Bombay High Court
The Divisional Controller Through ... vs Vasant Bajirao Pawar on 2 September, 2025
2025:BHC-OS:14397
Neeta Sawant 21-WP-4105-2022 (OS).docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 4105 OF 2022
The Divisional Controller Through
Maharashtra State Road Transport
Corporation (MSRTC) and anr. .....Petitioners
: Versus :
Vasant Bajirao Pawar ....Respondent
Mr. Yashodeep Deshmukh with Ms. Vaidehi Pradeep, for the Petitioner.
CORAM : SANDEEP V. MARNE, J.
DATED : 2 SEPTEMBER 2025.
ORAL ORDER :
1) By this petition, Petitioner-MSRTC has challenged
judgment and order dated 6 December 2021 passed by the Member,
Industrial Court, Mumbai by which Complaint (ULP) No. 314/2018
filed by the Respondent has been allowed and the Petitioner is
directed to allow the Respondent to resume work as Security
Guard at the Security Department alongwith 50% backwages.
Petitioner is granted liberty to deploy the Respondent as Driver in
the event of he being declared fit to work as Driver only after
medical re-examination.
_____________________________________________________________________________
Tuesday, 2 September 2025
Neeta Sawant 21-WP-4105-2022 (OS).docx
2) Brief facts leading to filing of the petition are as under :
Respondent joined the services of the Petitioners on the post
of Driver in December 1996. Initially, he was posted at Uran Depot.
He was later transferred to Parel Depot. It appears that the
Respondent was sent for vision test in the year 2012 where he was
apparently detected with colour vision defect. On
5 December 2012, medical report of the Respondent was received
by the Petitioner-Employer. Acting on the said medical report, the
Petitioner-Employer removed the name of the Respondent from the
muster roll as Driver on 13 December 2012 and offered him
alternate employment as Security Guard by granting him unpaid
leave for a period of 4 months. In March 2013, Respondent was
transferred to the Security Department by protecting his pay on the
post of Driver. It appears that the Petitioner-Corporation detected
several similar cases where Drivers were declared medically unfit
in vision test and were avoiding to perform the duties of Driver.
Therefore, a Circular dated 29 July 2016 was issued instructing all
the erstwhile Drivers, who were suffering from colour vision defect,
to get themselves medically re-examined. It appears that few days
prior to the issuance of Circular dated 29 July 2016, the Respondent
voluntarily got himself medically examined at Sir J. J. Group of
Hospitals on 13 July 2016. He was declared fit to work as Driver. On
account of Respondent's fitness to work as Driver, it appears that
he was not allowed to work as Security Guard. Respondent treated
this as his termination and accordingly approached Labour Court
by filing Complaint (ULP) No. 314/2018. By the impugned judgment
and order dated 6 December 2021, the Industrial Court has directed
_____________________________________________________________________________
Tuesday, 2 September 2025
Neeta Sawant 21-WP-4105-2022 (OS).docx
Petitioners to permit the Respondent to resume his duties as
Security Guard alongwith 50% backwages. Liberty is however
granted to the Petitioner-Corporation to engage the Respondent as
Driver after subjecting him to medical examination as per the
Circular dated 29 July 2016.
3) Aggrieved by the judgment and order dated
6 December 2021, the Petitioners have filed the present petition.
4) By order dated 20 September 2022, this Court issued
notice to the Respondent and stayed the judgment and order dated
6 December 2021. Despite service of notice, Respondent failed to
appear before the Court. Therefore, by order dated 8 March 2024,
this Court issued fresh notice of final hearing. Even the fresh
notice for final hearing appears to have been served on the
Respondent on 30 March 2024. However, the Respondent has
chosen not to appear before this Court despite service of two court
notices. Accordingly, I have proceeded to hear the petition in the
absence of any appearance on the part of the Respondent.
5) Mr. Deshmukh, the learned counsel appearing for the
Petitioner-Corporation would submit that the Industrial Court has
grossly erred in allowing the complaint filed by the Respondent.
