(Hrishikesh Roy and Prashant Kumar Mishra, JJ.)
Municipal Commissioner and Another _______________ Appellant(s);
v.
Aparna Anil Kesarkar ____________________________ Respondent.
Civil Appeal No. of 2024 (Arising out of SLP (Civil) No. 6556/2018), decided on February 13, 2024
The Order of the court was delivered by
Order
Leave granted.
2. Heard Mr. C.U Singh, learned Senior Counsel appearing for the appellant-Municipal Corporation of Greater Mumbai, which is operating the K.E.M Hospital in Mumbai. Also heard Mr. B.H. Marlapalle, learned Senior Counsel appearing for the respondent.
3. The respondent was selected for the post of Laboratory Technician following the interview held on 12.01.1999 and was appointed by the Office Order dated 15.01.1999 (Annexure P1) issued by Director (M.E. & M.H.) K.E.M., Hospital. Her ad hoc appointment was initially for a period of six months or till the candidate for regular appointment becomes available. Admittedly, the appellant after her initial six months of appointment with one day break, was re-appointed in the same post on ad hoc basis by the order dated 17.07.1999 (Annexure P-2) for a further period of 16.07.1999 to 15.10.1999 or till further orders, whichever is earlier. The service of the respondent No. 1 was discontinued on 31.12.1999 which led to the Complaint filed by her i.e., COM.(ULP) No. 53 of 2000 (Annexure P-4) along with two others, under Section 28 of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as “Maharashtra Act”).
4. The said complaint filed by the respondent with her two ousted colleagues came to be dismissed on 13.09.2007, by the Labour Court, Mumbai. The Court relied on the ratio in Secretary, State of Karnataka v. Uma Devi reported in (2006) 4 SCC 1, as one of the grounds for rejecting the Complaint filed by the respondent.
5. The above rejection led to a Revision application under Section 44 of the Maharashtra Act by the aggrieved respondent, before the Industrial Court, Mumbai. The Industrial Court observed that termination of the employee appointed on an ad hoc basis does not amount to retrenchment within the definition of 2(oo) of the Industrial Disputes Act, 1947 if the same is read with sub-Clause (bb) of the said provision. However, it was found that termination was not in good faith but in colourable exercise of powers. It therefore amounts to discharge of the employee not in good faith, under Clause I(B) of Schedule IV of the Maharashtra Act. Accordingly, direction was issued to the Corporation to reinstate the employee with continuity of service and full back wages or alternatively, to pay wages as that of a regular employee till a regular appointment is made in the post.
6. The above decision of the Industrial Court directing reinstatement of the respondent was challenged belatedly through a writ petition by the appellant. The High Court in the impugned judgment noted that when 8 vacancies of Laboratory Technician became available, a local advertisement was issued by the Municipal Corporation, whereafter an interview was conducted, and following the selection, ad hoc appointments were given to the respondent and other 7 selectees. Besides noting that the respondent was appointed following the local notice and a selection process, the High Court also opined that she had the requisite qualifications prescribed for the post of Laboratory Technician. It was further observed that the question mark raised by the Municipal Corporation on the respondent’s qualifications, was an afterthought. In the impugned order, the Court also noted that the ratio in Uma Devi (supra) cannot be applied to the present facts in as much as the respondent was qualified and was appointed through a process of selection from amongst applicants, who responded to the notice. The Court also observed that it is improper to deny back wages to the respondent. Hence direction was given for her reinstatement with full back wages. The writ petition then was dismissed under the impugned judgment dated 04.01.2018.
7. The presiding officer of the Labour Court at Mumbai while dealing with the COM.(ULP) No. 53 of 2000 by its interim order dated 25.10.2000 directed the appellant to continue the services of the complainant in the post of Laboratory Technician till regular candidates are appointed. The said interim direction came to be considered in a meeting held on 02.01.2002 for the 8 Laboratory Technicians who raised complaint under the Maharashtra Act to challenge their termination. Pursuant to the said meeting held on 02.01.2002 presided over by the Additional Municipal Commissioner together with the representatives of the Labour Union the following direction was issued:—
“1.: Out of these 8 candidates 4 candidates-belonging to various; reserved categories will be absorbed in the vacancies reserved for reserved categories, after obtaining approvals from competent authorities.
