Bombay High Court
The General Managar Greater Mumbai Milk ... vs Bhakti Gajanan Masurkar on 3 September, 2025
Author: Milind N. Jadhav
Bench: Milind N. Jadhav
2025:BHC-AS:36930
WP.10651.2025.doc
Ajay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10651 OF 2025
The General Manager, Greater Mumbai Milk
Scheme & Anr. .. Petitioners
Versus
Bhakti Gajanan Masurkar .. Respondent
....................
Ms. V.S. Nimbalkar, AGP for Petitioners - State
Mr. Shailesh S. Pathak, Advocate for Respondent
...................
CORAM : MILIND N. JADHAV, J.
Reserved on : AUGUST 21, 2025
Pronounced on : SEPTEMBER 03, 2025
JUDGEMENT:
1. Heard Ms. Nimbalkar, learned AGP for Petitioners - State
and Mr. Pathak, learned Advocate for Respondent.
2. Present Writ Petition challenges order dated 28.03.2024
passed by Industrial Court, Mumbai in Complaint (ULP) No.11 of
2024. The order dated 28.03.2024 is appended below Exhibit 'A' at
page no. - 14.
3. Briefly stated, Petitioners run and maintain distribution of
milk throughout Greater Mumbai and its suburbs. Petitioner No. 1
controls activities carried on by Government of Maharashtra under the
Greater Mumbai Milk Scheme, Worli and Petitioner No. 2 is
responsible for its day to day activities at the Central Dairy, Goregaon
East, Mumbai. Respondent was employed from 1985 in the Central
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Dairy until her retirement on 28.02.2019. Her last drawn salary was
Rs.36,400/-. Respondent was allotted residential quarter at Aarey,
Goregaon which was to be vacated within 3 months post retirement
date, however during that time Respondent fell ill and shifted to
Sindhudurg for treatment and did not return for the next few months.
3.1. In March 2020, Central and State Government declared
lockdown on account of COVID-19 pandemic, restricting transport and
other facilities. On 22.04.2022, Government Resolution was notified by
the General Administration Department which stated that penal rent
shall not be charged from officers and employees who failed to vacate
their premises from 01.08.2020 to 30.04.2022 post which penal rent
would be charged.
3.2. In 2022, after COVID-19 restrictions were lifted and
Respondent returned to Mumbai and handed over possession of her
residential quarters to Petitioners on 07.06.2022 after paying all
pending electricity and water charges.
3.3. On 16.01.2023 and 20.03.2023, notices were dispatched to
Respondent charging penal rent to the tune of Rs.23,23,047/-. On
25.10.2023, Respondent replied to the said notices stating that no
penal rent can be charged as per Government Resolution and that all
relevant documents for payment of pension and gratuity were filed.
However since no response was received to the letter, Respondent filed
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Complaint being Complaint (ULP) No.11 of 2024 under Item 5 and 9
under Schedule IV of the Maharashtra Recognition of Trade Unions
and Prevention of Unfair Labour Practices Act, 1971 (for short 'MRTU
& PULP Act') along with Application for interim relief in Industrial
Court at Mumbai seeking payment of gratuity and pension after
deducting penal rent at the rate of Rs.10/- per square foot for the
period of June 2019 to June 2022. The application was allowed
directing Petitioners to pay the gratuity amount with liberty to deduct
penal rent charges till 07.06.2022. Being aggrieved Petitioners filed the
present Writ Petition.
4. Ms. Nimbalkar, learned AGP for Petitioners would submit
that Order dated 28.03.2024 passed by Industrial Tribunal suffers from
several infirmities and displays total non application of mind. She
would submit that Item Nos. 5 and 9 of MRTU and PULP Act do not
apply to the facts of the present case and there is blatant disregard of
the principles of natural justice denying opportunity to Petitioners to
file reply to Respondent's Interim Application before passing the
impugned order.
4.1. She would submit that Respondent has failed to show and
prove any unfair labour practice engaged by Petitioners. She would
submit that Respondent retired in February 2019 and was required in
law to vacate her residential quarter within a period of 3 months from
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the date of her retirement i.e. May 2019. She would submit that
Respondent did not vacate her residential quarter until 07.06.2022,
hence was liable to pay penal rent as calculated in the notice dated
16.01.2023 appended at Exhibit 'B' Page No. - 50 of Petition. She
would submit that Respondent cannot be entitled to any benefit of
Government Resolution dated 22.04.2022 on the ground that she had
retired from service prior to issuance of the said Resolution and the
same applies prospectively only for retirements during the COVID - 19
period.
