Pandurang Namdeo Waghmare vs Maharashtra State Road Transport ...
2021 Latest Caselaw 15223 Bom

                                                                             962.WP.9747.21.odt


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD

                            WRIT PETITION NO.9747 OF 2021
                                         WITH
                           CIVIL APPLICATION NO.10812/2021
                                           IN
                            WRIT PETITION NO.9747 OF 2021


Pandurang Namdeo Waghmare,
Age : 40 years, Occu: Clerk,
R/o. Charwak Darshan, Sainikpuri,
Kapil Nagar, Latur.                                              ... PETITIONER

     VERSUS
1)   Maharashtra State Road Transport
     Corporation [MSRTC],
     through its Labour Officer,
     Latur Divisional Office,
     Ambejogai Road, Latur.
2)   Maharashtra State Road Transport
     Corporation [MSRTC],
     through its Divisional Controller,
     Latur Divisional Office,
     Ambejogai Road, Latur.                         ... RESPONDENTS
                                     ...
   Advocate for Petitioner : Mr. Bhagwan V. Gawali a/w Mr. B.J. Kamble
              AGP for Respondent/State : Mr. Y.G. Gujarathi
              Advocate for respondent No.2 : Mr. S.S. Rathi
                                     ...
                          CORAM            : MANGESH S. PATIL, J.
                                    Reserved on     : 21.10.2021
                                    Pronounced on   : 25.10.2021

JUDGMENT :

Heard. Rule. The Rule is made returnable forthwith. The

learned advocate Mr. Rathi waives service for both the respondents. At the

the request of the parties, the matter is heard finally at the stage of

admission.

962.WP.9747.21.odt

2. The facts which are relevant for the decision of the Writ Petition

and regarding which there is no dispute between the parties are to the

following effect :

i. The petitioner is serving in a clerical grade with the

respondent No.1 Corporation and was posted in the

Divisional Office at Latur. He was served with an official

communication dated 31.05.2021 asking him to give three

options for transfer by making a reference to some internal

confidential correspondence between the respondents inter

se.

ii. He filed complaint ULP No.74/2021 under Section 28 of the

Maharashtra Recognition of Trade Unions and Prevention of

Unfair Labour Practices Act, 1971 (herein after the PULP Act).

By the order dated 21.06.2021 the Industrial Court granted

him interim relief holding that there was a prima facie case in

his favour and he would be put to irreparable loss and

inconvenience if he was transferred. The respondents were

directed not to initiate his transfer pursuant to the

communication dated 31.05.2021 till decision of the main

complaint.

iii. On 02.06.2021 the respondent No.2 issued a transfer order

and the respondent No.1 also issued relieving order.

iv. He then filed a second complaint bearing ULP No.79/2021

962.WP.9747.21.odt

under Section 28 of the PULP Act. On 14.07.2021 he

withdrew it.

v. He filed an Application (Exhibit U-14) under Section 30(2)

read with Section 32 of the PULP Act in the first complaint.

He prayed to stay the effect of the transfer order dated

22.06.2021 and the relieving order issued by the respondent

No.1. He also sought declaration that the respondents have

indulged in unfair labour practice and further claimed

direction restraining them from resorting to unfair labour

practice.

vi. The respondents contested that Application by filing say.

They denied to have committed any unfair labour practice.

They contended that after passing of the interim order on

21.06.2021 the communication dated 31.05.2021 was

withdrawn and the complaint itself had become infructuous.

They also raised objection to the maintainability of the

Application under Section 30(2) read with Section 32.

vii. After hearing both the sides, by the order which is impugned

in this Writ Petition, the learned Member of the Industrial

Court rejected the Application (Exhibit U-14).

3. There is no dispute about the fact that the relation between the

parties as far as the transfer is concerned is regulated by the regulation

No.5/2014 dated 03.05.2014. The petitioner comes under Class-III

962.WP.9747.21.odt

category. Regulation 8 contains several provisions touching the aspect of

transfer on administrative ground. As per Clause (C), tenure of a Class-III

employee in the ordinary course has to be six years. After first three years

his duties can be changed. After completion of further period of three years

on such changed position he can be transferred in the same department to

some other branch or depot in the month of March. As per Clause E(2) in

exceptional circumstances or for special reasons or on account of some

complaint if the competent authority is satisfied that an employee is to be

transferred he can do so by recording reasons in writing and with the prior

permission of his immediate superior.

4. According to the respondents it is pursuant to such enabling

clause that the respondent No.1 has passed the impugned order transferring

the petitioner. It is quite clear that this provision regulates the powers of the

respondents to effect a transfer under exceptional circumstances by

following the requisite procedure. A bare perusal of the order of transfer

dated 22.06.2021 reveals that with a bald two word reasoning that "for

administrative reasons" the petitioner has been directed to be transferred.

