Bombay High Court
The Commissioner, Nashik Muncipal ... vs Somnath Dayaram Bhalerao And Anr on 13 March, 2025
2025:BHC-AS:12552
Sonali Mane 20-WP-7799-2011.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7799 OF 2011
The Commissioner, Nashik
Municipal Corporation Nashik ... Petitioner
Versus
Somnath Dayaram Bhalerao and Anr. ... Respondents
Mr. M. L. Patil for the Petitioner.
Mr. Sukumar Ghanvat for Respondent No.1.
CORAM : SANDEEP V. MARNE, J.
DATE : 13 MARCH 2025.
ORAL JUDGMENT:
1) This Petition is filed by the Municipal Commissioner of
Nashik Municipal Corporation challenging the Judgment and Order
dated 17 February 2011 passed by the Member Industrial Court,
Nashik allowing Complaint (ULP) No. 15 of 2003. By the impugned
Order, the Industrial Court has set aside the reversion order dated
31 October 2002 by which Petitioner was reverted from the post of
Mechanic to the post Fireman with further directions for recovery of
excess wages paid to him.
MANE
SONALI
DILIP
2) Respondent No.1 was initially appointed as Fireman in
the Fire Brigade Department of the Petitioner-Municipal
Corporation on 19 April 1994. He held the qualification of SSC, a
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certificate course in firefighting from civil defence and course in
Diesel Mechanic from ITI. It appears that circular was issued
inviting applications from employees of various departments for
filing up the post of Mechanic, which required qualification of SSC,
Auto Repairing Course from Government approved institution, and
experience of five years as Assistant Mechanic or seven years as
Fitter or ten years as Helper. The Departmental Promotion
Committee recommended the name of Respondent No.1 for
promotion to the post of Mechanic after relaxing the educational
qualification and accordingly he was promoted by order dated
8 October 1997 to the post of Mechanic in the payscale of Rs.1320-
2040/-. However subsequently, the Audit Department raised an
objection to Respondent's promotion and accordingly, show cause
notice was issued to him on 6 March 2002. After considering the
reply of Respondent No.1, order dated 31 October 2002 was passed
reverting him from the post of Mechanic to the post of Fireman.
Excess wages paid were also sought to be recovered.
3) Respondent No.1 filed Complaint (ULP) No. 15 of 2003
before the Industrial Court, Nashik challenging the reversion and
recovery order dated 31 October 2002. The Complaint has been
allowed by the Industrial Court by impugned judgment and order
dated 17 February 2011 by setting aside the reversion and recovery
order dated 31 October 2002 with further direction to refund the
recovered amount to Respondent No.1. Petitioner-Municipal
Corporation has filed the present Petition challenging the impugned
judgment and order dated 17 February 2011 passed by the Member
Industrial Court, Nashik.
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4) By order dated 17 February 2011, this Court admitted
the Petition but did not grant any interim order. Despite non grant
of interim order by this Court, it appears that Petitioner-Municipal
Corporation has not implemented the Order passed by the Industrial
Court and did not reinstate Respondent No.1 as Mechanic. It
appears that the Respondent No.1 has retired from service on the
post of Fireman after attaining the age of superannuation on
30 June 2024. While paying him the retirement dues, it appears that
an amount of Rs. 2,23,662/- has been recovered from his retirement
benefits.
5) I have heard Mr. Patil, the learned counsel appearing for
the Petitioner and Mr. Ghanvat, the learned counsel appearing for
Respondent No.1.
6) There is no dispute to the position that Respondent No.1
did not hold the qualifications required for promotion to the post of
Mechanic. This aspect was considered by the Departmental
Promotion Committee. However, it appears that by Resolution No.
428 adopted by general body of Nashik Municipal Corporation on
20 June 1997, it was decided to relax the educational qualifications
for filling up the post of Mechanic and accordingly three candidates
were recommended for promotion to the post of Mechanic. So far as
Shri. A.V. Pardeshi is concerned, he was directed to be promoted on
the condition of passing Auto Mechanic Course within three years.
