JUDGMENT Dharmadhikari B.P., J.
1. The petitioner employer has challenged in this Writ Petition orders passed by the respondent No. 2 Labour Court, Bhandara in proceedings under Section 33C(2) of Industrial Disputes Act. The proceedings were instituted by the respondent No. 1 with a grievance that though he was appointed and working as Laboratory Assistant, he was wrongly shown as Laboratory Attendant and he was paid salary in lower pay sale. He worked out the difference at Rs. 54,742.55, for the period from 21.8.1990 and 31.12.1982 and that difference has been allowed by the Labour Court. This Court has while issuing Rule in the matter, directed the petitioner-employer to deposit 50% of the amount and has granted stay to the remaining part. The petitioner has accordingly deposited the said amount of Rs. 27,372/- with the Labour Court, Bhandara. This Court had also permitted the respondent No. 1 to withdraw that amount upon furnishing security to the satisfaction of the Labour Court.
2. The respondent-employee made grievance before the Labour Court, that he was appointed by order dated 12.8.1980 as Laboratory Assistant in the pay scale of Rs. 205-355 and accordingly he was working on that post. He was discharging his duties as laboratory Sampler, but he was not paid wages in the pay scale for Laboratory Assistant and was paid wrongly in the scale meant for Laboratory Attendant i.e. Rs. 200-280.
3. The application was opposed by the present petitioner, who stated that there was no sanctioned post of laboratory Assistant. They further denied that pay scale of Laboratory Sampler is 205-355, which is the pay scale of laboratory assistant. They contended that the employee was previously appointed as laboratory attendant in Class IV cadre and pay scale of Rs. 200-280 was paid accordingly.
4. The employee entered witness box and deposed in support of his claim. He was cross-examined and it appears that the present petitioner did not enter the witness box. The Labour Court after considering the evidence adduced, and after hearing the parties passed the impugned orders.
5. Learned Assistant Government Pleader Shri Kothari, appearing for petitioner has contended that, the respondent employee, was no doubt initially appointed as laboratory assistant by order dated 12.8.1980. However, he states that this was an error and it was corrected by the modification order dated 12.9.1985, in which it was specifically mentioned that the appointment order should be read as appointment on the post of laboratory attendant in the pay scale of Rs. 200-280. He states that this order was also served upon the respondent employee and he further states that there was no sanctioned post of laboratory assistant with the petitioner. He argues that the post sanctioned was that of only laboratory attendant. He further invites attention to the fact that even salary for the post of Sampler was Rs. 200-280 i.e. equivalent to that of laboratory attendant. According to him, in view of this material and when there was specific defence before the Labour Court, that there was no sanctioned post of laboratory assistant, the Labour Court ought to have seen that there was no existing right in employee to enable him to claim the salary in the pay scale of Rs. 205-355, as laboratory assistant. He argues that it was not necessary for petitioner to enter the witness box for this purpose. According to him in any case there is error apparent and the Labour Court has not approached the controversy in right perspective. He therefore submits that the matter may be remanded back to the Labour Court for fresh adjudication in accordance with law.
6. No body appears for respondent No. 1 employee, though served.
7. Perusal of the written statement filed by the petitioner before the Labour Court clearly reveals that the petitioner have in defence stated that the post of laboratory assistant is not sanctioned. The documents which are produced on record, namely - modification order dt. 12.9.1985, further shows that though the respondent employee, was initially in the year 1980 appointed as laboratory assistant in the pay-scale of Rs. 205-355, the said order was corrected to read as appointment on the post of laboratory attendant in the pay scale of Rs. 200-280. The copy of order produced by the learned Assistant Government Pleader for perusal of this Court reveals that the same was served upon the respondent No. 1 employee by the petitioners. The Government Resolution dated 31.7.1978, on the subject of creation of posts for new dairy at Gondia, District Bhandara where the respondent No. 1 was working shown in Quality Control Section the sanctioned posts of Laboratory Attendant and Sampler. The entire statement accompanying this Government Resolution shows 25 posts and it does not mention any post as Laboratory Assistant. One post of Laboratory Attendant and one post of Sampler is sanctioned at the establishment where the respondent was working. As per this document, pay scale for laboratory attendant and pay-scale of sampler is 200-280.
8. However, it is also apparent that none of these documents have been proved before the Labour Court by the present petitioner. Perusal of the impugned order itself reveals that no body on behalf of the petitioner entered the witness box and hence, these documents have not been proved by the petitioner. Not only this, but the copy of the order of correction dated 12.9.1985 is also not put to respondent employee and is not exhibited on record. All these documents have been produced before the Labour Court by the petitioner in August, 1993 it self while the examination-in-chief of respondent employee was conducted on 5.2.1996. In his examination-in-chief and also in cross-examination, there is no reference of any of these documents.
9. The records further show that on 8.12.1984, the respondent No. 1 employee had himself represented that post of Sampler is available at Gondia, but he was appointed as Laboratory Assistant and still his salary is being drawn in the pay-scale of Rs. 200-280. He has stated that he was appointed as laboratory attendant at Gondia. He has further made grievance that name of another employee has been forwarded for appointment on the post of Sampler and injustice is being done to him. This communication therefore clearly shows that the employee was aware that he was appointed on the post of laboratory attendant. But, again as already mentioned above, there is no cross-examination conducted by the petitioner in this respect.
10. When the appointment order dated 12.8.2000 shows that the respondent No. 1 was appointed as laboratory assistant in particular pay scale, grievance made for that pay scale cannot be said to be not cognizable under Section 33C(2). This is particularly, when the service of modification order dt. 12.9.1985 is not proved upon the respondent No. 1 by the petitioner. But, then considering the fact that the petitioner is a establishment of Government of Maharashtra, and the revenue with it is a Public Revenue, and also after considering the fact that 50% of the amount is already received by the respondent No. 1, I am inclined to give one more opportunity to the petitioner to prove the documents mentioned above. This is because, the documents mentioned above appear to be authentic and were produced before the Labour Court well within time, but have not been referred to and are not proved only on account of some inadvertent error or negligence in handling the matter. In these circumstances, the impugned order dated 21.3.1996 is hereby set aside. I.D.A. No. 26 of 1993, is restored back to the file of Labour Court, Bhandara. The petitioner is at liberty to cross-examine the respondent No. 1 employee in relation to the documents filed by them before the Labour Court and the respondent No. 1 Employee shall also be at liberty to lead additional evidence in this respect, if he wishes to do so, after his cross-examination. He is also at liberty to place more documents in this respect. After the evidence of respondent No. 1 [applicant before Labour Court] is over, the petitioner employer shall be free to lead their own evidence in accordance with law. The Labour Court shall thereafter hear both the parties and pass fresh order in the matter.
11. It is made clear that the amount of Rs. 27,372/- deposited by the petitioner as per the interim orders of this Court, if withdrawn by the respondent No. 1, shall not be recovered from him till the final adjudication of this dispute by the Labour Court.
12. Writ Petition is thus allowed. Rule is made absolute in the aforesaid terms. However, in the circumstances, no cost.