Bombay High Court
The Municipal Corporation Of Greater … vs Suresh Rajaram Kadam on 18 April, 2026
Author: Amit Borkar
Bench: Amit Borkar
2026:BHC-AS:18206
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AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.14102 OF 2022
1. The Municipal Corporation of
Greater Mumbai.
2. The Municipal Commissioner,
Mahapalika Building, Mahapalika
Marg, Mumbai 400 001
3. The Chief Engineer, Solid Waste
Management Department (SWMD),
ATUL The Municipal Corporation of Greater
GANESH
KULKARNI Mumbai, 368, Luv Groovers,
Digitally signed
by ATUL GANESH
KULKARNI
Dr. Annie Besant Road, Worli,
Date: 2026.04.18
12:12:45 +0530
Mumbai 400 018
4. Dy. Chief Officer (Enquiry),
Head Office, The Municipal
Corporation of Greater Mumbai,
Head Office, Mumbai 400 001 ... Petitioners
Vs.
Suresh Rajaram Kadam,
Jai Hind Coop. Housing Society,
422, Plot No.R No.21, Charkop,
Kandivali (West), Mumbai 400 067. ... Respondent
WITH
WRIT PETITION NO.2651 OF 2023
Suresh Rajaram Kadam,
Jai Hind Coop. Housing Society,
422, Plot No.R No.21, Charkop,
Kandivali (West), Mumbai 400 067. ... Petitioner
Vs.
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Municipal Corporation of Greater
Mumbai, A body corporate, through
Municipal Commissioner, constituted
under the provisions of the Mumbai
Municipal Corporation Act, 1888,
having its office at Municipal Head Office,
Mahapalika Marg, CST, Mumbai 400 001 ... Respondent
Mr. S.N. Pillai with Mr. Santosh Parad for the
petitioner-MCGM in WP/14102/2022 & for the
respondent in WP/2651/2023.
Mr. Prakash Devdas with Mrs. Vidula S. Patil for the
petitioner in WP/2651/2023 & for the respondent in
WP/14102/2022.
CORAM : AMIT BORKAR, J.
RESERVED ON : APRIL 16, 2026.
PRONOUNCED ON : APRIL 18, 2026
JUDGMENT:
1. Both the present writ petitions, instituted under Articles 226
and 227 of the Constitution of India, seek to assail the order dated
19 December 2019 passed by the Industrial Court at Mumbai in
Complaint (ULP) No.110 of 2016.
2. The facts and circumstances giving rise to the institution of
the present writ petitions, as set out by the petitioner, are that one
Suresh Kadam instituted a complaint alleging commission of unfair
labour practice by the respondents, namely the Municipal
Corporation of Greater Mumbai, under Item 9 of Schedule IV of
the Maharashtra Recognition of Trade Unions and Prevention of
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Unfair Labour Practices Act, 1971 (for short, “the MRTU and PULP
Act“). It is the case of the complainant that he came to be
appointed by respondent No.1 in the Motor Shop Garage under the
Executive Engineer, Transport (City), with effect from 5 January
1987, and was thereafter promoted to the post of Fitter Grade II at
Worli Garage with effect from 1 December 1994. Respondent No.1
is stated to be a Corporation constituted under the provisions of
the Mumbai Municipal Corporation Act, 1888, whereas respondent
Nos.2 and 3 are the Chief Executive and Chief Engineer (Solid
Waste Management), respectively.
3. According to the complainant, respondent No.3 illegally
placed him under suspension with effect from 23 October 2008. It
is his case that prior thereto, on 16 October 2008, he had been
arrested by the police in connection with a complaint lodged by
one of his co-workers at Borivali Police Station, though he was
released on bail on the very same day. The complainant asserts
that in the criminal proceedings arising out of the said complaint,
he was ultimately acquitted by the Court of the Metropolitan
Magistrate, 26th Court, Borivali, by judgment and order dated 18
September 2014. It is, therefore, his contention that the
suspension imposed upon him from 23 October 2008 was illegal
and without lawful authority.
