1. This Petition takes exception to the order dated
21.10.2013 passed by the Industrial Court, Ahmednagar in
Complaint ULP No. 15/2009 whereby the Respondent was directed to
be paid difference of minimum wages and actual payment from
01.01.1991 and backwages as directed by the Labour Court in
Complaint ULP No. 56/1994 with effect from 08.12.2001 till the
period he was not paid wages along with interest at the rate of 10%
per annum.
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2. Petitioner is a credit co-operative society. Admittedly
Respondent was appointed on 17.02.1989. It is the case of the
Petitioner that the Respondent was appointed as a Secretary whereas
Respondent claims that he never worked as a Secretary and was
performing clerical duties. Respondent, on the claim that his
services are terminated illegally, filed Complaint ULP No. 56/1994
seeking re-instatement with full backwages. This Complaint came to
be allowed by the Labour Court on 08.12.2001. Respondent was
directed to be re-instated in service with 25% backwages. This order
came to be challenged by the Petitioner unsuccessfully and the aid
order has attained finality. Admittedly, though re-instatement was
directed by order dated 08.12.2001. He was actually re-instated on
05.12.2005. Further, admittedly, he is not paid backwages for the
said period. Since the Complainant was denied permanency and
benefits of permanency including minimum wages and that the
backwages were not paid to him, he filed present Complaint ULP No.
15/2009 before the Industrial Court, Ahmednagar.
3. It is the contention of Respondent in the said Complaint
that he is a workman and was discharging clerical duties. He also
raised claim with regard to his entitlement to permanency and
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difference of wages between actual payment and wages. Similarly, he
claims backwages in view of the order passed by the Labour Court
Complaint ULP No. 56/1994.
4. Petitioner appeared in the said Compliant and resisted it
on the ground that Respondent is not a workman within meaning of
Section 2(s) of the Industrial Disputes Act and Section 3(5) of The
Maharashtra Recognition Of Trade Unions And Prevention of Unfair
Labour Practices Act, 1971 (for short 'MRTU & PULP Act'). It is
claimed that the Complaint filed by Respondent is barred by
limitation and unreasonable and inordinate delay dis-entitles the
Respondent from seeking any relief. On these amongst other
contentions, the Complaint was sought to be dismissed.
5. After framing of the issues by the Industrial Court,
Complainant led his evidence. Respondent failed to adduce any
evidence. The Complaint came to be allowed by the impugned order.
Hence, this Petition.
6. Learned counsel for Petitioner submits that the
Respondent was appointed as a Secretary and in view of standing
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orders applicable to the establishment, he was performing duties
which are managerial in nature and hence he is not a workman
within meaning of Section 2(s) of the Industrial Disputes Act. It is
further argued that the Respondent would not have raised claim after
90 days of the occurrence of the cause of action and in view of the
same, the Complaint was required to be dismissed by the Industrial
Court. It is his further submission that in any case, Complaint has
been filed belatedly and as such he is not entitled to seek any relief.
To support his submissions, he has placed reliance on following
judgments :-
(i) Union of India and another vs. S. Nrasimhulu Naidu
(Deceased through LRs) & others
2021(20) SCC 321.
(ii) Sakal Deep Sahai Srivastava vs. Union of India & another
AIR 1974 Supreme Court 338
(iii) Shiv Dass vs. Union of India & others
2007(D) BCI 189
(iv) Ganesh Raghunath Mamidwar vs. Devgiri Sahakari Sakhar
Karkhan Ltd. Phulambri & others
2011(2) ALL MR 709
(v) N. M. Siddique vs. Union of India
AIR 1978 Supreme Court 386
(vi) Workmen of the Straw Board Manufacturing Litd. vs. Straw
Board Manufacturing Co. Ltd.
