Full Judgment Text
2023:BHC-AS:33175
R Dilwale 5-WP-8953-18 & ORS judgment.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8953 OF 2018
Municipal Commissioner, Pune Municipal
Corporation And Anr.
....Petitioner
V/S
Shri. Ashish Laxman Chavan
....Respondent
WITH
WRIT PETITION NO. 8959 OF 2018
Municipal Commissioner, Pune Municipal
Corporation And Anr. ....Petitioner
V/S
Shri. Dattatraya Ramchandra Memane ....Respondent
WITH
WRIT PETITION NO. 8956 OF 2018
Municipal Commissioner, Pune Municipal
Corporation And Anr. ....Petitioner
V/S
Shri. Sachin Damodar Bodke ....Respondent
WITH
WRIT PETITION NO. 8961 OF 2018
Municipal Commissioner, Pune Municipal
Corporation And Anr. ...Petitioner
V/S
Shri. Ravindra Kaluram Jagdale ....Respondent
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R Dilwale 5-WP-8953-18 & ORS judgment.odt
WITH
WRIT PETITION NO. 8962 OF 2018
Municipal Commissioner, Pune Municipal ....Petitioner
Corporation And Anr.
V/S
Shri. Ravindra Gangaram Shinde ....Respondent
WITH
WRIT PETITION NO. 8963 OF 2018
Municipal Commissioner, Pune Municipal ....Petitioner
Corporation And Anr.
V/S
Shri. Gopal Chhaganlal Chavan ....Respondent
WITH
WRIT PETITION NO. 8960 OF 2018
Municipal Commissioner, Pune Municipal ....Petitioner
Corporation And Anr.
V/S
Shri. Shripad Balkrishna Bojja ....Respondent
WITH
WRIT PETITION NO. 8958 OF 2018
Municipal Commissioner, Pune Municipal ....Petitioner
Corporation And Anr.
V/S
Shri. Mahesh Rajendra Bendre ....Respondent
WITH
WRIT PETITION NO. 8957 OF 2018
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R Dilwale 5-WP-8953-18 & ORS judgment.odt
Municipal Commissioner, Pune Municipal
Corporation And Anr. ...Petitioner
V/S
Shri. Pradeep Namdeo Mahadik ....Respondent
WITH
WRIT PETITION NO. 9588 OF 2016
Municipal Commissioner, Pune Municipal ....Petitioner
Corporation And Anr
V/S
Shri. Rajesh Nathoba Waghchoure ....Respondent
WITH
WRIT PETITION NO. 9600 OF 2016
Municipal Commissioner, Pune Municipal
Corporation And Anr. ....Petitioner
V/S
Shri. Suhas Ramakant Mahajan ....Respondent
WITH
WRIT PETITION NO. 9597 OF 2016
Municipal Commissioner, Pune Municipal ....Petitioner
Corporation And Anr
V/S
Shri. Ramdas Laxman Bade ....Respondent
WITH
WRIT PETITION NO. 9592 OF 2016
Municipal Commissioner, Pune Municipal Corporation ..Petitioner
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R Dilwale 5-WP-8953-18 & ORS judgment.odt
V/s
Shri. Navalkumar Parshuram Kale ....Respondent
WITH
WRIT PETITION NO. 9985 OF 2016
Municipal Commissioner, Pune Municipal
Corporation And Anr. ....Petitioner
V/s
Shri. Jagdish Mohansingh Pardeshi ....Respondent
WITH
WRIT PETITION NO. 10023 OF 2016
Municipal Commissioner, Pune Municipal ....Petitioner
Corporation And Anr
V/S
Shri. Gorakhashnath Tolaram Gofane ....Respondent
WITH
WRIT PETITION NO. 9986 OF 2016
Municipal Commissioner, Pune Municipal ....Petitioner
Corporation And Anr.
V/S
Shri. Vivek Gangaram Phule ....Respondent
WITH
WRIT PETITION NO. 8955 OF 2018
Municipal Commissioner, Pune
Municipal Corporation And Anr. ...Petitioner
V/S
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R Dilwale 5-WP-8953-18 & ORS judgment.odt
Shri. Sandeep Ramakant Bhandgaonkar ....Respondent
WITH
WRIT PETITION NO. 9816 OF 2016
Municipal Commissioner, Pune
Municipal Corporation And Anr. ..Petitioner
V/S
Shri. Yogesh Valmik Dhamdhere ....Respondent
WITH
WRIT PETITION NO. 9458 OF 2016
Municipal Commissioner, Pune Municipal ....Petitioner
Corporation And Anr.
V/S
Shri. Milind Dattatray Thigale ....Respondent
WITH
WRIT PETITION NO. 9455 OF 2016
Municipal Commissioner, Pune Municipal
Corporation And Anr.
....Petitioner
V/S
Shri. Kamlesh Madhukar Pradhan ....Respondent
WITH
WRIT PETITION NO. 9754 OF 2016
Municipal Commissioner, Pune Municipal ....Petitioner
Corporation And Anr
V/S
Shri. Ganesh Dattatray Bhujbal ....Respondent
Page 5 of 24
R Dilwale 5-WP-8953-18 & ORS judgment.odt
..
Mr. Abhijit Kulkarni a/w Mr. Gourav Shahane, Mr.
Krushna Jaybhay, Ms. Sweta Shah, Advocates for the
Petitioners.
Mr. A.S. Rao i/by Mr. Prashant Kamble, Advocate for the
Respondents.
...
CORAM : SANDEEP V. MARNE, J.
RESERVED ON : 19 OCTOBER 2023
PRONOUNCED ON : 03 NOVEMBER 2023
JUDGMENT
1. Rule . Rule is made returnable forthwith.With the
consent of the parties, Petitions are taken up for final hearing
and disposal.
2. Pune Municipal Corporation has filed the present petitions
challenging the Orders passed by the Industrial Court in
various Complaints filed by the Respondent-Employees. The
Industrial Court has allowed the complaints of Respondent-
employees and has directed the Petitioner-Corporation to pay
the amount of ‘Mushahira’ coming to the share of the
Respondent-Employees within a period of three months.
‘Mushahira’ is sort of 20% incentive payable to employees on
the compromise fees recovered from Octroi evaders. The
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R Dilwale 5-WP-8953-18 & ORS judgment.odt
Industrial Court has further directed that interest @ 6% p.a.
would be payable on the amount due on failure to pay the
same within three months.
3. Petitioner is a Municipal Corporation established
under the provisions of Maharashtra Municipal Corporations
Act, 1949. Respondents are employees of Pune Municipal
Corporation who were posted on various posts in the Octroi
Department. The General Body of Municipal Corporation
adopted a Resolution in its meeting held on 27 August 1984
resolving that 20% of amount recovered towards the
compromise fees from Octroi evaders be paid as Mushahira to
the employees apprehending the goods. The Respondents
were deployed on the duty of apprehending the Octroi evaders
from time to time. It appears that the employees
apprehending Octroi evaders were being paid 20% amount of
compromise fees towards Mushahira up to the year 2007.
