J-wp5104.17.odt 1/5
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION No.5104 OF 2017
Maharashtra State Road Transport Corporation,
through it's Divisional Controller,
Chandrapur/Gadchiroli Division,
Office at Gadchiroli, Distt. Gadchiroli. : PETITIONER
...VERSUS...
Shashikant s/o. Laxmanrao Gadekar,
Age 54 years,
R/o. Saykheda, Post Gondegaon,
Tah. Darwha, Distt. Yavatmal. : RESPONDENT
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Shri S.L. Gadekar, Advocate for the Petitioner.
Shri S.D. Chande, Advocate for the Respondent.
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CORAM : S.C. GUPTE, J.
th DATE : 28 SEPTEMBER, 2017.
ORAL JUDGMENT :
1. Heard learned counsel for the parties.
2. The petition challenges an order passed by the Industrial Court at Chandrapur on a complaint of unfair labour practice under Section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (in short, "the Act") read with Item 9 of Schedule IV of the Act. By the impugned order the Industrial Court directed the petitioner, who was an employer of the ::: Uploaded on - 10/10/2017 ::: Downloaded on - 10/10/2017 23:58:16 ::: J-wp5104.17.odt 2/5 respondent to provide an alternative job to the respondent.
3. The respondent was working as a driver with the petitioner since 1992. While on duty, he suffered a heart attack on 28 th February, 2011 and proceeded on medical leave. On 17 th June, 2012, he resumed his duties with the petitioner. After joining the duty, the respondent requested the petitioner to provide an alternative job. Vide communication dated 3rd August, 2012, the petitioner directed the respondent to obtain a fitness certificate. The respondent thereupon approached the Medical Board at Indira Gandhi Medical College, Nagpur. The Board certified that he was unfit to perform the duty as a driver, though he was fit to perform any other table or light work. The respondent thereupon submitted various representations to the petitioner. Vide communication dated 22nd August 2013, the request of the respondent for providing alternative job was turned down by the petitioner. This was presumably on the ground that a disciplinary enquiry was pending against him. In these circumstances, the respondent approached the Industrial Court under Section 28 of the Act alleging unfair labour practice under Item 9 of Schedule IV. The Industrial Court, vide the impugned order, held that the petitioner had engaged in unfair labour practice governed by Item 9 of Schedule IV to the Act by not providing alternative employment to the respondent. The petitioner was directed to provide an alternative job to the respondent within one month and pay all monetary benefits from the date of ::: Uploaded on - 10/10/2017 ::: Downloaded on - 10/10/2017 23:58:16 ::: J-wp5104.17.odt 3/5 rejection of his claim vide order dated 22 nd August, 2013 till he was permitted to resume on the alternative post.
4. Learned counsel for the petitioner submits that the respondent was terminated on 18 th October, 2014. It is submitted that since this is a case of termination of employment, the complaint is covered by Item 1 of Schedule IV to the Act and does not fall within Item 9 of Schedule IV. There is no merit in this contention. The complaint is filed much before the purported termination order of 18 th October 2014. The complaint was filed on 10th December, 2013. It was in respect of the petitioner's refusal to provide an alternative job to the respondent. At the date when the complaint was filed, the respondent was very much in service of the petitioner. Though unable to perform his duty as a driver on account of want of fitness, he was very much in a position to perform any other light or desk work as certified by the Medical Board. A complaint such as this clearly falls within Item 9 of Schedule IV. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 provides (Section 47) that no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service. A proviso to sub-section (1) of Section 47 requires that if an employee, after acquiring disability is not suitable for the post he is holding, he should be shifted to some other post with the same pay scale and service benefits. Failure to implement this provision of law would be covered within the meaning of unfair labour practice ::: Uploaded on - 10/10/2017 ::: Downloaded on - 10/10/2017 23:58:16 ::: J-wp5104.17.odt 4/5 under Item 9 of Schedule IV of the Act. Merely because pending the complaint of unfair labour practice, the complainant employee is terminated by the petitioner, the jurisdiction of the Labour Court to hear the complaint is not ousted. Any termination pending the complaint would always be subject to the decision in the complaint.
5. Learned counsel for the petitioner alternatively submits that the Medical Board in the present case has not indicated any percentage of disability within the meaning of clause (t) of Section 2. Learned counsel submits that in the premises, the disability of the respondent is not covered under clause (t) of Section 2 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Clause (t) of Section 2 defines a person of disability as a person suffering from not less than 40% of any disability as certified by the Medical Authority. The certificate in the present case is clearly to the effect that the person is unfit for performing duty as a driver. As far as the petitioner's job is concerned, this translates into a complete disability so far as the job is concerned. Though the percentage of disability is not specifically indicated in the certificate issued by the Medical Board, the certificate indicates that he was fit to perform any table/light work. In the premises, the respondent could be termed as a person with disability within the meaning of the Act. In any event, this was not a ground raised before the Industrial Court in the complaint by the petitioner. The objection of the petitioner to the complaint was firstly that the ::: Uploaded on - 10/10/2017 ::: Downloaded on - 10/10/2017 23:58:16 ::: J-wp5104.17.odt 5/5 disciplinary proceedings against the respondent were pending and secondly that no suitable post was available as an alternative employment. The Industrial Court, in fact, noted that the stands adopted by the petitioner in this behalf were contradictory and reflected on its conduct. Besides, the Industrial Court held that there was no case of non-availability of an alternative post, since no such fact was ever communicated by the petitioner to the respondent. The Industrial Court, in the premises, came to the conclusion that the rejection of the respondent's claim to alternative employment, thus, clearly falls within the mischief of Item 9 of Schedule IV of the Act. In the premises, it is not open to the petitioner to claim for the first time in this writ petition that the petitioner is not a person with disability on the ground that the percentage of disability is not indicated in the certificate of the Medical Board.
6. In the premises, there is no merit in either of the contentions of the petitioner. The petition is, accordingly, dismissed.
7. The petitioner shall pay costs quantified at Rs.15,000/- to the respondent.
JUDGE okMksns ::: Uploaded on - 10/10/2017 ::: Downloaded on - 10/10/2017 23:58:16 :::