Bombay High Court
The Commissioner, Thane Mahanagar ... vs Sarva Shramik Sangh And Anr on 7 August, 2025
Author: Milind N. Jadhav
Bench: Milind N. Jadhav
2025:BHC-AS:33739
WP.2644.20 & WP.10432.23.doc
Ajay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2644 OF 2020
Sarva Shramik Sangh (Union),
Neelkanth Apartment, Mahagiri,
Thane - 400 601. .. Petitioner
Versus
1. The Commissioner,
Thane Mahanagar Palika, Panchpakhadi,
Thane - 400 602.
2. The Dean, Chhatrapati Shivaji Maharaj
Hospital, Kalwa Belapur Road,
Kalwa, Thane - 400 605.
3. M/s. Khankal Enterprises,
Chhatrapati Shivaji Maharaj Hospital,
Kalwa Belapur Road,
Kalwa, Thane - 400 605. .. Respondents
WITH
WRIT PETITION NO. 10432 OF 2023
1. The Commissioner, Thane Mahanagar
Palika, Through the Commissioner, S/at:
Mahapalika Bhavan, Panchpakhadi,
Thane (West).
2. The Dean, Chatrapati Shivaji Maharaj Petitioners
Hospital, Belapur Road, Kalwa, Thane. .. (Orig. First Party)
Versus
1. Sarva Shramik Sangh
S/at: Neelkanth Apartment,
Mahagiri, Thane.
2. M/s. Khankal Enterprises, Respondents
Chatrapati Shivaji Maharaj Hospital, (Respondent No.1 -
Kalwa Belapur Road, Kalwa, Thane. .. Orig. Second Party)
....................
Ms. Jane Cox, Advocate i/by Ms. Karishma Rao a/w. Mr. Vinayak
Suthar and Mr. Pranav Pawar, Advocates for Petitioner in Writ
Petition No.2644 of 2020 and Respondent No.1 in Writ Petition
No.10432 of 2023.
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Mr. R.S. Apte, Senior Advocate i/by Mr. Ajit Pitale and Mr.
Siddharth Pitale, Advocates for Petitioners - Thane Municipal
Corporation in Writ Petition No.10432 of 2023 and Respondents in
Writ Petition No.2644 of 2020.
....................
CORAM : MILIND N. JADHAV, J.
DATE : AUGUST 07, 2025.
JUDGMENT:
1. Heard Ms. Cox, learned Advocate for Petitioner in Writ
Petition No.2644 of 2020 and Respondent No.1 in Writ Petition
No.10432 of 2023 and Mr. Apte, learned Senior Advocate for
Petitioners - Thane Municipal Corporation in Writ Petition No.10432
of 2023 and Respondents in Writ Petition No.2644 of 2020.
2. This is a group of two cross Writ Petitions which challenge
the Award dated 25.04.2019 passed by the Industrial Tribunal in
Reference (IT) No.41 of 2005. Writ Petition No.2644 of 2020 is filed
by Union representing and espousing the cause of 53 workmen
whereas Writ Petition No.10432 of 2023 is filed by the Municipal
Corporation to challenge the Award. The Award dated 25.04.2019 is
appended at Exhibit 'A' - page No.23 of Writ Petition No.2644 of 2020.
3. Briefly stated, Corporation is running and maintaining the
Municipal Corporation namely Chhatrapati Shivaji Maharaj Hospital,
Kalwa (for short 'the said Hospital'). The said Hospital is attached to
Rajiv Gandhi Medical College, Thane run by the Corporation.
