1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.5795 OF 2007 1. Maharashtra Oilseeds Commercial and Industrial Corporation Ltd., (MOCICOL), Through Managing Director, C/o Maharashtra State Co-operative Cotton Growers' Marketing Federation, 198, Khetan Bhavan, 6th Floor, Jamshedji Tata Road, Church Gate, Mumbai-20. 2. Office Incharge, Maharashtra Oilseeds Commercial and Industrial Corporation Ltd., M.T.D.C. Plot No.B-4, Parbhani. ..Petitioners -VERSUS- Yeshwant Devidas Kulkarni Age : 58 years, Occ : Service, R/o C/o R.G. Kulkarni, Dnyaneshwar Nagar, Near Koregaon Naka, A-78, Parbhani. ..Respondent WITH WRIT PETITION NO.5794 OF 2007 1. Maharashtra Oilseeds Commercial and Industrial Corporation Ltd., (MOCICOL), Through Managing Director, C/o Maharashtra State Co-operative Cotton Growers' Marketing Federation, 198, Khetan Bhavan, 6th Floor, Jamshedji Tata Road, Church Gate, Mumbai-20. 2 2. Office Incharge, Maharashtra Oilseeds Commercial and Industrial Corporation Ltd., M.T.D.C. Plot No.B-4, Parbhani. ..Petitioners -VERSUS- Narendra Ambadasrao Deshpande Age : 45 years, Occ : Service, R/o Vrindavan Colony, Parbhani. ..Respondent. WITH WRIT PETITION NO.5793 OF 2007 1. Maharashtra Oilseeds Commercial and Industrial Corporation Ltd., (MOCICOL), Through Managing Director, C/o Maharashtra State Co-operative Cotton Growers' Marketing Federation, 198, Khetan Bhavan, 6th Floor, Jamshedji Tata Road, Church Gate, Mumbai-20. 2. Office Incharge, Maharashtra Oilseeds Commercial and Industrial Corporation Ltd., M.T.D.C. Plot No.B-4, Parbhani. ..Petitioners -VERSUS- Maroti Nagorao Kharbale Age : 45 years, Occ : Service, R/o Bhagyanagar, Shikshak Colony, Karegaon Road, Parbhani. ..Respondent. ......... Mr.S. T. Shelke, Advocate for Petitioners. Mr.A.S. Deshpande, Advocate for respondent. ........ 3 (CORAM : V.R.KINGAONKAR,J.) DATE : 7th May, 2010. ORAL JUDGMENT : 1. These petitions involve identical questions of facts and law. The Petitions arise out of common Judgment and Order dated 23.08.2007 rendered by learned Member of Industrial Court, Jalna in Complaint (ULP) Nos.139 of 2002, 140 of 2002 and 141 of 2002. By the impugned judgment, the complaints filed by respondents were allowed and the petitioners were directed to modify the nomenclature of the posts shown against the names of the respondents and to fix their pay in the pay scale of Rs. 1200-30-1560-EB-40-2040 with retrospective effect. 2. It is common ground that the respondents were employed on the establishment of petitioners. The petitioner no.1 is a government company duly incorporated under the Companies Act. The units run by the petitioner no.1 company were at Hingoli, Gangakhed, Parbhani and Amaravati. There were various employees, who were not regularly absorbed in service of the petitioner-Company. The grievances of the employees, who were working for years together without being regularised in a pay scale, were considered and the petitioner no.2 appointed committee called "Dr.Kinkar Committee". The said committee gave its report on 21st October, 1994. The committee suggested improvements in the staffing pattern, manner in which some of the employees could be absorbed by creating supernumerary posts and the manner in which they shall be placed in particular pay scales as per nature of duties assigned to them. 3. The respondents were aggrieved because they were 4 not designated as `clerk' nor were granted pay scale of Rs. 1200-30-1560-EB-40-2040. They filed the complaint applications alleging that they were discriminated by the petitioners. They submitted that they were designated as "Junior Clerks" and were erroneously placed in pay scale of Rs.825-15-900- EB-20-1200-25-1450. According to them, they were never working on the post of `junior clerk'. They alleged that only six employees, including themselves were not given the pay scale of Rs. 1200-2040. They submitted that they were denied due pay scale without any reason, and therefore, the petitioners had committed unfair labour practices. They filed the complaint applications for appropriate reliefs, including placing them in the scale of Rs. 1200-2040 and recovery of amount due being difference in the payment received by them and the payment which they were entitled to. The petitioners resisted the complaint applications on the ground that Dr.Kinkar committee report was not accepted and implemented by them. The petitioners also denied that the respondents were employed as clerks. The petitioners contended that the respondents were not at all discriminated and there was no justification to grant them the pay scale of Rs.1200-2040. The petitioners further