Full Judgment Text
1/7 20 WP-9729-21.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.9729 OF 2021
The Commissioner/Transport Manager
Kolhapur Municipal Corporation & Anr. .. Petitioners
Versus
Rajendra Ramchandra Kalekar .. Respondent
…
Mr.Abhijit M. Adagule for the Petitioners.
Mr.Rushikesh G. Patil for the Respondent.
...
CORAM: RAVINDRA V. GHUGE, J.
th
DATED : 05 JANUARY, 2022
P.C:-
1. I have considered the extensive submissions of the
learned Advocates for the respective sides and have perused
the petition paper-book with their assistance.
2. The petitioner Municipal Corporation has put forth
prayer clause 9(b) as under :-
“This Hon’ble Court be pleased to quash and set aside the
impugned Judgment and Order dated 08/11/2019, passed by
the Ld.Member, Industrial Court No.1, Kolhapur, in Complaint
(ULP) No.100 of 2014 and further be pleased to dismiss the
Complaint (ULP) No.100 of 2014 fled by the Respondent.”
M.M.Salgaonkar
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3. The Corporation has a medical reimbursement policy
titled as ‘Kolhapur Municipal Corporation (Medical Benefts)
Regulation 1982’ ( dksYgkiwj egkuxjikfydk ¼ oS|dh; ifjp;kZ½ fofu;e
1982 ) framed under the a- Maharashtra Municipal Corporation
Regulations, 1949 (Section 465(1)(l)).
4. The case before the Industrial Court put forth by the
respondent in Complaint (ULP) No.100 of 2014 was, for
seeking a declaration of unfair labour practices against the
employer Corporation and for recovery of the medical bills to
the tune of Rs.2,53,273/-, upon undergoing a heart surgery on
26/02/2013.
5. The relevant clauses of the reimbursement policy of
1982 are clauses 2(4), 2(8), 8(1), 8(3) and 8(4), which read
as under :-
“ 2-4- v- oS|fd; ifjp;kZ Eg.kts egkuxjikfydk #X.kky;kr izkf/kd`r
oS|fd; ifjp;kZdMqu ns.;kr ;s.kkjh ifjp;kZ ;kr iWFkkWykWftdy]
cWDVsfjvkWykWftdy] jsfMvksykWftdy vFkok rikl.khP;k brj i)rh o
egkuxjikfydk #X.kky;kr vFkok yWcksjsVjhe/;s gksÅ “kd.kkÚ;k o
izkf/kd`r oS|dh; ifjp;Zdkl vko”;d okV.kkÚ;k funku dj.;klkBh
rikl.kh o
c- egkuxjikfydk #X;ky;k”kh layXu vlysY;k ekulsoh oS|dh;
vf/kdkjh ;kapk lYyk ;kapk lekos”k vlsy-
2-8 mipkj Eg.kts T;k egkuxjikfydk #X.kky;kr #X.kkoj mipkj pkyw
vkgsr v”kk #X.kky;kr feGw “kd.kkjh oS|dh; vFkok “kL=fdz;k ;kapk
mi;ksx ;kar-
8-1 #X.kkl eksQr mipkj feGrhy
M.M.Salgaonkar
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8-3 T;k fBdk.kh #X.k vktkjh iMrks rsFkhy egkuxjikfydsP;k #X.kky;kr
vko”;d vl.kkÚ;k lqfo/kk miyC/k ulrhy vxj egkuxjikfydsP;k
#X.kky;kr jkg.ksph lks; miyC/k ulsy rj izkf/kd`r oS|dh; ifjp;Zd
tj foyackewGs #X;kps vkjksX;kl /kksdk iksgksp.kkj ulsy rj vkjksX;kf/kdkjh
