Bombay High Court
The Municipal Corporation Of Greater … vs Mumbai Municipal Kamgar Sangh And Anr on 23 April, 2026
Author: Amit Borkar
Bench: Amit Borkar
2026:BHC-AS:19147
911-wpst267-2020-J.doc
MPBALEKAR
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (ST.) NO.267 OF 2021
1. The Municipal Corporation of Greater
Mumbai, being sued through it's Chief
Executive Officer, namely, The
Municipal Commissioner, Mahapalika
Building, Mahapalika Marg,
Mumbai 400 001
2. The Education Officer,
The Education Department, Education
Office Building, The Municipal
Corporation of Greater Mumbai, Opp.
IES King George School, Matunga,
Mumbai - 400 019 ... Petitioners
Vs.
1. Mumbai Municipal Kamgar Sangh,
105-106, 1st Floor, Swapnapurti
Building, Dr. Ambedkar Road,
Parel, Mumbai 400 012
2. Rajashree Manohar Loke,
C/o. Manohar Govind Loke,
C/101, Snehadeep Coop. Housing
Society Limited, Vishal Chavan Marg,
Parel, Mumbai - 400 012 ... Respondents
Mr. Suresh Pakale, Senior Advocate with Mr. Santosh
Parad for the petitioners-MCGM.
Ms. Anupama Talekar for respondent No.2.
Ms. Prajakta Naik, Administrative Officer, Secondary
Education Department, present in-person.
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CORAM : AMIT BORKAR, J.
RESERVED ON : APRIL 18, 2026.
PRONOUNCED ON : APRIL 23, 2026
JUDGMENT:
1. By the present writ petition filed under Article 227 of the
Constitution of India, the petitioners challenge the impugned
judgment and order dated 29 January 2020 passed by the
Industrial Tribunal, Maharashtra at Mumbai, in Complaint (ULP)
No. 103 of 2015.
2. The facts giving rise to the present writ petition are, in brief,
as follows. Complainant No. 1 is a registered trade union. The
deceased mother of Complainant No. 2 was a member of the said
union. Complainant No. 1 espoused the cause of Complainant No.
2 seeking appointment on preferential treatment basis, commonly
referred to as P.T. case basis, in place of her deceased mother, who
died while in service. It is the case of the complainants that
Complainant No. 2 and her father had repeatedly approached the
respondents seeking employment on compassionate grounds, but
their requests were consistently declined. According to them, such
conduct amounts to unfair labour practices under Item Nos. 5 and
9 of Schedule IV of the MRTU and PULP Act, 1971. It is further
pleaded that the mother of Complainant No. 2, late Manisha
Manohar Loke, was employed with Respondent No. 2 as a
secondary school teacher. She came to be appointed on 1 April
1986 and expired in harness on 2 February 1994 prior to attaining
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the age of superannuation. At the time of her demise, she was
serving at Shindewadi Secondary Municipal School situated at S.A.
Palave Marg, Dadar (East), Mumbai. She was survived by her
husband, Manohar Govind Loke, and two daughters, namely
Complainant No. 2 and her younger sister Siddhi Manohar Loke.
At the relevant time, Complainant No. 2 was aged about five and a
half years, whereas her younger sister was aged about two and a
half years. Since both daughters were minors, no application for
appointment on P.T. case basis could be submitted at that stage.
After the death of late Manisha Loke, her provident fund and
gratuity amounts were paid to her husband. Family pension
commenced after about twelve years. Initially, the same was
received by Complainant No. 2 till she attained the age of twenty-
two years. Thereafter, the respondents started disbursing the said
pension to the younger daughter. It is further stated that the
husband of the deceased employee was serving with Bombay Port
Trust and retired on 31 October 2010, and is receiving pensionary
benefits. According to the complainants, except the pension
received from the Petitioner and Bombay Port Trust, the family
has no other source of livelihood.
3. It is further pleaded that Complainant No. 2 is presently
aged about twenty-seven years and possesses a Master’s Degree in
Literature. Her younger sister Siddhi is aged about twenty-two
years and pursuing M.Sc. Part II studies. The father of
Complainant No. 2 submitted applications dated 1 July 2006 and 3
July 2006 to the respondents seeking compassionate appointment.
