Writ Petition No.761 of 2002

10th December, 2009

Petitioner Counsel: Shri. S. B. AHIRKAR
Respondent Counsel: Shri. VIKRAM MARPAKWAR

JUDGMENT

JUDGMENT :- By this petition, the petitioners, the State of Maharashtra & others, impugn the order passed by the Industrial Court, Nagpur on 23.07.2001 holding that the petitioners had engaged in unfair labour practices under Item 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act for not taking any steps for regularisation of respondent's absence from duty for the period from 01.09.1984 to 22.09.1985. The petitioners were directed to regularise the respondent's absence from duty for the period from 01.09.1984 to 22.09.1985 and also pay him salary for the said period.

2. The original respondent had filed the complaint before the Industrial Court, Nagpur alleging unfair labour practice by the petitioners. According to the respondent, Superintending Engineer had called for an option of the other employees for absorption but, the request made on behalf of the respondent was not considered and subsequently he was absorbed in the Irrigation Department. It was the case of the respondent that he had never desired repatriation. However, according to the respondent on 17.07.1984, the respondent was transferred from Environmental Engineering Circle to MC (OP) Nagpur. The order dated 17.07.1984 was however, cancelled on 20.10.1984. Subsequently, by an order dated 30.10.1984, the previous order dated 17.07.1984 was restored. By an order dated 22.02.1985, the respondents posting at Gate Erection Division No.II was again cancelled and he was promoted as Senior Clerk in Sectional Division at Akola. Ultimately, by an order dated 26.08.1985, the respondent was posted at Gate Erection Division No.II at Karanja (Lad) and the respondent submitted his joining report from 23.09.1985. It was the case of the respondent that though the other employees were retained by the Board, the respondent was transferred to the Irrigation Department. According to the respondent, this amounted to unfair labour practice.

3. Some of the petitioners did not file any written statement and one of the petitioners had filed the written statement and also tendered oral evidence. The Industrial Court, Nagpur on an appreciation of the evidence on record, by the impugned order dated 23.07.2001 partly allowed the complaint filed by the respondent. The order dated 23.07.001 is impugned by the instant petition.

4. Shri. Ahirkar, the learned Assistant Government Pleader appearing on behalf of the State submitted that the Industrial Court was not justified in regularising the absence of the respondent from duty for the period from 01.09.1984 to 22.09.1985. The learned Assistant Government Pleader submitted that the respondent had not joined the post of his transfer for a period of more than one year and in such circumstances, the Industrial Court was not justified in regularising his absence from duty and directing the petitioners to pay the salary to the respondent for the period from 01.09.1984 to 22.09.1985. The learned Assistant Government Pleader submitted that the evidence of the petitioner's witness was wrongly discarded by the Industrial Court.

5. Shri. Marpakwar, the learned counsel for the respondents, supported the impugned order and submitted that after scanning the evidence tendered by the complainant and one of the petitioners, the Court had rightly regularised the absence from duty for the period from 01.09.1984 to 22.09.1985. The learned counsel for the respondents submitted that the petitioner could not have transferred the complainant from one Department to another and since the transfers were cancelled on a number of occasions, there was no question of the original respondent joining the duties at the place of the transfer. The learned counsel for the respondents sought for the dismissal of the writ petition.

6. I have considered the submissions made on behalf of the parties and have perused the impugned order dated 23.07.2001. On a perusal of the same, it appears that the Industrial Court committed an error in directing the petitioners to give annual increment to the original respondent for the period from 01.09.1984 to 22.09.1985 and pay his salary for the said period within a period of three months. It is necessary to note that though the original respondent was transferred at least on three occasions during the period from 17.07.1984 to 26.08.1985, the original respondent did not join at the place of his transfer at any point of time. The original respondent remained at Sakoli, the place of his posting before 17.07.1984 i.e., issuance of the first transfer order. In fact, the relieving order was also issued to the original respondent but, the original respondent still failed to join his duties at the place of transfer. In such circumstances, the Industrial Court could not have directed the petitioners to give an annual increment for that period to the original respondent and also direct the petitioners to pay the salary for the period from 01.09.1984 to 22.09.1985. The evidence of the petitioner's witness was also wrongly discarded merely because he claimed ignorance of the facts, which occurred during 01.09.1984 to 22.09.1985, in his cross-examination. Since the original respondent had not joined the duties at the place of his transfer and had evaded the transfer orders for more than a year, the original respondent was surely not entitled for the salary for the period from 01.09.1984 to 22.09.1985 and was also not entitled to the annual increment during the period.

7. In the peculiar facts of the case, it would, however, not be in the interest of justice to modify the order passed by the Industrial Court so far as it directs the petitioners to take steps for regularising the absence of the original respondent from duty for the period from 01.09.1984 to 22.09.1985. Hence, though the original respondents absence from duty could be regularised for the period from 01.09.1984 to 22.09.1985, the original respondent would not be entitled to the annual increment for the said period and also would not be entitled to the salary which is payable for the period from 01.09.1984 to 22.09.1985.

8. In the result, the writ petition is partly allowed. The impugned order passed by the Industrial Court, Nagpur on 23.07.2001 is hereby modified. The order of the Industrial Court directing the petitioners to regularise the original respondent's absence from duty for the period from 01.09.1984 to 22.09.1985 is hereby confirmed. The part of the order directing the petitioners to give annual increment to the original respondent and pay his salary for the period from 01.09.1984 to 22.09.1985 is set aside.

9. Rule is made absolute in the aforesaid terms. No order as to costs.

Petition partly allowed.