Bombay High Court
Ahmednagar Muncipal ... vs Ayasha Mukhtar Sardar on 20 July, 2016
Bench: R.V. Ghuge
WP/4463/1995
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4463 OF 1995
Ahmednagar Municipal Council
Ahmednagar through it's Chief
Officer, Ahmednagar. ..Petitioner
VERSUS
Mrs. Ayasha Mukhtar Sardar,
Age 37 years, Occ. Medical
Practitioner, R/o 728, Zendi
Gate, Ahmednagar. ..Respondent
ig ...
Advocate for Petitioner : Shri V.S.Bedre
Advocates for Respondent : Shri Prabhakaran T.K.
a/w Shri Barde P.V.
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: July 20, 2016
...
ORAL JUDGMENT :-
1. The petitioner is aggrieved by the judgment and order dated
23.11.1994, delivered by the Labour Court, Ahmednagar, by which,
Complaint (ULP) No. 74 of 1989, filed by the respondent was allowed.
She was granted reinstatement with continuity of service without
backwages from 26.5.1989.
2. This petition was admitted by this Court on 18.9.1995 and interim
relief was granted in terms of prayer clause "C" which reads as under:-
"(C) Pending the hearing and final disposal of this writ
WP/4463/1995
petition, the execution and operation o the decision and order
passed by the Ist Labour Court, Ahmednagar dated 23.11.1994 in
Complaint (ULP) No. 74 of 1989 may kindly be stayed in the
interest of justice. "
3. I have heard the learned Advocates for the petitioner and the
respondent at length.
4. I find that this case rests on two important aspects. Firstly, that
the respondent was a B.A.M.S. Doctor. She was appointed during the
leave vacancy of an in-service Doctor during the period 20.4.1987 till
21.6.1987, 19.5.1987 to 22.5.1987 and then from 13.8.1987 to May,
1989. As such, the respondent was appointed only during the leave
vacancy of a regular Doctor taking into account the emergency medical
services of the petitioner / department.
5. The second issue is that the respondent being a registered
Medical Practitioner would not be covered by the definition of
"workman" under Section 2(s) of the Industrial Disputes Act, 1947 in the
light of the ratio laid down by the Honorable Supreme Court in the
mater of ESIC Medical Officers' Association Vs. ESIC and another [AIR
2014 SC 1259].
6. Learned Advocate for the respondent has strenuously submitted
that this petition is not maintainable since the petitioner has
WP/4463/1995
approached this Court against the judgment of the Labour Court
delivered under the the Maharashtra Recognition of Trade Unions and
Prevention of Unfair Labour Practices Act, 1971 ("the said Act "),
considering that a statutory remedy is available under Section 44 before
the Industrial Court. Such objection was taken by the respondent in her
affidavit in reply dated 16.11.1995.
7. This issue has already been dealt with by this Court in the case of
Engineering Employees Union Vs. Devidayal Rolling & Refinery Pvt. Ltd.
[1986 (52) FLR 40 = 1986 Mh.L.J. 331], wherein, a Writ Petition without
exhausting the remedy of a revision under Section 44, was held
untenable. However, I do not intend to remit the petitioner to the
revisional remedy considering the fact that this petition was admitted
21 years ago and it would amount to causing severe hardships to both
the litigating sides.
8. Considering the fact that the respondent was appointed in place
of a vacancy created by the absence of the in-service Doctor, would not
give any right to the respondent to continue in employment.
Consequentially, her disengagement after the resumption of duties by
the in-service Doctor post his leave, would not render the
disengagement illegal. Such disengagement would, therefore, not
amount to retrenchment or termination.
9. In the light of the above, the complaint filed by the respondent
WP/4463/1995
deserves to be dismissed.
10. It, however, cannot be ignored that the respondent has been
litigating from 1989 till this date. She has succeeded before the Labour
Court and was granted reinstatement with continuity of service, which I
have concluded as above, to be unsustainable. Nevertheless,
considering this aspect of the matter, I deem it proper to grant
compensation to the respondent by way of costs of litigation in the light
of the backdrop that she had succeeded before the Labour Court.
11. As such, this petition is partly allowed. The impugned judgment
dated 23.11.1994 is quashed and set aside and the Complaint (ULP)
No.74 of 1989 is dismissed.
12. The petitioner shall therefore, pay a lump sum compensation to
the respondent in an amount of Rs.50,000/- (Rs. Fifty Thousand only/-)
within a period of twelve weeks from today.
13. Rule is made partly absolute in the above terms.
( RAVINDRA V. GHUGE, J. )
...
akl/d