o vk;qDr ;k nks?kkaps ys[kh vuqerhus R;kps ers T;k fBdk.kh ;ksX; mipkj
gksÅ “kdrhy v”kk egkuxjikfydsP;k vFkok toG vlsyY;k fcxj
egkuxjikfydsP;k #X;ky;kr tjh rs #X.kky; ftYgÓkkps ckgsj vlsy rj
R;k fBdk.kh ikBosy izkf/kd`r oS|dh; ifjp;Zdkusa v”kk rÚgsP;k fudMhpk
vgoky rkcMrksc vkjksX;kf/kdkjh o vk;qDr ;kauk ikBoyk ikfgts-
vkjksX;kf/kdkjh o dfe”kuj ;k nks?kkauh v”kk fudMhP;k izdj.kh ekU;rk
fnY;k [ksjht [kpkZph tckcnkjh egkuxjikfydsoj jkg.kkj ukgh-
8-4 ts mipkj egkuxjikfydsP;k #X.kky;kr miyC/k gksÅ “kd.kkj ukghr
v”kk osGh izkf/k—r oS|dh; ifjp;Zdkl #X.kky;k fgrkP;k –‘Vhus vR;ar
vko”;drk vkgs vls okVys rj rks T;k fBdk.kh [kkl mipkj miyC/k
gksÅ “kdrhy v”kk fcxj egkuxjikfydk #X.kky;kl #X.kkl ikBfoy
v”kk osGh R;kus vkjksX;kf/kdkjh o vk;qDr ;kaph ys[kh iwoZ vuqerh ?ksryh
ikfgts-
T;k mipkj egkuxjikfydsP;k #X.kky;kr miyC/k gksÅ “kd.kkj
ukghr o #X.kkpk fgrkP;k –‘Vhus [kkl mipkjklkBh fcxj
egkuxjikfydsP;k #X.kky;kr gyo.ks vR;ar vko”;d vkgs- vls izkf/k—r
oS|dh; ifjp;Zdkl okVys rj foyackeqGs #X.kkps vkjksX;kl /kksdk ulsy
rj vkjksX;kf/kdkjh o vk;qDr ;kaph ys[kh iwoZ lEerhus e/;korhZ jkT;
ljdkj ekU;rk izkIr v”kk #X.kky;kr [kkl mipkjklkBh #X.kkl ikBosy-
v”kk fudMhP;k izdj.kh izkf/k—r oS|dh; ifjp;Zdkus rkcMrksc
vkjksX;kf/kdkjh o vk;qDr ;kapsdMs vgoky ikBoyk ikfgts-
vkjksX;kf/kdkjh o vk;qDr ;kauh v”kk fudMhP;k izdj.kh lEerh
fnY;k[ksjht ;s.kkÚ;k [kpkZph tckcnkjh egkuxjikfydsoj vl.kkj ukgh-
izkf/k—r oS|dh; ifjp;ZdkdMwu T;k vkS’k/kkaPkk mipkj pkyw dsys
vkgsr] v”kk vkS’k/kkaPkk mipkj “kD;rks T;k fBdk.kh #X.kkl o mipkj
pkyw vkgsr] R;kp egkuxjikfydsP;k #X.kky;kr ?ksryk ikfgts- ”
6. There is no dispute as regards the provisions of the
reimbursement scheme reproduced above.
M.M.Salgaonkar
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7. The learned Advocate for the petitioner draws my
attention to the recommendation made by the Municipal
Transport Workers Union, a recognized Union under the MRTU
& PULP Act, 1971, which suggested to the Corporation that
those employees who are not covered by the ESIC Act, be paid
a monthly medical allowance. Such recommendation is dated
24/03/1998, signed by the General Secretary of the
recognized Union. Based on the same, the Municipal
Corporation passed a Resolution on 30/03/1998 bearing
Resolution No.95, vide which it was resolved that those
employees, who are not covered by the ESIC Act, would be
entitled for a monthly medical allowance at the rate of Rs.20/-
per month per employee.
8. The learned counsel for the respondent/complainant
submits, on instructions, that he was not covered by the ESIC
Act.
