As per case facts, the Municipal Corporation of Greater Mumbai (petitioners) challenged an Industrial Court order that partly allowed Sudha Ramesh Shelar's (respondent) complaint against her compulsory retirement. The employee ...
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AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7091 OF 2013
1.The Municipal Corporation of
Greater Mumbai
2.The Municipal Commissioner of
Greater Mumbai,
respondent Nos.1 and 2 having office
at Mahapalika Marg, Mumbai 400 001… Petitioners
Vs.
Sudha Ramesh Shelar,
503/Kaskeed-I, Kulup Wadi Road,
Next to Tata Consultancy,
Borivali (East), Mumbai 400 055… Respondent
WITH
WRIT PETITION NO.2540 OF 2014
Sudha Ramesh Shelar,
503/Kaskeed-I, Kulup Wadi Road,
Next to Tata Consultancy,
Borivali (East), Mumbai 400 055… Petitioner
Vs.
The Municipal Corporation of
Greater Mumbai, a body Corporate
through Municipal Commissioner
constituted under the provisions of
Mumbai Municipal Corporation Act,
1888 having its office at Mahapalika
Marg, CST, Mumbai – 400 001… Respondent
1
ATUL
GANESH
KULKARNI
Digitally signed
by ATUL
GANESH
KULKARNI
Date: 2026.04.30
11:50:26 +0530
wp7091-2013 with wp2540-2014-J.doc
Mr. P.M. Palshikar, with Mr. Santosh Parad for the
petitioner-MCGM in WP/7091/2013.
Mr. Prakash Devdas with Ms. Vidula S. Patil for the
petitioner in WP/2540/2014 and respondent in
WP/7091/2013.
Mr. Santosh Parad for the respondent-MCGM in
WP/2540/2014.
CORAM :AMIT BORKAR, J.
RESERVED ON :APRIL 23, 2026.
PRONOUNCED ON:APRIL 30, 2026
JUDGMENT:
1.By the present Writ Petition No.7091 of 2013 instituted
under Articles 226 and 227 of the Constitution of India, the
petitioners, namely the Municipal Corporation of Greater Mumbai,
have called in question the legality and correctness of the
judgment and order dated 1 July 2013 passed by the learned
Industrial Court, Mumbai, whereby Complaint (ULP) No.265 of
2011 preferred by the respondent came to be partly allowed. By
connected Writ Petition No.2540 of 2014, the employee concerned
has assailed the very same judgment and order dated 1 July 2013,
though to a limited extent, namely insofar as the Industrial Court
restricted back wages to 25% and granted full back wages only for
the period commencing from 1 September 2011 till 31 July 2013
together with consequential service benefits. Both petitions, thus,
arise out of a common adjudication and involve common issues of
fact and law requiring consideration together.
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2.The circumstances giving rise to the present proceedings,
stated in brief, are that the respondent employee was serving with
the Corporation as Senior Audit and Accounts Assistant in the
office of the Chief Accountant. It is the admitted position that she
initially entered service as Junior Audit and Accounts Assistant
with effect from 21 December 1981. Thereafter, upon
consideration by the competent authority, she was promoted to the
post of Senior Audit and Accounts Assistant on 9 April 2010 and
thereafter continued under the administrative control of the Chief
Accountant. According to the case set up by the employee, the
duties attached to her post were predominantly clerical in nature,
consisting mainly of maintenance of accounts, scrutiny of records,
and audit related assistance. She was posted in the Provident Fund
Section from 23 April 2010 to 5 September 2010 and thereafter
transferred to the Pension Section from 6 September 2010. In the
Pension Section, her work consisted of scrutiny of pension claims
of employees whose services had come to an end on account of
superannuation, retirement, or death under the Pension Rules,
1953. Her duty was to verify service particulars, examine whether
the claims submitted were in conformity with the applicable rules,
and process the same accordingly. On such basis, it is contended
that the work discharged by her was essentially clerical and
ministerial.
