1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6545 OF 2008 Ichalkaranji Municipal Council ..Petitioner. Vs. Bhupal Babu Shelke .. Respondent. .... Mr. Tajpal S. Ingale for the Petitioner. Mr. M.S. Topkar for the Respondent. .... CORAM: DR. D.Y. CHANDRACHUD, J. 19th November, 2008. P.C. : 1. The Respondent was employed as a clerk with the Ichalkaranji Municipal Council – the Petitioner before the Court – on 9th December, 1963. On 8th June, 1985 the State Government issued a resolution providing for a scheme for time bound promotion. The Respondent was denied the benefit of the scheme by a communication dated 17th February, 1999. He attained the age of superannuation on 31st October, 2001 and in September 2003 instituted a complaint of unfair labour practices under Items 5 and 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The delay in filing of 2 the complaint was condoned. By the impugned order of 8th July, 2008 the Industrial Court allowed the complaint and has directed the Petitioner herein to give to the First Respondent the benefit of the Government Resolution dated 8th June, 1995 with effect from 1st October, 1994 together with consequential benefits. 2. The order of the Industrial Court has been challenged and the only submission which has been urged on behalf of the Petitioner is that the Respondent was suffering from epileptic attacks consequent upon which he was assigned lighter duties of preparing OPD case papers in the Municipal Hospital on humanitarian grounds. The learned counsel submitted that the scheme for time bound promotion which is issued by the State Government under a Government Resolution dated 8th June, 1995 provides that in order to avail of the benefits of the scheme, the employee must fulfill all the other requirements for promotion including seniority, fitness and the passing of the departmental examination. In the present case, it was sought to be submitted that the Petitioner could not have been fit for promotion in view of his medical condition. 3 3. Before the Industrial Court evidence was adduced both on behalf of the Petitioner and the Respondent. It may be noted at this stage that the Government Resolution dated 8th June, 1995 promulgating the time bound promotion scheme was brought into force from 1st October, 1994. During the course of the cross examination of the witness who deposed on behalf of the Petitioner there was a specific admission to the effect that prior to the year 1999, the First Respondent was not informed of any grounds pertaining to his efficiency or lack thereof. The witness admitted that the only confidential reports that were filed were of the year 2001. In the seniority list dated 31st December, 1995 the Petitioner figured at Sr. No. 2. The witness stated that the Municipal Council started giving the benefit of the time bound promotion scheme in 1998. The witness admitted that he had not produced any record to show that as the complainant workman was suffering from epileptic attacks or that his work was not found to be satisfactory. 4. The Industrial Court adverted to the examination in chief of the workman where he stated that his work had not been disturbed at 4 any stage due to his medical condition and that no memo or warning had ever been issued to him. The Industrial Court noted that there was no cross examination on the aforesaid aspect of his deposition. 5. It was on 17th February, 1999 that the workman was informed that he was not eligible for the benefit of the time bound promotion scheme. The claim of the workman had to be assessed with reference to 1st October, 1994 from which date the scheme was brought into force. It has not been disputed before the Court that the Municipal Council also implemented the scheme with effect from 1st October, 1994 and that other employees were given the benefits with effect from the said date. There is absolutely nothing on the record to indicate that on 1st October, 1994 the Respondent workman was unfit for promotion or that he did not fulfill the requirements of the time bound promotion scheme. On the contrary, it is undisputed that the workman fulfilled the requirements of seniority and of having put in twelve years service. The confidential report which has been placed on the record pertains to the period 1994-95 in the first instance. This confidential report demonstrates that all the parameters relating to the 5 Respondent were in order and there was no deficiency found either in his performance or fitness. It was in the year 2001 that an adverse confidential report came to be prepared. Therefore, for assessing the entitlement of the Respondent to the benefit of the time bound promotion scheme as on 1st October, 1994, it is the confidential report pertaining to the period 1994-95 that would have to be borne in mind. In these circumstances, the view which has been formed by the Industrial Court cannot be stated to be in error or as suffering from any infirmity. The Petition is lacking in substance. The Petitioner shall in compliance with the order of the Industrial Court compute the benefits which are allowable to the Respondent as on 1st October, 1994 within a period of one month from today and disburse the same within a period of two months thereafter. The Petition shall stand dismissed. There shall be no order as to costs. *****