The State Of Maharashtra Thr. ... vs Shri Sandeep Nilkanth Dabre
2017 Latest Caselaw 7255 Bom

        wp4400.17.J.odt                                                                                               1/6    


                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                          NAGPUR BENCH, NAGPUR

                                  WRIT PETITION NO. 4400 OF 2017

        1]   The State of Maharashtra,   
               Through Chief Secretary
               Mantralaya, Mumbai-32.

        2]   The Additional Principal Chief
               Conservator of Forests
               (Administration-Subordinate Cadre)
               Civil Lines, M. S. Nagpur.

        3]    The Chief Conservator of Forest (T)
                Yavatmal Circle, Dr. Babasaheb
                Ambedkar Social Justice Bhavan
                Palaswadi Camp, Civil Lines,
                Yavatmal.                                                      .....PETITIONERS

                          ...V E R S U S...

                Shri Sandeep Nilkanth Dabre,
                Aged about 52 years,
                Occu. Service, R/o-Plot No.43
                Satyam Society, Shrikrushna Nagar
                Darwa Road, Yavatmal,
                Tah & Dist-Yavatmal.                                  ...... RESPONDENT
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Mrs. M. A. Barabde, A. G. P. for the Petitioners.
        Miss. A. A. Athalye, Advocate for Respondent.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                           CORAM  :   S. C. GUPTE, J.

th DATE : 18 SEPTEMBER, 2017.

ORAL JUDGMENT :

Heard learned counsel for the parties.

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        02]                Rule. Rule taken up for hearing forthwith.



        03]                This   petition   challenges   an   order   passed   by   the

Industrial Court at Yavatmal on a complaint of unfair labour

practice under Section 28 read with Item-9 of Schedule-IV of the

Maharashtra Recognition of Trade Unions and Prevention of Unfair

Labour Practices Act ("Act").

04] On 1st July, 1983, the respondent was appointed by

petitioner No.3 as a clerk. He was promoted on 8 th December, 2000

to the post of an accountant and held the same ever since then. By

a show cause notice dated 16 th July, 2015, the respondent was

called upon to explain why action should not be taken against him

for non submission of caste validity certificate. Aggrieved by this

show cause notice, the respondent filed the present complaint. In

the complaint, the respondent took out an application under

Section 30(2) of the Act, for an interim stay of the show cause

notice. That application was granted by the Industrial Court by its

order dated 11th March, 2016. That order is impugned in the

present petition.

         wp4400.17.J.odt                                                                                               3/6    


        05]                The main ground of challenge in the present petition is

that there is no case under Item-9 of Schedule-IV. Merely by reason

of the fact that an explanation is called for from the respondent for

non-submission of caste validity certificate, there is no breach or

failure to implement any award, settlement or agreement. The

Industrial Court came to the conclusion that prima facie the

appointment of the respondent was made in the open category and

not in a reserved category and therefore, the impugned show cause

notice was illegal. In other words, the Industrial Court has gone

into the prima facie merits of the show cause notice in the

complaint without considering properly the maintainability of the

complaint. In the light of the objections of the petitioners, who

challenged the maintainability of the complaint under Item-9 of

Schedule-IV, the Industrial Court had to consider whether a

complaint such as this is prima facie maintainable. The Industrial

Court has come to the conclusion that the complaint is

maintainable purportedly on the ground that though Item-9 of

Schedule-IV, dealt with an unfair labour practice where there is a

failure to implement an award, settlement or agreement, the scope

of Item-9 has been increased after the decision of the Hon'ble

wp4400.17.J.odt 4/6

Supreme Court in the case of S. G. Chemicals and Dyes Trading

Employees' Union ..vs.. S. G. Chemicals and Dyes Trading

Limited, reported in 1986 I LLN 986, so as to include violation of

any statutory provision. One fails to understand (and there is no

explanation in this behalf) on what basis a show cause notice such

as this entails violation of any statutory provision.

06] Learned counsel for the respondent tries to support the

order by submitting that the expression 'agreement' used in Item-9

of Schedule-IV is broad enough to include any term or service

condition contained in the original appointment order. She relies

on the judgment of this Court in the case of Dattatraya

Shankarrao Kharde ..vs.. Executive Engineer, Chief Gate

Erection Unit No.2 and Another, reported in 1994 Mh. L. J. 776,

in support of her submission. It may be that an appointment order,

which contains terms of contract on which the employee is

appointed by the employer and conditions of his service, would

amount to an 'agreement' within the meaning of Item-9 of

Schedule-IV but the question is whether prima facie there is any

breach of that agreement. From a bare reading of the letter of

appointment, all that can be said is that there is no reference to the

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appointment of the respondent in any reserve category. It may even

be possible to suggest that absence of any reference to appointment

in reserve category may imply that the appointment was in open

category as an implied term, if not an express term. But even if that

is so, it can never be suggested that a show cause notice for non-

submission of caste validity certificate can by itself amount to any

breach of such implied term. If, according to the respondent, he is

appointed in open category and not in any reserve category and

therefore, not liable to submit any caste validity certificate, it is for

him to show such cause to his employer. He cannot suggest that

simply because he has been asked to show cause, there is a breach

of the agreement of his employment. There is nothing to suggest

that the petitioners have already made up their mind to punish the

respondent for non-submission of a caste validity certificate. What

they have done is to have merely ordered an inquiry. The

respondent has to simply participate in that inquiry and show

cause. The cause may be that he is not bound to produce any caste

validity certificate, since his appointment is in an open category

and not in reserve category. Since this issue is anyway open and to

be considered by the petitioners, there is no breach of any term of

appointment of the respondent.

         wp4400.17.J.odt                                                                                               6/6    


        07]                In  the  premises,  the  impugned  order  of  the  Industrial

Court cannot be sustained. The jurisdiction to order interim stay of

the show cause notice has been exercised by the Court on an

untenable basis, namely, that the scope of Item-9 includes violation

of statutory provisions without indicating any such statutory

provision. No such provision is shown to exist even at the hearing

of this petition. The Industrial Court has, therefore, exercised

jurisdiction in an incorrect manner and on a wrong principle. The

order, accordingly, needs to be corrected in the exercise of writ

jurisdiction of this Court.

08] Accordingly, Rule is made absolute and the impugned

order passed by the Industrial Court is quashed and set aside and

stay of show cause notice ordered by it is vacated forthwith. The

petition is disposed of accordingly.

JUDGE PBP