alleged that some of the employees were granted such pay scale on account of the administrative exigency and as a special case. The petitioners further contended that the resolution was adopted by the petitioner no.1 to regularise only some of the employees working on daily wages. The petitioners averred that the respondents were absorbed only as `junior clerks' and as such were not entitled to get pay scale of Rs.1200-2040. The learned Member Industrial Court held that the petitioners were entitled to get the pay scale of Rs.1200-2040, which was made available to the similarly placed other employees. The learned Member of the Industrial Court further held that the respondents 5 were subjected to unfair labour practices by denying them equal treatment or equal pay likewise other employees. The learned Member of the Industrial Court held that there was no post of junior clerk as such and separate scale of Rs.825-1450 as per recommendation made by the Board of Directors of the petitioner no.1. In keeping with such findings, the complaint applications were allowed vide the impugned judgment and order. 4. Heard learned counsel for the parties. 5. Mr.S.T. Shelke, learned counsel appearing for the petitioners strenuously argued that the report of Dr.Kinkar committee was never accepted by the petitioners and was not acted upon. He submitted that the report was considered for the purpose of reduction of the number of employees in order to tone up the administration of the petitioner no.1. He would further submit that the resolutions passed by the petitioner no.1 clearly show that the report of Dr.Kinkar committee was not acted upon. He contended that one Shri.S.R. Dhoot and Shri.V.D. Deshpande were placed in the scale of Rs.1200-2040 after following due procedure of selection in 1997. He contended that the respondents could not be compared with the said two employees for grant of equal pay scale. He argued therefore that the impugned judgment is unsustainable. On the other hand, Mr.A.S. Deshpande, the learned counsel for respondents support the impugned judgment. 6. The question involved in these petitions is :- "Whether, the respondents proved that they were eligible to be placed in the pay scale of Rs. 1200-2040 likewise other employees, who were similarly placed and that the petitioner no.1 6 committed unfair labour practices by denying them such due scale of pay ? 7. The material on record shows that the respondents were appointed as a clerk-cum-typist or clerk in between 1985 to 1988. Their original appointments were not shown on the post of "Junior Clerk". What appears from the record is that the respondents-Yeshwant and Narendra were appointed as Seed clerk and clerk-cum-typist on 15th January, 1985 and 25th March, 1987 respectively, as per office orders issued by the petitioner no. 1, whereas, the respondent-Maroti was appointed on 22.10.1986 as a clerk. There is no record to show that the post of "Junior Clerk" was available on the establishment of the petitioner no.1. The staffing pattern for the office of the petitioner no.1 as recommended by Dr.Kinkar committee shows that there is no post of junior clerk. It was noticed that the post of clerk/purchase sales/administration/account/typist were 28. There were 15 posts lying vacant. In other words, the respondents could be accommodated as employees on the vacant post. It also appears that previously the post of clerk carried the pay scale of Rs. 950-20-1150-EB-25-1500. Therefore, it is difficult to find any basis for placement of respondents in the pay scale of Rs.825-15-900- EB-20-1200-25-1450. What appears from office order dated 15th April, 1999 issued by the petitioner no.1 is that likewise various other employees, respondents were regularised in service as a special case. For the first time, in the year 1999, the post shown against their names was that of "Junior clerk". Until then the posts held by them was that of "clerk' or `clerk-cum-typist' though they were not employed on regular pay scale on any sanctioned posts. The petitioners seek to rely on minutes of resolution adopted in a meeting dated 23rd March, 1999. The discussion on subject no.10 7 purports to show that the Board of Directors resolved to create 27 posts of helpers and 6 posts of junior clerks. The pay scale made available to the post of junior clerk was also shown as 825-1450. 