Philips India Ltd., Mumbai vs H.H. Surana And Anr.
2001 Latest Caselaw 646 Bom

JUDGMENT

Nishita Mhatre, J.

1 . The petitioners challenge the order of the Labour Court passed in an application under Section 33-C(2) of the Industrial Disputes Act whereby the petitioners were directed to pay certain amount to the 1st respondent. A few relevant facts are as follows :

The 1st respondent was appointed in the petitioners Pela factory on 26th May 1972. Under the appointment order, the 1st respondent was informed that he would be transferred to any department of the petitioners' establishment. He was also informed that at the time of transfer he would be placed in the appropriate

grade and scale applicable at the place of transfer keeping in view the existing grade. He was assured that his total emoluments will not be reduced. The 1st respondent was confirmed on 26th November 1973. The 1st respondent was transferred to the petitioners' factory at Pune. On 12th July 1978, the 1st respondent made an application for a transfer to the Head Office at Mumbai. While his case was being considered by the petitioner, the 1st respondent made another application against a vacancy which had arisen in Mumbai. Since the 1st respondent was found suitable, after being interviewed, he was transferred to Mumbai on 21st March 1980. However, the 1st respondent was informed by the petitioners that they were considering the transfer at his request and therefore, he would not be entitled to any transfer facilities. After joining in Mumbai, the 1st respondent who was drawing salary in scale of Rs. 160-12/5-220-13/5-285-14/5-355 in Pune was placed in a scale of Rs. 144-13/6-222-15/6-312-18/8-456. As a result, the 1st respondent was given a basic wage which was far less than the basic wage that he was drawing in Pune. However, the wage which was given to him was of the Bombay scale. Being aggrieved the 1st respondent called upon the petitioners to rectify their action and pay him salary in accordance with his appointment letter as also to give him the facilities available to an employee on transfer. As this was not acceded to by the petitioners, the 1st respondent filed an application under Section 33-C(2) of the Industrial Disputes Act claiming arrears of wages from 1st April 1980 to 31st March 1983 being an amount of Rs. 25,099.99 and travel expenses incurred during the shifting amounting to Rs. 13,209/-.

2. Parties adduced both oral and documentary evidence before the Labour Court. The Labour Court by its order dated 6th May 1998 directed the petitioners to pay an amount of Rs. 19,728.13 on account of basic wages plus D.A. from 1st April 1980 to 31st March 1983 and an amount of Rs. 6,681.15 as his personal allowance for the same period.

3. Mr. Rele for the petitioners submitted that the application under Section 33-C(2) is not maintainable as the 1st respondent is in fact questioning the terms of his transfer, and the propriety and legality of a transfer can be decided only in a Reference under Section 10(1)(d) of the Act. He further submitted that the transfer was effected on humanitarian grounds at the request of the 1st respondent and therefore he would not be entitled to the facilities and allowances payable to transferred employees. Mr. Rele further submitted that the Labour Court had merely copied the written arguments submitted by the respondent No. 1 as his order. He submitted that after transfer of the 1st respondent his total emoluments were protected as although he was being paid total emoluments in Pune amounting to Rs. 1284.77, in Mumbai he was drawing a salary of Rs. 1361.60 on a basic wage of Rs. 196/- per month. Mr. Rele further submits that there was no scale in Bombay which was comparable with the scale in Pune which was being paid to the 1st respondent and hence if the 1st respondent was aggrieved by the fitment of scale Rs. 144-13/6-222-15/6-312-18/8-456, he would have to approach the Court by way of a reference to have the dispute adjudicated.

4. In support of his contention Mr. Rele relied on several decisions. He first, relied on the Judgment of Apex Court in case of Central Bank of India Ltd.

and Ors. v. Rajagopalan and Ors. reported in 7963 // L.L.J. Page 89 wherein it has been held that the Court acting under Section 33-C(2) is like an executing Court. The Apex Court has considered the scope of Section 33-C(2) and Section 33-C(1) in this Judgment. He further relied on the Judgment in case of State Bank of Bikaner and Jaipur v. Khandelwal reported in 1968 (1) L.L.J. Page 589 wherein the Apex Court has again dealt with the scope of an application under Section 33-C(2) of the Industrial Disputes Act. He also relied upon the Judgment reported in a case of K. V. R. Krishna Rao and Ors. v. Bharat Dynamics Ltd. 1994 LAB 1C. NOC 6. The Andhra Pradesh High Court has come to the conclusion that if there is no reduction in the total emoluments of an employee on transfer, he cannot have any grievance. He then relied upon Judgment of this Court in the case of Pandurang Trimbak Yeole and Ors. v. The Personal Officer, Hindustan Aeronautics Ltd. reported in 1990 I CLR Page 38 in support of his contention that if the total pay packet of the workman is not diminished he cannot have any complaint against the employer.

5. Mr. Gonsalves for the 1st respondent urged that the scope of the powers of the Labour Court dealing with an application under Section 33-C(2) of the Act was wide enough to consider the question as to whether the 1st respondent was being paid wages in accordance with the scale applicable to him. Mr. Gonsalves contends that the application under Section 33-C(2) is maintainable. According to him, the question as to whether a workmen has been correctly fitted or not is an incidental one and has been answered by the Supreme Court in a case of Punjab National Bank Ltd. v. Kharbanda reported in 1962 / L.L.J. Page 234. He submitted that the term "Protection of total emoluments" on transfer of an employee, means that the employees total wage packet should not be reduced. However, there was no bar to the employee receiving a higher pay packet from the one he was being paid at the original place of work. He relied on the clause of transfer in the appointment letter of respondent No. 1 and the circular issued by the petitioners indicating the facilities available to the monthly paid clerical and technical workmen upon their transfer.

