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The Industrial Disputes Act, 1947

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Bombay High Court
Nagpur Municipal Corporation vs Nagpur Mahanagar Palika ... on 5 July, 1993
Equivalent citations: 1995 (70) FLR 546
Author: V Sirpurkar
Bench: V Sirpurkar

JUDGMENT V.S. Sirpurkar, J.

1. Both these writ petition can be disposed of by this common judgment since the similar questions are involved.

2. The order passed by the Industrial Court, Nagpur, holding that the Nagpur Municipal Corporation, Nagpur (for short called 'Corporation') has engaged itself in an unfair labour practice within the meaning of Item 9 of Schedule IV to the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short called 'Unfair Labour Practices Act') and, further, consequential directions that the members of the respondent/Union shall be paid the salaries in the revised pay-scales, is in challenge in these petitions.

3. In Writ Petition No. 2753 of 1988 as also in Writ Petition No. 2797 of 1988, complaints came to be filed on behalf of the Nagpur Mahanagar Palika Samanvaya Chikitsak Sangh (for short called 'the Union'). In short, the contention of the Union was that its membership consisted of the doctors who were working as Medical Officers with the Corporation. It was claimed in the complaints, inter alia, that though all were the Medical Officers, there were different pay scales prescribed for some, while the others were being treated differently. It was claimed that the Corporation, by a resolution dated 7.11.1974, had resolved that all the Medical Officers should be treated as equals and would be entitled for equal rate of pay with effect from 1.11.1974, and in pursuance of this, all the Medical Officers started getting the salary in the pay-scale of Rs. 600-30-750-EB-40-1150. It was claimed that again a change was brought and the salary was revised to Rs. 680-40-1000-Extn-50-1500. It was further claimed that in the year 1981, the rate of salary came to be raised from Rs. 600-1150 to Rs 680-1500; yet the workmen shown in Annexure-A to the complaints were paid the salary in the pay scale of Rs. 365-760 only, in so far as the Select Grade Clerks were concerned; and Rs. 600-1150 in case of Medical Officers. What was, in short, claimed was that there was discriminatory treatment to the doctors who were working as the Medical Officers. It was specifically claimed that all these Medical Officers were workmen. It was further pointed out that the Corporation was trampling the principle of 'equal work, equal pay'.

4. A detailed reply by way of written-statement came to be filed by the Corporation. In its written statement, the Corporation firstly strongly contested the position that these were workmen and as such were entitled to file the complaints under the Unfair Labour Practices Act. It was contended by the Corporation that, in fact, they were not discharging the duties of the technical nature but were doing the duty of the Supervisory or Managerial nature. It was claimed that they were not workmen at all.

In so far as the claim on merits is concerned, it was pointed out by the Corporation that the Corporation had undoubtedly passed the resolution on 7.11.1974. Thereafter, the then Administrator, on 27.11.1981 passed a resolution deciding that all the Medical Officers, who were allopathies, holding Degree of M.B.B.S., should only be given the higher pedestral, i.e., the pay scale of Rs. 680-1500 instead of Rs. 600-1150. It was further pointed out by the Corporation that a resolution came to be passed on 28-11-1985, wherein all the doctors were to be treated equally. The Corporation admits of passing such a resolution. However, the Corporation hastened to point out that, in fact, when the resolution dated 27-11-1981 was sent to the Government for its approval, the Government directed that in case of the doctors who had passed the M.B.B.S. Examination, the pay scale of Rs. 680-1500 should be treated as a personal pay to those doctors only, and not to the whole cadre, In same light, when the resolution dated 28.11.1985 was sent for the sanction of the Government, in keeping with the rules, the Government again reiterated back on its earlier directions, meaning that only those doctors who were graduate should be given their personal pay. The Corporation, therefore, interpreted the letter to the Government to mean that the Government had not sanctioned the higher pay scale of Rs. 680-1500 to all the doctors and Medical Officers who were party to the complaints and, in fact, there was no question of unequal treatment. It was contented that so far as M.B.B.S. doctors are concerned they were given pay scale of Rs. 680-1500 as their personal pay, while to all others, the pay scale of Rs. 600-1150 was granted and, therefore, there was no question of treating them differently, or in a discriminatory manner, so as to attract the provisions of the Unfair Labour Practices Act. It was claimed that all the persons shown in Annexure-A to the complaints were not graduate doctors and they could not be compared with the M.B.B.S. doctors. The Corporation, therefore, particularly in paragraph No. 11 of its written statement, reiterated that it was helpless in the matter, as the State Government itself had refused to implement the resolution dated 28.11.1985.

5. It is an admitted position today that excepting those doctors who were granted higher pedestral of personal pay in the scale of Rs. 680-1500, all the other doctors are getting their salary in the pay scale of Rs. 600-1150.

