Bombay High Court
The General Secretary, Mr. ... vs P Shivshankar, Commissioner Solapur ... on 28 October, 2021
Author: G.S.Kulkarni
Bench: G.S.Kulkarni
19.CP324_2021.doc
Vidya Amin
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CONTEMPT PETITION NO. 324 OF 2021
The General Secretary,
Lal Bavta Mahanagar Palika, Solapur & Anr. ... Petitioners
V/s.
P. Shivshankar, Commissioner Solapur
Municipal Corporation & Ors. ... Respondents
Ms. Gayatri Singh, Senior Advocate a/w. Ms. Deepali S.K. i/b. Ms.
Ronita Bhattacharya for the petitioners.
Mr. I.M. Khairdi for respondent nos. 1 and 2.
Mr. P.P. Pujari, AGP for the State.
CORAM : G.S.KULKARNI, J.
DATE : 28 October, 2021 P.C.:
1. Heard Ms. Gayatri Singh, learned senior counsel for the petitioners and Mr. Khairdi, learned counsel for respondent nos. 1 and 2.
2. In this Contempt Petition, the petitioners have made a grievance against respondent nos. 1 and 2 for not complying with the orders dated 28 December, 2017 passed by the learned Member, Industrial Court at Solapur, as confirmed by the order passed by this Court. The order passed by the Industrial Court reads thus:
"1. The Application at Exh. U-2 is partially allowed.
2. I declare that respondent no. 2 has prima facie engaged in 1/14
19.CP324_2021.doc unfair labour practices as per M.R.T.U. and Item 5, 9 and 10 of Annexure-IV of P.U.L.P. Act and I direct the respondent to immediately restrain from adopting unfair labour practices.
3. The Respondent no. 2 is directed to give the monthly salaries to the worker members of the complainant as per Payment of Wages Act and the applicable Rules.
4. Respondent no. 2 is directed to pay the arrears of payment to the Transport Employees in phases till August, 2018 and to pay the 50% amount of the salary of July 2017 till 10th January, 2018.
5. The Respondent no. 1 is directed to make available the grant for payment of arrears of salaries and other payments to the workers and to take proper steps to improve the financial condition of respondent no. 2."
3. By an order dated 2 May, 2018 passed by this Court (A.K. Menon, J.) in Writ Petition No. 2584 of 2018 and Writ Petition No. 2583 of 2018 the above order passed by the Industrial Court was confirmed. The said order reads thus:
"1. By this Writ Petition the petitioner corporation challenges the impugned order dated 28th December, 2017 passed in Complaint (ULP) No. 146 of 2016. The contention of the petitioner corporation is that the respondent no. 3- transport undertaking is a separate legal entity and the petitioner is not responsible for the affairs of corporation. Mr. Khairdi contends that while the petitioner understands their plight the grievances of employees of the transport undertaking who were members of the respondent union, it cannot be a matter which the petitioner is concerned with since there is no employer-employee relationship between the workmen and the corporation. The impugned order holds otherwise.
2. The respondents have opposed the petition on the basis that the petitioner corporation seeks to disown responsibility and that the petitioner had been correctly directed to fund payment of salary of the workmen. Ms. Singh learned senior counsel on behalf of respondent no. 2 in Writ Petition No. 2584 OF 2018 states that the contentions taken up by the petitioner corporation are incorrect. In support of her contention she relied upon affidavit filed in this Court in Writ 2/14
19.CP324_2021.doc Petition No. 2556 of 2010 by one Mr. Abdul Ahamed Pathan, Transport Manager of respondent no. 3 -corporation who has solemnly sworn as follows:
"The Petitioner No. 1 is the Municipal corporation and is established under Bombay Provincial Corporation Act. The Transport undertaking is a part of Municipal Corporation, Solapur and it is owned by Municipal Corporation, Solapur Provision is made for expenditure of the Transport Undertaking in the budget of the Municipal Corporation. The Transport Undertaking had two workshops for the purpose of carrying out the repairs of its vehicles"
(emphasis supplied)
4. Ms. Singh submits that the statement made on oath leaves no manner of doubt that the Transport undertaking is very much part of the petitioner corporation. Mr. Kulkarni and Mr. Killedar learned Advocates for the other respondent adopt the submissions of Ms. Singh. Learned counsel for the petitioner submitted that by virtue of Section 25 of the Maharashtra Municipal Corporation Act and the provisions of Chapter XX of the said Act the transport undertaking setting up management and operations are treated as a separate undertaking of the Corporation and separate legal entity and therefore there is no relationship of employer and employee the petitioner corporation and the employees of the transport undertaking.
