[Cites 6, Cited by 0]
Bombay High Court
Brihan Mumbai Electric Supply vs Suvarna Sambhaji Yadav on 29 April, 2026
2026:BHC-OS:11047
NEETA SAWANT 687 of 2020.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 687 OF 2020
Brihan Mumbai Electric Supply
and Transport Undertaking ....Petitioner
: Versus :
Smt. Suvarna Sambhaji Yadav ....Respondent
Mr. Vishal Talsania (Through VC) with Ms. Meghna Vijan i/b Mr. Sagar
Shetty, for the Petitioner.
Mr. Chandrakant G. Jadhav with Mr. Sunil V. Patil, for the
Respondent.
CORAM : SANDEEP V. MARNE, J.
Reserved On: 17 April 2026.
Pronounced On: 29 April 2026.
Judgment:
1) Brihan Mumbai Electric Supply and Transport Undertaking
(BEST) has filed the present Petition challenging the judgment and
order dated 13 February 2019 passed by the President, Industrial Court,
Mumbai, allowing Complaint (ULP) No.24 of 2017 and directing the
Petitioner to reinstate the Respondent on the post of Bus Conductor
with full backwages w.e.f. 9 April 2016.
2) Petitioner-BEST is public utility, which distributes and
supplies electricity in the island city of Mumbai and provides mass
public transportation in the city of Mumbai and in the neighboring
areas. Husband of the Respondent Mr. Sambhaji Yadav was employed as
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Bus Conductor with the Petitioner. He passed away while serving with
the Petitioner. The Respondent applied to the BEST for compassionate
appointment. She was engaged on contract basis since August-2011 as
a Sweeper in the Traffic Department. It is the case of the Petitioner that
the Respondent remained absent from July-2014. She was issued
Memorandum dated 14 August 2014. She failed to report for duties. By
letter dated 9 October 2014, her services were terminated.
3) The Respondent made Application dated 15 January 2015
for appointment on the post Bus Conductor on compassionate grounds.
Her application was considered and she was made to fill up a
Declaration Form in which she declared that no police case was
pending against her and that she was not an ex-employee of BEST. She
was subjected to medical examination. She was deputed for training on
14 March 2016. She successfully completed the training. However, the
Petitioner did not appoint her. She filed Complaint (ULP) No.24 of 2017
under Maharashtra Recognition of Trade Unions and Prevention of
Unfair Labour Practices Act,1971 (MRTU & PULP Act) before the
Industrial Court, Mumbai. The Complaint was resisted by the Petitioner
by filing written statement. The Respondent examined herself. The
Petitioner led evidence of two witnesses. After considering the
pleadings, documentary and oral evidence, the Industrial Court
proceeded to allow the Complaint (ULP) No.24 of 2017 vide judgment
dated 13 February 2019. The Industrial Court has held that the
Petitioner has indulged in unfair labour practices under Item 9 of
Schedule 4 of the MRTU & PULP Act. The Industrial Court has directed
reinstatement of the Respondent on the post of Bus Conductor with
directions to pay full backwages w.e.f. 9 April 2016. Aggrieved by the
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judgment and order dated 13 February 2019 passed by the Industrial
Court, Petitioner has filed the present Petition.
4) By order dated 6 February 2020, the Petition came to be
admitted, and the impugned judgment and order of the Industrial Court
was stayed. The Petition is called out for final hearing.
5) Mr. Talsania, the learned counsel appearing for the
Applicant submits that the Industrial Court has erred in allowing the
Complaint filed by the Respondent. He submits that the Respondent
was not offered appointment by the Petitioner at any point of time. The
Respondent grossly suppressed the factum of she being an ex-employee
as well as about pendency of the FIR against her. That the BEST is
entitled not to appoint a candidate, who has indulged in gross
suppression of facts. The Industrial Court has erroneously arrived at a
surmise that the appointment order was issued to the Respondent but
the same was taken back. That such interference is raised on the basis
of probability in absence of any concrete evidence. He submits that the
Industrial Court has erroneously proceeded to ignore the issue of
suppression of FIR by holding that the Respondent was never arrested
and that mere registration of the FIR cannot be a reason for non-
appointment of the Respondent. He further submits that the findings
recorded by the Industrial Court on the issue of suppression of past
employment in paragraph 15 of the Judgment is perverse. That the
Industrial Court has perversely held that there was no column seeking
details of previous employment. He submits that the Petitioner was not
under any obligation to communicate result of selection of the
Respondent. That mere non-grant of written intimation about refusal
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to appoint cannot be a ground for granting relief of appointment in
favour of the Respondent. He submits that the Industrial Court
erroneously directed 'reinstatement' to the Respondent ignoring the
position that she was never appointed. That direction to pay full
backwages is also erroneous considering the fact that the Respondent
did not work even for a single day. That the impugned order has
directed the Petitioner to pay 100% backwages for the last 10 long years
even though she has not worked with the Petitioner at any point of
time. He therefore prays for setting aside the impugned order.
