Bombay High Court
Johanwesley Sudarshanam ... vs The Commissioner The Nanded ... on 16 November, 2016
Bench: R.V. Ghuge
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.6898 OF 2016
Johanwesley Sudarshanam Attigari,
Age-65 years, Occu-Retired,
R/o Ganesh Nagar, Nanded,
Tq. and Dist. Nanded -- PETITIONER
VERSUS
The Commissioner,
The Nanded Waghala Municipal Corporation,
Office at Nanded, Tq. and Dist. Nanded -- RESPONDENT
WITH
WRIT PETITION NO.6899 of 2016
Ananti S/o Sudarshanam Attigari,
Age-63 years, Occu-Retired,
R/o Near Sai Nagar, Compounder Colony,
Waghi Road, New Assapur, Nanded,
Tq. and Dist. Nanded -- PETITIONER
VERSUS
The Commissioner,
The Nanded Waghala Municipal Corporation,
Nanded, Tq. and Dist. Nanded -- RESPONDENT
Mr.Ashutosh Kulkarni h/f Mr.S.H.Panchal, Advocate for the
petitioners.
Mr.R.K.Ingole Patil, Advocate for the respondent.
( CORAM : RAVINDRA V. GHUGE, J.)
DATE : 16/11/2016
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard finally by the
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consent of the parties.
2. Both the petitioners claim to be identically situated and have
retired from the service of the same respondent/Municipal
Corporation. Both of them have challenged the identical judgments
delivered by the Industrial Court, Jalna dated 21/11/2015 in
Complaint (ULP) No.35/2011 and 38/2011, only to the extent of the
observations of the Industrial Court that the post and nature of work
in between the "Pump Operator" and the "Pump Driver" are different
and as a consequence of which the petitioners are not given the
benefit of the revised pay scale payable to Pump Operators.
3. Mr.Kulkarni alongwith Mr.Panchal, learned Advocates for the
petitioners have strenuously criticized the impugned judgments. It
is contended that though the petitioners were appointed as Pump
Operators, they have erroneously mentioned in their affidavit in lieu
of examination in chief that they were working as Pump Drivers. At
some places in the said affidavits Exhibit U-7 and U-6, respectively
filed before the Industrial Court, the word "Pump Driver" has been
used and that has led to the confusion. It is, therefore, submitted
that the conclusion of the Industrial Court in paragraph No.9 of the
impugned judgments is based on the confusion inadvertently created
khs/NOV.2016/6898-d
by the petitioners and hence such conclusions are rendered perverse
and erroneous.
4. Mr.Patil, learned Advocate appearing on behalf of the
Corporation submits that both the petitioners have retired about 7
years prior to the filing of their individual complaints. Though they
were appointed as Pump Operators, they actually worked as Pump
Drivers throughout their career/service tenure. At the time of their
retirement, the service book indicates the entry that they have retired
as Pump Drivers and they were working on the post of "Pump Driver".
Though such entries in the service book are about 12 years ago,
none of the petitioners have challenged such entries. It is only
because the Corporation issued a circular dated 06/10/2009 by
which Pump Operators were given revised pay scales under the 5 th
Pay Commission Recommendations with retrospective effect, that
these petitioners approached the Industrial Court to take undue
advantage of the error committed by the Corporation in mentioning
their appointments as Pump Operators.
5. I have considered the submissions of the learned Advocates
which apparently indicate that these petitioners themselves stated in
their evidence that they had worked as Pump Drivers. At the time of
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their retirement, the pay scale available to a Pump Operator and a
Pump Driver was the same. Entries in the service book, specifically
indicating their pay scales and that they have retired as Pump
Drivers, were not questioned by the petitioners for about 7 years. It
is only when the Corporation issued the circular dated 06/10/2009,
giving revised pay scale benefits to the Pump Operators with
retrospective effect, that the petitioners approached the Corporation
and subsequently the Industrial Court.
6. No evidence was brought before the Industrial Court by these
petitioners to indicate that they factually worked as Pump Operators
and not as Pump Drivers. So also, had these petitioners worked as
Pump Operators through out their tenure, there was no reason for
these petitioners to suffer confusion as to whether they worked as
Pump Operators or Pump Drivers. Since they had worked as Pump
Drivers, they have so stated in their oral evidence.
7. In the above backdrop, I do not find that the Industrial Court
has committed any error in concluding that the petitioners were
working as Pump Drivers. So also, the complaints having been filed
after 7 years of their retirement despite the entries in their service
book, led the Industrial Court to conclude that those complaints were
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not entertainable on account of limitation.
8. Considering the above, both these petitions, being devoid of
merit, are therefore dismissed. Rule is discharged.
( RAVINDRA V. GHUGE, J.)
khs/NOV.2016/6898-d