3.The employee states that her date of birth is 1 September
1956. Under Regulation 205(1) of the B.M.C. Service Regulations,
1989, every Corporation employee ordinarily retires from service
on the afternoon of the last day of the month in which such
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employee attains the age of 58 years. If so reckoned, the
respondent would normally attain the age of superannuation on 1
September 2014. It is further the case of the employee that the
Corporation had framed guidelines and internal norms for
considering whether an employee, upon attaining the age of 55
years, should be directed to retire compulsorily in public interest,
for which purpose a committee was constituted. According to her,
her service performance throughout remained unblemished and
this is reflected in the Annual Confidential Reports. Certain
adverse remarks, if any, were duly represented against by her and
such representations were accepted. The respondent further relies
upon the fact of her recent promotion to the higher post of Senior
Audit and Accounts Assistant, contending that promotion was
granted on the basis of merit coupled with past service record. It is
therefore urged that once the Corporation itself treated her as
suitable and promoted her on 9 April 2010, it cannot thereafter
turn around and contend that her performance for the preceding
five years was unsatisfactory. The submission proceeds on the
footing that an employee found fit for promotion scarcely fourteen
months earlier could not reasonably be branded as dead wood or
inefficient for continuation in service.
4.It is further contended on behalf of the employee that for the
purpose of promotion, the Corporation necessarily considered the
service record including Annual Confidential Reports of the
preceding years, and only after such scrutiny she was found
eligible and promoted. However, to her surprise, she received
memorandum dated 3 June 2011 stating that she was attaining the
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age of 55 years on 31 August 2011 and that in exercise of powers
under Regulation 205 of the B.M.C. Service Regulations, 1989, she
would stand compulsorily retired with effect from 31 August 2011
after office hours. The employee submitted her reply and
representation dated 7 June 2011 opposing the proposed action.
She asserts that she was physically fit to continue in service, her
record for the preceding years was clean, and no punishment for
misconduct had ever been imposed upon her. According to her, the
impugned memorandum was issued in breach of the guidelines
and rules framed by the Corporation under Circular No.
MPM/1985 dated 24 August 1996. It is also alleged that the action
offended the Model Standing Orders applicable to her service
conditions. It is further pointed out that the memorandum
nowhere recorded that compulsory retirement was being ordered
in public interest, which according to her is a jurisdictional
requirement. On these premises, she alleges mala fides, breach of
statutory service conditions, and commission of unfair labour
practice under Item 9 of Schedule IV of the MRTU and PULP Act,
1971, and sought appropriate reliefs before the Industrial Court.
5.The complaint was resisted by the Corporation by filing its
written statement at Exhibit C-6. At the threshold, the Corporation
contended that the complaint was misconceived and not
maintainable either in law or on facts. It was specifically pleaded
that the employee was not a workman within the meaning of
Section 2(s) of the Industrial Disputes Act and Section 3(3) of the
MRTU and PULP Act, 1971, and consequently the Industrial Court
lacked jurisdiction to entertain the complaint. It was further
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asserted that as Senior Audit and Accounts Assistant, she was
mainly employed in supervisory and administrative capacity.
According to the Corporation, she supervised Junior Audit and
Accounts Assistants, was in charge of the Pension Section, could
recommend leave of subordinate staff, issue memos and warnings,
prepare confidential reports of subordinates, and report
negligence, carelessness or inefficiency of subordinate employees
to superior officers such as the Accounts Officer or Deputy Chief
Accountant. On this basis, the Corporation disputed her claim of
being engaged merely in clerical functions.
6.The Corporation further pleaded that the complaint was not
maintainable because the action impugned had been taken strictly
within the framework of law and the service rules governing
municipal employees. It was pointed out that under the Mumbai
Municipal Corporation Act, 1888, the Corporation possesses
authority to frame rules and issue administrative circulars relating
to service conditions and disciplinary matters. In exercise of such
powers, Municipal Service Rules were framed, and the employees
are governed thereby. Insofar as compulsory retirement is
concerned, Rule 205 expressly authorises the Corporation to retire
an employee compulsorily where such action is considered
necessary in public interest. It is therefore contended that the
impugned action was one traceable to statutory power and not
open to interference unless vitiated by illegality, arbitrariness, or
mala fides.
