Power Station vs Vistri Gunjaji Kamble
2012 Latest Caselaw 51 Bom

     wp2309.01                                                                     1
           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH




                                                                      
                 WRIT PETITION NO.  2309   OF  2001




                                              
     Maharashtra State Electricity
     Board, Khaparkheda Thermal 




                                             
     Power Station, through its
     Dy. Chief Engineer, MSEB,
     Khaparkheda.                               ...   PETITIONER




                                 
                  Versus
                     
     1. Vistri Gunjaji Kamble
        (since deceased through LRs)
                    
     1A.   Smt. Chandralekha w/o Vistari
           Kamble, aged 55 years, r/o
           Hanuman Chowk, Chitanis 
           Nagar, Circle No. 4, Ward No.17,
      


           Mahal, Nagpur.
   



     1B.   Shri Mangaldeep s/o Vistari
           Kamble, age 27 years, r/o
           Hanuman Chowk, Chitanis 
           Nagar, Circle No. 4, Ward No.17,





           Mahal, Nagpur.

     1C.   Shri Amardeep s/o Vistari
           Kamble, age 20 years, r/o





           Hanuman Chowk, Chitanis 
           Nagar, Circle No. 4, Ward No.17,
           Mahal, Nagpur.

     2. Presiding Office, Labour Court,
        Nagpur.                                 ...   RESPONDENTS




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      wp2309.01                                                                           2

     Shri R.E. Moharir, Advocate for the petitioner.




                                                                            
     Shri M.P. Jaiswal, Advocate for LRs of respondent No. 1.
     Shri D.P. Thakare, AGP for respondent No. 2.
                            .....




                                                    
                                 CORAM :   B.P. DHARMADHIKARI, J.

OCTOBER 01, 2012.

ORAL JUDGMENT :

The matter was heard on 25.09.2012, 28.09.2012

and thereafter today.

2. Shri Moharir, learned counsel for the petitioner

submits that after conviction by a Competent Court of law and in

exercise of statutory power conferred by Regulation 10(a) of the

Maharashtra Electricity Supply Board Employees Service

Regulations, Respondent No. 1 (now deceased through LRs) was

terminated. The exercise of that power and termination has

been unnecessarily mixed and confused with Model Standing

Orders by the Presiding Officer, Labour Court, Nagpur. IDA

Reference relating to that termination needed to be answered in

negative. He is relying upon the relevant provisions of the

Electricity Supply Act, 1948 and Maharashtra State Electricity

Board Employees Service Regulation for said purpose. The

judgment of the Hon'ble Apex Court in the case of M.P. Vidyut

Karamchari Sangh vs. M.P. Electricity Board, reported at 2004 II

LLJ 470, is also pressed into service to show that in such

situation, the service regulations framed by Board have to

prevail.

3. Shri Jaiswal, learned counsel for legal heirs of

Respondent No. 1 supports the award delivered by Labour Court.

He submits that judgment of the Hon'ble Apex Court M.P. Vidyut

Karamchari Sangh vs. M.P. Electricity Board (supra) does not

deviate from settled law on the point. According to him,

consideration up to paras 29 and 30 in said judgment is in favour

of Respondent No. 1. He invites attention to paras 31 and 33 to

contend that there the Hon'ble Apex Court has examined the

situation where field was not occupied and, therefore, the

regulations framed by Board are permitted to operate. He states

that here, deceased Respondent No. 1 was Artisan D and

admittedly a workman as defined in Section 2(s) of the Industrial

Disputes Act, 1947. His services were, therefore, regulated by

the Industrial Employment (Standing Orders) Act, 1946 and

Model Standing Orders framed thereunder. The Model Standing

Orders required a misconduct either on establishment of

employer or then in connection with employment with employer

to permit the petitioner to proceed departmentally against the

workman. Shri Jaiswal, learned counsel states that here on the

day of alleged offence, the petitioner was on his duty and stolen

goods (allegedly) were seized from his house located at native

place Paoni. This house is at a distance of 75 kms. from the

place of duty. The stolen goods were also not the property of the

petitioner. He, therefore, states that alleged misconduct leading

to conviction of deceased Respondent No. 1 has no bearing

either direct or indirect with the employment. The learned

counsel submits that if in such situation, regulation like

Regulation 10(a) which only considers a conduct leading to

conviction is imported and applied to services of the petitioner,

the concept of misconduct understood in Model Standing Orders

is itself destroyed. The learned counsel states that the Labour

Court has correctly appreciated the position and after applying

relevant judgments, the reference has been answered in

affirmative.

4. In the light of arguments advanced, the only question

to be looked into is whether the petitioner is right in submitting

that Regulation 10(a) can prevail over the Scheme dealing with

terminal, dismissal, etc. in Model Standing Orders. The

judgment of the Hon'ble Apex Court in the case of M.P. Vidyut

Karamchari Sangh vs. M.P. Electricity Board (supra) in paras 27 to

30 recognizes and accepts the earlier binding precedents in the

case of U.P. State Electricity Board and Anr. vs. Hari Shankar Jain

& Ors., reported at AIR 1979 SC 65 and U.P. Electricity Board &

Anr. vs. Labour Court (I), U.P., Kanpur & Anr., reported at AIR

1984 SC 1450. Thus, a inconsistent provision in service

regulations framed by Board cannot operate until and unless it is

saved by the appropriate Government by issuing notification. In

case of Industrial Employment Standing Orders Act, such

notification is required to be published under Section 13B

thereof. It is also not in dispute that in present case, no such

notification has been published and Regulations framed by the

petitioner Board are thus not saved or exempted. The

consideration by the Hon'ble Apex Court in para 31 always

shows that the Hon'ble Apex Court was considering applicability

of Rule 14A vis-a-vis the agreement/ settlement entered into

between the parties on 10.06.1996. In para 33, the Hon'ble

Apex Court has noted that said agreement expired on

31.03.1999. The observations of the Hon'ble Apex Court in para

38 show relevant application of mind in this respect. The

Hon'ble Apex Court has found that enhanced age of

superannuation of members of appellant - association before it

was subject to any law operating in the field. In para 39, the

Hon'ble Apex Court has observed :

"It is one thing to say that when there exists a conflict

between a regulation made under Section 79(c) of the Act and a certified standing order or a rule made under the 1961 Act, the latter shall prevail, but it is another thing to say that in absence of any statutory

provision governing the age of retirement, the statutory regulations framed by the respondent Board

shall have no application."

5. In the light of this finding, the Hon'ble Apex Court

has further considered the controversy and concluded that the

employer Board before it was empowered to make Regulations

not inconsistent with the provisions of the Act and Rules

providing for duties of officers, their salaries, allowances and

other conditions of services. Thus, it is in absence of any

statutory provision governing the age of retirement that these

observations have been made. In present facts, the provisions of

Model Standing Orders hold the field and were in operation

when Respondent No. 1 was removed from services. This

judgment of the Hon'ble Apex Court, therefore, cannot save the

situation for the petitioner.

6. The Reference Court i.e. Labour Court has correctly

applied the law on the point. No case is made out warranting

interference. Writ Petition is dismissed. Rule discharged. In the

facts and circumstances of the case, there shall be no order as to

costs. The amount of back wages deposited with the Registry of

this Court is permitted to be withdrawn by the Legal heirs of

deceased Respondent No. 1 after expiry of period of ten weeks

along with interest accrued upon it.

                      ig                         JUDGE
                    
                                  *******

     *GS.