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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.1939 OF 2001
1.Municipal Commissioner, )
Pune Municipal Corporation, Shivaji Nagar, )
Pune 411 005. )
)
2.Shri.Arun Patil, )
Assistant Municipal Commissioner, )
Lands & Estates, Pune Municipal Corporation )
Shivaji Nagar, Pune. )...Petitioners
Vs.
Shri.Kisan Babu Darge, )
Room No.180, Chawl No.8, Pandav Nagar, )
Health Camp, Pune 411 016. )...Respondent
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Mr.R.M.Pethe, for the Petitioners.
Ms.Seema Sarnaik, for the Respondent.
......
CORAM : G. S. KULKARNI, J.
RESERVED ON : 8th March, 2017
PRONOUNCED ON : 23rd March,2017
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JUDGMENT:-
1. This petition under Article 226 of the Constitution of India challenges the judgment and order dated 24 January 2001 passed by the learned Member of the Industrial Court, Pune (for short "the Industrial ::: Uploaded on - 23/03/2017 ::: Downloaded on - 25/03/2017 01:02:43 ::: Pvr 2 wp1939-01.doc Court") in Complaint (ULP) No.79 of 2000 whereby the Industrial Court has allowed the Complaint of the respondent declaring that the petitioners have engaged in unfair labour practice under Item Nos.9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practice Act,1971 (for short "MRTU & PULP Act"), and has directed to continue the respondent in the employment of the petitioners as "Web Offset Boller" till the age of 60 years, that is upto 31 March 2002. The operative order passed by the Industrial Court reads thus:-
"O R D E R
1. Complaint is allowed.
2. It is hereby held and declared that the Respondents have engaged unfair labour practice under Items 9 & 10 of Schedule IV of the Act. The Respondents are hereby directed to cease and desist from engaging such unfair labour practice.
3. The Respondents are hereby directed to continue the complainant in its employment as Web Offset Baller till he attains the age of 60 years i.e. upto 31.3.2002.
4. During the pendency of this case, if the complainant is unemployed because of compulsory retirement order of the Respondent Corpn., the complainant is entitled for all the monetary benefits for the intervening period, which should be paid by the Respondents to the Complainant within one month.::: Uploaded on - 23/03/2017 ::: Downloaded on - 25/03/2017 01:02:43 :::
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5. Cost of this proceeding is quantified at Rs.1000/- which should be paid by the Respondents to the Complainant. The Respondent Corpn. Should bear its own costs.
6. This order shall take effect after one month from today."
FACTS:
2. At the relevant time and for about 33 years, the respondent was in the employment of the petitioner-Corporation, as an unskilled Class IV employee. Upto January 1991, he was working as a "Boller" (Class IV) in the pay scale of Rs.230 - Rs.430 (revised pay scale Rs.829 - Rs.1724). By an order dated 19 January 1991, in pursuance of the proposal of the Municipal Commissioner dated 10 January 1991, the respondent is stated to be appointed on promotion as 'Web Offset Boller' in the pay scale Rs.360 to Rs.586. This order recorded that this promotion was ad-hoc and was on a probation for a period of two years. The pay bills which are placed on record and more particularly pay bill dated 24 June 1999 issued to the respondent, though indicated the designation of the respondent as a "Web Offset Boller", however, showed the respondent in Class IV. The age of retirement for the employees in class IV was 60 years of age and for the employees falling in Class III, the age of retirement was 58 years. ::: Uploaded on - 23/03/2017 ::: Downloaded on - 25/03/2017 01:02:43 :::
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3. The petitioners issued a letter dated 17 December 1999 to the respondent informing the respondent, that on 3 March 2000 the respondent would be completing 58 years of age and according to the service rules, he would be superannuated on 31 March 2000 after office hours. The respondent through is workers' Union viz. 'Pune Mahanagarpalika Kamgar Union', submitted a representation dated 10 January 2000 that the respondent was Class IV employee and therefore, as per the Rules, the age of retirement would be 60 years and that he was being inappropriately retired at the age of 58 years. This letter was responded by the petitioners' Deputy Commissioner by its letter dated 5 February 2000 addressed to the said Union, interalia stating that with effect from 10 January 1991, the respondent was appointed as "Web Offset Boller" in the higher pay scale which was a promotional post and, therefore, he ceased to be a Class IV employee, as the promotional post as was not falling in the inferior services (Class IV), therefore, his superannuation at the age of 58 years was justified.
