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Judgment
(PER: ABASAHEB D. SHINDE, J.) :
Rule. Rule made returnable forthwith. With the consent of the parties, the petition is heard finally at the stage of admission.
By this petition filed under Article 226 of the Constitution of India, the petitioner has put forth the following substantive prayers :
“B] By issuing appropriate writ, order or directions in like nature, the respondent authorities may kindly be directed to complete the formality of refixation of pension considering his service from 08.01.1990 i.e. the date of filing complaint ULP before labour court and forward within stipulated time the complete proposal for sanction of revised pension and pensionery benefits payable to the petitioner, considering the service of the petitioner from the date of filing complaint ULP before Labour Court, Dhule as pensionable service till 31.03.2013, in view of common decision of this Hon'ble Court rendered at Principle Seat in Writ Petition No.8908/2015 and other writ petitions dated 12.10.2018 and Writ Petition No.7083/2019 dated 18.04.2024 (passed by this Hon'ble Court at Aurangabad).
C] By issuing appropriate writ, order or directions in like nature, it be hold and declare that, the petitioner is eligible and entitled for pension and pensionary benefits, considering his past service w.e.f. 08.01.1990 i.e. the date of filing complaint ULP No. 61/1990 before Labour Court as pensionable service till 31.03.2013 i.e. the date of retirement of petitioner and accordingly, the respondent authorities may please be directed to release the arrears of payment of difference of due and drawn pension and pensionary benefits payable to the petitioner with interest @ 20% per annum from the date of retirement till the date of actual realisation of amount to the petitioner within stipulated time.”
FACTUAL MATRIX : -
It is the case of the petitioner that he was appointed as a Muster Assistant by Respondent No. 4 – Zilla Parishad on 14.01.1982. His services were terminated on 06.01.1990 by Respondent No. 4. On 08.01.1990, he approached the Labour Court, Dhule, by filing Complaint (ULP) No. 61/1990, challenging his termination. By judgment and order dated 30.08.1995, the Labour Court, Dhule, allowed the said complaint by setting aside the petitioner's termination thereby directing Respondent No.4 to reinstate him in the service with full back wages. Respondent No. 4 implemented the judgment and order passed by the Labour Court, Dhule.
It is the further case of the petitioner that, in view of the directions issued by the Hon'ble Apex Court, Muster Assistants who fall within the parameters of the scheme laid down for that purpose are to be treated at par with other employees for the purpose of regularization of their services. By Government Resolution dated 25.06.2004, it was declared that all Muster Assistants would be deemed to have been absorbed into Government service and would be entitled to service benefits by virtue of the provisions of the Maharashtra Civil Services Rules. In the meanwhile, the petitioner was absorbed into respondent No. 7 – Zilla Parishad. He stood superannuated on 31.3.2013. It is the grievance of the petitioner that, Respondent Nos.8 and 9, while sanctioning the pension, instead of considering his pensionable service from the date of filing of the complaint before the Labour Court, have considered the same from 31.03.1997. The petitioner has, therefore, approached this Court.
SUBMISSIONS : -
Learned counsel for the petitioner, at the outset, fairly submits that the petitioner has received all service benefits from the year 1997. He, however, submits that the service benefits prior to 1997 have not been paid to the petitioner, nor has his earlier service been considered for the purpose of granting pensionary benefits. He submits that, in similar circumstances, this Court has directed the concerned Zilla Parishads to consider the service of Muster Assistants for the purpose of pensionary benefits from the date of filing their complaints before the Labour Court. Reliance is placed on the decision of this Court in Writ Petition No. 8908 of 2015, in the case of Kishor Digambar Gaikwad and Others v. State of Maharashtra and Others, decided on 12.10.2018, and the decision of the Coordinate Bench of this Court in Writ Petition No. 7083 of 2019, in the case of Ramdas Bangar Patil Vs. State of Maharashtra and Others, dated 18.4.2024.
Per contra, learned counsel appearing for Respondents Nos.7 to 9 submits that, the Hon'ble Apex Court in Shaikh Miyan s/o Shaikh Chand Vs. State of Maharashtra (Civil Appeal No.6531-6533/2022), directed that, 31.03.1997 would be the notional date of absorption of employees like that of the petitioner. He invited our attention to the observations of the Hon’ble Apex Court which reads thus :
“In our view, what the Bench considered appropriate to issue notice was really the aspect that since the absorption occurred over a period of time, and that may have deprived some persons to their service as permanent employees, it should be the notional date of absorption of 31.03.1997 which should be taken into account for determining the pensionable service.
