for injunction as the present one."

20] As regards applicability of Order 1 Rule 8 of the C.P.C. to

proceedings under either Article 226 or 32 of the Constitution

of India, the Hon'ble Supreme Court in the case of Amrit Lal

Berry (supra) has observed :

"28. ........ It is only when such rules violate or have been so used as to violate the fundamental rights of any group of persons employed by the State that this Court can interfere. In such cases, we see no objection to the fling of writ petition in representative capacities by aggrieved persons after taking necessary steps under Order 1, Rule 8, Civil Procedure Code, the application of which to proceedings under either Article 226 or 32 of the Constitution does not appear to us to be barred by any provision."

21] The grievance in the present petition is common, i.e., non

payment of legal dues to superannuated staf. Thus, in the

light of above cited judgments of the Hon'ble Supreme Court,

we are of the view that the present petition in a representative

capacity is very well maintainable.

22] On merit admittedly, similar grievance was raised before

this court in Wrrit Petition No. 291 of 2021 and other connected Dinesh Sherla

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petitions by similarly situated employees. This court after

hearing the parties directed respondent No.3 to clear the dues

to which the petitioners therein were entitled to within a period

of one month and while doing so rejected the contention of

respondent No.3 of fnancial constraints.

23] Admittedly, the respondent No.3 has not withdrawn it's

Administrative Order dated 20.01.1992. As per the said

Administrative Order, retiral benefts are required to be paid

within 15 days from the date of superannuation of concerned

employee. The Hon'ble Supreme Court in the case of Dr. Uma

Agrawal vs. State of U.P.3 has observed:

"5. Wre have referred in sufcient detail to the Rules and instructions which prescribe the time-schedule for the various steps to be taken in regard to the payment of pension and other retiral benefts. This we have done to remind the various governmental departments of their duties in initiating various steps at least two years in advance of the date of retirement. If the Rules/instructions are followed strictly, much of the litigation can be avoided and retired government servants will not feel harassed because after all, grant of pension is not a bounty but a right of the government servant. The Government is obliged to follow the Rules mentioned in the earlier part of this order in letter and in spirit. Delay in settlement of retiral benefts is frustrating and must be avoided at all costs. Such delays are occurring even in regard to family pensions for which too there is a prescribed procedure.

3 (1999) 3 SCC 438 Dinesh Sherla

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This is indeed unfortunate. In cases where a retired government servant claims interest for delayed payment, the court can certainly keep in mind the time-schedule prescribed in the Rules/instructions apart from other relevant factors applicable to each case."

(emphasis supplied)

24] In the above facts and circumstances, we are not inclined

to accept the contention urged on behalf of respondent No.3 in

relation to alternate remedy.

25] Considering over all facts and circumstances, the

following order is passed.

ORDER

a] Respondent No.3 is directed to pay retiral benefts

to the petitioners and all other similarly situated

employees like the petitioners within a period of three

months from today with interest, if any, as per rules;

b] Needless to mention that the above directions