Bombay High Court
City Of Nagpur Corporation vs Fago Sampatrao Ukey on 8 December, 2009
Bench: B. P. Dharmadhikari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 2724 OF 2005.
City of Nagpur Corporation,
Civil Lines, Nagpur - 440 001
through its Municipal Commissioner. ....PETITIONER.
ig VERSUS
Fago Sampatrao Ukey,
Aged about 45 years, Occ - Service,
C/o. Shri Shende's House,
Gopal Nagar, IIIrd Bus Stop,
Opposite Shriram Kirana,
Nagpur. ....RESPONDENT.
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Mr.C.S. Kaptan, Advocate for Petitioner.
Mr V.P. Marpakwar, Advocate for Respondent.
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CORAM : B.P. DHARMADHIKARI , J.
DATED : DECEMBER 08, 2 0 0 9.
ORAL JUDGEMENT.
1. This Petition under Articles 226 and 227 of the Constitution of
India challenges the order dated 31.03.2005 delivered by the Industrial
Court, Nagpur in ULP Complaint No. 1406/1994, by which the petitioner /
employer is found to have indulged in unfair labour practice falling under
Item No.9 of Schedule IV of the Maharashtra Recognition of Trade Union and
Prevention of Unfair Labour Practice Act, 1971 (hereinafter referred to as
"the MRTU & PULP Act" for short), by not giving promotion as
Superintendent to the present respondent as per resolution no.126 dated
13.08.2003. The employer has been directed to give that promotion from
13.08.2003. This Court has on 17.06.2005 admitted the Writ Petition and
granted stay to the effect and operation of the order dated 31.03.2005
impugned in the Writ Petition.
2. Shri C.S. Kaptan, learned counsel for petitioner / employer has
made grievance that, the resolution dated 13.08.2003 was not the subject
matter of ULP Complaint and no finding in relation thereto, therefore, could
have been recorded in the order by the Industrial Court. He points out that
by the said resolution, the respondent / employee was cleared for promotion,
but, no order of promotion as such was issued. He states that employer
accordingly had expressed desire that pending ULP Complaint should be
withdrawn and thereafter, the order of promotion should be issued. He
contends that, this does not constitute unfair labour practice at all, and
finding of unfair labour practice under Item 9, could not have been reached
because of such contention. He also argues that, as the employee did not
work on promotional post after 13.08.2003 till date, there is no question of
releasing any arrears on account of difference in salary in his favour. He
argues that, it was in the hands of the respondent to withdraw the ULP
Complaint to join on promotional post, but, the respondent deliberately
avoided to join on the promotional post.
3. Shri Marpakwar, learned counsel for respondent, states that
before the Industrial Court the respondent / employee demonstrated that
when promotions were effected in 1994, his claim was superseded and
resolution no.179 dated 29.11.1994 was pressed into service and proved for
that purpose. He invites attention to the evidence adduced by the respondent
and also to cross examination of petitioners' witness for this purpose. He has
also pointed out that, the entitlement of respondent to promotion is
recognized in subsequent resolution dated 13.08.2003 and hence Industrial
Court has not recorded any findings about the supercession in 1994.
According to him the addition of condition which required respondent to
withdraw his ULP Complaint itself constituted unfair labour practice under
Item 9, as it violates Section 28 and Section 23 of the Indian Contract Act.
He states that in this circumstance, the petitioner cannot be permitted to
invoke the doctrine of 'no work no pay' as respondent employee was all the
while ready and willing to work on promotional post. He has taken the court
through all the relevant documents/material on record for this purpose.
4. The facts show that the respondent filed ULP Complaint on
7.12.1994 pointing out his supercession in the matter of promotion by
motion dated 29.11.1994, intended resolution on subject no.179, containing
name of his juniors. It is to be noted that, the resolution dated 13.08.2003,
was not available in time and there is no amendment to ULP Complaint
thereafter. The petitioner / employer has filed Written Statement on
30.08.1995 i.e. before 13.08.2003. The petitioner then filed affidavit of his
evidence and in it he has spoken about resolution on subject no. 179, as per
notice of meeting dated 29.11.1994. He has pointed out that, 4 employees
were actually promoted and they were junior to him. He was cross examined
and in cross examination also he has pointed out that those employees were
juniors. Nothing material has been brought on record in his cross
examination to discredit him. Thereafter, one Pandurang Ambhore, an
Officer working as Assistant Superintendent with the petitioner was
examined and his examination-in-chief filed on affidavit is in relation to claim
in complaint and the resolution on subject no. 179. In his cross examination,
he accepted that he could not state without verification of record, whether
the respondent employee was appointed on 28.08.1986 i.e. prior to the
employees who were promoted as per resolution passed on subject no. 176.