Thereafter, as required by the respondents, Complainant No. 2
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herself submitted an application dated 1 October 2010 seeking
appointment on P.T. case basis. Further applications are stated to
have been submitted on 3 September 2010, 1 October 2010 and 3
November 2011. The father, Manohar Govind Loke, also submitted
another application on 2 February 2011. It is further the case of
the complainants that immediately after the death of the
employee, Manohar Govind Loke had addressed a letter dated 3
May 1994 to the Headmaster of Shindewadi Secondary Municipal
School requesting release of pension, gratuity and provident fund.
By the said communication, it was also informed that both
daughters were minors and one appointment under P.T. case
category be reserved for either of them upon attaining majority.
According to the complainants, the said letter was duly received by
the respondents. It is alleged that despite repeated representations
made by Complainant No. 2 and her father, no effective decision
was taken, and they were merely informed from time to time that
the applications were under active consideration. Ultimately, on 2
February 2015, the Headmaster of Shindewadi Secondary
Municipal School orally informed the complainants, with reference
to letter dated 27 January 2015, that the Chief Labour Officer had
rejected the claim for appointment on P.T. case basis.It is further
stated that by forwarding letter dated 25 February 2015, the
Headmaster supplied a copy of the communication dated 27
January 2015, whereupon Complainant No. 2 came to know that
her request for appointment on P.T. case basis had been rejected on
grounds which, according to the complainants, were untenable
and unjustified. On these assertions, the complainants contended
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that the respondents had indulged in unfair labour practices under
Item Nos. 5 and 9 of Schedule IV of the MRTU and PULP Act, 1971
by rejecting the application of Complainant No. 2 for employment
under the said category.
4. The respondents filed their written statement and opposed
the complaint by contending that the same was founded on
misconceived facts and was not maintainable in law. It was pointed
out that Manisha Manohar Loke expired on 2 February 1994 and
Complainant No. 2 attained majority on 17 July 2006. However,
she applied for appointment on P.T. case basis only on 1 October
2010, when her father was nearing the age of superannuation. The
complaint itself came to be filed on 3 March 2015. According to
the respondents, the proceedings were therefore barred by
limitation and liable to be dismissed. It was further contended that
the action taken by the respondents was purely administrative in
nature and in accordance with applicable rules and policy. Hence,
Item Nos. 5 and 9 of Schedule IV of the MRTU and PULP Act, 1971
were not attracted. The complaint was described as false, frivolous
and vexatious. It was also specifically contended that Complainant
No. 2 was never an employee of the respondents and, therefore, in
absence of an employer employee relationship, the Industrial
Court lacked jurisdiction to entertain and adjudicate the
complaint.The respondents further contended that there was no
breach of any award, agreement or settlement and therefore Item
No. 9 of Schedule IV had no application. According to them, an
application seeking appointment on P.T. case basis ought to have
been submitted immediately after the death of the employee. A
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belated application, according to the respondents, could not be
entertained. Reliance was placed upon Circular dated 22 March
2007, under which if any member of the deceased employee’s
family was employed in Government or semi Government service,
or was otherwise well placed and capable of maintaining the
family, no appointment in municipal service on P.T. case basis could
be granted. It was stated that when the mother of Complainant
No. 2 expired, her husband Manohar Govind Loke was in service
with Bombay Port Trust till 31 October 2010. It was further stated
that after the death of Manisha Loke, family pension was paid to
her husband till the date of his remarriage on 11 June 1996.
Thereafter, the Petitioner paid pension to the elder daughter,
namely Complainant No. 2, till she attained the age of twenty two
years, and thereafter the same was being paid to the younger
daughter. In substance, all averments of the complainants were
denied. It was reiterated that the application for appointment was
not submitted within the prescribed period, that the complaint
itself was beyond limitation, and that the rejection of the request
for employment was on valid and lawful grounds. On these
premises, dismissal of the complaint was sought.