6. The evidence was led on behalf of the Corporation as well as on behalf of the complaints. The complainants mainly gave out their educational qualifications and tried to substantiate that even they were graduates, like M.B.B.S. graduates and were entitled to salary in the pay scale of Rs. 680-1500. The Corporation also examined couple of witnesses to show the real nature of the duties of these Medical Officers and also placed before the learned Judge of the Industrial Court all the records which it had and the correspondence which it had made with the Government in regard to the implementation of the resolution dated 28.11.1985.

7. The learned Judge of the Industrial Court has passed a lengthy order and has allowed the complaint as stated earlier. It is this order of the Industrial Court, Nagpur, which is in challenge in Writ Petition No. 2753 of 1988.

8. In Writ Petition No. 2797 of 1988 also the facts are almost similar with the difference that in one petition, there are 18 complaints, while in others, there are only four. In Writ Petition No. 2797 of 1988, there are only four persons who are the complainants. The Industrial Court has given almost identical findings in its order which is in challenge in Writ Petition No. 2797 of 1988.

9. The complaints pertained to Schedule IV, Items 5 and 9, of the Unfair Practices Act. On Item 5, the Industrial Court has negatived the case of the complainants by holding that it was not proved that a section of workers were being shown favouritism regardless of merits. It is on Item 9 that the Industrial Court has given a finding against the Corporation, holding that it has failed to implement the award, settlement or agreement. In short, the workmen had made out a case that at the time of their appointment itself, they had agreed to abide by the rules made as regards the conditions of service and that constitutes a settlement or agreement. It is on this basis that the complaints were filed.

10. Shri C. S. Dhabe, learned Counsel for the petitioner/Corporation, very strenuously pointed out that the judgments of the industrial Court were not in the satisfactory terms, in as much as the Industrial Court had failed to appreciate the legal pleas raised by the Corporation in its written statement. Shri Dhabe further seriously disputed the finding given by the Industrial Court that these complainants are or were workmen at the time when the complaints were filed. Shri Dhabe further contended that various legal provisions in the City of Nagpur Corporation Act have been totally ignored by the Industrial Court, while arriving at a conclusion that the Corporation had engaged itself in an unfair labour practice.

11. Shri B. M. Khan, appearing on behalf of the Union in both the cases, supported the judgments and pointed out that the Industrial Court had properly appreciated the evidence on record. He contended that the finding by the Industrial Court to the effect that the complainants were the workmen is correct and is supportable with the evidence on record. He also contended that in fact there is no necessity of the government sanction and that the question has, in fact, been gone into by the Industrial Court.

12. Seeing the impugned judgments carefully, it does not appear that all the questions have been considered by the Industrial Court. Let us firstly take the finding of the Industrial Court to the effect that the complainants were the workmen within the meaning of the definition of workman as given in the Industrial Disputes Act, 1947. In fact, the contention of Shri Dhabe is that it was the burden of the complainants, firstly, to contend and prove that they are the workmen. Shri Dhabe pointed out that though sixteen witnesses have been examined, all the sixteen witnesses restricted themselves to the question of their educational qualifications and tried to show that they were equal to those persons who were getting higher pay scale. Shri Dhabe contended that in the absence of any word from the complainants in this behalf, there was no necessity on the part of the Corporation to adduce evidence regarding the status of the complainants. Shri Dhabe candidly admitted that there is no evidence adduced particularly on this aspect of the matter, or that the evidence adduced is rather short of usual expectation. I have gone through the whole record. It is true that both the parties had failed to adduce evidence regarding this important issue, as to whether the complainants are the workmen or not. It is undoubtedly true that once the status of the complainants as workmen was disputed in the written statement itself, the complainants had to adduce some evidence at least in respect of their status. It is also equally true that it was the primary burden on the part of the Corporation to point out that the nature of duty of these complainants and further to point out that, in fact, they were not workmen. Had this been the ordinary situation, I would not have gone into this aspect, but this is going to affect number of persons serving in the Corporation. In view of the importance of the question it would be better if both the parties are given fresh opportunities to lead evidence regarding this vital aspect, if they so choose to do, before the Industrial Court. It would be open for the Corporation as well as the complainants to lead evidence regarding the status of the complainants as workmen.

13. The Industrial Court has recorded findings a slip-shod manner, without really realising that there was very little evidence on record and the evidence which was available was not sufficient to reach any conclusion. In fact, the Industrial Court has not even struck an issue as to whether the complainants were workmen or not, though the status of the complainants was seriously disputed by the Corporation in its written statement. The issue has been answered merely on the basis of two reported decisions, which need not be referred to here, since the issue is to be re-examined by the Industrial Court. The answer has been given by the Industrial Court solely on the basis that the work of the complainants was of technical nature. On this fact alone, I am afraid that the said finding could not have been reached. It will be, therefore, better, if the parties are allowed to lead evidence regarding this aspect.