From the year 2008-2009, the Municipal Corporation
discontinued the system of paying such Mushahira to Octroi
employees. The Union therefore made representations dated
21 July 2009, 22 January 2010, 12 August 2010 and 25
November 2010 complaining about discontinuation of system
of payment of Mushahira. Additionally, the concerned
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R Dilwale 5-WP-8953-18 & ORS judgment.odt
employees also made representations on 17 February 2010
and 25 February 2010. A notice was also served upon the
Municipal Corporation through Advocate on 07 December
2010. It appears that the Chief Octroi Officer also requested
the Municipal Commissioner for continuation of scheme for
payment of 20% Mushahira . However, since the system of
payment of Mushahira was not continued, the Union sent
letter dated 11 March 2013. The employees finally
approached the Industrial Court by filing various complaints
under Section 28(1) of the Maharashtra Recognition of Trade
Unions and Prevention of Unfair Labour Practices Act, 1971
( MRTP & PULP Act ) alleging unfair labour practices on the
part of Municipal Corporation and demanding payment of
unpaid amount of Mushahira for various periods.
4. For illustrative purposes, it would be appropriate to
refer to the pleadings raised in Complaint filed by the
employee-Ashish Laxman Chavan (Respondent) in Writ
Petition No.8953 of 2018. Shri. Ashish Laxman Chavan came
to be appointed in the municipal service on 06 May 1995. He
was deputed to work in Patrolling Squad of Octroi Department
from 06 August 2004 to 26 August 2009. His designation at
the relevant time was Patrolling Squad Inspector. According to
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him, the total amount due and payable for having
apprehended several Octroi evaders during the period from 06
August 2004 to 26 August 2009 is Rs. 3,15,000/-, records of
which are available with the Municipal Corporation.
Accordingly in the Complaint (ULP No. 90 of 2013) Shri.
Ashish Laxman Chavan prayed for payment of amount of
Mushahira during the period from 06 August 2004 to 26
August 2009 along with the interest at the rate of 18% per
annum.
5. The complaints were resisted by the Municipal
Corporation by filing its reply. The Municipal Corporation
claimed that its Octroi Department is not an ‘industry’ and
that therefore the complaints filed by the employees were not
maintainable. The complaints were also resisted on the ground
of delay and laches. It was also contended that the system of
paying Mushahira was stopped by the Municipal Corporation
from 02 September 2009 vide Resolution No.183 dated 13
May 2010.
6. The Industrial Court, after hearing both the sides,
delivered Award dated 02 April 2016 allowing the complaints
holding that the Petitioner-Municipal Corporation has
indulged in unfair labour practices as enumerated in item-9 of
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Schedule IV of MRTU & PULP Act. The Corporation is directed
to pay the amount of Mushahira coming to the share of the
Complainants within three months, failing which interest at
the rate of 6% per annum from the date of the order till the
actual date of payment.
7. Mr. Kulkarni, the learned counsel would appear on
behalf of the Petitioner-Municipal Corporation and submit that
the complaints filed by the Respondent-employees were not
maintainable as the Octroi Department of the Municipal
Corporation is not an industry. In support of this contention,
he would rely upon the Judgment of the Apex Court in
1
Parmanand Vs. Nagar Palika, Dehradun & Others and
Judgement of the Division Bench of this Court in Abdul
Shabir Khan Ahmed Khan & Ors. Vs. Municipal Council,
2
Bhandara .
8. Mr. Kulkarni would further submit that the
Complaints filed by the Respondents were otherwise time
barred. That, no right was created in favour of the employees
to demand the amount of Mushahira . That it is their duty to
collect Octroi and therefore they cannot seek any additional
1 (2004) ILLJ 235 SC, 2003 (10) SCALE 481, (2003) 9 SCC 290
2 1969 MHLJ 532.
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R Dilwale 5-WP-8953-18 & ORS judgment.odt
payments over and above the salary and allowances. That,
grant of any such Mushahira creates discrimination between
two sets of employees of the Municipal Corporation. That
while other employees do not get any incentive, those working
in Octroi Department demand incentive for collection of
higher amount of Octroi. He would pray for setting aside
Awards passed by the Industrial Court.
9. Per Contra, Mr. Rao would appear for Respondent-
employees and oppose the petition and support the orders
passed by the Industrial Court. He would submit that even
Octroi Department of Municipal Corporation is held to be an
industry. Relying on the Judgment of the Apex Court in
3
Corporation of City of Nagpur Vs. Its employees & Ors,
he would submit that the Tax Department of Municipal
Corporation has been held to be an Industry. He would also
place reliance on Division Bench Judgment of this Court in
Abdul Wahab Sheikh Lal Bhai Vs. G.E. Patankar,
4
Industrial Tribunal Vs. Ors. in support of his contention
that Octroi Department of a Municipal Corporation falls within
the definition of the term ‘industry’. He would therefore
3 1960 LLJ 523
4 1989 MHLJ 100
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submit that complaints filed by the employees were therefore
maintainable.
10. Mr. Rao would further submit that the Resolution
passed by the General Body of the Municipal Corporation has
created a right in favour of employees to claim payment of
Mushahira . That, such right created in favour of employees’
cannot be defeated at the whims and caprices of the Municipal
Commissioner. That, there is nothing on record to indicate
that the Resolution passed by the Municipal Corporation has
been rescinded by the State Government or any fresh
resolution is passed discontinuing the system of payment of
Mushahira . That, even the subsequent Resolution No. 183
dated 13 May 2010 envisaged continuance of the scheme for
payment of Mushahira . That, the Industrial Court has
directed payment of Mushahira to the employees in respect of
the period when the scheme for payment of such Mushahira
was invogue. That, in such circumstances, there is no patent
error in the order of Industrial Court. He would pray for
dismissal of the Petitions.
11. Rival contentions of the parties now fall for my
consideration.
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R Dilwale 5-WP-8953-18 & ORS judgment.odt
12. The first issue raised by the Petitioner-Municipal
Corporation is that its Octroi Department is not an ‘industry’
and therefore, the complaints filed by the employees were not
maintainable. It would therefore be necessary to first answer
the issue of maintainability of the complaints. The Industrial
Court has relied upon judgment of the Apex Court in
Corporation of City of Nagpur ( supra ) for holding that the
Octroi Department of the Municipal Corporation is an
industry. In Corporation of City of Nagpur ( supra ), the Apex
Court has considered each and every department of the
Municipal Corporations for determining whether such
departments would be covered by the expression ‘industry’
within the meaning of Industrial Disputes Act. So far as the
Tax Department is concerned, the Apex Court held as under:-
“(1) Tax department: The main functions of this
department are the imposition and collection of
conservancy, water and property taxes. No separate staff
has been employed for the assessment and levy of
property taxes: the same staff does the work connected
with assessment and collection of water-rates as well as
scavenging taxes. It is not disputed that the work of
assessment and levy of water-rate and scavenging rate for
private latrines is far heavier than the other works
entrusted to this department. No attempt has been made
to allocate specific proportion of the staff for different
functions. We, therefore, must accept the finding of the
State industrial court that the staff of this department
doing clerical or manual work predominantly does the
work connected with scavenging taxes and water-rate. The
said rates are really intended as fees for the service
rendered. The services, namely, scavenging and supply of
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water, can equally be undertaken by a private firm or an
individual for remuneration and the fact that the
municipality does the same duty does not make it any the
less a service coming under the definition of "industry." We
would, however, prefer to sustain the finding on a broader
basis. There cannot be a distinction between property tax
and other taxes collected by the municipality for the
purpose of designating the Tax department as an industry
or otherwise. The scheme of the Corporation Act is that
taxes and fees are collected in order to enable the
municipality to discharge its statutory functions. If the
functions so discharged are wholly or predominantly
covered by the definition of "industry," it would be illogical
to exclude the Tax department from the definition. While in
the case of private individuals or firms services are paid in
cash or otherwise, in the case of public institutions, as the
services are rendered to the public, the taxes collected
from them constitute a fund for performing those services.