4. It is further the case of the complainant that during the
subsistence of his suspension, the respondents issued a charge-
sheet dated 27 April 2011. According to him, the said charge-sheet
was not issued in conformity with the Model Standing Orders
applicable to respondent No.1 establishment. The complainant
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alleges that false charges were levelled against him and a
departmental enquiry came to be conducted, pursuant to which
the Enquiry Officer submitted his findings on 27 March 2012. It is
his grievance that, despite the conclusion of the enquiry, no
punishment was imposed upon him till 27 February 2016 and he
continued to remain under suspension even after his acquittal in
the criminal proceedings. The complainant further states that
thereafter, by order dated 3 November 2012, the respondents
imposed upon him the punishment of fine in the sum of
Rs.5,000/-. Subsequently, by another order dated 8 January 2016,
the period of suspension was directed to be treated as leave due.
According to the complainant, the aforesaid actions amount to
imposition of two separate punishments for the same alleged
misconduct. It is his contention that the respondents had no
authority either to suspend him, or to impose a fine, or to direct
that the suspension period be treated as leave due. The
complainant, therefore, asserts that the said acts and omissions on
the part of the respondents constitute unfair labour practice under
Item 9 of Schedule IV of the MRTU and PULP Act, 1971, and on
that basis has challenged the orders dated 3 November 2012 and 8
January 2016 in the complaint proceedings.
5. Upon service of notice, the respondents appeared in the
proceedings and filed their written statement below Exhibit C-4. In
the said written statement, the respondents denied all adverse
allegations levelled by the complainant. It is their stand that the
actions taken by them were strictly in accordance with law and
that no unfair labour practice whatsoever has been committed by
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them. A preliminary objection has also been raised that the
complaint is barred by limitation. On merits, the respondents
contend that while the complainant was on duty at Grih Garage on
16 October 2008, he assaulted one Mohan Dhanawade, who was
working in the same garage, by means of an iron rod and thereby
caused grievous injuries to him. Consequently, a complaint came to
be lodged against the complainant at Borivali Police Station vide
C.R. No.413 of 2008 for offences punishable under Sections 323,
324 and 504 of the Indian Penal Code. It is stated that the
complainant was produced before the Metropolitan Magistrate for
remand and was thereafter released on bail upon furnishing bail in
the sum of Rs.3,000/-. The respondents admit that the
complainant was acquitted in the said criminal proceedings by
judgment dated 18 September 2014. It is, however, their case that
pending departmental enquiry, the complainant was placed under
suspension with effect from 23 October 2008 and such suspension
was subsequently revoked with effect from 18 June 2011 by office
order dated 21 June 2011. According to the respondents, while
under suspension, the complainant was subjected to departmental
enquiry in accordance with the applicable Service Rules, and he
participated in the said enquiry without raising any objection.
Since the charges levelled against him were proved in the enquiry,
punishment order dated 3 November 2012 came to be passed
imposing a fine of Rs.5,000/- upon him for the misconduct
established against him.
6. In so far as the period of suspension from 23 October 2008
to 18 June 2011 is concerned, the respondents contend that a
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decision was taken in accordance with Rule 75(3) of the Municipal
Service Regulations to treat the said period as leave due. It is their
case that since the complainant was acquitted in the criminal
proceedings by extending to him the benefit of doubt, the period
of suspension was not liable to be regularised or condoned. The
respondents, therefore, maintain that the action taken by them is
just, legal and proper and does not warrant any interference.
7. Mr. Pillai, learned counsel appearing on behalf of the
petitioner, submitted that Clause 32 of the Model Standing Orders,
which provides that the said Standing Orders shall not operate in
derogation of the provisions of any other law for the time being in
force, has not been taken into consideration by the Coordinate
Benches of this Court while deciding the matters of Sitaram
Tukaram Walunj vs. Municipal Corporation of Greater Mumbai in
Writ Petition No.8711 of 2007 decided on 15 April 2008 and
Municipal Corporation of Greater Mumbai and Others vs. Smt.
