Bombay High Court

Thane Municipal Corporation And ... vs Mahanagarpalika Magasvargiya ... on 3 January, 2023

Bench: G. S. Kulkarni

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Prajakta Vartak
                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CIVIL APPELLATE JURISDICTION
                                   WRIT PETITION NO. 7157 OF 2016

           Thane Municipal Corporation & Ors.                                      ..Petitioners
                      Vs.
           Mahanagarpalika Magasvargiya
           Karmachari Sanghatana                                                   ..Respondent
                                       __________

           Mr. N. R. Bubna for Petitioners.
           Mr. Pradyumna Thakur Desai i/b. Mr. Indrajeet Kulkarni for Respondent.
                                          __________

                                         CORAM :         G.S. KULKARNI, J.

                                         DATE :          JANUARY 03, 2023
           P.C.:

1. Heard Mr. Bubna, learned counsel for the petitioners.

2. This petition at the behest of Thane Municipal Corporation takes

an exception to the judgment and order dated 20 April, 2013 passed by

the Industrial Court, Maharashtra at Thane. Respondent no.1-union had

approached the Industrial Court in complaint ULP No. 192/2007

alleging that the petitioners had indulged in unfair labour practices

under Items 5, 9 and 10 of Schedule IV of the MRTU & PULP Act, 1971

(for short, the "said Act") against 32 Pharmacists who are in the

employment of the petitioners. The primary grievance of the respondent

was that the petitioner was not fixing the pay scales of the Pharmacists

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and was not taking into consideration the report of the B.K. Naik

Committee who had recommended the grade pay of Rs.1640-3432 in

place of existing grade of Rs. 1490-3144 for the Pharmacists. The B.K.

Naik Committee report is dated 14 July, 1998. The respondent

contended that the said report was unanimously adopted by the general

body of the petitioner-corporation, however, the petitioners had failed to

implement the said resolution of the General Body. The respondent

asserted that the petitioners should pay to the Pharmacists pay scale of

Rs.1640-75-2090-85-2600-95-3170-EB-3800 and to pay all the

allowances and consequential benefits.

3. The petitioners appeared in the proceedings before the Industrial

Court, and opposed the complaint of the respondent interalia

contending that there was no unfair labour practice as the reports of

B.K. Naik Committee and the subsequent Joshi Committee could not be

regarded as an agreement, settlement or an award as contemplated

under Item 9 of Schedule IV of the said Act and thus non compliance

cannot be construed as unfair labour practice. Hence the primary

contention of the petitioners was to the effect that the recommendations

of the said Committee were required to be transformed into a binding

document in the form of a settlement, agreement or an award and in the

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absence of any such settlement, agreement or award, the complaint of

any unfair labour practice against the petitioners was not maintainable.

4. The Industrial Court examined the rival contentions. The parties

were also permitted to lead their respective evidence. After considering

the materials on record and more particularly considering that there

were comparative pay scales as available to the Government servants,

the Industrial Court was of the opinion that it was not proper to

straightway grant the pay scale to the concerned employees/

pharmacists. It was observed that the petitioners will have to consider

the issues and the settlement and the reports of the Committees and

then take appropriate decision on fixing of the pay scale of the

concerned employees. It was also observed that in case the approval of

the State Government is required the same, may also be obtained and

such exercise be undertaken by the petitioners within three months. It

was observed by the Industrial Court that considering the evidence and

the admissions as given by the witness of the petitioners, that some pay

scales were higher than the pay scale of the government servants, pay

scales of these employees were less than the pay scale of the government

servants and therefore, certainly there was an element of unfair labour

practice under Item 5 of Schedule IV of the said Act. Accordingly, the

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directions were issued to the petitioners to take necessary action for

fixation of pay scale of Pharmacists whose names appeared in Annexure-

A to the complaint. The relevant observations of the Industrial Court as

made in paragraphs 11, 12 and 13 as also in operative order are

required to be noted which read thus:-

"11. The copies of the Award and Settlement and the report of the Committees are on record. The evidence clearly indicates that the pay scale of the concerned employees at some point of time was less than the government servants performing the same type of work. The respondents' witness has stated that the pay scale has been revised broadly on the lines of 6th Pay Commission Report. She did not state that it was exactly on the line of 6 th Pay Commission Report. The said witness has also admitted that some pay scale in the Corporation are higher than the government servants' pay scale, particularly at the relevant time. As I said, witness Kadam could not deny that in 1991 the concerned employees drew less than the government servant. She also could not deny that upto 1996 the pay scale of the concerned employees were lesser than that of the government servant. It is clear that there are anomalies and contradictions in the pay scale, and therefore, there were certain pay scale which were higher than the pay scale of the government servant performing the same job. There are resolutions passed, and there are reports of the Committees which have not been implemented. According to the respondents the reports are required to be discussed, and without their being settlement signed, no claim can be made. In my view, the respondents cannot be heard to say that no action can be taken. The respondents are obliged to discuss with the complainant union as well as the concerned unions, and take appropriate decision for revision of the pay scale of the concerned employees who are Pharmacists. If necessary, the respondents will have to approach the government for necessary approval also. The plea of the respondents is that no claim can be made or nothing can be claimed unless there is any settlement. Such an approach clearly amounts to failure to make fixation which is the basic service condition which amounts to unfair labour practice under Item 9 of Sche.IV of the Act, 1971. The evidence indicates especially admission given by the respondents' witness, that some pay scales were higher than the pay scale of the government servant. Pay scales of the concerned employees were less than the pay scale of the government servant. This amounts to unfair labour practice under Item 5 of Sche.IV of the MRTU & PULP Act, 1971.

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12. Considering the facts and circumstances of the case, and the nature of dispute, it may really be not proper to straightway grant the pay scale to the concerned employees. The respondents shall have to consider the issues and the settlement and the reports of the Committees, and then take appropriate decision on fixing of the pay scale of the concerned employees. In case required, the approval of the State Government may also be sought. The respondents are expected to initiate the necessary action and complete the same within 3 months.

13. The respondents have raised the plea of limitation, but unsuccessfully. Failure to revise or fix pay scale is continuing in action. The unfair labour practice is continuing one, and therefore, cause of action is also continuing. The complaint, therefore, is not time barred. Hence the following order :-

ORDER

1. The respondents shall take necessary action for fixation of pay scale of the Pharmacists named in Annexure-A, as said hereinabove, and start paying according to the pay scale which may be fixed. Difference of arrears, in any, shall also be paid.

2. The respondents shall initiate necessary action and complete the same within 3 months.

3. No order as to costs."

5. Mr. Bubna, learned counsel for the petitioners in assailing the

impugned order has limited submissions. He submitted that there was

no material before the Industrial Court to come to a conclusion that

there was any unfair labour practice. I am not persuaded to accept such

contention of Mr. Bubna. Certainly Municipal Corporation being a

public body was required to determine and fix the pay scale of the

Pharmacists who were permanent employees of the petitioners. From

the record, it was clear that such exercise was not undertaken. The