Bombay High Court
Gulab Govindrao Lanjewar vs Maharashtra State Road Transport ... on 8 February, 1995
Equivalent citations: (1996)ILLJ308BOM
Author: R.M. Lodha
Bench: R.M. Lodha
JUDGMENT R.M. Lodha, J.
1. By this writ petition under Articles 226 and 227 of the Constitution of India, the petitioner seeks to challenge the order passed by the Industrial Court on July 5, 1989, whereby the said Court dismissed the complaint filed by the petitioner under Section 28 of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The petitioner has also prayed for declaration that passing of departmental promotional examination, after attaining age of 45 years was not mandatory in view of the Government Resolution dated November 1, 1977 to the employees of the Corporation. In the writ petition, the petitioner has also prayed that Clauses 39, 44 and 62 of Mah. State Road Transport Corporation (Recruitment, Promotion, Seniority and Recategorisation) Procedure may be declared ultra vires.
2. The petitioner (for short 'employee') was initially employed as conductor with the respondent (for short 'employer'). According to the petitioner, in view of his seniority as a conductor, he was promoted to the post of traffic controller from 1971 onwards. In the year 1974, by a consolidated order of promotion to the post of Traffic Controller, the employee was posted at Gadhchiroii Depot by allowing fresh pay scale of post of Traffic Controller. The employer stated that the employee was required to appear for an examination which was meant for promotion to the post of Traffic Controller, in which employee appeared but failed. However, subsequently, employee was sought to be reverted by the employer in the year 1984 and that led the employee to file a complaint against the employer before the Industrial Court under Section 28 of the Unfair Labour Practices Act, 1971. The grievance of the employee was that since he was already promoted to the post of Traffic Controller, there was no necessity for appearing in such examination and, therefore, the act of the employer reverting the employee from the post of Traffic Controller was an unfair labour practice. According to the employee, he had already put in 10 years of service continuously as Traffic Controller and even other persons have been promoted to the post of Traffic Controller without passing any examination and, therefore, employee prayed before the Industrial Court that the employer be directed to abstain themselves from reverting the employee and to continue him on the post of Traffic Controller.
3. The employer filed written statement before the Industrial Court and set up a plea that the employee was working as Traffic Controller on purely officiating basis and he was required to pass examination for promotion on the post of traffic controller. Employee was given opportunity for appearing in the examination but he failed. It was also stated in the reply that all the persons who have been promoted as Traffic Controller have passed the examination and the subsequent application filed by the employee for permitting him to appear in the examination was time barred. It was also submitted by the employer that mere working as traffic controller on officiating basis cannot be said to have created any legal right in favour of the employee for claiming permanency or confirmation as traffic controller.
4. The Industrial Court held enquiry and after hearing the parties concluded that the employee has failed to prove that the employer is engaged in unfair labour practice under items 5, 6, 7 and 9 of Schedule IV of Act of 1971. Consequently, the Industrial Court by its order dated July 5, 1989 rejected the complaint.
5. As stated above, the order passed by the Industrial Court on July 5, 1989 has been challenged by the employee in this petition.
6. At the outset it may be submitted that thelearned counsel for the petitioner has not pressed the reliefs sought for in the petition that Clauses 39, 44 and 62 of the Mah. State Road Transport Corporation (Recruitment, Promotion, Seniority and Recategorisation) Procedure may be declared ultra vires. The learned counsel for the petitioner has also not pressed the relief that declaration be made that passing of departmental promotional examination after attaining age of 45 years was not mandatory in view of the Government Resolution dated November 1, 1977 applicable to the employees of the Corporation. The main contention of the petitioner is that right from 1971 till date, the employee is working as Traffic Controller and he has always been willing to pass the examination necessary for such promotion but he has not been given sufficient opportunity under the said Procedure. Mr. Parchure for employee also submitted that his client has been repeatedly making application before the Corporation to permit him to take departmental examination for promotion and in this connection he referred to the application made by the employee on January 31, 1984. He thus submitted that without giving sufficient opportunity to the employee to pass the said promotional examination, the act of the employer to revert the petitioner from the post of Traffic Controller would be unjust and the employer should be directed to permit the employee to appear in the departmental promotional examination.
7. Per contra, the learned counsel for the employer submitted that for a regular promotion to the post of Traffic Controller, the employee is required to pass departmental promotional examination and despite opportunities given to the employee he failed to pass such examination and, therefore, the employer was constrained to revert the employee from the post of traffic controller. Mr. Mehadia, counsel for the respondent submitted that the employee has already been reverted and since he has not passed departmental promotional examination Industrial Court did not commit any error in dismissing the complaint filed by the employee.