Nilima Sunil Nadkarni in Writ Petition No.5077 of 2012 decided
on 4 March 2012.
8. Inviting attention to the Industrial Employment Standing
Orders prevailing in various other States, learned counsel
submitted that no provision analogous to Clause 32 of the Model
Standing Orders applicable in the State of Maharashtra is found in
the Standing Orders of such other States. He further invited
attention to Clause 32 of the U.P. Industrial Employment Model
Standing Orders and submitted that even the said provision is
materially distinct from Clause 32 of the Model Standing Orders
applicable in the State of Maharashtra. He further submitted that
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in so far as the punishment of fine of Rs.5,000/- is concerned, the
same had been imposed in the years 2012 and 2016, whereas the
complaint came to be instituted by the respondent only in the year
2016. According to him, in the absence of any prayer seeking
condonation of delay, or any sufficient explanation for not assailing
the imposition of the said punishment at the relevant point of
time, the complaint, to that extent, was clearly barred by
limitation. It was, therefore, contended that the impugned
judgment and order, insofar as it holds that in the absence of a
specific provision in the Model Standing Orders the petitioner has
no authority to suspend a workman, deserves to be quashed and
set aside.
9. Per contra, Mrs. Vidula Patil, learned counsel appearing for
the respondent, submitted that this Court has consistently taken
the view that the Model Standing Orders govern the service
conditions of the employees of the petitioner Municipal
Corporation. She submitted that the Industrial Court has rightly
held that the provisions of the Industrial Employment (Standing
Orders) Act would prevail over the provisions of the Municipal
Corporation Act in matters relating to service conditions. Placing
reliance upon the judgment of this Court in Sitaram Tukaram
Walunj (supra), learned counsel for the respondent submitted that
in the absence of any enabling provision in the Model Standing
Orders authorising suspension of an employee merely on the
ground of registration of a criminal offence against him, or on
account of his being taken into custody, such employee could not
have been placed under suspension. She further submitted that the
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finding recorded by the Industrial Court in Part I holding the
enquiry to be fair and proper cannot be sustained, particularly
when the Industrial Court itself has observed that there exists no
provision in the Model Standing Orders permitting suspension of
an employee merely because a criminal case has been registered
against him. According to her, once the very foundation of the
action is found to be legally unsustainable, the issue framed in Part
I ought necessarily to have been answered in favour of the
respondent. She further submitted that although the punishment
of fine of Rs.5,000/- was imposed in the year 2012, the said
punishment was in fact given effect to only in the year 2016 by
deduction of the said amount from the salary payable to the
respondent. It was, therefore, submitted that Writ Petition
No.14102 of 2022 deserves to be dismissed, whereas Writ Petition
No.2651 of 2023 challenging the findings recorded in Part I
deserves to be allowed.
REASONS AND ANALYSIS:
10. Having heard the learned advocates appearing for the
respective parties at considerable length, and having carefully
perused the pleadings, documentary material, and the impugned
order placed on record, I find that the principal contention arising
for determination in the present proceedings revolves around the
scope, meaning and legal effect of Clause 32 of the Model
Standing Orders and the consequences which legally flow from its
interpretation. The petitioner has strenuously contended that the
earlier decisions of this Court rendered in the matters of Sitaram
Tukaram Walunj and Smt. Nilima Sunil Nadkarni do not lay down
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the correct legal position for the reason that the said judgments
have not specifically adverted to or considered Clause 32 of the
Model Standing Orders while deciding the question of suspension.
It is thus urged that those precedents should not be treated as
binding in the present case. On the contrary, the respondent has
submitted that Clause 32 neither enlarges nor creates any
disciplinary authority in favour of the employer, but merely
preserves rights and obligations otherwise flowing from law or pre-
existing service arrangements.