2. As regards 4 candidates belonging to open category, they will be taken on ad-hoc basis till suitable candidates were made available by following the due procedure after obtaining approval from competent authority.”
8. Following the above, 7 (out of the 8 Complainants who were part of the COM.(ULP) No. 53 of 2000 and COM. (ULP) No. 55 of 2000 respectively) were reinstated in service and these 7 are working as Laboratory Technician in the K.E.M. Hospital. The only person left out is the respondent.
9. The respondent is a person belonging to the OBC category and in terms of the decision for absorption taken in the meeting (2.1.2002) presided by the Additional Municipal Commissioner, it is apparent that she should have been amongst the 4, who should have been absorbed in the vacancies earmarked for the reserved categories. However, this was not done.
10. There is an adverse finding recorded against the appellant that while discontinuing the services of the respondent, they have indulged in unfair labour practice mentioned under the Schedule IV of the Maharashtra Act. The appellants may be right in their contention that since it was termination of service as a result of non-renewal of contract, it would not be “retrenchment” within the meaning of Section 2(oo) of the Industrial Disputes Act, 1947. Nevertheless, there is categorical finding by the authorities that discontinuation of service of the respondent was an unfair labour practice by the employer. The direction of the Industrial Court granting relief to the respondent with direction for her reinstatement with back wages was ordered as far back as on 21.07.2009 but the challenge by the appellant to the said order was belatedly made after six years, with the filing of the WP No. 2758 of 2015 in the Bombay High Court.
11. Considering the circumstances here and the fact that the respondent was appointed through a process of selection with 7 others and she was the only one who was left out of the benefit of reinstatement when direction for reinstatement was ordered in her favour along with the 7 others complainants, the discrimination of the respondent stands out starkly against the reinstatement, ordered for the similarly situated 7 Laboratory Technicians.
12. We are therefore of the opinion that indulgence cannot be shown to the appellant in a matter where there is a clear finding against them of unfair labour practice in discontinuing the services of the respondent. Accordingly, the direction for reinstatement of the respondent is sustained and the appellants are to ensure reinstatement of the respondent within four weeks from today.
13. In so far as the back wages is concerned, admittedly the respondent has not been in service since 31.12.1999 roughly for a period of 24 years. At this stage, we may notice the order passed by the High Court on 20.12.2013 in the WP No. 10881 of 2013, where the following consent order was passed between the appellant and the respondent:—
“(i) The amount of Rs. 22,92,800/- in terms of the Recovery Certificate shall be deposited by the petitioner in the Industrial Court within a period of 3 weeks from today.”
14. In the peculiar facts of this case, we are of the view that instead of allowing 100% back wages upon reinstatement of the respondent, the payable back wages should be quantified at Rs. 50,00,000/-. Since the appellant had deposited a sum of Rs. 22,92,800/- pursuant to the aforequoted order of the High Court, the said amount with accrued interest, if any, be remitted to the respondent. If the deposited amount with accrued interest is more than Rs. 50,00,000/, further amount need not be paid. However, if there is any shortfall for the back wages quantified at Rs. 50,00,000/-, the same shall be made good by the appellant within eight weeks of reinstatement of the respondent. It is ordered accordingly.
15. With the above order, the appeal stands disposed of. Pending application(s), if any, shall stand closed.
SLP (Crl.) No. 2443/2018
In view of the order passed today in Civil Appeal______/2024 @ SLP(Civil) No. 6556/2018, Mr. B.H. Marlapalle, learned Senior Counsel appearing for the respondents submits that the respondent will not pursue the miscellaneous criminal complaint COM.(ULP) No. 44 of 2000
Recording the said submission of the complainant’s counsel, the concerned proceedings pending before the Labour Court, Mumbai are ordered to be closed. Pending application(s), if any, shall stand closed.
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