8. Clause 39 of Mah, State Road Transport, Corporation (Recruitment, Promotion, Seniority and Recategorisation) Procedure reads as under:-
"39. Employees other than Class IV employees in order to be eligible for promotion shall be required to pass, at stages indicated in Col. 7 of Appendix 'A' such departmental examinations as may be prescribed by the Corporation for the particular grades unless they have already passed the prescribed examination for still higher grade. If any employee fails to pass the examination at the third attempt, he shall be debarred from appearing again for the examination for a period of three years from the date of third attempt. Thereafter, at the discretion of the Competent Authority he may be allowed to make a fourth attempt and if he fails to pass at it, likewise at the discretion of the competent Authority to make a fifth and final one after a period of three years from the date of the fourth one. The employee concerned shall communicate his desire to appear at a particular examination after the third attempt suo motu and at least six months in advance of the limitation of three years."
Undisputedly, the employee is other than Class IV employee and is required to pass departmental promotional examination as may be prescribed by the employer for the promotion of traffic controller. In view of the aforesaid Clause 39, it is apparent that employee is required to be given three attempts for passing departmental promotion examination and if employee fails at the third attempt, he shall be debarred again from appearing in the examination for a period of 3 years from the date of third attempt and then at the discretion of the Competent Authority he may be permitted to make fourth attempt and if he fails to pass in the 4th attempt, likewise at the discretion of the Competent Authority to make a fifth and final one after a period of three years from the date of the fourth one. Clause 39 also provides that after the employee fails at the third attempt he is required to communicate his desire to appear in the particular examination after 3rd attempt suo motu and at least 6 months in advance of the limitation. It is thus clear that an employee is required to be given three attempts for passing the departmental promotional examination and if he fails to pass in three attempts further attempt may be given at the discretion of the Competent Authority in the manner provided under Clause 39. The employer has failed to show that the employee was given 3 attempts to pass the said examination. The employer in his written statement has submitted that the employee has on earlier occasion appeared for the examination but failed. It is thus even not the case of the employer that the employee has exhausted 3 attempts which is permissible under the aforesaid rules and he was, therefore, not entitled to further attempt as a matter of right. On the other hand, the employee in para 4 of his complaint has clearly averred that in the beginning of the year 1984, the employer was proposing to hold promotional examination for the post of traffic controller and though it was not necessary for the employee to appear in the examination, still as a matter of precaution he submitted application with a request to allow him to appear in the examination and he was not allowed and for this denial no reason was communicated. In reply to this, the employer submitted that since application was submitted by the employee beyond the time prescribed for the same, his application was not entertained. However, no material has been placed by the employer as to how application made by the employee was time barred and why he could not be permitted. The employee placed on record the application filed by him before the employer on March 31, 1984 and in the absence of any material to the contrary, there appears to be no justification for the employer for not permitting the employee to appear in the examination proposed to be held by the employer for promotion to the post of traffic controller. The employee undisputedly had been working as traffic controller since 1971 till the date of filing of the application in the year; 1984. Employee's continuation on the promotional post of traffic controller might have been on officiating basis but the fact remains that he has been continuing continuously on promotional post of traffic controller for 13 years prior, to the date of filing of the application. Under Clause 39 of the said procedure, at least three attempts were required to be given to the employee to pass the examination and as observed above, the employer has not placed any material, on record to show that the employee was given three attempts to pass departmental promotional examination. It may be true that one opportunity was given to the employee to pass examination and he failed but that was not the end of the matter and employee was required to be given two more attempts and in any case when the employee made application on January 31, 1984 before the employer for permitting him to appear in the examination, the said application was not considered on unsustainable ground and opportunity was not given to him to appear in the examination, for which he was entitled under Clause 39 of the Rules because before that time, he was not given three attempts.
9. Though Mr. Mehadia learned counsel for respondent submits that the petitioner has been reverted but that does not appear to be correct inasmuch as by interim order dated December 19, 1989 passed by this Court, order of reversion has been stayed and the said order passed by this Court is in operation till today.
10. Be that as it may, it is clear from the aforesaid discussion that the petitioner has not been given three attempts to pass departmental promotional examination by the employer and the application dated January 31, 1984 made by the employee was not considered on unsustainable ground. Thus the petitioner deserves to be given one chance to pass departmental promotional examination for the post of traffic controller so that his officiating promotion on the post of traffic controller may be regularised and he may be confirmed on the promotional post in accordance with the aforesaid Rules.
11. In the result, the writ petition is allowed in part. The order passed by the Industrial Court dated July 5, 1989 is quashed and set aside and the respondents are directed to allow the petitioner an opportunity to pass departmental pro motional examination as required by the employer for regularisation of the petitioner to the post of traffic controller. Respondents are directed to hold necessary departmental examination within three months from the production of the order of this Court and in case the petitioner passes in the said examination, appropriate order of his confirmation and regularisation on the post of Traffic Controller may be passed. In case the petitioner fails in the departmental examination, it would be open to the respondents to pass necessary consequential orders. Rule made absolute in the aforesaid terms. The parties are directed to bear their own costs.