Research › Search › Judgment

Bombay High Court · body

2014 DIGILAW 2098 (BOM)

Kokila Gujrya Padvi v. President

2014-10-01

R.V.GHUGE

body2014
JUDGMENT R.V. Ghuge, J. 1. Rule. Rule made returnable forthwith by consent of the parties and heard finally. 2. Both these petitions are being taken up together for hearing since the respondent/employer is the same, dates of termination is the same and the services rendered are also on identical position. The issue involved is also common in both the matters. 3. Learned Advocate for the petitioners has submitted the facts of the case in brief as follows : - (a) The date of birth of the petitioner Kokila in the First petition is 05/10/1949. (b) Her termination is by letter dated 17/12/2009 w.e.f. 21/12/2009. (c) She was working as a Hostel Superintendent with the respondents. (d) In the second petition, the petitioner Divlya @ Dinkar is born on 08/01/1950. (e) His termination is also by letter dated 17/12/2009 w.e.f. 21/12/2009. (f) The Zilla Parishad hostels are operated by respondent No.1 Trust. (g) Divlya was appointed as a Superintendent. (h) Respondent No.1 operates the hostel in a tribal area. (i) Service conditions of both the petitioners are regulated by the Government Resolution dated 15/07/1995 and 16/03/1998. (j) Both the petitioners are shown to have retired on 21/12/2009. (k) The purported order of retirement is stigmatic in nature. (l) Both the petitioners contend that they had been terminated by the respondent No.1. (m) The Government Resolution dated 15/07/1995 prescribes a condition that the employee shall not be terminated without obtaining the approval of the Zilla Parishad and new appointments shall not be made until the permission and approval is obtained for such proposal. (n) Undisputedly, the appointment was on full time basis. (o) The termination order was passed without obtaining the permission of the Zilla Parishad. (p) Both the petitioners challenged their termination before the Labour Court at Dhule by filing complaint (ULP) Nos. 1/2010 and 2/2010. (q) By judgment and order dated 29/09/2011, the Labour Court came to a conclusion that both the petitioners are workmen u/s 2(s) of The Industrial Disputes Act, 1947. However, their termination was held to be an order of retirement on account of having attained the age of retirement. (r) Both the petitioners preferred Revision (ULP) Nos. 30 and 31 of 2011 before the Industrial Court, Dhule. (s) By judgment and order dated 03/10/2013, both the revision petitions were dismissed. However, their termination was held to be an order of retirement on account of having attained the age of retirement. (r) Both the petitioners preferred Revision (ULP) Nos. 30 and 31 of 2011 before the Industrial Court, Dhule. (s) By judgment and order dated 03/10/2013, both the revision petitions were dismissed. (t) The Zilla Parishad, in its written statement, in paragraph No.9 has admitted before the Labour Court that prior permission of the Zilla Parishad was not obtained by respondent No.1 before effecting the termination/retirement. (u) Service conditions are not prescribed in relation to the services of the petitioners. (v) Age of retirement, either 58 years or 60 years, has not been prescribed by the respondents. (w) When no age of retirement was prescribed, respondent No.1 could not have retired the petitioners. (x) The Labour Court as well as the Industrial Court have lost sight of the fact that the termination is stigmatic. (y) Even if the order of termination is construed to be an order of retirement, the same could not have been stigmatic in nature. (z) The order of termination being stigmatic in nature, is non-est until the employer proves the charges against employee by following the due procedure of Law. (aa) It is, therefore, prayed that the petition be allowed and the petitioners be compensated by directing respondent No.1 to pay compensation for the hardships caused. 4. Mr. Deshpande, learned Advocate appearing on behalf of respondent No.1 has submitted in brief as follows : - (a) The petitioners were appointed under a scheme, for which the two government resolutions, referred above, have been made applicable. (b) Though the Government Resolution does not prescribe the age of retirement, by general law, the retirement age ought to be construed as 60 years, if not 58. (c) The Zilla Parishad has not come up with any such document so as to indicate that the services of the petitioners could be said to have been covered by the Maharashtra Civil Services Rules (Pension). (d) The petitioners cannot be held to be entitled for continuation in employment, only because no age of retirement is prescribed. (e) Petitioner Kokila attained the age of superannuation upon reaching 60 years of age on 05/10/2009. She has been retired on 21/12/2009. (d) The petitioners cannot be held to be entitled for continuation in employment, only because no age of retirement is prescribed. (e) Petitioner Kokila attained the age of superannuation upon reaching 60 years of age on 05/10/2009. She has been retired on 21/12/2009. (f) The petitioner Divlya stood retired on 07/01/2010 on attaining 60 years of age and his retirement was effected 17 days prior to the date of superannuation. (g) The order of retirement is not stigmatic in nature. (h) Though the petitioners are not workmen and have been held to be workmen by the Labour Court, respondent No.1 has preferred not to challenge the said conclusions. (i) Failure to obtain prior permission from the Zilla Parishad in relation to the two Government Resolutions, before effecting the retirement, is inconsequential since respondent No.1 has not terminated the services of the petitioners, but has in fact effected their superannuation. It, therefore, amounts to retirement. (j) Even if the age of 60 years is taken, as the age of retirement, the first petitioner gains no advantage and the second petitioner stands to earn 17 days last drawn wages. (k) Since the service conditions are not prescribed, the petitioners may make an application to the Government for seeking any benefits pursuant to their retirement and the same cannot be dealt with by respondent No.1. (l) Mr. Jain, learned Advocate appearing on behalf of respondent Nos. 2 and 3 concedes that respondent no.1 had not taken the permission of respondent No.2 before issuing the impugned orders to the petitioners. (m) The age of retirement has not been prescribed by the Government in relation to the petitioners. (n) Employees of the Zilla Parishad, falling in Class -III category, normally retire at the age of 60 years. (o) The petitioners are not entitled to any relief as against respondent Nos. 2 and 3. 