Back
2017 Supreme(Bom) 1706
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
RAVINDRA V. GHUGE, SUNIL K. KOTWAL, JJ.
Murlidhar Makdu Sapkale - Petitioners
Versus
The State of Maharashtra - Respondents
Writ Petition No. 2786, 2882 OF 2008
Decided On : 24-11-2017
Important Points
Subject
Labor Law - Unfair Labor Practices
Act Referred
Headnote
Compassionate Appointment - Municipal Council's Unethical Conduct - Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 - Section 28(1), Schedule IV - Government Resolution dated 04.10.1997
Fact of the Case:
The petitioners, fathers of petitioner No.2, sought quashing of judgments dismissing their complaints for unfair labor practices. They claimed compassionate appointment for petitioner No.2 after their medical retirements, which were based on questionable medical grounds.
Finding of the Court:
The court found that the fathers and the Municipal Council had manipulated the compassionate appointment process, misusing the policy and avoiding competition for recruitment. The court noted the reversal of the procedure and the lack of genuine need for compassionate appointment after 18 years.
Issues: The issues revolved around the appropriateness of referring the fathers' cases to a Medical Board, the validity of the Municipal Council's actions, and the misuse of the compassionate appointment policy.
Ratio Decidendi: The court held that the fathers and the Municipal Council were responsible for the unethical conduct and misuse of the compassionate appointment policy. It emphasized the need for genuine need for compassionate appointment and the proper procedure to be followed.
Final Decision: The court partly allowed the petitions, granting notional continuity of service to the fathers till their actual dates of retirement, but depriving them of wages for the said period due to their fraudulent conduct.
For the Petitioner:Mr. M.M. Bhokrikar, Advocate.
For the Respondent:Mr. Y.G. Gujrathi, A.G.P., Mr. P.R. Patil, Advocate.
RAVINDRA V. GHUGE, J.
1. Since both these Petitions are identical and since the petitioners are identically placed, we have taken up both these matters together for hearing.
2. The petitioners in Writ Petition No.2786/2008 have put-forth prayer Clauses 26-B, C & D, which read as under :-
26-B. The Order and Judgment passed by the Hon. Member, Industrial Court, Jalgaon in Complaint ULP No.4/2002 dated 18.10.2007 may kindly be quashed and set aside.
26-C. The appropriate writ may kindly be issued against the respondents to appoint the petitioner No.2 as per the resolution passed by the respondent No.3 by accepting the application preferred by the petitioner No.1.
26-D. The direction may kindly be issued to the respondent to appoint the petitioner No.2 as an employee in place of the petitioner No.1 who is retired from the respondent No.3 on medical ground.
3. The petitioners in Writ Petition No.2882/2008 have put-forth prayer Clauses 25-B, C & D, which read as under :-
25-B. The Order and Judgment passed by the Hon. Member, Industrial Court, Jalgaon in Complaint ULP No.5/2002 dated 18.10.2007 may kindly be quashed and set aside.
25-C. The appropriate writ may kindly be issued against the respondents to appoint the petitioner No.2 as per the resolution passed by the respondent No.3 by accepting the application preferred by the petitioner No.1.
25-D. The direction may kindly be issued to the respondent to appoint the petitioner No.2 as an employee in place of the petitioner No.1 who is retired from the respondent No.3 on medical ground.
4. These Petitions were earlier circulated before the learned Single Judge of this Court. By orders dated 04.12.2008, it was recorded that the petitioners do not desire to press Prayer Clause-B and would assert their claim only with regard to prayer Clause-C. By recording the said statement in the order dated 04.12.2008, the matters were placed before this Bench (Division Bench).
5. In the above backdrop, we have considered the submissions for the litigating sides in relation to prayer Clause-C reproduced as above.
6. While admitting these Petitions, this Court had declined interim relief to the petitioners.
7. Learned Counsel for the petitioners submits that petitioner No.1 in both these matters are fathers of petitioner No.2. Both the petitioners No.1 were in employment of the Municipal Council, Jalgaon, which is now converted into a Municipal Corporation. Petitioner No.1 in the first petition made an application for retirement on medical grounds to the Municipal Council on 09.06.1999. He was sent to the Civil Surgeon for medical examination. He was retired by the Municipal Council on medical grounds on 05.07.1999.
8. In the second Petition, petitioner No.1 had made an application on 16.02.2000. He was also sent to the Civil Surgeon for medical examination under the advise of the Municipal Council. He was also allowed to retire on medical grounds on 29.02.2000.
9. It is not disputed that the Municipal Council had passed a Resolution in both these cases accepting the applications of these two fathers and had allowed them to retire from the dates mentioned, on medical grounds based on the medical certificates issued by the Civil Surgeon.
10. Subsequent to the above events, the Municipal Council forwarded the applications of these two fathers along with their Resolution to appoint their sons i.e. petitioner No.2 in both these Petitions on compassionate grounds, to the Collector. The District Collector ordered the two fathers to be subjected to medical examination by a Medical Board consisting of three Doctors. It is not in dispute that the medical certificate issued by the Medical Board indicates that both these fathers were medically fit and there was no reason to declare that they are medically unfit to perform their duties. Based on the Medical Board's certificates, the applications of both these fathers were rejected.
11. The petitioners approached the Industrial Court, Jalgaon by filing two ULP Complai