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Petitioner - Corporation is a registered Trade Union and the concerned
workmen who were its members employed in the Hospital as
Sweepers, Aayas and Ward boys. It is the case of Corporation that the
workmen were appointed and engaged by a Contractor appointed by
the Corporation. Therefore when the workmen sought permanency in
service, they were denied the same resulting in the Union filing
Complaint (ULP) No.281 of 1995 in the Industrial Court at Thane
under Section 28 of the Maharashtra Recognition of Trade Unions and
Prevention of Unfair Labour Practices Act, 1971 (for short 'MRTU &
PULP Act') seeking permanency in service for them. The Complaint
was disposed of for want of jurisdiction on the basis of the judgment of
the Supreme Court in the cases of M/s. Cipla Limited and Kalyani Steel
at the then time. Union thereafter espoused the cause of workmen
seeking their reinstatement with full backwages and continuity of
service. The demand of the Union was admitted in conciliation.
However, Conciliation Officer submitted his failure report dated
17.09.2004. The State Government by order dated 27.05.2005
referred the said demand for adjudication to the learned Industrial
Tribunal.
3.1. According to the Union, the workmen were employed as
Aayas, Ward Boys and Sweepers in the Hospital run by the Corporation
on regular work on day to day basis and they were fully integrated
with the activities of the Corporation and the Hospital. It is their case
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that despite they having been worked in the Hospital alongside
permanent workers; they were denied status of permanency even
though when they were doing the same amount of work. It is their
case that there are 15 wards in the Hospital and work is assigned to
workers in different wards and their work is supervised. It is their case
that in the respective wards, the Ward Attendance Registers / Ward
Work Registers depicted their name alongwith other permanent
workers of the Corporation employed in the Hospital.
3.2. The Union pleaded that these workmen were in continuous
service of the Corporation and had put in more than 240 days in each
respective year for several years and the act of oral termination of
these workmen without offering them any notice and retirement
benefit as required under the Industrial Disputes Act, 1947 resultantly
leading to the dispute between the parties.
4. Ms. Cox, learned Advocate appearing on behalf of Petitioner
in Writ Petition No.2644 of 2020 would submit that the learned
Industrial Tribunal while answering the Reference referred to by the
Government framed the following 5 issues for adjudication:-
1. Whether the II Party, Ms. Lata Ujale and other 52
workmen, prove that they were the employees of Thane
Municipal Corporation?
2. Whether the II Party, Ms. Lata Ujale & others prove that
their services were terminated illegally and without
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following the due process of law?
3. Whether the II Party, Ms. Lata Ujale & others are
entitled for reinstatement with full back wages?
4. Whether the Ist Party Hospital proves that the said
workers were provided by Ist Party No.3 M/s. Khankal
Enterprises, a Contractor, for rendering the services in
the Hospital run by the Thane Municipal Corporation?
5. Whether the I Party No.3, M/s. Khankal Enterprises
prove that he was holding a valid license as a contract
under the Contract Labour (Regulation & Abolition)
Act?
4.1. She would submit that the Issue Nos. 1 and 2 are answered
in the affirmative whereas Issue Nos. 3, 4 and 5 are answered in the
negative. She would submit that once the Industrial Tribunal has
come to the definite conclusion that the Union proved that the 53
workmen were employees of the Corporation and their services were
terminated illegally without following the due process of law, then in
that case denial of reinstatement, backwages and other benefits to the
workmen is a grave error on the part of Tribunal in adjudicating the
dispute. She would submit that though lumpsum compensation of Rs.
1 Lakh is offered to them as solace in lieu of the above benefits, but the
reasons for arriving at this decision is wholly unacceptable and illegal
for no fault on the part of these workmen.
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4.2. She would submit that findings of Issue Nos.4 and 5 go to
the root of the matter in as much as the Corporation failed to prove
whether the workmen were employed by the alleged Contractor for
rendering services in the Hospital run by the Corporation and whether
the Contractor was holding a valid license or contract under the
Contract Labour (Regulation & Abolition) Act, 1970. She would
submit that once the Tribunal concluded that there was no
incriminating material on record to prove Corporation's case with
respect to Issue Nos. 4 and 5, then denial of the relief of reinstatement
with full backwages is a grave travesty of justice meted out to the
workmen.