5. Having heard the learned counsel for the parties it is obvious that respondent no. 3 - undertaking is either "acquired" by the Corporation or "set up" by the Corporation under the Maharashtra Municipal Corporation Act. The contention of the Corporation that it is not the employer and therefore not responsible for payment of salary will be decided at the final hearing of the said complaint. The challenge is to the impugned order passed on 28th December, 2017 which also has left this question open to the parties. In the meanwhile the petitioner cannot shy away from their responsibilities to the employees of the transport wing however onerous they may find it.
6. In the circumstances it is not necessary to interfere with the impugned order in view of the prima facie finding that the transport corporation is very much part of the corporation. Accordingly, I pass the following order: 3/14
19.CP324_2021.doc
(i) Writ Petitions are dismissed.
(ii) No orders as to costs.
(iii) The Complaint (ULP) No. 146 of 2016 will be decided in accordance with law and without being influenced by any observations of this Court.
(iv) Ad-interim order dated 5th March, 2018 stands vacated. (v) Learned counsel for the petitioner seeks continuation of the ad-interim order for a further period of four weeks. The request is declined."
4. The petitioners/concerned employees are employed by the Solapur Municipal Corporation in its transport undertaking known as "Solapur Municipal Corporation Transport Undertaking". This petition concerns about 300 employees. The state of affairs is quite shocking inasmuch as there is no dispute whatsoever that such employees are discharging their duties, however, they have not been paid their salaries. Following is the chart of arrears of salaries in respect of period from November 2017 till September, 2021 as placed on record by the Solapur Municipal Corporation :-
Pending salary due to Court matter of 8 months as below:
S. No. Month Total Amount
1. November, 2017 77,14,942/-
2. December, 2017 75,50,775/-
3. January, 2018 76,63,579/-
4. February, 2018 74,12,816/-
5. March, 2018 67,16,755/-
6. April, 2018 22,74,349/-
7. May, 2018 37,36,247/-
8. June, 2018 63,44,188/-
Total 4,94,13,651/-
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19.CP324_2021.doc
Pending salary due to Financial crisis as below:
S. No. Month Total Amount
1. February, 2021 39,27,932/-
2. March, 2021 41,95,421/-
3. April, 2021 39,16,036/-
4. May, 2021 37,64,163/-
5. June, 2021 36,38,244/-
6. July, 2021 36,73,206/-
7. August, 2021 36,47,651/-
8. September, 2021 40,00,000/-
Total 3,07,62,653/-
5. It is quite surprising that for the periods referred above which is between November, 2017 till October, 2021 no salaries have been paid to such employees, however, they are discharging their duties, under the fear of losing their employment. It is difficult to believe that a public body like a Municipal Corporation can exploit their employees to such an extent, by not paying them their salaries without caring for their livelihood. A purported poor financial condition cannot be a answer or justification to this situation. Mr. Khairdi, learned counsel for the Municipal Corporation would state that only due to financial difficulties of the Municipal Corporation, the respondents could not pay the arrears and/or the regular salary. He does not deny that these employees are regularly discharging their duties. It is precarious to imagine such a situation in a civilized society and that too at the hands of a public body.5/14
19.CP324_2021.doc
6. In these circumstances, it would be useful to note the position in law:
In Maharashtra Rajya Prathamik Shikshak Sangh & Anr. Vs. The Municipal Corporation & Ors., in Writ Petition No. 947 of 2007, for long periods the salaries of the primary teachers of the Malegaon Municipal Corporation were not paid by the Malegaon Municipal Corporation. Considering the agony of the teachers, the Division Bench of this Court by an order dated 28 June, 2007 directed the Municipal Corporation to stop the expenditure on all activities except expenses relating to the essential civic amenities. It was specifically directed that all works of road, buildings and payments of the contractors and, for that purpose, even the salaries of the superior officers of the Corporation including their TA/DAs and other office expenses of the Councillors shall not be released till further orders, however, with clarification that such directions will not come into operation if the amount of salary of the petitioners therein is deposited with the School Board so as to make payment to the primary school teachers. The following are the relevant observations as made by the Division Bench :
"2. Under these circumstances, we, prima facie, find that the Corporation is not competent to perform and/or is making persistent default in the performance of its duties and, therefore, it is the Corporation against whom action 6/14
19.CP324_2021.doc under Section 452 will have to be initiated and taken by the Government after giving an opportunity to the Corporation as provided in the said Section. The Government is directed to initiate the action within a period of two weeks and the Government shall complete the said action within a period of six weeks from today. In the meanwhile, the Municipal Corporation is directed to stop the expenditure on all activities except expenses relating to the essential civic amenities. We specifically further direct that all works of the roads, buildings and payments of the contractors and, for that purpose, even the salaries of the superior officers of the Corporation including their TA/DAs and other office expenses of the Councillors shall not be released till further orders from this Court. However, we make it clear that this order will not come into operation if the amount of salary of the petitioners is deposited with the School Board so as to make payment to the primary school teachers.
