Abdul Karim Siddiqui (Dead) Azhar ... vs Maharashtra State Road Transport ...
2007 Latest Caselaw 519 Bom

JUDGMENT

Chaudhari A.B., J.

1. By the present petition, the petitioner has challenged the judgment and order dated 20th January 1995 passed by the Industrial Court, Maharashtra, Amravati Bench, Amravati in Complaint (ULP) No. 62 of 1988 dismissing the complaint filed by father of present petitioner viz. Abdul Karim Siddiqui who eventually expired during the pendency of writ petition and in his place, the present petitioner, who is the beneficiary, has been substituted. The petition is treated as the one under Article 227 of the Constitution of India in view of the nature of the order made by the Industrial Court.

FACTS

2. A complaint under Section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short, the 'MRTU & PULP Act') was filed by Abdul Karim Siddiqui (now dead) complaining breach of Clause 37 of the settlement dated 19.12.1985 by the respondent Maharashtra State Road Transport Corporation (for short, the 'Corporation'). In the complaint, it was averred that the complainant had retired from service in the year 1983 and in terms of Clause 37 of the settlement dated 19.12.1985, employment to one child of retired/retiring employees shall be given.

3. Pursuant to advertisement that was floated by respondent Corporation for the post of Conductor, Azhar Iqbal, son of complainant had applied for the said post and claimed employment in terms of said settlement, but was not provided employment on the ground that another son of complainant by name Mohammad Jafar Iqbal was in the employment of the Corporation since the year 1970. Quoting examples of one Shri Aran Deshmukh and Shri Khandare, it was then averred that other retired/retiring employees of the respondent Corporation were granted benefit of Clause 37 of the settlement though their child was already in employment of the respondent Corporation.

4. The respondent Corporation filed its Written Statement and admitted all the facts pleaded by the complainant, but the defence that was set up by the Corporation was that the employment was not provided to Azhar Iqbal, because another son, viz. Mohammad Jafar was already in employment of the Corporation since the year 1970 and, therefore, there was no unfair labour practice, as was alleged.

5. The Industrial Court, after hearing both the parties, accepted the defence set up by the respondent Corporation and dismissed the complaint, as aforesaid. Hence this writ petition.

ARGUMENTS

6. Mr. R.B. Khan, learned Counsel for the petitioner submitted that Mohammad Jafar, the elder brother of present petitioner was in employment of respondent Corporation and was appointed way back in the year 1970 when the settlement was not in existence. He was appointed on his own merit and not on the ground of his father (original complainant) retiring from service. He submitted that Mohammad Jafar was living separately along with his family eversince he entered into service and had nothing to do with the complainant. He argued that admittedly, the only reason for refusal of employment to present petitioner was that his elder brother Mohammad Jafar was already in the employment of respondent Corporation. He, therefore, complained that respondent Corporation breached the settlement dated 19.12.1985 and thereby committed unfair labour practice within the meaning of Item 9 of Schedule IV of the MRTU & PULP Act. Criticising the judgment of the Industrial Court, he submitted that the settlement Clause 37 was not correctly interpreted by the learned Industrial Court.

7. Per contra, Mr. V.G. Wankhede, learned Counsel appearing for the respondent Corporation vehemently opposed the submission made by the Counsel appearing for petitioner and submitted that the object behind providing employment to a child of retired/ retiring employee was to provide succour to employee after retirement. He submitted that the fact that Mohammad Jafar being already in employment of the respondent Corporation, the question of providing employment to another son (present petitioner) does not arise and as a matter of fact, the employment being in the nature of compassionate one, the principles laid down by the Honourable Supreme Court would be applicable and in that event the long number of years which have already passed, would defeat the petitioner's claim. In this behalf, he relied upon the decision of the Supreme Court in the case of Umesh Kumar Nagpal v. State of Haryana and Ors. , and prayed for dismissal of writ petition.