5. Mr. Pakale, learned Senior Advocate appearing for the
petitioners, submitted that a claim for appointment on P.T. case
basis is required to be considered only in favour of the nearest
eligible dependent of the deceased employee and that too within
one year from the date of death of such employee. According to
him, in the present case, no relationship of employer and
employee existed between the Petitioner and the present
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complainants, and the original complainants had failed to establish
such foundational relationship. On that ground alone, according to
the learned Senior Advocate, the complaint was not maintainable.
He further submitted that Complainant No. 2 had submitted
applications seeking appointment on P.T. case basis on 1 October
2010, 3 September 2010 and 31 January 2011, whereas her
mother had expired on 2 February 1994. Thus, the claim was
raised after an inordinate lapse of time and beyond the stipulated
period prescribed under the policy of the petitioners. It was
therefore contended that Complainant No. 2 was not eligible to
seek compassionate appointment.
6. It was further urged that Respondent No. 1 Union was not a
recognised union and only a recognised union could maintain
proceedings on behalf of employees who were its members. Late
Manisha Manohar Loke, who was in service of the Petitioner ,
expired on 2 February 1994, and any request for compassionate
appointment ought to have been made immediately and in any
event within one year thereof. The same having not been done, no
enforceable claim survived. It was also pointed out that
Complainant No. 2 was a minor aged about six years at the time of
death of her mother and she sought appointment only after
attaining majority. According to the petitioners, the very nature of
the claim demonstrates absence of employer employee relationship
between Complainant No. 2 and the Petitioner , and therefore the
complaint deserved dismissal.Mr. Pakale further submitted that
Section 3(5) of the MRTU and PULP Act, 1971 defines the
expression “employee”. Under the said provision, in cases
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governed by the Bombay Act, the definition contained therein
would apply, and in other cases the term would mean a workman
as defined in clause (s) of Section 2 of the Industrial Disputes Act,
1947.
7. According to the learned Senior Advocate, the present
complaint proceeds on the footing that the Petitioner has a policy
whereby, if an employee dies during service, one eligible member
of his or her family may be considered for appointment on P.T. case
basis or compassionate grounds. The grievance of Complainant No.
2 is that she and her father repeatedly approached the Petitioner
seeking such appointment and that the request was rejected after
considerable delay. It was submitted that such rejection may at
best furnish a personal grievance, but it does not create status of
employment.He therefore contended that Complainant No. 2 was
never employed within the meaning of Section 3(5) of the MRTU
and PULP Act, nor did she satisfy the definition of workman under
Section 2(s) of the Industrial Disputes Act, 1947. In absence of
such status, no cause of action could arise for filing a complaint
under the provisions of the MRTU and PULP Act.
8. Per contra, Ms. Talekar, learned advocate appearing for
Respondent No. 2, submitted that late Manisha Manohar Loke was
a member of the complainant union and, after her demise, the
union had espoused the cause of Complainant No. 2. She
submitted that since Manisha Loke died while serving the
Petitioner on 2 February 1994, Complainant No. 2 became
entitled, in terms of the policy of the Corporation, to be considered
for appointment on compassionate ground, namely on P.T. case
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basis. According to learned counsel, the cause of Complainant No.
2 was validly espoused by the complainant union and therefore the
strict principles relating to direct employer employee relationship
between the complainants and the Petitioner could not be
mechanically applied in the facts of the present case. She
submitted that though Complainant No. 2, being legal heir of the
deceased employee, was otherwise entitled to consideration, her
application came to be rejected on untenable and erroneous
grounds.It was therefore contended that the complainants were
justified in instituting the complaint under Item Nos. 5 and 9 of
Schedule IV of the MRTU and PULP Act, 1971. According to her, an
implied nexus arising from the service conditions of the deceased
employee and the policy governing compassionate appointment
was sufficient to maintain the proceedings. Hence, the complaint
could not be defeated merely on the plea that no direct employer
employee relationship existed.
