Suresh Raghunath Mistri and ors. Vs. Bhiwandi Nizampur Municipal Council and ors. - Court Judgment

Excerpt:
- maharashtra village police act (46 of 1967)sections 5, 6 & 15: [swatanter kumar, c.j., a.p. lavande & smt. vasanti a. naik, jj] powers of police patil held, section 15 clearly states the varied powers that are vested in the police patil. he is vested with the power to call and examine witnesses, record their statements and search for concealed articles. such are the powers given to the police patil under the provisions of the village police act. the powers vested in the police patil under the provisions of the village police act are relatable to the duties and functions for which the police patil is appointed. to give meaning to these powers beyond the scope of the duties would be an approach not quite permissible in law. the duties, functions and powers of the police patil under the provisions of the village police act do not vest him with the powers which are vested in police officer under the provisions of the criminal procedure code. the powers given to him under the village police act are limited in their nature and scope and are not as wide specific and consequential as the powers of a police officer under the provisions of the criminal procedure code. the police patil is to act unlike a police officer under the orders of the district magistrate and has to report the matters to him and even where he makes some inquiry or investigation, he is expected to submit report to the station officer and has not been empowered to take any further action, like preparation of a charge sheet or its presentation before the court of competent jurisdiction. he is vested with no powers in regard to the powers vested in an investigating officer under the provisions of section 173 of the criminal procedure code. the act does not contain any deeming provision which by fiction of law would term a police patil as a police officer. it could be possible that an act may specifically stipulate that a police patil for all intent and purpose shall be deemed to be a police officer under the provisions of the village police act and/or the criminal procedure code. in the absence of such a deeming fiction of law, it is difficult to confer the status of a police officer in law upon a police patil or accept the contention that the police patil is clothed with the powers and functions of a police officer. neither there is any specific provisions in the act not on principle of implied interpretation it can be said that provisions of the act suggest that the police patil is a police officer in law. his duties, functions and powers are not identical or even closely identical to the powers of a police officer under the provisions of the criminal procedure code. 1. this writ petition has been filed by eight workmen of the first respondent municipal council. their complaints under the provisions of the maharashtra recognition of trade unions and prevention of unfair labour practices act, 1971 (hereinafter referred to as 'the act') were dismissed by the industrial court, thane, by its order dated november 28, 1986. 2. after having carefully read the impugned order, i am of the view that the approach of the industrial court in dealing with the grievances was erroneous, without focussing its attention on the relevant issues which required trial. the court below has misdirected itself in law. 3. the case made out by the petitioners in their respective complaints filed under section 28 of the act, read with items 5, 6, 9 and 10 of the schedule iv of the act, was simple. the case was that there was an award passed by the industrial tribunal in reference (it) no. 412 of 1966 to which both the first respondent and the workmen were parties under which there was a direction that the workmen who had completed one year's service were to be made permanent subject to availability of clear vacancy in a permanent post. the grievance made by the petitioners was that they were all working as fireman from the years 1976, 1977, 1978, 1979 and 1980 and, inspite of there being clear vacancies, they had not been made permanent by the first respondent with a view to deprive them of their rights, status and benefits arising from the permanency. on the state of the record as it stands before me, and even upon perusal of the order of the court below it is not possible to ascertain whether, as on the date of the complaint, there were any existing clear vacancies of permanent posts, and, if so, how many vacancies are there. the only argument, which seems to have impressed the industrial court, is the argument of the first respondent that, by a circular dated march 2, 1981 issued by the directorate of municipal administration certain minimum qualifications for appointment of fireman were prescribed and that the petitioners did not fulfil those qualifications. the first respondent contended that the petitioner were totally ineligible for appointment on posts of firemen. it is not understood as to how a circular issued in 1981 laying down minimum qualification for posts of firemen could have been made applicable retrospectively to the petitioners who were employed between the period 1976 to 1980. the industrial court seems to have been overtly impressed ky the fact that the first respondent had passed a resolution no. 283 dated september 22, 1981, by which minimum qualification for the post of a fireman was relaxed and that the said resolution had been forwarded for the sanction of the commissioner, but had not yet been approved of as on the date of the trial. mr. pradhan appearing for the first respondent is unable to categorically say whether the said resolution has been, approved or rejected, even today. the grounds for dismissing the complaints of the petitioners are two-fold. first, respondent had forwarded its resolution no. 283 dated september 22, 1981 to the appropriate authority, which absolved the first respondent of all allegations of malafides. neither of these grounds is satisfactory. in my view, it is not possible to dispose of the complaints at this stage as the necessary issues, nor evidence appear to have been recorded; without recording proper issues and proper evidence, the dismissal of the petitioners' complaints was erroneous. in my view, the petitioners are entitled to have their complaints tried in accordance with law. 4. in the result, the impugned order of the industrial court is quashed and set aside. complaints (ulp) nos. 211, 212, 214, 215, 216, 218, 220 of 1983 and complaint (ulp) no. 305 of 1984 are restored to file and are hereby remanded to the industrial court, thane, for trial and disposal according to law. the industrial court shall keep in mind the observations made by this court while trying the complaints. since the dispute is pending for over 11 years, it is expected that the industrial court would expeditiously dispose of the matter, preferably within a period of nine months from the writ reaching the industrial court. rule made accordingly absolute with no order as to costs 5. certified copy expedited.