CONSIDERATION

8. Having considered the submissions made by the learned Counsel for the parties before me and having gone through the entire record and judgment of the Industrial Court, I find that the area of dispute is very small. In the Written Statement (paragraph 2), the respondent Corporation has stated as under:

...It is admitted that the complainant is entitled for the said benefits, for employment of his son, only if he possess the requisite qualification.

Thus, it is clear that the entitlement of original complainant to have his son employed in accordance with settlement is undisputed. There is no dispute about the qualification of present petitioner Azhar Iqbal. However, the defence that is set up is as under (relevant portion from Paragraph 6 of Written Statement):

...The respondent has already given the benefit of this settlement to the son of the complainant....

Clause 37 of the settlement is reproduced below:

37. Priority in Employment to the Children of State Transport Workmen on their Retirement, Death or Total Disability:

It is agreed that preference in employment in unit cadre posts shall be given to one child of retired/retiring employees according to the priorities. Administrative instructions to this effect have already been issued and will be reiterated from time to time.

9. Reading of the above settlement clause shows that it provides that employment shall be given to one child of the retired/retiring employee. The settlement is not at all qualified by saying that if any other son is already in employment (i.e. prior to 19.12.1985), no employment shall be provided in accordance with the settlement. In the present case, Mohammad Jafar was in the employment of respondent Corporation since the year 1970 and he was obviously not appointed by virtue of settlement which came into existence only on 19.12.1985. The stand taken by the respondent Corporation therefore that the respondent had already given the benefit of settlement to the son of complainant, does not appear to be correct. When the settlement itself has come into force on 19.12.1985, there is no justification in raising a defence that Mohammad Jafar being already in employment of the respondent Corporation, benefit of settlement cannot be accorded to the complainant. In the submission of Mr. V.G. Wankhede, learned Counsel appearing for respondent Corporation, the grant of employment under the settlement was by providing preference and, therefore, the petitioner cannot claim employment as a matter of right. There is no dispute about the preference that was required to be granted in accordance with the settlement. However, the defence of the respondent Corporation is not that preference could not be given to the petitioner because of certain reasons. The only defence is that Mohammad Jafar is already in employment.

10. Mr. Wankhede also attempted to add that the circular that was issued on the ministerial side provided that if one son is already in employment, the settlement shall not apply. I do not think that the terms of settlement Clause 37 dated 19.12.1985 can at all be dabbled by any ministerial act. The settlement clauses can be changed, modified or revised only in accordance with the procedure and the law and not by an administrative circular. The decision in Umesh Kumar Nagpal's case (supra) relied upon by the learned Counsel for respondent Corporation is not applicable to the instant case, because the case in hand is not the one of compassionate employment, but is the one relating to the enforcement of settlement arrived at by and between Union of employees and employer (respondent Corporation).

11. Apart from the above, it is necessary to reproduce observations of the Industrial Court made in paragraph 11 of its judgment:

...It is pertinent to note here that the complainant has given interrogatories at Exhibit 6 and had sought information from the respondent regarding such appointments of the sons of Arun Deshmukh and Khandare but the respondent has not given any answer to that interrogatories and therefore it can be presumed to be an admitted position that such appointments were given by the respondent, but because some irresponsible officers of the Corporation had given some appointments illegally by going out of way, the complainant cannot take advantage of such illegality.

In the wake of above finding and in the absence of any explanation duly established on record, it can be said that the respondent indulged in favouritism and its action is discriminatory as far as present petitioner is concerned.

For all these reasons, therefore, I find that the impugned judgment and order is illegal and rendered upon a wrong interpretation of settlement and in total ignorance of discrimination meted out to the petitioner by respondent Corporation and consequently, needs to be set aside.

12. In the result, impugned judgment and order is quashed and set aside. Rule made absolute in terms of prayer Clause (b) and (c) of the petition. The respondent Corporation is directed to provide suitable employment to the present petitioner within a period of eight weeks from today. Petition stands disposed of accordingly with no order as to costs.