Bombay High Court
Maharashtra State Handloom ... vs Satyajit S/O Govindrao Indurkar on 26 July, 2019
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
WP 863/18 @ Connected WPs 1 Common Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 863/2018
Maharashtra State Handloom Corporation,
M.S.H.C. Complex, Umrer Road, Nagpur.
Through its Managing Director. PETITIONER
.....VERSUS.....
Deorao S/o Kashinath Patil (Dead)
Through his legal heir
Manda Wd/o Deorao Patil, aged 53 years,
Occ. Nil, R/o At Post Panchgaon, Near Tower,
Umred, Tah. Umred, Dist. Nagpur. RESPONDENT
WITH
WRIT PETITION NO. 910/2018
Maharashtra State Handloom Corporation,
M.S.H.C. Complex, Umrer Road, Nagpur.
Through its Managing Director. PETITIONER
.....VERSUS.....
Prakash S/o Nilkanth Bolakhe,
Aged 56 years, Occ. Service,
R/o Near Chandrabhaga Oil Mill,
Labantanda, Old Shukravari, Nagpur. RESPONDENT
WITH
WRIT PETITION NO. 986/2018
Maharashtra State Handloom Corporation,
M.S.H.C. Complex, Umrer Road, Nagpur.
Through its Managing Director. PETITIONER
.....VERSUS.....
Shravan S/o Buddhulal Nikhare,
Aged 65 years, Occ. Nil,
R/o Plot No.178, Binaki Lay-out,
Yadav Nagar, Nagpur - 26. RESPONDENT
WITH
WRIT PETITION NO. 3286/2018
Maharashtra State Handloom Corporation,
M.S.H.C. Complex, Umrer Road, Nagpur.
Through its Managing Director. PETITIONER
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.....VERSUS.....
Pushpalata W/o Ishwar Borkar,
Aged 54 years, Occ. Nil,
R/o Shanti Nagar Colony, Quarter No.I-79,
Nagpur. RESPONDENT
WITH
WRIT PETITION NO. 3287/2018
Maharashtra State Handloom Corporation,
M.S.H.C. Complex, Umrer Road, Nagpur.
Through its Managing Director. PETITIONER
.....VERSUS.....
Jyoti W/o Vyankatesh Pimpalkar,
aged 68 years, Occ. Nil,
R/o C/o Shri Pimpalkar, In front of Dharampeth
Mahila Bank, Samarth Provisions, Ruikar Road,
Mahal, Nagpur. RESPONDENT
WITH
WRIT PETITION NO. 3288/2018
Maharashtra State Handloom Corporation,
M.S.H.C. Complex, Umrer Road, Nagpur.
Through its Managing Director. PETITIONER
.....VERSUS.....
Namdeo S/o Sukru Gondane,
Aged 61 years, Occ. Nil,
R/o Plot No.192, Indira Gandhi Nagar,
Binaki Lay-out, New Mangalwari, Nagpur. RESPONDENT
WITH
WRIT PETITION NO. 3289/2018
Maharashtra State Handloom Corporation,
M.S.H.C. Complex, Umrer Road, Nagpur.
Through its Managing Director. PETITIONER
.....VERSUS.....
Hareshwar S/o Shankar Satpaise,
Aged 56 years, Occ. Nil,
R/o Pardi, Mahajanpura, Ward No.7,
Bhandara Road, Nagpur. RESPONDENT
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WITH
WRIT PETITION NO. 3290/2018
Maharashtra State Handloom Corporation,
M.S.H.C. Complex, Umrer Road, Nagpur.
Through its Managing Director. PETITIONER
.....VERSUS.....
Shivshankar S/o Dashrath Sirsikar,
Aged 56 years, Occ. Nil,
R/o Plot No.64, Pawar Nagar,
Hudkeshwar Nagar, Nagpur. RESPONDENT
WITH
WRIT PETITION NO. 3291/2018
Maharashtra State Handloom Corporation,
M.S.H.C. Complex, Umrer Road, Nagpur.
Through its Managing Director. PETITIONER
.....VERSUS.....
