1 W.P.No.562.97 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 562 OF 1997 Solapur Municipal Corporation, Solapur ... Petitioner v/s Shri Macchindra Girappa Kshirsagar & ors. ... Respondents Mr.V.B.Naik i/by S. Kulkarni for the petitioner. Mr.Mohan Pungaliya for the respondents. CORAM: SMT.NISHITA MHATRE, J. DATED: 14TH FEBRUARY, 2011 ORAL JUDGMENT: 1. The order challenged in the present petition has been passed by the Industrial Court in Complaint (ULP) No.169 of 1987. By the impugned order, the Industrial Court has declared that the petitioner Corporation has committed an unfair labour practice under Item 6 of Schedule IV of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1971 (in short, the M.R.T.U. & P.U.L.P. Act). It has further directed the Corporation to 2 W.P.No.562.97 confer the status and privileges of a permanent employee on the complainant Machindra Girjappa Kshirsagar who has expired during the pendency of the present petition. 2. The workman i.e. the complainant, had joined service with the Corporation in the year 1976 in the Garden Department and was paid wages on a daily rate. As he had been made to work on a temporary basis for years together by the Corporation, he filed a complaint under Item 6 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. In his complaint he contended that he had not been accorded the permanent status only with a view to deprive him of the benefits of permanency. In its reply the Corporation contended that it had no sanctioned post in order to accommodate the workman. It also pleaded that the appointment of the workman was irregular as the required procedure for appointment had not been followed. After the evidence was led by the parties, the Industrial Court passed the impugned order. It directed the Corporation to confer the status of permanency on the workman on completion of five years’ continuous service with the Corporation. In these circumstances, it was found that he was entitled to permanency with effect from 1981. 3 W.P.No.562.97 3. It appears that, while the complaint was pending, the workman was made permanent in service on 27.4.1992 on the basis of a seniority-cum-waiting list which was maintained by the Corporation. The workman retired from service on 30.10.1994. He was paid livelihood allowance regularly as he had not completed 10 years of permanent service and, therefore, was not entitled to pension in view of Rule 30 of the Maharashtra Civil Services (Pension) Rules. 4. It appears that the Corporation has been implementing a scheme for regularization of employees who are appointed on daily wages by them. An affidavit has been filed on 29.1.2011 by the Assistant Municipal Commissioner of the Corporation indicating that the scheme for regularization dated 13.12.1995 was being implemented and that a large number of daily wage earners had been regularized in service. It is pointed out that this Court had taken a note of the scheme in L.P.A. No.142 of 1995 which was decided on 18.8.2004. 5. It appears that the workman had, by his letter dated 20.12.2001, requested the Corporation to settle his pending dispute out of the Court. He offered to forgo the arrears that he was entitled to under the order impugned in the present petition on condition that the benefits under the Scheme of 4 W.P.No.562.97 13.12.1995 were extended to him. This was because under the Scheme the workman would have been entitled to pension instead of livelihood allowance. 6. An affidavit has been filed by the Assistant Municipal Commissioner of the Corporation setting out the details of difference of calculation of the amounts payable to the workman in the event the offer contained in his letter dated 20.12.2001 was accepted. 7. Without going into the merits of the matter and in view of the peculiar facts and circumstances of the case, where the workman who was employed by the Corporation has expired, in my opinion, it would be appropriate to end the present controversy by directing the Corporation to accept the proposal of the workman contained in his letter dated 20.12.2001. 8. The workman must be deemed to have been made permanent under the Scheme dated 13.12.1995 which is implemented by the Corporation. It appears from the affidavit of the Assistant Municipal Commissioner that the workman would have been entitled to `3,80,885/- as pensionary benefits under the aforesaid scheme. He, and after his death, his heirs have already received `71,850/- as 5 W.P.No.562.97 livelihood allowance. Thus, the respondents would be entitled to `3,09,035/- as pensionary benefits as also `9,607/- which is payable as gratuity. 9. Thus, without creating a precedent and only because of the peculiar facts and circumstances of this case where the workman who has expired, had proposed to the Corporation that the dispute between them be settled in the aforesaid manner, that the following order is being passed :- O R D E R (i) The impugned order dated 26.8.1994 is quashed and set aside. (ii). The workman shall be deemed to have been made permanent under the Scheme dated 13.12.1995 and would therefore be deemed to have been entitled to the benefits of the Scheme. (iii) The Corporation shall pay an amount of `3,18,642/- to the respondent i.e. wife who is heir and legal representative of the workman, within four weeks from today. (iv) The writ petition is disposed of accordingly. 6 W.P.No.562.97 10. Rule made absolute accordingly. No order as to costs. 11. It is however made clear that the present order will not be used as a precedent in any other case as it has been passed in the peculiar facts and circumstances of the present case. .....