In our view, this is also what the Industrial Courts have done where relief has been granted and it has been accepted by the State.”
Learned counsel for the respondent Nos.7 to 9 further submits that, pursuant to the directions issued by the Hon'ble Apex Court. In the case of Shaikh Miyan (supra), the Government has issued Government Resolution dated 23.05.2023 (hereinafter called as ‘the absorption as 31.03.1997. He, therefore, submits that the petitioner is not entitled to have his notional date of absorption reckoned from the date of filing the complaint.
CONSIDERATION :-
We have heard learned counsel for the petitioner, learned AGP for the State, learned counsel appearing for respondent Nos.5 and 6 as well as learned counsel for respondent Nos.7 to 9 and perused the record as well as the decision relied upon by the respective counsels.
In the case of similarly circumstanced Muster Assistants, this Court in the case of Kishor Digambar Gaikwad (supra) in para Nos.10 and 11 observed thus :
“10.We are of the view that the interest of justice would be served if the petitioners are absorbed from the date of the reference or filing of the complaints before Labour Courts/Industrial Tribunal as the case may be. The said date would undoubtedly have a rationale as the date when the dispute in respect of the petitioners' termination has taken to the Labour Court/Tribunal. However, we are conscious of the fact that the grant of absorption from the dates of filing of the reference/complaints would impose a financial burden on the State Government, we would therefore modulate the relief insofar as the liability on account of the arrears that would arise. We therefore, allow the petitions and issue the following directions:
(i)The petitioners would be entitled to absorption in Government service from the date of filing of the reference/Complaint in the Labour Court/Industrial as the case may be, as shown in the tables hereinabove produced. The date should be assigned is the 1st of June of the particular year. For example in respect of the petitioner Kishor Digambar Gaikwad the date would be 01/06/1992.
(ii)That the petitioners would not be entitled to any monetary benefits in the form of arrears on the said basis but the said date would be taken into consideration for notionally fixing the salary of the petitioners/Pension of such of the petitioners who have retired, for the purposes of seniority and promotional benefits, if applicable. The exercise of notionally fixing the salary of the petitioners who are in service, and pension of the petitioners who have retired would be done latest by 31st January 2019.
(iii)Insofar as the petitioners who are in service, they would be paid salary after carrying out the exercise of notional fixation. The revised salary would be payable from December 2018.
(iv)Insofar the petitioners whose petitions are pending in this Court, the date of absorption as stipulated by the instant Judgment would be subject to outcome of the said petitions.
11.The petitions are allowed to the aforesaid extent. Rule is accordingly made absolute with parties to bear their own costs.”
Similarly, relying on paragraph Nos.10 to 11 of Kishor Digambar Gaikwad (supra), the coordinate bench of this Court in the case of Ramdas Bangar Patil (supra) has observed thus :
“8.In view of the above, these Writ Petitions are partly allowed in terms of paragraph Nos. 10 and 11 in Kishor Gaikwad (supra) reproduced above and the notional date for considering the absorption of these Petitioners, would be the dates of the filing of their ULP complaints, i.e. 131/1994 and 146/1989, respectively.
9.Rule is made partly absolute in the above terms.
10.The notional fixation of salary of the Petitioners and calculation of the pensionary benefits, so as to complete the pension papers and commence the payment of pension, shall be done in 90 days time by the Zilla Parishad / Respondent.”
We find that the said Government Resolution was issued in respect of employees who had not approached the Labour Court. However, in the present case, the petitioner had approached the Labour Court challenging his termination, and the said complaint culminated in an order allowing the same.
CONCLUSION : -
petitioner is squarely covered by the decisions of this Court in the cases of Kishor Digambar Gaikwad and Ramdas Bangar Patil (supra). In this view of the matter the writ petition deserves to be allowed. However, as observed hereinabove, since the petitioner has received all service benefits from 1997 onwards, he would be entitled to the service benefits only for the period prior to 1997.
In the light of the above, we pass the following order:
ORDER
The writ petition is partly allowed in terms of the decisions of this Court in the cases of Kishor Digambar Gaikwad and Ramdas Bangar Patil (supra). The notional date of absorption of the petitioner shall be reckoned from the date of filing of his ULP Complaint i.e., 18.01.1990.
Respondents Nos. 7 to 9 are directed to complete the pension papers and commence payment of pension by notionally fixing the petitioner's salary and calculating his pensionary benefits within eight weeks from the date of receipt of a copy of this order.
Rule is thus made absolute in the above terms.