4.3. She would submit that there was overwhelming evidence
presented before the Industrial Tribunal in the form of oral as well as
documentary evidence on the basis of which the learned Tribunal
arrived at the findings to the aforesaid 5 issues. She would therefore
submit that once the learned Tribunal concluded answers to Issue
Nos.1 and 2 in the affirmative then answering Issue Nos. 4 and 5 in the
negative would entail the workmen to reinstatement with full
backwages and therefore a substantive challenge is maintained to the
adjudication of Issue No.3 which is decided against the workmen. She
would persuade the Court to consider the findings returned in
paragraph Nos. 14 to 25 of the Award dated 25.04.2019 passed by the
Industrial Tribunal and overturn the conclusion and result of Issue No.
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3 to the extent of the challenge maintained in the present Writ
Petition.
5. PER CONTRA, Mr. Apte, learned Senior Advocate has
vehemently opposed the submissions made by Ms. Cox and would
submit that the Corporation desires to oppose the adjudication of the
learned Industrial Tribunal for holding the workmen as employees of
the Corporation and the fact that their services were terminated
without following the due process of law.
5.1. He would submit that in the first instance the Reference itself
was not maintainable and Tribunal had no jurisdiction to decide the
same. He would submit that the workmen were infact appointed by
the Contractor appointed by the Corporation and they had no nexus
with the Corporation and could not be deemed to be in employment of
the Corporation and thus could not claim permanency in service. He
would submit that the contract awarded by the Corporation to
Contractor expired on 12.08.2005 and therefore the Reference was
infructuous.
5.2. He would submit that none of the workers were given any
appointment letters nor recruited by the Corporation as they were
appointed by the Contractor as his employees. He would deny that the
said workers worked as Aayas, Ward boys and Nurses (Sweepers) in
the Hospital and their services and work was fully integrated with the
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activities of the Corporation in the Hospital. He would submit that
primary work of these workmen was of cleaning and sweeping which
was separate and segregated from the main activities of the employees
of the Corporation related to running the Hospital.
5.3. He would submit that the Contractor appointed by the
Corporation viz; M/s. Khankal Enterprises - Respondent No. 3
engaged about 70 workers for carrying out cleaning and sweeping
work in the Hospital premises and the same was governed by the
Agreement executed with the concerned Contractor. He would submit
that all work done by these workmen claiming to be the Members of
the Union was supervised by the Contractor and their wages and all
benefits were paid by the Contractor directly to them. He would submit
that once the employment of these workmen was not effected through
recruitment procedure under the provisions of the Bombay Provincial
Municipal Corporations Act, 1949, the concerned workmen cannot be
deemed to be employees of the Corporation as there is no nexus or
privity of contract between the Corporation and the workmen.
5.4. He would submit that in that view their oral termination was
duly valid. He would submit that there were no sanctioned posts
available for appointing them or for granting them permanent status
since granting permanent status depended upon availability of
sanctioned posts. He would submit that in so far as their presence and
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work done in the Hospital is concerned, the same was supervised by
the Contractor and he maintained a separate muster roll and
attendance register for them. He would submit that it was necessary
for the Corporation to also keep their attendance registers and ward
work registers in the respective wards in order to monitor their
availability and work as these workmen were bound to work alongside
the permanent employees of the Corporation because their primary
work involved maintaining cleanliness in the Hospital.
5.5. He would therefore submit that the learned Tribunal has
come to an incorrect conclusion while deciding Issue Nos.1 and 2 in
favour of the workmen by holding that they had proved that they were
employees of the Corporation and their services were terminated
illegally without following the due process of law.
5.6. He would submit that the decision arrived at in so far as
Issue Nos.4 and 5 is concerned is also incorrect in as much as the
learned Industrial Tribunal has come to the conclusion that the
Corporation has not proved that the said workers were appointed and
provided by the Contractor. Hence, he would submit that Writ Petition
No. 2644/2020 be dismissed and Writ Petition No. 10452/2023 be
allowed and the decision in the impugned Award adjudicating Issue
Nos.1, 2, 4 and 5 be overturned.