As most of the services rendered by the municipality come
under the definition of "industry," we should hold that the
employees of the Tax department are also entitled to the
benefits under the Act.
13. However, a Division Bench of this Court in
Abdul Shabir Khan Ahmed Khan (supra) considered
the issue specifically with regard to the Octroi Department
of the Municipal Corporation. It considered the Judgement of
the Apex Court in Corporation of City of Nagpur (supra)
and held that the judgment of Apex Court envisaged
examination of activities of each of the departments for
arriving at a conclusion as to whether that department would
be treated as an ‘industry’. Though Tax Department of
Municipal Corporation is held as an industry in Corporation
of City of Nagpur , Division Bench of this Court considered
whether Octroi Department would be an industry and held
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that the same cannot be treated as an industry. This Court
held in para 13 as under:-
13. It will thus be seen that this Octroi Department not only
does not produce material goods, nor render material services
but only shares by delegation in the governmental functions,
namely, imposing, collecting and levying the Octroi tax and as
such, the activities of the Octroi Department cannot be held to
amount to an "industry". In view of this, we are of opinion that
the Octroi Department of which the petitioners are the
employees cannot be held to be an "industry" and as such, the
provisions of the Industrial Disputes Act, and particularly those
of section 25F thereof, cannot be made applicable to the
present employer. Therefore, there was no need for the
respondent-Municipal Council to follow the procedure laid
down in section 25F (b) of the Industrial Disputes Act and the
non-payment of the retrenchment compensation provided
therein does not make the termination or the retrenchment
invalid. The petitioners have been given a proper notice and
there is no infirmity on that account.
14. Thus while the Apex Court in Corporation of City
of Nagpur held that the Tax Department of Municipal
Corporation is an industry, Division Bench of this Court in
Abdul Shabir Khan Ahmed Khan held that ‘Octroi
Department’ of Municipal Corporation is not an industry.
15. In Parmanand (supra) the Apex Court held that
activities of Nagar Palika and all its department, except those
dealing with levy of house tax, etc fall within definition of an
‘industry’. It is after placing reliance of the Judgment in
Parmanand (supra) that Mr. Kulkarni has strenuously
contended that departments concerned with levy of taxes have
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been excluded by the Apex Court in Parmanand from purview
‘industry’.
16. A Division Bench of this Court in Abdul
Vahab Shaikh Lal Bhai ( supra) has held that Octroi
Department of the Municipal Corporation would fall within
definition of industry. Thus there are divergence of opinion in
various judgments as to whether Octroi Department of the
Municipal Corporation would be an ‘industry’. In Parmanand
(supra), the Apex Court had held that the activities of Nagar
Palika in all its departments except those dealing with levy of
house tax, etc. would fall within the definition of the ‘industry’.
On the contrary, in its earlier Judgment in Corporation of
City of Nagpur , the Apex Court has held that the activities of
Tax Department of the Municipal Corporation would be an
industry.
17. In view of the divergence of views, I feel that the
question need not be answered considering the peculiar facts
and circumstances of the case. The issue whether Octroi
Department of Municipal Corporation is an industry or not is
therefore left upon.
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18. Adverting to the merits of the petition, Respondents
claimed Mushahira in the form of 20% incentives out of
compromise fees recovered from Octroi evaders. The Urdu
word ‘ Mushahira’ means ‘stipend’ in English. The Resolution
No.1175 adopted by the Standing Committee of Municipal
Corporation on 27 August 1984 has described the word
‘ Mushahira’ to mean Gift ( Bakshihi ). There is no dispute to the
position that the amount of Mushahira is over and above the
salary and allowances payable to the employees posted in the
Octroi Department. The Standing Committee Resolution
No.1175 adopted on 27 August 1984, reads thus:-
नगरसचिव कार्यालय पुणे महानगरपालिका
. .
स्थायी समिती ठराव क्रं ११७५
: - -
दिनांक २७ ८ ८४
.
सभा क्र ३३
. . . : . .
विषय क्रं ११४८ ठराव क्रं ११७५ खाते महा
आयुक्त
-----------------------------------------------------------------------------------
: . . . - , . - - .
संदर्भ मा महा आयुक्त याचि क्र मआ ६६७ दि ३० ६ ८४ चे पत्र
. --
मा महापालिका आयुक्त यांनी दिलेली कारणे व केलेली शिफारस विचारात घेऊन
आयातकर उत्पन्नात वाढ करण्यासाठी सेवकांना उत्तेजनार्थ बक्षीस म्हणून जास्तीत जास्त
, . - -
२० टक्के मुशाहिरा देण्याबाबत स्थायी समितीचा ठराव क्रमांक २१६० दि २२ ११ ८३ चा झाला
. .
आहे तथापि हि रक्कम फार कमी असल्याने त्यात वाढ करण्याबाबत मा आयुक्त यांच्या संदर्भांकित
( ) ( )
पत्रात सुचविल्याप्रमाणे १ ते ५ मुद्यांप्रमाणे रक्कम मुशाहिरा बक्षिसी
म्हणून देण्यास मान्यता
.
देण्यात येत आहे
/- , .
सही नगरसचिव पुणे मनपा
- -
खरी नक्कल
, .
आयतकार प्रमुख पुणे महानगरपालिका
. .
मुद्दे क्र १ ते ५
Page 17 of 24
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.
१ नाक्यावरील सेवक ड्युटीवर असताना किंवा इतरवेळी त्यांनी बिगर जकात माल पकडून
.
दिल्यास त्यांना वसूल झालेल्या तडजोड फी चे २० टक्के मुशाहिरा देण्यात यावा
.
२ तपासणी निरीक्षकांनी साध्वीक तऱ्हेने बिगर जकात माल पकडल्यास त्यांनाही जीप ड्राइवर
.
व शिपायासहित सर्वास मिळून २० टक्के मुशाहिरा स्वरूपात देण्यात यावी
.
३ बिगर जकात माल पकडल्यानंतर आयातदारांनी तडजोड फी नाकारता प्रकरण न्यायप्रविस्ट
.
झाल्यास न्यायालयात जो दंड होईल त्यांच्या २० टक्के रक्कम मुशाहिरा म्हणून देण्यात यावी
3A) . .
मा महा आयुक्त मान्य करतील त्याच वाहनांपैकी वाहन पकडल्यास मुशाहिरा देण्यात
.
येईल
. . ..
४ मनपा आयतकर विभागातील सेवकांच्या अतिरिक्त व अन्य सेवक पोलीस अधिकारी व
पोलीस यांनाही बिगर जकात माल पकडून मनपा चे ताब्यात दिल्यास त्यांना मालाचे जकातीचे
/- .
स्वरूपात रुपये ५०० पर्यंतचा मुशाहिरा व प्रशस्ति पत्रकही द्यावे
. . - - .
५ सदरची पद्धती दि १ ४ १९८४ पासून अंमलात आणावी
--------------
19. Perusal of the Resolution dated 27 August 1984
would indicate that the Municipal Corporation had resolved to
pay 20% of compromise fees recovered from Octroi Evaders.
However, such payment was not automatic in that Para 3A of
the Resolution specifically directed that Mushahira would be
paid only in respect of those vehicles which are approved by
the Municipal Commissioner. Thus for every case of recovery
of Octroi, payment of Mushahira was not payable as a matter
of right and a discretion was vested in the Municipal
Commissioner to certify the vehicles in respect of which such
Mushahira could be paid.
