Bombay High Court
Rashtriya Vij Kamagar Sahakari ... vs Ashok Rambhau Khillare on 21 September, 2016
Bench: R.V. Ghuge
*1* 904.wp.9194.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 9194 OF 2016
Rashtriya Vij Kamgar Sahakari
Patsanstha Limited,
Through its Chairman,
Plot No.24, Kohinoor Garden,
Maliwada, Ahmednagar.
...PETITIONER
-VERSUS-
Ashok Rambhau Khillare,
R/o Suvarnnagar, Kedgaon,
Tq. and Dist.Ahmednagar.
...RESPONDENT
...
Advocate for Petitioner : Shri Sarvadnya Rohit S.
Advocate for Respondent : Shri Dnyaneshwar R Korde.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 21st September, 2016
Oral Judgment :
1 Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2 The Petitioner is aggrieved by the judgment and order dated
31.03.2016 by which Complaint (ULP) No.113/2012 has been allowed by
the Industrial Court, Ahmednagar and the Petitioner is directed to give the
*2* 904.wp.9194.16
pay scale to the Respondent/ original Complainant, admissible to the post
of a Peon during the period from 01.04.2008 to 02.12.2013 as per the
recommendations of the Fifth Pay Commission on parity with the
employees of the Maharashtra State Electricity Distribution Company
Limited.
3 Shri Sarvadnya, learned Advocate for the Petitioner, has
strenuously criticized the impugned judgment. The contention is that the
Petitioner Society is a small scale establishment. It has only two employees
on it's roll. It has a limited business. The members of the Petitioner Society
are the employees of the Maharashtra State Electricity Distribution
Company Limited, who are working in the areas falling under
Ahmednagar district.
4 He further submits that the limited business of the Petitioner
Society is of extending loan facilities to it's members by taking cash credit
facility. It has meager profit margin. The Managing Committee supervises
the day to day business activities of the Petitioner Society. The Petitioner
draws the attention of the Court to the bye-laws of the Society and
especially Annexure-A which prescribes the rules, duties and obligations of
various Committees. He further points out that the nature of duties,
disciplinary actions, payment of service benefits, pay fixation, loan
*3* 904.wp.9194.16
facilities, etc. are within the domain of the Managing Committee. As such,
the claim of the Respondent before the Industrial Court was misconceived
and therefore, the complaint deserved to be dismissed.
5 He further submits that the Respondent has a blemished past
service record. He had obtained loan by taking undue advantage of he
being employed with the Petitioner. He had admitted his guilt. His
increment was stopped by way of punishment. The Payment of Gratuity
Act is not applicable to the Petitioner Society since it engages only two
employees.
6 Shri Korde, learned Advocate for the Respondent/ Employee,
has defended the impugned order. The contention is that bye-law 1-16 has
not been brought to the notice of this Court in it's entirety. Clause 5 below
Part-II of the bye-laws at it's internal page 3, would indicate that the pay
structuring and allowances of the employees of the Petitioner Society are
identical to the Clerks and Peons working with the Maharashtra State
Electricity Distribution Company Limited. The employees of the said
Company working in Ahmednagar area have come together and formed
the Petitioner Cooperative Society which is registered under the
Maharashtra Cooperative Societies Act, 1960.
*4* 904.wp.9194.16
7 Shri Korde, therefore, submits that the Industrial Court has
rightly placed reliance upon clause 5 by which the Petitioner has agreed to
extend all service benefits identical to the Clerks and Peons working with
the said Company. He then points out Part V of the bye-laws in which
clause 29 makes the Payment of Gratuity Act applicable to the Respondent
and covers the Petitioner Society. Once the Payment of Gratuity Act is
made applicable through the bye-laws, the Petitioner cannot contend that
the Payment of Gratuity Act is not applicable since only two employees are
working with it.
8 I have considered the submissions of the learned Advocates as
above.
9 The issue before the Industrial Court was only as regards
parity in wages with comparable employees considering the fact that the
Respondent was a Peon. The fifth pay commission is admittedly applicable
to the Maharashtra State Electricity Distribution Company Limited. All the
members of the Petitioner Society are employees of the said Company and
are, therefore, entitled for salary benefits under the fifth pay commission.
The bye-laws indicate that the Petitioner has adopted all such service
conditions and pay structures as would be applicable to the employees of
the Maharashtra State Electricity Distribution Company Limited so as to
*5* 904.wp.9194.16
be made applicable to the employees of the Petitioner Society.
10 Similarly, through the bye-laws the Petitioner Society has
accepted the applicability of the Payment of Gratuity Act. These service
conditions cannot be altered to the prejudice of the Respondent when he
has been inducted in service based on such service conditions.
11 In the light of the above, I do not find that the Industrial
Court has committed any error in allowing Complaint (ULP) No.113/2012
by the impugned judgment dated 31.03.2016. This Writ Petition being
devoid of merit is, therefore, dismissed. Rule is discharged.
kps (RAVINDRA V. GHUGE, J.)