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6. None appears for Respondent No. 3, M/s. Khankal
Enterprises the Contractor despite being served.
7. I have heard Ms. Cox, learned Advocate espousing the cause
of workmen and Mr. Apte, learned Senior Advocate appearing on
behalf of the Corporation and perused the record of the case.
Submissions made by both the learned Advocates at the bar have
received due consideration of the Court.
8. At the outset, it is seen that there are 53 workmen and the
list of the said workmen is appended in the Petition. It was also placed
before the Industrial Tribunal and marked as Exhibit. The oral and the
documentary evidence led by the Union before the Industrial Tribunal
assumes significant importance in this case to determine the status of
the workmen. It is seen that the Union examined its first witness Mr.
Mohan Malusare, who has deposed that he joined the services of the
Corporation in the year 1993 as a Ward Boy on the basis of an
advertisement published in a Marathi local newspaper for recruitment
of Ward Boys and Aayas. It is seen that on the basis of the said
advertisement, he approached the Hospital and met Mr. Patnaik, the
Health Officer who after holding a brief interview directed him to
make an Application in response to the notice displayed on the notice
board of the Hospital for recruitment of Ward Boys and Aayas and join
duty from the following day. This evidence has not been dislodged in
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rebuttal by any incriminating material. The contention of Corporation
that the workmen were employed through the Contractor M/s.
Khankal Enterprises cannot be accepted as there is no material placed
on record to prove this fact. Despite this I have given adequate time to
the Corporation pursuant to hearing of present Writ Petitions on
12.09.2023 and the following order being passed on 12.09.2023:-
"1. Heard learned Advocates appearing for the parties.
2. This is a group of two Writ Petitions. Writ Petition No.
2644/2020 has been filed by Petitioner - Sarva Shramik Sangh
(for short "Union") taking exception to the Award dated
25.04.2019 passed by the Industrial Tribunal, Thane in
Reference (IT) No. 41 of 2005. It is the case of the Union that
the Reference has been partly answered in the affirmative and
there is dichotomy in respect of the decision given on the issues
that have been framed by the learned Industrial Court.
3. Ms. Cox, learned Advocate for the Union would argue that
bare perusal of the finding on Issue Nos. 1 and 2 which is in the
affirmative would clearly imply that the finding on Issue No. 3
has to be in the affirmative as it is a consequential issue to Issue
Nos. 1 & 2.
4. Writ Petition No. 10432 of 2023 has been filed by the
Corporation (employer) taking exception to the same Award
dated 25.04.2019 passed by the Industrial Tribunal. Mr. Apte,
learned Senior Advocate appears for Thane Municipal
Corporation (for short, "Corporation"). Essentially Corporation-
employer is aggrieved with the findings returned on Issue Nos. 1
and 2. Though this Writ Petition was filed on 06.01.2020, it is
registered only in the year 2023.
5. Both Writ Petitions challenge the same Award and are
taken up for hearing at the request of the learned Advocate
appearing for the Union.
6. Briefly stated, learned Industrial Tribunal was called upon
to decide the Reference whether to reinstate in service Smt. Lata
Prakash Ujale and 52 others with continuity of service and total
financial damages. Learned Industrial Tribunal in its wisdom
framed the following issues to decide the Reference:-
(i) Whether Smt. Lata Prakash Ujale & 52 others prove
that they were the employees of Thane Municipal
Corporation?
(ii) Whether Smt. Lata Prakash Ujale & 52 others prove
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that their services were terminated illegally and
without following due process of law?
(iii) Whether Smt. Lata Prakash Ujale & 52 others are
entitled for reinstatement with full back wages?