Digambar S/o Pundlik Kuhikar,
Aged 66 years, Occ. Nil,
R/o Mani Mohalla, Bhiwapur, Dist. Nagpur. RESPONDENT
WITH
WRIT PETITION NO. 3292/2018
Maharashtra State Handloom Corporation,
M.S.H.C. Complex, Umrer Road, Nagpur.
Through its Managing Director. PETITIONER
.....VERSUS.....
Mohammad Hifzur Rehman,
Aged about 69 years, Occ. Nil,
R/o C/o Saimond Cloth Store,
Haidry Masjid Road, Mominpura, Nagpur. RESPONDENT
WITH
WRIT PETITION NO. 3293/2018
Maharashtra State Handloom Corporation,
M.S.H.C. Complex, Umrer Road, Nagpur.
Through its Managing Director. PETITIONER
.....VERSUS.....
Yeshwant S/o Krushnarao Devikar,
Aged 61 years, Occ. Nil, R/o Devikar Wada,
Juni Mangalwari, Vyankoba Mule Road, Nagpur. RESPONDENT
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WITH
WRIT PETITION NO. 3294/2018
Maharashtra State Handloom Corporation,
M.S.H.C. Complex, Umrer Road, Nagpur.
Through its Managing Director. PETITIONER
.....VERSUS.....
Vivekanand S/o Charandas Dhanvijay,
Aged 56 years, Occ. Nil, R/o Plot No.156,
Ambedkar Colony, Lashkaribag, Nagpur. RESPONDENT
WITH
WRIT PETITION NO. 3295/2018
Maharashtra State Handloom Corporation,
M.S.H.C. Complex, Umrer Road, Nagpur.
Through its Managing Director. PETITIONER
.....VERSUS.....
Gangadhar S/o Mahadeorao Bire,
Aged 58 years, Occ. Nil, R/o Plot No.130,
Ulhas Nagar, Manewada Road, Nagpur. RESPONDENT
WITH
WRIT PETITION NO. 3296/2018
Maharashtra State Handloom Corporation,
M.S.H.C. Complex, Umrer Road, Nagpur.
Through its Managing Director. PETITIONER
.....VERSUS.....
Satyajit S/o Govindrao Indurkar,
Aged 56 years, Occ. Nil, R/o Near Indora,
Punjabi Lane, Near Model Tower,
Jaripatka, Nagpur. RESPONDENT
WITH
WRIT PETITION NO. 3297/2018
Maharashtra State Handloom Corporation,
M.S.H.C. Complex, Umrer Road, Nagpur.
Through its Managing Director. PETITIONER
.....VERSUS.....
Vitthal S/o Yashwant Bhure,
Aged 66 years, Occ. Nil, R/o Shiv Chhatrapati
Nagar, Near Kumbhare Colony, Kamptee,
Dist. Nagpur. RESPONDENT
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WITH
WRIT PETITION NO. 7212/2018
Maharashtra State Handloom Corporation,
M.S.H.C. Complex, Umrer Road, Nagpur.
Through its Managing Director. PETITIONER
.....VERSUS.....
Sushila Laxmanrao Nimje,
Aged 64 years, Occ. Nil, R/o Plot No.33,
Vidyanagar, Wathoda Lay-out,
Near Ganesh Temple Line, Nagpur. RESPONDENT
WITH
WRIT PETITION NO. 7408/2018
Maharashtra State Handloom Corporation,
M.S.H.C. Complex, Umrer Road, Nagpur.
Through its Managing Director. PETITIONER
.....VERSUS.....
Vithoba Nagorao Borikar,
Aged 54 years, Occ. Nil, R/o Balabhau
Peth, Ward No.54, Nagpur. RESPONDENT
WITH
WRIT PETITION NO. 7410/2018
Maharashtra State Handloom Corporation,
M.S.H.C. Complex, Umrer Road, Nagpur.
Through its Managing Director. PETITIONER
.....VERSUS.....