20. Payment of salary and allowances to the employees
and officers of the Municipal Corporation are governed by the
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provisions of Section 51 of the Maharashtra Municipal
Corporations Act, 1949. Section 51 reads thus:-
51. Number, designations, grades, etc. of other
municipal officers and servants.
(1) Subject to the provisions of sub-section (4), the
Standing Committee shall from time to time determine
the number, designations, grades, salaries, fees and
allowances of auditors, assistant auditors', officers, clerks
and servants to be immediately subordinate to the
Municipal Chief Auditor and the Municipal Secretary
respectively.
(2) The Commissioner shall, from time to time, prepare
and bring before the Standing Committee a statement
setting forth the number, designations and grades of the
other officers and servants who should in his opinion be
maintained, and the amount and nature of the salaries,
fees and allowances which he proposes should be paid to
each.
(3) The Standing Committee shall, subject to the
provisions of sub-section (4), sanction such statement
either as it stands or subject to such modifications as it
deems expedient.
( 4) No new posts of the officers and servants of
the Corporation shall be created without the prior
sanction of the State Government:
Provided that, the decision of the Government on a
proposal complete in all respects, received from the
Corporation for creation of posts shall be communicated
to the Corporation within ninety days from the date of the
receipt of such proposal by the Government.
(5) Nothing in this section shall be construed as affecting
the right of the Corporation or of the Commissioner to
make any temporary appointment which it or he is
empowered to make under section 53.
Explanation.— Any revision of pay scale or pay
structure or grant of special pay, or grade, or
revision of allowances (excluding dearness
allowance) or change in designation shall be
deemed, for the purposes of sub-section (4), to be
the creation of a new post.
(emphasis supplied)
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21. Thus, Standing Committee is empowered to
determine salaries payable to the Municipal employees.
However, under Explanation to Section 51, revision of
payscale, pay structure or grant of special pay or grade or
revision of allowances is deemed to be treated as ‘creation of
new posts’. Under sub-Section(4) of Section 51, no new posts
in municipal service can be created without the prior sanction
of the State Government. Thus though the Standing
Committee is empowered to determine salaries payable to
municipal employees, any revision in the payscale or grant of
any special pay or revision of allowances cannot take effect
without prior sanction of the State Government. Payment of
Mushahira , those not part of salary, is in form of a special
allowance, payable to the municipal employees in the Octroi
Department as an incentive for collection of higher amount of
Octroi. Since amounts towards such Mushahira can be paid to
the municipal employees and officers only through the funds
of the Municipal Corporation, the amount of such Mushahira
would form of part of either special pay or special allowances.
Therefore, for payment of such special pay or special
allowance in the form of Mushahira , previous sanction of the
State Government is mandatory. There is nothing on record to
indicate that the State Government had granted approval to
Page 20 of 24
R Dilwale 5-WP-8953-18 & ORS judgment.odt
the Municipal Corporation’s Resolution No. 1175 adopted on
27 August 1984. Though it is vaguely pleaded in the
complaints that the Government had granted approval to the
Standing Committee’s Resolution, no material was produced
before the Industrial Court to prove that such approval was
granted by the State Government. On the contrary, it was
pleaded by the Municipal Corporation in its reply filed before
the Industrial Court that the Chief Auditor had objected to
payment of such Mushahira to the Municipal employees. The
Industrial Court’s Order does not record any finding that the
prior sanction of the State Government was obtained for
payment of Mushahira . In my view, therefore, the entire
system of payment of Mushahira adopted by the Municipal
Corporation was dehorse the statutory provisions.
22. Even if it is assumed that the State Government had
sanctioned the system of paying Mushahira, payment of
Mushahira was not automatic or as a matter of right in every
case of Octroi evasion. The vehicles, in respect of which
Mushahira could be paid, were required to be approved by the
Municipal Commissioner. Therefore it was open for the
Municipal Corporation to deny Mushahira in his discretion.
The Resolution of the Standing Committee, can at best, be
Page 21 of 24
R Dilwale 5-WP-8953-18 & ORS judgment.odt
treated as an enabling provision under which the Municipal
Corporation was vested with power to sanction Mushahira for
catching selected vehicles involved in Octroi evasion. No
corresponding right was created in employees’ favour to
demand such Mushahira as a matter of right. Ignoring this
position, the Industrial Court has however issued a blanket
direction for payment of Mushahira to all Respondents.
23. Even though Mr. Rao attempted to take me through
the evidence recorded before the Industrial Tribunal, in my
view, once the system of payment of Mushahira is found to be
in breach of statutory provisions on account of non-grant of
prior sanction by the State Government, no amount of
evidence would confer any right on the Respondents which
statutorily does not exists. Merely because the Municipal
Corporation might have paid such Mushahira to its employees
in the past would not create any right in their favour to
continue to receive it. Municipal Commissioner has rightly
discontinued the system of payment of Mushahira , which has
no statutory recognition.
24. Mr. Rao’s contention that the system for payment of
Mushahira was beneficial both to Municipal Corporation as
Page 22 of 24
R Dilwale 5-WP-8953-18 & ORS judgment.odt
well as its employees would not cut any ice. He has submitted
that the Municipal Corporation has saved funds by not
employing a contractor to collect Octroi. To my mind, such
submission cannot be countenanced as the Municipal
employees cannot demand anything over and above salary and
allowances payable to them as per the Rules of the Municipal
Corporation. As rightly pointed out by Mr. Kulkarni such
system of payment of any amount over and above salary and
allowances would create discrimination amongst employees
and would be a cause of heartburn for other employees not
posted in Octroi Department. Such system would also create
unnecessary demand amongst the employees to seek posting
in the Octroi Department. The amount demanded by
Respondent-employees towards Mushahira in their complaints
also appear to be considerably high. To illustrate, Shri. Pradip
Namdev Mahadik demanded Mushahira of Rs. 12,00,000/- for
having worked in the Octroi Department after 09 August
2007. Payment of such exceptionally high amount in the form
of commission for collection of Octroi over and above salary
and allowances to selected few employees is otherwise
unjustifiable and cannot be countenanced. The Municipal
Commissioner has rightly discontinued the system, which has
no statutory recognition. The employees of Octroi Department
Page 23 of 24
R Dilwale 5-WP-8953-18 & ORS judgment.odt
perform their duties in apprehending vehicles evading Octroi.
For performing their duties, they cannot demand any
incentives in the form of commission on the Octroi so
collected. In my view therefore the Municipal Corporation has
rightly discontinued the scheme of payment of Mushahira . No
error can be found in such action of the Municipal
Corporation. The Industrial court ought to have been
appreciated the matter in right perspective. It has committed
serious error in allowing the complaints filed by the
Respondent-employees.
25. In my view therefore, no right is vested in the
employee of Octroi Department of the Municipal Corporation
to claim any amount towards Mushahira from the Municipal
Corporation. The Industrial Court has erred in allowing the
complaints and in directing payment of Mushahira . The
impugned Awards are therefore unsustainable and are liable
to be set aside. Writ petitions accordingly succeed. Impugned
Judgments and orders passed by the Industrial Court are
accordingly set aside. Rule is made absolute. There shall be no
order as to costs.
SANDEEP V. MARNE, J
Page 24 of 24
Signed by: Rameshwar L. Dilwale
Designation: PA To Honourable Judge
Date: 02/11/2023 15:49:46
R Dilwale 5-WP-8953-18 & ORS judgment.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8953 OF 2018
Municipal Commissioner, Pune Municipal
Corporation And Anr.