(iv) Whether the employer / hospital proves that the
said workers were provided by M/s. Khankal
Enterprises, a Contractor for rendering the services
in the Hospital run by the Thane Municipal
Corporation?
(v) Whether M/s. Khankal Enterprises prove that he was
holding a valid license as a contract under the
Contract Labour (Regulation & Addition) Act?
7. As delineated herein above and observed by this Court,
once Issue Nos. 1 and 2 were decided in the affirmative, finding
on Issue No. 3 which prima facie is a consequential issue can
never be answered in the negative. Be that as it may, certain
facts are necessary to be reproduced to understand the grievance
of the Union before the Court. After Reference was made by the
State Government to Industrial Tribunal it came to be decided.
It is the Union's case that the 53 workmen were employed in the
Kalwa Municipal Hospital as Aayas, Wardboys and Sweepers.
This Hospital is run by the Corporation. Work was assigned to
these 53 workmen in 15 different wards of the Hospital. Their
work was supervised by Nurses, Matrons and Supervisors who
were employees of the Corporation. It is the Union's case that
names of these 53 workmen were entered into the Ward
Attendance Registers and Ward Work Registers along with the
names of permanent workmen employed in the Hospital.
Though it is fairly submitted by the Union that distribution of
wages to these 53 workmen was done by the Contractor once a
month, however except distribution of wages, the Contractor
played no other role whatsoever and they were directly given
work under supervision of the Hospital staff. It is Union's case
that the alleged Contract with the Contractor was a sham and
bogus arrangement and did not hold any valid registration as the
Contractor held no licence under the statute. It is Union's case
that between 01.02.1995 and 06.03.1995, all 53 workers were
terminated without serving any notice or retrenchment
compensation as required under the Industrial Disputes Act,
1947 (for short, "the Act").
8. Ms. Cox, learned Advocate has invited my attention to the
affidavit-in-reply filed by the Union dated 06.09.2023 in Writ
Petition No. 10432/2023, which is the Petition filed by
Corporation. She would submit that during the period from
1991 to 1995, there were clear vacancies for more than 457
vacant posts of Safai Kamgars, 34 vacant posts of Aayas and 29
posts of Wardboys. She would submit that in support thereof,
the Principal Information Officer of the Corporation has
provided the necessary information under the Right to
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Information Act to the representative of the Union which is at
Exh. "B", Page Nos. 61-62 of Petition. She would therefore
submit that in view of the above position, appointment of these
53 workmen were made by the Corporation. In all fairness, she
would next submit that 7 out of 53 workers have already expired
according to the information available with the Union. Next she
would submit that out of the balance 46 workers, only 21
workers, considering their date of birth and present age will be
in a position to join employment and work in the hospital until
superannuation in the event if Union succeeds in its Petition.
This would necessarily mean that the remaining 25 workers,
considering their date of birth and present age would have
crossed their superannuation. It is also stated by Union that in
respect of at least 13 out of 53 workmen, details of their date of
birth and present age are not known to the Union. Averments to
that effect are made in paragraph No. 3 of the affidavit-in-reply
dated 06.09.2023 filed by the Union in Writ Petition No.
10432/2023.
9. I have also heard Mr. Apte, learned Senior Advocate
briefly and have called upon the Corporation to firstly place on
record the contract with the Contractor who had employed these
workmen, according to the Corporation. He is also impressed
upon to confirm the vacancy position which has been informed
by the Corporation to the Union during the years 1991 to 1995.
Mr. Apte would submit that he would have to take instructions
on the same. That apart, I have impressed upon Mr. Apte and
drawn his attention to the reasons returned by the learned
Industrial Tribunal in the Reference which has been answered in
so far as Issue Nos. 1 and 2 are concerned. I have read the first
3 Issues together with Mr. Apte in order to impress upon him
that in so far as Issue No. 3 is concerned, it is a consequential
issue and not an independent issue. Parties have led evidence
before the learned Industrial Tribunal which has been considered
by the said Tribunal. Consideration and findings on appreciation
of evidence are recorded in paragraph Nos. 15 to 19 of the
Award in so far as the members of the Union are concerned.