4. The respondent being aggrieved by this action on the part of the petitioners superannuating him at the age of 58 years, approached the Industrial Court by filing a Complaint (ULP) No.79 of 2000 under Section 28 of the MRTU & PULP Act. In the complaint, the respondent contended that his post fell under various inferior services (Class IV), which are listed ::: Uploaded on - 23/03/2017 ::: Downloaded on - 25/03/2017 01:02:43 ::: Pvr 5 wp1939-01.doc and shown in 'Annexure A' to the Service Regulations and thus, was entitled to be superannuated on attaining the age of 60 years, that is, on 31 March 2002. The respondent contended that only because there was change in designation and the wage scale, the respondent would not cease to be a Class IV employee and the age of superannuation of respondent could not be changed. The respondent contended that there was no difference in the work performed by the respondent and the nature of work which was included in the inferior services. The respondent contended that his service condition was governed by the Model Standing Orders under which the age of superannuation was 60 years, despite which, a letter 17 December 1999 was issued that the respondent services stand relieved on 31 March 2000 on attaining the age of 58 years. The respondent accordingly contended that the petitioners have acted contrary to the service Regulations and had committed unfair labour practice under Sections 9 and 10 of Schedule IV of the MRTU & PULP Act.
5. The petitioners appeared in the respondent's Complaint before the Labour Court, as also filed a written statement opposing the respondent's case. The case of the petitioners was that the respondent was promoted to the post of 'Web Offset Boller' vide order dated 10 January 1991 and was given a higher pay scale. The petitioner contended that the work of 'Boller' was linked with 'letter press printing' and the ::: Uploaded on - 23/03/2017 ::: Downloaded on - 25/03/2017 01:02:43 ::: Pvr 6 wp1939-01.doc work of "Web Offset Boller" was connected with 'offset printing'. It was stated that the post of "Web Offset Boller" was not included in the "inferior service" which as listed in 'Annexure A' of the Schedule and the post of "Web Offset Boller" falls in Class III category and thus under Rule 66 of the Municipal Service Rules, the age of superannuation of the employees in superior services would be 58 years. The action of superannuating the respondent at the age of 58 years was thus proper and justified. Petitioners also contended that the Model Standing Orders are also not applicable.
6. The Industrial Court examining the rival pleas, and the evidence has recorded a finding that the plea of the petitioners that the respondent actually belongs to Class III 'superior service' cannot be sustained, as there was no material on record to support the said contention of the petitioners. Also, this was no material to show that the petitioners in clear terms had any time informed the respondent that he is now covered under Class III because of promotion as "Web Offset Boller". It was also observed that the wage bills, also supported the contention as raised by the respondent, where the respondent for substantial period was shown to belong to Class IV and not Class III except in the wage bill for the month June 1999 which referred the respondent as Class III. It was also recorded that while appointing respondent as "Web Offset Boller" in ::: Uploaded on - 23/03/2017 ::: Downloaded on - 25/03/2017 01:02:43 ::: Pvr 7 wp1939-01.doc the year 1991, there is no entry in the service book by changing his category from Class IV to Class III or that there was a change of designation from Class IV to Class III and the retirement age was changed from 60 years to 58 years. Even the documents referred in the communication dated 17 December 1999 retiring the respondent on attaining the age of 58 years i.e. on 31 March 2000, these letters were not placed on record by the petitioners. It was thus observed that there were serious anomalies in the case of the petitioners and that the petitioners had acted against its service rules and forcibly had issued a compulsory retirement order dated 17 December 1999 committing unfair labour practice under Items 9 and 10 of Schedule IV of the Act. The complaint of the respondent came to be allowed in the terms as noted above. The petitioner is accordingly before this Court, challenging the above judgment and order passed by the Industrial Court.
