Pune Municipal Corporation Pune ... vs Shri Kisan Babu Darge
2017 Latest Caselaw 972 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                CIVIL APPELLATE JURISDICTION

                            WRIT PETITION NO.1939 OF 2001


1.Municipal Commissioner,                                        )
Pune Municipal Corporation, Shivaji Nagar,                       )
Pune 411 005.                                                    )
                                                                 )
2.Shri.Arun Patil,                                               )
Assistant Municipal Commissioner,                                )
Lands & Estates, Pune Municipal Corporation                      )
Shivaji Nagar, Pune.                                             )...Petitioners

          Vs.

Shri.Kisan Babu Darge,                                           )
Room No.180, Chawl No.8, Pandav Nagar,                           )
Health Camp, Pune 411 016.                                       )...Respondent

                                               ---
Mr.R.M.Pethe, for the Petitioners.

Ms.Seema Sarnaik, for the Respondent.
                                  ......

                                           CORAM          :      G. S. KULKARNI, J.

                                       RESERVED ON        :      8th March, 2017

                            PRONOUNCED ON                 :      23rd March,2017
                                        ---

JUDGMENT:-

1. This petition under Article 226 of the Constitution of India

challenges the judgment and order dated 24 January 2001 passed by the

learned Member of the Industrial Court, Pune (for short "the Industrial

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Court") in Complaint (ULP) No.79 of 2000 whereby the Industrial Court

has allowed the Complaint of the respondent declaring that the petitioners

have engaged in unfair labour practice under Item Nos.9 and 10 of

Schedule IV of the Maharashtra Recognition of Trade Unions and

Prevention of Unfair Labour Practice Act,1971 (for short "MRTU & PULP

Act"), and has directed to continue the respondent in the employment of

the petitioners as "Web Offset Boller" till the age of 60 years, that is upto

31 March 2002. The operative order passed by the Industrial Court reads

thus:-

"O R D E R

1. Complaint is allowed.

2. It is hereby held and declared that the Respondents have engaged unfair labour practice under Items 9 & 10 of Schedule IV of the Act. The Respondents are hereby directed to cease and desist from engaging such unfair labour practice.

3. The Respondents are hereby directed to continue the complainant in its employment as Web Offset Baller till he attains the age of 60 years i.e. upto 31.3.2002.

4. During the pendency of this case, if the complainant is unemployed because of compulsory retirement order of the Respondent Corpn., the complainant is entitled for all the monetary benefits for the intervening period, which should be paid by the Respondents to the Complainant within one month.

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5. Cost of this proceeding is quantified at Rs.1000/- which should be paid by the Respondents to the Complainant. The Respondent Corpn. Should bear its own costs.

6. This order shall take effect after one month from today."

FACTS:

2. At the relevant time and for about 33 years, the respondent

was in the employment of the petitioner-Corporation, as an unskilled Class

IV employee. Upto January 1991, he was working as a "Boller" (Class IV)

in the pay scale of Rs.230 - Rs.430 (revised pay scale Rs.829 - Rs.1724).

By an order dated 19 January 1991, in pursuance of the proposal of the

Municipal Commissioner dated 10 January 1991, the respondent is stated

to be appointed on promotion as 'Web Offset Boller' in the pay scale

Rs.360 to Rs.586. This order recorded that this promotion was ad-hoc

and was on a probation for a period of two years. The pay bills which are

placed on record and more particularly pay bill dated 24 June 1999 issued

to the respondent, though indicated the designation of the respondent as a

"Web Offset Boller", however, showed the respondent in Class IV. The age

of retirement for the employees in class IV was 60 years of age and for the

employees falling in Class III, the age of retirement was 58 years.

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3. The petitioners issued a letter dated 17 December 1999 to the

respondent informing the respondent, that on 3 March 2000 the

respondent would be completing 58 years of age and according to the

service rules, he would be superannuated on 31 March 2000 after office

hours. The respondent through is workers' Union viz. 'Pune

Mahanagarpalika Kamgar Union', submitted a representation dated 10

January 2000 that the respondent was Class IV employee and therefore, as

per the Rules, the age of retirement would be 60 years and that he was

being inappropriately retired at the age of 58 years. This letter was

responded by the petitioners' Deputy Commissioner by its letter dated 5

February 2000 addressed to the said Union, interalia stating that with

effect from 10 January 1991, the respondent was appointed as "Web

Offset Boller" in the higher pay scale which was a promotional post and,

therefore, he ceased to be a Class IV employee, as the promotional post as

was not falling in the inferior services (Class IV), therefore, his

superannuation at the age of 58 years was justified.

