Bombay High Court
Conservator Of Forest, ... vs Shri Umeshwar Keshao Katwate on 27 November, 2017
Bench: B.P. Dharmadhikari
1 lpa380.10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
LETTERS PATENT APPEAL NOS. 380/10 & 381/10
1] LETTERS PATENT APPEAL NO. 380 OF 2010
(ARISING OUT OF WRIT PETITION NO. 1039 OF 2008).
1) Conservator of Forest, North
Division Forest, Chandrapur,
2) Deputy Conservator of Forest,
Forest Division, Chandrapur,
3) Range Forest Officer, Mul,
Dist. Chandrapur. ..... APPELLANTS.
....Versus....
1) Shri Umeshwar Keshav Kathwate,
Aged about 27 years, Occ. Ex-
Forest Guard, R/o Chota Nagpur,
20, P.O. Padoli, Chandrapur,
Dist. Chandrapur,
2) Member, Industrial Court,
Chandrapur. ...... RESPONDENTS.
2] LETTERS PATENT APPEAL NO. 381 OF 2010
(ARISING OUT OF WRIT PETITION NO. 1278 OF 2009).
1) Conservator of Forest, North
Division Forest, Chandrapur,
2) Deputy Conservator of Forest,
Forest Division, Chandrapur,
3) Range Forest Officer, Mul,
::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 01:22:03 :::
2 lpa380.10
Dist. Chandrapur. ..... APPELLANTS.
....Versus....
1) Shri Umeshwar Keshav Kathwate,
Aged about 27 years, Occ. Ex-
Forest Guard, R/o Chota Nagpur,
20, P.O. Padoli, Chandrapur,
Dist. Chandrapur. ...... RESPONDENT.
Mr. A.R. Patil, Advocate for respondent no.1,
Mr. V.P. Maldhure, Assistant Government Pleader for respondent
no.2.
CORAM : B.P. DHARMADHIKARI & MRS. SWAPNA S. JOSHI, JJ.
DATED : NOVEMBER 27, 2017.
B.P. DHARMADHIKARI
ORAL JUDGMENT (PER , J.)
1] Nobody appears for appellants. Learned A.G.P. appears
for respondent no.2. Mr. A.R. Patil, learned Advocate has appeared
for respondent no.1/employee in both the matters.
2] Respondent Umeshwar was provided employment as
Forest Guard by appellants in pay-scale of 2750-70-3800-75-4400 as
per order of appointment dated 23.12.2003. He was selected
because of his status as belonging to Nomadic Tribe (C). The
appellant was temporary and ad-hoc. His caste claim was also
3 lpa380.10
validated by a competent committee on 14.1.2004.
3] It appears that he was sent for physical examination to find
out his fitness for training and at that time it was found that he was
not 163 cm. in height. His height was found to be only 160 cms.
4] At this stage, Mr. S.R. Deshpande, learned Counsel
appears and informs that Forest Department has collected papers
from him and they were to engage office of Government Pleader. He
also informs that he has ceased to be a Panel Advocate.
5] Because of this outcome of physical examination,
appellants found that respondent was not possessing requisite height
and, therefore, could not have been selected as Forest Guard. He
was, therefore, discontinued by order dated 29.1.2005.
6] Umeshwar challenged this termination in Complaint (ULP)
No. 11/05 under Section 28 read with Section 30 and Item 1 of
Schedule IV of the Maharashtra Recognition of Trade Unions and
Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred
to as "Act No. I of 1972"). The Labour Court has granted him interim
relief on 24.3.2005 and asked employer to reinstate him on his former
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post or then to pay him 90% of the wages per month.
7] Final judgment has been delivered in above-mentioned
Complaint (ULP) on 8.9.2006. The Labour Court has directed
employer to pay back wages till 8.9.2006 and granted five years'
salary as compensation.
8] This direction and judgment of Labour Court was
questioned by employer by filing Revision (ULP) No. 60/06 under
Section 44 of the Act No. I of 1972. Umeshwar also challenged it by
filing Revision (ULP) No. 62/06. He sought relief of reinstatement
with continuity.
9] The Member, Industrial Court, Chandrapur decided both
the Revisions together by common order dated 10.1.2008. Industrial
Court maintained order of Labour Court but brought down
compensation to sum of Rs.1,50,000/-.
10] This common order was questioned by Umeshwar in Writ
Petition No. 1039/08 and by appellant employer in Writ petition No.
1278/09.