7. Learned Counsel for the petitioners in assailing the impugned order submits that the Industrial Court has completely overlooked that the respondent was promoted from Class IV post of 'Boller' to the post of 'Web Offset Boller', a Class III post, by a promotion order dated 10 January 1991. He submits that the pay scale of respondent was a higher pay scale by virtue of his promotion viz. Rs.360 to Rs.586. He submits that the other persons who were working as Bollers were admittedly drawing less ::: Uploaded on - 23/03/2017 ::: Downloaded on - 25/03/2017 01:02:43 ::: Pvr 8 wp1939-01.doc wages / pay scale than the respondent, and therefore, the finding of the Industrial Court that the respondent continued to be Class IV employee is not only erroneous but perverse. He submits that even the pay bill came to be corrected though initially after promotion of the respondent on the post of 'Web Offset Boller' the pay bill marked the respondent to be in Class IV, the same was an inadvertent clerical mistake which came to be rectified subsequently from June,1999. It is, therefore, his submission that the impugned order deserves to be quashed and set aside.
8. On the other hand, the learned Counsel for the respondent would submit that the Tribunal has recorded a finding of fact which would clearly demonstrate that the respondent was continued as a Class IV employee even taking into consideration the purported promotion order dated 10 January 1991 appointing him as 'Web Offset Boller'. It is submitted that it was only change of nomenclature/designation in view of introduction of new technology. It is submitted that there is no such post of "Web Offset Boller" which was created by the petitioners and which can be called as promotional post in Class III. It is, therefore, submitted that the Tribunal has rightly held that there was no material on record to accept the contention of the petitioners that the post in question was a Class III post so as to retire the respondent at the age of 58 years. It is submitted that the duties of the respondent had remained the same as a ::: Uploaded on - 23/03/2017 ::: Downloaded on - 25/03/2017 01:02:43 ::: Pvr 9 wp1939-01.doc 'Boller' though the name / designation of the post held by the respondent was changed. It is accordingly prayed that the petition be dismissed.
9. On the aforesaid rival contention, I have heard the learned Counsel for the parties and with their assistance I have also gone through the impugned judgment and other documents placed on record on the paper book. There is no dispute that the respondent was initially appointed as 'Boller' and thereafter he was appointed to the post of "Web Offset Boller" on 10 January 1991. The post of 'Boller' is classified as Class IV post in 'Annexure A' of the Schedule of the Municipal Service Rules and finds place at Sr.No.40. The other posts in 'Annexure A' are winders, helpers, dressers, telephone attendant, Waterman, Filler, Pump Attendant, Meter Repairer, Senior Binder etc. There are in all 53 posts which are described in the Schedule as 'inferior services'. By an order dated 10 January 1991, the petitioners have contended that the respondent was granted ad-hoc promotion as 'Web Offset Boller'. This order records that the promotion was ad-hoc and was on probation for a period of two years. In the column of 'increased wage scale' as 'Web Offset Boller', it was shown to be Rs.360 to Rs.586. Although this was the position, however, the Petitioners did not place any material on record to show that this promotion was in fact a promotion to higher the post which can be called to a Class III post. The petitioners did not place on the ::: Uploaded on - 23/03/2017 ::: Downloaded on - 25/03/2017 01:02:43 ::: Pvr 10 wp1939-01.doc record of the Tribunal any material to show that a higher post of 'Web Offset Boller' in Class III was a existing higher post or such a post was created. Even assuming that such promotional post was existing, there is no material to show that the probationary appointment of the respondent was confirmed on this higher post, after the completion of probationary period or that the nature of this ad-hoc appointment was changed to a permanent appointment under the service rules. In fact, what is material to note is that right from 1991 upto May 1999, the respondent was shown to be belonging to Class IV in the wage bill. This, according to the petitioners, is termed as