11. Clause 32 of the Model Standing Orders reads thus:
“Nothing contained in these Standing Orders shall operate in
derogation of any law for the time being in force or to the
prejudice of any right under a contract of service, custom or
usage or an agreement, settlement or award applicable to
the establishment.”
12. In my considered opinion, Clause 32 cannot be read as a
source of disciplinary or administrative power. The language
employed therein indicates that it is merely in nature of a saving
provision. The clause specifically provides that nothing contained
in the Standing Orders shall operate in derogation of any law for
the time being in force or prejudice any right arising under
contract of service, custom, usage, settlement, agreement or
award. Such phraseology preserves existing rights and legal
provisions. It does not confer any fresh power upon the employer
to take disciplinary measures, including suspension, where such
power is otherwise not independently traceable to any statutory
provision, rule, regulation, or binding condition of service. A
saving clause, by settled principles of interpretation, saves what
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already exists; it does not create what otherwise never existed.
13. The argument advanced on behalf of the petitioner that the
Industrial Court failed to consider Clause 32 and thereby
committed error cannot be accepted as answer to the complaint
raised by the respondent-workman. Even if Clause 32 is read in its
entirety, the conclusion would remain unaltered. The clause
recognizes that if any law, service rule, agreement, or enforceable
condition grants a right or imposes an obligation, then the
Standing Orders cannot be interpreted so as to destroy the same. It
is thus declaratory in nature. Suspension is serious service
consequence affecting the civil rights and emoluments of the
employee. Therefore, the power to suspend must be shown from a
statutory provision, service regulation, certified standing order, or
lawful contractual term. In the present matter, despite repeated
opportunity, no specific provision has been demonstrated before
this Court by the petitioner conferring such authority in the
standing orders. In service jurisprudence, powers affecting rights
of employees must have legal source.
14. The further reliance placed by the petitioner upon the
standing orders prevailing in other States and the comparative
reference made to the U.P. Industrial Employment Model Standing
Orders also does not advance the petitioner’s case. In my view,
such comparative exercise is of little assistance while deciding the
controversy in hand. Merely because the language of standing
orders in another State may differ, or because similar clause may
or may not be found elsewhere, cannot determine the legal rights
of parties governed by the Model Standing Orders applicable
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within the State of Maharashtra. The issue before this Court is not
what other State legislatures or authorities have chosen to provide
in their respective service frameworks, but whether under the
service regime binding upon the petitioner-establishment, there
exists sanction for suspension in the facts of the case. The
comparison with the U.P. Standing Orders does not establish that
Maharashtra Model Standing Orders impliedly confer any
suspension power. In fact, presence of Clause 32 in Maharashtra
rather reinforces the respondent’s submission that the clause is
preservative of rights otherwise flowing from legal source and does
not permit the employer to import into the Standing Orders a
power which is not provided.
15. In Municipal Corporation of Greater Mumbai v. Mumbai
Mahanagarpalika Karyalayeen Karmachari Sanghatana, a learned
Single Judge of this Court, while deciding by order dated 21
September 2017, has taken a view that the provisions contained in
the Industrial Employment (Standing Orders) Act and the Model
Standing Orders framed thereunder would have overriding effect
over the provisions of the Municipal Corporation Act as well as the
Municipal Service Rules, Regulations and even the Manual of
Departmental Enquiries. This finding is based upon the scheme of
the enactments. The Standing Orders Act is a special legislation
enacted with a specific object to regulate service conditions of
workmen in industrial establishments in a uniform and binding
manner. On the other hand, the Municipal Corporation Act and the
service rules framed thereunder are general in nature, dealing with
administration of the Corporation and its employees at large. It is a
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settled principle that where there is a conflict between a special
law and a general law, the special law must prevail. The learned
Judge rightly held that even if the Corporation has framed its own
rules or departmental manuals, such provisions cannot override or
dilute the statutory mandate of the Standing Orders Act. Thus, the
ratio of this judgment supports the view that the field relating to
service conditions of workmen is already occupied by the Standing
Orders, and any inconsistent provision must give way.
