Seth Nandlal Dhoot Hospital, ... vs Mrs. Shobha Gangadhar Ghodke
2016 Latest Caselaw 621 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                           
                         BENCH AT AURANGABAD                                                  
                                                  

                                              WRIT PETITION NO.7608/2014




                                                          
                                        Seth Nandlal Dhoot Hospital,
                                        A-1, MIDC, Chikalthana, Jalna Road,
                                        Aurangabad, through its Chief Executive 




                                               
                                        Officer.                
                                   ig                     ...Petitioner...

                                                  Versus
                                 
                                        Mrs. Shobha W/o Gangadhar Ghodke,
                                        Age : 43 years,  Occu : Service,
                                        R/o : Bajarang Awas, H.No. 112,
                                        Shivsadan, Behind Hotel Champawati,
      


                                        Jalna Road, Aurangabad.
                                                           ...Respondent...
   



      

                            .....     
    Shri A.R. Joshi, Advocate a/w Shri V.P. Golewar, Advocate 





    for petitioner.
    Shri T.K. Prabhakaran,  Advocate a/w Shri  G.S. Telangre, 
    Advocate for respondent.
                            .....





      
                                                 CORAM: RAVINDRA V. GHUGE, J. 

DATE: 15.03.2016

ORAL JUDGMENT :

1] On 2.3.2016, I had recorded the consent of the

learned Advocates as under:-

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"1. The learned Counsels for the respective

sides submit on instructions that they have no objection if this Court hears this matter.

2. The request is made on behalf of Mr. Prabhakaran that the matter may be adjourned for some time.

3. By the consent of the parties, stand over to 15.03.2016."

2] Rule. Rule made returnable forthwith and heard

finally by the consent of the parties.

3] The petitioner is aggrieved by the judgment and

order dated 20.6.2014 delivered by the Industrial Court,

Aurangabad, in Complaint (ULP) No.165/2010.

4] Shri A.R. Joshi alongwith Shri V.P. Golewar,

learned Advocates for the petitioner, have strenuously

criticized the impugned judgment. Their contentions can

be summarized as follows:-

a] The respondent is a Nurse, who is confirmed

in employment and is a senior-most Nurse with

the petitioner.

b] Certified Standing Orders are applicable to

the employees and the petitioner -

establishment.

c] A wage rise of Rs.2500/- per month in the

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year 2008 was given to a particular group of

Nurses since they were lagging behind in their

earnings and the petitioner intended to bring

them closer to the senior Nurses.

d] The respondent was not given such a wage

rise since she was already one of the highest

paid Nurses in the petitioner - establishment.

e] The respondent preferred a ULP complaint

before the Industrial Court invoking Items 5, 9

and 10 of Schedule IV of the MRTU & PULP Act,

1971.

f] The complaint lacked in proper pleadings.

g] A specific cause of action was not made

out.

h] Particulars of a set of workers as is

required to be averred under Item 5 of Schedule

IV were not mentioned in the complaint though

mere names were stated without giving their

details.

i] The petitioner filed its written statement

opposing the complaint.

j] It was averred that increments have not

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been given to any employee in the year 2008.

k] The respondent was already earning

Rs.10,000/- per month.

l] Junior Nurses were getting lesser salaries,

though they were being paid minimum wages and,

therefore, they deserved a wage rise.

m] The respondent admitted in cross-

examination that an increment is not a matter of

right and is within the exclusive domain of the

employer.

n] It was admitted that wage rise is given

after considering the nature of work performed

by an employee.

o] It was admitted that the respondent did not

produce any evidence with regard to the wage

rise given to Smt.Nikam and Smt.Ingale.

p] It was admitted that her gross salary was

more than Rs.10,000/-.

q] The Industrial Court has erroneously

concluded that the respondent deserved a wage

rise merely because other Nurses have been given

such a rise.

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r] The Industrial Court has held in favour of

the respondent only on account of sympathy.

s] The Industrial Court lost sight of the

bona-fide intention of the petitioner that the

junior Nurses were intended to be brought closer

to the senior Nurses in terms of their monthly

wages.

t] The Industrial Court has erroneously

concluded that unfair labour practice under Item

5 of Schedule IV was proved against the

petitioner - management.

u] The impugned judgment deserves to be

quashed and set aside for being perverse.

v] Costs of Rs.15,000/- have been

unnecessarily imposed upon the petitioner -

management without any fault on its part.

