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Secretary, Public Works Department, Mantralaya & Others v/s Mohan Jijaba Jadhav & Others

    W.P. No. 10412 of 2018

    Decided On, 27 April 2021

    At, High Court of Judicature at Bombay

    By, THE HONOURABLE MR. JUSTICE N.J. JAMADAR

    For the Petitioners: Y.G. Gujarathi, Assistant Government Pleader. For the Respondents: Uday V. Khonde, Advocate.



Judgment Text

1. Rule. Rule made returnable forthwith and with the consent of the Counsel for the parties, heard finally at the stage of admission.

2. The challenge in this Petition is to the Judgment and Order, dated 7.4.2018 passed by the learned Member, Industrial Court, Aurangabad, in Complaint (ULP) No.10 of 2010, whereby, the learned Member, Industrial Court, Aurangabad was persuaded to allow the Complaint preferred by Respondents No.1 & 2 herein, under the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971, ('M.R.T.U. & P.U.L.P. Act, 1971') and direct the Petitioners herein to pass appropriate orders of promotions of Complainants-Respondents Nos.1 & 2, on the post of 'road-karkoon' and 'road-mukadam', in terms of the proposals forwarded by Petitioners No.2 & 3, to Petitioner No.1 and to pay all consequential benefits, including arrears, if any.

3. The Petition arises in the backdrop of the following facts:

(a) The Respondent No.1/Complainant No.1-Mohan Jadhav, came to be appointed on the establishment of Respondent No.4-Sub Divisional Engineer, Public Works Department, Beed, as a daily rated labourer with effect from 19th October 1985. Respondent No.2/Complainant No.2-Babu Umbre, came to be appointed as daily rated labourer on 13th December 1982. In terms of the 'Kalelkar settlement', the Complainants were brought under the 'converted regular temporary establishment' with effect from 19th October, 1990. Complainant No.1-Mohan Jadhav passed SCC examination. Eventually, Complainant No.1 Mohan Jadhav was entrusted the work of 'road-karkoon'. Complainant No.2-Babu Umbre was also entrusted the work of 'road-mukadam' since 1987. The Complainants were, however, not given the benefit of post as per the work they performed, nor the pay as per the post. The responsible officers of the Employers made various recommendations to promote the Complainants to Class-III posts, as they were possessing necessary qualifications and experience and were also discharging the duties of the post of 'road-karkoon' and 'road-mukadam' respectively.

In the meanwhile, the Government, in Public Works Department, issued a resolution on 29th September 2003, to implement the policy of post as per work and pay as per post. The Government Resolution was issued to give benefit to such Employees who were made to discharge the duties of higher post but were deprived of the post and resultant pay therefor. The Complainants Nos.1 & 2 claimed that they fulfilled the requisite conditions of the said Government Resolution as well. Yet, the Employers failed to grant the benefit of the said resolution, despite favorable reports by the Field Officers. The Employers, however, gave the benefit of the said Government Resolution to similarly circumstanced Employees. Thus, the complainants lodged the Complaint before the Member, Industrial Court, Aurangabad, alleging Unfair Labour Practices.

(b) The Petitioners Nos.3 & 4 herein resisted the Complaint. The substance of the resistance put forth by the Petitioners Nos.3 & 4 was that, there was no material in support of the claim of the Complainants that they worked as 'road-karkoon' and 'road-mukadam' respectively. Both the Complainants were working on Class-IV posts. They were given the benefit of time bound promotion scheme. The proposal submitted by the field officers to give promotional posts to the Complainants was rejected by the Competent Authority, as the Complainants did not fulfill the conditions prescribed in the Government Resolution dated 29th September 2003. The posts of 'road-karkoon' and 'road-mukadam' are now not available, as the execution of the Public Works is through the Contractors.