7.The Corporation has also relied upon the Annual
Confidential Reports submitted by the superior officer, namely the
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Accounts Officer, for the years 2006-07, 2007-08, 2009-10 and
2010-11, which according to it reflected that the employee’s record
was not satisfactory. It is further pleaded that during the period
2006 to 2011, several memos were issued to her from time to time
pointing out unsatisfactory work, failure to meet norms, lack of
efficiency, and inadequate speed of work, with repeated cautions
to improve performance. The Corporation also alleges that she was
uncooperative with pensioners who visited the office for enquiries
or pension related benefits and that she displayed an adamant
attitude in dealing with members of the public. Such memos,
according to the Corporation, were issued on the basis of
complaints received from pensioners as well as on the observations
of superior officers. It is further stated that even in departments
where she was previously posted, her performance was
unsatisfactory and several memoranda had been issued by
concerned officers. On an overall assessment of her performance
over several years preceding the decision, the Corporation formed
the opinion that she should be retired compulsorily in accordance
with applicable service rules. Hence, it is contended that the action
is legal, proper and justified, and no case of unfair labour practice
under Item 9 of Schedule IV is made out.
8.The Corporation has specifically denied the employee’s
assertion that she was discharging only clerical duties. According
to it, she was performing supervisory functions as Senior Audit and
Accounts Assistant and was in charge of the Pension Section.
Reliance is placed on Regulation 205(1) of the Municipal Service
Rules, 1989 under the head of Compulsory Retirement, which
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provides that every Corporation employee shall retire on the
afternoon of the last day of the month in which the age of 58 years
is attained. The proviso further empowers the appropriate
authority, if of the opinion that it is in public interest so to do, to
require an employee to retire from service after attaining the age
of 55 years by giving not less than three months written notice or
salary and allowances in lieu thereof. The Corporation denies that
the employee’s performance was unblemished or that her Annual
Confidential Reports supported such claim. It is stated that the last
ACR submitted by the Deputy Chief Accountant, Pension and
Provident Fund, showed that during the preceding three years her
work was unsatisfactory and that her services ought not to be
continued beyond 55 years. The plea of estoppel founded on
promotion is also denied. According to the Corporation,
promotions were governed by Circular No. MOM/1121 dated 26
April 1991 under which promotions were granted liberally even
where some adverse material existed, and in the present case
promotion was granted because the employee had passed the
departmental examination. It is admitted that five years ACRs
were considered by the Promotion Committee, but it is denied that
promotion amounted to certification of an excellent service record.
The Corporation has finally denied that the order of compulsory
retirement was contrary to regulations, guidelines, Model Standing
Orders, or that it constituted unfair labour practice under Item 9 of
Schedule IV of the MRTU and PULP Act, 1971.
9.Mr. Palshikar, learned Advocate appearing for the petitioners,
namely the Municipal Corporation of Greater Mumbai, submits
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that under the service rules framed by the Corporation no
employee possesses any vested or enforceable right to continue in
service beyond the age of 55 years. According to him, once the
competent authority forms an opinion that in public interest an
employee should be retired after attaining the age of 55 years, the
Corporation is fully empowered to exercise such authority in
accordance with the governing regulations. It is his submission
that the learned Industrial Court failed to appreciate that the
Review Committee had examined the service record of the
respondent employee and found her performance to be only
average, and on that basis recommended compulsory retirement.
He contends that such recommendation was founded upon
relevant material and could not have been lightly interfered with.
He further submits that the Industrial Court overlooked the
statutory rules and regulations which expressly confer power upon
the appropriate authority to compulsorily retire an employee in
public interest. Such power, according to him, is intended to
preserve administrative efficiency, and the efficiency of an
employee is a relevant and legitimate consideration. It is lastly
urged that judicial review in matters of compulsory retirement is of
a narrow and limited character, and the Industrial Court travelled
beyond permissible limits while re-appreciating the merits of the
administrative decision.
10.Learned counsel further submits that the Industrial Court fell
in error in observing that since the respondent employee had
earlier been promoted, and since no serious misconduct had been
alleged against her nor any charge-sheet issued, the order of
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compulsory retirement stood vitiated. According to him,
compulsory retirement is not a punishment and does not depend
upon proof of misconduct in the disciplinary sense. He submits
that the Industrial Court also wrongly attached importance to the
circumstance that the retirement memorandum did not expressly
recite the words public interest and that the employee had
satisfied requirements concerning integrity. It is urged that absence
of such recital in the notice itself does not invalidate the decision
when the record demonstrates that the competent authority acted
within the statutory framework. On that basis, he contends that
the finding of unfair labour practice recorded by the Industrial
Court is legally unsustainable.