Thus, the employee has succeeded in showing that he was superseded by his
juniors in 1994 itself. In cross examination, the resolution dated 13.08.2003
was shown to Shri Ambhore. It appears that, the document was filed during
the cross to confront said witness and the witness accepted it to be correct.
5. On the basis of this material, the Industrial Court has delivered
impugned order on 31.03.2005. Though, the respondent had invoked item 5
as also item 9 of Schedule IV, it has recorded a finding that the unfair labour
practice under item 9 was only established. It did not find that any unfair
labour practice falling under item 5 about employer showing favoritism or
partiality to one set of workers, regardless of merit was made out. Bare
perusal of the complaint shows that no such set of employees was pleaded
therein. This finding of unfair labour practice under Item 9 is reached
because of condition contained in resolution no. 126, dated 13.08.2003 and
non-implementation of that resolution because of said condition.
6. The resolution specifically observes that the posts of
Superintendent were lying vacant and one such post was reserved for VJ/NT
as per back log. The respondent was found eligible for that purpose and
hence, the general body resolved unanimously to grant him promotion.
However, a rider was put requiring the withdrawal of ULP Complaint and
order of promotion was directed to be issued only after the said complaint i.e.
ULP Complaint No.1504/1994 was withdrawn by the present respondent.
7. This Court has in 1998 [3] BCR 590 (M/s. KEC International
Ltd. .vrs. Kamani Employees Union and others ), while considering the unfair
labour practice under Item 9 of schedule IV of the Industrial Disputes Act,
1947 and item 10 of the MRTU & PULP Act, has found that a employer has
right to persuade the employee and such persuasion cannot be viewed as
unfair labour practice falling under Item 10 of Schedule IV of the MRTU &
PULP Act. These observations contained in paragraph no.29 show that the
expression "force" under item 10 of Schedule IV will not include failure to
comply with the provisions of law, and it has been held that merely because
the employer persuades employee to accept the condition of service, it cannot
be said that such change is brought about by force, within the meaning of
Item no.10.
8. Provisions of Section 23 of Indian Contract Act, states the
consideration and object which are lawful and which are not unlawful.
Section 28 thereof, states that an agreement which absolutely restricts a
party from enforcing his rights under or in respect of any contract, by the
usual legal proceedings, is void to that extent. The judgment of Hon'ble
Apex Court reported at AIR 1986 SC 1571 (Central Inland Water Transport
Corporation .vrs. Brajo Nath Ganguly and another ), considers provisions of
Section 23 of the Contract Act and Regulation 9[i] of the Central Inland
Water Transport Service Discipline and Appeal Rules, 1979 which
empowered that Corporation to terminate services of permanent employees
without giving any reason and by giving notice, was held to be void to that
extent, and, it was found opposed to public policy. The arguments of
mutuality advanced by the employer on the ground that similar right was
conferred on the employees also was rejected by the Industrial Court. The
contract was found to be unfair and unreasonable and it was also noted that
parties thereto were unequal in bargaining power.
9. In AIR 1997 SC 2049 (National Insurance Co. Ltd. .vrs. Sujir
Ganesh Nayak and Co.), the Hon'ble Apex Court has considered provisions of
Section 28 of the Contract Act and in paragraph no.17 observed that, an
agreement which in effect seeks to curtail the period of limitation and
prescribes a shorter period than that, prescribed by law was void to that
extent. It also considers in what circumstances, the clause in agreement
would not be covered by the said bar. It is not necessary for this Court to go
into those details in present facts.
In 1985 CLR 188 (The Raja Bahadur Motilal Poona Mills Ltd. .vrs.