8. Now, the question is as to whether the recommendations of Dr.Kinkar committee were acted upon by the petitioner no.1 or not? The recommendations of Dr.Kinkar committee indicated that the pay scale of Rs.950-20-1150-EB-1500 was to be made available to the clerks/drivers. It appears that some of the suggestions of the committee were acted upon. The respondents pointed out that other two employees viz., Shri.V.D. Deshpande and Shri.S.R. Dhoot were employed likewise them and placed in the pay scale of Rs.1200-2040. The said two employees were granted such pay scale as per office order dated 21.04.1997. The contention of the petitioners is that the said two employees were duly selected after following due procedure, including interviews conducted at the factory level by the selection committee. There is no reliable material to show that other employees were called upon to compete and that there was selection on the basis of any principle like merit-cum-seniority or seniority-cum-merit. It does not suffice the purpose to say that the said two employees were selected through interviews conducted at the factory level. The respondents were not given any opportunity to prove their merit nor there is any substantial reason to infer that they did not bear any merit. Obviously, the allegations of the respondents that they have been discriminated while granting pay scale of Rs.1200-2040 is corroborated due to pick and choose method adopted by the petitioner no.1. 9. Coming to the evidence tendered by the petitioner no. 1, it appears that Shri.Vasant Landhe was examined in order to 8 show as to how the employees were placed in particular scale. He was then working as office Incharge. He stated that on 07.03.1997 Shri.V.D. Deshpande was interviewed and was appointed on the vacant post in the pay scale of Rs.1200-2040. He explained as to why the respondents were not placed in a particular scale. According to him, the respondents were not in the employment when the employment agreement was entered into. He stated that Shri.S.R. Dhoot was working on daily wages in Oil Mill Department but, on 10th November, 1986, due to accident, said Shri.Dhoot suffered 44% disability. Therefore, Shri.S.R. Dhoot was interviewed and was appointed as clerk in the pay scale of Rs.1200-2040. It is important to notice that the respondents were working on daily wages since 1985 onwards, and therefore, they were entitled to be treated likewise Shri.V.D. Deshpande and Shri.S.R. Dhoot. It appears that the respondents had filed complaints prior to grant of pay scale to them w.e.f. 01.04.1999. They had withdrawn the complaints because there was settlement of the claims. Cross examination of Vasant Landhe purports to show that the recommendations of Dr.Kinkar committee were applicable to the petitioner no.1. He admitted that as per recommendations of Dr.Kinkar committee, the workman was required to withdraw the matter from the Court for becoming eligible to get the regularisation of service. Obviously, withdrawal of the complaints by the respondents was on account of gaining eligibility to seek regularisation in the employment. They could not have contemplated that subsequently they will be dismayed due to the placement in lower scale of pay than expected by them. It is further admitted by Vasant Landhe that the communication (Exh-U-2) was issued by Mumbai office of the petitioner no.1. The communication dated 2nd March, 1996 (Ex-R-I) purports to show that after discussion the management of the petitioner no.1 decided to grant 9 new pay scales by taking help of recommendations made by the report of Dr.Kinkar committee. It appears that such pay scales were to be given to the employees of units at Amravati, Hingoli, Gangakhed and main office at Mumbai. The respondents were employees of unit at Parbhani. There is no reason why the employees attached to the unit at Parbhani were not considered for grant of such pay scale. The communication further shows that the new pay scales were granted w.e.f. 01.01.1996 subject to the condition that the employees concerned would withdraw their complaints-cases from the Courts. In that process of settlement, the pay scale for the post of clerk/typist/driver is shown as Rs. 1200-30-1560-EB-40-2040. It is also manifestly clear that there is no post of junior clerk nor any separate scale is shown for any such post. Considering these aspects, I find it difficult to interfere with the findings of the Industrial Court. 10. Taking over all view of the matter, in my opinion, there is hardly any substance in the petitions. The petitions are accordingly dismissed. No costs. 11. In view of the dismissal of the Petitions, nothing survives in civil application no.4470/2010 in Writ Petition no. 5793/2007 and civil application no.4577/2010 in writ petition no. 5794/2007 and the same stand disposed of accordingly. (V.R.KINGAONKAR) JUDGE gas/wp5795.10