That the Respondent was not willing to get himself medically
examined as he was unwilling to work as Driver. He would submit
that the Industrial Court has proceeded to grant relief in favour of
the Respondent only on account of absence of any written
directives for undergoing medical re-examination. That the
_____________________________________________________________________________
Tuesday, 2 September 2025
Neeta Sawant 21-WP-4105-2022 (OS).docx
resignation letter dated 6 October 2016 shows that the Respondent
had received intimation for medical examination and had
undergone the same. That therefore insistence of the Industrial
Court on written intimation for re-medical examination is clearly
erroneous. That the Industrial Court has completely ignored the
aspect of resignation tendered by the Respondent. He would
however submit that after ordering reinstatement, the Industrial
Court has itself directed conduct of medical re-examination of the
Respondent for the purpose of his redeployment on the post of
Driver. He would submit that if fresh medical examination can be
conducted as a result of the judgment and order dated
6 December 2021, the Industrial Court could not have found any
fault in the action of the Petitioner-Corporation in directing fresh
medical examination of the Respondent in the year 2016. He would
accordingly pray for setting aside the impugned order passed by
the Industrial Court.
6) I have considered the submissions canvassed by
Mr. Deshmukh. I have also gone through the reasonings adopted
by the Industrial Court in the impugned judgment and order dated
6 December 2021. I have also perused the records of the case filed
alongwith the petition.
7) It is seen that the Petitioner-Corporation had come
across several cases where Drivers were getting themselves
medically unfit in a vision test for the purpose of avoiding
performance of arduous duties of Driver. Several such Drivers were
apparently offered alternate jobs in the Security Department while
_____________________________________________________________________________
Tuesday, 2 September 2025
Neeta Sawant 21-WP-4105-2022 (OS).docx
protecting their pay and other service conditions on the post of
Driver. Even Respondent had secured cerificate of unfitness from a
Hospital at Parel. In order to curb the tendency amongst the
Drivers to get themselves appointed as Security Guards while
earning wages of Drivers, Circular dated 29 July 2016 was issued
directing conduct of fresh medical examination of all such
erstwhile Drivers through a Medical Board at J. J. Hospital who
were offered alternate job as Security Guards. In anticipation of
Circular dated 29 July 2016, the Respondent voluntarily opted for
medical re-examination on 13 July 2016 at Sir J. J. Group of
Hospitals. There is no dispute to the position that in such fresh
medical examination, Respondent was adjudged fit to work as
Driver. A report to this effect has been issued by the Medical Board
at Sir J. J. Group of Hospitals. There is thus no dispute to the
position that the initial medical examination certificate produced
by the Respondent declaring him as medically unfit to work as
Driver on account of colour vision defect was erroneous. The
Medical Board of Sir J. J. Group of Hospitals has certified that the
Respondent was fit to work as Driver.
8) The Industrial Court has however found fault with the
conduct of the Petitioner-Corporation in giving oral directives to
the Respondent for the purpose of conduct of medical re-
examination. While in ordinary circumstances, the Petitioner-
Corporation ought to have issued written instructions to the
Respondent for conduct of fresh medical examination in pursuance
of Circular dated 29 July 2016, what is ignored altogether by the
Industrial Court is the fact that the Respondent had volunteered
_____________________________________________________________________________
Tuesday, 2 September 2025
Neeta Sawant 21-WP-4105-2022 (OS).docx
himself for such medical re-examination and had appeared before
the Medical Board of Sir J. J. Group of Hospitals, which has certified
him as fit for performing the duties of Driver. This conduct of the
Respondent obviated the need for issuance of written intimation
for fresh medical examination.
9) The learned Member of the Industrial Court has
recorded a finding that the Petitioner-Corporation did not issue
any written order withdrawing the alternate employment offered to
the Respondent on the post of Security Guard. It is on this ground
that the Industrial Court has directed Petitioner-Corporation to
permit the Respondent to resume his duties as Security Guard.
However, what is ignored by the Industrial Court is the fact that
the Respondent was unwilling to work as Driver and had tendered
his resignation on 6 October 2016. The resignation letter reads
thus :-
Shri Vasant Bajirao Pawar
Security Guard, ST
Depot
Date: 6/10/2016
To
Hon. Divisional Controller Sir
ST Mumbai Division
Vidhyavihar Mumbai
Through
Hon. Depot Manager ST Parel Depot)
Subject: For acceptance of resignation
_____________________________________________________________________________
Tuesday, 2 September 2025
Neeta Sawant 21-WP-4105-2022 (OS).docx
Respected Sir,
I was in the post of Driver since last 20 years at ST Parel Depot. You
sent me to Khan Bahadur Haji Bachchu Ali Charitable Hospital,
Parel, for eye testing, upon showing eye deficiency in its medical
report, declared me unfit for driver post and terminated from services
from 13/12/2012. After that by again tested from Civil Hospital, Thane
taken me on security guard post. Accordingly I was doing job of
security guard for the corporation since last four years. You had sent
me for eye testing at Sir J. J. Hospital and its report has been received
at your end.