7. Ms. Gayatri Singh, learned senior counsel for the petitioners has drawn the Court's attention to a recent decision of the Supreme Court in State of Andhra Pradesh & Anr. vs. Dinavahi Lakshmi Kameswari, 2021 SCC Online SC 237 on the issue of payment of deferred portions of the salaries and pensions.
The Supreme Court has held that salaries constitute the rightful entitlement of the employees and are payable in accordance with law. The Supreme Court observed thus:
"15. The direction for the payment of the deferred portions of the salaries and pensions is unexceptionable. Salaries are due to the employees of the State for services rendered. Salaries in other words constitute the rightful entitlement of the employees and are payable in accordance with law......."
8. In Nagar Nigam Sewa Nivrit Karmchari Kalyan Samiti & Ors. vs. Gyanesh Bharti, a Division Bench of the Delhi High 7/14
19.CP324_2021.doc Court referring to the observation of the Supreme Court in State of Andhra Pradesh & Anr. vs. Dinavahi Lakshmi Kameswari (supra), held that the outstanding salaries of the employees cannot be withheld, payment of which is their fundamental right under Article 21. It was observed that non-availability of funds cannot be a reason for non-payment of salaries. The Court observed thus:
"The reason assigned for non-payment of timely salaries is stated to be paucity of funds which, as is well settled, cannot be excuse for non-payment, keeping in view the fact that the right to receive salary and pension is a fundamental right enshrined under Article 21 of the Constitution of India and non-payment thereof would have a direct bearing on the quality of life of the person entitled thereto and their dependants. Therefore, non-availability of funds cannot be and shall not be accepted by this Court as an excuse for timely payment of salaries.........
.
.
.
It is absolutely necessary that the payment of salaries/pensions is made to the employees/retired employees of the Corporations, which also include Doctors, Para Medical Staff and Health Workers - who are rendering their services in the time of pandemic and serving the citizens of Delhi. In fact, the payment of salaries and pensions has to be prioritised over other discretionary expenses that the Corporations are incurring.
In our view, if anybody has to take a haircut in these times due to financial constraints of the Corporations, it has to be the people at the top."
9. In Swaraj Abhiyan (VI) vs. Union of India & Ors., (2018) 7 SCC 591, the Supreme Court in dealing with the issue of delay in payment of wages due to the workers, observed thus :- 8/14
19.CP324_2021.doc "41. Notwithstanding the large number of pay orders, we are afraid delays are simply not acceptable. The law requires and indeed mandates payment of wages not later than a fortnight after the date on which the work was done by the worker or labourer. Any reason for the delay in receiving wages is not at all the concern of the worker. He or she is entitled to get the due wages within a fortnight of the completion of the work. If there are any administrative inefficiencies or deficiencies or laxity, it is entirely for the State Government and Ministry of Rural Development to sort out the problem. Bureaucratic delays or red tape cannot be pedalled as an excuse to deny payment of wages to the workers. It is precisely to overcome any inefficiency or deficiency that payment of compensation is postulated, otherwise the purpose of Section 3 and Para 29 of Schedule II of the Act would get completely defeated."
10. On the earlier occasion it was stated that the Municipal Corporation would approach the State Government for release of funds and that a letter to that effect was already addressed by the Solapur Municipal Corporation on 20 August, 2020 to the Principal Secretary, Urban Development Department, Mantralaya, Mumbai. It was thus expected that the State Government would release payment. On this background, on 20 October, 2021, this Court had passed the following order:
"1. Mr. Khairdi has placed on record the le tter dated 20 August, 2020 addressed by the Solapur Municipal Corporation to the Principal Secretary, Urban Development Department, Mantralaya, Mumbai in regard to the release of funds for payment of wages, salaries etc. of the employees of the Solapur Municipal Corporation Transport Undertaking.