Waman S/o Baburao Bende,
Aged 66 years, Occ. Nil, R/o Panchasheel
Nagar, Near house of Corporator Smt.Lalita
Patil, Sujata Nagar, Nagpur. RESPONDENT
WITH
WRIT PETITION NO. 7414/2018
Maharashtra State Handloom Corporation,
M.S.H.C. Complex, Umrer Road, Nagpur.
Through its Managing Director. PETITIONER
.....VERSUS.....
Madhukar S/o Balaji Dhakate,
Aged 65 years, Occ. Nil, R/o Plot No.128,
Bhavani Nagar, Pardi, Punapur Road, Nagpur. RESPONDENT
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WITH
WRIT PETITION NO. 7628/2018
Maharashtra State Handloom Corporation,
M.S.H.C. Complex, Umrer Road, Nagpur.
Through its Managing Director. PETITIONER
.....VERSUS.....
Pournima W/o Chadrahas Muley,
Aged 26 years, Occ. Nil, R/o 25,
Process Server Colony, Swavalambi Nagar,
Nagpur. RESPONDENT
WITH
WRIT PETITION NO. 7742/2018
Maharashtra State Handloom Corporation,
M.S.H.C. Complex, Umrer Road, Nagpur.
Through its Managing Director. PETITIONER
.....VERSUS.....
Narayan Baliramji Kumbhare,
Aged 51 years, Occ. Nil, R/o Plot No.195,
Bhuteshwar Nagar, Primary School, Nagpur. RESPONDENT
WITH
WRIT PETITION NO. 7754/2018
Maharashtra State Handloom Corporation,
M.S.H.C. Complex, Umrer Road, Nagpur.
Through its Managing Director. PETITIONER
.....VERSUS.....
Sunil S/o Madhukarrao Dhapudkar,
Aged 51 years, Occ. Nil, R/o Gumgaon,
Tal. Hingna, Dist. Nagpur. RESPONDENT
Shri M.V. Mohokar, counsel for petitioner in all the writ petitions.
Shri V.P. Marpakwar, counsel for respondent in all the writ petitions.
CORAM : A.S. CHANDURKAR, J.
ARGUMENTS WERE HEARD ON : 14TH JUNE, 2019
JUDGMENT PRONOUNCED ON : 26TH JULY, 2019
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JUDGMENT
Since these writ petitions raise identical challenges, they are being decided together by this common judgment.
2. RULE. Rule made returnable forthwith. Heard finally with consent of counsel for the parties.
3. Orders passed by the Controlling Authority directing payment of amount of gratuity to the respondents-Employees as partly modified by the Appellate Authority are under challenge in these writ petitions.
4. The facts in brief are that the services of the concerned employees who were working on daily wages came to be terminated on account of their retrenchment on 25.06.1991. Those orders were subjected to challenge in complaints filed under Section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The Labour Court had ordered reinstatement of the said complainants. The Industrial Court however set aside the order of reinstatement and instead directed payment of monetary compensation equivalent to three times the retrenchment compensation. Those orders were challenged in separate writ petitions filed before this Court. By its judgment dated 25.02.2014, the writ petitions were disposed of by passing the following order :
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WP 863/18 @ Connected WPs 8 Common Judgment "33. In view of above, all the writ petitions are disposed with the following order:
(i) The order of retrenchment of all the complainants passed on 25-6-1991, is hereby quashed and set aside.
(ii) All the complainants are directed to be notionally reinstated with continuity in service with effect from 25-6-1991 till the date on which they attained the age of superannuation.
(iii) All the complainants shall be entitled to the compensation of Rs.1,00,000/- each along with the simple interest at the rate of 6% per annum from the date of retrenchment, i.e. 25-6-1991, till the actual date of payment of compensation, within a period of three months from today.
(iv) If the complainants are entitled to other consequential benefits, like provident funds dues, gratuity, etc., in accordance with law, the same shall not be affected by the amount of compensation and interest awarded by this Court.
(v) The judgments and orders passed by the Labour Court in all the complaints and by the Industrial Court in all the revisions, stand modified in terms of the aforesaid order."