9. The learned counsel for the petitioner points out from
paragraph 6 of his written statement that the complainant was
aware of the non- applicability of the medical reimbursement
scheme, since Resolution No.95 dated 30/03/1998 had
discontinued the reimbursement facility to those workers who
were beyond the coverage of the ESI scheme. The Industrial
Court has recorded the submissions of the petitioner based on
the pleadings in the written statement that medical allowance
is paid to the employees who are not covered by the ESI
scheme. So also, the medical bills submitted by the petitioner
were photostat copies.
M.M.Salgaonkar
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10. The complainant had fled the ULP complaint by invoking
items 5, 9 and 10 of Schedule IV of the MRTU & PULP Act,
1971. The Industrial Court declared that the petitioner has
indulged in unfair labour practices under item 9, which is
“failure to implement a settlement agreement or award”.
11. There is no dispute that the complainant started feeling
uneasy at around 4 p.m., after completing his duties at 12
noon, on 15/02/2013. His niece admitted him to the Apple
Heart Hospital, Kadamwadi. He was in the Intensive Care Unit
and a heart surgery was performed on 26/02/2013, which is
after 11 days of his admission. There is no dispute that
neither the complainant nor his relatives or the Union offcer
bearers approached the Corporation for seeking approval for
his treatment in a private hospital not registered on the panel
of the Corporation, as provided under clause 8(3) and 8(4) of
the 1982 scheme, notwithstanding that the scheme was not
applicable to the complainant because of Resolution No.95
dated 30/03/1998.
12. In the above backdrop, when the complainant himself did
not comply with the requirements of the Kolhapur Municipal
Corporation (Medical Benefts) Regulation 1982, the employer
could not have been guilty of commission of ULP under item 9.
So also, the Industrial Court has concluded that though
medical reimbursement has been abolished, the same is not
applicable to the complainant, despite the fact that the
M.M.Salgaonkar
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Industrial Court has concluded in paragraph 8 that the ESI
scheme was not applicable to the complainant.
13. Taking into account the above fact situation, it is obvious
that the recognized Union itself asked for a monthly medical
allowance in place of medical reimbursement. Resolution
No.95 was accordingly passed by the Municipal Corporation,
accepting the proposal of the recognized Union. Thereafter,
medical reimbursement was stopped in the Municipal
Corporation from April 1998 onwards and yet the Industrial
Court came to a conclusion that the Corporation is guilty of
ULP under item 9 of Schedule IV. Consequentially, the
Industrial Court, in clause 4 of it’s order, directed the
petitioner to consider the representation and medical bills of
the complainant and reimburse the same within two months,
failing which interest at the rate of 8% per annum was
granted.
14. I fnd that when the Industrial Court noted that
Resolution No.95 was passed in pursuance to the proposal of a
recognized Union and medical reimbursement was abolished
from April 1998 onwards with regard to those employees who
are not covered under ESIC and in lieu thereof Rs.20/- per
month was made payable, there was no scope for the Industrial
Court to conclude that the present complainant was entitled
for medical reimbursement. There is nothing on record to
suggest that any set of non-ESIC workers had been granted
medical reimbursement. On these premises, the Industrial
M.M.Salgaonkar
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Court could not have concluded that the complainant was
entitled for medical reimbursement. Moreover, not a single
instance of medical reimbursement to non ESIC covered
employee from April 1998, was proved before the Industrial
Court.
15. In view of the above, this petition is allowed. The
impugned Judgment and Order dated 08/11/2019 delivered by
Industrial Court No.1, Kolhapur is quashed and set aside and
complaint (ULP)No.100 of 2014 stands dismissed.
Consequentially, Misc. Application (ULP) No.12 of 2021 fled
by the respondent under Section 50 of the MRTU & PULP Act,
1971, would not survive and stands disposed off. The
Industrial Court No.1, Kolhapur shall issue a formal order of
disposal of the said complaint.
( RAVINDRA V. GHUGE, J.)