16. These very principles came to be examined again in the case
of M.C.G.M. v. Madhusudan S. Kanth , where another learned
Single Judge of this Court, by order dated 13 December 1990,
reaffirmed the same legal position. The learned Judge reiterated
that the Model Standing Orders are applicable to the Municipal
Corporation and that they would prevail over the Corporation’s
Service Regulations while conducting a domestic enquiry. The
reasoning appears to proceed on the footing that domestic
enquiries, which directly affect the rights and livelihood of
workmen, must strictly adhere to the procedures prescribed under
the Standing Orders. If the Corporation were permitted to rely on
its own service regulations in disregard of the Standing Orders, it
would defeat the very purpose for which the Standing Orders Act
was enacted, namely, to ensure uniformity, certainty, and fairness
in service conditions.
17. The same learned Single Judge, in yet another decision in
Municipal Corporation of Greater Mumbai v. Dr. Shivajirao T.
Kawale, by order dated 17 January 2011, has once again
considered the issue and has rejected the contention of the
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Corporation that its Municipal Rules, which permitted imposition
of a particular punishment, would prevail even if such punishment
was not contemplated under the Model Standing Orders. The
Court has taken a firm view that where the Standing Orders do not
authorise a particular form of punishment, the Corporation cannot
resort to its own rules to impose such punishment. If the Standing
Orders are to prevail, then they must prevail in substance.
Allowing the Corporation to impose punishments not sanctioned
by the Standing Orders would amount to defeating the statutory
scheme. This line of reasoning supports the conclusion that the
Standing Orders form the governing code, and any action taken
outside them cannot be sustained in law.
18. In the case of Sitaram Tukaram Walunj v. Municipal
Corporation of Greater Mumbai, decided on 15 April 2008,
another learned Single Judge of this Court has held that there is no
doubt that as between the Municipal Corporation Act and the
Industrial Employment (Standing Orders) Act, 1946, it is the latter
which would govern the service conditions of workmen to whom it
applies. The learned Judge has taken into account that once the
Standing Orders become applicable to an establishment, they
attain binding force akin to statutory conditions, and neither
employer nor employee can act contrary to them. Therefore, even
if the Municipal Act or the rules framed thereunder provide certain
powers to the Corporation, such powers cannot be exercised in a
manner inconsistent with the Standing Orders. This judgment thus
lays down a guiding principle that the source of power for
regulating service conditions must be traced to the Standing
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Orders.
19. The judgment of this Court in Sitaram Tukaram Walunj also,
in my considered view, cannot be disregarded merely because the
petitioner asserts that Clause 32 was not discussed therein. It is
well settled that a judgment does not lose its precedential value
merely because every statutory provision was not quoted therein,
provided the principle decided therein remains directly applicable.
The ratio laid down in the said judgment continues to hold field
and is consistent with settled service law jurisprudence. The
Industrial Court, while relying upon the said decision, has correctly
examined the substance of the matter. The Industrial Court has
returned a finding, based on appreciation of the record, that the
suspension in present matter was occasioned because criminal
complaint had been registered against the respondent and not
because of any standing order authorizing such suspension. Such
factual finding is borne out by the material available and no
perversity therein is demonstrated. Once the very source of
authority to suspend is not shown, the suspension order cannot
survive merely because the employer considered such course
administratively desirable.
20. In so far as the disciplinary enquiry is concerned, I am
unable to accept the submission of the respondent that the enquiry
itself stood vitiated because suspension was unlawful. The material
on record prima facie indicates that departmental enquiry was
conducted, opportunity of participation was afforded to the
workman, and findings were ultimately rendered by the Enquiry
Officer. Thus, on procedural aspect, the enquiry appears to have
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proceeded in accordance with required form. However, that by
itself does not conclude the controversy in favour of the petitioner.