6. It will be useful at this juncture to set out the transfer clause in the

appointment letter of the petitioner which reads thus ;

"That you will be posted initially in ELA department of our Pela Factory at Mazgaon but you may be transferred to any job, in any department of any of our establishments in the Indian Union. At the time of this transfer you will be placed in the appropriate grade and scale applicable at the place of transfer, keeping in view your existing grade and ensuring that the total emoluments are not reduced. If you are transferred to another location, you will be paid the Deamess Allowance applicable to other employees in that establishment, irrespective of your previous rate of Deamess Allowance and this will not constitute a change in your service conditions."

Para 9 relates to facilities on transfer of monthly-paid clerical and technical

workmen which reads thus :

"FITTING IN NEW GRADE-STRUCTURE AND D.A. -- A workman transferred will be fitted in the comparable grade in the following manner:

a)      If the existing basic pay is equal to a step in the appropriate grade he will be fitted in that step
 

OR
 

b)      If the existing basic pay does not correspond with any step in the grade, he will be stepped up to the nearest next step. The employee shall be entitled to receive Dearness Allowance at the rate applicable to workmen of the same grade and salary in the place of transfer from the actual date of transfer."  
 

On reading both these provisions it is clear that an employee on transfer from one department to another or from one location to the other is entitled to a comparative grade in the place of his transfer, and his existing emoluments arc not to be reduced. This however, does not mean that on transfer to a different place the employee is not entitled to higher emoluments when fitted in the comparative grade at the place of transfer. In fact the conditions of transfer in para 9 indicate that fitment in a new grade shall be comparable to the existing grade and if no such grade exists at the place of transfer then emoluments will be fixed by stepping up to the appropriate grade. In the present case the 1st respondent was being paid wages in Pune in scale of Rs. 160-12/5-220-13/5-285-14/5-355. As a result of this he was being paid Rs. 367A as basic wages in Pune. On his transfer to Mumbai the petitioners have paid Rs. 196/- as basic wages and have placed him in the scale of Rs. 144-13/6-222-15/6-312-18/8-456. It is obvious that the fitment given is incorrect as the 1st respondent was required to be fitted in the scale in which he would draw basic wage of Rs. 367/- or in a scale which would give him a basic wage nearest to Rs. 367/- upon his transfer to Bombay. As this has not been done by the petitioners the Labour Court has rightly directed them to pay the dues to the 1st respondent.

7. In the case of Punjab National Bank Ltd. (supra) the Supreme Court has considered the case of an employee claiming fitment under the provisions of Saslri award in an application under Section 33-C(2). The workmen contended that the appellant in that case had fitted him in the incorrect scale and therefore, he was not entitled to a higher basic wage. A similar contention was raised in the matter that the Labour Court acting under Section 33-C(2) has no jurisdiction to decide whether fitment given to a workmen is correct. The Supreme Court however repelling this argument has held that while considering the scope of Section 33-C(2) when payment due to the workmen was not stated in the award itself and there is a dispute as to its calculation, Sub-section (2) of Section 33-C would apply and the Labour Court would have to calculate the amount. The Supreme Court further came to the conclusion that the Labour Court under Section 33-C(2) can determine the corresponding scale for the purpose of fixation of the wage.

8. In the present case the situation is similar, in that the actual amount payable to the respondent No. I, on transfer, has not been mentioned either in the appointment letter or in the circular issued by the petitioners regarding facilities on transfer. There is a dispute with respect to the grade to be given to respondent No. 1, the Labour Court was required to calculate this amount and has done so.

The application under Section 33-C(2) is therefore maintainable. Mr. Rele's contention to the contrary cannot be sustained.

9. The Judgments cited by Mr. Rele in Central Bank of India Ltd. and Ors. v. Rajgopalan and Ors. (supra) and State Bank of Bikaner and Jaipur (supra) deal with the scope of Section 33-C(2) of the Industrial Disputes Act. Undoubtedly the scope of Section 33-C(2) is limited to a certain extent as the jurisdiction of the Labour Court is similar to a Court dealing with execution proceedings. However this does not mean that the incidental question which arises in the present case in respect of the actual fitment in the grade, upon transfer, cannot be decided. The grade in which the 1st respondent was fitted was Rs. 144-13/6-222-15/6-312-18/8-456. However, he has not been fitted properly in that grade and ought to have been fitted in a manner so that he would draw approximately the same basic salary as he was drawing in Pune. The Labour Court has considered this aspect and has granted the application under Section 33-C(2).

10. Mr. Rele also contended that the Labour Court has not really determined the amount due to the 1st respondent as he has merely reproduced the arguments of the 1st respondent. This appears to be so. However, I have considered the record and have found that the petitioners have wrongly paid the basic salary of only Rs. 196/- to the 1st respondent. Mr. Rele was unable to give any reason as to why the basic salary of Rs. 196/- is paid to respondent No. 1. The fitment ought to have been made at the rate which was comparative to Rs. 367/- which he was getting as basic wage in Pune.

11. I, therefore, concur with the findings arrived at by the Labour Court. Petition is therefore dismissed. Rule is discharged. However, in the circumstances of the case, there will be no order as to costs.

12. It appears that the petitioners were directed to deposit, the decretal amount and the 1st respondent was permitted to withdraw 50% of the amount on condition of furnishing the security to the satisfaction of the Prothonotary and Senior Master. The amount has not been withdrawn by the 1st respondent. In view of this the amount which has been deposited by the petitioner shall be paid to the 1st respondent together with interest accrued thereon.

13. All parties concerned to act on an ordinary copy of this order duly authenticate by the Associate of this Court.