The Govt. Of Maharashtra Thr. ... vs Gulab Pyarelal Chavan
2018 Latest Caselaw 700 Bom

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

                       WRIT PETITION NO. 4907/2017


PETITIONERS                    :   1] The Government of Maharashtra,
                                      Through Secretary, 
                                      Public Works Department, 
                                      Mantralaya, Mumbai-32

                                   2] The Superintending Engineer, 
                                      Public Works Department, 
                                      Yavatmal, Tq. And Dist. Yavatmal

                                   3] The Executive Engineer, 
                                      Public Works Department, 
                                      Yavatmal, Tq and Dist. Yavatmal



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


RESPONDENT                     :        Gulab Pyarelal Chavan,
                                        Aged about 50 years, 
                                        Occupation Service, 
                                        R/o Vishram Gruha Campus, 
                                        Civil Lines, Yavatmal,
                                        Tq. And Dist. Yavatmal  


===================================
       Shri A.M. Kadukar, AGP for the petitioners
     Shri R.S. Kurekar, Advocate for the respondent
===================================

                                           CORAM:- Z.A. HAQ,J.

th DATED :- 19 JANUARY, 2018

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ORAL JUDGMENT :-

Heard.

Rule. Rule made returnable forthwith.

2] The facts which have come on record, show the

litigating attitude of the Government Authorities and is an example

of how unwanted litigation at the cost of public money is created.

3] The respondent-employee had filed complaint before the Industrial Court under Section 28 read with Items 5 and 9 of Schedule-IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 contending that the present petitioners (employer) indulged in unfair labour practice by not considering his appointment in the post of Assistant Manager of the P.W.D. rest house, w.e.f. 18/02/2008. The employee prayed that the employers be directed to fix the pay of the employee treating him as Assistant Manager w.e.f. 18/02/2008 and to make available to him the monetary benefits accordingly.

4] The claim of the employee was opposed by the employer, substantially on the following two grounds:-

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                (i)      That the post of Assistant Manager, for which the 

employee had made the claim, was not created by the State Government and therefore the employee cannot seek the relief as sought for by him.

(ii) The employee was not having the required qualifications for the post of Assistant Manager, as per the Government Resolution dated 13/05/1963.

The Industrial Court conducted the trial, and by the impugned order upheld the claim of the employee. The petitioners- employer being aggrieved by the order of the Industrial Court have filed this writ petition.

5] The Industrial Court has recorded that the respondent- employee had been working at the Rest House, Yavatmal as Safai Kamgar on daily wages since 27/09/1986, he was taken on CRTE as per the Kalelkar award w.e.f. 27/09/1991, though on record he was shown as Safai Kamgar on CRTE, he had been working as Assistant Manager since 01/10/1996. There is no dispute about these facts.

The Industrial Court has recorded that the Superintending Engineer (present petitioner no. 2) had sent proposal by the letter dated 26/02/2007 for giving the benefit to the respondent-employee and designating him as Assistant Manager w.e.f. 01/10/1996. It is recorded that a revised proposal dated 27/07/2007 was sent in which the name of the respondent-

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employee was shown at Serial No. 1, showing him as Safai Kamgar on CRTE and further showing that he was working as Assistant Manager. It is recorded that this proposal was sanctioned by the State Government vide Resolution dated 18/02/2008 accepting that the respondent-employee be given the designation as per the work he was doing and he should be paid as per the designation. The Industrial Court has recorded that on page 7 in column 18 of the Government Resolution dated 18/02/2008, it is stated that the proposal sent by the Superintending Engineer by letter dated 26/02/2007 was sanctioned by the State Government. It is recorded that the name of the respondent-employee is found in the details of the sanctioned posts. These facts are also not disputed by the petitioners.

It is not understood as to on what basis the petitioners claim that the respondent-employee is not entitled for the relief granted by the Industrial Court. The submission on behalf of the petitioners that the State Government has not sanctioned the post, is misconceived in view of the admitted facts.

6] The other submission made on behalf of the petitioners, that the respondent-employee is not having the qualifications required for the post of Assistant Manager, as per the Government Resolution dated 13/05/1963 also cannot be accepted. The Government Resolution dated 13/05/1963 (copy of which is placed on the record of the petition as Annexure "F" at page 74 of the paperbook) shows that the recruitment rules incorporated in the Government Resolution were and are for non-gazetted posts in

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the Majestic Hostel, Bombay and MLAs Hostel at Bombay and Nagpur.

It is neither the case of the respondent-employee nor the petitioners-employer that the respondent-employee have worked at any time either at Majestic Hostel, Bombay or at MLAs Hostel at Bombay or Nagpur. It is admitted by the parties that the respondent-employee has been working at PWD, Rest House, Yavatmal. A fallacious submission made at the time of hearing that as the Government Resolution dated 13/05/1963 is issued by the Building and Communication Department of Government of Maharashtra, it applies to all the employees, to be employed in the P.W.D. Rest Houses throughout Maharashtra. This argument cannot be accepted as the Government Resolution dated 13/05/1963 is very specific that the recruitment rules incorporated in the Government Resolution are for non-gazetted posts in the Majestic Hostel, Bombay and MLAs Hostel at Bombay and Nagpur and the petitioners have not been able to show that the Government Resolution dated 13/05/1963 is made applicable to the employees working at other Rest houses of P.W.D.

7] An attempt is made to show that the State Government has refused to grant exemption for relaxing the qualifications, in the case of the respondent-employee and for this, reliance is placed on the communication issued by the Desk Officer of the Public Works Department of the Government of Maharashtra on 24/10/2011. This communication dated 24/10/2011 nowhere states that for the post of Assistant Manager in the Government

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Rest House at Yavatmal (which is not covered by the Government Resolution dated 13/05/1963), certain qualifications are prescribed and that the respondent-employee is not having those qualifications. This communication dated 24/10/2011 does not refer to the Government Resolution dated 13/05/1963. This communication dated 24/10/2011 is as vague as can be, and shows that it is issued mechanically without considering the facts and without applying mind.

8] I find that there is no dispute about the facts recorded by the Industrial Court and the present petitioners-employer admit that the respondent-employee is working as Assistant Manager since 01/10/1996 and by the Government Resolution dated 18/02/2008, the proposal to treat him as Assistant Manager is sanctioned. The conclusions of the Industrial Court are based on proper appreciation of the evidence on record, and cannot be faulted with. I see no reason to interfere with the impugned order.

The writ petition is dismissed.

I further find that this writ petition is filed without considering whether the order passed by the Industrial Court should be challenged or not and whether the employer has brought any material on record of the Industrial Court to oppose the claim of the employee and that such material is not considered by the Industrial Court. This writ petition should not have been filed. The filing of the writ petition shows the casual approach of the authorities dealing with the matters at the cost of public money.

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Therefore, it is directed that the petitioners-employer shall pay costs of Rs. 25,000/- (Rs. Twenty Five Thousand) to the respondent-employee and produce the receipt of it on record of this Court within three months. It is further directed that this amount of Rs. 25,000/- plus the amount which is spent for prosecuting this writ petition should be recovered from the officer/officers who have recommended / proposed the filing of the petition. This exercise should be completed within three months and the affidavit of compliance shall be filed within three months.

JUDGE

Ansari