1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3057 OF 1997 Hindustan Organic Chemicals Ltd. ....Petitioner V/s. Hindustan Organic Chemicals Ltd. Employees Union & Ors. ....Respondents Mr.M.M. Varma i/b Mr.Rajesh Gehani for the Petitioner. Ms.Nayana Buch for the Respondents. CORAM : S.J. VAZIFDAR, J. DATE : 5TH FEBRUARY, 2010. P.C. :- 1. The Petitioner has sought a Writ of Certiorari to quash and set- aside the order dated 5.5.1997 passed by the Industrial Court allowing the Respondents’ complaint under item 9 of Schedule IV of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practice Act, 1971 (M.R.T.U. & P.U.L.P. Act). 2. The Petitioner is a public sector undertaking. The first Respondent is a trade union recognized under the Trade Union Act, 1926 and is a recognized union under the M.R.T.U. & P.U.L.P. Act. Respondent Nos.2 to 8 are employees of the Petitioner who are adversely affected by the impugned order of the Industrial Court. 3. A settlement dated 9.2.1993 was entered into between the Petitioner and Respondent No.1 under Sections 12(3) and 18(3) of the 2 Industrial Disputes Act, 1947 (I.D. Act) regarding the promotion/upgradation policy. There was in force, prior to the settlement, a pattern of VII pay scales uniformly introduced in all the departments. In the year 1982, an additional scale of pay was introduced at the lowest level resulting in a VIII scale pattern. The employees raised certain grievances regarding the implementation of this system. The Petitioner therefore reviewed the same. The Respondent union raised the demand by a letter dated 16.3.1991 for bringing about unity and equality for all the employees on the same lines as per the stores section. A joint committee consisting of the representatives of the Petitioner and the Respondents was constituted. The committee finalized the proposal in August, 1991. The parties agreed to refer the differences between them for the intervention of the Conciliation Officer. The Conciliation Officer admitted the issue on 27.1.1993. Ultimately the said Memorandum of Settlement dated 9.2.1993 was arrived at, applicable to all the regular employees in the non-officer categories. Clauses 3.5, 3.6, 3.11, 3.11.1 and 3.11.3 of the settlement are relevant and read as under :- “3.5 Employees will be granted higher scale of pay as per the criteria laid down in Annexure-I The grant of designation in the higher scale shall be governed by the availability of vacancy. If the vacancies are not available, such employees shall continue to do the duties of the categories/scale in which he was working before grant of higher scale. Designation in higher scale shall be given on the basis of seniority to be maintained separately for the employees who are granted higher scale of pay. 3.6 Employees in the VIII Pay Scale will be considered for promotion/upgradation to officers’ 3 category/scale of Rs.2500-4540 or equivalent after completion of 6 years service in the VIII Pay Scale. The employees who are having qualification below SSC will be considered for upgradation only after completion of seven years’ service in VIII Pay Scale. On upgradation, the employees will continue to do their duties as applicable to non-officers’ category. However, they will be re-designated as ‘Officers’ as and when vacancies arise. The employee upgraded in Officers’ pay scale, shall be governed for pay scale revision including DA and other allowances and conditions as applicable to officers’ categories, but they shall continue to be governed by working hours, punching, overtime as per the unionised category of employees. 3.11 GENERAL CONDITIONS : 3.11.1 The existing promotion rules shall stand modified to the extent amended by this Settlement. 3.11.3 Promotion/upgradation will be effected every month on completion of the prescribed length of service of each employee as per Annexure-I.” 4. Essentially, it is clauses 3.5 and 3.6 that fall for interpretation in this Writ Petition. It is not necessary therefore to set out the other facts in detail. Suffice it to state that on 27.4.1994 a meeting was held between the Petitioner and the Respondents. At the meeting, the issue regarding redesignation of the employees who had been upgraded to the officer scale of 2500-4540 and who had a designation of the VIIIth pay scale was discussed. A concensus at the discussion was recorded in the minutes of the meeting, clauses 2, 3, 4 and 7 whereof read as under :- “2. The redesignation will be based on the performance of written test, interview and confidential report. The test/interview would be conducted during May. 94/June,94. 3. In case the performance of concerned employee is found to be poor or unsatisfactory, his case 4 will not be considered for redesignation. Based on overall performance level a panel would be prepared in order of merit. 4. The cases of the employees those who are having the qualification of SSC pass above will only be considered for redesignation. Wherever by statutory requirements there are prescribed qualification in any discipline, concerned employee must be in possession of that before they are considered for redesignation as Officer. 7. The syllabus, questions and guidelines for answers will be provided to the employees for their written test preparation. 5. A circular dated 13.6.1994 was issued intimating the syllabus and schedule of tests. On 28.6.1994, a written test was held. None of the candidates attempted any questions in the examination. The Petitioner therefore by a circular of 1994 recorded the same and informed the employees that the interview of those employees who had not attempted any questions in the said test and those who would not be attempting their papers scheduled for the future would automatically be cancelled. Thereafter correspondence ensued between the Petitioner and the Respondents in the course of which the union inter-alia stated that under the said settlement, the employees were not bound to appear for the written test. It is not necessary to refer to the contentions raised in the correspondence as the same were also raised before me. 6. The minutes of the meeting, it was conceded, could not legally alter the terms of the Memorandum of Settlement. It was contended however on behalf of the Respondents that the minutes only made explicit that which was implicit in the Memorandum of Settlement. 