It is settled that even if procedural fairness is maintained in
conduct of enquiry, that cannot cure a defect going to root of
jurisdiction. If the suspension and consequential initiation of
process is without legal sanction, then mere procedural propriety
in enquiry cannot sanctify illegality. The Industrial Court was
therefore justified in examining legality of enquiry process and
legality of suspension power. Both questions are conceptually
distinct. A procedurally fair enquiry may exist, yet the action
preceding it may still fail if undertaken without lawful authority.
21. Likewise, the order directing that the suspension period be
treated as leave due cannot independently survive once the
underlying suspension itself is found to suffer from want of
authority. If suspension is unauthorized, then subsequent
adjustment of that period as leave due also becomes vulnerable
unless lawful justification is shown. No independent basis has been
satisfactorily demonstrated before this Court for treating the said
period as leave apart from the suspension order itself. Therefore,
once the foundation fails, the consequential order must ordinarily
fail with it.
22. The petitioner has further contended that the complaint
itself was barred by limitation, at least in so far as challenge to
punishment of Rs.5,000/- is concerned, because the punishment
order was originally passed in the year 2012, whereas complaint
was instituted in the year 2016. This submission, in my opinion,
carries force and deserves acceptance. Undoubtedly, where a
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litigant seeks to challenge an order passed years earlier, and no
explanation is offered for delayed approach, the Court cannot
ignore the limitation prescribed. Law of limitation is founded on
public policy to ensure finality in legal proceedings. The
respondent has contended that though punishment order may
have been passed earlier, actual monetary deduction and
implementation thereof took place only in the year 2016, when the
amount was deducted from salary. If that be so, then it may not be
entirely correct to hold that cause of action arose only on date of
original punishment order. Where adverse financial consequences
are actually inflicted subsequently, the cause of grievance may
continue or revive when such implementation takes place. Thus,
while challenge to the original 2012 order is barred by limitation.
23. The challenge to the punishment order dated 3 November
2012, whereby a fine of Rs.5,000/- came to be imposed upon the
respondent-workman, is held to be barred by limitation. The
complaint, in so far as it seeks to assail the said punishment order,
having been instituted in the year 2016 without any application for
condonation of delay or sufficient cause shown for such belated
challenge, cannot be entertained in law. The Industrial Court, to
that extent, committed an error in entertaining and adjudicating
upon the validity of the said punishment.
24. Taking an overall and cumulative view of the matter, I am of
considered opinion that the Industrial Court committed no error in
holding that the petitioner had no lawful authority to suspend the
respondent-workman merely because criminal proceedings had
been initiated against him, in absence of any express enabling
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provision in the Model Standing Orders or any other binding
service rule. No perversity, patent illegality, or jurisdictional error is
demonstrated in the impugned findings. The petitioner has failed
to make out any case warranting interference in writ jurisdiction.
The principal challenge raised in the writ petitions, therefore, must
fail.
25. In view of the foregoing discussion and for the reasons
recorded hereinabove, the following order is passed:
(i) The writ petitions are partly allowed;
(ii) The impugned judgment and order dated 19 December
2019 passed by the Industrial Court, Mumbai in Complaint
(ULP) No.110 of 2016 is quashed and set aside to the limited
extent it interferes with the punishment order dated 3
November 2012 imposing fine of Rs.5,000/-;
(iii) It is held that the challenge to the said punishment
order dated 3 November 2012 is barred by limitation and
could not have been entertained;
(iv) The impugned judgment and order, in all other
respects, including the findings relating to illegality of
suspension and consequential treatment of suspension
period, is upheld;
(v) Rule is made partly absolute in the aforesaid terms.
(vi) There shall be no order as to costs.
(AMIT BORKAR, J.)
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