These are the workers who had actually worked in the Hospital
who have deposed. It is seen that in so far as the alleged
contractor M/s. Khankal Enterprises is concerned, none has
appeared for the said Contractor before the learned Industrial
Tribunal. Findings have been returned by the learned Industrial
Tribunal in paragraph Nos. 24 to 26 of the impugned Award and
after considering the legal position, Reference is answered partly
in the affirmative. Undoubtedly considering the above timeline,
it would be a difficult proposition to grant reinstatement and
back wages as opined by the learned Industrial Tribunal. This
aspect will have to be considered only after hearing Mr. Apte,
learned Senior Advocate for the Corporation. However
according to the pleadings and findings one thing is clear that
the workers have completed more than 240 days continuous
service in employment of the Hospital / Corporation and there is
no dispute on this aspect. Mr. Apte, learned Senior Advocate is
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therefore directed to obtain appropriate instructions and submit
to the Court on the next adjourned date accordingly.
10. This group of Petitions shall be treated as "Part-Heard".
Stand over to 10th October, 2023 at 2:30 p.m."
9. Even today when the Writ Petitions are heard by me finally, I
asked Mr. Apte to produce on record evidence of the Contract
Agreement between the Corporation and Respondent No. 3 - the
concerned Contractor or any correspondence or documentary evidence
to show that the workmen were employed through the Contractor.
Corporation has not produce any such evidence whatsoever before the
Tribunal neither it has produced any evidence before me. In that view
of the matter, the answers to Issue Nos.4 and 5 in the negative by the
learned Individual Tribunal cannot be faulted with. The said answers
deserve to be upheld and confirmed.
10. Next it is seen that according to the deposition of the
witnesses of the workmen, the nature of the work of these employees
was such that they were directly employed for carrying out regular
work for the Hospital and were working in the day to day activities of
the Hospital. It is seen that from the deposition that the Nurses,
Matrons, Mukadams and Superintendent of the Hospital used to
supervise their work and their attendance was marked in the work
attendance register along side with other permanent workers. That
apart their work was supervised, verified and ratified by the
supervisory employees of the Corporation. It is seen from evidence on
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record that these workers were employed in different shifts in day to
day activities of the Hospital and it is proved they have put in 240 days
of work in each calender year and were in continuous service prior to
their termination. The evidence placed on record before the Industrial
Tribunal in the Reference prima facie shows that the Corporation did
not produce any record of the year 1993 to 1995 of these workmen
whereas the workmen had produced the Inspection Report of their
shift schedules during the year 1994-1995 to prove their employment.
11. It is seen that Union led evidence of 3 witnesses before the
Industrial Tribunal and all 3 witnesses deposed on the basis of their
own appointment as well as documentary evidence pertaining to their
work of having worked in the Hospital. The documentary evidence is
discussed by the Tribunal in paragraph Nos.14 to 21 of the Award.
12. It is also seen that none of the witnesses of the Union were
discredited and Corporation was unable to lead any evidence in
rebuttal or place on record any incriminating material to disprove their
case. In so far as Corporation is concerned, it examined Dr. Rajeev R.
Korde as witness but he was not in a position to place on record any
documentary evidence of the Contractor's appointment or any
correspondence to that effect to prove that the workers were
appointed as employees by him.
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13. In cross-examination of the Corporation's witness, he has
infact admitted the work carried out by these workmen was integrated
work alongwith other permanent employees of the Corporation. He
has deposed that the said workmen were working as Ward Boys, Aayas
and Sweepers and were routinely monitored by the Nurses, Matrons,
Mukadams and Supervisors of the Hospital and their work was of a
permanent and perennial nature. Incidentally the witness of the
Corporation has himself deposed that he did not know who M/s.
