1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2579 OF 2009 Smt. Vanita N. Kadam, Municipal Kamgar Vasahat, Dr.Ambedkar Nagar, Line 13/14, Vasudeo T. Patil Road, Govandi, Mumbai 400 003 ..Petitioner. v. 1 The Municipal Corporation of Gr. Mumbai Mahapalika Building, Mahapalika Road, Mumbai 400 001 2 The Deputy Municipal Commissioner, 6th floor, Annex-Mahapalika Building, Mahapalika Road, Mumbai 400 001 3 The Chief Engineer, Solid Waste Management Department of MCGM, 4th floor, Shivaji Market Building, Mumbai 400 001 4 The Deputy Chief Engineer, Solid Waste Management Department of MCGM, 2nd floor, Worli Garage Building, Dr. E.Moses Road,, Worli, Mumbai 400 018 5 Shri B.D.Kadam, President, Industrial Court, Maharashtra, Mumbai. ..Respondents. Mr.Rohan Cama with Rima Bangale i/by M/s. Sanjay Udeshi & Co. advs. For the petitioner. Mr.A.Y.Sakhare, Sr Counsel with Shobha Ajit Kumar, advs. For the 2 Respondent/BMC. CORAM : F.I. REBELLO & J.H. BHATIA, JJ. DATED : MARCH 8, 2010 JUDGMENT: (Per J.H. Bhatia, J.) 1 Rule. Rule made returnable forthwith. With consent of the learned counsel for the parties, matter is taken up for final hearing immediately. 2 Petitioner’s first husband namely, Nathuram Kadam was in the permanent employment of the respondent no.1 municipal Corporation as scavenger and he was also occupying service accommodation provided by the Corporation. He died on 25.7.90 and after his death, petitioner being his widow and dependent, was given re- employment with effect from 10.4.1991 and was allowed to continue occupation of service accommodation. This appointment was made under the Preferential Treatment Rules (In short ‘P.T.Rules’) approved on 22.7.1980. As per the P.T.Rules, petitioner was required to maintain the old parents, children and other dependents of her deceased husband. As per the P.T.Rules, when a widow was given appointment, she would not be entitled to re-marry. The petitioner got re-married to Naresh Shyamrao Kamble on 9.5.1997 and, therefore, notice was issued to her 3 by the Municipal Corporation to show cause as to why her employment should not be terminated due to breach of the terms of the employment. She admitted re-marriage. Her service was terminated by the order dated 11.9.2001. According to her, termination was illegal. Petitioner made a complaint before the Labour Court against the unfair labour practices. Presiding Officer 11th Labour Court, Mumbai set aside the termination order holding that that the conditions against re-marriage in P.T.Rules are contrary to the provisions of Indian Constitution as well as Section 23 of the Contract Act. He directed the respondents to reinstate the petitioner with continuity of service and full back wages. That order was challenged by the respondents in Revision Application (ULP) No. 157/05. Revision Application was allowed by the Industrial Court holding that the labour Court had no jurisdiction to entertain challenge to the rules. In the result, the order passed by the Labour Court came to be set aside on 17.4.2007. This petition was filed on 25th February, 2009 challenging the order passed by the Industrial Court. 3 Heard the learned counsel for the parties. Perused the P.T.Rules framed by the Municipal Corporation under which petitioner was given employment on death of her husband Nathuram Kadam. It appears that main purpose of Rules 6 and 9 was to see that the 4 dependants of the deceased employee including widow, children and old parents are properly looked after and they are also accommodated in the service accommodation provided by the Corporation. Rule 5 provides against marriage of widow after getting preferential employment under the P.T.Rules. Possibly, the intention was to see that the other dependents of the deceased are taken care of and there was apprehension that if the widow, after getting employment, gets re-married, she would not take care of dependants of her former husband and it would cause difficulties to them. However, in our considered opinion, rule against re- marriage of the woman may violate her fundamental rights including right to life and liberty under Article 21 of the Constitution of India. The learned Senior Counsel for the Municipal Corporation made a statement that in 2007 Municipal Corporation has amended the rules and condition against re-marriage of widow after getting employment has been deleted. In our considered opinion, this was right decision on the part of Municipal Corporation,and, therefore, it is not necessary for us to enter into the question of validity of the rules particularly when writ petition has been filed almost 8 years after termination of service. In our considered opinion, purpose would have been served if after re-marriage, she would be given opportunity to take appropriate steps for proper 5 maintenance of dependants of the deceased husband. This could include payment of some part of her salary to such dependants. Therefore, the termination of the petitioner from employment is liable to be set aside. She has been pursuing for this relief since after termination though her approach to the labour Court might be wrong as Labour Court did not have jurisdiction to entertain a challenge to the constitutional and legal validity of the rules. The learned counsel for the respondents also brought to our notice that the action of termination of service was taken after a complaint was lodged by the mother of the deceased husband of the petitioner. In view of these circumstances, we find that the Municipal Corporation had terminated the service of the petitioner in view of the provisions of the Rules under which she was employed and there was no malafides on the part of the respondents. Now it is brought to our notice by the learned counsel for the petitioner that her mother-in-law, i.e., mother of the deceased husband of the petitioner also expired on 27.6.2008 and that out of three daughters, two are married and only one daughter is unmarried. Taking into consideration all the circumstances, in our opinion, the following order will meet the ends of justice. 1 Termination order dated 11.9.2001 is hereby set aside and the respondent no.1 is hereby directed to reinstate the petitioner to the 6 post she was holding on the date of termination. Orders for reinstatement be issued as early as possible so that she may resume the duties with effect from 1st April, 2010. 2 She would not be entitled to back wages from the date of termination till the end of termination. However, that period shall be counted for the purpose of continuity of her service, retirement benefit and all other benefits. That period will also be counted for the purpose of fixation of her pay in the prevailing pay-scale. 3 Petitioner shall allow unmarried daughter of her deceased husband to reside in the service accommodation provided to her. 4 She will also be liable to maintain unmarried daughter of the deceased husband as per law. In case of her failure to maintain her, if such a request is made by the unmarried daughter, 1/3rd share of the total emoluments of the petitioner shall be paid to the unmarried daughter from the deceased husband. 5 Family pension on account of death of deceased Nathuram Kadam shall continue to be paid to his unmarried daughter till she gets married. 7 Rule made absolute accordingly. Petition stands disposed off accordingly. (J.H. BHATIA,J.) (F.I. REBELLO,J.)