Bombay High Court
The Maharashtra State Road ... vs Jitendra Ashok Bhavsar on 21 September, 2016
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7979 OF 2016
The Maharashtra State Road Transport
Corporation, Dhule, District Dhule.
Through its Divisional Controller.
...PETITIONER
-VERSUS-
Jitendra s/o Ashok Bhavsar,
Age : 44 years, Occupation : Service,
R/o Nijampur, Tq.Sakari,
District Dhule.
...RESPONDENT
WITH
WRIT PETITION NO.7980 OF 2016
The Maharashtra State Road Transport
Corporation, Dhule, District Dhule.
Through its Divisional Controller.
...PETITIONER
-VERSUS-
Khandu Motiram Gardare,
Age : 45 years, Occupation : Service,
R/o Gangapur, Tq.Sakri,
District Dhule.
...RESPONDENT
WITH
WRIT PETITON NO.7981 OF 2016
The Maharashtra State Road Transport
Corporation, Dhule, District Dhule.
Through its Divisional Controller.
...PETITIONER
::: Uploaded on - 26/09/2016 ::: Downloaded on - 29/09/2016 00:07:53 :::
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-VERSUS-
Deepak Bhikanrao Sonawane,
Age : 50 years, Occupation : Service,
R/o Rupai Nagar, Sakri, Tq.Sakri,
District Dhule.
...RESPONDENT
...
Advocate for Petitioner : Shri Bagul D.S.
Advocate for Respondents : Shri Shrikant Patil.
...
CORAM: RAVINDRA V. GHUGE, J.
ig DATE :- 21st September, 2016
Oral Judgment :
1 Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2 This Court, while passing an ad-interim order on 01.08.2016
in these three petitions, has recorded in the order as under:-
"1 The Petitioner/ MSRTC is challenging the orders of the
Industrial Court dated 07.04.2016 by which the
applications below Exhibit U/6 filed by the
Respondents/ Employees in Complaint (ULP)
Nos.34/2015, 35/2015 and 36/2015 have been
allowed.
2 I have heard Shri Bagul, learned Advocate for the
Petitioner/ MSRTC. Shri Patil, learned Advocate
appearing on behalf of the three Employees in these
matters, prays for time since he has appeared only on
Advocate's notice and he is not in receipt of the
petition paper books.
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3 Shri Bagul points out that in another complaint
before the Industrial Court, these very Respondents
had prayed through their Union for interim relief to
work as Security Guards and not as Drivers. It is
pointed out that these three Respondents were
actually Drivers and they claimed to be colour blind.
They were referred to the J.J.Hospital for medical
examination and the J.J.Hospital delivered the reports
declaring these three Respondents as not being colour
blind and fit to work as Drivers. The Industrial Court
had granted interim relief permitting these
Respondents to work as Security Guards and not as
Drivers.
4 By the judgment of this Court dated 21.12.2015
delivered in Writ Petition No.10443/2015, this Court
has stayed the interim relief granted by the Industrial
Court to these Respondents along with others, for the
reason that though they were declared to be fit to
work as Drivers and their pretence of being colour
blind has been exposed by the medical reports of the
J.J.Hospital, the Industrial Court has granted them
interim relief to work as Security Guards.
5 Shri Bagul submits that in the present three ULP
Complaint Nos.34/2015, 35/2015 and 36/2015 filed
by these three Respondents, they had challenged
certain circulars issued by the Petitioner/ MSRTC. One
circular issued on 09.09.2015 by the Petitioner
directing these three Respondents to report for
training, was challenged below Exhibits U/6 in all the
three complaints. The Industrial Court, by the
impugned orders dated 07.04.2016, has concluded
that though the medical certificates of the Hospital
indicate that the Respondents are not colour blind, yet
it will not be proper to allow them to drive the Bus
since there is possibility that they may be colour blind.
