Bombay High Court
Shirish Govind Ketkar vs State Of Maharashtra Through Chief ... on 10 May, 2024
Author: M.M. Sathaye
Bench: Nitin Jamdar, M.M. Sathaye
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORIGINAL SIDE
WRIT PETITION NO. 913 OF 2024
Ajay Vasantrao Naik and another. ... Petitioners.
V/s.
State of Maharashtra and others. ... Respondents.
WITH
WRIT PETITION NO. 1743 OF 2024
WITH
WRIT PETITION NO. 2443 OF 2024
WITH
WRIT PETITION (L) NO. 15029 OF 2024
WITH
WRIT PETITION NO. 1183 OF 2023
WITH
WRIT PETITION NO. 1182 OF 2023
WITH
WRIT PETITION NO. 1343 OF 2023
WITH
WRIT PETITION NO. 3523 OF 2022
WITH
WRIT PETITION NO. 3536 OF 2022
WITH
WRIT PETITION NO. 1032 OF 2023
WITH
WRIT PETITION NO. 1034 OF 2023
WITH
WRIT PETITION NO. 1041 OF 2023
WITH
WRIT PETITION NO. 1057 OF 2023
WITH
WRIT PETITION NO. 917 OF 2023
WITH
WRIT PETITION NO. 870 OF 2023
WITH
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WRIT PETITION NO. 1012 OF 2023
WITH
WRIT PETITION NO. 970 OF 2023
WITH
WRIT PETITION NO. 1053 OF 2023
WITH
WRIT PETITION NO. 1165 OF 2023
WITH
WRIT PETITION NO. 3644 OF 2022
WITH
WRIT PETITION NO. 1052 OF 2023
WITH
WRIT PETITION NO. 1170 OF 2023
WITH
WRIT PETITION NO. 1137 OF 2023
WITH
WRIT PETITION NO. 1212 OF 2023
WITH
WRIT PETITION NO. 1018 OF 2023
WITH
WRIT PETITION NO. 647 OF 2023
WITH
WRIT PETITION NO. 1033 OF 2023
WITH
WRIT PETITION NO. 881 OF 2023
WITH
WRIT PETITION NO. 650 OF 2023
WITH
WRIT PETITION NO. 1024 OF 2023
WITH
WRIT PETITION NO. 1016 OF 2023
WITH
WRIT PETITION NO. 932 OF 2023
WITH
WRIT PETITION NO. 1127 OF 2023
WITH
WRIT PETITION NO. 1173 OF 2023
WITH
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WRIT PETITION NO. 957 OF 2023
WITH
WRIT PETITION NO. 1114 OF 2023
WITH
WRIT PETITION NO. 871 OF 2023
WITH
WRIT PETITION NO. 1164 OF 2023
WITH
WRIT PETITION NO. 1036 OF 2023
Mr. Sanjay Sanghavi, Senior Advocate with Mr. R. D. Bhat for the
Petitioners in WP-913/2024.
Ms. Gayatri Nayak with Akash Tayade and Mr. Rahul Yadav
for the Petitioners in WP Nos.1743/2024, 2443/24 and 15029/24.
Ms. Sapna Rachure a/w Ms. Neha Achliya for the Petitioners in
WP Nos.1183/23, 1182/23, 1343/23, 3523/22, 3536/22, 1032/23,
1034/23, 1041/23, 1057/23, 917/23, 870/23, 1012/23, 970/23,
1053/23, 1165/23, 3644/22, 1052/23, 1170/23, 137/23, 1212/23,
1018/23, 647/23, 1033/23, 881/23, 650/23, 1024/23, 1016/23,
932/23, 1127/23, 1173/23, 957/23, 1114/23, 871/23, 1164/23,
1036/23.
Ms. Vaishali Choudhari, Addl. GP for State in WP Nos.913/24 and
4814/24.
Ms. Vaishali Choudhari, Addl. GP with Ms. Sheetal Malvankar, AGP
for Respondent No.1- State in WPL-12846/24 and WP-2443/24.
Ms. Jaymala Ostwal, Add, GP for Res No. 1 in WPL-5029/24
Mr. Milind Sathe, Senior Counsel i/b. Ms. Shilpa Redkar for the
Respondent- BMC.
Mr. Vishal Talsania with Shraddha Nagaonkar i/b Mr. Sagar Shetty
for Respondent No.3- BEST Undertaking.
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Mr. Sumeet Palsuledesai i/b. M.V. Kini & Co. for Respondent -BEST
Undertaking in all petitions (except WP-913/2024).
CORAM : NITIN JAMDAR, AND
M.M. SATHAYE, JJ.
DATE : 10 May 2024.
P.C. :
Heard the learned Counsel for the parties.
2. The Petitioners before us are the ex-employees of Respondent No.3- Brihan Mumbai Electric Supply and Transport Undertaking ("BEST Undertaking" for short). They have filed these Petitions making a grievance that their gratuity and other terminal benefits are not being paid.
