Eknath Balu Jadhav vs Chief Engineer, Kolhapur Zone , ...
2023 Latest Caselaw 2427 Bom

                                                                      18-WP371-2020.DOC

                                                                                  Santosh
                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CIVIL APPELLATE JURISDICTION


                                       WRIT PETITION NO. 371 OF 2020
SANTOSH
SUBHASH
KULKARNI                   Eknath Balu Jadhav                              ...Petitioner
Digitally signed by
SANTOSH SUBHASH
                                              Versus
                      1    Chief Engineer, Kolhapur Zone,
KULKARNI
Date: 2023.03.17
18:57:20 +0530

                           Maharashtra State Electricity
                           Distribution Co. Ltd., Vidyut Bhavan,
                           Tarabai Park, Kolhapur
                      2    Superintending Engineer, Kolhapur
                           Circle, Maharashtra State Electricity
                           Distribution Co. Ltd., 1st Floor, Vidyut
                           Bhavan, Tarabai Park, Kolhapur
                      3    Executive Engineer (HR), Maharashtra
                           State Electricity Distribution Co. Ltd.,
                           Vidyut Bhavan, Tarabai Park, Kolhapur
                      4    Executive Director (HR), Maharashtra
                           State Electricity Distribution Co. Ltd.,
                           Prakashgadh, Bandra (E), Mumbai
                                                                       ...Respondents


                      Mr. Abhijeet Joshi, i/b Dattatraya Kulkarni, for the Petitioner.
                      Mr. Abhishek Khare, a/w R. P. Shirole, i/b Khare Legal
                           Chambers, for Respondent Nos.1 to 3.

                                                    CORAM:      N. J. JAMADAR, J.

                                                    DATED :     14th MARCH, 2023
                      JUDGMENT:-

1. Rule. Rule made returnable forthwith and with the

Consent of the learned Counsel for the parties heard finally.

2. This petition under Article 227 of the Constitution of India

is preferred to question the legality, propriety and correctness of

the judgment and order dated 14th September, 2018 passed by

18-WP371-2020.DOC

Industrial Court No.2, Kolhapur, in Company (ULP) No. 165 of

2015, whereby the complaint, alleging unfair labour practices

within the meaning of Items 3, 5, 9 and 10 of Schedule IV of the

the Maharashtra Recognition of Trade Union and Prevention of

Unfair Labour Practices Act, 1971 ("the MRTU & PULP Act"),

came to be dismissed.

3. Shorn of superfluities the background facts can be stated

as under:

(a) On 1st June, 1994, the petitioner was appointed as

an Artisan (Meter Reader) in the technical cadre of the then

Maharashtra State Electricity Board ("MSEB"). On 6th June,

2005 the MSEB was trifurcated and Maharashtra State

Electricity Distribution Company Limited was created. During

the period 9th April, 2008 to 9th May, 2010 despite the petitioner

being in the technical cadre, the petitioner was entrusted

administrate duties of Upper Division Clerk (UDC). Vide

Circular dated 30th May, 2011, the nomenclature of the post of

Artisan A/B/C (Meter Readers) was changed to Assistant

Machine Operator.

(b) On 21st October, 2011 vide internal notification the

respondent proposed to fill up the vacancies of Lower Division

Clerks (LDC)/Office Assistant from amongst the departmental

18-WP371-2020.DOC

employees (Pay Grade-IV) working in technical and non-

technical branches. On 31st October, 2011, the petitioner

applied in accordance with the prescribed norms. The

petitioner was placed at Serial No.129 of the candidates

shortlisted for the written test. The petitioner appeared in the

written examination held on 15th January, 2012 and

successfully cleared the same. The petitioner was included in

the final select list and was allotted Kolhapur Zone.

(c) The petitioner was, however, not given appointment

to the said post. Eventually vide letter dated 13 th July, 2012 the

Superintending Engineer, Kolhapur Circle - Respondent No.2

informed the plaintiff that since the petitioner was holding a

Grade-III post he was not appointed despite selection.

(d) The petitioner obtained information under Right to

Information Act, 2005. It transpired that the respondents

indulged in unfair labour practice in declining to appoint the

petitioner despite his selection. Hence, the petitioner lodged

Complaint (ULP) No.165 of 2015 for the unfair labour practices

within the meaning of Items 3, 5, 9 and 10 of Schedule IV of the

MRTU & PULP Act.

(e) After appraisal of the evidence, the learned Member,

Industrial Court, was persuaded to dismiss the complaint

18-WP371-2020.DOC

opining, inter alia, that no unfair labour practice was made out,

as alleged by the petitioner.

4. Being aggrieved the petitioner has invoked the writ

jurisdiction of this Court.

5. I have heard Mr. Joshi, the learned Counsel for the

petitioner and Mr. Khare, the learned Counsel for respondent

Nos.1 to 3, at some length. Perused the material on record

including the impugned judgment and order.

6. Mr. Joshi fairly submitted that in the context of the facts

borne out by the record, unfair labour practices within the

meaning of Item 5 of Schedule IV only would be an issue for

consideration. Amplifying this submission, Mr. Joshi

strenuously submitted that the material on record indicates

that the respondents had shown favouritism or partiality to a

set of workers to the prejudice of the petitioner and thus the

practice fell within the dragnet of unfair labour practice

prescribed by Item 5.

7. Mr. Joshi further submitted that the learned Member,

Industrial Court, was in error in negativing the aforesaid claim

of the petitioner on untenable grounds. Non-examination of the

employees namely Mahire Pramod Fakira, Vitthal Kashinath

Mukane and Ganpati Bapu Kamble, who were allegedly

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appointed despite working in Grade-III, was unjustifiably

arrayed against the petitioner. The said fact was established

by the very documents issued by the the respondents; veracity

of which was unquestionable. In the circumstances, the unfair

labour practice was writ large in appointing similar

circumstanced employees to the post of LDC on the

administrative side and denying the said dispensation to the

petitioner. Mr. Joshi invited the attention of the Court the

internal recruitment Notification dated 2nd November, 2010

furnished under Right to Information Act on 14 th January, 2015.

The name of Mr. Mahire Pramod Fakira finds mention at Item

13. His designation before appointment is shown Junior

Machine Operator. Reliance was also placed on another

communication which shows that Shridhar Bhagwan Kamble

and Vitthal Kashinath Mukane were also working as

Technicians and Senior Technicians, respectively before their

appointment as LDC.

8. I have given careful consideration to the aforesaid

submissions. The premise on which the petitioner was not

appointed to the post of LDC was that the petitioner was from a

technician cadre. According to the respondents, the

appointment to the post of LDC from Group-IV employees was to

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be made from those employees in the non-technical cadre.

Indisputably, the petitioner was included in the list of

candidates shortlisted for the written examination. The

petitioner was included in the select list.

9. Without delving into the reasons which weighed with the

learned Member, Industrial Court, it would be suffice to note

that it is not the case of the petitioner that any of the persons,

who were included in the select list and were also from the

technical cadre were appointed as LDC. It would thus be

difficult to accede to the submission that the respondents had

shown favouritism or partiality to another workman or set of

workmen.

10. Mr. Joshi attempted to salvage the position by canvassing

a submission that in the preceding and succeeding selection

processes, persons from technical cadre were appointed to the

post of LDC. I am afraid to accede to this submission for the

reason that the favouritism or partiality has to be judged in the

context of similarly circumstanced workmen.

11. The conspectus of the aforesaid discussion is that no

interference is warranted in exercise of extraordinary writ

jurisdiction.

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12. Hence, the petition stands dismissed.

13. No order as to costs.

Rule stands discharged.

[N. J. JAMADAR, J.]