....Petitioner
V/S
Shri. Ashish Laxman Chavan
....Respondent
WITH
WRIT PETITION NO. 8959 OF 2018
Municipal Commissioner, Pune Municipal
Corporation And Anr. ....Petitioner
V/S
Shri. Dattatraya Ramchandra Memane ....Respondent
WITH
WRIT PETITION NO. 8956 OF 2018
Municipal Commissioner, Pune Municipal
Corporation And Anr. ....Petitioner
V/S
Shri. Sachin Damodar Bodke ....Respondent
WITH
WRIT PETITION NO. 8961 OF 2018
Municipal Commissioner, Pune Municipal
Corporation And Anr. ...Petitioner
V/S
Shri. Ravindra Kaluram Jagdale ....Respondent
Page 1 of 24
R Dilwale 5-WP-8953-18 & ORS judgment.odt
WITH
WRIT PETITION NO. 8962 OF 2018
Municipal Commissioner, Pune Municipal ....Petitioner
Corporation And Anr.
V/S
Shri. Ravindra Gangaram Shinde ....Respondent
WITH
WRIT PETITION NO. 8963 OF 2018
Municipal Commissioner, Pune Municipal ....Petitioner
Corporation And Anr.
V/S
Shri. Gopal Chhaganlal Chavan ....Respondent
WITH
WRIT PETITION NO. 8960 OF 2018
Municipal Commissioner, Pune Municipal ....Petitioner
Corporation And Anr.
V/S
Shri. Shripad Balkrishna Bojja ....Respondent
WITH
WRIT PETITION NO. 8958 OF 2018
Municipal Commissioner, Pune Municipal ....Petitioner
Corporation And Anr.
V/S
Shri. Mahesh Rajendra Bendre ....Respondent
WITH
WRIT PETITION NO. 8957 OF 2018
Page 2 of 24
R Dilwale 5-WP-8953-18 & ORS judgment.odt
Municipal Commissioner, Pune Municipal
Corporation And Anr. ...Petitioner
V/S
Shri. Pradeep Namdeo Mahadik ....Respondent
WITH
WRIT PETITION NO. 9588 OF 2016
Municipal Commissioner, Pune Municipal ....Petitioner
Corporation And Anr
V/S
Shri. Rajesh Nathoba Waghchoure ....Respondent
WITH
WRIT PETITION NO. 9600 OF 2016
Municipal Commissioner, Pune Municipal
Corporation And Anr. ....Petitioner
V/S
Shri. Suhas Ramakant Mahajan ....Respondent
WITH
WRIT PETITION NO. 9597 OF 2016
Municipal Commissioner, Pune Municipal ....Petitioner
Corporation And Anr
V/S
Shri. Ramdas Laxman Bade ....Respondent
WITH
WRIT PETITION NO. 9592 OF 2016
Municipal Commissioner, Pune Municipal Corporation ..Petitioner
Page 3 of 24
R Dilwale 5-WP-8953-18 & ORS judgment.odt
V/s
Shri. Navalkumar Parshuram Kale ....Respondent
WITH
WRIT PETITION NO. 9985 OF 2016
Municipal Commissioner, Pune Municipal
Corporation And Anr. ....Petitioner
V/s
Shri. Jagdish Mohansingh Pardeshi ....Respondent
WITH
WRIT PETITION NO. 10023 OF 2016
Municipal Commissioner, Pune Municipal ....Petitioner
Corporation And Anr
V/S
Shri. Gorakhashnath Tolaram Gofane ....Respondent
WITH
WRIT PETITION NO. 9986 OF 2016
Municipal Commissioner, Pune Municipal ....Petitioner
Corporation And Anr.
V/S
Shri. Vivek Gangaram Phule ....Respondent
WITH
WRIT PETITION NO. 8955 OF 2018
Municipal Commissioner, Pune
Municipal Corporation And Anr. ...Petitioner
V/S
Page 4 of 24
R Dilwale 5-WP-8953-18 & ORS judgment.odt
Shri. Sandeep Ramakant Bhandgaonkar ....Respondent
WITH
WRIT PETITION NO. 9816 OF 2016
Municipal Commissioner, Pune
Municipal Corporation And Anr. ..Petitioner
V/S
Shri. Yogesh Valmik Dhamdhere ....Respondent
WITH
WRIT PETITION NO. 9458 OF 2016
Municipal Commissioner, Pune Municipal ....Petitioner
Corporation And Anr.
V/S
Shri. Milind Dattatray Thigale ....Respondent
WITH
WRIT PETITION NO. 9455 OF 2016
Municipal Commissioner, Pune Municipal
Corporation And Anr.
....Petitioner
V/S
Shri. Kamlesh Madhukar Pradhan ....Respondent
WITH
WRIT PETITION NO. 9754 OF 2016
Municipal Commissioner, Pune Municipal ....Petitioner
Corporation And Anr
V/S
Shri. Ganesh Dattatray Bhujbal ....Respondent
Page 5 of 24
R Dilwale 5-WP-8953-18 & ORS judgment.odt
..
Mr. Abhijit Kulkarni a/w Mr. Gourav Shahane, Mr.
Krushna Jaybhay, Ms. Sweta Shah, Advocates for the
Petitioners.
Mr. A.S. Rao i/by Mr. Prashant Kamble, Advocate for the
Respondents.
...
CORAM : SANDEEP V. MARNE, J.
RESERVED ON : 19 OCTOBER 2023
PRONOUNCED ON : 03 NOVEMBER 2023
JUDGMENT
1. Rule . Rule is made returnable forthwith.With the
consent of the parties, Petitions are taken up for final hearing
and disposal.
2. Pune Municipal Corporation has filed the present petitions
challenging the Orders passed by the Industrial Court in
various Complaints filed by the Respondent-Employees. The
Industrial Court has allowed the complaints of Respondent-
employees and has directed the Petitioner-Corporation to pay
the amount of ‘Mushahira’ coming to the share of the
Respondent-Employees within a period of three months.
‘Mushahira’ is sort of 20% incentive payable to employees on
the compromise fees recovered from Octroi evaders. The
Page 6 of 24
R Dilwale 5-WP-8953-18 & ORS judgment.odt
Industrial Court has further directed that interest @ 6% p.a.
would be payable on the amount due on failure to pay the
same within three months.
3. Petitioner is a Municipal Corporation established
under the provisions of Maharashtra Municipal Corporations
Act, 1949. Respondents are employees of Pune Municipal
Corporation who were posted on various posts in the Octroi
Department. The General Body of Municipal Corporation
adopted a Resolution in its meeting held on 27 August 1984
resolving that 20% of amount recovered towards the
compromise fees from Octroi evaders be paid as Mushahira to
the employees apprehending the goods. The Respondents
were deployed on the duty of apprehending the Octroi evaders
from time to time. It appears that the employees
apprehending Octroi evaders were being paid 20% amount of
compromise fees towards Mushahira up to the year 2007.
From the year 2008-2009, the Municipal Corporation
discontinued the system of paying such Mushahira to Octroi
employees. The Union therefore made representations dated
21 July 2009, 22 January 2010, 12 August 2010 and 25
November 2010 complaining about discontinuation of system
of payment of Mushahira. Additionally, the concerned
Page 7 of 24
R Dilwale 5-WP-8953-18 & ORS judgment.odt
employees also made representations on 17 February 2010
and 25 February 2010. A notice was also served upon the
Municipal Corporation through Advocate on 07 December
2010. It appears that the Chief Octroi Officer also requested
the Municipal Commissioner for continuation of scheme for
payment of 20% Mushahira . However, since the system of
payment of Mushahira was not continued, the Union sent
letter dated 11 March 2013. The employees finally
approached the Industrial Court by filing various complaints
under Section 28(1) of the Maharashtra Recognition of Trade
Unions and Prevention of Unfair Labour Practices Act, 1971
( MRTP & PULP Act ) alleging unfair labour practices on the
part of Municipal Corporation and demanding payment of
unpaid amount of Mushahira for various periods.
