Devanand S/O Balaji Rachkuntwar vs Surendra S/O Nagorao Kalbande And ...
2016 Latest Caselaw 4061 Bom

     Judgment                                              1                                wp1600.16.odt




                                                                                       
                      
                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                   NAGPUR BENCH, NAGPUR.




                                                               
                                WRIT PETITION NO. 1600  OF 2016




                                                              
     Devanand S/o. Balaji Rachkuntwar, 
     Aged about  50 years, Occup. : Pharmacist/ 
     Pharmacy Officer, R/o. C/o. District Health
     Officer, Health Department, Zilla Parishad,




                                                
     Yavatmal. 
                                ig                                             ....  PETITIONER.

                                            //  VERSUS //
                              
     1.     Surendra S/o. Nagorao Kalbande,
            Aged about 54 years, Occup. Compounder/
            Mishrak, R/o. C/o. District Health Officer, 
            Department, Zilla Parishad, Yavatmal. 
      


     2.     The Chief Executive Officer,
   



            Zilla Parishad, Yavatmal. 

     3.     District Health Officer, Health Department,
            Zilla Parishad, Yavatmal.  





                                                           .... RESPONDENTS
                                                                         . 
      ___________________________________________________________________
     Shri S.U.Nemade, Advocate for Petitioner. 
     Shri R.R.Dawada, Advocate for Respondent No.1.  
     Shri D.A.Sonwane, Advocate for Respondent Nos. 2 and 3. 





     ___________________________________________________________________


                                  CORAM : Z.A.HAQ, J.

DATED : JULY 22, 2016.

ORAL JUDGMENT :

1. Heard learned advocates for the respective parties.

Judgment 2 wp1600.16.odt

2. RULE. Rule made returnable forthwith.

3. The respondent No.1 was transferred from Primary Health

Centre, Vegaon to the Office of District Health Officer, Yavatmal by order

dated 25th June, 2013 in the post of Pharmacy Officer. By the order dated

27th November, 2015 the respondent No.1 is transferred from Yavatmal to

Primary Health Centre, Akola Bazar, District : Yavatmal. The reason given for

transfer is that the the respondent No.1 is not qualified to work as Pharmacy

Officer and therefore, he is transferred to Primary Health Centre, Akola

Bazar, District : Yavatmal as Mishrak. The respondent No.1 has filed

complaint under Section 28 of the Maharashtra Recognition of Trade Unions

and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to

as "Act of 1971") challenging the transfer order dated 27th November, 2015.

The respondent No.1 filed application under Section 30(2) of the Act of 1971

praying for interim relief. By the impugned order, the Industrial Court has

granted interim relief in favour of the respondent No.1 and has stayed the

transfer order dated 27th November, 2015 till decision of the complaint. The

petitioner, who is transferred in place of the respondent No.1 and is posted as

Pharmacy Officer at Yavatmal has filed this petition.

4. The learned advocate for the petitioner has submitted that the

respondent No.1 is not having the required qualifications for the post of

Judgment 3 wp1600.16.odt

Pharmacy Officer as per the provisions of the Pharmacy Act, 1948 and is not

having registration in the category of Pharmacy Officer. The learned

advocate for the petitioner has referred to the judgment given by the Division

Bench of this Court at the Principal Seat in Writ Petition No. 3698 of 2005 on

15th March, 2011 and has submitted that the respondent No.1 cannot

continue as Pharmacy Officer as he is not having required qualifications and

is not registered as Pharmacy Officer.

5. In my view, at this stage, I am not required to examine whether

the respondent No.1 is having the required qualifications to work as

Pharmacy Officer. The issue is subjudiced before the Industrial Court and it

will have to be considered by the Industrial Court on merits. The legality of

the interim order passed by the Industrial Court granting stay to the transfer

order has to be examined.

6. The facts on record show that the respondent Nos. 2 and 3

transferred the respondent No.1 and posted him as Pharmacy Officer by the

order dated 25th June, 2013 i.e. after two years and three months after the

judgment is delivered in Writ Petition No. 3698 of 2005. The respondent

Nos. 2 and 3 continued the respondent No.1 as Pharmacy Officer at Yavatmal

till 27th November, 2015. The transfer order is issued in the midst of the

session. In these facts, the interim order granted by the Industrial Court

cannot be faulted with. However, considering the nature of the controversy,

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in my view, the interests of justice would be sub-served by directing the

Industrial Court to dispose the complaint filed by the respondent No.1 till

15th March, 2017.

The petition is disposed accordingly. In the circumstances, the

parties to bear their own costs.

RRaut..

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      Judgment                                          5                                           wp1600.16.odt




                                                                                              
                                                                   
                                    C E R T I F I C A T E

I certify that this Judgment uploaded is a true and correct copy of

original signed Judgment.

Uploaded by : R.B. Raut, PS Uploaded on : 27.07.2016.