AIR 1974 Supreme court 1132(1)
(vii) Rajendra Sahakari Pani Purvatha Mandali Limited
vs. Rajendra bandu Khot and others
2019 DGLS (Bom) 1590
(viii) Brihan Mumbai Electric Supply and Transport Undertaking
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vs. Best Jagrut Kambar Sanghatana and others
2023 DGLS (Bom) 2017
(ix) Mharashtra Genral Kamgar Union vs. Universal Dyeing and
Printing Works and anothr
2007 (Supp) Bom.C.R. 946
(x) Har Narayan Tewari vs. Cantonment Board & othrs
2024 DGLS(SC) 609
7. Learned counsel for Respondent submits that in
Complaint ULP No. 56/1994, issue of workman was not raised and
as such it is not open for the Petitioner to raise the said issue in the
present Complaint. It is his further submission that in any event,
Respondent has led evidence indicating that he was performing the
duties which are clerical in nature and hence the Complaint is rightly
held to be maintainable. On the point of claim of backwags, it is
sought to be argued that since the order of Labour Court was not
complied with it amounts to unfair labour practice within meaning of
Item 9 of Schedule 5 of MRTP & PULP Act and as such, the order
passed by the Industrial Court is proper. As far as claim of difference
of wages from 1991 is concerned, it is his submission that the
benefits of permanency are to be granted with retrospective effect and
that there is no bar for granting relief beyond the period of three
years of filing of the Complaint. To support his submissions, he has
placed reliance on judgment of Supreme Court in case of Dharam
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Singh and others vs. State of U.P. and another in Civil Apepal No.
8558/2018.
8. At the outset, it is to be recorded that admittedly,
Respondent was appointed in the year 1989. His services came to be
terminated in the year 1994. He, therefore, filed Complaint ULP No.
56/1994 before the Labour Court challenging such termination.
Before the Labour Court, Petitioner has not raised issue with regard
to the status of the Respondent as workman within meaning of
Section 2(s) of Industrial Disputes Act. The said Complaint came to
be allowed by the Labour Court directing re-instatement of
Respondent with 25% bakcwages. It is not in dispute that
Respondent was re-instated on 05.12.2005.
9. Insofar as the issue of workman as raised by the
Petitioner is concerned, though it is sought to be argued that res
judicata would not apply, as a matter of fact, it was open for the
Petitioner to raise objection with regard to the status of Respondent
as workman in the previous Complaint. Inspite of the same, no such
plea was raised, though available. In such circumstances, since the
issue which could have been raised in the previous Complaint, i.e.
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challenge to the status of Respondent of 'workman', but has not been
raised, inview of explanation IV of Section 11 of Code of Civil
Proeudre, is deemed to have been matter/issue substantially involved
herein, the constructive res judicata would certainly apply to the
present case. It cannot be accepted to say that the principle of res
judicata would not apply to the proceeding under the MRTP & PULP
Act. The principle of res judicata is necessary in order to bring
finality to the adjudication of any dispute and unless such finality is
attached, the parties would tend to challenge the same issue again,
which is wholly impermissible in law.
10. Apart from this, as a matter of fact, the Respondent has
led evidence in order to substantiate his claim that he was
performing clerical duties. Even during cross-examination, nothing
could be elicited to discard his evidence. Infact, cross-examination
strengthens the case of the Respondent that he was performing the
duties which are clerical in nature and that he was not exercising any
managerial duties. Pertinently, Petitioner has not led any evidence in
order to prove contrary. Thus, no fault can be found with the
entertainment of the Complaint by the Industrial Court.
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11. Insofar as the ground of backwages is concerned, since
the order passed by the Labour Court in the previous Complaint has
attained finality, the Petitioner was duty bound to comply with the
said order. Since the said amount was with held unjustly by the
Petitioner, direction to pay interest at the rate of 10% per annum on
the said amount of backwages is fully justified. Thus, no interference
is called in the said part of the judgment.
12. As far as clause No. 2 of the operative part of the order is
concerned, the Industrial Court granted benefit of permanency to the
Respondent from 01.01.1991 and it was directed that difference of
minimum wages be paid to the Respondent from the date of joining
till the date of the order. Though it is sought to be argued on behalf
of the Respondent that the Complaint is maintainable as it is a
recurring cause of action, though Complaint can not be held to be
barred by limitation, question arises as to whether the Respondent is
entitled for monetary benefits from the year 1991 till filing of the
Complaint.