4. The respondent being aggrieved by this action on the part of

the petitioners superannuating him at the age of 58 years, approached the

Industrial Court by filing a Complaint (ULP) No.79 of 2000 under Section

28 of the MRTU & PULP Act. In the complaint, the respondent contended

that his post fell under various inferior services (Class IV), which are listed

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and shown in 'Annexure A' to the Service Regulations and thus, was

entitled to be superannuated on attaining the age of 60 years, that is, on

31 March 2002. The respondent contended that only because there was

change in designation and the wage scale, the respondent would not cease

to be a Class IV employee and the age of superannuation of respondent

could not be changed. The respondent contended that there was no

difference in the work performed by the respondent and the nature of

work which was included in the inferior services. The respondent

contended that his service condition was governed by the Model Standing

Orders under which the age of superannuation was 60 years, despite

which, a letter 17 December 1999 was issued that the respondent services

stand relieved on 31 March 2000 on attaining the age of 58 years. The

respondent accordingly contended that the petitioners have acted contrary

to the service Regulations and had committed unfair labour practice under

Sections 9 and 10 of Schedule IV of the MRTU & PULP Act.

5. The petitioners appeared in the respondent's Complaint

before the Labour Court, as also filed a written statement opposing the

respondent's case. The case of the petitioners was that the respondent

was promoted to the post of 'Web Offset Boller' vide order dated 10

January 1991 and was given a higher pay scale. The petitioner contended

that the work of 'Boller' was linked with 'letter press printing' and the

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work of "Web Offset Boller" was connected with 'offset printing'. It was

stated that the post of "Web Offset Boller" was not included in the

"inferior service" which as listed in 'Annexure A' of the Schedule and the

post of "Web Offset Boller" falls in Class III category and thus under Rule

66 of the Municipal Service Rules, the age of superannuation of the

employees in superior services would be 58 years. The action of

superannuating the respondent at the age of 58 years was thus proper and

justified. Petitioners also contended that the Model Standing Orders are

also not applicable.

6. The Industrial Court examining the rival pleas, and the

evidence has recorded a finding that the plea of the petitioners that the

respondent actually belongs to Class III 'superior service' cannot be

sustained, as there was no material on record to support the said

contention of the petitioners. Also, this was no material to show that the

petitioners in clear terms had any time informed the respondent that he is

now covered under Class III because of promotion as "Web Offset Boller".

It was also observed that the wage bills, also supported the contention as

raised by the respondent, where the respondent for substantial period was

shown to belong to Class IV and not Class III except in the wage bill for

the month June 1999 which referred the respondent as Class III. It was

also recorded that while appointing respondent as "Web Offset Boller" in

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the year 1991, there is no entry in the service book by changing his

category from Class IV to Class III or that there was a change of

designation from Class IV to Class III and the retirement age was changed

from 60 years to 58 years. Even the documents referred in the

communication dated 17 December 1999 retiring the respondent on

attaining the age of 58 years i.e. on 31 March 2000, these letters were not

placed on record by the petitioners. It was thus observed that there were

serious anomalies in the case of the petitioners and that the petitioners

had acted against its service rules and forcibly had issued a compulsory

retirement order dated 17 December 1999 committing unfair labour

practice under Items 9 and 10 of Schedule IV of the Act. The complaint

of the respondent came to be allowed in the terms as noted above. The

petitioner is accordingly before this Court, challenging the above

judgment and order passed by the Industrial Court.

7. Learned Counsel for the petitioners in assailing the impugned

order submits that the Industrial Court has completely overlooked that the

respondent was promoted from Class IV post of 'Boller' to the post of 'Web

Offset Boller', a Class III post, by a promotion order dated 10 January

1991. He submits that the pay scale of respondent was a higher pay scale

by virtue of his promotion viz. Rs.360 to Rs.586. He submits that the

other persons who were working as Bollers were admittedly drawing less

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wages / pay scale than the respondent, and therefore, the finding of the

Industrial Court that the respondent continued to be Class IV employee is

not only erroneous but perverse. He submits that even the pay bill came

to be corrected though initially after promotion of the respondent on the

post of 'Web Offset Boller' the pay bill marked the respondent to be in

Class IV, the same was an inadvertent clerical mistake which came to be

rectified subsequently from June,1999. It is, therefore, his submission

that the impugned order deserves to be quashed and set aside.

8. On the other hand, the learned Counsel for the respondent

would submit that the Tribunal has recorded a finding of fact which would

clearly demonstrate that the respondent was continued as a Class IV

employee even taking into consideration the purported promotion order

dated 10 January 1991 appointing him as 'Web Offset Boller'. It is

submitted that it was only change of nomenclature/designation in view of

introduction of new technology. It is submitted that there is no such post

of "Web Offset Boller" which was created by the petitioners and which can

be called as promotional post in Class III. It is, therefore, submitted that

the Tribunal has rightly held that there was no material on record to

accept the contention of the petitioners that the post in question was a

Class III post so as to retire the respondent at the age of 58 years. It is

submitted that the duties of the respondent had remained the same as a

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'Boller' though the name / designation of the post held by the respondent

was changed. It is accordingly prayed that the petition be dismissed.

