J D Khairnar

Order - Status 7: ttm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6006 OF 2011 The Chief Executive Officer, Zilla Parishad, Nasik .. Petitioner Vs. State of Maharashtra and Anr. .. Respondents Mr.Mahesh Agawekar i/b Ms.Anamik Malhotra for the petitioner Mr.P.G.Sawant 'B' Panel for respondent no.1 Mr.J.D.Khairnar for respondent no.2 CORAM: K.K. TATED, J. DATE: 1st AUGUST, 2011 PC: Heard the learned counsel for the parties. Rule. Rule made returnable forthwith. By consent, matter is taken for final hearing and disposed of at the stage of admission itself. By this petition, under Articles 226 and 227 of the Constitution of India, petitioner original respondent challenges the order dt. 6.5.2011 passed by learned Member, Industrial Court, Nasik, below Ex.U2 filed by respondent no.2 for interim relief to stay the operation and implementation of transfer order dt. 16.12.2010 issued by the petitioner, Zilla Parishad, Nasik. Respondent no.2 is working with the petitioner, Zilla Parishad, Nasik as Desk Officer. Initially, on account of misconduct he was suspended by order dt.1.9.2010. Thereafter, respondent no.2 made representation to the petitioner. Considering respondent no.2's representation, petitioner issued the order dt. 15.12.2010 reinstating respondent no.2 in his original post subject to departmental enquiry. Thereafter, on the next date, petitioner issued transfer order dt.16.12.2010 transferring respondent no.2 on said post to Panchayat Samiti, Surgana. Respondent no.2 joined their as Desk Officer and worked for 4/5 months. Thereafter, respondent no.2 filed a complaint (ULP) No.108 of 2011 before the Industrial Court under Items 3 and 9 of Schedule IV of MRTU and PULP Act, 1971 along with application for interim relief under section 30(2). In the said complaint, respondent no.2 contended that he is suffering 40% disability and same is declared by the Medical Board as per certificate dt.3.3.2005. Thereafter, on the basis of Government Resolution dt.15.04.2004 and 15.12.2004, he is entitled to be posted near his home town i.e. at Nasik. The said interim application was allowed by leaned Member, Industrial Court by impugned order dt.6.5.2011 and directed petitioner, Zilla Parishad, Nasik to allow respondent no.2 to work at Nasik or near Nasik as per Government Resolution No.15.04.2004 and 15.12.2004. Hence, the present petition. The learned counsel for the petitioner submits that the learned Member of Industrial Court erred in coming to the conclusion that respondent no.2 by way of interim relief is entitled to stay the operation and implementation of the transfer order dt. 16.12.2010. He further submits that initially respondent no.2 was suspended on 1.9.2010 and thereafter, considering his applications, they reinstated him on his original post by order dt.15.12.2010 subject to departmental enquiry. He further submits that departmental enquiry is going on against respondent no.2. He further submits that initially respondent no.2 joined the services as per transfer order dt.16.12.2010 at Panchayat Samiti, Surgana without complaining about his disability and thereafter, filed complaint (ULP) No.108 of 2011. He submits that the main complaint is pending for hearing and final disposal. The Industrial Court by interim relief allowed indirectly prayer in the main complaint itself. Therefore, impugned order passed by learned Member, Industrial Court, Nasik, dt.6.5.11 is liable to be set aside. On the other hand, the learned counsel for respondent no.2 vehemently opposed the present petition. He submits that as per Government Resolution dt.15.04.2004 and 15.12.2004 respondent no.2 is entitled to the posting near his home town. He submits that respondent no.2 has his house at Nasik. Since beginning he has stayed there. He submits that the Village Surgana is about 50 to 60 kms from Nasik and therefore, it is very difficult for him to attend his duty there. He submits that after joining at Surgana he noticed that due to 40% disability he is facing several difficulties and therefore, he preferred the present complaint. I have gone through the G.R. dt.15.4.04 and 15.12.04. I have also gone through the reinstatement letter dt.15.12.2010 and transfer order dt.16.12.2010. It is to be noted that initially respondent no.2 was suspended in the year 2010. On his request, petitioner reinstated him on 15.10.10 subject to departmental enquiry. Not only that his main complaint challenging the transfer order dt.15.12.2010 is pending. By interim relief learned Member, Industrial Court, Nasik indirectly allowed the respondent no.2's main complaint itself. Considering all these facts, I am of the opinion that the learned Member, Industrial Court, Nasik erred in staying operation and implementation of the Tribunal's order dt.16.12.2010 directing petitioner Zilla Parishad, Nasik to allow respondent no.2 to work at Nasik or near Nasik as per G.R. dt.15.4.2010 and 15.12.2010. The learned counsel for the petitioner makes a statement that at present, no post is available at Nasik or near Nasik. Considering these facts, the impugned order passed by the learned Member, Industrial Court, Nasik below Exh.U2 in complaint ULP 108 o 2010 is set aside. 10.Considering the facts and circumstances of the present case, hearing of complaint (ULP) No. 108 of 2011 is expedited. 11.Writ Petition is disposed of accordingly. (K.K.TATED,J.)