Bombay High Court

Mrs. Pushpa Bhimrao Naik vs Government Milk Scheme Through ... on 14 September, 2022

Bench: Manish Pitale

                                       1                      906-WP-4067-2019-J.odt




     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
              NAGPUR BENCH AT NAGPUR

              WRIT PETITION NO. 4067 OF 2019

     Mrs. Pushpa Bhimrao Naik                       : PETITIONER
     Age 60 yrs. Occ. Service,
     R/o 160 Tenament, Civil Lines, Nagpur
                                VERSUS

 1 Government Milk Scheme,                          :
   Through its regional Dairy Development
   Officer, Civil Lines, Nagpur                         RESPONDENTS
 2 General Manager, Government Milk
   Scheme, Telankhedi, Civil Lines, Nagpur

Mr. Salim I. Khan, Advocate for petitioner
Mr. N.R. Patil, AGP for respondents

                                 CORAM : MANISH PITALE, J.

                                 DATE      : 14th SEPTEMBER 2022


ORAL JUDGMENT

Rule. Rule is made returnable forthwith. Heard finally with the

consent of learned counsel appearing for the rival parties.

2. By this petition, the petitioner has challenged judgment and

order dated 12/03/2019, passed by the Industrial Court, Maharashtra

(Nagpur Bench), Nagpur, whereby a Complaint filed by the petitioner

under Section 28 of the Maharashtra Recognition of Trade Unions and 2 906-WP-4067-2019-J.odt

Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to

as "M.R.T.U. & P.U.L.P. Act"), read with Items 6 and 9 of Schedule IV

thereof was dismissed.

3. This Court issued notice in the present writ petition on

17/06/2019 and both the respondents were represented by the learned

Assistant Government Pleader. On 11/10/2021, the learned counsel

appearing for the petitioner specifically relied upon judgment and order

dated 25/09/2019, passed by the Hon'ble Supreme Court in Civil

Appeal Nos. 10064-10075/2010 (Pandurang Sitaram Jadhav Etc. Vs.

The State of Maharashtra through its Dairy Manager & Anr). The

learned Assistant Government Pleader took time to go through the said

judgment and subsequently the present writ petition was posted for

final disposal.

4. The claim of the petitioner before the Industrial Court in the

Complaint in brief was that the respondents had indulged in unfair

labour practice, inasmuch as the petitioner was deprived of

regularization of her service despite having completed 240 days of

continuous service between September, 1982 to May, 1983. The

Complaint was filed along with an application for condonation of delay

in the year 2011. Initially, the Industrial Court dismissed the 3 906-WP-4067-2019-J.odt

application for condonation of delay, due to which the petitioner was

constrained to approach this Court by filing Writ Petition

No.2389/2017. By judgment and order dated 06/09/2018, the Writ

Petition was allowed. Consequently, the application for condonation of

delay was allowed and the matter was remitted to the Industrial Court

for deciding the Complaint on merits. Consequently, the Complaint,

although filed in the year 2011, was registered in the year 2018, as

Complaint (ULP) No. 203 of 2018.

5. The Industrial Court by the impugned judgment and order dated

12/03/2019, dismissed the Complaint, primarily on the ground that

after completion of 240 days in service, the petitioner had ceased to be

in service with the respondents. It was held that no case was made out

for holding that the respondent had indulged in unfair labour practice

and accordingly, the Complaint was dismissed.

6. Mr. Salim Khan, learned counsel appearing for the petitioner

submitted that although the petitioner raised grievance before the

Industrial Court in the year 2011 and she superannuated on

30/06/2014, that in itself could not be a ground for not considering the

relief claimed by the petitioner. It was submitted that since this Court

by allowing Writ Petition No.2389/2017, by judgment and order dated 4 906-WP-4067-2019-J.odt

06/09/2018, had condoned the delay in filing Complaint before the

Industrial Court, the Complaint ought to have been decided on its own

merits, by taking into consideration the facts that emerged from the

material available on record. By referring to the material available on

record, it was emphasized that the petitioner had completed 240 days of

continuous service and, therefore, the respondents had clearly

committed an unfair labour practice by failing to give benefit of

regularization to the petitioner in the year 1983 itself. It was further

submitted that even though the petitioner was subsequently appointed

in the year 1988, on compassionate ground, upon the death of her

husband, that in itself could not be a factor to not consider the

grievance raised on behalf of the petitioner.

7. The learned counsel appearing for the petitioner placed reliance

on the judgment of the Hon'ble Supreme Court in the case of

Pandurang Sitaram Jadhav Etc. Vs. The State of Maharashtra (supra). It

was emphasized that in the said case also, concerning the same industry

in Konkan region of the State, although grievances were raised by the

appellants therein by filing Complaints in the years 2001 and 2002,

while they had completed 240 days of continuous service in the years

1984, 1986, 1987 and 1988, the Hon'ble Supreme Court granted relief

to the appellants therein. It was specifically directed that the appellants 5 906-WP-4067-2019-J.odt

would be regularized in service and the earlier period of service would

be counted for the purposes of calculation of benefits without being

monetarily entitled, but, the entitlement would be from the dates of

filing of the Complaints. The learned counsel appearing for the

petitioner submitted that similar relief could be granted to the

petitioner, as a consequence of which she would have the relief of

enhanced pension, apart from the monetary relief towards enhanced

salary from the year 2011 to 2014 and enhanced pension from

01/07/2014 onwards.

