M/S Lokmat Newspaperr Pvt Ltd Thr ... vs Motiram Mahadeorao Dhoble
2017 Latest Caselaw 6383 Bom

 WP 3070.08.odt                               1
     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH : NAGPUR

                      WRIT PETITION NO.3070 OF 2008


 M/s. Lokmat Newspapers Private
 Limited, Lokmat Bhawan,
 Pt. Jawaharlal Nehru Marg,
 Nagpur-440 012, Through its
 Personnel Manager Shri Arnab
 s/o Atin Ghosh.                                   ..               PETITIONER


                               .. VERSUS ..


 Motiram s/o Mahadeorao Dhoble,
 Aged about Major years,
 Occupation-Service,
 R/o. Plot No.120, Near Post Office,
 Gandhinagar, Nagpur.                              ..           RESPONDENT


                    ..........
 Shri V.P. Marpakwar, Advocate for Petitioner,
 Shri S.O. Ahmed, Advocate for Respondent.
                    ..........

                               CORAM : KUM. INDIRA JAIN, J.

                               RESERVED ON         : 13.07.2017
                               PRONOUNCED ON : 21.08.2017


 ORAL JUDGMENT

This petition takes an exception to the judgment

and order dated 12.3.2008 passed by the Industrial Court,

Nagpur in Complaint (ULPA) No.97/2003. By the said

judgment and order, Industrial Court allowed the complaint

filed by the respondent under Section 28 of the Maharashtra

Recognition of Trade Unions & Prevention of Unfair Labour

Practices Act, 1971 (For short "Act of 1971") and declared

that petitioner has indulged in unfair labour practice under

Items 5, 7 and 9 of Schedule IV of the Act of 1971 and shall

cease and desist from continuing the unfair labour practice.

2] The facts giving rise to the petition may be stated

in brief as under :

(i) Petitioner is a registered company under

the Companies Act and is publishing daily newspapers from

Nagpur. Petitioner-company is an industry within the

meaning of Section 2(j) and complainant is a workman

under section 2 (s) of the Industrial Disputes Act, 1947.

(ii) Respondent was appointed with effect

from 25.5.1984. As the appointment order was issued in the

name of M/s. Goldi Advertising and Marketing Services (P)

Limited, respondent filed Complaint (ULP) No.459/1988

before the Industrial Court claiming that his employment

was under petitioner-company and the pay-scale applicable

to the post of Junior Clerk was as per the Bachhawat Award.

The said complaint was allowed on 21.4.1998. The litigation

was contested up to the Hon'ble Supreme Court. Vide

judgment and order dated 22.4.1999 in S.L.P. filed by

petitioner-management against the order of the Division

Bench of this court in L.P.A. No.219/1998, the Hon'ble

Supreme Court confirmed that complainant was in

employment of Lokmat Newspaper Private Limited with

effect from 11.4.1988.

(iii) During pendency of complaint,

complainant was put under suspension with effect from

21.12.1993, vide letter dated 16.12.1993 issued by

Managing Director, Goldi Advertising and Marketing Services

Limited. The suspension of complainant was revoked from

21.12.1999 and he was posted in RRD and Library Section.

Complainant was working as a Librarian on higher pay-scale.

Thereafter, he was transferred to the Circulation Department

as a Junior Clerk.

(iv) Complainant then made representations

and petitioner-management issued an appointment order to

respondent dated 15.6.2002 in the pay-scale prescribed as

per Manisana Award made applicable to petitioner-company.

According to complainant, he was entitled to pay-scale with

effect from 18.4.1988 as per Bachhawat Award.

(v) Respondent then filed Complaint (ULP)

No.699/2001 on the basis of equal work equal pay and

Complaint (ULP) No.97/2003 under Section 28 read with

Items 5, 7 and 9 of Schedule IV of the Act of 1971.

                (vi)            The      grievance        of     complainant            in

 complaint          was        regarding    denial    of       promotion       out      of

vengeance, as he was claiming to be employee of petitioner-

company and not the employee of M/s. Goldi Advertising

and Marketing Services (P) Limited. According to

complainant, petitioner-management had deliberately

shown him under the employment of M/s. Goldi Advertising

and Marketing Services (P) Limited. The persons employed

after the complainant were given promotions every two

years of the service. In his case, despite orders from the

Hon'ble Supreme Court, complainant was not given his

rights and was appointed on the post of Junior Clerk with a

view to victimize the complainant, as he raised grievance

against the management. It was submitted that complainant

ought to have been promoted as a Senior Clerk in 1991,

Assistant Circulation Officer in 1994, Circulation Officer in

1997 and, thereafter, as Circulation Manager. Complainant

stated that at no point of time, during his service tenure,

adverse remarks were communicated to him. The

suspension order issued by M/s. Goldi Advertising and

Marketing Services (P) Limited in 1993 was due to

vengeance and prejudice. No departmental action was

initiated against him. No charge-sheet was issued to him

still he was put under suspension from 1993 to 1999 without

any cause.