9. On the aforesaid rival contention, I have heard the learned

Counsel for the parties and with their assistance I have also gone through

the impugned judgment and other documents placed on record on the

paper book. There is no dispute that the respondent was initially

appointed as 'Boller' and thereafter he was appointed to the post of "Web

Offset Boller" on 10 January 1991. The post of 'Boller' is classified as

Class IV post in 'Annexure A' of the Schedule of the Municipal Service

Rules and finds place at Sr.No.40. The other posts in 'Annexure A' are

winders, helpers, dressers, telephone attendant, Waterman, Filler, Pump

Attendant, Meter Repairer, Senior Binder etc. There are in all 53 posts

which are described in the Schedule as 'inferior services'. By an order

dated 10 January 1991, the petitioners have contended that the

respondent was granted ad-hoc promotion as 'Web Offset Boller'. This

order records that the promotion was ad-hoc and was on probation for a

period of two years. In the column of 'increased wage scale' as 'Web Offset

Boller', it was shown to be Rs.360 to Rs.586. Although this was the

position, however, the Petitioners did not place any material on record to

show that this promotion was in fact a promotion to higher the post which

can be called to a Class III post. The petitioners did not place on the

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record of the Tribunal any material to show that a higher post of 'Web

Offset Boller' in Class III was a existing higher post or such a post was

created. Even assuming that such promotional post was existing, there is

no material to show that the probationary appointment of the respondent

was confirmed on this higher post, after the completion of probationary

period or that the nature of this ad-hoc appointment was changed to a

permanent appointment under the service rules. In fact, what is material

to note is that right from 1991 upto May 1999, the respondent was shown

to be belonging to Class IV in the wage bill. This, according to the

petitioners, is termed as a clerical mistake. It is difficult to so believe in

the absence of any supporting material or evidence. Thus, considering the

material as placed on record and the observations made by the Industrial

Court, I am not persuaded to accept the case of the petitioners that the

respondent by an order dated 10 January 1991 was promoted to a Class

III post. There appears to be much substance in the case of the

respondent that the so called promotion was merely a change in the

designation or change in the nomenclature of the post accompanied with

some extra benefit in the pay scale. More particularly, there is a finding of

fact recorded by the Tribunal that the nature of duties of the respondent

had remained the same as of post of 'Boller'. It has also come in evidence

that none of the employees were working under the control of the

respondent. The assertion of the respondent about nature of the duties

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being performed by him as a boller has also gone unchallenged by the

petitioners. The Tribunal has held there duties to be manual and

unskilled. It has also come on record that the other Class IV employees

namely winders, copy holders were also having higher pay scale and those

employees belonged to Class IV. Thus, it was not a case that only the

respondent who was working as 'Web Offset Boller' was getting a higher

scale and the others working in Class IV were not getting higher scale.

The Industrial Court has rightly taken note of residuary item in 'Annexure

A' being Item no.53 which includes, "any employee who would be

undertaking work of the nature as falling in the inferior service and who

could have any other different designation." In "Karnataka Bank Ltd. vs

Smt. Sunita B. Vatsaraj"1 the Division Bench of this Court considering

several earlier decisions held that mere designation of an employee or

nomenclature of a post is not determinative of a character or nature of

duties performed by an employee. In the present case, the petitioners

have not brought any material on record to show that in fact the duties

which were being performed by the respondent were of a superior or

higher nature than the one he was performing as a 'Boller' so as to accept

the petitioners' contention that in fact the respondent had ceased to

belong to Class IV and was actually performing superior duties of a post

which were in Class III.

1  2008 (1) BomCR 891





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10. Learned Counsel for the petitioners is unable to point out any

basis on which the petitioners could support their contention that by

virtue of the promotion of the respondent on the post of 'Web Offset

Boller', the respondent ceased to belong to Class IV and the said post

would fall in Class III, so that the superannuation of the respondent would

be at the age of 58 years and not 60 years.

11. The impugned order passed by the Industrial Court has taken

into consideration the entire material as placed on record as also the

service Rules on the basis of which the Industrial Court has recorded a

finding of fact that the respondent continued to be in a service as a Class

IV employee though the nomenclature of the post was changed from

'Boller' to 'Web Offset Boller'. I do not find that there is any perversity or

illegality in the finding as recorded by the Industrial Court.

12. It is well settled position in law that the Court in exercise of

jurisdiction under Article 226 and 227 of the Constitution of India would

not correct the error of fact however grave it may appear to be, it would

only correct the errors of jurisdiction committed by the inferior Court or

Tribunals, where the orders are passed without jurisdiction or in excess of

jurisdiction. An error of law on the face of the record can be corrected but

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not the error of fact. (See 'Sayed Yakoob vs. K.S.Radhakrishnan & Ors."2

and "Davinder Singh v. Municipal Council, Sanaur"3)

13. Resultantly, the petition fails and is accordingly dismissed.

The petitioners are directed to grant to the respondent all consequential

benefits considering his age of retirement as 31 March 2002, within a

period of eight weeks from today.

(G. S. KULKARNI, J.)

2 AIR 1964 SC 477 3 AIR 2011 SC 2532