3. Writ Petition No.913/2024, though filed by two ex- employees, seeks to represent the retired Respondent- BEST Undertaking employees who are identically situated in respect of their retiral benefits. They have moved this Petition in a representative capacity because it is their case that each of the employees has to either approach this Court or the Labour Court, and it is only when the Courts pass orders that the retiral benefits are being paid to the employees. This not only results in hardship to the employees who have to spend money on litigation but also needlessly burdens the Court. Taking cognizance of this grievance, we passed the order on 5 March 2024, which reads thus:
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" Heard the learned Counsel for the parties. The learned
Counsel for Respondent Nos. 2 and 3 and the learned AGP seek time.
2. This is a Petition filed in the representative capacity on behalf of the Ex-Officers of the Respondent No.3 - Brihan Mumbai Electric Supply and Transport Undertaking (BEST). There are three groups of the Ex-Officers. First group is those who have received their dues post retirement as per pre- existing pay-scales but not as per revised pay-scales. Second group are those who have received the amounts per revised pay-scales but have not received the difference between the old pay-scales and the revised pay-scales. The third group consists of those who have not received any dues whatsoever upon their retirement.
3. The grievance is raised collectively on behalf of such 127 employees. It is stated that every employees to seek post retiral benefits have to approach Courts and hundreds of applications are being filed, where the Courts are granting interest out of public funds.
4. If the contentions raised by the Petitioners as stated above in the Petition are correct, then not only it adds to the burden on the Court if apart from the primary responsibility of the employers to pay the retiral dues of the employees in time.
5. According to the Petitioners, though they have worked with the Respondent No. 3 - BEST, the Respondent No.2 - Municipal Corporation is also equally responsible for contributing to their retiral dues.
6. Taking note of the concern expressed by the Petitioners, let affidavits be filed by the Municipal Commissioner and the General Manager of the Respondent No.3 as to why this Court should not issue the general directions as sought for.
7. We make it clear that the affidavit should be filed by the Municipal Commissioner and the General Manager or ::: Uploaded on - 10/05/2024 ::: Downloaded on - 30/05/2024 13:11:41 ::: skn 6 2-WP-913.2024--..doc vetted/approved by them and not to be delegated. For enabling filing of this affidavit, stand over to 15 April 2024."
We grant leave to the Petitioners in Writ Petition No.913/2024 to prosecute the Petition in a representative capacity on behalf of all the Retiral employees of the BEST Undertaking in respect of non- payment of retirement dues.
4. Thereafter, individual petitions are also filed and grouped along with this Petition. The fact that the retirement dues of the ex-employees of the BEST Undertaking are unpaid is not in dispute.
5. We are informed that a meeting took place between the employees' representatives and the General Manager of the BEST Undertaking, but as of today, we do not have any commitment as to how much time the entire dues will be paid.
6. When this group of petitions came up on board on 9 May 2024, we were informed by the Counsel for the Municipal Corporation that an amount of Rs.200 crore has been given by the Municipal Corporation to the BEST Undertaking and, therefore, we had called upon the Counsel for the BEST Undertaking to inform as to out of this Rs.200 crore how much amount would be earmarked towards the terminal/ retiral dues of the retired employees.
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7. We are informed today that a substantial part of the amount of Rs.200 crore has already been spent on the other commitments, and the Counsel for the BEST Undertaking submits that an amount of Rs.1 crore can be disbursed or, at the most, Rs.2 crore. The learned Counsel for the BEST Undertaking informs us that the dues of the retired employees are almost to the tune of Rs.600 crore. So, as against the liability of Rs.600 crore towards retirement dues of the employees, what is being offered is only Rs.1/2 crore to all of them.
8. It is highly regrettable that despite our order, neither the BEST Undertaking nor the Municipal Corporation have taken the matter seriously. The BEST Undertaking is not showing any commitment towards resolving the legitimate grievances of their retired employees, which poses a severe hardship for them. We cannot overlook the hardship and will have to direct necessary action to be taken to address the situation.
9. The learned Counsel for the BEST Undertaking sought to contend that the BEST Undertaking is in financial difficulties and is unable to meet even its daily requirements. The learned Counsel for the BEST Undertaking submits that since the Municipal Corporation is also the Respondent in these petitions, necessary directions be issued to the Municipal Corporation. The learned Counsel for the Respondent- Municipal Corporation had sought ::: Uploaded on - 10/05/2024 ::: Downloaded on - 30/05/2024 13:11:41 ::: skn 8 2-WP-913.2024--..doc time to take instructions and to make a statement; however, as stated earlier, as of today, no concrete commitment is made before us. The learned Counsel for the Municipal Corporation is not taking the ground of financial difficulty of the Corporation. According to the Petitioners, the financial position of the Mumbai Municipal Corporation is extremely sound.