5 7. The Industrial Court by the impugned judgment upheld the Respondents’ case in respect of item 9 of Schedule IV of the M.R.T.U. & P.U.L.P. Act namely failure to implement the award, settlement or agreement. It was held that the Petitioner’s Recruitment and Promotion Rules, which required the written test would not apply as the same stood modified to the extent that they were amended by the settlement. It was further held that the said minutes of the meeting dated 27.4.1994 would not bind the union and its members as they were contrary to the Memorandum of Settlement and had not been signed before the conciliation authority. 8. The only point that falls for consideration is whether the said employees were bound to take the written test for the purpose of availing the benefits under clauses 3.5 and 3.6 of the Memorandum of Settlement. 9. Pausing here, it is only necessary to mention that a preliminary objection as to the appropriate government was decided in favour of the Respondents by an order and judgment of the learned Single Judge. The Petitioner has challenged the said judgment by filing an appeal which has been admitted and is pending in this court. There is however no stay to these proceedings. I accordingly proceed to decide the matter on the remaining issues. 10. It is common ground that the scales I to VIII pertain to the non- officer categories, whereas pay scales IX and above pertain to the officers categories. Clause 3.5 provides that the employees “will be granted” higher scale of pay as per the criteria laid down in Annexure-I. Annexure-I in turn refers only to pay scales I to VIII. They are all time bound promotions for the employees in the different departments. There is no dispute regarding 6 the same. There is a clear distinction of grant of higher pay and grant of designation. Whereas the higher scale of pay was to be granted as per the time bound programme in Annexure-I, the grant of designation in the higher scale was to be governed by the availability of vacancies. 11. The dispute between the parties is only in respect of clause 3.6. According to Mr.Varma the words “will be considered” in clause 3.6 indicate that the promotion/upgradation to the officers category/scale of Rs. 2500-4540 was not automatic as in the case of promotion/upgradation in the lower pay scales and that the Petitioner’s employees were only entitled to be considered for promotion/upgradation. The consideration would be on the basis of the Recruitment and Promotion Rules. 12. I do not find the submission well founded. It must however be mentioned that clause 3.6 makes it explicitly clear that the benefit of the Memorandum of Settlement is restricted to and stops at the IXth pay scale. By no stretch of imagination does it go beyond the IXth pay scale. This is clear firstly from the language of clause 3.6 itself. Clause 3.6 makes it clear that the employees in the VIIIth pay scale would be considered for promotion/upgradation "to the officers category/scale of Rs.2500-4540 or equivalent”. If the intention was otherwise viz. to confer the benefit beyond/after the IXth pay scale, clause 3.6 would have been worded entirely differently. It however, restricts the entitlement only to the pay scale of Rs.2500-4540 or equivalent. 13. Mr.Varma contended that the words “will be considered” in clause 3.6 establish that the promotion/upgradation to the IXth scale was not automatic but subject to the provisions of the said Rules and in 7 particular Rule 9 thereof which require the employees to appear for a written test. 14. The words “will be considered” however do not indicate that the employees will be considered for promotion/upgradation to the officer categories/scale of Rs.2500-4540 or equivalent on the basis of the Recruitment and Promotion Rules. The said rules relied upon by Mr.Varma pertain to the procedure for promotion to the officers posts beyond the IXth pay scale. The officers posts start from the IXth pay scale. The appointment to the IXth pay scale is not by promotion. Rule 9, therefore, does not apply to the appointments to the IXth pay scale. Thus in any event the said procedure is not applicable to the facts of this case. 15. I am unable to accept the argument that the use of the expression “will be considered” in clause 3.6 in contrast to the use of the expression contained in clause 3.5 indicates that the promotion/ upgradation referred to in clause 3.6 is upon a consideration of criteria specified in Rule 9 of Recruitment and Promotion Rules. The expression “will be considered” was obviously used only to distinguish between the said employees who had completed their S.S.C. and those who had not completed their S.S.C. Under clause 3.6 those employees who had completed their S.S.C., were entitled to promotion/upgradation after completion of six years of service in the VIIIth pay scale, whereas the employees who had qualified below S.S.C. were entitled to upgradation only and not promotion and that too only after completion of seven years in the VIIIth pay scale. In other words, the employees who had a qualification below S.S.C., were not entitled to promotion but only to upgradation and 8 that also only upon completion of seven years in the VIIIth pay scale. 16. In the circumstances, the Writ Petition is dismissed but with no order as to costs.