Jayant S/O Shri. Gajananrao ... vs Municipal Council, Ramtek Thr. ...
2017 Latest Caselaw 7399 Bom

 Judgment                                          1                              wp3989.17-1.odt




                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                 

                          NAGPUR BENCH, NAGPUR.


                           WRIT PETITION NO. 3989 OF 2017

 1.    Jayant S/o. Shri Gajananrao Phating,
       aged about 54 years, Occupation : Service 
       in Municipal Council Ramtek, Resident of 
       Shitalwadi, Near Eklava School, Ramtek,
       District : Nagpur. 

 2.    Sau. Samta W/o. Shri Ravindra Kamble,
       (Maiden Name Ku. Samta Harischandra 
       Tamgade), Aged about 56 years,
       Occupation : Service in Municipal Council
       Ramtek, Resident of Bhagwannagar, Nagpur.

 3.    Smt. Leela Wd/o. Shri Madhukar Godde,
       Aged about 63 years, Occupation: Retired 
       Employee of Respondent No.1, Resident of 
       Flat No.414, Anand Millennium Tower,
       Hudkeshwar Road, New Narsala, Nagpur. 

 4.    Manish S/o. Gopalrao Rangari,
       (wronging typed in order of Industrial 
       Court as Manish Gajananrao Patil),
       Aged about 46 years, Occupation: Service
       in Municipal Council, Ramtek, Resident of 
       Ramadeshwar Ward, Gandhi Chowk, 
       Ramtek, District : Nagpur.  
                                                                       ....  PETITIONER.

                                    //  VERSUS //

      Municipal Council, Ramtek,
      through its Chief Officer, 
      Ramtek, District : Nagpur. 
                                                    .... RESPONDENT
                                                                     .
  ___________________________________________________________________
 Shri A. Shelat, Advocate for Petitioners.
 None for respondent. 
 ___________________________________________________________________




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  Judgment                                                2                              wp3989.17-1.odt




                              CORAM : S.C.GUPTE, J.

DATED : SEPTEMBER 21, 2017.

ORAL JUDGMENT :

1. Heard learned counsel for the petitioners. The respondent is

absent though served. The respondent has been absent on quite a few

occasions despite service. This Court, in the premises, by its order dated 9 th

August, 2017, stood over the matter, giving one last opportunity to the

respondent, to 28th August, 2017. On 28th August, 2017, the respondent

again remained absent. This Court directed the petitioners to communicate

the notice of the order passed on 28 th August, 2017 to the respondent and to

place on record a proof of such communication. The petitioners have

accordingly communicated the notice of the order to the respondent and

have placed on record its written acknowledgment, which bears the

respondent's stamp.

2. The order impugned in the present petition is passed by 4 th

Labour Court at Nagpur in an application under Section 33-C(2) of the

Industrial Disputes Act, 1947. The petitioners (original applicants before the

Labour Court) are employees of the respondent Municipal Council. They are

claiming benefits of higher pay scale and of 5 th Pay Commission with effect

from 1st January, 2002. Since the respondent did not extend these benefits

to the petitioners, they filed a complaint of unfair labour practice under the

Judgment 3 wp3989.17-1.odt

provisions of the Maharashtra Recognition of Trade Unions and Prevention of

Unfair Labour Practices Act, 1971 before the Industrial Court at Nagpur,

being Complaint (ULP) No. 225 of 2003. The complaint was allowed by the

Industrial Court by an order dated 10 th January, 2006. The respondent

Municipal Council was directed to extend benefits of 5 th Pay Commission and

higher pay scale on the basis of completion of 12 years of service (under the

Assured Progressive Scheme) to the petitioners. This order was challenged

by the respondent before this Court by filing Writ Petition No. 4174 of 2006.

This Court declined to grant any stay of the order. (The writ petition has

since been disposed of by this Court on 24 th July, 2017, maintaining the

order of the Industrial Court.)