5. Having heard the learned Advocates for the respective sides, I have gone through the petition paper book with their assistance. The date of birth of both the petitioners is not in dispute. The Zilla Parishad as well as respondent No.1 concedes that the age of retirement has not been prescribed in relation to the petitioners. Both the petitioners have been held to be workmen by the Labour Court and the said conclusions have not been questioned by either of the respondents before any competent Court. The Zilla Parishad as well as respondent No.1 concedes that the age of retirement has not been prescribed in relation to the petitioners. Both the petitioners have been held to be workmen by the Labour Court and the said conclusions have not been questioned by either of the respondents before any competent Court. Contention of respondent No.1 is that any interpretation in favour of the petitioners as regards age of retirement can at best be taken to be 60 years. 6. I find that the age of retirement applicable to workmen under the Model Standing Orders framed under the Industrial Employment (Standing Orders) Act, 1946 is prescribed at 58 years. Nevertheless, the age of retirement/superannuation can be agreed upon between the employer and the employee by way of a contract or agreement or settlement or an award. In the instant case, neither of these have been brought to my notice or even to the notice of the Labour Court or Industrial Court. 7. Nevertheless, I am unable to accept the contention of the petitioners that they should be continued in employment for life. In fact, Zilla Parishad or the State Government should immediately take up this issue and resolve this controversy by taking appropriate steps for prescribing the age of retirement for such employees. 8. The Labour Court as well as the Industrial Court have accepted the age of retirement as 60 years in relation to the petitioners. In the absence of any Rules prescribed or service conditions made applicable to the petitioners through any settlement, agreement or award, the Model Standing Orders could be said to be applicable to the services of the petitioners since they have been held to be workmen and the respondent is held to be an Industry. 9. Nevertheless, since both have crossed the age of 58 years, I find that it would not be appropriate to conclude that their age of retirement shall be 58 years so as to enable respondent No.1 to recover the wages paid to the petitioners post attaining the age of 58 years. 10. In the light of the peculiar facts as recorded above, I find it to be an academic exercise to go into the aspect of actual age of retirement, when the employer and the State Government have prescribed none in this context. 11. 10. In the light of the peculiar facts as recorded above, I find it to be an academic exercise to go into the aspect of actual age of retirement, when the employer and the State Government have prescribed none in this context. 11. Respondent No.1, in the second petition concedes that at best, the petitioner Divlya could earn 17 days wages for the premature retirement without prejudice to its contentions that the petitioners should have been retired at 58 years. Had respondent No.1 taken up this issue with respondent No.2 Zilla Parishad or State Government in order to find a resolution, the contention of 58 years of retirement could have been accepted/appreciated. Since respondent No.1, by itself, allowed the petitioners to continue up to the age of 60 years, it would be inappropriate to conclude that they stood retired at the age of 58 years. 12. So far as the order of retirement is concerned, I find that it is stigmatic in nature. Both the petitioners are almost 65 years of age today. Ends of justice would be met by directing respondent No.1 to withdraw the impugned orders of retirement and issue fresh orders of retirement without mentioning any act of mis-demeanor or mis deeds in such an order. In short, the order of retirement shall be an innocuous order and shall appear to be an order of retirement. 13. In the second petition, the fresh order of retirement should indicate that the petitioner Divlya has retired on 07/01/2010 and respondent No.1 shall pay the residual amount of 17 days wages to the said petitioner. So far as the petitioner in the first petition Kokila is concerned, though she has worked beyond the age of 60 years, respondent No.1 shall not cause any recovery from her. 14. With the above directions, both these petitions are partly allowed. The petitioners are at liberty to make a representation to respondent Nos. 2 and 3, Zilla Parishad as well as the State Government requesting to consider the aspect of retiral benefits to the petitioners since it is stated that the first petitioner Smt. Kokila had joined as Hostel Supdt. on 01/06/1975 and the petitioner Divlya had joined as Hostel Superintendent on 01/11/1972. 15. In the event, such a representation is made, respondent Nos. on 01/06/1975 and the petitioner Divlya had joined as Hostel Superintendent on 01/11/1972. 15. In the event, such a representation is made, respondent Nos. 2 and 3 shall forward the same to the State Government and the State Government shall accordingly consider them in light of any policy or rule and take a decision on the said representations within a period of 16 weeks. The decision taken shall be communicated to both the petitioners at the earliest. 16. Needless to state, respondent Nos. 2 and 3 are directed to take up the issue with the State Government urgently and within a period of 2 (two) months from today as regards the prescription for the age of retirement of employees similarly situated as like the petitioners. The appropriate authority should decide the said issue within six months therefrom and convey its decision to all such employees of the Zilla Parishads in the State of Maharashtra. 17. Rule is accordingly made absolute in the above terms. Copy of this judgment to be supplied to the learned A.G.P. for further action.