(vii) The next contention raised on behalf of

complainant was that even after the judgment of the

Hon'ble Supreme Court, he made several representations to

the petitioner. As management could not redress his

grievances regarding promotion and the attached benefits,

he was required to file complaint under the Act of 1971.

(viii) Petitioner-management resisted the

complaint by filing written statement (Exh.12). Multiple

defences raised by petitioner were :

(i) Establishment of petitioner is covered

under the Industrial Disputes Act, 1947 and,

therefore, provisions of Act of 1971 would not be

applicable, as the Central Act would prevail over

the State Act;

(ii) Complainant has no right to file

proceedings about unfair labour practice as under

the Industrial Disputes Act, no right has been

granted to a workman;

(iii) Complaint having been filed on

11.2.2003 claiming promotion with effect from

1991, 1994, 1997 and 2000 is barred by limitation;

(iv) Absence of agreement regarding

promotion of employees on the establishment of

petitioner-management and absence of agreement

or settlement to claim promotion;

(v) Granting of promotion is a prerogative of

management and depends upon various factors

like educational qualifications, experience,

competency, ability to handle responsibility of

higher post, availability of vacancies of higher post

and assessment of controlling authority etc.;

                (vi)            Petitioner-management        is    in    no      way

                connected          with   M/s.   Goldi     Advertising           and

Marketing Services (P) Limited and not responsible

for issuance of suspension and revocation of

suspension orders;

(vii) Complainant was appointed as a Junior

Clerk. He was performing as a Junior Clerk in

Circulation Department. No employee is given

right to claim promotion only on the basis of

seniority and/or completion of specific period;

(viii) Employees employed in newspaper

establishment are covered by Award and Award

does not contemplate granting of any promotion;

(ix) Complainant has not raised an industrial

dispute under Section 2-A or under Section 10 of

the Industrial Disputes Act and, therefore, Item

No.7 of Schedule IV is not applicable;

(x) Junior Clerks appointed in 1989 and

onwards were promoted on the basis of their

individual performance. Their appointments were

in the establishment of petitioner-company and not

M/s. Goldi Advertising and Marketing Services (P)

Limited, as in the case of complainant and

(xi) Complaint being devoid of merits

deserves to be dismissed.

3] On the basis of the rival pleadings, issues came to

be framed at Exh.13. Parties examined their respective

witnesses. Learned Member of the Industrial Court, upon

considering the evidence and material placed on record and

on hearing the submissions made on behalf of the parties,

came to the conclusion that management by denying the

promotion to the complainant engaged in unfair labour

practice and it should cease and desist from continuing such

unfair labour practice. The court also held that complainant

is entitled to his promotion as a Senior Clerk on 1.1.1993,

Assistant Circulation Officer from 1.1.1998 and Circulation

Officer from 11.2.2003. The court directed to pay all

benefits attached to the placement of complainant as per

Palekar Award, Bachhawat Award and Manisana Award.

Being aggrieved by the said judgment and order,

management has preferred the present writ petition.

4] Heard Shri Marpakwar, learned counsel for

petitioner and Shri Ahmed, learned counsel for respondent.

5] Learned counsel for petitioner submitted that

respondent has alleged breach of Item Nos.5, 7 and 9 of

Schedule IV. According to learned counsel, case of

complainant does not fall in either of the three items. It is

submitted that complaint came to be filed in the capacity of

an individual employee and for any kind of grievance an

industrial dispute has to be raised under Section 2-A or

Section 10 of the said Act, which was not done by the

respondent. Learned counsel submitted that promotion in

petitioner-company is based on educational qualification,

experience, competency and ability to handle responsibility

of higher post, requirements of persons and available

vacancy of the post. The submission is that respondent did

not fulfill the criteria and he has no right to claim promotion

only on the basis of seniority. Petitioner submits that

managerial functions are to be looked into by the

management and Palekar, Bachhawat and Manisana awards

cannot be interfered with by the Industrial Court. It is

submitted that length of service is not the only criteria and

taking into consideration the over all factors and keeping in

view service conditions of newspaper employees as per the

above said three awards, pay scales were duly given to

respondent from time to time but this aspect has been

totally ignored by the Industrial Court. A grievance is made

that various important admissions elicited in the cross-

examination of respondent were not taken into

consideration to arrive at the proper conclusion.