The order has been issued by the respondent No.1. It does not refer to the

reasons as is required by the aforementioned regulation 8(E)(2). It also

does not mention that it was being issued with the approval of immediate

superior of the respondent No.1.

5. Considering the fact that it is only under exceptional

circumstances that the respondents had sought to transfer the petitioner, it

962.WP.9747.21.odt

was imperative for them to have come out with such exceptional

circumstances which compelled them to effect the transfer. When their

powers have been regulated by this provision, it was expected of them to

have resorted to invoke such power strictly in accordance with the

regulation.

6. Precisely for this reason, apart from several other factors, the

impugned order of transfer prima facie is not sustainable in law and

demonstrates arbitrary and capricious exercise of powers, more so in the

backdrop of all the attending circumstances mentioned herein above leading

to the passing of this order. To repeat, the petitioner had already filed a

complaint under Section 28 of the PULP Act, an interim relief was granted in

his favour on the previous day and on the very next day the transfer order

was passed and the earlier communication which was challenged in the

complaint dated 31.05.2021 was withdrawn. The sequence of events clearly

demonstrates that respondents were bent upon to transfer the petitioner and

in the process have not cared to follow the regulation which governed their

power. Therefore the impugned transfer order prima facie being arbitrary

and capricious deserves to be stayed. The learned Member of the Industrial

Court does not seem to have borne in mind all the above aforementioned

clinching circumstances.

7. Some capital was tried to be made on behalf of the respondents

of the fact that the petitioner initially filed a second complaint under Section

28 bearing ULP No.79/2021, withdrew it without seeking any liberty and

962.WP.9747.21.odt

then resorted to the present Application (Exhibit U-14). The learned

advocate Mr. Rathi on their behalf strenuously submitted that in view of

such state of affairs, the Application itself was not maintainable under

Section 30(2) read with Section 32 of the PULP Act.

8. Per contra, the learned advocate for the petitioner referring to

the decision in the case of National General Mazdoor Union, Thane and

Nitin Casting, Ltd. and Ors.; 1991 (1) Bom.C.R. 8, which is subsequently

referred to with approval in the case of Blue Star Limited Vs. Blue Star

Workers Union and Anr.; (1998) 1 Bom. C.R. 277 submitted that since

already the Industrial Court had recorded prima facie finding while granting

interim relief to the petitioner that the respondents had engaged in unfair

labour practice, their subsequent conduct in passing the impugned order of

transfer is indeed an order which calls for exercise of powers by the same

court under Section 32 since the dispute which now arises is incidental to

the earlier dispute.

9. True it is that as laid down in the aforementioned decisions, the

Industrial Court is not empowered to enlarge the jurisdiction while

exercising the power under Section 32 of the PULP Act. However, the

peculiar facts and circumstances and the sequence of events mentioned

herein above clearly indicate that the dispute which now is presented before

us is nothing but a question which is incidental to the main dispute in

respect of which the Industrial Court had already granted interim relief in

favour of the petitioner regarding a prima facie finding about the

962.WP.9747.21.odt

respondents having engaged in unfair labour practice. Therefore, in my

considered view, there is no substance in the submission of the learned

advocate Mr. Rathi that the Application (Exhibit U-14) on which the

impugned order is passed is not maintainable.

10. The learned advocate Mr. Rathi then made another attempt to

oppose the Writ Petition by pointing out that pursuant to the order of

transfer the petitioner has already been relieved. The learned advocate for

the petitioner pointed out that unlike the practice that is being followed

while relieving the employees by the respondents, it is only on papers that

prima facie the respondent have directed the petitioner to be relieved,

without there being any formal handing over the charge.

11. Besides once it is found that prima facie the respondents have

resorted to an unfair labour practice and have again indulged in a similar

practice in issuing the impugned order of transfer, in my considered view,

they cannot be allowed to now resort to any such argument of the matter

having become infructuous.

12. Overlooking all the aforementioned facts and circumstances, the

learned Member of the Industrial Court has rejected the Application (Exhibit

U-14). The order is clearly perverse and arbitrary. It clearly demonstrates

that he has refused to exercise the jurisdiction vested in him and is

apparently swayed away by the fact that the communication dated

31.05.2021 was subsequently withdrawn and it is thereafter that the order

of transfer was effected on administrative ground. Though Clause E(2) was

962.WP.9747.21.odt

brought to his notice he failed to appreciate the facts and circumstances

under which that Clause can be invoked.

13. The Writ Petition is allowed. The impugned order of transfer

dated 22.06.2021 is quashed and set aside. The respondent shall now allow

the petitioner to resume the duties in the same place of posting.

14. It is made clear that the observations made herein above, are

confined to the decision of the present Writ Petition.

15. The Civil Application No.10812/2021 is disposed of.

(MANGESH S. PATIL, J.)

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