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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
Letters Patent Appeal No. 372/2009 in
Writ Petition No. 653/2005 (D)
1. Superintending Engineer,
Maharashtra State Electricity Distribution
Company Ltd. (O & M) Circle Chandrapur,
Dist. Chandrapur (Earlier Superintending
Engineer, Maharashtra State Electricity
Board (O & M) Circle, Chandrapur,
Dist. Chandrapur.
2. Chief Engineer, Maharashtra State
Electricity Distribution Company Ltd.
Urban Zone, Gaddigodam, Sadar,
Nagpur (Earlier Chief Engineer
Maharashtra State Electricity Board,
Gaddigodam, Sadar, Nagpur) .....APPELLANTS
...V E R S U S...
Sukhdeo Ramchandra Dhakite,
aged about 63 years, Occ. Retired,
Divisional Accountant, r/o 13, Siddhardha
Society, Takli Sim, Hingana Road, Nagpur. ....RESPONDENTS
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Mr. A. D. Mohogaonkar, Advocate for appellants.
Mr. M. V. Mohokar, Advocate for respondent.
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CORAM:- S.A.BOBDE AND S. B. DESHMUKH, JJ.
DATED:- 16th March, 2011
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ORAL JUDGMENT (Per:- S. A. Bobde, J.)
1. Heard. Admit. Taken up for final hearing by consent of
the parties.
2. This appeal is against the judgment of the learned Single
Judge holding that Complaint ULP No. 357/1994 filed by respondent-
Sukhdeo Ramchandra Dhakite, complaining illegal punishment having
been imposed on him, will have to be tried even though in another
Complaint ULP No. 442/1996 between the same parties, status of
Sukhdeo on the same post of Divisional Accountant had been gone into
and it has been found that he is not a workman. While Sukhdeo was
working as Divisional Accountant at Nagpur, he preferred a complaint
under the MRTU & PULP Act bearing ULP No. 442/1996 before the
Industrial Court, Nagpur (hereinafter described as ‘the Nagpur
complaint’) complaining that the punishment of reversion imposed on
him was illegal. In the Nagpur complaint, the appellants before us,
raised a dispute that Sukhdeo is not a workman. This issue was
enquired into in detail by the Industrial Court which, upon
consideration of the entire law on the subject and with a well reasoned
order, came to the conclusion that the nature of duties performed by
Sukhdeo as Divisional Accountant show that he was not a workman. In
particular, the Industrial Court held that Sukhdeo, as a Divisional
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Accountant, was called upon to maintain monthly, quarterly, half
yearly and yearly statements and cash budget. He was required to
check the bills and other statements prepared by the L.D.C.,U.D.C. and
a Divisional Accountant. Under the powers delegated by the Board he
was empowered to write annual confidential reports of subordinate
cadres covering Class-III and Class-IV categories. The Industrial Court
further noticed that the post on which Sukhdeo was working had the
powers to audit the bills to the extent of Rs.5,00,000/- and he had to
prepare budget etc. Accordingly, the Court found that the functions of
the post of Divisional Accountant are supervisory in nature and hence
Sukhdeo, being a Divisional Accountant, was not a workman.
The Present Dispute:
3. It appears that Sukhdeo had filed another complaint
while he was at Gadchiroli on the same post, which has given rise to
the present dispute. That complaint being ULP No. 357/1994 had not
been decided when the aforesaid complaint No. 442/1996 was
decided. In this complaint, which was pending, the appellants herein
filed an application for dismissal of the complaint on the ground that it
has already been held in complaint ULP No.442/1996 that while
Sukhdeo was working at Nagpur on the post of Divisional Accountant it
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has been held that the Divisional Accountant is not a workman. This
application was, however, dismissed by the learned Industrial Court on
the ground that the preliminary issues will have to be framed and
decided in this case also. Accordingly, the Industrial Court refused to
dismiss the complaint. Against the said order, the appellants
approached the learned Single Judge of this Court, who agreed that
the nature of the duties performed by Sukdheo as Divisional
Accountant, Nagpur had already been decided and the nature of
duties, which may have been performed by him when he was
functioning as Divisional Accountant At Gadchiroli, would have to be
gone into and that the employer would have to lead proper evidence
to show that the facts considered in Complaint ULP No. 442/1996 were
not different.
