Bombay High Court
State Of Mah. Thr. Its Secty., And 2 Ors vs Ramesh S/O Annaji Chorghade on 11 December, 2019
Author: A. S. Chandurkar
Bench: A. S. Chandurkar
J-WP-28-11 1/8
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.28 OF 2011
1. State of Maharashtra,
Through its Secretary,
Medical Education and Drugs Department,
Mantralaya, Mumbai 32.
2. The Director of Medical Education
and Research, Maharashtra State,
Mumbai
3. The Dean,
Indira Gandhi Medical College,
Central Avenue, Nagpur ... Petitioners
-vs-
Ramesh s/o Annaji Chorghade,
Aged about 63 years,
Occupation : Retired,
R/o Plot No.60, Samarth Nagar,
Gruhnirman Society, behind H. B. Estate,
Nagpur ... Respondent.
Shri A. V. Palshikar, Assistant Government Pleader for petitioners.
Ms K. Pathak, Advocate for respondent.
CORAM : A. S. CHANDURKAR, J.
Arguments were heard on 10/10/2019.
Judgment pronounced on 11/12/2019.
Oral Judgment :
The challenge raised in the present writ petition is to the order passed by the learned Judge of the Industrial Court dated 13/08/2007 by which the complaint filed by the respondent under Section 28 of the ::: Uploaded on - 23/12/2019 ::: Downloaded on - 26/04/2020 00:59:27 ::: J-WP-28-11 2/8 Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short, the said Act) alleging commission of unfair labour practice under Item-9 of Schedule-IV to the said Act has been allowed. The petitioners had been directed to pay subsistence allowance to the respondent as provided under Model Standing Orders after deducting the suspension allowance already paid to him.
2. The facts in brief are that the respondent entered service of the petitioners on 12/09/1963 as a Junior Clerk. He was promoted to the post of Senior Clerk and thereafter as Senior Assistant. He was given additional charge of Cashier from 15/04/1992. The respondent was discharging duties at the petitioner No.2-Medical College which was an industrial establishment as defined under provisions of the Industrial Employment (Standing Orders) Act 1946 (for short, the Act of 1946). The respondent claimed to be an employee and also pleaded that his services were governed by the provisions of the Model Standing Orders framed under the Act of 1946. On 16/12/2000 the respondent was placed under suspension pending the departmental enquiry. He was issued a charge-sheet on 16/06/2001. However he was permitted to superannuate from service on 30/11/2002. He was thus under suspension for a period of twenty two months. The respondent claimed that he was entitled to be paid subsistence allowance at 50% of his salary for the first three months of suspension and thereafter 75% ::: Uploaded on - 23/12/2019 ::: Downloaded on - 26/04/2020 00:59:27 ::: J-WP-28-11 3/8 for further six months after which full salary as subsistence allowance was liable to be paid. However for the entire period of suspension he was paid only 50% subsistence allowance. On this count the respondent filed the aforesaid complaint and sought payment of difference in the amount of subsistence allowance.
3. In the written statement filed by the petitioners an objection as to the jurisdiction of the Industrial Court to entertain the complaint was raised. It was further pleaded that the petitioner No.2 was not an establishment nor was the Medical College an industry. It was denied that the respondent was entitled to be paid subsistence allowance as per provisions of the Model Standing Orders as the petitioner No.2 was not an Industrial Establishment. It was further denied that subsistence allowance was rightly paid as per provisions of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1981 (for short, the Discipline and Appeal Rules).
4. Before the Industrial Court the respondent examined himself while the petitioners examined their Medical Officer. After considering the evidence on record it was held that the complaint as filed was maintainable as the respondent was an employee and the petitioners were an Industry. It was then held that the provisions of the Maharashtra Standing Orders under the Act of 1946 were applicable and therefore the respondent was entitled to ::: Uploaded on - 23/12/2019 ::: Downloaded on - 26/04/2020 00:59:27 ::: J-WP-28-11 4/8 be paid subsistence allowance as per those Standings Orders. By the impugned judgment the complaint was allowed by directing the petitioners to pay difference in the amount of subsistence allowance. Being aggrieved the said order is challenged in this writ petition.
5. Shri A. V. Palshikar, learned Assistant Government Pleader for the petitioners submitted that the Industrial Court was not justified in holding that the provisions of Model Standing Orders were applicable on the basis of which the respondent could have been paid subsistence allowance. The respondent had rightly been paid subsistence allowance as per the provisions of the Discipline and Appeal Rules which were applicable to such employees. As the petitioners and especially petitioner No.3 could not be treated to be an Industry the question of applicability of the Maharashtra Standing Orders would not be applicable. He placed reliance on the decision in Mangal Bharat Shinde vs. Pimpri Chinchwad Municipal Corporation and anr. 2018(6) Mh.L.J. 328 to urge that the Industrial Court was not justified in directing payment of difference in the amount of subsistence allowance. Hence the impugned judgment was liable to be set aside.