Shri. P.S. Bhoir was promoted after considering his experience and
relaxing the condition of passing Auto Mechanic Course. However so
far as Respondent No.1 is concerned, no condition was imposed.
Educational qualifications were not relaxed. He was directed to be
promoted after completion of the probation period. It appears that
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Respondent No.1 completed the probation period in the year 1997
and accordingly by order dated 8 October 1997, he was immediately
promoted to the post of Mechanic. Thus, as on the date of holding of
the selection, Respondent No.1 had not even completed probation on
the post of Fireman as he had joined the department on 19 April
1994. Even before he could complete the period of probation, the
general body passed a resolution for his further promotion to the
post of Mechanic. While the qualification of passing Auto Mechanic
Course was relaxed in the case of Shri. Bhoir considering his
experience and Shri. Pardeshi was directed to complete the said
course within three years, qua Respondent No.1 no such condition
was imposed, and he was unconditionally promoted immediately on
completion of his probation. In my view, therefore, there was gross
irregularity on the part of the general body of the Municipal
Corporation in directing promotion of Respondent No.1 to the post of
Mechanic even before he completed his probation on the post of
Fireman. Thus, the objection raised by the Audit Department was
perfectly valid. Mere delay in not taking corrective action on the part
of Municipal Administration could not vest any right in favour of the
Petitioner to continue on the post of Mechanic since he was never
eligible to hold the same. Mere delay in taking corrective action
cannot be a reason for continuation of perpetuating the illegality. In
my view, therefore, the Industrial Court has grossly erred in
allowing Complaint (ULP) No. 15 of 2003.
7) The only relief that needs to be granted in favour of
Respondent No.1 is by restraining the Petitioner-Municipal
Corporation from making any recovery of wages drawn on the post of
Mechanic during 8 October 1997 till reversion on 31 October 2002.
The promotion was not earned by Respondent No.1 through any
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misrepresentation. The period of recovery is in excess of five years.
Therefore, the judgment of the Apex Court in State of Punjab Vs.
Rafiq Masih (White Washer)1, would fully apply to the facts of the
present case. Thus the limited relief that needs to be granted in
favour of Respondent No.1 is to set aside recovery of excess wages
paid to him during 8 October 1997 to 31 October 2002.
8) It appears that the Petitioner-Municipal Corporation has
recovered the amount of excess wages paid for the post of Mechanic
from the retirement benefits. Since the recovery is set aside, the
recovered amount is required to be refunded to Respondent No.1
alongwith interest. It also appears that though Respondent No.1
retired from service on 30 June 2024, his pensionary benefits were
delayed, possibly on account of pendency of the present Petition as
well as on account of the issue of recovery. Therefore Respondent
No.1 would be entitled to interest in respect of delay in payment of
pension.
9) The Petition succeeds partly, and I proceed to pass the
following order:
i) Judgment and Order dated 17 February 2011
passed by the Member Industrial Court, Nashik in
Complaint (ULP) No. 15 of 2003 is partly set aside to the
extent of reversion order dated 31 October 2002.
ii) Reversion of Respondent No.1 from the post of
Mechanic to the post of Fireman effected vide order
dated 31 October 2002 is upheld.
1 AIR 2015 SC 696
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iii) Petitioner-Municipal Corporation shall however
not be entitled to make any recovery from Respondent
No.1 in pursuance of his reversion vide order dated
31 October 2002.
iv) The recovered amount shall be refunded to
Respondent No.1 alongwith simple interest at the rate of
6% per annum from the date of recovery till the date of
refund.
v) Petitioner-Municipal Corporation shall also pay
simple interest at the rate of 6% per annum on amounts
of retirement benefits during the period from 30 June
2024 till the date of actual payment of retirement
benefits.
10) With the above directions, the Writ Petition is partly
allowed. Rule is made partly absolute. There shall be no orders as
to costs.
[SANDEEP V. MARNE, J.]
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