M.M.Salgaonkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.9729 OF 2021
The Commissioner/Transport Manager
Kolhapur Municipal Corporation & Anr. .. Petitioners
Versus
Rajendra Ramchandra Kalekar .. Respondent
…
Mr.Abhijit M. Adagule for the Petitioners.
Mr.Rushikesh G. Patil for the Respondent.
...
CORAM: RAVINDRA V. GHUGE, J.
th
DATED : 05 JANUARY, 2022
P.C:-
1. I have considered the extensive submissions of the
learned Advocates for the respective sides and have perused
the petition paper-book with their assistance.
2. The petitioner Municipal Corporation has put forth
prayer clause 9(b) as under :-
“This Hon’ble Court be pleased to quash and set aside the
impugned Judgment and Order dated 08/11/2019, passed by
the Ld.Member, Industrial Court No.1, Kolhapur, in Complaint
(ULP) No.100 of 2014 and further be pleased to dismiss the
Complaint (ULP) No.100 of 2014 fled by the Respondent.”
M.M.Salgaonkar
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3. The Corporation has a medical reimbursement policy
titled as ‘Kolhapur Municipal Corporation (Medical Benefts)
Regulation 1982’ ( dksYgkiwj egkuxjikfydk ¼ oS|dh; ifjp;kZ½ fofu;e
1982 ) framed under the a- Maharashtra Municipal Corporation
Regulations, 1949 (Section 465(1)(l)).
4. The case before the Industrial Court put forth by the
respondent in Complaint (ULP) No.100 of 2014 was, for
seeking a declaration of unfair labour practices against the
employer Corporation and for recovery of the medical bills to
the tune of Rs.2,53,273/-, upon undergoing a heart surgery on
26/02/2013.
5. The relevant clauses of the reimbursement policy of
1982 are clauses 2(4), 2(8), 8(1), 8(3) and 8(4), which read
as under :-
“ 2-4- v- oS|fd; ifjp;kZ Eg.kts egkuxjikfydk #X.kky;kr izkf/kd`r
oS|fd; ifjp;kZdMqu ns.;kr ;s.kkjh ifjp;kZ ;kr iWFkkWykWftdy]
cWDVsfjvkWykWftdy] jsfMvksykWftdy vFkok rikl.khP;k brj i)rh o
egkuxjikfydk #X.kky;kr vFkok yWcksjsVjhe/;s gksÅ “kd.kkÚ;k o
izkf/kd`r oS|dh; ifjp;Zdkl vko”;d okV.kkÚ;k funku dj.;klkBh
rikl.kh o
c- egkuxjikfydk #X;ky;k”kh layXu vlysY;k ekulsoh oS|dh;
vf/kdkjh ;kapk lYyk ;kapk lekos”k vlsy-
2-8 mipkj Eg.kts T;k egkuxjikfydk #X.kky;kr #X.kkoj mipkj pkyw
vkgsr v”kk #X.kky;kr feGw “kd.kkjh oS|dh; vFkok “kL=fdz;k ;kapk
mi;ksx ;kar-
8-1 #X.kkl eksQr mipkj feGrhy
M.M.Salgaonkar
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8-3 T;k fBdk.kh #X.k vktkjh iMrks rsFkhy egkuxjikfydsP;k #X.kky;kr
vko”;d vl.kkÚ;k lqfo/kk miyC/k ulrhy vxj egkuxjikfydsP;k
#X.kky;kr jkg.ksph lks; miyC/k ulsy rj izkf/kd`r oS|dh; ifjp;Zd
tj foyackewGs #X;kps vkjksX;kl /kksdk iksgksp.kkj ulsy rj vkjksX;kf/kdkjh
