WP/7066/1998 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7066 OF 1998 Maharashtra State Road Transport Corporation, Mumbai ... Petitioners V/s. Pralbansing Gangsing Pardeshi ... Respondent Mr. G.S. Hegde for the Petitioners. None for the Respondent. CORAM : SMT. NISHITA MHATRE, J. DATE : 5 TH OCTOBER, 2010. ORAL JUDGMENT : 1. The petitioners have approached this Court against the order dated 14th July, 1998 passed by the Presiding Officer, 1st Labour Court, Solapur in Application (IDA) No.254 of 1991. By this order, the application filed under Section 33 C(2) of the Industrial Disputes Act, 1947, (for short “the Act”), by the respondent herein has been allowed. The petitioners have been directed to pay the arrears of wages and bonus which accrued to the respondent pursuant to a circular dated 10th September, 1975. 2. The undisputed facts involved in the present case are as follows : WP/7066/1998 2 . The respondent was employed as a “Conductor” with effect from 1st April, 1951. He was appointed as a “Driver” later with effect from 30th January, 1967 on being found suitable for the post. The respondent’s services were terminated on 22nd October, 1970 as he was declared medically unfit to work as a “Driver”. Civil Suit No.342 of 1991 was filed by him before the Civil Judge, Junior Division, Pune challenging his order of termination from service. That Suit was dismissed by the Civil Court, Pune while directing the petitioners to consider whether the respondent could be given a fresh appointment, sympathetically. The respondent then submitted a representation to the petitioners for being appointed as a “Conductor”. Accordingly, he was appointed as a “Conductor” from 1st April, 1974 without any condition of protection of his pay as a “Driver”. The respondent retired from service in May, 1988. 3. After retirement, in 1991 the respondent filed an application under Section 33 C(2) of the the Act claiming that he was entitled to certain benefits under Circular No.ST/EST/418-E/9407 issued by the petitioners on 10th September, 1975. The petitioners contested the claim and WP/7066/1998 3 contended that the Labour Court under Section 33 C(2) of the Act had no jurisdiction to decide the claim of the petitioners. It was further contended that although there was no policy to reinstate a medically unfit Driver as a Conductor, the petitioners had done so to accommodate the respondent in 1974. A policy formulated by the petitioners in 1975 provided that alternative employment should be given to those Drivers who were declared medically unfit. Under that policy, the Selection Committee had to approve the appointment of medically unfit Drivers. The petitioners, in their written statement, conceded that a circular had been issued by the Divisional Controller, (Admn.), M.S.R.T. Corporation, Central Office, Mumbai, on 10th September, 1975, stipulating that a Driver who was medically unfit and who was therefore employed as a Conductor would be entitled to have his pay being paid to him as a Driver, protected. The petitioners contended that this circular had no application at all and that the services of the respondent had been terminated in 1970 itself. It was further contended that the application under Section 33 C(2) of the Act was not maintainable as it was filed when the respondent was not in service. WP/7066/1998 4 4. The Labour Court on the basis of the material before it found that the application under Section 33 C(2) of the Act was maintainable. The Labour Court observed that the petitioners were denying relief to the respondent despite a Circular issued by them bearing No.ST/EST/418-E/9407 dated 10th September, 1975. According to the Labour Court, paragraph No.2 of the Circular dated 10th September, 1975 stipulates that the circular is made applicable with retrospective effect. The Labour Court observed that it was difficult to ascertain the amount which the applicant, i.e. the respondent herein, was entitled to unless a chart was furnished by the respondent, i.e. the petitioners herein, showing the existing salary of the “Drivers” as on 10th September, 1975 and the salary of the “Conductors” on the same date. Liberty was granted to the respondent to file such a chart. The Labour Court then allowed Application (IDA) No.254 of 1991 partly and directed the petitioner-Corporation to pay the difference in the monetary benefits by making the circular applicable to the respondent’s service from 10th September, 1975 till his date of retirement. 5. Mr. Hegde, the learned Advocate for the petitioners, taking exception to this decision of the Labour Court has WP/7066/1998 5 contended that when the respondent was declared medically unfit to work as a “Driver” and his services were terminated, there was no legal requirement on the petitioner-Corporation to re-employ or to transfer such medically unfit Drivers to some other posts. The respondent submitted a representation for being appointed as a “Conductor” and he was accordingly appointed as one from 1st April, 1974. While appointing him afresh as a “Conductor”, the petitioner-Corporation had not stipulated that his pay as a “Driver” was being protected. According to Mr. Hegde, the respondent therefore could not claim this difference in pay on the basis that the Circular dated 10th September, 1975 was applicable to him. Mr. Hegde then points out that the respondent-workman retired in 1988 and filed the present application, being Application (IDA) No.254 of 1991, in the year 1991 on the basis of the Circular dated 10th September, 1975. He submits that there was no continuous service of the respondent from the date he was appointed as a “Driver” till he was permitted to work as a “Conductor” after being found medically unfit to work as a “Driver”. He, therefore, submits that the order of the Labour Court must be set aside. WP/7066/1998 6 6. The Circular of 10th September, 1975 has been issued based on the policy adopted by the petitioner-Corporation by its Resolution No.7005 dated 1st June, 1970. Under Clause (1) of the policy, a Driver who is medically disqualified in the visual/physical test, as a result of which his services are terminated, is permitted to apply for alternative employment with the Corporation in the prescribed form for a post suitable to his qualifications and experience, not being a post higher than the prior one. The relaxation of the upper age limit was granted to such persons, upto five years. Such a Driver who was declared medically unfit was to be selected to the new post and appointed in an available vacancy as a fresh recruit. Obviously, the respondent had applied under this policy contained in the Corporation’s Resolution No.7005 dated 1st June, 1970. He was found fit to be selected as a “Conductor” and was therefore given a fresh employment from 1st April, 1974. 