(c) The learned Member, Industrial Court, after appraisal of the evidence led by the parties and the documents tendered for his perusal was persuaded to enter a finding that the Respondents-Employers-Petitioners herein, committed Unfair Labour Practices under Items Nos.5 & 9 of the schedule IV of the M.R.T.U. and P.U.L.P. Act, 1971, in denying promotion to the Complainants though they were eligible for the same. It was found that the Complainants were, in fact, discharging the duties of the posts of 'road-karkoon' and 'road-mukadam' but they were paid wages of Class-IV posts. After adverting to the Judgment and Order of the Maharashtra Administrative Tribunal, in Original Application No.363 of 2000, preferred by Navnath Eknath Ranjwan and others, who were found to be similarly situated Employees, wherein the Maharashtra Administrative Tribunal, Aurangabad had directed petitioner No. 1 herein, to issue necessary orders of promotion in respect of those Employees, the learned Member, Industrial Court, held that the Respondents-Employers committed discrimination amongst the Employees and thus passed the impugned direction to pass appropriate orders of promotion.

(d) Being aggrieved by and dissatisfied with the impugned Judgment and order, the Petitioners-Employers have invoked the Writ jurisdiction of this Court.

4. I have heard Mr. Y.G. Gujarathi, the learned Assistant Government Pleader for the Petitioners-State and Mr. U.V. Khonde, learned Counsel for Respondents Nos.1 & 2-Complainants.

5. With the assistance of the Counsels for the parties, I have perused the material on record including the Orders passed by the Maharashtra Administrative Tribunal, in Original Application No.363 of 2000 and the Order passed by the Division Bench of this Court in Writ Petition No.9760 of 2010, wherein the order of the Tribunal was assailed.

6. Mr. Gujarathi, the learned Assistant Government Pleader for Petitioners-State, also placed on record the copies of the correspondence, which bear upon the claim of the Complainants. He would urge that the learned Member, Industrial Court, Aurangabad, committed a manifest error in not attaching due weight to the fact that the proposals for granting the benefit under the Government Resolution, dated 29th September 2003, were rejected by the Competent Authority vide communication, dated 20th April, 2010, as the Complainants did not fulfill the requisite criteria. Since the Complainants did not fulfill the eligibility criteria prescribed by the Government Resolution dated 29th September 2003, the Member, Industrial Court, Aurangabad, could not have drawn an inference of discrimination amongst the Employees as the Complainants could not have been said to be similarly circumstanced. It was further submitted that since there are no posts of 'road-karkoon' and 'road-mukadam', the direction to grant promotion to the said posts is wholly unjustifiable.

7. Mr. Gujrathi, learned Assistant Government Pleader for the Petitioners-State was at pains to canvass the submission that though in Original Application No.363 of 2000, the Maharashtra Administrative Tribunal, Aurangabad, had directed the Respondents therein to issue necessary orders for promotion of the Applicants therein to the post of 'road-karkoon' and the Writ Petition preferred there against, being Writ Petition No.9760 of 2010, came to be dismissed by Order, dated 25th November 2010, and the said order was implemented by the Government Resolution dated 13th June 2011, yet the peculiar circumstances in which the Petitioners were constrained to implement the said decision cannot be lost sight of. An effort was made to draw home the point that the Complainants herein cannot draw any mileage from the said Order passed by the Maharashtra Administrative Tribunal.

8. Mr. Khonde, learned Counsel for Respondents Nos.1 & 2, joined the issue by canvassing a submission that the fact that the Complainants are similarly circumstanced Employees is borne out by the order of the Tribunal in Original Application No.363 of 2000. In Para No.6 of the said order, there is specific reference of Complainant No.1 Mohan Jadhav, as one of the Employees whose name was recommended for the promotional post of the 'road-karkoon'. In fact, the Tribunal has passed the said order on the basis of the statement made by a responsible officer of the Public Works Department. That was the reason which persuaded the Division Bench of this Court to summarily reject Writ Petition No.9760 of 2010, preferred by the department. In addition to this, according to Mr. Khonde, learned Counsel for Respondents Nos.1 & 2, there is voluminous record which shows that the Complainants were found eligible for the grant of the benefit under the Government Resolution dated 20th September 2003 and on multiple occasions the proposals were sent for extending the benefit to the Complainants. Thus, the learned Member, Industrial Court, was well within his rights in passing the impugned Judgment and Order, submitted Mr. Khonde.

