Maharashtra Jeevan Pradhikaran vs Mr. Adinath Devappa Magdum
2016 Latest Caselaw 356 Bom

                                                                   31-wp137-16

vai            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIVIL APPELLATE JURISDICTION




                                                                                  
                            WRIT PETITION NO.137 OF 2016




                                                          
      Maharashtra Jeevan Pradhikaran                )
      Near Annapurna Canteen,                       )
      Central Building, Pune - 411 001              )           ...Petitioner




                                                         
                   ....Versus....

      Mr.Adinath Devappa Magdum                     )
      A-302, Chetan Heights,                        )




                                                  
      Sasanenagar, Hadapsar,                        )
      Pune - 411 028.                               )           ...Respondent
                                     
      Ms.Neeta Karnik for the Petitioner.
      Mr.Vikas H. Sekdar for the Respondent.
                                    
                                       CORAM : R.D. DHANUKA, J.

DATE : 7TH MARCH, 2016.

ORAL JUDGMENT :-

1. By this writ petition filed under under Articles 226 and 227

of the Constitution of India the petitioner has impugned the order

dated 28th July, 2015 passed by the learned Member, Industrial Court,

Pune thereby quashing and setting aside the impugned notice dated

30th November, 2012 and restraining the petitioner herein from

making any recovery pursuant to the said impugned notice issued by

the petitioner.

2. The respondent was appointed as a Tracer with the

Kolhapur office of the petitioner by an order dated 4 th September,

31-wp137-16

1985. It is the case of the petitioner that by an office order dated 2 nd

June, 1987, the respondent along with three other Tracers came to

be exempted from passing the departmental examination of Tracers

due to the bona-fide mistake on the part of the petitioner in applying

Rule 8(C) and (D) of the Regulations applicable to the respondent. It

is the case of the petitioner that on the basis of the said error alleged

to have been committed by the petitioner, the respondent was

promoted to the post of Civil Engineer Assistant w.e.f. 20th December,

2001 along with other three Tracers.

3. It is the case of the petitioner that on 18th December, 2012,

the higher officer of the petitioner noticed the said mistake of granting

exemption to the respondent and other three Tracers. The petitioner

issued a show cause notice on 18th December, 2012 to the

respondent as to why he should not be demoted and the recovery in

the differential pay shall not be effected from the respondent.

4. The respondent filed a complaint under items 9 and 10 of

Schedule-IV of The Maharashtra Recognition of Trade Unions &

Prevention of Unfair Labour Practices Act, 1971 (for short "the said

Act") inter-alia challenging the said show cause notice dated 30th

November, 2012 issued by the petitioner proposing to withdraw the

time bound promotion / accelerated career progression benefits given

to the respondent about 25 years back. By an order dated 28 th July,

31-wp137-16

2015, the learned Member, Industrial Court, Pune allowed the said

complaint filed by the respondent and quashed and set aside the

notice dated 30th November, 2012 and restrained the petitioner from

making any recovery pursuant to the said notice.

5. Ms.Karnik, learned counsel appearing for the petitioner

submits that the respondent admittedly had not joined the petitioner

before the date of commencement of the Promotion Rules, 1976 and

thus was not eligible for any exemption. She submits that the office of

the petitioner however had erroneously granted exemption to the

respondent and had promoted the respondent to the post of Civil

Engineer Assistant with effect from 20th December, 2001 though the

respondent had not passed the departmental examination of the

Tracers. She submits that though the Industrial Court, Pune has

rendered a finding in paragraph 13 of the impugned order that the

exemption could be given to those employees, who have joined

before the date of commencement of the Promotion Rules, 1976, the

Industrial Court contrary to such finding, rendered in favour of the

petitioner has set aside the impugned notice dated 30 th November,

2012 and has restrained the petitioner from making any recovery

pursuant to the impugned notice.

6. It is submitted by the learned counsel for the petitioner that

even if there was any error on the part of the petitioner in granting

31-wp137-16

exemption to the respondent from appearing in the departmental

examination before granting any promotion, such error on the part of

the petitioner would not amount to committing any unfair labour

practice by the petitioner upon the respondent and thus the complaint

filed by the respondent under items 9 and 10 of Schedule-IV of the

said Act was not even maintainable. She submits that similar notices

have been issued by the petitioner to other such workmen who were

erroneously granted exemption.

7.