5] Shri T.K. Prabhakaran alongwith Shri Telangre,

learned Advocates for the respondent - employee, have

supported the impugned judgment. Contention is that on

account of the averments set out in the written statement

of the petitioner, the case of the respondent is in fact

improved. An employee cannot have a right to claim

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increment since an increment is not a matter of right

unless it is provided for by the terms and conditions of

employment, which includes a short term or a long term

settlement.

6] It is further submitted that if the petitioner

has given a wage rise to some Nurses, they could not have

excluded the respondent from being a beneficiary to such

a wage rise since wage rise is not a normal feature, but

is aimed at increasing the wages of employees considering

that the cost of living has grown.

7] It is further submitted that the petitioner

should have brought evidence before the Court to support

its contention that the junior Nurses were given a wage

rise considering that they were working more than the

respondent and their load of work was much more than the

work performed by the respondent. In the absence of any

evidence to prove this aspect, the act of the petitioner

in giving a wage rise to a group of Nurses would,

therefore, squarely fall within Item 5 of Schedule IV.

8] I have considered the submissions of the learned

Advocates and have gone through the petition paper book

with their assistance.

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9] From the contentions of the parties and the

pleadings before the Industrial Court, it is apparent

that the respondent has acknowledged that a wage rise was

given by the petitioner to a group of Nurses. It is not

disputed that the respondent is a Nurse, who falls in the

same category to which the other Nurses belong. It is

also undisputed that no Nurse was given an increment in

the year 2008 apart from the wage rise of Rs.2500/- given

to a selected few. It is also undisputed that there is

no wage rise or wage revision settlement between the

Nurses and the petitioner or any Union, which such Nurses

may belong to.

10] I find from the examination-in-chief of the

petitioner's witness that the only ground for giving a

wage rise of Rs.2500/- per month to a group of Nurses in

the year 2008 is based on excess work load. Besides this

averment, the petitioner has not put forth any other

case, which would entitle the petitioner to resort to a

reasonable classification and differentiation between the

senior-most Nurses and the junior Nurses.

11] However, it cannot be ignored that besides the

affidavit in lieu of examination-in-chief, the petitioner

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has not placed on record before the Industrial Court any

document to support its stand. No evidence with regard

to excess work load of a group of Nurses was brought

before the Court. Naturally, the Industrial Court could

not appreciate the contentions of the petitioner since

there was nothing before the Court by which the

contentions of the petitioner could be supported.

12] Insofar as giving a wage rise to a group of

Nurses is concerned, the petitioner has admitted to the

said fact and there is, therefore, no dispute.

13] In my view, even if the petitioner had desired

to make a reasonable classification in between the Nurses

falling in the same class on the basis of the seniority,

the junior Nurses could not have been given a wage rise

only to bring them closer to the senior Nurses, who by

their service span were much senior to the junior Nurses.

Owing to their length of service as they grew in

seniority, their wages also grew over a period of time.

That growth could not be stunted by suddenly giving a

substantial wage rise of Rs.2500/- to the junior Nurses.

If the cost of living had grown and if life had become

dearer to the junior Nurses, the senior Nurses could not

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be an exception to the growth in the cost of living. I,

therefore, do not find any justification in the act of

the petitioner in giving a wage rise to a select group of

Nurses.

14] In the light of the above, I do not find that

the impugned judgment could be termed as being perverse

or erroneous so as to cause grave injustice to the

petitioner.

15] Nevertheless, insofar as the contention of the

petitioner with regard to the imposition of costs is

concerned, I am inclined to cause an interference only to

that extent since I do not find that the petitioner has

been held to have given a wage rise to the junior Nurses

with a deliberate intention of excluding / depriving the

respondent from such a wage rise. The allegation of

unfair labour practice under Items 9 and 10 of Schedule

IV has been negated by the Industrial Court.

16] In the light of the above, this petition is

partly allowed only to the extent of setting aside the

direction of the Industrial Court imposing costs of

Rs.15,000/- on the petitioner. The rest of the judgment

of the Industrial Court is sustained.

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17] Rule is made partly absolute in the above terms.

There shall be no order as to costs.

(RAVINDRA V. GHUGE, J.)

ndk/c1531622.doc