Khankal Enterprises was and doubted existence of the Contractor
which is prima facie clinching evidence.
14. In so far as work carried out by the workmen is concerned,
witness of the Corporation has categorically deposed they worked in
the Hospital and carried out the work of the same cadre as that of
regular permanent employees of the Hospital qualitatively and
quantitatively and their attendance was marked in the ward and
attendance register alongwith the regular employees.
15. The aforesaid deposition of Corporation's witness is
considered by the learned Industrial Tribunal in paragraph No.23 of
the Award. Considering the aforesaid material qua the deposition of
the witnesses on behalf of the Union as discussed in paragraph Nos.14
to 21 and deposition of Corporation's witness in paragraph Nos.22 and
23, the learned Industrial Tribunal has discussed the documentary
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evidence on record in paragraph No.24 onwards and answered the
issues accordingly.
16. Sum and substance of the discussion of the documentary
evidence when read clearly shows that the workmen had produced
adequate documentary evidence to show that they had worked in the
Hospital along side other permanent workers as Ward Boys, Aayas and
Sweepers.
17. The learned Industrial Tribunal has returned a positive
finding that the Corporation has not produced the alleged contract
between the Corporation and the Contractor M/s. Khankal Enterprises
whereas juxtaposed to the inspection report and record files which
prima facie showed that the workers were employed in different shifts
and were also provided uniform by the Corporation.
18. The discussion by the learned Tribunal in paragraph No.14
onwards while answering the issues has led to the inevitable
conclusion that the workmen proved that they worked as employees of
the Corporation and their termination was illegal and without
following the due process of law. Further case of the Corporation was
also negated in it having claimed that there was a contract between the
Corporation and the alleged Contractor M/s. Khankal Enterprises who
was the real employer of the workmen. Once the learned Tribunal
concluded in answering the Issue Nos.1, 2, 4 and 5 in the affirmative
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and negative, then answer to Issue No.3 became a consequential
proposition. In that regard, learned Tribunal held that though the said
employees were in continuous service for more than 240 days in each
calender year, but the said workmen had worked only for a mere 2
years with the Corporation and the alleged termination had taken
place in the year 1995 and much time was spent in deciding the
Reference. The learned Tribunal has therefore concluded that in so far
as the grant of relief of reinstatement and full backwages is concerned,
considering this aspect and the fact that Reference itself remained
pending for more than 14 years after the alleged termination in the
year 1995 and the fact that condition of the Hospital run by the
Corporation is not good, in these facts and circumstances has instead
of granting reinstatement and backwages granted lumpsum
compensation of Rs.1 lakh to each worker in lieu of reinstatement
continuity of service and backwages which was directed to be paid
within a period of two months from the date of the Award.
19. It is seen that the Award was passed on 25.04.2019 and if
the Corporation was serious it should have paid the amounts to the
workmen by 24.06.2019. The Corporation has not paid the same
instead it has also filed Writ Petition No.10432 of 2023 in the year
2020 and kept the said Writ petition under objections until the year
2023. Writ Petition was numbered only in the year 2023 after removal
of office objections.
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20. Taking an overall view of the peculiar facts and
circumstances of the present case, it is seen that merely because the
Reference remained pending before the Industrial Tribunal for almost
14 years, the learned Tribunal has held that much water has flown
below the pool and therefore considering this situation lumpsum
compensation is awarded. In my opinion, such a conclusion is not
warranted in law. I am of the opinion that once the Industrial Tribunal
has come to the definite conclusion while answering Issue Nos.1, 2, 4
and 5 then as a sequitur of the said conclusion, Issue No.3 ought to
have been answered accordingly, rather by awarding relief of meagre
lumpsum compensation in terms of money to each worker it has not
done justice to the cause. This is because pendency of the Reference
before the Industrial Tribunal cannot be held against the workmen.
