Maharashtra State Road Transport ... vs Shashikant S/O Laxmanrao Gadekar
2017 Latest Caselaw 7645 Bom

        J-wp5104.17.odt                                                                                                  1/5 


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


                                   WRIT PETITION No.5104 OF 2017


        Maharashtra State Road Transport Corporation,
        through it's Divisional Controller, 
        Chandrapur/Gadchiroli Division, 
        Office at Gadchiroli, Distt. Gadchiroli.     :      PETITIONER

                          ...VERSUS...

        Shashikant s/o. Laxmanrao Gadekar,
        Age 54 years,
        R/o. Saykheda, Post Gondegaon,
        Tah. Darwha, Distt. Yavatmal.                                               :      RESPONDENT


        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri S.L. Gadekar, Advocate for the Petitioner.
        Shri S.D. Chande, Advocate for the Respondent.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                                                      CORAM  :   S.C. GUPTE, J.

th DATE : 28 SEPTEMBER, 2017.

ORAL JUDGMENT :

1. Heard learned counsel for the parties.

2. The petition challenges an order passed by the Industrial

Court at Chandrapur on a complaint of unfair labour practice under

Section 28 of the Maharashtra Recognition of Trade Unions and

Prevention of Unfair Labour Practices Act, 1971 (in short, "the Act") read

with Item 9 of Schedule IV of the Act. By the impugned order the

Industrial Court directed the petitioner, who was an employer of the

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respondent to provide an alternative job to the respondent.

3. The respondent was working as a driver with the petitioner

since 1992. While on duty, he suffered a heart attack on 28 th February,

2011 and proceeded on medical leave. On 17 th June, 2012, he resumed

his duties with the petitioner. After joining the duty, the respondent

requested the petitioner to provide an alternative job. Vide

communication dated 3rd August, 2012, the petitioner directed the

respondent to obtain a fitness certificate. The respondent thereupon

approached the Medical Board at Indira Gandhi Medical College, Nagpur.

The Board certified that he was unfit to perform the duty as a driver,

though he was fit to perform any other table or light work. The

respondent thereupon submitted various representations to the

petitioner. Vide communication dated 22nd August 2013, the request of

the respondent for providing alternative job was turned down by the

petitioner. This was presumably on the ground that a disciplinary

enquiry was pending against him. In these circumstances, the

respondent approached the Industrial Court under Section 28 of the Act

alleging unfair labour practice under Item 9 of Schedule IV. The

Industrial Court, vide the impugned order, held that the petitioner had

engaged in unfair labour practice governed by Item 9 of Schedule IV to

the Act by not providing alternative employment to the respondent. The

petitioner was directed to provide an alternative job to the respondent

within one month and pay all monetary benefits from the date of

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rejection of his claim vide order dated 22 nd August, 2013 till he was

permitted to resume on the alternative post.

4. Learned counsel for the petitioner submits that the

respondent was terminated on 18 th October, 2014. It is submitted that

since this is a case of termination of employment, the complaint is

covered by Item 1 of Schedule IV to the Act and does not fall within Item

9 of Schedule IV. There is no merit in this contention. The complaint is

filed much before the purported termination order of 18 th October 2014.

The complaint was filed on 10th December, 2013. It was in respect of the

petitioner's refusal to provide an alternative job to the respondent. At the

date when the complaint was filed, the respondent was very much in

service of the petitioner. Though unable to perform his duty as a driver

on account of want of fitness, he was very much in a position to perform

any other light or desk work as certified by the Medical Board. A

complaint such as this clearly falls within Item 9 of Schedule IV. The

Persons with Disabilities (Equal Opportunities, Protection of Rights and

Full Participation) Act, 1995 provides (Section 47) that no establishment

shall dispense with, or reduce in rank, an employee who acquires a

disability during his service. A proviso to sub-section (1) of Section 47

requires that if an employee, after acquiring disability is not suitable for

the post he is holding, he should be shifted to some other post with the

same pay scale and service benefits. Failure to implement this provision

of law would be covered within the meaning of unfair labour practice

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under Item 9 of Schedule IV of the Act. Merely because pending the

complaint of unfair labour practice, the complainant employee is

terminated by the petitioner, the jurisdiction of the Labour Court to hear

the complaint is not ousted. Any termination pending the complaint

would always be subject to the decision in the complaint.

5. Learned counsel for the petitioner alternatively submits that

the Medical Board in the present case has not indicated any percentage

of disability within the meaning of clause (t) of Section 2. Learned

counsel submits that in the premises, the disability of the respondent is

not covered under clause (t) of Section 2 of the Persons with Disabilities

(Equal Opportunities, Protection of Rights and Full Participation) Act,

1995. Clause (t) of Section 2 defines a person of disability as a person

suffering from not less than 40% of any disability as certified by the

Medical Authority. The certificate in the present case is clearly to the

effect that the person is unfit for performing duty as a driver. As far as

the petitioner's job is concerned, this translates into a complete disability

so far as the job is concerned. Though the percentage of disability is not

specifically indicated in the certificate issued by the Medical Board, the

certificate indicates that he was fit to perform any table/light work. In

the premises, the respondent could be termed as a person with disability

within the meaning of the Act. In any event, this was not a ground raised

before the Industrial Court in the complaint by the petitioner. The

objection of the petitioner to the complaint was firstly that the

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disciplinary proceedings against the respondent were pending and

secondly that no suitable post was available as an alternative

employment. The Industrial Court, in fact, noted that the stands adopted

by the petitioner in this behalf were contradictory and reflected on its

conduct. Besides, the Industrial Court held that there was no case of

non-availability of an alternative post, since no such fact was ever

communicated by the petitioner to the respondent. The Industrial Court,

in the premises, came to the conclusion that the rejection of the

respondent's claim to alternative employment, thus, clearly falls within

the mischief of Item 9 of Schedule IV of the Act. In the premises, it is not

open to the petitioner to claim for the first time in this writ petition that

the petitioner is not a person with disability on the ground that the

percentage of disability is not indicated in the certificate of the Medical

Board.

6. In the premises, there is no merit in either of the contentions

of the petitioner. The petition is, accordingly, dismissed.

7. The petitioner shall pay costs quantified at Rs.15,000/- to the

respondent.

JUDGE okMksns