Girni Kamgar Sanghtana and another), this Court while considering the
provisions of item 10, found that there was difference between an illegal act
and unfair labour practice. Merely because an employer contravenes the
provisions of some enactment or even indulges in an illegal act, it cannot be
said that he is indulging in an unfair labour practice. The word "force" used
in item 10 is held to mean an action which is designed to compel another to
do an act or refrain from doing an act.
10. From judgments considered above, it is apparent that though the
employer can persuade employee, he cannot coerce him and such coercion
will definitely amount to force under item 10 of Schedule IV. The condition
added in resolution dated 13.08.2003 by which the respondent was informed
that his promotion orders would not be issued unless and until he withdrew
ULP Complaint No.1406/1994, therefore, was not a persuasive step. It
constituted coercion to see that he withdraws ULP Complaint first.
11. Facts discussed above clearly show that, his supercession by 4
juniors in 1994 was established by the present respondent. The said evidence
and its impact has been considered by the Industrial Court in paragraph no. 7
of the impugned order, where it found that, the norm for determination of
seniority were not produced on record by employee and the promotion was
on the basis of seniority-cum-merit. It is obvious that implication of principle
of seniority-cum-merit, has not been considered by that Court.
12. Be that as it may, the Industrial Court found it proper to note that
by subsequent resolution no.126 dated 13.08.2003, decision to promote
respondent was already taken. It has therefore, granted benefit to
respondent from the date of said resolution dated 13.08.2003. The fact of
passing resolution perhaps has been considered by the Industrial Court as
recognition of eligibility of respondent to be promoted and therefore, being
undisputed one. The respondent has not challenged the order of Industrial
Court further. Hence, in present circumstances, it is obvious that, his
entitlement flows from resolution dated 13.08.2003 only.
13. Shri Kaptan, learned counsel is therefore right when he states
that resolution dated 13.08.2003 was not the subject matter of ULP
Complaint and no finding of unfair labour practice could have been arrived
at because of that resolution. However, from discussion above, it follows that
the petitioner/employer recognized the entitlement of respondent to be
promoted during pendency of the ULP Complaint. That recognition of his
claim is incorporated in resolution no. 126 dated 13.08.2003. After noticing
that entitlement, resolution was not given effect to by issuing promotion
order and the petitioners tried to coerce the respondent employee to
withdraw his ULP Complaint. As Public Body and model employer, Articles
14 and 16 required petitioner to issue promotion order to respondent leaving
the challenge to earlier supercession to be decided in accordance with law. It
could not have taken steps to see that such challenge is killed undecided.
The respondent - employee had a right to complain about his supercession
and to approach Industrial Court for redressal of his grievance. That right
could not have been defeated by petitioners in such mode and manner.
14. However, as resolution dated 13.08.2003 was not made the
subject matter of any unfair labour practice before the Industrial Court, I do
not find it necessary in this petition to record any finding about unfair labour
practice under Item 10 of Schedule IV. The said finding reached by the
Industrial Court in present facts does not call for any interference.
15. The respondent could not be promoted because of the condition
of withdrawal of ULP Complaint as mentioned above. It is apparent that the
respondent therefore, cannot be blamed for not working on promotional post,
but at the same time it follows that the respondent could have pointed out
that, resolution to Industrial Court and could have obtained appropriate
orders under Section 30[2] of the MRTU & PULP Act. The respondent has
not taken any such steps, and he did not even bother to amend his ULP
Complaint to bring these developments on record. Hence I find that the
Industrial Court could not have given any benefit for the period from
13.08.2003 till it delivered the impugned order. After 31.03.2005 the
petitioner / employer ought to have promoted respondent and hence,
respondent is entitled to all benefits from the said date. Hence impugned
order of Industrial court is partly modified. Accordingly, respondent is held
entitled to continuity on promotional post as Superintendent from
13.08.2003 and to arrears on account of the said promotion from
31.03.2005. He will be notionally fixed in scale of promotional post and his
pay on 31.03.2005 shall be fixed by treating him as continuous on that post.
He is not entitled to any arrears from 13.08.2003 to 31.03.2005.
16. Writ Petition is thus partly allowed, however, in the
circumstances of the case, there shall be no orders as to costs.
JUDGE
Rgd.