6) The Petition is opposed by Mr. Jadhav, the learned counsel
appearing for the Respondent, who submits that the Industrial Court
has correctly appreciated the entire evidence on record for holding that
the Petitioner has indulged into unfair labour practices. He submits
that the Declaration Form was submitted by the Respondent on 23
April 2015 whereas false FIR is lodged against her on 1 April 2016. That
therefore there is no question of suppression in respect of the FIR. The
FIR is otherwise false as the money was allegedly taken by Sharad
Rajguru and the FIR does not indicate that any money is paid to the
Respondent. That the Respondent was not an ex-employee of the BEST
and therefore there was no need to make any declaration in that regard.
Mere engagement of Respondent on daily wage basis does not convert a
person into 'employee' of BEST. That therefore there is no suppression
in the present case. He submits that the Respondent is a widow, who is
denied compassionate appointment on erroneous considerations. That
the Petitioner did not even bother to give an intimation to the
Respondent with regard to outcome of her selection. The Respondent
has admittedly undergone training. That she is poor lady, who is made
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to suffer because of the arbitrary actions of the Petitioner. That the
Respondent was admittedly never arrested and mere lodging of a
baseless FIR cannot be a reason for denial of employment on
compassionate basis. On above broad submissions, Mr. Jadhav would
pray for dismissal of the Petition.
7) Rival contentions of the parties now fall for my
consideration.
8) The case involves peculiar circumstances where the
Respondent is not appointed on the post of Bus Conductor on
compassionate grounds but on account of declaration made by her in
the Verification Form submitted on 23 April 2015. The Petitioner did
not give any written intimation to the Respondent communicating
decision of non-appointment on compassionate grounds. However,
after filing of complaint of unfair labour practice, the Petitioner
divulged the reason for non-appointment of the Respondent by
pleading in paras-6, 7(c) and (d) of Written Statement in Complaint
(ULP) No. 24 of 2017 as under:
6. With reference to paragraph 2 of the Complaint, the Respondent
specifically denies that it has engaged in any unfair labour practices
under Item No.9 of the schedule IV of the MRTU & PULP Act, 1971 on
and from 12.04.2016. The complainant be put to strict proof thereof.
7 (c) Thereafter, the Complainant made a fresh application dated
15.01.2015 for the post of Bus Conductor on compassionate grounds.
As per the procedure followed in the Respondent Undertaking, the
Complainant was called for verification of documents on 23.04.2015.
At the time of verification, the candidates are given a form in which
they are required to fill in details regarding name, address, date of
birth, qualifications, details of licence issued by Regional Transport
Authority as also other details such as whether or not any police case
pending against the applicant and whether the candidate has worked
previously in the Undertaking. The Complainant did not disclose that
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she had previously worked in the Respondent Undertaking on the said
form and has signed the same stating that the information furnished
by her in the said form is correct and if found false, her selection and
appointment to the post of bus conductor will stand terminated
forthwith.
d) Since there was nothing adverse on the basis of information
provided by the Complainant in the form, she was referred to the
Medical Department for ascertaining her physical/medical fitness for
the post of Bus Conductor. On receipt of the Fitness Certificate of the
Complainant, she was posted for training from 14.03.2016. During the
fag end of the training period of the Complainant, it was brought to
our notice that the Complainant had worked previously in the
Respondent Undertaking and was doing cleaning/sweeping job on
daily wages from August 2011 to September 2014 As per the order of
the Industrial Court in Complaint (ULP) No.546 of 2012, the widows
who were engaged for cleaning/sweeping work were absorbed in
regular employment and paid arrears. Accordingly, the Complainant
who had worked on daily wages in the Undertaking for doing
cleaning/sweeping work is also entitied for arrears as per the Court's
order The Complainant was informed vide letter No.AM(Tr.)
(Gen.)/22273/2016 dated 28.07.2016 to collect her arrears Hereto
annexed and marked ANNEXURE-Ill is the copy of Memorandum
dated 28.07.2016 alongwith receipt of Registered A.D. and
acknowledgement dated 08.08.2016. Subsequently, she was informed
vide another letter No.AM(Tr)/Gen./25067/2016 dated 25.08.2016 that
her arrears payment is ready and she should collect the same. Hereto
annexed and marked ANNEXURE-IV is the copy of letter dated
25.08.2016. However, she has not collected the same till date.
Subsequently, it was also brought to the notice that an FIR has been
lodged against the Complainant in the Govandi Police Station under
Section 420, 465, 468, 471 and 34 of the Indian Penal Code for
demanding and accepting bribe of Rs.50,000/- for providing
employment in Government Offices and thereafter offering transfers
as desired Hereto annexed and marked ANNEXURE-V is the copy of
FIR No.69/16 dated 01.04.2016 alongwith statement of Kum. K.R.
