Gujarat Ambuja Cement Ltd. vs C. Varghese And Anr.
2003 Latest Caselaw 778 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Heard the learned Advocates for the parties. Perused the records.

2. The petitioners are challenging the judgment and order dated 31-7-2000, passed by the Industrial Court, Mumbai, allowing the complaint filed by the respondent and directing the petitioners to pay wages to the respondent for the month of December, 1991 till May, 1992, and further to pay arrears of increment, H.R.A., L.T.A., medical reimbursement, conveyance allowance, as laid down in para 37 of its judgment i.e., considering the increment of Rs. 150/- instead of Rs. 400/- per year as claimed by the respondent.

3. The impugned order is sought to be challenged on the ground that the increment is ordered to be paid based on the principle of equal pay for equal work even though it is not permissible for the Industrial Court to deal with such an issue under a complaint under the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971, hereinafter called as "the said Act". Secondly, that the respondent who was appointed on a consolidated salary could on have been equated with the employees who were regularly recruited and having ignored the same while ordering the payment of increment, the Industrial Court has acted illegally in exercise of its jurisdiction. Thirdly, according to the petitioners, the Industrial Court has failed to consider that there is no right for increment in salary to the employee and it was purely at the discretion of the employer that the increment was granted. Fourthly, the impugned order is challenged on the ground that the proceedings initiated were barred by the law of limitation, however, the Industrial Court did not apply its mind to the said issue properly and rejected the same in contravention of the provision of law. Reliance is sought to be placed in the decision of the learned Single Judge of this Court in the matter of Mazgaon Dock Limited v. Engineering Workers' Union, reported in 2002(III) C.L.R. 61, and of the Apex Court in the matter of Utkal University and another v. Jyotirmayee Nayak and others, reported in 2003(4) S.C.C. 760.

4. Upon hearing the learned Advocates and on perusal of the records, it is seen that though the issue relating to the parity of pay was considered by the Industrial Court, the order directing increment has been granted after having found the petitioner-company being involved in unfair labour practices in relation to the increment to be granted as well as the practice which was followed in that regard by the petitioners and discrimination disclosed in respect of the respondent in comparison with the other employees. As rightly submitted by the learned Advocate for the respondent, it was the case of the petitioners themselves that the increments were granted at the discretion of the management on the basis of the performance appraisal reports in relation to the employees. It is also the case of the petitioners that in relation to the year 1986-87 the respondent was granted increment of Rs. 150/- per year for the succeeding year i.e., for the year 1987-88. It is also the case of the petitioners themselves that though no increment was granted at the rate of Rs. 50/- per year and that the reduction in the increment was on account of unsatisfactory performance by the respondent. The conclusion regarding unsatisfactory performance was arrived at based on the appraisal reports. At the same time, it is also a matter of record and undisputed fact that no such appraisal reports were ever brought to the notice of the respondent before being relied upon to deny the increment at the rate of Rs. 150/- per year, which was granted to the respondent at the end of the year 1986-87.

5. The Industrial Court, in the above disclosed facts, has observed that "it is to be noted that the company has given the increment of Rs. 150/- to the complainant for one year. Thereafter, again the increment of Rs. 50/- was given to the complainant i.e. the less increment. This is sufficient to suggest that there is a practice of giving increments. Further, it is the stand of the company that the increment were not given to the complainant because his performance appraisal report was not upto the mark or was not good". After arriving at these findings, the Industrial Court while rejecting the claim for increment of Rs. 400/-, has ordered increment at the rate of Rs. 150/-, as was originally granted by the petitioners to the respondent, taking note of the fact that it was the case of the petitioners themselves that the maximum increments granted to the employees of the petitioners were at the rate of Rs. 500/-. Being so, it is not the case of parity of pay or that the increment has been ordered on the basis of equal work, equal pay. On the contrary, the increment has been ordered specifically taking into consideration that the petitioners had initially granted increment at the rate of Rs. 150/- and it was denied for two years and was reduced to Rs. 50/- subsequently on the basis of the alleged poor performance reports while admitting that the said reports were not even brought to the notice of the respondent. In other words, while penalising the respondent by way of reduction in the increment as well as denying increments for two years, the respondent was not heard in the matter and even the basis principles of natural justice were not followed and the discretion claimed is not in relation to grant or refusal of the increment but admittedly it was on the basis of the performance by the workman. Being so, in the absence of the performance report, if adverse to the respondent, being brought to his notice and heard in the matter, it was not permissible for the petitioners either to deny or reduce the increments. Indeed, the Industrial Court has in fact granted the relief, bearing in mind the said principle.

