WP/1095/1999 : 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1095 OF 1999 Municipal Corporation of the City of Nashik ... Petitioner V/s. Asha Lata Wilson Quareshi & Anr. ... Respondents Mr.J.Shekhar with Dinesh Kadam for Petitioner Mr.S.M. Dharap for Respondent No.1 CORAM: SMT.NISHITA MHATRE, J. DATE: MARCH 3, 2011 ORAL JUDGMENT: 1. The petition is directed against the order passed by the Industrial Court on 5.10.1998 in Complaint (ULP) No.496 of 1989. 2. The respondent was appointed as an Auxillary Nurse Midwife from 1.4.1984 on a payscale of Rs.290-10-350-15-465 with the petitioner. She qualified as a nurse after completion of a training course and was entitled to be appointed as a Staff nurse. Accordingly, when vacancies for the post of Staff Nurse arose some time in February 1985, the petitioner invited the respondent for an interview for being appointed as a Staff Nurse. The respondent having successfully appeared in the interview, was issued an appointment order dated 14.3.1985 indicating that she had been appointed as a Staff Nurse w.e.f. 14.3.1985 in the payscale of Rs. 335-15-520-680. She was directed to join the Department of Urban Infrastructure. WP/1095/1999 : 2 : An application was submitted by the Respondent requesting the petitioner to retain her as a Staff Nurse in its hospital the JDC Bytco Memorial Hosptial at Nashik Road as she was working there as a Staff Nurse. The petitioner permitted the respondent to continue working in the JDC Bytco Memorial Hospital (for short, “Bytco hospital') as a staff nurse on the payscale of Rs.335-15-520-680. A letter to that effect was issued on 29.8.1985. It appears that the respondent was not paid her salary as a Staff Nurse w.e.f. 14.3.1985. The respondent called upon the petitioner to pay her the salary. However, the petitioner refused to comply with the request on the ground that she had not started working in the Department of Urban Infrastructure as directed by the appointment order dated 14.3.1985. The respondent by her letter informed the petitioner that it was because the Bytco hospital had not relieved her to attend work at the Department of Urban Infrastructure that she could not do so. She also pointed out that in any event she had been working continuously as a Staff Nurse from 14.3.1985 with Bytco hospital, run by the Petitioner. 3. Since the petitioner refused to accede to the demand of the respondent she filed the aforesaid complaint under Item 9 of Schedule IV. She contended that the petitioner had committed an unfair labour practice by not paying her wages which were due and payable to her in terms of service conditions applicable to her. She contended that since she was working as a Staff Nurse she was entitled to payscale of Rs.330-680 from 14.3.1985 and not the payscale applicable for an Auxillary Nurse Midwife i.e. Rs.290-10-350-15-465. 4. The petitioner contested the complaint by filing a written statement. It was contended in the written statement that the respondent was not entitled to the WP/1095/1999 : 3 : payscale that she had sought since she did not accept the terms and conditions mentioned in the appointment order of 14.3.1985 by reporting for duty at the Department of Urban Infrastructure. It was contended that the respondent's appointment as an Auxillary Nurse Midwife in the Bytco hospital had no connection with her appointment as a Staff Nurse. The petitioners contended that her appointment as a Staff Nurse was liable to be cancelled as she had not joined service within the prescribed period and therefore she was not entitled to the salary claimed by her. 5. Evidence was led by the respondent in support of her case. It appears that the respondent has stated in her evidence that after cancelling her appointment the petitioner had filled in the posts of Staff Nurse with persons who were junior to her and less qualified than her. In her cross-examination, she has admitted that she did not report for duty at the Department of Urban Infrastructure. However, she has explained her inability to report for duty because of no relieving order being issued by the Bytco hospital. She has further maintained that she continued to work as a Staff Nurse in the Bytco hospital but was not paid the salary payable to a Staff Nurse. 6. I have considered the impugned order and in my opinion, the Industrial Court has not committed any error by allowing the complaint. There is no dispute that the Respondent was employed by the petitioner i.e. the Municipal Corporation of the City of Nasik and not by either the Department of Urban Infrastructure or by Bytco hospital. The petitioner was, therefore, well aware that the respondent was employed in the Bytco hospital which was run by it had directed the respondent to join service with its Department without issuing an order relieving her from the Bytco WP/1095/1999 : 4 : hospital. Therefore, the Industrial Court has rightly held that it was not possible for the respondent to report for duty on 14.3.1985 in the Department of Urban Infrastructure. Furthermore, the petitioner was aware that the respondent was working as a Staff Nurse in the Bytco hospital continuously and therefore ought to have paid her the wages payable for the post. 7. The contention of the learned advocate for the petitioner that it was because the respondent did not report for duty on 14.3.1985 in the Department of Urban Infrastructure that the payscale of the Staff Nurse was not extended to her is untenable. When the appointment order mentioned that she would be entitled to a particular payscale the petitioner could not have unilaterally reduced that payscale without holding an enquiry. It is sought to be argued that a reduction in the payscale was by way of punishment. However, it is now well settled that a person cannot be visited with civil consequences without being afforded an opportunity to be heard. Admittedly, no enquiry was conducted against the respondent before the petitioner decided to continue to pay her the payscale payable to an Auxillary Nurse Midwife while she was working as a Staff Nurse. 8. In the circumstances, the impugned order is confirmed. The petition is dismissed. Rule discharged. No costs. 9. The payment of arrears of salary shall be made within 12 weeks from today.