6] Petitioner filed an affidavit of its Senior Manager-

Legal dated 29.6.2017 and submitted that after the decision

of the Hon'ble Supreme Court and after issuance of the

order dated 15.6.2002, respondent filed complaint within

eight months and there was no occasion for management to

consider service record of respondent as he was never

considered as an employee of petitioner-company but was

treated as an employee of M/s. Goldi Advertising and

Marketing Services (P) Limited for all purposes till the

decision of the Hon'ble Supreme Court. Regarding grievance

of complainant that similarly situated junior employees were

granted promotions, submission of petitioner-company is

that those employees named by complainant were never in

the service of M/s. Goldi Advertising and Marketing Services

(P) Limited, but they were the employees of the petitioner-

company. According to the petitioner, after considering the

respondent as an employee of petitioner-company, appraisal

forms were filled in by the concerned departmental heads

with recommendations. The appraisal forms of respondent

were filled in from time to time and his work was not found

satisfactory, therefore, he was given normal increments.

Based on the above grounds, it is submitted that petitioner-

company has not engaged into unlawful labour practice, as

alleged by the complainant and the Industrial Court has

wrongly held the petitioner-company liable for the same.

7] Per contra, learned counsel for respondent-

employee submits that seven employees junior to

respondent were promoted and respondent was denied

promotion, though his entire service record is unblemished,

clean and clear. It is submitted that not considering the

senior and promoting the junior without any reason is

nothing but victimization and in clear term indicating that

petitioner-company had engaged into unlawful labour

practice. Respondent pointed out that Complaint (ULPA)

No.459/1988 was allowed on 21.4.1998 by the Industrial

Court and though the said order was maintained up to the

Hon'ble Supreme Court, petitioner-company did not consider

the respondent for promotion. It is submitted that

petitioner, despite the orders of the courts, has not fixed the

pay scales of respondent as per the entitlement and

respondent was required to file contempt petition for

disobedience of the order and the said contempt petition is

pending. Respondent fully supports the impugned order and

prays to dismiss the petition with heavy costs.

8] Section 3 (16) of the MRTU & PULP Act, 1971

defines "unfair labour practice" to mean the unfair labour

practices as defined in Section 26 of the said Act. Section

26 says that "unfair labour practice" means any of the

practices listed in Schedules II, III & IV. In the case on hand,

complainant alleges breach of Items 5, 7 and 9 of Schedule

IV. For ready reference, these items are reproduced as

follows :

Item 5 : To show favouritism or partiality to one set of workers, regardless of merits. Item 7 : To discharge or discriminate against any employee for filing charges or testifying against an employer in any enquiry or proceeding relating to any industrial dispute.

Item 9 : Failure to implement award, settlement or agreement.

9] On going through the pleadings and averments in

the complaint, it is apparent that item 7 and item 9 are not

applicable to the present controversy. The main grievance

of complainant is that juniors, whose names have been

mentioned in the complaint, were promoted and respondent

was not at all considered for promotion, though his service

record is unblemished throughout. He alleges victimization

on the ground that petitioner-company had shown favoritism

to the juniors regardless of the merits.

10] In the normal course, it would have been

permissible to this court to decline to go into the merits of

the case because what has been done by the Industrial

Court is to be followed by petitioner in law, but having gone

through the facts and circumstances of the case and the law

governing the jurisdiction of the courts under the MRTU &

PULP Act, it is necessary to go into the rival contentions of

the parties and to decide the question arising therefrom.

11] Respondent has admitted in the cross-examination

that he never worked on higher posts. He further admitted

that he has not filed any document to show that employees

were promoted only on the basis of seniority or length of

service. There is no whisper in the complaint that the junior

employees named in the complaint were initially appointed

with M/s. Goldi Advertising and Marketing Services (P)

Limited. Respondent admits in unequivocal terms in the

cross-examination that to grant promotion factors like

seniority, availability of work, posts, vacancies,

qualifications and experience has to be taken into account.

The Industrial Court did not consider all these material

admissions brought in the evidence of complainant.

12] Needless to state that promotion or increase in

salary in a private establishment is a managerial function

and cannot be claimed to be a condition of service if there is

no scope in the management for the same. The learned

counsel for petitioner submitted that M/s. Goldi Advertising

and Marketing Services (P) Limited had no promotional

channel and till the order of the Hon'ble Supreme Court and

issuance of order by petitioner-company, there was no scope

for the petitioner-company to consider the case of

complainant for promotion. According to petitioner-

company, the persons named in the complaint were initially

appointed by petitioner-company and not by M/s. Goldi

Advertising and Marketing Services (P) Limited. While giving

promotion, management is supposed to follow the service

conditions as per the awards. The service conditions of the

employees of petitioner-company are governed by Palekar,

Bachhawat and Manisana Awards but none of the Awards

contemplate granting of promotions. It is not denied by

complainant that pay-scales prescribed under the Awards

were duly given to him. In these circumstances, if

promotion is not given to complainant by petitioner-

company that ipso facto would not amount to victimization

unless complainant establishes factual mala-fides, malice in

law and effectual victimization by proving that promotions to

some junior persons were given superseding the

complainant without any reason or necessity.