6. As regards the ground of limitation, the learned Advocate for the respondent is justified in contending that the petitioners are not entitled to raise such a ground at the fag end of the proceedings before the Industrial Court. Undisputedly, the said ground of limitation was not raised in the written statement nor canvassed in the course of recording of the evidence and it was sought to be raised only at the time of final argument before the Industrial Court. Apparently, there was no opportunity to the respondent to lead necessary evidence in support of his contention about the complaint being within the period of limitation. The point of limitation is not a pure question of law but it is a mixed question of law and facts. Being so, the party desiring to raise such a point, has to raise the same in its pleadings so that the opposite party gets opportunity to meet the contentions in relation thereto and, if necessary, to produce evidence in support of his/her defence. That apart, the Industrial Court has considered the point of limitation and has observed that the cause of action for the complaint being of recurring nature, the question of limitation does not arise in the case in hand. The petitioners have not been able to point out anything so as to hold the said finding to be either perverse or not borne out from the records.

7. It was also sought to be contended that being an employee appointed on consolidated wages, in terms of the appointment letter, the respondent could not have claimed the increment as a matter of right. The argument is totally devoid of substance. It is the case of the petitioners themselves that subsequent to the appointment, increments were granted by the petitioners themselves. The grievance of the respondent raised relates to denial of such increments once granted and reduction thereof and as such the action being in discrimination in comparison with the other employees and for the reasons stated above, the respondent having succeeded to establish the same, there is no question of denying the increments solely on the basis that the initial appointment of the respondent was on consolidated basis.

8. As regards the decision in the matter of Mazagaon Dock Limited v. Engineering Workers' Union (supra), therein the Union had complained of favouritism and discrimination on the ground that though the job of both the categories of employees was same/similar, the diesel shop workmen were getting two additional increments while the out door fitters were not paid equal wages for equal work being done by them. According to the said Union, as the duty and the job performance by the out-door fitters was of the same/similar nature, as compared with the diesel shop workmen, there was no ground for discrimination to pay lesser wages to the out-door fitters than those of the diesel shop workmen. According to the Union, the payment of two additional increments to the diesel shop workmen amounted to an act of favouritism regardless of merits, as contemplated under Item 5 of Schedule IV of the said Act. In the back ground of those facts, the learned Single Judge has observed that:---

"Whether the duties or the work done by the out-door fitters and the diesel workmen was of some or the similar nature could not be decided in a complaint of unfair labour practice under section 28 and section 30 of the M.R.T.U. & P.U.L.P. Act."

The case is clearly distinguishable on facts.

9. In the matter of Utkal University and another v. Jyotirmayee Nayak and others (supra), the Apex Court was dealing with a matter wherein the employees had sought direction against the University to treat the said employees as regular employees and pay them salary on par with similarly placed employees working in the University on regular basis. It was not in dispute that the employees who had sought such direction were appointed on consolidated salary and they continued to be employees on same terms and conditions on the date of filing of the petition claiming the said direction. In those set of facts, the Apex Court had observed that "under these circumstances, the question of regularisation of services of the respondents does not survive". Apparently, it was a case relating to claim for regularisation on the lines of the employees who were regularly employed when admittedly the claimants were appointed on consolidated salary and it was not a case relating to grievance of reduction in the increment by adopting discriminatory attitude and practising unfair labour practices in terms of Item 5 of Schedule IV of the said Act. Hence, the said decision is of no help to the petitioners in the case in hand.

10. For the reasons stated above, there is no case made out for interference in the impugned order and therefore the petition fails and is hereby rejected. The rule is discharged. Interim relief stands vacated. No order as to costs.