9. To start with, it may be apposite to note that an identical challenge was the subject matter of Original Application No.363 of 2010 before the Maharashtra Administrative Tribunal Aurangabad. By Order, dated 9th April 2010, the said application came to be allowed with directions to the department to issue necessary orders for the promotion of the four Applicants therein to the posts of 'road-karkoon' and pay them consequential financial benefits in terms of the Government Resolution. Mr. Khonde, the learned Counsel for Respondents Nos.1 & 2 is justified in placing reliance on the observations in Para No.6 of the said order wherein, the name of the Complainant No.1 herein Mr. Mohan Jadhav is specifically mentioned as one of the Employees, who was recommended for promotion to the post of 'road-karkoon'. The Tribunal found that despite the said recommendation, applicants therein were not promoted though similarly circumstanced Employees were given the benefit of promotion. Indisputably, the challenge to the Order passed by the Tribunal was repelled by the Division Bench of this Court in Writ Petition No.9760 of 2010 by Order, dated 25th November 2010.

10. The fact that the Complainants herein were sailing in the same boat is evidenced by the proposal dated 27th November 2007, submitted to the Public Works Department. In the statement annexed to the said proposal, the names of the Complainants herein are mentioned along with three of the Applicants in the Original Application No.363 of 2000. The Complainant No.1-Mohan Jadhav was shown to have been working on the post of 'road-karkoon' and Complainant No.2-Babu Umbre, was shown to have been working on the post of 'road-mukadam'. The endeavour on the part of the department to show that Complainant No.1-Mohan Jadhav was not similarly circumstanced, is also belied by the fact that in the communication, dated 4th September 1999 addressed by the Executive Engineer, Public Works Department, Beed, the name of Complainant No.1-Mohan Jadhav was shown at Serial No.5 of the list of eligible Employees for promotion, being matriculate. The said list included the names of Navnath Eknath Ranjvan, Maharudra Namdeo Salunke and Raosaheb Bhauarao More, the Applicants Nos.1, 2 & 4 in the said Original Application No.363 of 2000. The situation which thus obtains is that the inclusion of name of Complainant No.1-Mohan Jadhav in the order of Maharashtra Administrative Tribunal was on the basis of the proposals submitted by the officers of the department for grant of benefit of promotion.

11. Mr. Gujarathi, learned AGP would urge that eventually the proposal in respect of the Complainants herein came to be rejected by the Competent Authority as they did not fulfill the criteria prescribed in the Government Resolution, dated 29th September 2003. The submission appears attractive at the first blush. However, on close scrutiny, it does not hold much ground. It is imperative to note that even after the communication, dated 28th April 2010, whereby the proposals were allegedly returned, fresh proposals complying with the deficiencies were forwarded on 20th May 2014 and 6th February 2014. In the statement annexed to the proposal, dated 20th May 2014, it is categorically mentioned that the Complainant No.2-Babu Umre, is eligible for the benefit of promotional post.

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r /> 12. It would be suffice to note that there is voluminous material on record which indicates that the Field Officers had consistently and repetitively forwarded the proposals to the Competent Authority to grant the benefit of promotion to the Complainants Nos.1 & 2. It is too late in the day for the Petitioners to deny that the similarly circumstanced Employees were given the benefit of promotion. In any event, from the perusal of the documents on record, it appears that on account of grant of Pay Scale under time bound promotional scheme, the Complainants would have been entitled to an additional grade pay of Rs.200 in the event they are posted on the promotional posts. 13. In the aforesaid view of the matter, the learned Member, Industrial Court, does not seem to have committed any error in recording a finding that the department committed discrimination amongst the Employees. The impugned Judgment and order, thus, does not warrant any interference. Even otherwise, having regard to the nature of the relief granted by the learned Member, Industrial Court, no interference is warranted in exercise of extra-ordinary Writ jurisdiction. 14. The Petition, therefore, deserves to be dismissed. 15. Hence, the following order: ORDER: Petition stands dismissed. No costs. Rule discharged.
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