4. For illustrative purposes, it would be appropriate to
refer to the pleadings raised in Complaint filed by the
employee-Ashish Laxman Chavan (Respondent) in Writ
Petition No.8953 of 2018. Shri. Ashish Laxman Chavan came
to be appointed in the municipal service on 06 May 1995. He
was deputed to work in Patrolling Squad of Octroi Department
from 06 August 2004 to 26 August 2009. His designation at
the relevant time was Patrolling Squad Inspector. According to
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R Dilwale 5-WP-8953-18 & ORS judgment.odt
him, the total amount due and payable for having
apprehended several Octroi evaders during the period from 06
August 2004 to 26 August 2009 is Rs. 3,15,000/-, records of
which are available with the Municipal Corporation.
Accordingly in the Complaint (ULP No. 90 of 2013) Shri.
Ashish Laxman Chavan prayed for payment of amount of
Mushahira during the period from 06 August 2004 to 26
August 2009 along with the interest at the rate of 18% per
annum.
5. The complaints were resisted by the Municipal
Corporation by filing its reply. The Municipal Corporation
claimed that its Octroi Department is not an ‘industry’ and
that therefore the complaints filed by the employees were not
maintainable. The complaints were also resisted on the ground
of delay and laches. It was also contended that the system of
paying Mushahira was stopped by the Municipal Corporation
from 02 September 2009 vide Resolution No.183 dated 13
May 2010.
6. The Industrial Court, after hearing both the sides,
delivered Award dated 02 April 2016 allowing the complaints
holding that the Petitioner-Municipal Corporation has
indulged in unfair labour practices as enumerated in item-9 of
Page 9 of 24
R Dilwale 5-WP-8953-18 & ORS judgment.odt
Schedule IV of MRTU & PULP Act. The Corporation is directed
to pay the amount of Mushahira coming to the share of the
Complainants within three months, failing which interest at
the rate of 6% per annum from the date of the order till the
actual date of payment.
7. Mr. Kulkarni, the learned counsel would appear on
behalf of the Petitioner-Municipal Corporation and submit that
the complaints filed by the Respondent-employees were not
maintainable as the Octroi Department of the Municipal
Corporation is not an industry. In support of this contention,
he would rely upon the Judgment of the Apex Court in
1
Parmanand Vs. Nagar Palika, Dehradun & Others and
Judgement of the Division Bench of this Court in Abdul
Shabir Khan Ahmed Khan & Ors. Vs. Municipal Council,
2
Bhandara .
8. Mr. Kulkarni would further submit that the
Complaints filed by the Respondents were otherwise time
barred. That, no right was created in favour of the employees
to demand the amount of Mushahira . That it is their duty to
collect Octroi and therefore they cannot seek any additional
1 (2004) ILLJ 235 SC, 2003 (10) SCALE 481, (2003) 9 SCC 290
2 1969 MHLJ 532.
Page 10 of 24
R Dilwale 5-WP-8953-18 & ORS judgment.odt
payments over and above the salary and allowances. That,
grant of any such Mushahira creates discrimination between
two sets of employees of the Municipal Corporation. That
while other employees do not get any incentive, those working
in Octroi Department demand incentive for collection of
higher amount of Octroi. He would pray for setting aside
Awards passed by the Industrial Court.
9. Per Contra, Mr. Rao would appear for Respondent-
employees and oppose the petition and support the orders
passed by the Industrial Court. He would submit that even
Octroi Department of Municipal Corporation is held to be an
industry. Relying on the Judgment of the Apex Court in
3
Corporation of City of Nagpur Vs. Its employees & Ors,
he would submit that the Tax Department of Municipal
Corporation has been held to be an Industry. He would also
place reliance on Division Bench Judgment of this Court in
Abdul Wahab Sheikh Lal Bhai Vs. G.E. Patankar,
4
Industrial Tribunal Vs. Ors. in support of his contention
that Octroi Department of a Municipal Corporation falls within
the definition of the term ‘industry’. He would therefore
3 1960 LLJ 523
4 1989 MHLJ 100
Page 11 of 24
R Dilwale 5-WP-8953-18 & ORS judgment.odt
submit that complaints filed by the employees were therefore
maintainable.
10. Mr. Rao would further submit that the Resolution
passed by the General Body of the Municipal Corporation has
created a right in favour of employees to claim payment of
Mushahira . That, such right created in favour of employees’
cannot be defeated at the whims and caprices of the Municipal
Commissioner. That, there is nothing on record to indicate
that the Resolution passed by the Municipal Corporation has
been rescinded by the State Government or any fresh
resolution is passed discontinuing the system of payment of
Mushahira . That, even the subsequent Resolution No. 183
dated 13 May 2010 envisaged continuance of the scheme for
payment of Mushahira . That, the Industrial Court has
directed payment of Mushahira to the employees in respect of
the period when the scheme for payment of such Mushahira
was invogue. That, in such circumstances, there is no patent
error in the order of Industrial Court. He would pray for
dismissal of the Petitions.
11. Rival contentions of the parties now fall for my
consideration.
Page 12 of 24
R Dilwale 5-WP-8953-18 & ORS judgment.odt
12. The first issue raised by the Petitioner-Municipal
Corporation is that its Octroi Department is not an ‘industry’
and therefore, the complaints filed by the employees were not
maintainable. It would therefore be necessary to first answer
the issue of maintainability of the complaints. The Industrial
Court has relied upon judgment of the Apex Court in
Corporation of City of Nagpur ( supra ) for holding that the
Octroi Department of the Municipal Corporation is an
industry. In Corporation of City of Nagpur ( supra ), the Apex
Court has considered each and every department of the
Municipal Corporations for determining whether such
departments would be covered by the expression ‘industry’
within the meaning of Industrial Disputes Act. So far as the
Tax Department is concerned, the Apex Court held as under:-
“(1) Tax department: The main functions of this
department are the imposition and collection of
conservancy, water and property taxes. No separate staff
has been employed for the assessment and levy of
property taxes: the same staff does the work connected
with assessment and collection of water-rates as well as
scavenging taxes. It is not disputed that the work of
assessment and levy of water-rate and scavenging rate for
private latrines is far heavier than the other works
entrusted to this department. No attempt has been made
to allocate specific proportion of the staff for different
functions. We, therefore, must accept the finding of the
State industrial court that the staff of this department
doing clerical or manual work predominantly does the
work connected with scavenging taxes and water-rate. The
said rates are really intended as fees for the service
rendered. The services, namely, scavenging and supply of
Page 13 of 24
R Dilwale 5-WP-8953-18 & ORS judgment.odt
water, can equally be undertaken by a private firm or an
individual for remuneration and the fact that the
municipality does the same duty does not make it any the
less a service coming under the definition of "industry." We
would, however, prefer to sustain the finding on a broader
basis. There cannot be a distinction between property tax
and other taxes collected by the municipality for the
purpose of designating the Tax department as an industry
or otherwise. The scheme of the Corporation Act is that
taxes and fees are collected in order to enable the
municipality to discharge its statutory functions. If the
functions so discharged are wholly or predominantly
covered by the definition of "industry," it would be illogical
to exclude the Tax department from the definition. While in
the case of private individuals or firms services are paid in
cash or otherwise, in the case of public institutions, as the
services are rendered to the public, the taxes collected
from them constitute a fund for performing those services.
