Bombay High Court
The Divisional Controller, ... vs Shaik Mushtak S/O Shaik Nasir on 5 December, 2017
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.3394/2016
1. The Divisional Controller,
M.S.R.T.C., Buldhana Division,
Buldhana.
2. The Mechanical Engineer (Opn)
M.S.R.T.C., Divisional Workshop
Buldhana. ..Petitioners.
..Vs..
Sanjay Mahadev Khanderao,
aged about Adult, Occu. Service,
R/o Ambedkar Nagar, Buldhana,
Distt. Buldhana. ..Respondent.
AND WRIT PETITION NO.3397/2016
1. The Divisional Controller,
M.S.R.T.C., Buldhana Division,
Buldhana.
2. The Mechanical Engineer (Opn)
M.S.R.T.C., Divisional Workshop
Buldhana. ..Petitioners.
..Vs..
Shaik Mushtak S/o Shaik Nasir,
aged about Adult, Occu. Service,
R/o Johhar Nagar, Ward No.5,
Buldhana, Distt. Buldhana. ..Respondent.
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AND WRIT PETITION NO.3468/2016
1. The Divisional Controller,
M.S.R.T.C., Buldhana Division,
Buldhana.
2. The Mechanical Engineer (Opn)
M.S.R.T.C., Divisional Workshop
Buldhana. ..Petitioners.
..Vs..
Ambadas Mahadev Borde,
aged about Adult, Occu. Service,
R/o Ambedkar Nagar, Buldhana,
Distt. Buldhana. ..Respondent.
AND WRIT PETITION NO.3034/2016
1. The Divisional Controller,
M.S.R.T.C., Buldhana Division,
Buldhana.
2. The Mechanical Engineer (Opn)
M.S.R.T.C., Divisional Workshop
Buldhana. ..Petitioners.
..Vs..
Rajesh Pandurang Hiwarkhede,
aged about Adult, Occu. Service,
R/o Sultanpur, Tah. Khamgaon,
Distt. Buldhana. ..Respondent.
AND WRIT PETITION NO.3033/2016
1. The Divisional Controller,
M.S.R.T.C., Buldhana Division,
Buldhana.
2. The Mechanical Engineer (Opn)
M.S.R.T.C., Divisional Workshop
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Buldhana. ..Petitioners.
..Vs..
Trimbak Gangaram Bhagwat,
aged about Adult, Occu. Service,
R/o At Post Dhawada, Taluka- Bhokardhan,
Distt. Jalna. ..Respondent.
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Shri Vivek Kedar, Advocate for the petitioners.
Shri R.O. Awasarmol, Advocate for the respondent. ..(in all petitions)
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CORAM : Z.A. HAQ, J.
DATE : 5.12.2017.
ORAL JUDGMENT
1. Heard Shri Vivek Kedar, Advocate for the petitioners and Shri R.O.
Awasarmol, Advocate for the respondent.
2. As all these petitions involve same point they are being disposed by
common order.
3. Rule. Rule made returnable forthwith.
4. In all these petitions, the respondent / employees had been working
with the petitioner / employer on fixed pay. The employees demanded
fixation of pay alongwith allowances, and considering the representations of
the employees, the fixation of pay of the employees was done as per the
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Circular No.3 of 2008. According to the petitioner / employer, there was an
audit objection on 26th March, 2013 that the fixation of pay was not properly
done and these employees were being paid more amount than receivable by
them. According to the petitioner / employer, after the audit objection,
re-fixation was done which resulted in reduction of emoluments receivable by
the respondent / employees.
The respondent / employees approached the Industrial Court by
filing separate complaints under Section 28 read with Item 9 of Schedule IV of
the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour
Practices Act, 1971. The complaints filed by the respondent / employees are
allowed by the Industrial Court.
5. One of the consideration by the Industrial Court is that the employer
had not given show cause notice and hearing to the respondent / employees
before reducing their pay. On merits of the matter, the Industrial Court
recorded that the reduction in pay of the respondent / employees is not
justified and the emoluments receivable by the respondent / employees are
proper as per Circular No.1 of 2009.
6. Considering the facts of the case, and as I find that the material on
record is not sufficient to adjudicate the controversy as the petitioner /
employer has not led any evidence before the Industrial Court, in my view, the
interests of justice would be sub-served by passing the following order:
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(i) The impugned orders passed by the Industrial Court are set aside.
(ii) The order dated 26th March, 2013 issued by the employer reducing
the pay of the respondent / employees is quashed.
(iii) The petitioner / employer shall take decision in the matter after
giving show cause notice to the respondent / employees and granting them
hearing.
(iv) The petitioner / employer shall pay costs of Rs.5,000/- (Rs. Five
Thousand) to each of the respondent / employees.
(v) Though the orders dated 26th March, 2013 issued by the employer
reducing the pay of the respondent / employees is quashed, till decision is
taken in the matter, the respondent / employees, will not be entitled for the
pay as per the earlier fixation and they will be entitled for pay as per the
re-fixation by the order dated 26th March, 2013. If after hearing the
respondent / employees the petitioner / employer finds that the earlier fixation
was properly done and the re-fixation as per the order dated 26 th March, 2013
is not justified the difference shall be paid to the respondent / employees
within two months from the date of decision.
(vi) The petitioner / employer shall take decision in the matter within
three months.
(vii) The writ petitions are disposed in the above terms.
JUDGE
Tambaskar.