3. In the premises, the petitioners filed the present application

under Section 33-C(2) of the Act for determination of their dues in

accordance with the order of the Industrial Court and for payment of the

dues accordingly. Strangely, the Labour Court, in its impugned order, holds

that the petitioners had failed to adduce evidence to show that they were

entitled to the benefits of the 5 th Pay Commission. Secondly, the Court held

that the petitioners had failed to prove the quantum of the amount due to

them from the respondent both towards benefits of completion of 12 years of

service and benefits of the 5 th Pay Commission. Thirdly, the Labour Court

noticed the respondent's argument that the Municipal Council had made a

representation to the State Government for sanction of 5 th Pay Commission

Judgment 4 wp3989.17-1.odt

pay scales to the petitioners and only after the Government sanctioned the

same, the respondent would be in a position to pay salary to the petitioners

as per the 5th Pay Commission. The Labour Court, in the premises, rejected

the petitioner's application.

4. All three grounds considered by the Labour Court for rejecting

the application are devoid of merit. In the first place, it is no longer open to

anyone to contend or the Labour Court to hold that the petitioners need to

adduce evidence and prove their entitlement to the benefits of 5 th Pay

Commission. This issue was the subject matter of the original complaint of

unfair labour practice before the Industrial Court, which has since been

decided by the Industrial Court. The respondent's contention in this behalf

was negatived by the Industrial Court and the petitioners were specifically

held to be entitled to the benefits of 5 th Pay Commission. The issue is no

more open to debate in a proceeding under Section 33-C(2) of the Act. The

second ground also has no merit. The petitioners had placed before the

Labour Court their workings for the benefits allowable to them towards 12

years of service dues in terms of the pay scale of 5 th Pay Commission in

accordance with the orders of the Industrial Court. The petitioners had

produced the requisite circulars and also stepped into the witness box in

support of their case. On the other hand, it was the respondent who did not

produce any material before the Court as noted by the Labour Court in its

impugned order to contest the petitioners' case. In the premises, it was for

Judgment 5 wp3989.17-1.odt

the Labour Court to calculate the amount of benefit and rule on it. A

proceeding under Section 33-C(2) of the Industrial Disputes Act is on the

footing that the workman applying before the Court for an order is entitled

to receive any money or benefit from his employer, which is capable of being

computed in terms of money, and all questions which arise in relation to the

money due or amount at which the concerned benefit should be computed

have to be determined by the Industrial Court on the basis of the material

produced before it. The petitioner having produced such material, it was for

the Court to go through the material and compute the amount based on such

material or call for other material, if the material was not sufficient for such

computation. Even the third ground considered by the Labour Court,

namely, the respondent's pending application to the State Government for

sanction of 5th Pay Commission benefits to the petitioners, has no merit.

There being already an order passed by the Industrial Court in respect of

applicability of the 5th Pay Commission benefits in the case of the petitioners,

the sanction or otherwise for such benefits by the State is a matter between

the Municipal Council and the State Government. The petitioners are not

concerned with this. The respondents will have to pay these benefits upon

their computation by the Court under Section 33-C(2) of the Act, whatever to

be the stand of the State Government in this behalf. Accordingly, the

impugned order passed by the Labour Court cannot be sustained. Since the

Labour Court has not actually applied its mind to the material placed before

it in the form of the requisite circulars and the workings of dues based

Judgment 6 wp3989.17-1.odt

thereon, the matter will have to be remanded for a fresh hearing and

computation of the amount payable, to the Labour Court.

5. Accordingly, the impugned order of 4th Labour Court at Nagpur

dated 22nd February, 2017 is quashed and set aside and the application,

being IDA No. 97 of 2008, is remanded to the Labour Court for fresh hearing

for computation of the amounts under Section 33-C(2) of the Industrial

Disputes Act, 1947 in accordance with law. No order as to costs.

JUDGE

RRaut..