Makandar dated 01.04.2016, letter by Govandi Police Station dated
10.08.2016, application dated 21.08.2016 etc. She has also prepared
false documents (Employment Order) by using fake Government seals
and authentications. The said case is still pending. In view of the
serious nature of complaint against her as also that she has
intentionally withheld the fact that she had previously worked in the
Undertaking, the Complainant was not considered for employment as
Bus Conductor in the Undertaking
The Respondent further submits that on 12.09.2016, a reply to the
notice issued by the Complainant's advocate was also sent to him.
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9) Thus, the Written Statement filed before the Industrial
Court stated two reasons for non-appointment of the Respondent viz.
(i) pendency of serious nature of complaint against her by FIR dated 1
April 2016 and (ii) intentional withholding of the fact that she had
previously worked with the Undertaking.
10) There is allegation that Respondent has suppressed the
information relating to pendency of FIR. This is based on the
Verification Form submitted on 23 April 2015 whereas, the FIR came to
be lodged on 1 April 2016. As of filing of the Verification Form, no FIR
was pending against the Respondent.
11) So far as the ground of non-disclosure of previous
employment with the Undertaking is concerned, in my view, denial of
appointment on that ground is totally arbitrary. The Respondent was
merely engaged on daily wage basis as a Cleaner/Sweeper vide order
dated 13 September 2011. The engagement was not at a fixed place and
for the purpose of cleaning bus stops, refilling of drinking water, filling
of water in radiator of buses at different bus stations of BEST such as
Ghatkopar Railway Station, Ghatkopar Road-4, Santacruz, Vikhroli, etc.
She was supposed to attend to different Bus Stations from Monday to
Saturday and was not entitled to any pay for Sundays. The appointment
was on consolidated wages of Rs.4,000/- per month. The engagement
was on contract basis from 14 September 2011 to 31 December 2011.
12) Mere engagement on contract basis cannot be treated as
attaining the status of 'ex-employee' within the meaning of Column-11
of the Verification Form. Column-11 of the Verification Form was as
under:
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११. आपण उपक्रमाचे माजी कमचारी आहात का? (असल्यास तपशि ल द्यावा).
नाही.
11. Are you ex-employee of Undertaking (if yes give details).
NO
13) Thus, only an ex-employee of BEST was required to make a
positive declaration as per the Verification Form. The Respondent was
engaged on contract basis from 13 September 2011 to 13 July 2014 and
did not attain status of employee of BEST. In my view, therefore mere
negative declaration given in the Verification Form clearly could not
have been a reason for denial of compassionate appointment for the
Respondent.
14) Also of relevance is the fact that the Form was supposed to
be filled up only by 'Badli' Conductor whereas the case of the
Respondent was being considered for grant of compassionate
appointment on permanent basis. Therefore, it is highly questionable
as to whether filling up of such Declaration was really necessary by the
Respondent. In my view therefore non-disclosure of information
relating to contractual engagement could not have been a reason for
denial of compassionate appointment to the Respondent. As a matter
of fact, Petitioner had erroneously engaged Respondent on mere
contract basis instead of considering her case for permanent
appointment on compassionate grounds. It is only after Petitioner
received a slap on the wrist vide order dated 30 October 2014 passed by
the Industrial Court in Complaint (ULP) No. 546 of 2007 that it decided
to consider cases of widows for compassionate appointment.
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15) In such circumstances, Petitioner cannot be permitted to
take benefit of its own wrong in utilizing the services of the
Respondent on contract basis and thereafter cite the pretext of non-
disclosure of details of that engagement as a ground for not appointing
Respondent on compassionate ground. The termination of Respondent
as contract Sweeper would also hardly matter. The engagement itself
was casual in nature on meagre amount of consolidated wages.
Therefore the disinterest shown by the Respondent in continuing in
service as contractual sweeper cannot be ground for attaching any
disqualification to her.