Learned counsel appearing for the respondent herein

(original complainant) placed reliance on the findings rendered by the

Industrial Court and would submit that the respondent is not

responsible for the exemption granted to the respondent 25 years

back. He submits that the respondent had not asked for any such

exemption. If the exemption would not have been granted to the

respondent 25 years ago, the respondent would have appeared for

the departmental examination. He submits that since the petitioner

sought to demote the respondent and made an attempt to recover

the differential amount based on the alleged error committed by the

petitioner and the respondent admittedly being the Tracer, the

complaint filed by the respondent was maintainable.

8. Learned counsel for the respondent placed reliance on the

judgment of this Court in case of Ramesh Channapa Kompalli vs.

31-wp137-16

State of Maharashtra & Ors., 2016(1) Mh.L.J. 389 and submits that

it was not the case of the petitioner that the respondent had played

any fraud or made any mis-representation or tried to obtain any

undue advantage of the exemption from appearing in the

departmental examination. He submits that the petitioner therefore

cannot make any recovery of the promotional benefits from the

respondent on the ground that the respondent did not pass the

departmental examination. He submits that the respondent was

admittedly a workman and the petitioner is an industry and thus the

provisions of the Industrial Disputes Act are applicable. He submits

that since the petitioner had attempted to recover the promotional

benefits after expiry of 25 years for no fault of the respondent, the

petitioner has committed unfair labour practice and thus the complaint

filed by the respondent under the provisions of the said Act was

maintainable against the petitioner.

9. A perusal of the record indicates that the respondent was

granted exemption from passing the departmental examination for

Tracers described by the Government by office order dated 2 nd June,

1987 and on that basis as well as on merits had granted him all

privileges, benefits and facilities of promotion to the post of Civil

Engineer Assistant with effect from 20th December, 2001 and had

made entries in his service book. The post of the Civil Engineer

31-wp137-16

Assistant was admittedly a sanctioned post and permanent in nature.

A perusal of the affidavit in lieu of the examination in chief filed by the

respondent clearly indicates that it was deposed by the respondent

that the exemption granted to him 25 years ago was clear and

unconditional. Though he was ready and willing to appear for the test,

the petitioner had granted the exemption at their own accord. He had

not claimed any exemption from appearing for such departmental

examination. A perusal of the cross-examination of the respondent by

the learned advocate for the petitioner clearly indicates that the

deposition made by the respondent in the affidavit in lieu of the

examination in chief was not shattered in cross-examination.

10. A perusal of the affidavit in lieu of the examination in chief

filed by the witness examined by the petitioner indicates that

according to the said witness the Superintending Engineer of the

petitioner by an order dated 2nd June, 1987 had given exemption to

the respondent from appearing for departmental examination and had

promoted him as an Assistant Draftsman. In his cross-examination he

admitted that on 23rd February, 1998 the respondent was given

promotion as Draftsman and since 2001, the respondent was working

as Civil Engineer Assistant. He admitted that there was no complaint

about the work of the respondent. He further admitted that the

petitioner had not specifically told the respondent to undergo the test.

31-wp137-16

11. The respondent has been working as Civil Engineer

Assistant since 2001 and has been working as a permanent

employee since 1985. The respondent has been working as Civil

Engineer Assistant with meritorious record since 2001. Admittedly,

the respondent is about 54 years of age.

12. The Industrial Court has taken a view that the respondent

herein had not asked for any exemption. If the petitioner at the

relevant time would not have granted exemption to the respondent,

the respondent would ig have appeared for the departmental

examination. It is held that the petitioner herein had deprived the

respondent of his right to appear in the examination. The respondent

has achieved the position where he is today, on merit and has been

getting the pay of promotional post on his merits. The Industrial Court

has also rendered a finding that withdrawal of the exemption and

demotion of the respondent at this stage and further recovery of

amount would be totally arbitrary and high handed exercise of powers

by the petitioner under the service rules. It would amount to unfair

labour practice under items 9 and 10 of Schedule-IV of the said Act.

13. In my view, since the petitioner has granted such

exemption to the respondent from appearing in the departmental

examination, which was not asked by the respondent about 25 years

back and thereafter has considered his promotion on merits and has

31-wp137-16

granted various benefits and his confidential report showing him

meritorious, the rights which are accrued in favour of the respondent

in last 25 years ago cannot be taken away by the petitioner on the

basis of the alleged error committed by the petitioner 25 years ago.

