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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
LETTERS PATENT APPEAL NOS. 380/10 & 381/10
1] LETTERS PATENT APPEAL NO. 380 OF 2010
(ARISING OUT OF WRIT PETITION NO. 1039 OF 2008).
1) Conservator of Forest, North
Division Forest, Chandrapur,
2) Deputy Conservator of Forest,
Forest Division, Chandrapur,
3) Range Forest Officer, Mul,
Dist. Chandrapur. ..... APPELLANTS.
....Versus....
1) Shri Umeshwar Keshav Kathwate,
Aged about 27 years, Occ. Ex-
Forest Guard, R/o Chota Nagpur,
20, P.O. Padoli, Chandrapur,
Dist. Chandrapur,
2) Member, Industrial Court,
Chandrapur. ...... RESPONDENTS.
2] LETTERS PATENT APPEAL NO. 381 OF 2010
(ARISING OUT OF WRIT PETITION NO. 1278 OF 2009).
1) Conservator of Forest, North
Division Forest, Chandrapur,
2) Deputy Conservator of Forest,
Forest Division, Chandrapur,
3) Range Forest Officer, Mul,
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Dist. Chandrapur. ..... APPELLANTS.
....Versus....
1) Shri Umeshwar Keshav Kathwate,
Aged about 27 years, Occ. Ex-
Forest Guard, R/o Chota Nagpur,
20, P.O. Padoli, Chandrapur,
Dist. Chandrapur. ...... RESPONDENT.
Mr. A.R. Patil, Advocate for respondent no.1,
Mr. V.P. Maldhure, Assistant Government Pleader for respondent
no.2.
CORAM : B.P. DHARMADHIKARI & MRS. SWAPNA S. JOSHI, JJ.
DATED : NOVEMBER 27, 2017.
B.P. DHARMADHIKARI
ORAL JUDGMENT (PER , J.)
1] Nobody appears for appellants. Learned A.G.P. appears
for respondent no.2. Mr. A.R. Patil, learned Advocate has appeared for respondent no.1/employee in both the matters. 2] Respondent Umeshwar was provided employment as Forest Guard by appellants in pay-scale of 2750-70-3800-75-4400 as per order of appointment dated 23.12.2003. He was selected because of his status as belonging to Nomadic Tribe (C). The appellant was temporary and ad-hoc. His caste claim was also ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 01:22:02 ::: 3 lpa380.10 validated by a competent committee on 14.1.2004. 3] It appears that he was sent for physical examination to find out his fitness for training and at that time it was found that he was not 163 cm. in height. His height was found to be only 160 cms. 4] At this stage, Mr. S.R. Deshpande, learned Counsel appears and informs that Forest Department has collected papers from him and they were to engage office of Government Pleader. He also informs that he has ceased to be a Panel Advocate. 5] Because of this outcome of physical examination, appellants found that respondent was not possessing requisite height and, therefore, could not have been selected as Forest Guard. He was, therefore, discontinued by order dated 29.1.2005. 6] Umeshwar challenged this termination in Complaint (ULP) No. 11/05 under Section 28 read with Section 30 and Item 1 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as "Act No. I of 1972"). The Labour Court has granted him interim relief on 24.3.2005 and asked employer to reinstate him on his former ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 01:22:02 ::: 4 lpa380.10 post or then to pay him 90% of the wages per month. 7] Final judgment has been delivered in above-mentioned Complaint (ULP) on 8.9.2006. The Labour Court has directed employer to pay back wages till 8.9.2006 and granted five years' salary as compensation.
8] This direction and judgment of Labour Court was questioned by employer by filing Revision (ULP) No. 60/06 under Section 44 of the Act No. I of 1972. Umeshwar also challenged it by filing Revision (ULP) No. 62/06. He sought relief of reinstatement with continuity.
9] The Member, Industrial Court, Chandrapur decided both the Revisions together by common order dated 10.1.2008. Industrial Court maintained order of Labour Court but brought down compensation to sum of Rs.1,50,000/-.
10] This common order was questioned by Umeshwar in Writ Petition No. 1039/08 and by appellant employer in Writ petition No. 1278/09.
