1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2313 OF 2005 Smt. Bhanji Shamji Maru ..Petitioner Vs. Brihan Mumbai Mahanagarpalika & Anr. ..Respondents Mr. S. A. Kumbhakoni i/b Mr. Vikram V. Pai for the Petitioner Ms. T. H. Puranik for BMC Respondents CORAM: DR. D.Y. CHANDRACHUD, J. DATE: 9th November , 2009 P.C. : 1. The proceedings under Article 226 of the Constitution have been instituted by the widow of a deceased employee of the Municipal Corporation seeking i) Setting aside of an order dated 18 th December 1995 removing the employee from service; ii) Payment of all consequential service benefits including pensionary benefits; and iii) Compensatory employment to her daughter-in-law. 2 2. An Affidavit in reply has been filed by the Municipal Corporation opposing the grant of relief . 3. The Petitioner’s spouse, Shamji Maru, was appointed on a temporary basis with effect from 13 th August 1976 and subsequently on a permanent post on 1 st January 1989. He was working as a labourer in the Solid Waste Management Department in the ‘N’ Ward of the Municipal Corporation. He remained absent from work without sanctioned leave from 10 th December 1991 to 1 st March 1995. The averment in paragraph 4 of the Petition is that he had in December 1991 “ suddenly received a bad stroke, as a result of which, there was a mental development and he was required to be admitted in KEM hospital”, and as a result, he was not in a position to resume duties. A regular departmental inquiry was held and a charge sheet was served upon the employee for unauthorised absence. The charges were held to be proved. A notice to show cause was served upon the employee. By an order dated 18 th December 1995 the employee was removed from Municipal service. The employee died on 30 th November 1998. During the three years that elapsed between the passing of the order and the date of death, the employee did not challenge the order in the Labour or Industrial Court. A Departmental Appeal preferred by the employee who was a 3 workman, was dismissed on 9 th February 1998. In the Affidavit in reply, it has been stated that he was paid his provident fund dues, which were accepted without protest. 4. The challenge to the order of removal from service cannot be entertained in proceedings under Article 226 of the Constitution. For one thing, nearly 14 years have elapsed since the order of removal and even after dismissal of the departmental appeal over 11 years have elapsed. Secondly, the employee and the Petitioner had an efficacious alternative remedy under the Industrial law, which has not been taken recourse to. The employee was a workman within the meaning of section 2(s) of the Industrial Disputes Act, 1947. 5. The plea for the grant of compensatory appointment has been opposed for valid reasons. The Petitioner herself is working as a labourer in the ‘N’ Ward of the Solid Waste Management Department and is drawing a monthly salary of Rs.15,270/-. The Petitioner was appointed with effect from 13 th September 1974. The Petitioner has been alloted Municipal staff quarters from 30 th August 1995 at Byculla. The Petitioner’s son is also working as a labourer in the ‘M’ East Ward of the Solid Waste Management Department since 1 st September 1995 and is drawing a monthly salary of 4 Rs.16,187/-. The total income of the family works out to Rs.31,457/-. In these circumstances, it has been submitted on behalf of the Municipal Corporation that, under the P. T. employment Rules of the Solid Waste Management Department, approved by Municipal Commissioner on 22 nd July 1980, compassionate employment cannot be granted to the daughter- in-law of the Petitioner. 6. The well-settled position in law governing compassionate employment is that such employment is not a matter of right. The object of the provision is to ensure that a family of an employee who dies in harness is provided with gainful employment to tide over the crisis. Similarly, the Municipal Corporation has stated that the case for grant of compassionate pension to the Petitioner cannot also be acceded to, having regard to the family background and the financial condition of the Petitioner as already noted. The Petitioner and her son are in the employment of the Municipal Corporation and are gainfully engaged. 7. In these circumstances, no case for interference under Article 226 of the Constitution is made out. The Petition is dismissed. (Dr. D.Y.Chandrachud, J)