o vk;qDr ;k nks?kkaps ys[kh vuqerhus R;kps ers T;k fBdk.kh ;ksX; mipkj
gksÅ “kdrhy v”kk egkuxjikfydsP;k vFkok toG vlsyY;k fcxj
egkuxjikfydsP;k #X;ky;kr tjh rs #X.kky; ftYgÓkkps ckgsj vlsy rj
R;k fBdk.kh ikBosy izkf/kd`r oS|dh; ifjp;Zdkusa v”kk rÚgsP;k fudMhpk
vgoky rkcMrksc vkjksX;kf/kdkjh o vk;qDr ;kauk ikBoyk ikfgts-
vkjksX;kf/kdkjh o dfe”kuj ;k nks?kkauh v”kk fudMhP;k izdj.kh ekU;rk
fnY;k [ksjht [kpkZph tckcnkjh egkuxjikfydsoj jkg.kkj ukgh-
8-4 ts mipkj egkuxjikfydsP;k #X.kky;kr miyC/k gksÅ “kd.kkj ukghr
v”kk osGh izkf/k—r oS|dh; ifjp;Zdkl #X.kky;k fgrkP;k –‘Vhus vR;ar
vko”;drk vkgs vls okVys rj rks T;k fBdk.kh [kkl mipkj miyC/k
gksÅ “kdrhy v”kk fcxj egkuxjikfydk #X.kky;kl #X.kkl ikBfoy
v”kk osGh R;kus vkjksX;kf/kdkjh o vk;qDr ;kaph ys[kh iwoZ vuqerh ?ksryh
ikfgts-
T;k mipkj egkuxjikfydsP;k #X.kky;kr miyC/k gksÅ “kd.kkj
ukghr o #X.kkpk fgrkP;k –‘Vhus [kkl mipkjklkBh fcxj
egkuxjikfydsP;k #X.kky;kr gyo.ks vR;ar vko”;d vkgs- vls izkf/k—r
oS|dh; ifjp;Zdkl okVys rj foyackeqGs #X.kkps vkjksX;kl /kksdk ulsy
rj vkjksX;kf/kdkjh o vk;qDr ;kaph ys[kh iwoZ lEerhus e/;korhZ jkT;
ljdkj ekU;rk izkIr v”kk #X.kky;kr [kkl mipkjklkBh #X.kkl ikBosy-
v”kk fudMhP;k izdj.kh izkf/k—r oS|dh; ifjp;Zdkus rkcMrksc
vkjksX;kf/kdkjh o vk;qDr ;kapsdMs vgoky ikBoyk ikfgts-
vkjksX;kf/kdkjh o vk;qDr ;kauh v”kk fudMhP;k izdj.kh lEerh
fnY;k[ksjht ;s.kkÚ;k [kpkZph tckcnkjh egkuxjikfydsoj vl.kkj ukgh-
izkf/k—r oS|dh; ifjp;ZdkdMwu T;k vkS’k/kkaPkk mipkj pkyw dsys
vkgsr] v”kk vkS’k/kkaPkk mipkj “kD;rks T;k fBdk.kh #X.kkl o mipkj
pkyw vkgsr] R;kp egkuxjikfydsP;k #X.kky;kr ?ksryk ikfgts- ”
6. There is no dispute as regards the provisions of the
reimbursement scheme reproduced above.
M.M.Salgaonkar
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7. The learned Advocate for the petitioner draws my
attention to the recommendation made by the Municipal
Transport Workers Union, a recognized Union under the MRTU
& PULP Act, 1971, which suggested to the Corporation that
those employees who are not covered by the ESIC Act, be paid
a monthly medical allowance. Such recommendation is dated
24/03/1998, signed by the General Secretary of the
recognized Union. Based on the same, the Municipal
Corporation passed a Resolution on 30/03/1998 bearing
Resolution No.95, vide which it was resolved that those
employees, who are not covered by the ESIC Act, would be
entitled for a monthly medical allowance at the rate of Rs.20/-
per month per employee.
8. The learned counsel for the respondent/complainant
submits, on instructions, that he was not covered by the ESIC
Act.
