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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 4400 OF 2017
1] The State of Maharashtra,
Through Chief Secretary
Mantralaya, Mumbai-32.
2] The Additional Principal Chief
Conservator of Forests
(Administration-Subordinate Cadre)
Civil Lines, M. S. Nagpur.
3] The Chief Conservator of Forest (T)
Yavatmal Circle, Dr. Babasaheb
Ambedkar Social Justice Bhavan
Palaswadi Camp, Civil Lines,
Yavatmal. .....PETITIONERS
...V E R S U S...
Shri Sandeep Nilkanth Dabre,
Aged about 52 years,
Occu. Service, R/o-Plot No.43
Satyam Society, Shrikrushna Nagar
Darwa Road, Yavatmal,
Tah & Dist-Yavatmal. ...... RESPONDENT
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Mrs. M. A. Barabde, A. G. P. for the Petitioners.
Miss. A. A. Athalye, Advocate for Respondent.
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CORAM : S. C. GUPTE, J.
th DATE : 18 SEPTEMBER, 2017.
ORAL JUDGMENT :
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02] Rule. Rule taken up for hearing forthwith.
03] This petition challenges an order passed by the
Industrial Court at Yavatmal on a complaint of unfair labour practice under Section 28 read with Item-9 of Schedule-IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act ("Act").
04] On 1st July, 1983, the respondent was appointed by petitioner No.3 as a clerk. He was promoted on 8 th December, 2000 to the post of an accountant and held the same ever since then. By a show cause notice dated 16 th July, 2015, the respondent was called upon to explain why action should not be taken against him for non submission of caste validity certificate. Aggrieved by this show cause notice, the respondent filed the present complaint. In the complaint, the respondent took out an application under Section 30(2) of the Act, for an interim stay of the show cause notice. That application was granted by the Industrial Court by its order dated 11th March, 2016. That order is impugned in the present petition.
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05] The main ground of challenge in the present petition is
that there is no case under Item-9 of Schedule-IV. Merely by reason of the fact that an explanation is called for from the respondent for non-submission of caste validity certificate, there is no breach or failure to implement any award, settlement or agreement. The Industrial Court came to the conclusion that prima facie the appointment of the respondent was made in the open category and not in a reserved category and therefore, the impugned show cause notice was illegal. In other words, the Industrial Court has gone into the prima facie merits of the show cause notice in the complaint without considering properly the maintainability of the complaint. In the light of the objections of the petitioners, who challenged the maintainability of the complaint under Item-9 of Schedule-IV, the Industrial Court had to consider whether a complaint such as this is prima facie maintainable. The Industrial Court has come to the conclusion that the complaint is maintainable purportedly on the ground that though Item-9 of Schedule-IV, dealt with an unfair labour practice where there is a failure to implement an award, settlement or agreement, the scope of Item-9 has been increased after the decision of the Hon'ble ::: Uploaded on - 22/09/2017 ::: Downloaded on - 23/09/2017 01:38:45 ::: wp4400.17.J.odt 4/6 Supreme Court in the case of S. G. Chemicals and Dyes Trading Employees' Union ..vs.. S. G. Chemicals and Dyes Trading Limited, reported in 1986 I LLN 986, so as to include violation of any statutory provision. One fails to understand (and there is no explanation in this behalf) on what basis a show cause notice such as this entails violation of any statutory provision. 06] Learned counsel for the respondent tries to support the order by submitting that the expression 'agreement' used in Item-9 of Schedule-IV is broad enough to include any term or service condition contained in the original appointment order. She relies on the judgment of this Court in the case of Dattatraya Shankarrao Kharde ..vs.. Executive Engineer, Chief Gate Erection Unit No.2 and Another, reported in 1994 Mh. L. J. 776, in support of her submission. It may be that an appointment order, which contains terms of contract on which the employee is appointed by the employer and conditions of his service, would amount to an 'agreement' within the meaning of Item-9 of Schedule-IV but the question is whether prima facie there is any breach of that agreement. From a bare reading of the letter of appointment, all that can be said is that there is no reference to the ::: Uploaded on - 22/09/2017 ::: Downloaded on - 23/09/2017 01:38:45 ::: wp4400.17.J.odt 5/6 appointment of the respondent in any reserve category. It may even be possible to suggest that absence of any reference to appointment in reserve category may imply that the appointment was in open category as an implied term, if not an express term. But even if that is so, it can never be suggested that a show cause notice for non- submission of caste validity certificate can by itself amount to any breach of such implied term. If, according to the respondent, he is appointed in open category and not in any reserve category and therefore, not liable to submit any caste validity certificate, it is for him to show such cause to his employer. He cannot suggest that simply because he has been asked to show cause, there is a breach of the agreement of his employment. There is nothing to suggest that the petitioners have already made up their mind to punish the respondent for non-submission of a caste validity certificate. What they have done is to have merely ordered an inquiry. The respondent has to simply participate in that inquiry and show cause. The cause may be that he is not bound to produce any caste validity certificate, since his appointment is in an open category and not in reserve category. Since this issue is anyway open and to be considered by the petitioners, there is no breach of any term of appointment of the respondent.
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07] In the premises, the impugned order of the Industrial
Court cannot be sustained. The jurisdiction to order interim stay of the show cause notice has been exercised by the Court on an untenable basis, namely, that the scope of Item-9 includes violation of statutory provisions without indicating any such statutory provision. No such provision is shown to exist even at the hearing of this petition. The Industrial Court has, therefore, exercised jurisdiction in an incorrect manner and on a wrong principle. The order, accordingly, needs to be corrected in the exercise of writ jurisdiction of this Court.
08] Accordingly, Rule is made absolute and the impugned order passed by the Industrial Court is quashed and set aside and stay of show cause notice ordered by it is vacated forthwith. The petition is disposed of accordingly.
JUDGE PBP ::: Uploaded on - 22/09/2017 ::: Downloaded on - 23/09/2017 01:38:45 :::