14. Similar is the situation regarding the second objection raised by Shri Dhabe. He invited my attention to the provisions of Section 79(d) of the City of Nagpur Corporation Act which defines the 'municipal funds' and also to Sections 84 and 86 of the said Act which pertains to the budgetary provisions of the Corporation. He also drew my attention to Section 42 of the said Act and pointed out that the Corporation had seriously raised and contended in its pleadings that unless the Government sanction was obtain it was not possible for the Corporation to give any raised in pay scale in terms of the resolution dated 28-11-1985. Shri Khan, on the other hand, submitted that there is no embargo on the powers of the Corporation to give the raise pay-scales to its employees and, in fact, the sanction or otherwise by the State Government would be of no consequence, I find that, in fact, the Industrial Court has not gone into this issue at all. In its written-statement, more particularly in para 11, the Corporation has in the clearest possible manner invited the attention of the Court towards the fact that the State Government had refused to sanction the proposed higher pay scales and that in the absence of such sanction of the Corporation could not have in creased the pay scales and was unable to treat all the Medical Officers on par, though there was a resolution dated 28.11.1985. In fact, the whole defence of the Corporation raised in the written statement, that the statutory provisions of the City of Nagpur Corporation Act as also the bye-laws made thereunder made sanction by Government compulsory for raising the salaries of these doctors, seems to have been ignored by the Industrial Court, while giving a finding that the Corporation has engaged itself into the unfair labour practice.

15. I have gone through the whole judgment carefully. The learned Judge of the Industrial Court seems to have devoted his attention more to the educational qualifications of the complainants and has recorded a finding that the Medical Officers were all equal, whether they be allopathies, homeopaths or practising in Ayurved Medicines. Such indeed was to the controversy before the Industrial Court and, in fact, the industrial Court was called upon to decide the issue as to whether, firstly, the complainants were workmen and, secondly, whether there was, in fact, an unfair labour practice on account of the Corporation's deliberately not implementing the award or the settlement or the agreement. Thirdly, the Industrial Court was called upon to decide as to whether the Corporation was treating some workers partially. In the absence of these provisions having been considered, the findings of the Industrial Court are really vitiated, particularly because the provisions go long way to question the Corporation's authority to implement the pay scales. Similar is the situation regarding the finding of favouritism. Under the circumstances, it is better, if the matter is remanded to the Industrial Court to reconsider the whole thing again, after giving opportunities to the respective parties to lead evidence on the basis of their pleadings on all aspects. It will be incumbent upon the Industrial Court to give the parties such opportunity and then to decide as to whether any unfair labour practice is spelt out on the part of the Corporation. The impugned judgment shows that the Industrial Court invited the Corporation to produce its files regarding the correspondence and the papers and then the Industrial Court went on to consider the effects, pros and cons of the matter and the whole correspondence. I am afraid, this could not have been in the absence of the evidence. It is not understood as to how the Industrial Court allowed those documents to go on record, unless they were properly proved and unless the parties were given full opportunity to explain them in their own way. The reasons given by the Industrial Court in support of its findings are based mostly on these documents. Since, so many documents have gone on record, as will be evident from the observations made by the Industrial Court in para 15 of its judgment, and since no proper opportunities have been given to the parties to explain those documents from the file, it would be better to give a fresh opportunity to both the parties to consider the effect of those documents. In fact, the pleadings of the parties are shockingly wanting in respect of this aspect of the statutory provisions, as also about the various documents which have been freely used by the Industrial Court. If we refer to the observations made in para 16, the position would be clear. It is not known as to why the Industrial Court chose to go into the individual cases of the complainants with reference to their educational qualifications. Even that exercise is wholly unnecessary. The observation made by the Industrial Court that the resolution dated 28th November, 1985 was the final nail in the coffin of the Corporation's case, also needs to be examined in the light of the plea raised by the Corporation that the said resolution is not a 'be all and end all' of the matter. Unfortunately, the Industrial Court has closed its mind after the resolution dated 28.11. 1985. All these aspects need to be considered seriously and, for that purposes, it is felt that the remand is necessary, though the matter is very old. Ordinarily the matter would not have been remanded by this Court. However, considering the width of the controversy and importance of the questions involved, it is felt necessary that the parties should be given a fresh opportunity.

16. In the result, the orders impugned in both these writ petitions are set aside, and the matter is remanded back to the Industrial Court, Nagpur, for dealing with it afresh. The Industrial Court shall, if necessary, give parties opportunities to amend their pleadings and to lead such evidence as they would deem necessary. The matter would be decided afresh thereafter.

17. Shri Khan apprehends that this judgment might affect the complainants financially. It is hereby ordered that till the matters are disposed of finally by the Industrial Court, status qua as on today shall prevail. The Industrial Court is directed to decide the matters as expeditiously as possible. The rule is made absolute in these terms. However, in the facts and circumstances of the case, there will be no order as to the costs of both these petitions.