As most of the services rendered by the municipality come
under the definition of "industry," we should hold that the
employees of the Tax department are also entitled to the
benefits under the Act.
13. However, a Division Bench of this Court in
Abdul Shabir Khan Ahmed Khan (supra) considered
the issue specifically with regard to the Octroi Department
of the Municipal Corporation. It considered the Judgement of
the Apex Court in Corporation of City of Nagpur (supra)
and held that the judgment of Apex Court envisaged
examination of activities of each of the departments for
arriving at a conclusion as to whether that department would
be treated as an ‘industry’. Though Tax Department of
Municipal Corporation is held as an industry in Corporation
of City of Nagpur , Division Bench of this Court considered
whether Octroi Department would be an industry and held
Page 14 of 24
R Dilwale 5-WP-8953-18 & ORS judgment.odt
that the same cannot be treated as an industry. This Court
held in para 13 as under:-
13. It will thus be seen that this Octroi Department not only
does not produce material goods, nor render material services
but only shares by delegation in the governmental functions,
namely, imposing, collecting and levying the Octroi tax and as
such, the activities of the Octroi Department cannot be held to
amount to an "industry". In view of this, we are of opinion that
the Octroi Department of which the petitioners are the
employees cannot be held to be an "industry" and as such, the
provisions of the Industrial Disputes Act, and particularly those
of section 25F thereof, cannot be made applicable to the
present employer. Therefore, there was no need for the
respondent-Municipal Council to follow the procedure laid
down in section 25F (b) of the Industrial Disputes Act and the
non-payment of the retrenchment compensation provided
therein does not make the termination or the retrenchment
invalid. The petitioners have been given a proper notice and
there is no infirmity on that account.
14. Thus while the Apex Court in Corporation of City
of Nagpur held that the Tax Department of Municipal
Corporation is an industry, Division Bench of this Court in
Abdul Shabir Khan Ahmed Khan held that ‘Octroi
Department’ of Municipal Corporation is not an industry.
15. In Parmanand (supra) the Apex Court held that
activities of Nagar Palika and all its department, except those
dealing with levy of house tax, etc fall within definition of an
‘industry’. It is after placing reliance of the Judgment in
Parmanand (supra) that Mr. Kulkarni has strenuously
contended that departments concerned with levy of taxes have
Page 15 of 24
R Dilwale 5-WP-8953-18 & ORS judgment.odt
been excluded by the Apex Court in Parmanand from purview
‘industry’.
16. A Division Bench of this Court in Abdul
Vahab Shaikh Lal Bhai ( supra) has held that Octroi
Department of the Municipal Corporation would fall within
definition of industry. Thus there are divergence of opinion in
various judgments as to whether Octroi Department of the
Municipal Corporation would be an ‘industry’. In Parmanand
(supra), the Apex Court had held that the activities of Nagar
Palika in all its departments except those dealing with levy of
house tax, etc. would fall within the definition of the ‘industry’.
On the contrary, in its earlier Judgment in Corporation of
City of Nagpur , the Apex Court has held that the activities of
Tax Department of the Municipal Corporation would be an
industry.
17. In view of the divergence of views, I feel that the
question need not be answered considering the peculiar facts
and circumstances of the case. The issue whether Octroi
Department of Municipal Corporation is an industry or not is
therefore left upon.
Page 16 of 24
R Dilwale 5-WP-8953-18 & ORS judgment.odt
18. Adverting to the merits of the petition, Respondents
claimed Mushahira in the form of 20% incentives out of
compromise fees recovered from Octroi evaders. The Urdu
word ‘ Mushahira’ means ‘stipend’ in English. The Resolution
No.1175 adopted by the Standing Committee of Municipal
Corporation on 27 August 1984 has described the word
‘ Mushahira’ to mean Gift ( Bakshihi ). There is no dispute to the
position that the amount of Mushahira is over and above the
salary and allowances payable to the employees posted in the
Octroi Department. The Standing Committee Resolution
No.1175 adopted on 27 August 1984, reads thus:-
नगरसचिव कार्यालय पुणे महानगरपालिका
. .
स्थायी समिती ठराव क्रं ११७५
: - -
दिनांक २७ ८ ८४
.
सभा क्र ३३
. . . : . .
विषय क्रं ११४८ ठराव क्रं ११७५ खाते महा
आयुक्त
-----------------------------------------------------------------------------------
: . . . - , . - - .
संदर्भ मा महा आयुक्त याचि क्र मआ ६६७ दि ३० ६ ८४ चे पत्र
. --
मा महापालिका आयुक्त यांनी दिलेली कारणे व केलेली शिफारस विचारात घेऊन
आयातकर उत्पन्नात वाढ करण्यासाठी सेवकांना उत्तेजनार्थ बक्षीस म्हणून जास्तीत जास्त
, . - -
२० टक्के मुशाहिरा देण्याबाबत स्थायी समितीचा ठराव क्रमांक २१६० दि २२ ११ ८३ चा झाला
. .
आहे तथापि हि रक्कम फार कमी असल्याने त्यात वाढ करण्याबाबत मा आयुक्त यांच्या संदर्भांकित
( ) ( )
पत्रात सुचविल्याप्रमाणे १ ते ५ मुद्यांप्रमाणे रक्कम मुशाहिरा बक्षिसी
म्हणून देण्यास मान्यता
.
देण्यात येत आहे
/- , .
सही नगरसचिव पुणे मनपा
- -
खरी नक्कल
, .
आयतकार प्रमुख पुणे महानगरपालिका
. .
मुद्दे क्र १ ते ५
Page 17 of 24
R Dilwale 5-WP-8953-18 & ORS judgment.odt
.
१ नाक्यावरील सेवक ड्युटीवर असताना किंवा इतरवेळी त्यांनी बिगर जकात माल पकडून
.
दिल्यास त्यांना वसूल झालेल्या तडजोड फी चे २० टक्के मुशाहिरा देण्यात यावा
.
२ तपासणी निरीक्षकांनी साध्वीक तऱ्हेने बिगर जकात माल पकडल्यास त्यांनाही जीप ड्राइवर
.
व शिपायासहित सर्वास मिळून २० टक्के मुशाहिरा स्वरूपात देण्यात यावी
.
३ बिगर जकात माल पकडल्यानंतर आयातदारांनी तडजोड फी नाकारता प्रकरण न्यायप्रविस्ट
.
झाल्यास न्यायालयात जो दंड होईल त्यांच्या २० टक्के रक्कम मुशाहिरा म्हणून देण्यात यावी
3A) . .
मा महा आयुक्त मान्य करतील त्याच वाहनांपैकी वाहन पकडल्यास मुशाहिरा देण्यात
.
येईल
. . ..
४ मनपा आयतकर विभागातील सेवकांच्या अतिरिक्त व अन्य सेवक पोलीस अधिकारी व
पोलीस यांनाही बिगर जकात माल पकडून मनपा चे ताब्यात दिल्यास त्यांना मालाचे जकातीचे
/- .
स्वरूपात रुपये ५०० पर्यंतचा मुशाहिरा व प्रशस्ति पत्रकही द्यावे
. . - - .
५ सदरची पद्धती दि १ ४ १९८४ पासून अंमलात आणावी
--------------
19. Perusal of the Resolution dated 27 August 1984
would indicate that the Municipal Corporation had resolved to
pay 20% of compromise fees recovered from Octroi Evaders.
