Writ Petition No.4012 of 2011

12th December 2018

Petitioner Counsel: Mr. R. M. Sharma
Respondent Counsel: Mrs. U.A. Patil Mr. A.D. Mohgaonkar Mr. D.M. Kale Mr. A.R. Chutke

Cases Cited :
Para 12: Nandkumar Vs. Union of India, reported in 2009(5) Mh.L.J. 296
Para 12: Bhagwati Prasad Vs. Delhi State Mineral Development Corporation, reported in 1990 SCC ( L and S) 174

JUDGEMENT

1. Civil Application No.1443 of 2018 is filed on behalf of the petitioners seeking directions. Considering the issues raised in the said application, it becomes evident that the writ petition itself can be disposed of.

2. The petitioners have filed the present writ petition challenging judgment and order dated 23.08.2010 passed by the Industrial Court, Nagpur, whereby complaint filed by the petitioners under Sections 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Laour Practices Act, 1971 was only partly allowed. The respondents were restrained from recovering salary paid on higher pay-scale with basic at Rs.1235/- instead of Rs.1155/- while the corrigendum issued by the respondents in this context was not commented upon.

3. It is the case of the petitioners that they were working as Line Helpers with Maharashtra State Electricity Board, which was later on trifurcated in the year 2005 into three companies, i.e. Distribution Company, Transmission Company and Generation Company. It is pointed out by the petitioners by way of the said civil application that identically situated employees of the erstwhile Board had filed complaints before the Industrial Court at Nagpur bearing Complaint U.L.P. No.200 of 1999 and Complaint ULP No.905 of 1998. The very same Court allowed the said complaints in entirety and by orders dated 20.08.2010 and 09.12.2010, not only held that the attempt of recovery of alleged excess salary paid to the complainants was bad, but the aforesaid corrigendum itself was set aside , along with the office order of the same date.

4. But, the very Industrial Court at Nagpur, only partly allowed the complaint of the petitioners and there was no finding given on the validity of the said corrigendum.

5. As a consequence, while recovery of alleged excess amounts paid towards salary to the petitioners was not undertaken by the respondents, the higher pay-scale with basic at Rs.1235/- was not given to the petitioners. But, since aforesaid complaints of other identically placed employees had been allowed and the corrigendum had been set aside by the aforesaid two judgments by order dated 20.08.2010 and 09.12.2010, the said identically placed employees continued to receive salary at the higher pay-scale with basic at Rs.1235/-. It was pointed out by the petitioners that the aforesaid two judgments in complaints filed by the identically placed employees were not challenged by the respondents and they attained finality.

6. On this basis, it was contended by Mr. Sharma, learned counsel appearing for the petitioners that once the respondents had accepted the said two judgments and orders passed by the Industrial Court, Nagpur, setting aside the aforesaid corrigendum and the identically situated employees continued to receive salary at the higher pay-scale, the respondents could not deprive the petitioners of the same relief and that only on this ground the present writ petition ought to be allowed.

7. Mr. Mohgaonkar, learned counsel appearing for respondent Nos. 2,3,4 and 5 and Mr. D.M. Kale, learned counsel appearing for respondent Nos. 8 and 9 attempted to justify the aforesaid corrigendum and to argue the case on merits in order to demonstrate that the petitioners were not entitled to higher pay-scale worked out on the basis of basic pay at Rs.1235/-.

8. Heard counsel for the parties.

9. The admitted position on facts in the present case is that three complaints were filed before the Industrial Court at Nagpur, raising similar grievances regarding the action on the part of the respondents to deprive the employees including the petitioners herein from benefit of higher pay-scale. This was sought to be done on the basis of the aforesaid corrigendum, as a cut-off date was specified therein and it was thought fit by the respondents to deprive the petitioners and other similarly situated employees of grant of higher pay-scale on the ground that they were appointed after the cut-off date. It is also an admitted position on record that two of the said complaints were allowed and the said corrigendum was expressly set aside by the Industrial Court. Yet, the complaint of the petitioners was only partly allowed and only the aspect of recovery was set aside and there was no finding rendered by the very same Court on the aforesaid corrigendum. The orders passed in the other two complaints by the industrial Court, Nagpur were dated 20.08.2010 and 09.12.2010, while the impugned order passed by the Industrial Court in the present case was dated 23.08.2010.