9. Ms. Talekar further submitted that soon after the demise of
Manisha Loke, an application dated 3 May 1994 was submitted to
the Head Mistress of Shindewadi Municipal Secondary School,
Dadar, seeking consequential benefits and consideration of a P.T.
case claim. The said application was forwarded by the then Head
Mistress to the Education Department of the Petitioner . However,
neither Complainant No. 2 nor her father Manohar Loke received
any response thereto. She submitted that thereafter Complainant
No. 2 and her father repeatedly submitted further applications to
the Petitioner , but the same remained unattended for years
together. It was further submitted that on 16 January 2015, the
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Chief Labour Officer of the Petitioner addressed a communication
to the Head Master of the said school, who thereafter informed the
complainant and her father that the request for compassionate
appointment had been rejected.The rejection, according to learned
counsel, was founded on the ground that after the death of
Manisha Loke, her husband Manohar Loke continued in
employment with Bombay Port Trust till 1 November 2010 and
therefore Complainant No. 2 was not entitled to compassionate
appointment. She submitted that only upon receipt of the
communication on 25 February 2015 did Complainant No. 2 and
her father acquire knowledge of the rejection. The complaint was
thereafter filed on 3 March 2015. It was therefore contended that
the complaint had been instituted well within ninety days from the
date on which cause of action accrued and was not barred by
limitation.
10. In rejoinder, Mr. Pakale, learned Senior Advocate for the
petitioners, reiterated that on the date of filing of the complaint no
relationship of employer and employee existed between
Complainant No. 2 and the petitioners. Placing reliance on the
judgment of the Supreme Court in Cipla Limited Vs. Maharashtra
General Kamgar Union, 2001 (2) Scale 152 , he submitted that for
entertaining a complaint under Section 28 of the MRTU and PULP
Act, existence of employer employee relationship is a necessary
precondition. He further submitted that even the Industrial Court
had recorded a finding that Complainant No. 1 Union was not a
recognised union, and yet proceeded to hold that since
Complainant No. 2 was espousing the cause of her deceased
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mother, she could be treated as an employee for the purposes of
Section 28. According to him, such reasoning was legally
unsustainable. He also submitted that Complainant No. 2 was not
a dependent within the meaning of the applicable policy.
11. Reliance was also placed on the judgment of this Court in
Hemant Govind Vaidya Vs. Vasant Dada Sugar Institute, 2000 (86)
FLR 49 to contend that an allegation of unfair labour practice is a
serious charge and any allegation of victimisation must be
specifically pleaded and duly proved. Mere illegality, according to
him, would not by itself amount to unfair labour practice. He
further relied upon Krishna Ganpat Kasar Vs. India United Mills
No.2 A Unit of NTC Ltd., S. S. Hirurkar, 2004 (102) FLR 188 to
submit that in absence of an application for condonation of delay,
a time-barred complaint cannot be entertained. On these
submissions, he prayed that the writ petition be allowed.
12. In reply, Ms. Talekar, learned advocate for Respondent No. 2,
invited attention to the application dated 3 May 1994 addressed
by the father of Respondent No. 2 to the Head Mistress, wherein it
was specifically stated that the deceased employee was survived by
two daughters and that a P.T. case be sanctioned in favour of either
of them upon attaining majority. She submitted that no reply was
ever furnished to the said application. She further invited attention
to the subsequent communication dated 1 July 2006 addressed by
the father to the Administrative Officer requesting compassionate
appointment in favour of the elder daughter. According to her, the
last communication came to be replied to only by the school on 25
February 2014, based upon the decision of the petitioner
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Municipal Corporation dated 29 January 2015. The said
communication, according to her, constituted the only formal
rejection of the several requests made by Complainant No. 2. She
also relied upon the Circular dated 18 May 2007 prescribing the
procedure for deciding P.T. case claims. Under the said circular,
such claims were required to be scrutinized by the Chief Labour
Officer and thereafter forwarded through the Joint Commissioner
to the Commissioner for approval. She submitted that no final
decision in accordance with the prescribed procedure had been
duly communicated earlier and therefore the cause of action to
institute the complaint arose only upon rejection being conveyed.
13. Ms. Talekar lastly submitted that Complainant No. 1 is a
recognised union and was therefore competent to espouse the
cause of Complainant No. 2. On the aforesaid grounds, she
submitted that the writ petition is devoid of merit and liable to be
dismissed.