However, such payment was not automatic in that Para 3A of
the Resolution specifically directed that Mushahira would be
paid only in respect of those vehicles which are approved by
the Municipal Commissioner. Thus for every case of recovery
of Octroi, payment of Mushahira was not payable as a matter
of right and a discretion was vested in the Municipal
Commissioner to certify the vehicles in respect of which such
Mushahira could be paid.
20. Payment of salary and allowances to the employees
and officers of the Municipal Corporation are governed by the
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provisions of Section 51 of the Maharashtra Municipal
Corporations Act, 1949. Section 51 reads thus:-
51. Number, designations, grades, etc. of other
municipal officers and servants.
(1) Subject to the provisions of sub-section (4), the
Standing Committee shall from time to time determine
the number, designations, grades, salaries, fees and
allowances of auditors, assistant auditors', officers, clerks
and servants to be immediately subordinate to the
Municipal Chief Auditor and the Municipal Secretary
respectively.
(2) The Commissioner shall, from time to time, prepare
and bring before the Standing Committee a statement
setting forth the number, designations and grades of the
other officers and servants who should in his opinion be
maintained, and the amount and nature of the salaries,
fees and allowances which he proposes should be paid to
each.
(3) The Standing Committee shall, subject to the
provisions of sub-section (4), sanction such statement
either as it stands or subject to such modifications as it
deems expedient.
( 4) No new posts of the officers and servants of
the Corporation shall be created without the prior
sanction of the State Government:
Provided that, the decision of the Government on a
proposal complete in all respects, received from the
Corporation for creation of posts shall be communicated
to the Corporation within ninety days from the date of the
receipt of such proposal by the Government.
(5) Nothing in this section shall be construed as affecting
the right of the Corporation or of the Commissioner to
make any temporary appointment which it or he is
empowered to make under section 53.
Explanation.— Any revision of pay scale or pay
structure or grant of special pay, or grade, or
revision of allowances (excluding dearness
allowance) or change in designation shall be
deemed, for the purposes of sub-section (4), to be
the creation of a new post.
(emphasis supplied)
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21. Thus, Standing Committee is empowered to
determine salaries payable to the Municipal employees.
However, under Explanation to Section 51, revision of
payscale, pay structure or grant of special pay or grade or
revision of allowances is deemed to be treated as ‘creation of
new posts’. Under sub-Section(4) of Section 51, no new posts
in municipal service can be created without the prior sanction
of the State Government. Thus though the Standing
Committee is empowered to determine salaries payable to
municipal employees, any revision in the payscale or grant of
any special pay or revision of allowances cannot take effect
without prior sanction of the State Government. Payment of
Mushahira , those not part of salary, is in form of a special
allowance, payable to the municipal employees in the Octroi
Department as an incentive for collection of higher amount of
Octroi. Since amounts towards such Mushahira can be paid to
the municipal employees and officers only through the funds
of the Municipal Corporation, the amount of such Mushahira
would form of part of either special pay or special allowances.
Therefore, for payment of such special pay or special
allowance in the form of Mushahira , previous sanction of the
State Government is mandatory. There is nothing on record to
indicate that the State Government had granted approval to
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R Dilwale 5-WP-8953-18 & ORS judgment.odt
the Municipal Corporation’s Resolution No. 1175 adopted on
27 August 1984. Though it is vaguely pleaded in the
complaints that the Government had granted approval to the
Standing Committee’s Resolution, no material was produced
before the Industrial Court to prove that such approval was
granted by the State Government. On the contrary, it was
pleaded by the Municipal Corporation in its reply filed before
the Industrial Court that the Chief Auditor had objected to
payment of such Mushahira to the Municipal employees. The
Industrial Court’s Order does not record any finding that the
prior sanction of the State Government was obtained for
payment of Mushahira . In my view, therefore, the entire
system of payment of Mushahira adopted by the Municipal
Corporation was dehorse the statutory provisions.
22. Even if it is assumed that the State Government had
sanctioned the system of paying Mushahira, payment of
Mushahira was not automatic or as a matter of right in every
case of Octroi evasion. The vehicles, in respect of which
Mushahira could be paid, were required to be approved by the
Municipal Commissioner. Therefore it was open for the
Municipal Corporation to deny Mushahira in his discretion.
The Resolution of the Standing Committee, can at best, be
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treated as an enabling provision under which the Municipal
Corporation was vested with power to sanction Mushahira for
catching selected vehicles involved in Octroi evasion. No
corresponding right was created in employees’ favour to
demand such Mushahira as a matter of right. Ignoring this
position, the Industrial Court has however issued a blanket
direction for payment of Mushahira to all Respondents.
23. Even though Mr. Rao attempted to take me through
the evidence recorded before the Industrial Tribunal, in my
view, once the system of payment of Mushahira is found to be
in breach of statutory provisions on account of non-grant of
prior sanction by the State Government, no amount of
evidence would confer any right on the Respondents which
statutorily does not exists. Merely because the Municipal
Corporation might have paid such Mushahira to its employees
in the past would not create any right in their favour to
continue to receive it. Municipal Commissioner has rightly
discontinued the system of payment of Mushahira , which has
no statutory recognition.
24. Mr. Rao’s contention that the system for payment of
Mushahira was beneficial both to Municipal Corporation as
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R Dilwale 5-WP-8953-18 & ORS judgment.odt
well as its employees would not cut any ice. He has submitted
that the Municipal Corporation has saved funds by not
employing a contractor to collect Octroi. To my mind, such
submission cannot be countenanced as the Municipal
employees cannot demand anything over and above salary and
allowances payable to them as per the Rules of the Municipal
Corporation. As rightly pointed out by Mr. Kulkarni such
system of payment of any amount over and above salary and
allowances would create discrimination amongst employees
and would be a cause of heartburn for other employees not
posted in Octroi Department. Such system would also create
unnecessary demand amongst the employees to seek posting
in the Octroi Department. The amount demanded by
Respondent-employees towards Mushahira in their complaints
also appear to be considerably high. To illustrate, Shri. Pradip
Namdev Mahadik demanded Mushahira of Rs. 12,00,000/- for
having worked in the Octroi Department after 09 August
2007. Payment of such exceptionally high amount in the form
of commission for collection of Octroi over and above salary
and allowances to selected few employees is otherwise
unjustifiable and cannot be countenanced. The Municipal
Commissioner has rightly discontinued the system, which has
no statutory recognition. The employees of Octroi Department
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perform their duties in apprehending vehicles evading Octroi.
For performing their duties, they cannot demand any
incentives in the form of commission on the Octroi so
collected. In my view therefore the Municipal Corporation has
rightly discontinued the scheme of payment of Mushahira . No
error can be found in such action of the Municipal
Corporation. The Industrial court ought to have been
appreciated the matter in right perspective. It has committed
serious error in allowing the complaints filed by the
Respondent-employees.
25. In my view therefore, no right is vested in the
employee of Octroi Department of the Municipal Corporation
to claim any amount towards Mushahira from the Municipal
Corporation. The Industrial Court has erred in allowing the
complaints and in directing payment of Mushahira . The
impugned Awards are therefore unsustainable and are liable
to be set aside. Writ petitions accordingly succeed. Impugned
Judgments and orders passed by the Industrial Court are
accordingly set aside. Rule is made absolute. There shall be no
order as to costs.
SANDEEP V. MARNE, J
Page 24 of 24
Signed by: Rameshwar L. Dilwale
Designation: PA To Honourable Judge
Date: 02/11/2023 15:49:46