4.2. She would submit that Respondent retired as Class III
employee hence the Maharashtra Civil Services Rules will be applicable
to her case. She would submit that as per Rule 27 of the said Rules
Petitioners have the power to withhold pension. She would submit that
Petitioners do not fall into the purview of "industry", hence Respondent
has approached the wrong forum and instead she should have
approached the Maharashtra Administrative Tribunal. She would
submit that Respondent has already received retirement benefit of Rs.
14,80,023/- and also receives pension of Rs. 18,200/- per month along
with 53% dearness allowance as on date. Hence she would submit that
direction contained in the impugned order regarding payment of
gratuity amount is required to be set aside due to a substantial
outstanding amount of penal rent due and payable by the Respondent
to Petitioners.
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5. PER CONTRA, Mr. Pathak, learned Advocate for Respondent
supports the impugned order and would submit that Respondent is
entitled to payment of gratuity, pension and all retirement dues
receivable as per law on her retirement. He would submit Respondent
was employed by Petitioners since the year 1985 served 33 years
diligently with an unblemished service record until her retirement in
the year 2019. He would submit that Respondent was allotted
residential quarter in Aarey Colony, Goregaon, Mumbai which was to
be vacated within 3 months post her retirement. He would submit that
in the year 2019, Respondent fell ill and was operated, however due to
certain complications in her operation, she returned to her native place
in Sindhudurg to undergo ayurvedic treatment.
5.1. He would submit Respondent retired on 28.02.2019. He
would submit later COVID-19 pandemic struck and Central and State
Government issued lockdown orders which placed restrictions on
travel, transport and other facilities thereby preventing Respondent
from returning back to Mumbai to hand over possession of her
residential quarters.
5.2. He would submit that when Respondent returned to Mumbai
on 07.06.2022, she immediately handed over possession of her
residential quarter to Petitioners. He has drawn my attention to
Annexure 'A' at Exhibit 'B' appended to page no. 49 and 49A of
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Petition to corroborate his submission that possession of residential
quarters was handed over to Petitioners. He would submit that
Petitioners ought to have paid Respondent her gratuity and pension
amount immediately on her retirement. He would submit that all
requisite documents, forms, NOC's were submitted by Respondent and
no inquiry was pending against Respondent, hence Petitioners have no
basis in law to withhold payment of gratuity amount due to the
Respondent.
5.3. He would submit that Petitioners have informed the Pension
Department and issued Clearance Certificate along with Nomination
Form which was duly filled in and submitted by Respondent however
she was orally informed that pension and gratuity amounts cannot be
be disbursed until the outstanding penal rent was paid to Petitioners.
He would submit that as per Government Resolution appended to
Annexure 'F' in Exhibit 'B' at page no. 58, penal rent was to be excluded
for the period from 01.08.2020 to 30.04.2022 in the light of COVID-19
pandemic, hence Petitioners have no right to recover penal rent from
Respondent. He would submit that failure to apply the said
Government Resolution to Respondent's case amounts to unfair labour
practice under Item 9 under Schedule IV of the MRTU and PULP Act.
5.4. He would submit that many other employees of Petitioners
challenged imposition of penal rent before the City Civil Court,
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Mumbai. He would submit that order passed by the City Civil Court is
appended at Annexure 'G' before the Court below and at Page No.
Exhibit 'B' Page No. 60. He would submit that the City Civil Court by
order dated 10.01.2024 granted benefit of the Government Resolution
to several such similarly placed employees and directed them to
deposit arrears towards penal rent at the rate of Rs. 10/- per square
feet from the date of their retirement. He would submit that Petitioners
are also entitled to the same treatment.
5.5. He would submit that Industrial Court passed order in
Complaint (ULP) No. 259 of 2021 directing Petitioners to pay gratuity,
pension and GIS with liberty to deduct penal rent. He would submit
that Petitioners have placed Respondent on a different footing as
compared to similarly placed employees who have received favorable
orders from the City Civil Court, Mumbai for the levy of penal rent at
the rate of Rs. 10/- per square foot. He would submit that such
discrimination of the Petitioner needs to be considered by the Court as
unfair practice falling within Item 5 under Schedule IV of the MRTU
and PULP Act. He would urge the Court to pass appropriate orders in
the interest of justice.