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11] Writ Petition No. 1039/08 was decided on 8.10.2008 by the
learned Single Judge. The learned Single Judge maintained the relief of compensation of Rs.1,50,000/- awarded to Umeshwar and rejected his prayer for grant of reinstatement with continuity or back wages. 12] Employer (present appellant) filed Writ Petition No. 1278/09 after this adjudication on 20.2.2009. The other learned Single Judge of this Court has by judgment dated 8.9.2009 rejected the prayer of appointment and upheld grant of Rs.1,50,000/- as compensation to Umeshwar.
13] Employer has questioned these two separate judgments delivered by two learned Single Judges of this Court in these two Letters Patent Appeals.
14] Judgment in Writ Petition No. 1039/08 dated 8.10.2008 dismissing petition filed by Umeshwar forms subject matter of L.P.A. No. 380/10 while the other judgment dismissing Writ Petition of employer challenging grant of compensation to Umeshwar forms subject matter of L.P.A. No. 381/10.
15] Umeshwar has not challenged the adverse judgment
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delivered by the learned Single Judge dismissing his Writ Petition No. 1039/08. With the result, it is obvious that L.P.A. No. 380/10 filed by employer challenging dismissal of Writ Petition is unsustainable and not maintainable. It is, therefore, dismissed. 16] L.P.A. No. 381/10 challenges judgment delivered by other learned Single Judge in Writ Petition No. 1278/09. In this Writ Petition employer questioned compensation of Rs.1,50,000/- awarded by Industrial Court to Umeshwar. Compensation was brought down because Industrial Court partly allowed Revision filed by employer. As such, the employer who wanted that no compensation or any relief should be awarded to Umeshwar approached this Court in Writ Petition No. 1278/09. This Writ Petition has been filed long after dismissal of Writ Petition No. 1039/08. Dismissal of Writ Petition No. 1039/08 has not been expressly pointed out in it. 17] Perusal of judgment dated 8.9.2009 delivered by learned Single Judge in Writ Petition No. 1278/09 reveals that there effort was made to urge that Forest Department is not an industry and support was taken from two judgments. In the alternative, contention that award of compensation was unwarranted was also raised. The learned Counsel for Umeshwar relied upon two judgments delivered ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 01:22:02 ::: 7 lpa380.10 by Hon'ble Apex Court to urge that Forest Department is industry. The learned Single Judge has accepted larger Bench adjudication in case of Bangalore Water Supply and Sewerage Board .vs. A. Rajappa reported in (1978) 2 SCC 213 to hold that it is "industry". 18] While considering question of compensation, learned Single Judge found that the controversy in relation thereto is covered by judgment of coordinate Bench. Mr. A.R. Patil, learned Counsel appearing for Umeshwar has submitted that this judgment of coordinate Bench is judgment dated 8.10.2008 in Writ Petition No. 1039/08.
19] We find that in Writ Petition filed by Umeshwar, Umeshwar was seeking larger relief of reinstatement with continuity and back wages. He may have at the most claimed more amount as compensation. However, grant of compensation as such, was not the issue involved in Writ Petition No. 1039/08.
20] However, in this L.P.A. at this juncture while considering the quantum of compensation, we are not inclined to intervene. The employee Umeshwar had not played any fraud and was selected after open competitive procedure. He joined and worked for little less ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 01:22:02 ::: 8 lpa380.10 than two years. His appointment was on ad-hoc basis or temporary but still he could have continued further had the error not been discovered. Not only this, there is a provision for relaxation of height for Scheduled Tribe employees. Thus, it cannot be said that an employee with height lesser than 163 cms. is totally disqualified. 21] His monthly salary was roughly Rs.5000/- per month. He has been given compensation of about 2½ years salary for losing the job. He must have given up other chances in the meanwhile because he already got employment as Forest Guard. Taking overall view of the matter, we do not see compensation of Rs.1,50,000/- awarded to him disproportionate or arbitrary. At this stage, Shri Patil, learned Counsel informs that as stay was granted in L.P.A. on 22.9.2010 the employee would get amount of Rs.1,50,000/- only now without any interest.
22] In this situation, we direct employer to pay to him simple interest calculated at 6% per annum from 22.9.2010 till its actual realization. The amount shall be made over to him within next four months.
23] We, therefore, find that no case is made out even in L.P.A. ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 01:22:02 :::
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No. 381/10 for intervention. Accordingly, the said L.P.A. is also
dismissed. No costs.
JUDGE. JUDGE.
J.
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