The employees challenged the aforesaid judgment before the Hon'ble Supreme Court and by its judgment dated 13.10.2014 it was ::: Uploaded on - 21/08/2019 ::: Downloaded on - 15/04/2020 13:32:40 ::: WP 863/18 @ Connected WPs 9 Common Judgment directed that monetary compensation of an amount of Rupees Two Lakhs instead of the amount of Rupees One Lakh as awarded by this Court be paid to each employee. It was further directed that there would be continuity in service as awarded by the Labour Court for the purposes of terminal benefits such as payment of provident fund dues, gratuity etc. in accordance with law.
5. Pursuant to this adjudication, the employees initiated proceedings under Section 10 of the Payment of Gratuity Act, 1942 (for short, 'the said Act') for being paid the amount of gratuity. The Controlling Authority partly allowed the applications as filed and directed the petitioner to pay the amount of gratuity as adjudicated. The petitioner then filed appeals under Section 7(7) of the said Act and by the impugned orders, the appeals were partly allowed and the amount of gratuity was partly reduced by taking into consideration the last wages drawn alongwith the total service rendered. Being aggrieved by the aforesaid adjudication, the employer has filed the present writ petitions.
6. Shri M.V. Mohokar, learned counsel for the petitioners submitted that the Appellate Authority ought to have allowed the appeals in their entirety in view of the fact that each employee was held entitled only for monetary compensation. Though notional reinstatement had ::: Uploaded on - 21/08/2019 ::: Downloaded on - 15/04/2020 13:32:40 ::: WP 863/18 @ Connected WPs 10 Common Judgment been directed till superannuation, each employee had attained the age of superannuation and therefore was not entitled to the grant of gratuity. He referred to the averments made in the applications seeking grant of gratuity and submitted that in absence of material particulars such as date of birth and last wages drawn, the amount of gratuity could not have been determined. The relevant dates given by the employees have been accepted without sufficient proof. The status of the respondent as daily wagers continued and therefore it could not be said that they could claim gratuity by virtue of the direction for notional reinstatement. Placing reliance on the decisions in State Bank of India Versus Ram Chandra Dubey & Others [(2001) 1 SCC 73] and Hindustan Petroleum Corporation Ltd. Versus Ashok Ranghba Ambre [2008(3) Mh.L.J. 558], it was submitted that the status of the workman would not change by virtue of the direction to grant notional reinstatement. It was further submitted that in the cases filed by clerks employed with the Corporation, the aspect of notional increment has been taken into consideration which was not permissible. As regards the employee in Writ Petition No.863 of 2018 it was submitted that though the concerned employee expired on 25.10.2010, his last drawn salary has been taken on the higher side. The employee in Writ Petition No.910 of 2018 was working with the Nagpur Municipal Corporation from 24.08.1997 but his aforesaid service was also taken into consideration for grant of gratuity. It was thus submitted that ::: Uploaded on - 21/08/2019 ::: Downloaded on - 15/04/2020 13:32:40 ::: WP 863/18 @ Connected WPs 11 Common Judgment by not considering these aspects, the Appellate Authority committed an error and hence impugned order was liable to be set aside.
7. On the other hand, Shri V.P. Marpakwar, learned counsel for the respondent-Workman supported the impugned orders. He submitted that the directions issued with regard to notional reinstatement as well as the continuity of service for entitlement to terminal benefits had attained finality in view of the directions issued by the Hon'ble Supreme Court. According to him, under the provisions of the said Act, the gratuity had to be calculated on the basis of the last wages drawn and the Industrial Court rightly corrected the error committed by the Controlling Authority while modifying the amounts of gratuity. In view of the direction to grant notional reinstatement, each workman was in continuous service as contemplated by Section 2A of the said Act. He placed reliance on the decision in Rama Rao Versus Asst. Traffic Manager, APSRTC, Hyderabad & Another [1998(2) LL.J. 698] in that regard. He submitted that since notional reinstatement with continuity was directed, its effect was rightly considered while calculating the amount of gratuity. In Writ Petition No.863 of 2018, the gratuity had been calculated only till the death of the employee and not thereafter. In Writ Petition No.910 of 2018, there was no evidence brought on record regarding the engagement of the employee with the Nagpur Municipal Corporation from 24.08.1997. It was thus ::: Uploaded on - 21/08/2019 ::: Downloaded on - 15/04/2020 13:32:40 ::: WP 863/18 @ Connected WPs 12 Common Judgment submitted that no interference was called for with the impugned orders and the workmen were entitled to receive the amount of gratuity as determined.