16) So far as lodging of FIR against the Respondent is
concerned, the same was registered at the behest of Ms. Kausabi
Makandar. Her broad allegation in the FIR is that she met Respondent
on 18 August 2015 at Govandi Railway where Respondent promised her
to assist in securing job and introduced her to Mr. Sharad Rajguru. It
appears that Mr. Sharad Rajguru showed the complainant fictitious
appointment order at Vardha and inquired with the Complainant as to
whether she was willing to accept posting at Vardha. Upon Complainant
expressing desire to work at Mumbai, he promised to secure transfer
order of the Complaint at Mumbai and accepted Rs.50,000/- and
thereafter disappeared. Since, the prosecution in respect of the
complaint is still pending, it is premature to make any observations
about contents of the FIR. However, it is seen that the main allegations
in the FIR in respect of preparation of fictitious appointment order and
receipt of Rs.50,000/- are against Mr. Sharad Rajguru. Beyond
introducing the Complainant to Mr. Rajguru, it does not appear that
there is any allegation against the Respondent in respect of the
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preparation of fictitious appointment order or acceptance of
Rs.50,000/- from the Complainant.
17) No doubt, the employer is entitled to consider the factum
of registration of FIR and it can deny appointment to a selected
candidate. Registration of FIR during selection process and before
actual appointment can be a ground for acquiring disqualification for
being appointed in government service. However, in the present case,
the Respondent is not a candidate for direct recruitment. She is a
widow of ex-employee of BEST. Her case was being considered for
compassionate appointment in order to provide support to the family
due to demise of the bread earner. Therefore, the case of the
Respondent cannot be put on the same pedestal as that of a candidate
selected in a selection process. Considering the role attributed to the
Respondent in the FIR and the fact that her case was being considered
for compassionate appointment, in my view, denial of appointment to
the Respondent even on the ground of filing of FIR against her does not
appear to be in order.
18) In the present case, the Petitioner did not even take pains
to inform the Respondent the outcome of the case for compassionate
appointment. It is only after the Respondent issued notice through
Advocate on 11 June 2016 that Petitioner divulged the reason for not
making appointment vide reply dated 12 September 2016. In that reply,
Petitioner falsely stated that 'similarly your client also hides the details of
FIR lodged against her in the Govandi Police Station'. As observed above,
the FIR was lodged on 1 April 2016 whereas the Verification Form was
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submitted on 23 April 2015. Therefore, the allegation of suppression in
relation to the FIR is clearly erroneous.
19) Considering the fact that the Respondent sought
compassionate appointment, in my view, denial of appointment only
on account of registration of FIR, not involving any serious allegations
against her, cannot be a ground for denial of compassionate
appointment to the Respondent. The Industrial Court has rightly
allowed the Complaint filed by the Respondent.
20) It is not really necessary to delve deeper into the aspect as
to whether appointment order was indeed issued to the Respondent or
not and whether it was taken back. This Court proceeds on an
assumption that no appointment order was actually issued to the
Respondent. However, denial of appointment on compassionate
grounds to the Respondent on both grounds of suppression of
information relating to ex-employment and pendency of FIR is found to
be not in order.
21) The Industrial Court has committed a slight error in using
the word 'reinstatement' in the impugned judgment and order dated 13
February 2019. Since the Respondent was never appointed in service of
BEST, there is no question of her reinstatement. Mere imparting of
training required for the post of Conductor cannot lead to a
presumption that Respondent was appointed in services of BEST.
Similarly, her past engagement as Sweeper on contract basis has no
connection with her regular appointment on compassionate grounds.
Therefore, instead of directing 'reinstatement', the Industrial Court
ought to have directed grant of appointment to the Respondent.
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22) The Industrial Court has awarded 100% backwages to the
Respondent from 9 April 2016. Considering the fact that the
Respondent has got herself embroiled in a criminal case, in my view,
award of 100% backwages in her favour does not appear to be in order.
By now, the period during which backwages would become payable is
also unduly long. Considering the peculiar facts and circumstances of
the case, in my view, ends of justice would meet if direction is given for
payment of 30% backwages to the Respondent from 9 April 2016.
23) Accordingly, I proceed to pass the following order:
(i) The judgment and order dated 13 February 2019 passed by
the Industrial Court, Mumbai in Complaint (ULP) No. 24 of 2017
is modified to the limited extent of reduction in the amount of
backwages from 100% to 30%.
(ii) Petitioner shall accordingly appoint the Respondent on the
post of Bus Conductor w.e.f. 9 April 2016 with only 30%
backwages from 9 April 2016 onwards.
(iii) The necessary order of appointment of the Respondent
shall be issued within a period of 6 weeks.
(iv) The entire period from 9 April 2016 onwards shall be
treated as period spent on duty for all purposes except for 100%
backwages.
24) The Writ Petition is partly allowed in above terms. Rule is
made partly absolute. There shall be no order as to costs.
Digitally
signed by
NEETA
SHAILESH
NEETA
SHAILESH
SAWANT
[SANDEEP V. MARNE, J.]
SAWANT Date:
2026.04.29
15:29:36
+0530
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