10. It is also an admitted position that the respondents did not challenge the orders passed by the Industrial Court dated 20.08.2010 and 09.12.2010 passed in Complaint ULP Nos. 200 of 1999 and 905 of 1998 respectively, wherein the aforesaid corrigendum stood set aside.

11. Once it is found that the said orders passed by the Industrial Court setting aside the corrigendum had attained finality, the consequence of the same was that the respondents were expected to grant similar relief to all identically situated employees. But, since the Industrial Court in the present case only partly allowed the complaint of the petitioners, they have been deprived of the higher pay-scale while the employees who had filed similar complaints before the industrial Court had got the benefit of higher pay-scale.

12. The learned counsel for the petitioners is justified in relying upon the judgment of this Court in the case of Nandkumar .vs. Union of India reported in 2009(5) Mh.L.J. 296, wherein in a similar situation this Court has held as follows:-
“10. We have perused both the orders passed by the Tribunal on the same day. We are not in a position to appreciate as to how the tribunal has taken a different stand so far as Original Application of the present petitioner is concerned. We are not in position to accept the submissions of Smt. Heena Shah, the learned counsel appearing for the respondent No.1 that the tribunal had committed an error while allowing the said three Original Applications as it is an admitted fact that the respondent No.1 has already accepted the decision and has given benefit of regularisation to the said applicants. Once a Court decides the case on a particular factual basis, then consistency is required to be maintained. If on the basis of identical facts and same basis the tribunal has given the benefits to the applicants in the said three Original Applications, the same benefit should have been given by the tribunal to the present petitioner as consistency in passing judicial order is required to be maintained so that no litigant may go with the feelings that even though the facts were identical, the decision given by the Court is different. Even otherwise when the Department has accepted the judgment of the tribunal in earlier cases, there is no reason as to why the Department should be given similar benefits to the present petitioner. At this stage, the learned counsel for the petitioner relied upon the decision of the Supreme Court in case of Bhagwati Prasad .vs. Delhi State Mineral Development Corporation reported in 1990 SCC ( L and S) 174 wherein it has been held that when daily rated workers serving for long with artificial breaks in service, benefit of continuous service should be given to them and whether they possessed minimum educational qualification is the question relevant at the stage of appointment and not at the stage of confirmation when workers gained long practical experience.
11. The learned counsel for the respondent submitted that the tribunal has passed a wrong order in the said three Original Applications as the order of the tribunal is de hors the rules. However, in our view, since the respondent No.1 has already accepted the judgment and the benefits were given to the said applicants, there is no reason to single out the present petitioner from the said treatment. Therefore in our view, the benefits, which are given to the applicants in the said three Original Applications, should also be extended to the present petitioner by the respondent No.1 and that whatever benefits have been given to the applicants in other three Original Applications, same should be given to the present petitioner also in a similar manner.”

13. Applying the said position of law, it becomes clear that the petitioners herein are entitled to the benefit of setting aside of the said corrigendum and to the relief of higher payscale with basic at Rs.1235/- as granted to the identically placed employees who were the complainants in the other two complaints allowed by the Industrial Court, Nagpur.

14. In the light of the above, it becomes clear that the impugned order passed by the Industrial Court only partly allowing the complaint of the petitioners requires to be interfered with and modified to hold that the complaint is allowed in its entirety and the petitioners are also held entitled to the benefit of setting aside of the corrigendum and office order as per orders passed by the Industrial Court dated 09.12.2010 and 20.08.2010 in Complaint ULP Nos.905 of 1998 and 200 of 1999. This brings the petitioners on par with the identically situated employees who had filed the aforesaid two complaints before the Industrial Court. The consequential benefits shall be granted to the petitioners herein. The respondents shall clear the arrears payable to the petitioners in terms of this order, within a period of six months from today.

15. Rule made absolute in the aforesaid terms with no order as to costs.

16. Civil Application No.1443 of 2018 stands disposed of.