1 wp4673-11.doc ttm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4673 OF 2011 The State of Maharashtra & Ors. .. Petitioners Vs. Smt.Shamimbano Abdul Munaf Waikar .. Respondent Mr.A.D.Kango, A.G.P. for the petitioners Mr.M.S.Topkar for respondent CORAM: K.K. TATED, J. DATE: 27th JULY, 2011 PC: 1. Heard the learned counsel for the parties. 2. Rule. Rule made returnable forthwith. 3. By consent, matter is taken on board for final hearing at the stage of admission. 4. By this petition, under Articles 226 and 227 of the Constitution of India, petitioners original respondents challenge the order dt.21.3.2011 passed by learned Member, Industrial Court, Nasik on respondent’s application for interim relief (Ex.U-2) seeking stay of the order issued by the petitioners dt.17.2.2011 2 wp4673-11.doc appointing respondent on the post of peon. 5. In the present case, the respondent was appointed on compassionate ground in ‘C’ category as Clerk-cum-Typist in the pay scale of Rs.3050-75-3950-80-4590 vide appointment letter dt.9.1.2009 after the death of her husband, Abdul Munaf Waikar who was working with the petitioner as Junior Engineer. At the time of appointment, respondent executed the bond on Rs.100/- as per G.R. dated 23.8.1996 giving an undertaking that she will pass typing examination of 40 w.p.m.in English and 30 w.p.m. in Marathi within the stipulated period of two years from the date of appointment. Therefore, it was specifically stated in the appointment letter dt.9.01.2009 that in case the respondent fails to pass typing examination within the stipulated period, her services will come to an end without any further orders. As the respondent failed to pass typing examination within two years, the petitioners issued fresh order dt.18.2.2011 appointing the respondent on the post of Peon considering the G.R. dt.8.9.1997. 6. Being aggrieved by the fresh appointment letter dt.18.2.2011 respondent original complaint filed complaint (ULP) No.42 of 2011 in the Industrial Court under section 28(1) r/w items 5, 9 3 wp4673-11.doc and 10 of Schedule IV of MRTU and PULP Act, 1971 along with application for interim relief under section 30(2) of the MRTU and PULP Act, 1971. In the said Interim Application, Industrial Court granted extension of 6 months to the respondent to pass typing examination. The said order is challenged by the petitioner in the present petition. 7. The learned A.G.P. for the petitioner submits that the Industrial Court failed to notice that as per the terms of appointment of the respondent as clerk-cum-typist she had to pass the typing examination 30 w.p.m. in Marathi and 40 w.p.m. in English and in default her appointment was to stand terminated. On such termination she could be appointed as peon as per G.R. dated 8th June 1997. Hence, after the appointment of the respondent stood terminated, she was appointed as peon. He submits that there is no provision in law for the extension of time for passing typing examination and the Industrial Court cannot extend the time on humanitarian ground and impugned order passed by the Industrial Court is bad in law. According to him, the petitioners did not resort to any unfair labour practice in appointing the respondent as peon, on her appointment as clerk-cum-typist got terminated as per the terms of her 4 wp4673-11.doc appointment to that post and the bond executed by her at the time of the said appointment. 8. On the other hand, the learned counsel for the respondent vehemently opposed the present Writ Petition. He submits that the petition filed under Articles 226 and 227 of the Constitution of India against the interim order passed by Industrial Court is not maintainable. He submits that the Industrial Court has considered the facts on record and the documents produced by her while passing the impugned order. 9. He further submits that the respondent was busy during the two years period in election duty and other duties as directed by her department and therefore, she could not pass typing examination within two years. He submits that the respondent had appeared for examination in May 2011 and results are expected within short period. Considering these facts, he contends there is no substance in the present writ petition and the same is liable to be dismissed. 10.I have gone through the impugned order dt.21.3.11, G.R. Dt. 23.8.96 and G.R. dt.8.9.97, appointment letter dt.19.1.09 and further appointment letter dt.17.2.2011. On the Bare reading of appointment letter dt.19.1.09 itself, it is crystal clear that 5 wp4673-11.doc the respondent has to pass typing examination within two years from the date of the appointment. If she fails to do so her appointment automatically comes to an end. Therefore, there is no question of granting any extension to the respondent for passing typing examination. 11.The Labour Court without considering the G.R. dt.23.8.96 and 8.9.97 and terms and conditions of the appointment letter dt. 19.1.2009 and bond executed by respondent granted extension of 6 months to pass typing examination only on humanitarian ground which is not maintainable in law. 12.Considering these facts, petition is allowed. 13.The impugned order dt.21.3.11 passed by the learned Member of Industrial Court, Nasik on Respondent’s interim application Exh.U-2 is set aside. Interim application filed by respondent Exh.U-2 is dismissed. 14.No order as to costs. (K.K.TATED,J.)