REASONS AND ANALYSIS:
14. I have heard the learned Senior Advocate for the petitioners
and the learned advocate for respondent No. 2 at length. I have
also gone through the record and the rival pleadings. The matter
turns on a small but important question. Whether the present
complaint under Section 28 read with Item Nos. 5 and 9 of
Schedule IV of the MRTU and PULP Act, 1971 could at all be
maintained by Complainant No. 2, when she was never in service
of the Petitioner and when the claim for appointment on P.T. case
basis was raised after a long lapse of time from the death of her
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mother. The answer to this question has to be found from the true
nature of the claim, the policy relied upon by the parties, and the
legal character of the proceedings.
15. The undisputed facts which come from the record are that
late Manisha Manohar Loke was serving as an employee of the
Petitioner and she expired while in service on 2 February 1994. It
is also clear that at the time when unfortunate death took place,
Complainant No. 2 was of tender age and was only a small child.
This circumstance creates sympathy, but sympathy by itself cannot
decide legal rights. The material further shows that after death of
the employee, the family was extended service terminal benefits
such as provident fund, gratuity, and family pension. Therefore, it
cannot be said that the employer had denied all post death
benefits arising from service of deceased employee. Those dues,
which had become payable because of service already rendered by
deceased employeee.
16. The sole grievance is that Complainant No. 2 ought to have
been granted appointment on compassionate ground.
Compassionate appointment does not arise automatically on death
of employee like pensionary dues. It depends on scheme, eligibility,
financial condition, timing, and satisfaction of policy norms.
17. The admitted position is that such request for appointment
was raised after passage of many years from date of death and
rejection came after the matter remained pending for long time
before authorities. Thus, the controversy before Court concerns
whether a dependent daughter, after lapse of substantial time,
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could invoke labour jurisdiction alleging unfair labour practice
because request for compassionate appointment came to be
rejected.
18. The principal submission advanced by the petitioners is that
there never existed relationship of employer and employee
between Complainant No. 2 and the Petitioner . This objection
goes to root of jurisdiction. The jurisdiction under Section 28 of
the MRTU and PULP Act is a statutory jurisdiction. The statute
creates rights, remedies, and limitations. Therefore, the
complainant must first show that the dispute answers the statutory
description. Unless foundational facts exist, the Court cannot
assume jurisdiction. A person invoking labour jurisdiction must
demonstrate that she is an employee, workman, union
representing employees, or that the dispute directly concerns
service conditions recognized by the Act. In the present case,
Complainant No.2 was not a serving employee, nor was she in
employment of the Corporation. Therefore, the employer and
employee relationship is absent.
19. It is true that labour jurisprudence in some cases adopts
liberal approach, but liberal interpretation cannot erase statutory
limitations. If a stranger to service claims employment because of
family relation with deceased employee, such claim may be
considered under compassionate policy, but it does not create
service relationship. Hence, the objection of the petitioners strike
at competence of the proceedings.
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20. The respondent No.2 has attempted to meet this objection by
contending that the union had espoused the cause of the legal heir
of the deceased employee and therefore insistence upon employer
employee relationship ought not to be made. This submission
cannot be accepted. Espousal by union has recognized place in
industrial law. Many disputes are carried through collective
representation, and individual workmen obtain support. But such
espousal operates where a service dispute already exists in relation
to persons who are employees or where the industrial character of
dispute is established. A union may lend voice to a grievance. It
may provide support. But union support cannot create a legal
relationship which never came into existence. If the complainant
herself never entered service, then by adoption of her cause by a
union, the jurisdiction under labour statute cannot stand enlarged.
Otherwise, every disappointed applicant for public employment
could route claim through union and invoke unfair labour practice
jurisdiction.
21. The cause projected by Complainant No.2 may genuine from
human angle. Her mother died in service. She seeks benefit said to
flow from such death. Yet genuineness of cause and
maintainability are two separate matters. A litigant may have
hardship, but remedy must still lie before proper forum.
Therefore, while the union may support the claimant, such support
alone cannot cure the legal defect.