7. The circular of 10th September, 1975 has been issued by the Divisional Controller (Admin.) of the petitioners to give effect to the policy of the Corporation contained in its Resolution No.7005 dated 1st June, 1970. The Resolution sought WP/7066/1998 7 to provide employment to those Drivers who were declared medically unfit by the competent authorities. Ad-hoc decisions were taken in respect of such employment. It was decided as follows : “1. .............................................. (A). If the service record of the driver in question is free from major accidents and if he had been taken on time-scale, he may be asked to choose one of the following facilities : (i). If he is a departmental promotee, he may be considered for absorption in the category from which he was promoted, without affecting his pay and break in service, if any, should be condoned and the service should be treated as continuous. (ii). In other cases, not covered by (i) above, he may be absorbed in any other category suitable to his qualifications, etc. without WP/7066/1998 8 any loss of pay, and break in service, if any, be condoned as in (i) above. (iii). An opportunity may be given to his son, if the latter is physically fit, to learn driving, with a view to his eventual absorption in the Corporation as a driver. (iv). His son/daughter may be employed in the Corporation in any category suitable to his/her qualifi-cations. (v). Subject to careful selection, such of the drivers, who have the requisite experience may be employed as drivers to assist the Training Inspector in training in driving, at the rate of 3 drivers in each Division. (B). ...................................... 2. On receipt of this circular, the Unit Heads are requested to examine all cases to be decided under this authority of the above WP/7066/1998 9 directive of the Corporation and take appropriate action in all cases pertaining to your division. Since many of the drivers already discontinued from Maharashtra S.R.T. Corporation service may not be readily available, special efforts will have to be made to communicate the decision of the Corporation to enable them to decide which one of the options they should choose, subject to availability of vacancies, and other constraints. Careful selection will have to be made of the persons falling under Part A(v) above. Hence, the drivers who are fit to be appointed as Driver-Trainer will have to be carefully selected and their names forwarded to the DY.G.M. (TRAINING), who will finally decide selection of such drivers. The drivers who are above 55 years who are declared medically unfit are not to be considered for reemployment. In all cases, a comparative accident free record is a major consideration.” 8. The Labour Court while construing this Resolution has held that it is made applicable retrospectively. Therefore, the Labour Court has concluded that the respondent was entitled to protection of his pay as a “Driver” without a break in service. WP/7066/1998 10 9. In my opinion, the Labour Court has interpreted the policy erroneously. The stipulation to trace Drivers who had not been able to exercise their option would not amount to the policy being made applicable retrospectively. In the present case, undisputedly, the respondent-workman had stopped working as a “Driver” due to termination of his service from 22nd October, 1970 as he was declared medically unfit to work as a “Driver”. His termination order was not set aside. Therefore, his service came to an end on 22nd October, 1970. He was recruited as a “Conductor”, not because of the policy of absorbing those Drivers who are declared medically unfit but because the Civil Court, Pune, before whom he had challenged his termination from service, had directed the petitioner-Corporation to consider his case for fresh appointment sympathetically. Accordingly, the petitioner-Corporation had appointed the respondent-workman as a “Conductor” from 1st April, 1974 without protecting his pay as a “Driver”. The policy of 1970 does not seem to have been mentioned in the order of appointment of the respondent as a “Driver”. In these circumstances, it must be held that the Driver who was dismissed from service and who was later appointed as a “Conductor”, after the period of four years, WP/7066/1998 11 could not claim continuous service with the petitioner- Corporation. Moreover the circular of 10th September, 1975 would have no application in the present case as it has been issued after the respondent was recruited as a “Conductor” on 1st April, 1974. 10. In my view, therefore, the Labour Court has erred in granting the application filed under Section 33 C(2) of the Act. The employment of the respondent as a “Conductor” was a fresh employment and had nothing to do with the policy contained in the petitioner-Corporation’s Circular dated 10th September, 1975, in which it had decided to protect the pay of such Drivers who were found to be medically unfit. 11. The Writ Petition is allowed. 12. Rule made absolute. 13. No orders as to costs. 14. The Labour Court, Solapur, shall disburse the amount, which the petitioner-Corporation has deposited when the Writ Petition was admitted pursuant to the orders of this Court, to the petitioner-Corporation along with the accrued interest.