11.In support of the aforesaid submissions, Mr. Palshikar has
placed reliance upon the judgments of the Supreme Court in
Posts
and Telegraphs Board and Others vs. C.S.N. Murthy,
(1992) 2 SCC
317,
and Central Industrial Security Force vs. HC (GD) Om
Prakash,
(2022) 5 SCC 100, to contend that compulsory
retirement based on overall service assessment and in public
interest is valid where the competent authority forms a bona fide
opinion on relevant material.
12.Per contra, Mr. Devdas, learned Advocate appearing for the
respondent employee, submits that she entered service on 21
December 1981 as Junior Audit and Accounts Assistant in the
Chief Accountant Department of the petitioner Corporation at its
Head Office. He submits that she completed the L.S.G.D.
examination in the year 1985 and was granted one increment on
passing the same. Thereafter, she passed the departmental
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examination in 1997, which qualified her for consideration to the
promotional post of Senior Audit and Accounts Assistant.
Ultimately, by order dated 9 April 2010, she was promoted with
effect from 7 April 2010. It is further submitted that she passed the
L.G.S. examination in February 2012, though the consequential
benefit of two increments was not granted. Learned counsel points
out that upon promotion she was posted to the Provident Fund
Section on 23 April 2010, where she worked till 5 September
2010, and thereafter was transferred to the Pension Section from 6
September 2010, where she continued till 31 August 2011, namely
the date on which the impugned compulsory retirement was
brought into effect.
13.Learned counsel submits that during her posting in the
Pension Section, certain memoranda were issued by the
Corporation on 13 October 2010, 3 December 2010, 7 January
2011, and 1 April 2011, to which the respondent submitted
replies. According to him, those memoranda relate only to a
limited period between October 2010 and April 2011 and cannot
outweigh an otherwise satisfactory service career. He further
submits that the Corporation is governed by Regulation 205(1) of
the BMC Service Regulations, 1989, under which the normal age
of retirement is fixed at 58 years. He contends that the
Corporation had framed internal guidelines in respect of
continuation of service after the age of 55 years, requiring
consideration by a duly constituted Committee. As per those
guidelines, the employee must satisfy what is described as the
triple test, namely physical fitness, unquestioned integrity, and
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confidential record not below the grading of good. In addition
thereto, the confidential reports of the preceding five years are
required to be scrutinized, and any decision of compulsory
retirement must rest on genuine public interest. It is thus
submitted that the decision-making process was regulated by
definite norms which the Corporation was bound to observe.
14.It is further submitted that the case of the respondent was
placed before the Committee on 21 May 2011 for consideration of
extension beyond the age of 55 years, but the Committee failed to
correctly apply the prescribed norms. Learned counsel submits that
the service record for the preceding five years did not contain any
grading below good. According to him, the relevant gradings were
as follows: for 2005-2006, A Excellent; for 2006-2007, B Good; for
2007-2008, B Good; for 2008-2009, B Good; and for 2009-2010, B
Good. It is further contended that the report for 2010-2011 had
not been communicated to the respondent at the relevant time. On
such basis, it is argued that the Corporation’s assertion regarding
unsatisfactory record is contrary to the material on record.
15.Learned counsel further submits that Regulation 205
contemplates three months’ notice prior to compulsory retirement,
and even that requirement has not been properly complied with.
The notice was issued on 3 June 2011, whereas the effective date
of retirement was 31 August 2011. It is his submission that
compulsory retirement could have been ordered only in public
interest, yet the impugned notice discloses no reasons
demonstrating such public interest. He submits that when the
matter was placed before the Committee constituted for
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considering continuation beyond 55 years, the respondent had an
unblemished record, the last five years’ confidential reports were
not below good, and the triple test stood satisfied. Therefore,
according to him, the compulsory retirement is contrary to rules
and guidelines. It is further urged that the Corporation has
improperly relied upon the report for 2010-2011, although the
Committee’s recommendation dated 21 May 2011 preceded the
finalisation of that report, wherein a C grade is said to have been
shown. Such grading, according to him, was never communicated
to the respondent. He submits that the Committee did not properly
consider the reports from 2005-2006 to 2009-2010 and reached its
conclusion without due application of mind. Learned counsel
therefore contends that the action is arbitrary, contrary to the
confidential history sheets, violative of the applicable rules, and
amounts to breach of service obligations constituting unfair labour
practice under Item 9 of Schedule IV of the MRTU and PULP Act.