10. The Mumbai Municipal Corporation Act, 1888, has constituted the Municipal Authorities. Under Chapter- XVI-A, the BEST Undertaking is constituted. Under Section 460-A, the General Manager is to manage the BEST Undertaking subject to superintendence of the BEST Undertaking and the Municipal Corporation. Sections 460-B onward till Section 460-N provide the methodology for the performance of duties. Sections 460-O, 460-P and 460-Q deal with the properties.
11. Section 134 of the Act of 1888 refers to income and expenditure to be made by the Corporation during the course of its official years. Section 134 reads thus:
134. Re-adjustment of income and expenditure to be made by the corporation during course of official year whenever necessary (1) If it shall at any time during any official year appear to the Corporation, upon the representation of the Standing Committee or the Brihan Mumbai Electric Supply and Transport Committee, that notwithstanding any reduction of budget grants that may have been made by the appropriate committee under section 133, the income of the municipal fund or the Brihan Mumbai Electric Supply and Transport ::: Uploaded on - 10/05/2024 ::: Downloaded on - 30/05/2024 13:11:41 ::: skn 9 2-WP-913.2024--..doc Fund, as the case may be, during the said year will not suffice to meet the expenditure sanctioned in the budget estimates of the said year as so reduced and to leave at the close of the year a cash balance of not less than one lakh of rupees in the case of either the municipal fund or the Brihan Mumbai Electric Supply and Transport Fund, it shall be incumbent on the Corporation to sanction forthwith any measure which shall be necessary for proportioning the year income to the expenditure.
(2) For this purpose the Corporation may diminish the sanctioned expenditure of the year, so far as it may be possible so to do with due regard to the provision of this Act or to the obligation pertaining to the Brihan Mumbai Electric Supply and Transport Undertaking, or have recourse to supplementary taxation or a revision of fares and charges levied in respect of the Bombay Electric Supply and Transport Undertaking, as the case may be or, with the previous sanction of the State Government and subject to such terms and conditions (if any) as the Corporation may deem fit to impose, transfer the whole or any portion of surplus cash balance from many budget-estimate to any other budget-estimate as an additional grant to make good any deficit which has arisen or is likely to arise in the latter budget estimate, whether covered by a budget grant or not.
Perusal of the scheme of the Act of 1888 would show that the BEST Undertaking established under the Act of 1888 is intrinsically connected with the Municipal Corporation. Even the Counsel for the BEST Undertaking is urging us to issue necessary directions to the Municipal Corporation. On the earlier date, the Counsel for the Municipal Corporation had informed us that Rs.200 crore was given to the BEST Undertaking. Therefore, it is for the BEST Undertaking to work out how to discharge its liability in collaboration with the Municipal Corporation. As stated earlier, ::: Uploaded on - 10/05/2024 ::: Downloaded on - 30/05/2024 13:11:41 ::: skn 10 2-WP-913.2024--..doc though the argument is sought to be made on behalf of the BEST Undertaking that it is in financial difficulties, we have not heard the Counsel for the Respondent- Municipal Corporation contend that the Municipal Corporation is in financial difficulties.
12. Both the authorities in question are statutory bodies and should act as model employers. It is unacceptable that the majority of retired employees of this Undertaking are still waiting for their arrears of retiral dues without any commitment from the authorities. We had given sufficient time to the BEST Undertaking to provide a reasonable commitment, but the commitment presented is inadequate. Therefore, we have no option but to issue a direction to the Respondent- BEST Undertaking and bind them to a time limit. While we could have directed the entire amount to be paid in a single installment, we intend to give the BEST Undertaking time to pay at least part of the retiral dues. Based on their conduct, we will consider extending further time or issuing a one-time direction.
13. Accordingly, we direct that the Respondent- BEST Undertaking will work out the retiral/ terminal dues of each of its retired employees whose dues are unpaid, as per the applicable law. After calculating the amount, the Respondent- BEST Undertaking will pay 30% of the retiral dues of each of the retired employees within three months from today. This order will apply to the Petitioners before us and to all the eligible retired employees of the BEST Undertaking since Writ Petition No.913/2024 is in a ::: Uploaded on - 10/05/2024 ::: Downloaded on - 30/05/2024 13:11:41 ::: skn 11 2-WP-913.2024--..doc representative capacity. We place the responsibility of complying with this order on the General Manager of the BEST Undertaking.
14. It is open to the BEST Undertaking to seek financial assistance from the Municipal Corporation, and it is for the Municipal Corporation to consider the request. These two Authorities will keep in mind that the retiral dues are not a charity and are a right of the employees and that both these Authorities will have to act as a model employer.
15. List the petitions on board on 9 August 2024 at 2.30 p.m. for reporting compliance with the aforesaid direction and for further directions regarding the time limit for payment of the remaining 70 per cent of the dues depending on the conduct of the BEST Undertaking.
(M.M. SATHAYE, J.) (NITIN JAMDAR, J.)
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