6 Prima facie, I find it astonishing that the learned
Member of the Industrial Court, Dhule, has granted
interim relief despite the order of this Court dated
21.12.2015 in which this Court had concluded that
the medical reports of the J.J.Hospital have sanctity
and hence, these drivers, who pretended to be colour
blind, should not be given alternate postings as
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Security Guards. The view of this Court appears to
have been disregarded by the Industrial Court.
7 Issue notice to the Respondents, returnable on
20.08.2016.
8 Shri Patil, learned Advocate, waives service of notice
on behalf of the Respondents/ Employees.
9 Considering the fact that the learned Member of the
Industrial Court, Dhule has passed the orders dated
07.04.2016 by disregarding the observations and
directions of this Court in it's judgment dated
21.12.2015, the impugned orders dated 07.04.2016
below applications Exhibit U/6 in all these three
matters shall stand stayed until further orders."
The Petitioner/ MSRTC submits that the impugned order of
the Industrial Court below application Exhibit U/6 dated 07.04.2016 has
resulted in staying the notice dated 09.09.2015 by which the
Respondents/ Employees were directed to undergo training as drivers. As
a consequence of the impugned order, the said notice has been stayed.
4 These three Respondents/ Employees were parties to
Complaint (ULP) No.10/2015, which is filed by the Divisional Secretary,
Maharashtra S.T. Kamgar Sanghatana on behalf of 29 Drivers who claimed
to be colour blind. This Court by it's order dated 21.12.2015 has set aside
the interim order of the Industrial Court dated 16.07.2015 and directed
27 drivers, who had been declared medically fit after medical examination
by the J.J.Hospital, Mumbai, to report for duties as Drivers. It is stated
that out of these 27 drivers, 24 drivers have reported for duties and are
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performing their duties. It is only these three Respondents who still insist
that they are colour blind and hence, are medically unfit.
5 After this Court passed the order on 21.12.2015 in Writ
Petition No.10443/2015, the writ of this Court was served upon the
learned Member, Industrial Court, Dhule on 14.01.2016. Complaint (ULP)
No.10/2015 has, therefore, been expedited and the same is to be decided
on or before 27.10.2016. By order of this Court, interim relief granted by
the Industrial Court in other complaint permitting these Drivers to work as
Security Guards has been set aside.
6 Shri Patil, learned Advocate for the Respondents/ Employees,
has strenuously submitted as under:-
(a) The MSRTC issued the circular on 21.07.2012 by which those
drivers, who were suffering from sight problems or eye
problems (eye deformities), were directed to approach the
Civil Surgeon for medical examination.
(b) The Civil Surgeon declared all 29 drivers as being colour
blind.
(c) All these drivers were referred to the J.J.Hospital at Mumbai
for medical examination.
(d) Without conducting proper medical examination, the Medical
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Board of the J.J.Hospital declared 27 drivers fit and only two
drivers were noticed with eye sight problem/ colour blind.
(e) These three Respondents are amongst 27 drivers who are
declared to be fit by the J.J.Hospital.
(f) These three Respondents are still suffering from eye sight
problem and are willing to be referred to the J.J. Hospital for
proper detailed medical examination.
(g) By office orders dated 12.09.2013 placed on record at pages
46, 47, 48 and 50, the Respondents were redeployed as
Security Guards as an alternate employment pursuant to the
certificates of the Civil Surgeon that they are medically unfit
to drive the buses.
(h) On 19.09.2013, these Respondents have reported for duties
as Security Guards and have worked as such till 30.06.2015.
(i) From 01.07.2015 onwards, no work has been allotted to
them.
(j) By notice dated 09.09.2015, these Respondents are directed
to undergo training as Drivers.
(k) No notice of change was given under Section 9-A of the
Industrial Disputes Act, 1947 considering the change in the
nature of duties under the fourth schedule.
(l) Without notice of change, the Petitioner/ MSRTC could not
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have directed the Respondents to undergo training as Drivers.