8. I have heard the learned counsel for the parties at length and I have also perused the material placed on record. The challenges as raised would have to be adjudicated in the light of the earlier orders passed by this Court in the writ petitions that were filed by the employer challenging the orders passed by the Industrial Court. This Court had by its judgment dated 25.02.2014 set aside the order of retrenchment dated 25.06.1991 in respect of all the complainants and had directed their notional reinstatement with continuity in service from that date till they attained the age of superannuation. By virtue of the subsequent orders passed by the Hon'ble Supreme Court, the monetary compensation of Rupees One Lakh was enhanced to Rupees Two Lakhs with a clarification that the continuity in service awarded by the Labour Court and confirmed by this Court for grant of terminal benefits such as gratuity, etc. would remain intact. The challenge to the impugned orders therefore cannot go beyond what was directed by this Court and by the Hon'ble Supreme Court in the aforesaid proceedings. The direction as regards notional reinstatement alongwith continuity in service for receiving terminal benefits including gratuity would have to be given full effect. ::: Uploaded on - 21/08/2019 ::: Downloaded on - 15/04/2020 13:32:40 :::
WP 863/18 @ Connected WPs 13 Common Judgment 9. Though the Controlling Authority had allowed each
application that was filed for payment of gratuity, the Industrial Court while modifying those orders has taken into consideration the last drawn wages as per the provisions of the Minimum Wages Act, 1948 and has calculated the amount of gratuity based on the service till the date of superannuation. Such calculations have been made in respect of each complainant thus complying with the direction as regards grant of notional reinstatement with continuity in service till the age of superannuation. The material placed on record by both sides was taken into consideration. Similarly, the nature of work being done by each complainant has also been kept in mind while modifying the order passed by the Controlling Authority. The employees in question were either regular employees or were employees on daily wages. Some of the employees were regular Clerks. Since the relief of continuity in service was granted, the aspect of notional increment has been taken into consideration. In Writ Petition No.863 of 2018, the gratuity has been granted on the basis of service rendered from 06.09.1984 till the death of the complainant on 25.10.2010. Service for period of twenty-six years has been considered. As regards the complainant in Writ Petition No.910 of 2018 is concerned, the Corporation has not been able to bring on record the disentitlement of said complainant to receive gratuity as his employment with the Nagpur Municipal Corporation from 24.08.1997 has ::: Uploaded on - 21/08/2019 ::: Downloaded on - 15/04/2020 13:32:40 ::: WP 863/18 @ Connected WPs 14 Common Judgment not been proved. There is no suggestion in this regard given to said complainant in his cross-examination.
In the light of the aforesaid aspects, it is found that the Industrial Court after referring to the period of service till the age of superannuation of each complainant based on his notional reinstatement has modified the amounts of gratuity payable. There is no reason found to interfere with that adjudication. Though it was urged on behalf of the petitioner that the proceedings were liable to be remanded for correctly determining the amount of gratuity, it is found that the Industrial Court has rightly arrived at the amount of gratuity payable while partly reducing the amount of gratuity awarded by the Controlling Authority.
10. The decisions relied upon by the learned counsel for the petitioner in State Bank of India (supra) to urge that reinstatement as awarded would not include the benefits to which the complainants have not been found entitled cannot be accepted. The earlier adjudication clearly indicates the entitlement of the complainants to the direction for notional reinstatement with continuity in service. Thus, on the aforesaid premise, it is found that there is no case made out to interfere with the impugned judgment of the Appellate Authority.
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11. For the aforesaid reasons, the writ petitions are dismissed. Rule stands discharged. No costs.
(A.S. CHANDURKAR, J.) APTE ::: Uploaded on - 21/08/2019 ::: Downloaded on - 15/04/2020 13:32:40 :::