8. Mr. N.R. Patil, learned Assistant Government Pleader appearing

on behalf of the respondents / State fairly submitted that a reference to

the statements made in the reply on behalf of the said respondent itself

demonstrated that the petitioner had indeed completed 240 days of

service between September, 1982 to May, 1983. But, it was emphasized

that the fact about the petitioner having been appointed on

compassionate basis in a regular manner from the year 1988, was

neither brought to the notice of the Industrial Court in the manner

expected nor was it emphasized before this Court in Writ Petition No.

2389/2017, filed by the petitioner when the delay in filing of the

Complaint was condoned. It was submitted that if this fact was brought

to notice in the earlier round of litigation, perhaps the tenor of 6 906-WP-4067-2019-J.odt

arguments on behalf of the respondents would have been different.

But, it was submitted that this Court, even at this stage, may consider

the aforesaid fact about the petitioner having enjoyed regular

appointment and service from 1988, till she superannuated on

30/06/2014, while disposing of the present writ petition.

9. This Court has heard the learned counsel for the rival parties in

the backdrop of the material placed on record, particularly the judgment

of the Hon'ble Supreme Court in the case of Pandurang Sitaram Jadhav

Etc. Vs. The State of Maharashtra (supra). In view of the material

available on record, there is no serious dispute about the fact that the

petitioner had indeed completed 240 days of continuous service

between September, 1982 to May, 1983 and that, therefore, she was

entitled for regularization. Having been deprived of the said relief, the

respondents did indulge in unfair labour practice under the provisions

of the said Act, read with the Schedule appended thereto. To that

extent, the Industrial Court was not justified in rendering a finding in

favour of the respondents. Therefore, the entitlement of the petitioner

was indeed established.

10. As regards, the fact of the petitioner having been appointed on

compassionate basis from 1988, this Court is of the opinion that merely 7 906-WP-4067-2019-J.odt

because the petitioner came to be appointed on compassionate basis

from the year 1988, ought not to come in her way towards

consideration of the relief claimed in the Complaint filed before the

Industrial Court. Insofar as delay in filing the Complaint is concerned,

this Court already condoned the delay by judgment and order dated

06/09/2018, passed in Writ Petition No.2389/2017. As to what impact

filing of the Complaint in the year 2011, as regards relief relatable to the

period 1983 to 1988, is concerned, this Court is inclined to follow the

dictum laid down by the Hon'ble Supreme Court in the aforesaid

judgment in the case of Pandurang Sitaram Jadhav Etc. Vs. The State of

Maharashtra (supra).

11. Applying the said position and the nature of relief granted by the

Hon'ble Supreme Court in the said judgment, this Court is of the

opinion that the writ petition deserves to be allowed to the limited

extent as indicated by the Hon'ble Supreme Court in the said judgment.

12. Having concluded that the petitioner had indeed completed

more than 240 days of continuous service between September, 1982 to

May, 1983, the petitioner to that extent can be said to be similarly

situated as the appellants in the case of Pandurang Sitaram Jadhav Etc.

Vs. The State of Maharashtra (supra). The petitioner having been 8 906-WP-4067-2019-J.odt

appointed on compassionate basis in the year 1988, ought not to

militate against her interest and the limited relief that she would be

entitled to, in the facts and circumstances of the present case.

13. It is significant that after taking note of the facts pertaining to

individual appellants in the case of Pandurang Sitaram Jadhav Etc. Vs.

The State of Maharashtra (supra), the Hon'ble Supreme Court thought

it fit to refer to the powers available to the Industrial Court under the

provisions of the said Act and the law elucidated by the Hon'ble

Supreme Court in the judgment in the case of Maharashtra State

Transport Corporation and another Vs. Casteribe Rajya Parivahan

Karmchari Sanghatana reported in (2009) 8 SCC 556 and thereupon

the Hon'ble Supreme Court held as follows :

"12. In view of the aforesaid facts as also the legal pronouncements made subsequently, we have no doubt that these appellants before us would be entitled to the benefit of regularization and mere delay in preferring the claim would not come in their way except that the benefit of regularization would arise from the date the complaints were filed.

13. The findings of an unfair labour practice by the Tribunal has in fact been confirmed by the learned Single Judge in the present case and the only two reasons for interference by the Division Bench relating to Umadevi's case (supra) have already been explained in the aforesaid subsequent judgments.

14. We thus, direct the respondents to regularize the appellants accordingly and the necessary orders be issued 9 906-WP-4067-2019-J.odt

within three months from the date of the order.

15. The benefits which the appellants would be entitled should also be remitted to the appellants within the same period from the date of the complaints, through the earlier period would be counted for the purpose of calculation of benefits without the appellants being monetarily entitled for that period."

14. In view of the above, the writ petition is partly allowed.

15. The impugned judgment and order passed by the Industrial

Court is quashed and set aside. The Complaint filed by the petitioner is

partly allowed and it is directed that the service of the petitioner shall

stand regularized from the date she completed 240 days of continuous

service in the year 1983. The petitioner would be entitled for actual

relief in view thereof from the date of filing of her Complaint, which

was in March 2011, though the earlier period would be counted for the

purpose of calculation of benefit, without the petitioner being

monetarily entitled for such period. Accordingly, upon calculation of

benefits, the petitioner would be entitled to enhanced salary from

01/04/2011 to 30/06/2014, when she superannuated from service. The