6. Ms K. Pathak, learned counsel for the respondent supported the impugned judgment. At the outset she submitted that the impugned judgment was passed on 13/08/2007. The same was challenged by filing ::: Uploaded on - 23/12/2019 ::: Downloaded on - 26/04/2020 00:59:27 ::: J-WP-28-11 5/8 the writ petition only on 29/10/2010. There was no explanation for the huge delay on the part of the petitioners in challenging that order. Except for stating that there were some administrative reasons the time taken which exceeds three years has not been satisfactorily explained. It was then submitted that after considering the various provisions of the Act of 1946 it was clear that the petitioners answered the definition of Industrial Establishment under Section 2(e) of the said Act. She also referred to the provisions of Section 2(d), Section 13-B and 14 of the said Act to substantiate her contention. According to her in absence of there being any notification issued by the petitioners under Section 13-B of the said Act nor the petitioners having been exempted from the provisions of the Act of 1946, the services of the respondent were governed by the Model Standing Orders. In that regard reliance was placed on the decision in Divisional Forest Officer, Gadchiroli vs. Madhukar Ramaji Undirwade and Ors. 1995 II CLR 292 as well as the judgment in Writ Petition No.1510 of 1988 (Divisional Forest Officer vs. Vijaysen s/o Shankarrao Sable) decided on 07/08/1992. It was also well settled that in absence of any such exemption the provisions which were more beneficial to an employee would be applicable. Since the provisions of the Maharashtra Standing Orders under the Act of 1946 permitted grant of higher subsistence allowance, the respondent was entitled to receive the same accordingly. The Model Standing Orders had an overriding effect over the Disciplinery and Appeal Rules. It was submitted that there was no ::: Uploaded on - 23/12/2019 ::: Downloaded on - 26/04/2020 00:59:27 ::: J-WP-28-11 6/8 reason to interfere with the impugned judgment.
7. I have heard the learned counsel for the parties at length and I have perused the material placed on record. Insofar as activities of the petitioners while running Medical College and Hospital are concerned it is undisputed that the same is being run by the State Authority. The learned Judge of the Industrial Court has referred to the decision in The State of Bombay and ors. vs. The Hospital Mazdoor Sabha and ors. AIR 1960 SC 610 while holding that such medical services provided by the State Government would fall within the meaning of "Industry" under Section 2(j) of the Industrial Disputes Act, 1947. It was also held that the respondent was discharging duties as "workman". This finding is recorded after considering the nature of duties as rendered by him. According to the respondent the provisions of the Model Standing Orders under the Act of 1946 would apply in the matter of entitlement to subsistence allowance. On the other hand according to the petitioners the said Model Standing Orders would not apply and for that purpose the petitioners have relied upon the decision in Mangal Bharat Shinde (supra). The facts of that case indicate that the complainant was working as a sanitation worker in a Hospital that was managed by the Municipal Corporation. It was held that merely because the Corporation was running various enterprises and was also operating the hospital, the same could not be termed as an industrial establishment to qualify as such. ::: Uploaded on - 23/12/2019 ::: Downloaded on - 26/04/2020 00:59:27 ::: J-WP-28-11 7/8
On the other hand the respondent has sought to rely upon the provisions of Section 13-B and 14 of the Act of 1946 to contend that in absence of there being any exemption from the applicability of the said Act and the Rules or Regulations not being notified as required by Section 13-B of the said Act, provisions of Model Standing Orders would be applicable. It is found in the decision relied upon by the learned counsel for the petitioners that the Hospital was being conducted by the Municipal Corporation while in the present case the same is a State run Hospital/Medical College. Thus following the observations of the Honourable Supreme Court in The Hospital Mazdoor Sangh and ors. (supra), the finding recorded by the Industrial Court based on the nature of activities of the petitioners while running the Hospital had the character of being an industry does not deserve to be interfered with.
8. In Divisional Forest Officer, Gadchiroli (supra) it has been held that the Act of 1946 is a special Act dealing with conditions of service of workmen in an industrial establishment enumerated in the Schedule appended to the said Act. Unless the same is excluded under Section 13-B of the said Act the same would continue to apply. It is found that there is no such notification placed on record by the petitioners nor is there any order of exemption exempting the Establishment-petitioner No.3 from the provisions ::: Uploaded on - 23/12/2019 ::: Downloaded on - 26/04/2020 00:59:27 ::: J-WP-28-11 8/8 of the Act of 1946. In absence of any such exemption the provisions of the Model Standing Orders which give more benefit to the workman than under the provisions of the Discipline and Appeal Rules would apply in the matter of payment of subsistence allowance. The question with regard to the effect of conflict between the Standing Orders and the Discipline and Appeal Rules would result in the Standing Orders prevailing as has been held in Divisional Forest Officer, Gadchiroli (supra).
9. It is thus seen the learned Judge of the Industrial Court has correctly applied the legal position as prevailing to the facts of the present case. It is therefore found that there is no reason to interfere with the impugned judgment.
As a result, the writ petition stands dismissed. Rule stands discharged leaving the parties to bear their own costs.
JUDGE Asmita ::: Uploaded on - 23/12/2019 ::: Downloaded on - 26/04/2020 00:59:27 :::