After done job of security guard for three and half to four years
worked from seating at one place and now I don't have state of mind
to do the driver job again. I will not be able to do job of driver and not
ready mentally for the same. Hence sir, please accept my resignation
from the employment of ST services from dt. 6/11/2016.
Such is humble request.
Be informed
Sd/-
10) Perusal of the cross-examination of the Respondent
indicates that he has admitted tendering of resignation on account
of he not being in the state of mind to work as a Driver. The
Industrial Court has altogether ignored the act of the Respondent
in tendering resignation on account of his unwillingness to work
as a Driver. Respondent had not challenged the Circular dated
29 July 2016 nor had refused to undergo fresh medical examination.
He did not approach the Industrial Court with a case that the
Petitioner-Corporation had no authority to change the cadre from
Security Guard to Driver. The Petitioner-Corporation was bearing
salary burden of Driver while extracting duties of a Security Guard
from Respondent. The Respondent, far from questioning the act of
_____________________________________________________________________________
Tuesday, 2 September 2025
Neeta Sawant 21-WP-4105-2022 (OS).docx
Petitioner in issuing Circular dated 29 July 2016, acted in
pursuance thereof and underwent fresh medical examination.
After realising that he will have to work as Driver, he tendered his
resignation on 6 October 2016. The learned Member of the
Industrial Court has thus ignored one of the most vital piece of
evidence available on record and in that sense, the impugned
judgment and order passed by the Industrial Court suffers from the
vice of perversity. What the learned Member has ignored is the
fact that the Respondent was not willing to work as a Driver. If the
Industrial Court had taken this aspect into consideration, it would
not have directed the Petitioner-Corporation to reinstate the
Respondent on the post of Security Guard with further liberty to
deploy him as a Driver upon conduct of fresh medical examination.
The order passed by the Industrial Court results in a situation
where the Respondent would earn 50% backwages from
1 October 2018 till he is subjected to fresh medical examination
and deployed as Driver when he would again express his
unwillingness to work as Driver.
11) At the same time, Petitioner is at fault in not
communicating acceptance of resignation to the Respondent.
There ought to have been a legal cessation of services of
Respondent and the Petitioner was not justified in simply refusing
the Respondent from attending duties. The Respondent is not
willing to work as Driver. If he is reinstated in service, the
Petitioner will again subject him for medical examination and
deploy him as Driver. In such circumstances, it would be
appropriate to treat the resignation of Respondent being accepted
_____________________________________________________________________________
Tuesday, 2 September 2025
Neeta Sawant 21-WP-4105-2022 (OS).docx
so that he is paid all the service related benefits in respect of his
past services till the date of resignation. Since what was payable
in 2016 is being paid now, it would b appropriate to award simple
interest at the rate of 6% on the benefits payable to the
Respondent.
12) Considering the above position, in my view, the
impugned judgment and order passed by the learned Member of
the Industrial Court is clearly unsustainable and liable to be set
aside. Instead it would be appropriate to treat the Respondent as
having been resigned from service w.e.f. 6 October 2016.
13) The petition accordingly succeeds partly and I proceed
to pass the following order :-
i. The judgment and order dated 6 December 2021 passed by
the Member, Industrial Court, Mumbai in Complaint (ULP)
No.314/2018 is set aside.
ii. Respondent shall be treated to have resigned from
services of Petitioner w.e.f. 6 October 2016.
iii. The Petitioner-Corporation shall accordingly pay all the
service related benefits to the Respondent in respect of
the past services rendered by him till 6 October 2016
alongwith simple interest at the rate of 6% p.a. from
6 October 2016 till the date of payment.
_____________________________________________________________________________
Tuesday, 2 September 2025
Neeta Sawant 21-WP-4105-2022 (OS).docx
iv. All the payments shall be released in favour of the
Respondent within a period of 3 months.
14) With the above directions, the petition is partly
allowed. There shall be no order as to costs.
Digitally [SANDEEP V. MARNE, J.]
signed by
NEETA
NEETA SHAILESH
SHAILESH SAWANT
SAWANT Date:
2025.09.03
17:42:01
+0530
_____________________________________________________________________________
Tuesday, 2 September 2025
