Bombay High Court
Mah. State Road Trans Corpn. ... vs Kanhaiyalal Ramlal Kashi Nagpur & ... on 30 March, 2017
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.4083 OF 2001
Maharashtra State Road Transport
Corporation, Nagpur through its
Divisional Controller,
Near Railway Station, Sitabuldi,
Nagpur. ....... PETITIONER
...V E R S U S...
1] Kanhaiyalal s/o Ramlal Kashi,
Aged about 42 years,
Occupation: Service,
R/o Kanhan, Tahsil: Kamptee,
District Nagpur.
2] Member, Industrial Court,
Civil Lines, Nagpur. ....... RESPONDENTS
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Shri R.S. Charpe, Advocate for Petitioner.
Shri G.M. Shitut, Advocate for Respondent No.1.
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CORAM: R.K. DESHPANDE, J.
th MARCH, 2017.
DATE: 30
ORAL JUDGMENT
1] The respondent-complainant before the Industrial
Court in Complaint (ULP) No.980 of 1993 is granted a relief of
continuation in service on the post of Cleaner w.e.f. 09.08.1992
along with all consequential benefits. This decision of the
Industrial Court rendered on 03.10.2001 is the subject-matter of
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challenge in this writ petition by the employer.
2] Undisputedly, the respondent-complainant was
working as Driver on the passenger buses plied by the
petitioner-corporation. He was declared unfit for the said job
because of his impairment of vision to some extent. He was
terminated from service on 08.08.1992. This was the
subject-matter of challenge in a complaint filed by the
complainant in the Labour Court and the counsels are not aware
as to what has happened in that complaint. Be that as it may, the
complainant filed the present complaint before the Industrial
Court invoking Item 5 and 9 of Schedule IV of the Maharashtra
Recognition of Trade Unions and Prevention of Unfair Labour
Practices Act, 1971 (for short "MRTU and PULP Act) claiming the
relief of alternate employment w.e.f. 09.08.1992, which has been
granted by the Industrial Court by impugned order, on the basis of
the Circular dated 22.06.1990 issued by the petitioner-
corporation.
3] I have gone through the copy of Circular dated
22.06.1990 at Exhibit 35. It provides a scheme for absorption of
Drivers declared unfit, on the suitable post available. The fact of
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unfitness of the complainant on the post of Driver w.e.f.
08.08.1992 is not in dispute. The circular entitles him to get an
alternate job in the lowest category of Cleaner, as an alternate job.
The complainant was therefore, entitled to the consideration for
absorption in the post of a Cleaner, which also cannot be
disputed.
4] It is urged by Shri Charpe, the learned counsel
appearing for the petitioner that the circular clearly stipulates that
absorption depends upon the vacancies available in the post of
Cleaner. He submits that if the vacancies are not available then as
per the said circular, a person is required to be kept on waiting list
for want of vacancies and such person can be absorbed in any
other vacancies of a Peon, Sweeper etc. as are available or shall
become available, as per their term in the waiting list.
He therefore, submits that the Industrial Court could not have
therefore, directed grant of appointment to the complainant on
the post of a Cleaner w.e.f. 09.08.1992 and further to pay him
salary along with all consequential benefits on the post of Cleaner.
5] Once it is established that the complainant was
entitled to be absorbed on the lowest post of a Cleaner in terms of
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the said circular which was then in force, the services of the
complainant could not have been terminated on 08.08.1992. It is
not the stand taken by the petitioner before the Industrial Court
that there were no vacancies in the post of Cleaner available for
absorption of the complainant or that there were other persons on
the waiting list like the complainant, who were required to be
absorbed first in the service on the post of such available post of
Cleaner. It is not in dispute that the complainant was subsequently
absorbed on the post of a Cleaner on 12.01.1994, pending the
decision of the complaint, as per the interim order. It is also not in
dispute that he has received the salary in the said post from
12.01.1994 till the date of his superannuation on 31.08.2016.
6] In view of above, the only question is of the payment
of salary to the complainant for the period from 09.08.1992 to
11.01.1994 along with all consequential benefits. It was not the
stand of the petitioner before the Industrial Court that there was
no vacancy available for absorption of the Driver. The Industrial
Court has found that there is violation of the terms and conditions
stipulated in the circular which has attracted Item 9 of Schedule
IV of the MRTU and PULP Act. I do not find any illegality in the
order passed by the Industrial Court. Hence, the writ petition is
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dismissed. No order as to costs.
7] The petitioner shall calculate the entire benefits
payable to the complainant within a period of two months from
today and the entire payment shall be made thereafter within a
period of one month. If such payment is not made then the
complainant shall be entitled to interest at the rate of 16% per
annum from the date of expiry of this period, till the payment is
made.
JUDGE
NSN