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11] Writ Petition No. 1039/08 was decided on 8.10.2008 by the
learned Single Judge. The learned Single Judge maintained the relief
of compensation of Rs.1,50,000/- awarded to Umeshwar and rejected
his prayer for grant of reinstatement with continuity or back wages.
12] Employer (present appellant) filed Writ Petition No.
1278/09 after this adjudication on 20.2.2009. The other learned
Single Judge of this Court has by judgment dated 8.9.2009 rejected
the prayer of appointment and upheld grant of Rs.1,50,000/- as
compensation to Umeshwar.
13] Employer has questioned these two separate judgments
delivered by two learned Single Judges of this Court in these two
Letters Patent Appeals.
14] Judgment in Writ Petition No. 1039/08 dated 8.10.2008
dismissing petition filed by Umeshwar forms subject matter of L.P.A.
No. 380/10 while the other judgment dismissing Writ Petition of
employer challenging grant of compensation to Umeshwar forms
subject matter of L.P.A. No. 381/10.
15] Umeshwar has not challenged the adverse judgment
6 lpa380.10
delivered by the learned Single Judge dismissing his Writ Petition No.
1039/08. With the result, it is obvious that L.P.A. No. 380/10 filed by
employer challenging dismissal of Writ Petition is unsustainable and
not maintainable. It is, therefore, dismissed.
16] L.P.A. No. 381/10 challenges judgment delivered by other
learned Single Judge in Writ Petition No. 1278/09. In this Writ
Petition employer questioned compensation of Rs.1,50,000/- awarded
by Industrial Court to Umeshwar. Compensation was brought down
because Industrial Court partly allowed Revision filed by employer.
As such, the employer who wanted that no compensation or any relief
should be awarded to Umeshwar approached this Court in Writ
Petition No. 1278/09. This Writ Petition has been filed long after
dismissal of Writ Petition No. 1039/08. Dismissal of Writ Petition
No. 1039/08 has not been expressly pointed out in it.
17] Perusal of judgment dated 8.9.2009 delivered by learned
Single Judge in Writ Petition No. 1278/09 reveals that there effort was
made to urge that Forest Department is not an industry and support
was taken from two judgments. In the alternative, contention that
award of compensation was unwarranted was also raised. The
learned Counsel for Umeshwar relied upon two judgments delivered
7 lpa380.10
by Hon'ble Apex Court to urge that Forest Department is industry.
The learned Single Judge has accepted larger Bench adjudication in
case of Bangalore Water Supply and Sewerage Board .vs. A.
Rajappa reported in (1978) 2 SCC 213 to hold that it is "industry".
18] While considering question of compensation, learned
Single Judge found that the controversy in relation thereto is covered
by judgment of coordinate Bench. Mr. A.R. Patil, learned Counsel
appearing for Umeshwar has submitted that this judgment of
coordinate Bench is judgment dated 8.10.2008 in Writ Petition No.
1039/08.
19] We find that in Writ Petition filed by Umeshwar, Umeshwar
was seeking larger relief of reinstatement with continuity and back
wages. He may have at the most claimed more amount as
compensation. However, grant of compensation as such, was not the
issue involved in Writ Petition No. 1039/08.
20] However, in this L.P.A. at this juncture while considering
the quantum of compensation, we are not inclined to intervene. The
employee Umeshwar had not played any fraud and was selected
after open competitive procedure. He joined and worked for little less
8 lpa380.10
than two years. His appointment was on ad-hoc basis or temporary
but still he could have continued further had the error not been
discovered. Not only this, there is a provision for relaxation of height
for Scheduled Tribe employees. Thus, it cannot be said that an
employee with height lesser than 163 cms. is totally disqualified.
21] His monthly salary was roughly Rs.5000/- per month. He
has been given compensation of about 2½ years salary for losing the
job. He must have given up other chances in the meanwhile because
he already got employment as Forest Guard. Taking overall view of
the matter, we do not see compensation of Rs.1,50,000/- awarded to
him disproportionate or arbitrary. At this stage, Shri Patil, learned
Counsel informs that as stay was granted in L.P.A. on 22.9.2010 the
employee would get amount of Rs.1,50,000/- only now without any
interest.
22] In this situation, we direct employer to pay to him simple
interest calculated at 6% per annum from 22.9.2010 till its actual
realization. The amount shall be made over to him within next four
months.
23] We, therefore, find that no case is made out even in L.P.A.
9 lpa380.10
No. 381/10 for intervention. Accordingly, the said L.P.A. is also
dismissed. No costs.
JUDGE. JUDGE.
J.
