Writ Petition Nos. 1823 of 2011, 1678, 6921 of 2012, 7892, 7897, 8729 and 10569 of 2015. Case: Ahmednagar Municipal Corporation, Ahmednagar and Ors. Vs Malan Kisan Asmar and Ors.. Bombay High Court

Case Number:Writ Petition Nos. 1823 of 2011, 1678, 6921 of 2012, 7892, 7897, 8729 and 10569 of 2015
Party Name:Ahmednagar Municipal Corporation, Ahmednagar and Ors. Vs Malan Kisan Asmar and Ors.
Counsel:For Appellant: Bedre V.S., Adv. and For Respondents: Barde Parag Vijay, Adv.
Judges:R. V. Ghuge, J.
Issue:Constitution of India - Articles 226, 227, 300A; Indian Evidence Act, 1872 - Sections 17, 21; Maharashtra Recognition of Trade Union & Prevention of Unfair Labour Practices Act, 1971 - Section 7
Judgement Date:April 06, 2016
Court:Bombay High Court


R. V. Ghuge, J.

  1. Heard learned Advocates for the respective parties.

  2. Since the issue involved in all these matters is identical, the petitioner is the same Municipal Corporation and since all the respondents are identically placed former employees of the petitioner/Corporation, I have taken up all these matters together by the consent of the parties.

  3. The first and the third petition have been admitted. As such, the second and fourth to seventh petitions are admitted.

  4. By consent, Rule is made returnable forthwith and all the petitions are taken up for final disposal.

  5. For the sake of clarity, the petitioner in all these matters will be referred to as the "petitioner" or the "Corporation" and all the respondents in these matters would be referred to as the "employees".

  6. Shri Bedre, learned Advocate on behalf of the Corporation has strenuously criticized the impugned judgments of the Industrial Courts delivered in Complaint (ULP) Nos. 254/1993, 472/1994, 197/1995, 193/1995, 38/1994, 119/1993, 261/1995, 41/1995, 45/1995, 51/1995 and 42/1995, which have been filed by the employees.

  7. Shri Bedre submits that the issue raised in these petitions is limited to as to whether the employees could be granted their retiral and pensionary benefits after having waived all such benefits in a proceeding before the Industrial Court.

  8. He submits that all the employees were working as Daily Wagers from and about 1981. They were granted benefits of permanency and regularization by the Industrial Court, vide its judgment dated 17.8.1998 delivered in a group of Complaints filed by the employees. There is no dispute that the said judgment of the Industrial Court has not been upset or set aside by this Court or by the Honourable Supreme Court.

  9. He submits that since the employees felt that the Corporation was delaying their regularization, they filed Complaint (ULP) No. 127 of 2002 seeking those benefits from the Industrial Court.

  10. Shri Bedre has drawn my attention to the pleadings in the Complaint (ULP) No. 127 of 2002, whereby the employees have harped upon an order issued by the Directorate of Municipal Administration dated 31.10.2002, by which the concerned 305 employees have been granted regularization w.e.f. 31.10.2002 subject to the conditions set out therein. He then points out the relevant Clauses set out in the said communication, thereby indicating that the primary condition while granting regularization to these employees was that they would waive their entire benefits for the tenure of service, prior to their dates of regularization. He further submits that by an earlier communication, dated 20.4.2001, the Directorate of Municipal Administration put forth the condition at Clause 7 that the employees would waive their monetary benefits and service benefits for the earlier period prior to their regularization.

  11. He, therefore, submits that paragraph Nos. 2 and 3 of the Complaint assumes importance since these employees had moved the Complaint (ULP) No. 127 of 2002 seeking directions to the petitioner to implement the order dated 31.10.2002 issued by the Directorate of Municipal Administration.

  12. In the above backdrop, he submits that the Industrial Court then proceeded to pass an order in Complaint (ULP) No. 127 of 2002 on 30.1.2002. A specific statement by the respondents that they are ready to forgo their rights arising out of the judicial orders was accepted and considering the said concession given by the employees, the Industrial Court allowed the Complaint in terms of the Government Resolution dated 31.10.2002, circulated through the Regional Director, Municipal Administration. He, therefore, submits that none of the respondent/employees were, therefore, entitled to any retiral or pensionary benefits if, otherwise, they were not eligible on account of having not put in qualifying service.

  13. He further submits that the order dated 30.1.2002, by which, Complaint (ULP) No. 127 of 2002 was allowed, has not been challenged by the employees before this Court and has attained finality.

  14. He further submits that eventually all these employees have retired from service and post retirement, they have put forth their claims for retiral and pensionary benefits under the Maharashtra Civil Services (Pension) Rules, 1982. Since the employer did not grant such benefits, these employees preferred Complaints under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short "the 1971 Act") which are mentioned herein above. By the impugned judgments, all these complaints were allowed and the petitioner has been directed to pay the retirement benefits like pension and gratuity to the concerned employees considering their total length of service from the date of joining as a daily rated employee. He submits that the Industrial Court failed to appreciate that the respondents had waived their monetary and service benefits for the past period prior to the dates of regularization and hence none of the employees could be said to be entitled for pensionary benefits as they have not put in the requisite years as permanent employees by way of qualifying service.

  15. He places reliance upon the judgment of the Honourable Supreme Court in the matter of...

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