13. In this regard, it would be fruitful to consider the law
settled by the Apex Court, in case of State of Madhya Pradesh and
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others vs Yogendra Shrivastava, (2010) 12 SCC 538 and Union
of India and others vs Tarsem Singh , (2008) 8 SCC 648. In State of
Madhya Pradesh and others (supra) Hon'ble Supreme Court has
held in paragraph No. 18, that -
"18. We cannot agree. Where the issue relates to
payment or fixation of salary or any allowance, the
challenge is not barred by limitation or the doctrine of
laches, as the denial of benefit occurs every month
when the salary is paid, thereby giving rise to a fresh
cause of action, based on continuing wrong. Though
the lesser payment may be a consequence of the error
that was committed at the time of appointment, the
claim for a higher allowance in accordance with the
Rules (prospectively from the date of application)
cannot be rejected merely because it arises from a
wrong fixation made several years prior to the claim
for correct payment. But in respect of grant of
consequential relief of recovery of arrears for the past
period, the principle relating to recurring and
successive wrongs would apply. Therefore the
consequential relief of payment of arrears will have to
be restricted to a period of three years prior to the
date of the original application. [See: M.R. Gupta vs.
Union of India - 1995 (5) SCC 628, and Union of India
vs. Tarsem Singh 2008 (8) SCC 648]
Conclusion :
19. The appeals are allowed in part as follows:
(i) We uphold the decision of the Tribunal, affirmed
by the High Court that respondents are entitled to
25% of their pay, as NPA.
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(ii) The respondents will be entitled to NPA @ "25%
of pay" only upto 20.5.2003. Thereafter, the
amended Rules will apply.
(iii) In so far as arrears, the respondents are
entitled to recover the difference in NPA only in regard
to the salary which accrued due during the three
years prior to the date of filing of the original
applications by the respondents before the Tribunal
and not from the date of their appointments.
(iv) As a consequence, if the appellants, in pursuance
of the orders of the Tribunal/High Court, had
paid the difference in NPA, for any period beyond
three years before the date of the respective original
applications, they will be at liberty to recover the
same from the respective respondents in 24 monthly
instalments."
In Union of India and others vs Tarsem Singh
(supra), while dealing with issue of grant of relief of arrears
in case of belated service related claim it is held that-
"7. To summarise, normally, a belated service
related claim will be rejected on the ground of delay
and laches (where remedy is sought by filing a writ
petition) or limitation (where remedy is sought by
an application to the Administrative Tribunal). One
of the exceptions to the said rule is cases relating to
a continuing wrong. Where a service related claim
is based on a continuing wrong, relief can be
granted even if there is a long delay in seeking
remedy, with reference to the date on which the
continuing wrong commenced, if such continuing
- 11 -
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wrong creates a continuing source of injury. But
there is an exception to the exception. If the
grievance is in respect of any order or
administrative decision which related to or affected
several others also, and if the re-opening of the
issue would affect the settled rights of third
parties, then the claim will not be entertained. For
example, if the issue relates to payment or re-
fixation of pay or pension, relief may be granted in
spite of delay as it does not affect the rights of
third parties. But if the claim involved issues
relating to seniority or promotion etc., affecting
others, delay would render the claim stale and
doctrine of laches/limitation will be applied. In so
far as the consequential relief of recovery of arrears
for a past period, the principles relating to
recurring/successive wrongs will apply. As a
consequence, High Courts will restrict the
consequential relief relating to arrears normally to a
period of three years prior to the date of filing of the
writ petition.
8. In this case, the delay of 16 years would affect
the consequential claim for arrears. The High Court
was not justified in directing payment of arrears
relating to 16 years, and that too with interest. It
ought to have restricted the relief relating to arrears
to only three years before the date of writ petition,
or from the date of demand to date of writ petition,
whichever was lesser. It ought not to have granted
interest on arrears in such circumstances."
14. In view of above settled position of law, though the
Complaint is held to be maintainable, the monetary relief is required
to be restricted for the period of three years prior date of Complaint.
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15. Petition, therefore, stands partly allowed in following
terms:
(i) Impugned order is modified.
(ii) Clause No. 4 of the operative order of the impugned judgment
is maintained.
(iii) Clause No. 4 of the impugned judgment is modified as below :
Respondent would be entitled to get the difference of
wages between minimum wages and actual payment of
wages for the period of three years from prior to the date
of filing of the Complaint. The said amount be paid to the
Respondent with interest at 10% per annum.
16. At this stage, learned counsel for both sides submit that
since certain amount is deposited in this Court, they will submit
joint calculations in order to ascertain the entitlement of the
Respondent to withdraw the amount. The issue of withdrawal of
amount is kept open.
17. Pending Application, if any, does not survive and stands
disposed of.
( R. M. JOSHI)
Judge
dyb