16.Learned counsel also points out that the Corporation had
raised an objection before the Industrial Court regarding the status
of the respondent as a workman. However, the Industrial Court
held that the post of Senior Audit and Accounts Assistant falls
within the expression workman under Section 2(s) of the
Industrial Disputes Act and employee under Section 3(5) of the
MRTU and PULP Act, 1971, while relying upon an earlier decision
of this Court in Writ Petition No.9767 of 2012. He further submits
that in paragraph 21 of the evidence, the witness examined on
behalf of the Corporation admitted that the respondent had
fulfilled all the three criteria prescribed for continuation after the
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age of 55 years.
17.It is next submitted that the action of compulsory retirement
was not genuinely founded upon public interest. According to
learned counsel, the Corporation failed to keep in view that such
power can be exercised only when public interest so demands. It is
therefore urged that the judgment and order passed by the
Industrial Court, Mumbai calls for affirmation, there being no
infirmity therein. Learned counsel submits that the writ petition
filed by the Corporation deserves dismissal with costs. He further
prays that the notice of compulsory retirement dated 3 June 2011
be quashed and set aside, and that the period from 1 September
2011 till 31 August 2014 be treated as period spent on duty for all
purposes with continuity of service and consequential monetary
and retiral benefits up to the normal age of superannuation,
namely 58 years.
18.Learned counsel lastly emphasizes that the respondent was
promoted to the post of Senior Audit and Accounts Assistant in
April 2010 only after scrutiny of her service record for the
preceding five years. The promotion order dated 9 April 2010
granted effect from 7 April 2010, which according to him
necessarily implies that her service record was found satisfactory
by the competent authority. It is argued that having found her
suitable for promotion, the Corporation cannot within a short span
of less than one year declare her work unsatisfactory without
cogent intervening material. Such abrupt reversal, according to
him, itself demonstrates lack of proper application of mind by the
Committee. He therefore prays that the writ petition of the
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Corporation be dismissed, and the Corporation be directed to treat
the period from 1 September 2011 to 31 August 2014 as duty
period with full back wages, continuity of service, and all
consequential benefits.
19.In support of the aforesaid contentions, learned counsel for
the respondent employee has relied upon the decisions in
Swaram
Singh Chand vs. Punjab State Electricity Board,
2009 LawSuit (SC)
945
; State of Sikkim vs. Soman Lam, 1990 LawSuit (SC) 480;
Baldev Raj Ex. Constable vs. State of Punjab,
1984 LawSuit (SC)
71
; Mulchand Dasumal Pardasani vs. Union of India, Ministry of
Finance,
1969 LawSuit (Guj) 93; Chhotalal Vashjibhai vs.
Vivekanand Mills Co. Ltd.,
1969 LawSuit (Guj) 29; Brij Mohan
Singh vs. State of Punjab,
1979 LawSuit (P&H) 23; Gurdial Singh
vs. State of Punjab and Others,
2005 LawSuit (P&H) 2778; and
Amarkant Choudhary vs. State of Bihar,
1984 LawSuit (SC) 2.
REASONS AND ANALYSIS:
20.I have considered the rival submissions with care, and also
the material which was placed before the Industrial Court. The
controversy concerns the true nature of the respondent employee’s
work, the manner in which her case for continuation after 55 years
was examined, and the extent of the power of the Corporation
under its own service regulations to retire an employee
compulsorily in public interest.
21.At the outset, the preliminary objection touching
maintainability does not merit acceptance. The Corporation has
argued that the respondent was not a workman and therefore the
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complaint itself before the Industrial Court was not competent.
Such submission cannot be accepted merely on nomenclature of
post. The respondent was admittedly serving on the designation of
Senior Audit and Accounts Assistant. Mere use of the expression
Senior, or placement in an office section, does not determine the
true character of employment. The Court is required to see the
actual and dominant nature of duties performed and not only the
title attached to the post.
22.The Corporation has attempted to show that the respondent
was discharging supervisory and administrative functions of a
substantial kind. However, the material placed on record does not
support such claim. What appears from the evidence is that her
principal work was connected with audit scrutiny, maintenance of
accounts, provident fund matters, pension papers, verification of
service particulars, checking eligibility under rules, and processing
claims. These are functions largely clerical, though requiring
experience and care. It is true that at times she may have been in
charge of a section or may have guided subordinate clerical staff in
day to day functioning. But occasional checking of subordinate
work cannot transform a clerical employee into one exercising
supervisory role.