13] It is significant to note that till the orders passed

by the Hon'ble Supreme Court, complainant was treated as

an employee of M/s. Goldi Advertising and Marketing

Services (P) Limited. Vide communication dated 7.12.1999,

petitioner asked the respondent to report for duties subject

to final outcome and decision of the matter then pending

before the Hon'ble Supreme Court. After the SLP was

decided, order dated 15.6.2002 was issued by petitioner-

company treating the complainant as its employee.

Complaint (ULP) No.97/2003 came to be filed by respondent

on 11.2.2003 claiming promotion as Senior Clerk from 1991,

Junior Circulation Officer from 1994, Circulation Officer from

1997 and Assistant Manager from 2003. All these

chronological events would indicate that within a short span

of eight months after the order dated 15.6.2002 was issued

by petitioner-company, complaint came to be filed. It means

there was no occasion for the management to consider the

service record of respondent as respondent was never

considered as an employee of petitioner-company but was

treated as an employee of M/s. Goldi Advertising and

Marketing Services (P) Limited for all purposes by petitioner-

company till the decision of the Hon'ble Supreme Court. The

action or inaction on the part of management, in such a

situation, cannot be said to be unfair and arbitrary.

Respondent could not prove factual mala-fides, malice in law

and effectual victimization at the end of petitioner-company

and having failed to prove the same cannot attribute unfair

labour practice to petitioner-company.

14] It is an admitted fact that there is no standard or

norms or policy for promotions to the employees working in

petitioner-company. That does not mean that tribunal is

powerless and cannot adjudicate industrial disputes

between the management and workmen. The Industrial

Tribunals are intended to adjudicate factual disputes

between the management and workmen and pass effective

awards in such a way that industrial peace and harmony

between the employer and employees is maintained. The

promotion is a managerial and administrative function of the

management.

15] In the instant case, it has come on the record that

promotion is not based solely on the seniority or length of

service. There are various other factors which are required

to be considered for the same. In such a situation, where

initial appointment of complainant was with M/s. Goldi

Advertising and Marketing Services (P) Limited and it is only

after the orders of the Hon'ble Supreme Court that

petitioner-company treated the complainant as its employee

and issued the orders accordingly asking the complainant to

report for the duties, it was necessary for the complainant to

wait and watch and allow the management to consider his

service record for promotion.

16] Instead of doing so, complainant rushed to the

court and filed complaint within a short span after the

petitioner issued the order dated 15.6.2002. Petitioner has

categorically stated that M/s. Goldi Advertising and

Marketing Services (P) Limited had no promotional channel

and as soon as petitioner-company treated the complainant

as its employee in view of the orders of the Hon'ble

Supreme Court, management was to complete the

formalities of appraisal forms to be filled in by the

departmental heads with recommendations and assess the

work performance of respondent. As complaint was filed,

there was no occasion for management to consider the case

of complainant for promotion. Complainant is not

challenging the promotions given to the junior employees.

Those employees were not joined as parties to the

complaint. There is no evidence to establish malafides or

malice in law or effectual victimization at the hands of

management. The learned counsel for petitioner upon

instructions states that respondent has retired from the

service and financial benefits as per his entitlement have

been granted to him by management.

17] In the above premise, the course open to the

Industrial Court was to ask the management to decide the

representations made by the complainant on 11.1.2000,

20.3.2001, 15.7.2002 and 20.1.2003 and consider the case

of complainant for promotion in terms of the then prevailing

norms/requirements for promotion in petitioner-company.

As Industrial Court has not adopted the proper course

available in law and in the absence of the evidence to

attract unfair labour practice under item 5 of the MRTU &

PULP Act, wrongly held management liable for breach of

item 5, this court finds that the impugned order is

unsustainable and needs to be interfered with in the present

petition. In the result, petition succeeds. Hence, the

following order :

ORDER

(i) Writ Petition No.3070/2008 is allowed.

(ii) Impugned order dated 12.3.2008 passed by the

Industrial Court, Nagpur in Complaint (ULPA) No.97/2003 is

quashed and set aside.

(iii) Complaint (ULPA) No.97/2003 stands dismissed.

(iv) Rule is made absolute in the above terms.

 (v)            No costs.



                                  (Kum. Indira Jain, J.)
 Gulande, PA