The learned single Judge dismissed the writ petition filed
by the appellants. Hence, this appeal.
4. Mr. Mohogaonkar, the learned counsel for the appellants,
submitted that the post on which Sukhdeo was working at Nagpur
when Complaint ULP No. 442/1996 was filed and the post on which
Sukhdeo was working at Gadchiroli, when Complaint ULP No.357/1994
was filed is the same i.e. Divisional Accountant. Indeed, according to
the learned counsel, the said posts are the same throughout the MSEB.
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Since the matter has been gone into in detail and it has been found
that the duties of the post of Divisional Accountant are such that the
incumbent cannot be held to be a workman, there is no reason for the
Court to go through the same exercise only because the other
complaint namely ULP No. 357/1994 was filed in relation to the same
post at Gadchiroli.
5. Mr. Mohokar, the learned counsel for the Sukhdeo, on
the other hand, submitted that the nature of duties are different in that
while Sukhdeo was working at Gadchiroli, which is the subject matter
of Complaint ULP No. 357/1994, he did not have to perform certain
administrative duties, which he had to perform at Nagpur when
Complaint No. 442/1996 was filed. Further, according to the learned
counsel for the respondent, at Nagpur the powers of audit were on
higher side in comparison to the powers of audit at Gadchiroli.
6. We see no merit in the contention raised by learned
counsel for respondent. No difference is pointed out between the
nature of duties of the same post at different places. On the other
hand, it appears from paragraph 11 of the order of the Industrial Court
in Complaint ULP No. 442/1996 that pertaining to the duties performed
at Nagpur Sukhdeo had admitted in his complaint that when he was
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working at Gadchiroli as Divisional Accountant, the posts viz. Lower
Divisional Clerk, Upper Divisional Clerk, Cashier, Assistant Accountant
were under him and further while working in the Division Office posts
of L.D.C., U.D.C., Cashier, Assistant Accountant were treated
subordinates to him because they prepare bills, keep records of
revenue etc. It is obvious that these are the essential duties of the
Divisional Assistant. Certainly, these duties were attached to the said
post at Gadchiroli also and it is not Sukhdeo’s case that those duties
were absent at Nagpur. Applying the principle that the issue; whether
a person is Workman or not; has to be decided on the true nature of
the dominant duties and since the dominant duties have been held to
be supervisory in the said post at Nagpur and since it has been
brought in evidence that such duties were also attached to the post of
Divisional Accountant when he was working at Gadchiroli, we see no
reason why the matter should be tried again. It is also settled law,
vide The Punjab Co-operative Bank Ltd. ..vs.. R. S. Bhatia
(Dead) through L.Rs.; (1975) 4 Supreme Court Cases 696, that
in the subsequent proceedings between the same parties an issue
already decided must be taken barred by principle of res judicata. In
that case, it was found that the issue; whether respondent was
working or not; had already been decided earlier. The Supreme Court
observed as follows:-
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“5. …..A decision given by the competent Labour Court in
that regard has rightly been held as a bar on the principlesof res judicata in the trial of the same issue in the present
proceeding. Moreover, we find that even apart from the
previous order operating as res judicata, practically there
was no evidence on behalf of the appellant in support of itscase that the respondent was not a workman.”
7. In this view of the matter, judgment and order of the
learned Single Judge is set aside. The application of the appellants for
dismissal of the complaint at Exh.-23 before the Industrial Court in
Complaint ULP No. 357/1994 is allowed.
Order accordingly.
At this stage, Mr. Mohokar, the learned counsel for the
respondent, prays for continuation of interim order dated 17.03.1998
passed by Member, Industrial Court, Nagpur. However, we do not
consider it appropriate to do so. That interim order was made because
no written statement was filed and the Industrial Court considered it
appropriate to stay the recovery on the basis that Sukhdeo was still in
service. That is not the situation now. Admittedly, Sukhdeo has
already retired from service. Hence, prayer for continuation of the
interim relief is rejected.
JUDGE JUDGE
kahale
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