22. The next aspect is delay, which in matters of compassionate
appointment assumes significance. The mother of Complainant
No.2 died in the year 1994. The first communication relied upon
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by the complainants is dated 3 May 1994. Thereafter, further
representations are shown in 2006, 2010 and 2011. Thus, the
matter moved in scattered representations over long years.
23. Compassionate appointment is not hereditary succession to
service. Public employment must be filled through open
competition, equal opportunity and transparent procedure.
Compassionate appointment stands as exception carved out to
relieve sudden financial distress caused by death of breadwinner in
harness. Because it is an exception, conditions governing it must
be strictly viewed. It is intended to tide over immediate crisis. It is
not meant to reserve a vacancy for child to claim upon attaining
majority after many years, unless policy expressly so provides.
24. When many years pass after death, the immediate crisis
either gets mitigated or replaced by circumstances. The foundation
of compassionate scheme therefore becomes weak with lapse of
time. In the present matter, delay extends over a decade. Such
lapse cannot be regularised merely because representations were
periodically sent.
25. The respondent No.2 has submitted that Complainant No.2
was a minor when her mother died. A child of tender age could
not herself seek appointment. But that circumstance alone does
not conclude the issue in her favour. The father of the
complainant was alive. The record indicates that retiral dues and
pensionary benefits arising from service of deceased employee
were received. It is also not disputed that the father was in
employment with Bombay Port Trust for substantial period
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thereafter. Thus this was not a case where entire family was left
wholly without means on account of death. Presence of surviving
employed parent is relevant factor under compassionate schemes,
because object is financial rescue. The purpose of compassionate
appointment is to save family from sudden collapse of livelihood.
It is not designed to provide second chance of employment to an
heir after lapse of many years when family had subsisted through
other income. This principle cannot be diluted because claim is
advanced by daughter after attaining majority and educational
qualification. Sympathy for claimant cannot rewrite nature of
scheme. Therefore, minority of Complainant No.2 at time of death
explains delay but does not erase legal consequences flowing from
family circumstances.
26. I am also of the view that no sufficient material has been
brought on record to show any clear breach of settlement, award
or binding agreement so as to attract Item No.9 of Schedule IV of
the MRTU and PULP Act. For invoking that provision, there must
be obligation arising from settlement, award, agreement or
statutory service arrangement which is shown to have been not
implemented. In the present matter, no such instrument conferring
right of appointment has been satisfactorily established before the
Court. Likewise, mere refusal of appointment on compassionate
ground does not by itself amount to unfair labour practice under
Item No.5. Every rejection by employer cannot be branded as
unfair labour practice. For such finding, there must be convincing
material of hostile discrimination, victimisation, mala fide
exclusion, favouritism, arbitrary pick and choose, or conduct of
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nature contemplated by the statute. In the present record, such
proof is absent. What emerges is this. The family made repeated
requests. The authority did not decide with promptness. Ultimately
the request was rejected. These facts may generate grievance and
dissatisfaction. They may even indicate delay. But grievance is not
equal to unfair labour practice in legal sense. Hence, invocation of
Item Nos.5 and 9 remains unsubstantiated. Therefore, on an
overall assessment of all the submissions, I am unable to sustain
the impugned judgment and order.
27. In view of the foregoing discussion and for the reasons
recorded hereinabove, the following order is passed:
(i) The writ petition is allowed;
(ii) The judgment and order dated 29 January 2020 passed
by the Industrial Tribunal, Maharashtra at Mumbai in
Complaint (ULP) No.103 of 2015 is quashed and set aside;
(iii) Complaint (ULP) No.103 of 2015 filed by the
respondents stands dismissed;
(iv) It is clarified that dismissal of the complaint under the
provisions of the MRTU and PULP Act, 1971 shall not
preclude respondent No.2 from availing such other remedy
as may be permissible in law, if otherwise available;
(v) Rule is made absolute in the aforesaid terms;
(vi) In the facts and circumstances of the case, there shall
be no order as to costs.
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(vii) Pending interim applications, if any, do not survive and
stand disposed of.
(AMIT BORKAR, J.)
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