6. I have heard Ms. Nimbalkar, learned AGP appearing on
behalf of Petitioners - State and Mr. Pathak, learned Advocate
appearing on behalf of Respondent and with their able assistance
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perused the record of the case. Submissions made by the learned
Advocates at the bar have received due consideration of the Court.
7. Material is placed on record appended from page no. 14
onwards until page no. 84 in the form of the impugned order,
application filed by Respondent, notices, Government Resolution,
forms, certificates, and orders passed by the City Civil Court and
Industrial Court to show that Respondent is not entitled to receive
gratuity until payment of penal rent. It is seen that Petitioners did not
file any reply to the complaint filed by Respondent before the
Industrial court and were directed to strictly argue the law points
hence the contention made by the Petitioner that Industrial Court did
not afford an opportunity to be heard is pressed. It is seen that
Petitioners have not placed any documentary evidence on record to
show any blemish on Respondent service record, hence the provision
of Rule 27 of Maharashtra Civil Service Rules, 1982 is prima facie not
applicable. It maybe true that Petitioners were denied with an
opportunity of filing reply but merely because of that the impugned
order cannot be set aside. Court's duty is to look into the cause of
action. Equally Court's duty is to bring finality to an issue which
deserved to be decided. Here is a case of a retired employee of the
government. Lis is only regard she overstaying in her government
quarter and required to pay penal rent. Admittedly she retired before
the COVID - 19 pandemic. However it is her case that COVID - 19
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pandemic precluded her from returning back to the city to handover
her quarter which was locked during that time. There is no dispute
about these facts. She has also shown her bonafides by handing over
her quarter immediately after the lockdown was lifted.
8. It is seen that the impugned order mentions certain
Miscellaneous Appeals allowed by the City Civil Court Mumbai of
similarly placed employees who could not surrender their quarters
during COVID - 19 pandemic period. One such order is appended at
Annexure 'G' at page no. 60 wherein it is held that employees of
Petitioner were entitled to benefit of Government Resolution and that
penal rent would be charged and calculated at the rate of Rs. 10/- per
square foot. It is also seen from the order passed by Industrial Court
appended at Annexure 'T' at page No. 66 that Petitioners are directed
to pay gratuity, provident fund and GIS along with liberty to deduct
penal rent charges accordingly. This is objected to by Petitioners. It is
seen that Respondent retired from service on 28.02.2019 which is prior
to issuance of Government Resolution, however it is seen that there is
no exclusion of officers or employees who retired prior to the
notification. Hence such officers and employees who are duly covered
and entitled to benefit under the aforementioned Government
Resolution will have to be extended the same benefit. It is seen that
despite the orders passed by the City Civil Court, Mumbai and
Industrial Court, Mumbai as well as Government Resolution,
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Petitioners have failed to apply the same to Respondent's case which
clearly amounts to unfair trade practice under Items 5 and 9 under
Schedule IV of the MRTU & PULP Act.
9. With regard to the submission made by Ms. Nimbalkar that
no opportunity was granted for hearing, I am not inclined to accept the
same. I am of the opinion that Government Resolution ought to have
been applied to the Respondent's case in the aforementioned facts. The
Respondent was genuinely precluded due to her illness which she was
nursing at Sindhudurg after her retirement. This is not a case where
Respondent was enjoying her stay in the residential quarter for which
penal rent is charged.
10. While taking into account the overall circumstances, the
impugned order in my opinion is a well reasoned order giving cogent
and reasoned findings in paragraph Nos.08 to 10 of the same. The said
order dated 28.03.2024 cannot be faulted with and does not call for
any interference of this Court.
11. The Order / Award dated 23.04.2024 is upheld and
confirmed. Resultantly, Writ Petition fails. Petitioners shall comply
with the said Order / Award forthwith and in any event within a
period of two weeks from today.
12. Writ Petition is dismissed.
[ MILIND N. JADHAV, J. ]
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13. After the judgment is pronounced in Court, Ms. Nimbalkar,
learned AGP for Petitioners - State persuades the Court to stay the said
judgment to enable the Petitioners to test the validity and legality of
the judgment in the superior Court.
14. I have considered the request made by Ms. Nimbalkar,
however considering the issue involved in the present case, inter alia,
pertaining to payment of gratuity, request for stay is rejected.
Ajay
[ MILIND N. JADHAV, J. ]
AJAY AJAY TRAMBAK
TRAMBAK UGALMUGALE
UGALMUGALE Date: 2025.09.03
13:00:06 +0530
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