a clerical mistake. It is difficult to so believe in the absence of any supporting material or evidence. Thus, considering the material as placed on record and the observations made by the Industrial Court, I am not persuaded to accept the case of the petitioners that the respondent by an order dated 10 January 1991 was promoted to a Class III post. There appears to be much substance in the case of the respondent that the so called promotion was merely a change in the designation or change in the nomenclature of the post accompanied with some extra benefit in the pay scale. More particularly, there is a finding of fact recorded by the Tribunal that the nature of duties of the respondent had remained the same as of post of 'Boller'. It has also come in evidence that none of the employees were working under the control of the respondent. The assertion of the respondent about nature of the duties ::: Uploaded on - 23/03/2017 ::: Downloaded on - 25/03/2017 01:02:43 ::: Pvr 11 wp1939-01.doc being performed by him as a boller has also gone unchallenged by the petitioners. The Tribunal has held there duties to be manual and unskilled. It has also come on record that the other Class IV employees namely winders, copy holders were also having higher pay scale and those employees belonged to Class IV. Thus, it was not a case that only the respondent who was working as 'Web Offset Boller' was getting a higher scale and the others working in Class IV were not getting higher scale. The Industrial Court has rightly taken note of residuary item in 'Annexure A' being Item no.53 which includes, "any employee who would be undertaking work of the nature as falling in the inferior service and who could have any other different designation." In "Karnataka Bank Ltd. vs Smt. Sunita B. Vatsaraj"1 the Division Bench of this Court considering several earlier decisions held that mere designation of an employee or nomenclature of a post is not determinative of a character or nature of duties performed by an employee. In the present case, the petitioners have not brought any material on record to show that in fact the duties which were being performed by the respondent were of a superior or higher nature than the one he was performing as a 'Boller' so as to accept the petitioners' contention that in fact the respondent had ceased to belong to Class IV and was actually performing superior duties of a post which were in Class III.
1 2008 (1) BomCR 891
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10. Learned Counsel for the petitioners is unable to point out any basis on which the petitioners could support their contention that by virtue of the promotion of the respondent on the post of 'Web Offset Boller', the respondent ceased to belong to Class IV and the said post would fall in Class III, so that the superannuation of the respondent would be at the age of 58 years and not 60 years.
11. The impugned order passed by the Industrial Court has taken into consideration the entire material as placed on record as also the service Rules on the basis of which the Industrial Court has recorded a finding of fact that the respondent continued to be in a service as a Class IV employee though the nomenclature of the post was changed from 'Boller' to 'Web Offset Boller'. I do not find that there is any perversity or illegality in the finding as recorded by the Industrial Court.
12. It is well settled position in law that the Court in exercise of jurisdiction under Article 226 and 227 of the Constitution of India would not correct the error of fact however grave it may appear to be, it would only correct the errors of jurisdiction committed by the inferior Court or Tribunals, where the orders are passed without jurisdiction or in excess of jurisdiction. An error of law on the face of the record can be corrected but ::: Uploaded on - 23/03/2017 ::: Downloaded on - 25/03/2017 01:02:43 ::: Pvr 13 wp1939-01.doc not the error of fact. (See 'Sayed Yakoob vs. K.S.Radhakrishnan & Ors."2 and "Davinder Singh v. Municipal Council, Sanaur"3)
13. Resultantly, the petition fails and is accordingly dismissed. The petitioners are directed to grant to the respondent all consequential benefits considering his age of retirement as 31 March 2002, within a period of eight weeks from today.
(G. S. KULKARNI, J.) 2 AIR 1964 SC 477 3 AIR 2011 SC 2532 ::: Uploaded on - 23/03/2017 ::: Downloaded on - 25/03/2017 01:02:43 :::