1 wp5437-11.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5437 OF 2011 Chief Executive Officer, Kolhapur .. Petitioner versus Arun Raghunath Mangalekar .. Respondent Mr.S.R.Nargolkar for the petitioner. Mr.Tanaji Mhatugade for the respondent. CORAM : S.C.DHARMADHIKARI, J. 12th September 2011. P.C.: . This writ petition is directed against an interim order made by the Member, Industrial Court, Kolhapur on 14th March 2011 below Exhibit U-2 in complaint (ULP.No.198/2010). Although, this Court is reluctant to interfere with interim orders of the Industrial and Labour Court, in the facts that are peculiar to this case, such interference is necessary. In these circumstances, the petition is admitted. Rule. Respondent waives service. By consent of the parties, the petition is heard forthwith. 2 wp5437-11.doc 2 Upon a complaint of unfair labour practice instituted by the respondent under Items 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short MRTU & PULP Act), this writ petition has been filed. The operative order directs thus: “ : O R D E R : i) Unless the complainant gets an opportunity to appear for the examination for the fourth time he should not be reverted. If the complainant is unsuccessful on the fourth occasion also the respondent is free to take appropriate decision as per Service Rules. ii) No order as to costs.” 3 The petitioner before me is the Zilla Parishad, Kolhapur through its Chief Executive Officer. The respondent is the employee in the Zilla Parishad as a Junior Accounts Officer from 29th March 2000. It is stated that on 9th January 2008, the respondent was 3 wp5437-11.doc promoted to the post of Assistant Accounts Officer in the office of the Executive Engineer, Rural Water Supply Division, Zilla Parishad, Kolhapur. The promotional order clarified that it is conditional upon the respondent acquiring the necessary clarifications and particularly passing of the Maharashtra Zilla Parishad Finance and Accounts Service Class III Examination within a period of two years. It is stated that the respondent appeared in the examination in October 2008, but, failed to clear the same. This examination is conducted by the Maharashtra Public Service Commission (for short MPSC). The respondent also appeared for another examination held in June 2009 but could not clear the same. In these circumstances, having not cleared the examination in two attempts, the petitioner was constrained to revert the respondent from the promotional post to the substantive post. Apprehending this reversion, the respondent filed a complaint alleging unfair labour practices and sought interim relief by making an application under section 30(2) of the MRTU & PULP Act. That application alleged that though the respondent was required to pass the examination within a period of two years and even if he has failed to clear it on two occasions, the petitioner should have given him one 4 wp5437-11.doc more opportunity in terms of the Government Resolution to clear the examination. That Government Resolution applies to candidates of special backward category to which the respondent belongs. 4 Further, it was alleged that within the span of two years, the examination has been held thrice and for no fault of the respondent, he could not clear it on all three occasions and for this lapse he cannot be blamed and that one more opportunity should have been given. It was alleged that the period of two years should not be counted mechanically and year-wise, but, appropriate interpretation be placed thereon consistent with the object that is sought to be achieved. It is on this interim application, that the petitioner was called upon to show cause. 5 The petitioner filed a written statement and replied to the interim relief application pointing out that the Government Resolution dated 16th November 2006 which is stated to be applicable stipulates that the exam is to be cleared within a period of two years. The petitioner pointed out that the respondent applied and appeared for the examination thrice, but, failed every time. 5 wp5437-11.doc Thus, within a period of two years the respondent was unable to pass the examination. 6 By virtue of another Government Resolution dated 22nd March 2002 and the Maharashtra Zilla Parishad District Service Discipline Rules, 1964, the petitioner was right in seeking to revert him, and has acted strictly in accordance with law. While alleging that the complaint is not maintainable because the respondent cannot claim to be a “workman” within the meaning of section 2(s) of the Industrial Disputes Act, 1947, he also cannot be said to an “employee” within the meaning of the said term as defined in MRTU & PULP Act. For all these reasons, the complaint itself was not maintainable. In any event, there is no question of the petitioner depriving the respondent of his livelihood. The petitioner had granted promotion, which was conditional and which condition has been accepted by the respondent. Unless and until a strong prima facie case of unfair labour practice has been established, the mandatory orders should not be granted. There is no question of any balance of convenience being in favour of the respondent nor he suffers from any irreparable loss or injury. In future if he attempts 6 wp5437-11.doc again and succeeds, he will get the promotional benefits and can claim them retrospectively. In these circumstances, no interim relief can be granted. 7 However, the Industrial Court was not convinced with this stand of the petitioner and proceeded to pass an interim order in the aforenoted terms. It is this interim order which is subject matter of challenge in this writ petition. 8 Mr.Nargolkar, learned counsel appearing on behalf of the petitioner-Zilla Parishad submitted that the impugned order suffers from an error apparent on the face of the record. The Industrial Court failed to appreciate that there is no prima facie case of unfair labour practice inasmuch as the complainant-respondent was aware that his promotional order is conditional, that he accepted the condition of clearing the examination within the period specified therein. 9 There was a Government Resolution and assuming that it applies and the respondents case is covered thereby, yet, it is 7 wp5437-11.doc apparent that the said respondent failed to clear the examination within a period of two years from 9th January 2008. Once that period is over and the respondent appeared thrice for the examination, but failed each time, then, relying on some practice prevalent and particularly of the MPSC holding four examinations, is no reason to grant any interim order and that too of mandatory nature. The Member, Industrial Court, therefore, grossly erred in granting such a relief which allows the complaint finally. For all these reasons and this being public employment, the petitioner cannot be directed to act in contravention of the mandate of Articles 14 and 16 of the Constitution of India so also the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1971 and the Rules and Regulations framed thereunder. For all these reasons, the impugned order be set aside. 