9. The learned counsel for the petitioner points out from
paragraph 6 of his written statement that the complainant was
aware of the non- applicability of the medical reimbursement
scheme, since Resolution No.95 dated 30/03/1998 had
discontinued the reimbursement facility to those workers who
were beyond the coverage of the ESI scheme. The Industrial
Court has recorded the submissions of the petitioner based on
the pleadings in the written statement that medical allowance
is paid to the employees who are not covered by the ESI
scheme. So also, the medical bills submitted by the petitioner
were photostat copies.
M.M.Salgaonkar
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5/7 20 WP-9729-21.doc
10. The complainant had fled the ULP complaint by invoking
items 5, 9 and 10 of Schedule IV of the MRTU & PULP Act,
1971. The Industrial Court declared that the petitioner has
indulged in unfair labour practices under item 9, which is
“failure to implement a settlement agreement or award”.
11. There is no dispute that the complainant started feeling
uneasy at around 4 p.m., after completing his duties at 12
noon, on 15/02/2013. His niece admitted him to the Apple
Heart Hospital, Kadamwadi. He was in the Intensive Care Unit
and a heart surgery was performed on 26/02/2013, which is
after 11 days of his admission. There is no dispute that
neither the complainant nor his relatives or the Union offcer
bearers approached the Corporation for seeking approval for
his treatment in a private hospital not registered on the panel
of the Corporation, as provided under clause 8(3) and 8(4) of
the 1982 scheme, notwithstanding that the scheme was not
applicable to the complainant because of Resolution No.95
dated 30/03/1998.
12. In the above backdrop, when the complainant himself did
not comply with the requirements of the Kolhapur Municipal
Corporation (Medical Benefts) Regulation 1982, the employer
could not have been guilty of commission of ULP under item 9.
So also, the Industrial Court has concluded that though
medical reimbursement has been abolished, the same is not
applicable to the complainant, despite the fact that the
M.M.Salgaonkar
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Industrial Court has concluded in paragraph 8 that the ESI
scheme was not applicable to the complainant.
13. Taking into account the above fact situation, it is obvious
that the recognized Union itself asked for a monthly medical
allowance in place of medical reimbursement. Resolution
No.95 was accordingly passed by the Municipal Corporation,
accepting the proposal of the recognized Union. Thereafter,
medical reimbursement was stopped in the Municipal
Corporation from April 1998 onwards and yet the Industrial
Court came to a conclusion that the Corporation is guilty of
ULP under item 9 of Schedule IV. Consequentially, the
Industrial Court, in clause 4 of it’s order, directed the
petitioner to consider the representation and medical bills of
the complainant and reimburse the same within two months,
failing which interest at the rate of 8% per annum was
granted.
14. I fnd that when the Industrial Court noted that
Resolution No.95 was passed in pursuance to the proposal of a
recognized Union and medical reimbursement was abolished
from April 1998 onwards with regard to those employees who
are not covered under ESIC and in lieu thereof Rs.20/- per
month was made payable, there was no scope for the Industrial
Court to conclude that the present complainant was entitled
for medical reimbursement. There is nothing on record to
suggest that any set of non-ESIC workers had been granted
medical reimbursement. On these premises, the Industrial
M.M.Salgaonkar
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Court could not have concluded that the complainant was
entitled for medical reimbursement. Moreover, not a single
instance of medical reimbursement to non ESIC covered
employee from April 1998, was proved before the Industrial
Court.
15. In view of the above, this petition is allowed. The
impugned Judgment and Order dated 08/11/2019 delivered by
Industrial Court No.1, Kolhapur is quashed and set aside and
complaint (ULP)No.100 of 2014 stands dismissed.
Consequentially, Misc. Application (ULP) No.12 of 2021 fled
by the respondent under Section 50 of the MRTU & PULP Act,
1971, would not survive and stands disposed off. The
Industrial Court No.1, Kolhapur shall issue a formal order of
disposal of the said complaint.
( RAVINDRA V. GHUGE, J.)
M.M.Salgaonkar
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