2. Learned AGP has assured that he would take immediate instructions as to the progress in this regard at the level of the State Government, as the anxiety would be that the State immediately releases appropriate fun ds as demanded by the Solapur Municipal Corporation Transport Undertaking."9/14
19.CP324_2021.doc
11. Responding to the plea of the Respondent-Solapur Municipal Corporation in demanding funds from the State Government, the learned AGP has placed on record an affidavit of the Deputy Secretary to the Government of Maharashtra, Urban Development Department, Mantralaya, who has stated in paragraph 2 of the affidavit that the respondent-Solapur Municipal Corporation is duty bound to implement the orders of the Industrial Court as well as the order of this Court, and that it was essential on the part of the Municipal Corporation to make adequate budgetary provision for grants to officers and staff of transport department. In regard to the proposal as made by the respondent-Solapur Municipal Corporation vide letter dated 20 August, 2020 for release of special grant, it is stated that such a request cannot be considered as there is no scheme under the State Government for providing special grant on account of salaries and other related issues of the officers and staff of Transport undertaking of the Corporation and has accordingly rejected the request of the respondent-Solapur Municipal Corporation. The relevant paragraph of the said affidavit are required to be noted, which read thus:
"2. At the outset, I say and submit that, Solapur Municipal Corporation is duty bound to implement the orders of the Hon'ble Industrial Courts as well as the order of this Hon'ble High Court. It was essential on the part of the Municipal Corporation Solapur to make adequate budgetary provision for grants to officers and staff of transport department.10/14
19.CP324_2021.doc
3. I further say and submit that, Municipal Commissioner, Solapur Municipal Corporation has vide letter date 20/08/2020 submitted proposal to the State Government for release of funds cum a special grant amounting to Rs.27,61,38,189/- towards payment of wages, salaries etc. However, there is no scheme under the State Government for providing special grant on account of salaries and related issues of the officers and staff of Transport Undertakings of Corporations, Similarly, there is no budgetary provision for this matter at the State Government Level. So the letter dated 20.08.2020 is disposed due to there being no scheme under the State Government for providing special grant on account of salaries and related issues of the officers of staff transport.
4 I say and submit that, therefore the proposal of the Municipal Commissioner, Solapur Municipal Corporation cannot be approved. Furthermore, vide letter dated 25/10/2021 informed the same to the Municipal Commissioner, Solapur Municipal Corporation and also informed to undertake appropriate remedial measures in order to improve the financial conditions of Transport undertaking as well as the Corporation. Hereto annexed and marked as Exhibit-"A" is a copy of letter dated 25/10/2021."
12. In the aforesaid circumstances, it appears to be quite clear that the non-payment of salaries to the employees and sufferance which is meted out to the Municipal transport employees by the Municipal Corporation is solely attributable to the total mismanagement of the Municipal Corporation, it is too well settled that the paucity of funds and that too for such a large Municipal Corporation can be no reason for non-payment of the salaries of these employees. The fundamental right of the workers of a human livelihood guaranteed under Article 21 of the Constitution of India is being directly affected by such callous acts on the part of the Municipal Corporation and its officers. 11/14
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13. It is not a case that the Municipal Corporation is absolutely non-functional and/or has approached the State Government for such reason that it cannot function and hence be taken over by the State Government by appointing an administrator. In these circumstances, considering the orders passed by the Division Bench of this Court as noted above in the case of Maharashtra Rajya Prathamik Shikshak Sangh & Anr. (supra) and the decisions of the Supreme Court as also of the Delhi High Court, in my opinion, unless a strict view of the matter is taken to stop the consistent breach of the fundamental rights of the employees, the Municipal Corporation would not pay the salaries and/or clear the arrears of salaries to the petitioners. The rule of law cannot permit the employees to be rendered so helpless remediless in this situation. It cannot be countenanced that the fundamental rights which are guaranteed to the employees, and their very livelihood can be deprived in such casual manner, and at the same time keep exploiting the employees by taking regular work from them. This is against rationality and the rule of law and least expected of a public body. The arrears of salaries are about Rs.8 crores as noted above. It is sad that high municipal officers as also those governing the Municipal Corporation can be so blind to the basic requirement of payment of salaries of its own employees. As to 12/14
19.CP324_2021.doc how these employees and their families have sustained so far without receiving salaries is beyond imagination.
14. In the aforesaid circumstances, in my opinion, the following orders would meet the ends of justice :
(i) The Municipal Corporation is directed to deposit in this Court an amount of Rs. 8 crores within a period of one week from today and/or make payment of the entire arrears of salaries to the concerned employees of its municipal transport within such period.
(ii) Till such deposit and/or payments are made, the Municipal Corporation is directed to stop the expenditure on all activities except expenses relating to the essential civic amenities. It is specifically directed that all works of road, buildings and payments of the contractors and, for that purpose, even the salaries of the superior officers of the Corporation including their TA/DAs and other office expenses of the Councillors shall not be released till further orders from the Court, however, it is made clear that this order will not come into operation if the arrears of salary is paid to the concerned petitioners/employees.
(iii) It is ordered accordingly.13/14
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15. Before parting the Court would be failing in its duty not to observe that if the Corporation is not competent to perform and/or is making persistent default in performance of its duties as noted above in that event, an action against the Corporation under section 452 of the Act needs to be initiated by the State Government. It is for the State Government to consider such position. These were also the observations as made by the Division Bench in the order passed in the Malegaon Municipal Corporation's case as noted above.
16. Parties to act on the authenticated copy of this order.
17. Stand over to 15th November 2021 (HOB).
(G.S.KULKARNI, J.)
Digitally signed
by VIDYA
VIDYA SURESH AMIN
SURESH Date:
2021.10.28
AMIN 22:52:45
+0530
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