10 On the other hand, Mr.Mhatugade appearing on behalf of the respondent submitted that the order impugned is interlocutory in nature. It should not be interfered with merely because another view is possible. In the instant case, the interim order has been passed to protect the rights of the respondent who belongs to special backward category. If a person belonging to the under privileged 8 wp5437-11.doc class has entered public service and has been given certain benefit and concession, then, that should be granted in true letter and spirit. The Industrial Court’s order ensures that such intent of the Government circulars and Resolutions is fulfilled and the concession which is intended thereby is well and truly granted. It is in that light, that the impugned order must be seen and it is not as if the petitioner suffers any prejudice because the respondent has been permitted to appear on one more occasion. If that concession also is of no utility inasmuch the respondent fails to clear the examination in four attempts, it would be open for the petitioner to revert him. In these circumstances, this Court should not interfere with the interlocutory order, but proceed to dismiss the petition. 11 With the assistance of the learned counsel appearing for the parties, I have perused the petition and annexures thereto including the impugned order. The Industrial Court upon noting the allegations in the complaint and the stand of the petitioner, observed that the admitted factual aspect is that the petitioner employed the respondent and duly promoted him. He has worked as Assistant Accounts Officer from 9th January 2008 on promotion, 9 wp5437-11.doc but that promotion order was conditional. Clause 7 of the same stipulates that in view of the recruitment rules, the respondent is supposed to pass the Finance and Accounts Service Class III Examination within a period two years from the date of promotion. If the respondent fails to comply with the same, he is liable to be reverted without any prior notice. 12 As far as the Government Resolution dated 16th November 2006 is concerned, prima facie, the Industrial Court has misconstrued and misapplied this Resolution inasmuch as the same stipulates that the candidates belonging to Scheduled Castes and Scheduled Tribes, Vimukta Jatis and Nomadic Tribes, should be given additional chance and one more opportunity so as to clear the examination. That concession should be also made available to the candidates belonging to special backward category. As far as this Resolution is concerned and the wording thereof, prima facie there does not appear to be any dispute. However, the only argument that seems to have convinced the Industrial Court is that the Maharashtra Public Service Commission conducts the examination twice a year and, therefore, the candidates get four opportunities to 10 wp5437-11.doc pass the examination. In the instant case, within a period of two years the examination has been held only thrice. The MPSC has declared the date of the fourth examination, but, it was not held. According to the learned Member, period of two years should be taken in letter and spirit. In para 15 of the impugned order, this aspect is emphasised. 13 To my mind, even if the concession or benefit provided by this Government Resolution is taken to be applicable, the argument that has convinced the Industrial Court in passing an interim mandatory direction, is far from convincing and not acceptable. That the respondent has appeared in the examination, but, failed to clear it on all three occasions. It is prima facie not in dispute that the Government Resolution contemplates one more opportunity to clear the examination. It is thus a facility and concession which has been availed of by the respondent because he appeared on three occasions. That he had failed to clear the examination within two years period from the date of his promotion, is apparent, however he has not been straightaway reverted but continued even after more than two attempts. That the MPSC ordinarily holds four 11 wp5437-11.doc examinations and in this case within the span of two years, only thrice the examinations were held by the MPSC, is the only ground to grant concession. That hardly appears to be convincing. The hypothetical situation that has been taken into account by the learned Member is thus not enough to grant this interim mandatory direction. 14 There is no reason as to why the respondent should be given one more opportunity to try his luck. It was pointed out to the learned Member that there are eligible candidates who have successfully passed the promotional examination and the promotional post is occupied by the respondent who is not eligible to occupy the same. Assuming that the petitioner reverts him for failing to clear this examination on the ground of not clearing the same within the period specified in the promotional order on the own showing of the respondent he has made a representation to the Chief Executive who has sent the proposal to the Commissioner for giving benefit of one more year. Merely because no decision was communicated with regard to this representation, is no ground to pass an interim order when admittedly the respondent has 12 wp5437-11.doc appeared for the examination on more than two occasions and has failed to clear the same. In these circumstances, the practice of MPSC to hold examinations and particularly more than once in a year, is itself no ground in law to grant the concession and facility. Ultimately, the right is to be considered for promotion. That constitutional right has been granted in favour of the respondent and a conditional promotional order has been passed in his favour. Having not challenged these conditions nor the Government Resolutions, but, the allegation is of unfair labour practice, unless and until prima facie finding of unfair labour practice is rendered, such interim orders should not be passed and which would vitally affect the working of the Zilla Parishad and take away the chances of promotion of other eligible candidates. 15 For all these reasons and finding that the impugned order is wholly untenable in law and vitiated by a gross error apparent on the face of record, Rule is made absolute in terms of prayer clause (a) with no orders as to costs. In facts and circumstances of the case, the Industrial Court would be well advised to dispose of the complaint as expeditiously and possible and within a period of six 13 wp5437-11.doc months from today. It is clarified that all observations are tentative and prima facie and shall not influence the Court below while finally deciding the complaint. (S.C.DHARMADHIKARI, J)