23.Coming now to the power under Regulation 205, there can
be no dispute that such provision confers authority upon the
Corporation to retire an employee compulsorily after attainment of
55 years if public interest so requires.
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24.The expression public interest cannot be reduced into an
empty formula. It is not enough that the file records some
endorsement. There must exist material having nexus with
efficiency, integrity or similar considerations. The authority must
examine the employee’s total record, confidential reports,
reputation for honesty, and overall usefulness to the institution.
The decision must emerge from objective satisfaction. While this
Court does not sit in appeal over such satisfaction, it is true that
where non application of mind or breach of prescribed procedure
is shown, judicial review is not excluded.
25.The Corporation has strongly relied upon the service record
of the respondent during the period 2006 to 2011 and also upon
various memo issued between October 2010 and April 2011. I
have considered this aspect. It is correct that certain memos were
issued. It is also correct that some dissatisfaction appears in
portions of the confidential material. Service record must be read
as a whole. A few memo, unless of grave nature, do not
automatically establish that continuation in service is against
public interest.
26.On the other side stands an important circumstance. The
respondent had passed the departmental examination. She had
become eligible for advancement. Thereafter, she was promoted to
the post of Senior Audit and Accounts Assistant by order dated 9
April 2010. Such promotion required consideration by the
competent authority. Promotion is granted after examining
eligibility and suitability. Thus, the Corporation, at least in April
2010, considered the respondent fit to shoulder higher
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responsibility. This fact cannot be ignored when evaluating later
decision.
27.Therefore, when within short period thereafter the same
employer forms opinion that the employee should not even
continue after 55 years, the Court is entitled to expect stronger
material. The material produced by the Corporation does not
establish such change in a short time.
28.The promotion aspect is relevant, though not conclusive. I
make it clear that promotion does not create immunity from
compulsory retirement. Law does not recognise any such absolute
shield. Even a promoted employee may later become inefficient or
unsuitable. If later record justifies action, the authority may act.
But where promotion is recent and based on scrutiny of record, it
becomes a circumstance against a allegation that the employee had
become deadwood. Courts must weigh probabilities. In the present
case, promotion was granted in April 2010, while the impugned
retirement notice followed in June 2011. Within this short interval,
the Corporation was required to show basis that retention had
become contrary to public interest. That burden has not been
discharged.
29.The service gradings relied upon by the respondent also
deserve notice. Material has been shown indicating A Excellent for
2005 to 2006 and B Good for subsequent years till 2009 to 2010.
The Corporation disputes reliance upon such gradings and refers
to adverse material for 2010 to 2011. Even assuming some decline
existed, one aspect remains unanswered. There is no explanation
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why the Committee recommendation moved ahead before the
material for the year in question had been processed. If an adverse
report becomes the basis of compulsory retirement, fairness
requires that the record be complete.
30.Confidential reports affect civil consequences. If the material
relied upon was incomplete, then the credibility of the decision-
making process is affected.
31.The respondent has relied upon the guidelines framed by the
Corporation, referring to a triple test, namely physical fitness,
integrity, and confidential record not below good for the relevant
period. The Corporation has attempted to say that they were not
fully satisfied. I am unable to accept that submission in the facts of
this case. Once an employer frames norms to guide exercise of
discretion, fairness demand that such norms be respected.
32.More importantly, the respondent has pointed out that the
Corporation’s witness admitted compliance of the three criteria.
Such admission unless explained, it binds the factual position to an
extent. If physical fitness was not in issue, if integrity was not
doubtful, and if confidential record broadly met the minimum
standard, then the decision to compulsorily retire the respondent
required some compelling reason.
33.The Corporation argued that the notice need not mention
the words public interest and that substance should prevail over
form. As a proposition of law, that submission is correct. If the
record shows satisfaction, absence of recital in the notice may not
be fatal. But this principle cannot assist the Corporation where the
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material itself is uncertain. In the present case, the memo is silent.
The record contains both favourable and unfavourable elements. A
recent promotion exists. The Committee process appears
insufficiently strict. In such background, silence of the notice
assumes significance. The Court is not obliged to presume public
interest merely because the employer invokes the regulation.
Public interest must be inferable from circumstances. The burden
remained on the Corporation to demonstrate that the decision was
reached upon due assessment. That burden remains undischarged.