14. The Division Bench of this Court in case of Ramesh

Channapa Kompalli (supra) after adverting to the judgment of the

Division Bench of this Court delivered on 10 th December, 2013 in

case of Naeem Ahmedkhan Dilawarkhan vs. State of Maharashtra

& Ors. in Writ Petition No.6700 of 2012 has held that it was not the

case of the employer that the employee had played any fraud or by

way of mis-representation, tried to get undue advantage and had

received an amount which was not admissible. The exemption in the

matter to the employee from passing professional exemption was

granted in the year 2004 and the said employee was promoted. The

employer had proposed the action of cancelling the alleged wrong

order of exemption and the order of recovery in the year 2012. The

Division Bench of this Court held that the act of the employer in trying

to make recovery of the promotional benefits from the employee on

the ground that he did not pass the professional examination could

not be maintained and accordingly quashed and set aside the notice

of recovery.

15. The Division Bench of this Court in Naeem Ahmedkhan

31-wp137-16

Dilawarkhan (supra) after adverting to various judgments of the

Supreme Court and more particularly in case of State of Punjab and

Anr. vs. Shamlal Murari & Anr. AIR 1976 SC 1177, Shyam Babu

Verma & Ors. vs. Union of India & Ors. (1994) 2 SCC 521 and in

case of Syed Abdul Quadir & Ors. (2009) AIR SCW 1871 has held

that the act of the employer trying to recover from the petitioner the

benefits of increments in view of the professional examination had not

been passed, could not be maintained and accordingly quashed and

set aside such action. In both the judgments referred to aforesaid

delivered by this Court, the employers were the Maharashtra Jeevan

Pradhikaran, the petitioner herein.

16. In my view, the petitioner could not have initiated any

action for demoting the respondent and reducing the pay scale after

completion of 25 years of service, which would affect the respondent

financially and also his seniority. It was not the case of the petitioner

that the respondent had committed any fraud or made any mis-

representation or was trying to take any undue advantage of getting

exemption from appearing in departmental examination. The

respondent cannot be made to suffer because of the alleged error, if

any committed by the petitioner of granting exemption to the

respondent from appearing for the departmental examination and that

also after 25 years. The judgments of the Division Bench of this Court

31-wp137-16

in case of Ramesh Channapa Kompalli (supra) and Naeem

Ahmedkhan Dilawarkhan (supra) squarely apply to the facts of this

case. Similar actions of the Maharashtra Jeevan Pradhikaran, the

petitioner herein, in those two petitions were quashed and set aside

by this Court. I am respectfully bound by those two judgments which

are delivered after adverting to the similar principles of law already

laid down by the Supreme Court in the above referred judgments.

17. Insofar as the submission of the petitioner that the

complaint filed by the respondent under items 9 and 10 of Schedule-

IV of the said Act itself was not maintainable on the ground that even

if the petitioner had committed any error in granting exemption,

correction of such error by the petitioner cannot amount to practicing

any unfair labour practice is concerned, in my view, there is no merit

in this submission of the learned counsel for the petitioner. The

respondent herein (original complainant) is a workman and the

petitioner herein an industry. The provisions of the Industrial Disputes

Act are thus applicable considering the relationship between the

petitioner and the respondent. In my view, since the petitioner sought

to take an action for withdrawing the exemption and consequently

bringing down the pay and further recovery of the salary paid by the

petitioner to the respondent, who being a workman, such action on

the part of the petitioner would amount to an unfair labour practice

31-wp137-16

under items 9 and 10 of Schedule-IV of the said Act. There is thus no

substance in the submission made by the learned counsel for the

petitioner that the provisions of items 9 and 10 of Schedule-IV of the

said Act would not attract to the complaint filed by the respondent

alleging unfair labour practice by the petitioner and that the complaint

was not maintainable.

18. Insofar as the submission of the learned counsel for the

petitioner that under section 64 of the Maharashtra Jeevan

Pradhikaran Act, no legal proceedings could lie against any action

which was taken in good faith is concerned, in my view, since the

petitioner had practiced unfair labour practice, it attracted the

provisions of items 9 and 10 of Schedule-IV of the said Act. There is

thus no merit in this submission of the learned counsel for the

petitioner.

19. In my view, the Industrial Court has rendered detailed

reasons and has considered the oral and documentary evidence led

by the parties and has rightly set aside the notice issued by the

petitioner for recovery and for other action. No infirmity can be found

in the impugned order passed by the Industrial Court. The petition is

devoid of merits and is accordingly dismissed. No order as to costs.

(R.D. DHANUKA, J.)