Delay in the legal system cannot be held against granting of
appropriate relief to the workmen. This would mean to say that if the
said Reference would have been decided within one year of its filing
then in all probability the Tribunal would have come to a different
conclusion and awarded them reinstatement with continuity in service
and backwages on the strength of overwhelming evidence.
21. Delay in deciding the Reference cannot be held in the way of
grant of appropriate relief to which the workmen are entitled to in law.
Once the Tribunal has come to the definite conclusion that these
workmen are employees of the Corporation; that they performed work
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alongwith all other permanent employees of the Corporation; that they
were inducted in the work of the Hospital; that their attendance was
marked alongwith other regular permanent employees of the
Corporation; that their work was supervised by the Nurses, Mukadams
and Supervisors of the Corporation; that their services were terminated
illegally and without following the due process of law; that the
Corporation failed to prove that they were appointed and employed by
a Contractor; that the Corporation and the Contractor both failed to
place on record the valid license of the Contractor under the Contract
Labour (Regulation & Abolition) Act, 1970, then as a sequitur of this
whole the workmen cannot be reinstated and payment of
compensation would be adequate, that too meagre compensation of
Rs.1 lakh each only because the Reference was decided 14 years after
it was filed and much water had passed below the pool in my opinion
is not a correct decision.
22. I am of the clear opinion that justice should not only be
done, but also seen to be done. The conclusion in the present case has
been arrived at only because of the delay in deciding the Reference
and nothing else. There is no other reason whatsoever to preclude the
Court to deviate from granting appropriate relief.
23. Hence, I am not inclined to accept the reasoning given by the
learned Industrial Tribunal in paragraph No.30 of the impugned Award
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while answering Issue No.3 in the negative and the same is not
sustainable and calls for interference of this Court. Answers given to
Issue Nos.1, 2, 4 and 5 are upheld and confirmed.
24. In view of the above, the following order is passed:-
(i) All workmen whose names are appended to the ULP
Complaint by the Union are directed to be reinstated
forthwith and shall join services in the Hospital in any
event within a period of one (1) week from today;
(ii) The workmen who will join shall not be entitled to any
back-wages or continuity in service but shall be entitled
to or retirement benefits in accordance with law;
(iii) Joining of the above workmen shall be confirmed,
scrutinized and verified by the Dean of the Rajiv Gandhi
Medical College and Chhatrapati Shivaji Maharaj
Hospital, Kalwa;
(iv) Union shall inform the names and details of those
workmen who have either passed the superannuation
age or have expired in the interregnum to the Thane
Municipal Corporation alongwith all details of the said
workmen. After due scrutiny by the Corporation of such
workmen who have either crossed the age of
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superannuation or have expired in the interregnum,
such workmen or either their legal heirs shall be
entitled to lumpsum compensation determined by this
Court at the rate of Rs.2 Lakhs per workman. The
determination of legal heirs shall be done by
Corporation on the basis of appropriate documentation
submitted by them; and
(v) The order of payment of lumpsum compensation of
Rs.1 lakh stands deleted and substituted by the above
order and directions.
25. Rest of the Award dated 24.05.2019 is upheld and
confirmed, save and except the aforesaid modification with respect to
answering Issue No.3 therein.
26. Resultantly Writ Petition No.2644 of 2020 partly succeeds.
Writ Petition No.10432 of 2023 fails.
27. Both the Writ Petitions are disposed in the above terms.
[ MILIND N. JADHAV, J. ]
28. After the judgment is pronounced in open Court, Mr. Apte,
learned Senior Advocate for Thane Municipal Corporation has
requested the Court to stay the judgment to enable the Corporation to
test validity of the judgment in the Superior Court. His request for stay
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is granted. Present judgment is stayed for a period of four weeks from
the date of uploading of this judgment.
[ MILIND N. JADHAV, J. ]
Ajay
AJAY TRAMBAK
TRAMBAK UGALMUGALE
UGALMUGALE Date: 2025.08.07
15:00:48 +0530
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