34.The Industrial Court, therefore, was justified in reaching the
conclusion that the impugned action constituted unfair labour
practice under Item 9 of Schedule IV. The concept in such context
applies where an employer acts contrary to rules, disregards
norms, or deprives an employee of rights by arbitrary procedure.
Here, compulsory retirement was not shown to have been
preceded by adherence to the Corporation’s own circular. The
decision appears to rest on a general dissatisfaction.
35.The Corporation relied upon judgments laying down that
judicial interference in compulsory retirement matters is limited.
That principle is accepted. Courts do not substitute their subjective
satisfaction for that of the authority. Compulsory retirement is not
punitive. It may be based on overall assessment. There is no
dispute on these principles. In the present case, the Committee
appears to have incorrectly considered the impact of the recent
promotion, given importance to a certain memos, and not
demonstrated how retention of the respondent would damage
public interest.
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36.The authorities cited on behalf of the respondent support the
settled proposition that compulsory retirement must rest on
objective assessment and cannot be arbitrary. Where relevant
service record is ignored, where favourable material is brushed
aside, or where the decision appears hurried, the Court may
intervene. The respondent had long service since 1981. She
earned promotion in 2010. No charge-sheet or disciplinary finding
has been shown. The adverse material consists mainly of memos
and certain remarks. Such matters may justify caution. They do
not justify compulsory retirement.
37.So far as the claim for back wages is concerned, because
reinstatement does not automatically result into grant of full
wages. For claiming wages for the entire period during which she
remained out of employment, the employee is required to make a
statement that despite reasonable efforts she remained
unemployed, or that she was not gainfully employed elsewhere.
38.The Supreme Court in the case of Deepali Gundu Surwase v.
Kranti Junior Adhyapak Mahavidyalaya
, (2013) 10 SCC 324 has
explained that the initial burden in matters of back wages lies
upon the employee to assert on oath that she was not gainfully
employed after termination or removal. Once such statement is
made, the burden may shift upon the employer to establish
otherwise by placing material that the employee was employed
elsewhere or earning sufficient income. Examining the record of
the present case, it is seen that the employee has not stated on
oath that after cessation of service she remained unemployed or
that she had no gainful source of livelihood elsewhere. There is no
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pleading in the complaint, nor any affidavit evidence. In absence
of such sworn statement, the employee would not be entitled to
back wages for the relevant period.
39.In view of the foregoing discussion and for the reasons
recorded hereinabove, the following order is passed:
(i) Writ Petition No.7091 of 2013 filed by the Municipal
Corporation of Greater Mumbai stands dismissed;
(ii) Writ Petition No.2540 of 2014 filed by the employee is
partly allowed;
(iii) The judgment and order dated 1 July 2013 passed by
the Industrial Court, Mumbai in Complaint (ULP) No.265 of
2011 is confirmed insofar as it sets aside the action of
compulsory retirement of the employee and grants continuity
of service with consequential benefits;
(iv) The said judgment and order is modified only to the
extent of monetary relief;
(v) It is declared that the notice/order dated 3 June 2011
compulsorily retiring the employee with effect from 31
August 2011 is illegal and is quashed and set aside;
(vi) The respondent employee shall be deemed to have
continued in service till the date of normal superannuation,
namely 31 August 2014;
(vii) The period from 1 September 2011 till 31 August 2014
shall be treated as period spent on duty for the limited
purpose of continuity of service, computation of pensionary
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benefits, retiral dues, increments, and all other consequential
service benefits admissible in law;
(viii) The claim for back wages for the period from 1
September 2011 to 31 August 2014 stands rejected;
(ix) The Corporation shall recalculate and release all retiral
and consequential monetary benefits, excluding back wages,
within a period of twelve weeks from the date of receipt of
this order;
(x) In case any amount has already been paid towards
back wages under interim orders or otherwise, the same
shall be adjusted while making final computation;
(xi) Rule is discharged in Writ Petition No.7091 of 2013;
(xii) Rule is made partly absolute in Writ Petition No.2540
of 2014 in the above terms;
(xiii) There shall be no order as to costs.
40.At this stage, learned Advocate for the Corporation seeks stay
of this judgment. However, for the reasons recorded in this
judgment, the request for stay stands rejected.
s
(AMIT BORKAR, J.)
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