7 Having considered the peculiar facts of these cases as above,
it is apparent that as on date, these three Respondents are amongst 27
drivers who have been declared as medically fit and not suffering from
colour blindness by the J.J.Hospital, Mumbai. The report of the
J.J.Hospital was delivered to the Industrial Court after it had passed it's
order dated 16.07.2015 in the other Complaint (ULP) No.10/2015.
8 Contention of the Respondents/ Employees is that they are
willing to sit idle without wages as they seriously find themselves
handicapped from driving the buses and especially while discharging
duties in the night shift. They are also willing to be subjected to a fresh
medical examination individually with the same J.J.Hospital, Mumbai and
they undertake to accept the report of the J.J.Hospital as may be
submitted on a fresh examination.
9 Considering this position and the contentions of the
Respondents/ Employees that they are willing to sit idle, the effect of the
notice dated 09.09.2015 shall not lead the Petitioner/ MSRTC to initiate
disciplinary proceedings against these Respondents. Nevertheless, since
these Respondents are voluntarily refusing to work as Drivers despite
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being held fit by the earlier report of the J.J.Hospital, the Industrial Court
shall note that these Respondents shall be deprived for their wages for the
period of their refusal to work while deciding Complaint (ULP) Nos.34, 35
and 36 of 2015.
10 Insofar as the notice of change under Section 9A is concerned,
it cannot be ignored that the nature of duties of these Respondents was
changed owing to their misrepresentation that they are colour blind. After
they were exposed by the medical report, they have been restored to their
original position as drivers. It is only on account of their conduct that the
Petitioner is required to revert them back to their original positions. As
such, in my view, there is no applicability of Section 9A in these
circumstances.
11 As such, these Writ Petitions are partly allowed in the
following terms:-
(a) The impugned orders dated 07.04.2016 passed by the
Industrial Court in Complaint (ULP) Nos.34, 35 and 36 of
2015 stand quashed and set aside.
(b) In the light of the directions issued in this order, the
Petitioner/ MSRTC is restrained from initiating disciplinary
proceedings against the Respondents for having not complied
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with the notice dated 09.09.2015.
(c) The Petitioner/ MSRTC shall take an appointment with the
J.J. Hospital, Mumbai (Opthalmic Department) in order to
refer these three Respondents, namely, Jitendra Ashok
Bhavsar, Khandu Motiram Gardare and Deepak Bhikanrao
Sonawane, for a fresh medical examination.
(d) The Petitioner shall inform these three Respondents about the
date, time and place of the medical examination and these
three Respondents shall thereafter, present themselves to the
Medical Board of the J.J.Hospital, Mumbai for individual
medical examination.
(e) Needless to state, the Medical Board of the Opthalmic
Department of the J.J.Hospital, Mumbai shall minutely
examine these three Respondents and submit the medical
report in a sealed envelope to the Divisional Controller,
Maharashtra State Road Transport Corporation, Dhule,
District Dhule.
(f) The statement of the Respondents that they would not dispute
the said medical report as it may be, is accepted as a
statement made to this Court.
(g) Needless to state, the Petitioner/ MSRTC will also be bound
by the said report so as to balance the equities.
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(h) Complaint (ULP) Nos.34, 35 and 36 of 2015 shall stand
stayed till the report from the J.J.Hospital, Mumbai is
presented before the Industrial Court by the Petitioner/
MSRTC.
(i) After the Industrial Court peruses the said report, it shall
proceed to decide the said complaints in accordance with the
said report and these directions.
(j) Considering the peculiar facts in which the Petitioner/ MSRTC
had deployed these three Respondents as Watchmen on their
misrepresentation and has then issued the notice on
09.09.2015 for restoring them as Drivers, the issue of notice
of change under Section 9-A of the Industrial Disputes Act,
1947 shall not survive and the Industrial Court shall not
consider the same as an issue for adjudication.
12 Rule is made partly absolute in the above terms.
kps (RAVINDRA V. GHUGE, J.)
