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Premchand Ambadas Hanswar v/s The State of Maharashtra, through the Deputy Director of Health Services, Akola


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Company & Directors' Information:- I V HEALTH SERVICES (INDIA) PRIVATE LIMITED [Strike Off] CIN = U85100KA2010PTC056356

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    Writ Petition No. 4856 of 2017

    Decided On, 28 January 2020

    At, In the High Court of Bombay at Nagpur

    By, THE HONOURABLE MR. JUSTICE RAVINDRA V. GHUGE

    For the Petitioner: S.G. Loney, Advocate. For the Respondent: R1 & R2, A.M. Kadukar, A.G.P.



Judgment Text


Oral Judgment:

1. Rule. Rule made returnable forthwith and heard finally by the consent of the parties.

2. The petitioner, original complainant, in Complaint (ULP) No.3/2012 is aggrieved by the judgment dated 21.3.2017 delivered by the Industrial Court, Amravati by which, his complaint seeking correction in the seniority list, has been rejected.

3. I have considered the strenuous submissions of the learned Advocate for the petitioner and the learned A.G.P. and have perused the petition paper book and the record available, with their assistance.

4. The undisputed factors can be summarized as under:

(a) The petitioner was appointed as a daily wager on 18.9.1986.

(b) He was discontinued on 6.10.1988. No challenge.

(c) An advertisement was published for recruiting Kaksha Sevak and pursuant to such advertisement, the petitioner applied and faced the interview.

(d) A seniority list was prepared in 1993 and the petitioner was placed at serial No.1 in the O.B.C. category. There were three posts available in the said category.

(e) Some of the candidates from the open category were appointed as Kaksha Sevak on 22.4.1993.

(f) The petitioner claimed to have been overlooked and ignored by the respondent - Appointing Authority and, therefore, preferred Complaint (ULP) No.45/1995 seeking a declaration of unfair labour practice against the respondents under Items 5 and 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. Further prayers were also set out in prayer clauses (a), (b) and (c) which read as under:-

“a) It be declared that the respondents have engaged in unfair labour practice under Items 5 and 9 of Schedule IV of the MRTU & PULP Act.

b) The respondents be directed to reinstate the complainant at this former post with continuity of services and pay his full back wages from the date of termination.

(c) Alternatively, the complainant prays that respondents should appoint him as per the selection on the post of Kaksha Sevak from the date when junior to him were appointed by the respondents and to pay him full back wages.”

(g) The Industrial Court delivered it’s judgment on 22.7.2008 concluding that the petitioner was entitled to an appointment as Kaksha Sevak and by declaring unfair labour practice under Item 5 of Schedule IV against the employer, granted the relief of absorption in the Class-IV cadre on the post of Kaksha Sevak and the respondent was directed to issue an appointment order within a period of three months.

(h) The respondent approached this Court in Writ Petition No.4189/2010 and by order dated 9.12.2010, the judgment of the Industrial Court was sustained and the respondent was directed to issue an appointment order of Kaksha Sevak (Ward Boy) by relying upon the select list.

(i) Pursuant to the above, the petitioner was issued with an appointment order dated 16.6.2011.

(j) The petitioner then preferred Complaint (ULP) No.3/2012 before the Industrial Court and claimed that persons lower in the select list at serial Nos.5 and 9 from the open category were appointed on 22.4.1993 and hence, the petitioner’s seniority be reckoned with from the date of such appointment.

(k) In Complaint (ULP) No.3/2012, the petitioner had put-forth prayer clauses (c) and (d) as under:-

“(C) To give positive directions / orders to the respondent to correct the seniority list of Class IV “Kaksha Sewaks” by keeping the name of the complainant at appropriate place.

(D) To direct the respondent to pay all the salaries benefits, allowances, increments, other consequential benefits, bonus, pay commission recommendation, arrears, etc. to the complainant with effect from 22-4-93 along with 12 percent penal interest till full realisation.”

(l) By the impugned judgment dated 21.3.2017, Complaint (ULP) No.3/2012 has been dismissed.

5. The learned Advocate for the petitioner submits that the select list dates back to 1993. The candidates from the open category were appointed on 22.4.1993 and the petitioner had to litigate. His appointment order dated 16.6.2011 should relate back to his inclusion in the select list prepared in February 1993. Alternatively, it is prayed that he be placed above the two candidates at serial Nos.5 and 9 from the open category mentioned in the said select list, as they were appointed on 22.4.1993.

6. The learned A.G.P. submits that the petitioner had specifically put-forth a prayer at clause (c) in Complaint (ULP) No.45/1995 that his appointment should be from the date when the candidates from the open category were appointed and he should be granted continuity in service and full back wages from the said date which is 22.4.1993. He submits that the said relief was refused by the Industrial Court vide judgment dated 22.7.2008. The petitioner did not challenge the said refusal and was happy with the judgment of the Industrial Court dated 22.7.2008 by which the respondents were directed to issue an appointment order. As the petitioner has accepted the said judgment of the Industrial Court and though the respondents had challenged the said judgment, the petitioner chose to accept the said verdict. The petition filed by the respondents was dismissed by the order of this Court dated 9.12.2010. Seeking a similar relief with change in language would mean that the petitioner is repeating the complaint. He had prayed for directions before the Industrial Court to correct the seniority list and had sought all incidental consequential reliefs from 22.4.1993, which were denied.

7. I find from the record that Complaint (ULP) No.45/1995 was entertained by the Industrial Court even before any notional employer - employee relationship was developed with him, much less a regular relationship. The relief sought by the petitioner i.e. his appointment should be deemed to be reinstatement in service and should date back to the appointments of the open category candidates on 22.4.1993 and all benefits be granted to him, was not granted by the Industrial Court. It is settled law that if prayers put-forth are not granted by the Court, unless liberty to re-agitate on the same is made available, it would amount to refusing the said relief. Once such a relief is refused by the Industrial Court and the petitioner chose not to challenge the same before the High Court though the management had approached the High Court, would indicate that he had accepted the verdict of the Industrial Court dated 22.7.2008 and the same has, therefore, attained finality.

8. In my view, reliefs of similar nature with a change in language put-forth in the subsequent Complaint (ULP) No.3/2012, could not have been entertained by the Industrial Court and the said complaint was, therefore, rightly rejected.

9. Even while considering the strenuou

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s submissions of the learned Advocate for the petitioner, I find that neither the Industrial Court nor this Court, in the first round of litigation, issued any directions that the petitioner should be appointed w.e.f. 22.4.1993, despite a specific prayer having been made by him. It, therefore, amounts to refusal by this Court and the Industrial Court in granting such a relief. The second Complaint (ULP) No.3/2012, therefore, could not have been entertained. 10. In this backdrop, it would be impermissible for this Court to conclude that the said appointment would relate back to the date of appointment of the open category candidates on 22.4.1993. 11. In view of the above, this petition being devoid of merits is, therefore, dismissed. Rule is discharged.
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