FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGBAD. ---------------------------------------------------------------------------------------------------- Office notes, office Memoranda of | coram, appearance, court’s orders | Court’s or Judge’s orders. or directions and Registrar’s orders | WRIT PETITION NO.5098/1996 ------------------------------------------- Smt.R.D.Reddy,Adv.for petitioner Shri Y.R.Barlota ,Adv.for respondent. .... CORAM : R.K.DESHPANDE,J. DATE : 6TH NOVEMBER,2009. 1] This petition challenges the judgment and order dated 9/4/96 passed by the Labour Judge, Labour Court at Latur in Reference (IDA) No.5/92 filed under Section 33-C(2) of the Industrial Disputes Act, 1947. By this judgment and award, the respondent employee is held entitled to recover an amount of Rs.14,168/- from the petitioner- employer, as arrears of pay. 2] The claim of respondent employee in the application before Labour Court was based upon Circular no.9 dated 26/10/1989, which was made applicable w.e.f. 1/4/1988. The learned Judge of the Labour Court held that the applicant was entitled to the benefit of the said circular and held that the basic pay of the respondent should have been calculated at Rs.1500/- p.m. in the month of August 1988 instead of Rs. 1470/- p.m., by giving regular increment. The finding recorded in para 19 of the judgment of the Labour Court, which is relevant, is reproduced below: 19.Now, what happened in this case, is that though he is senior to Mr.Ankalkote as on 1/4/88 the basic pay of Mr.Ankalkote and petitioner was the same i.e. Rs. 1470/-. In case of Mr.Ankalkote his next increment was due on 6/8/88 i.e. just after 4 months of the revision of pay. So, as on 6/8/88 the regular increment was given to Mr.Ankalkote and his basic pay was refixed at Rs.1500/-p.m. Now, here according to the circular though in Aug.88 the regular increment of petitioner was not due, but still then, petitioner being senior basic pay after givine one increment to petitioner in the month of Aug.88 itself could have been fixed at Rs. 1500/- i.e. equal to Mr.Ankalkote and his increment date which was in the month of Feb. ought to have been changed as equal to the case of Mr.Ankalkote. It means that the basic pay of petitioner in the month of Aug.88 itself ought to have been calculated at Rs.1500/- p.m. instead of Rs.1470/-p.m. by giving regular increment to him. But, it appears that by ignoring this circular No.9 the basic of petitioner continued as Rs.1470/- p.m. till Feb.89. And that is how there was monetary loss to petitioner though it was made very clear by respondent in its circular No.9. And this is how the schedule, which is given by petitioner appears to be correct. Hence, petitioner is entitled for the difference of wages as per the pay scale of one Mr.Ankalkote and as per the schedule annexed with the petition. Hence, issue No.1 is answered in affirmative. 3] Smt. Reddy, learned counsel appearing for the petitioner contended that there was a dispute in repsect of the seniority and the labour court ought to have considered seniority as on the date of issuance of circular dated 26/10/89. According to her, on the said date, respondent was junior to one Mr.Ankalkote and hence he was not entitled to benefit of circular no.9. It is not disputed that the said circular was made applicable w.e.f. 1/4/88 on which date, the respondent was admittedly senior to Shri Ankalkote.The labour Court has considered this aspect in detail in para 19, which is reproduced above. The finding of the labour Court in that respect therefore, cannot be faulted with. Even otherwise, mere fact that the respondent has refused to accept promotion, would not affect the applicability of the circular no.9 dated 26/10/89. The aspect of refusal of promotion has also been considered in para 21 by the Labour Judge of the Labour Court which is reproduced below : 21.Rather pertinent to see, there is nothing in circular No.8 or 9 that in case the promotion is refused then, benefit cannot be given. As a matter of fact, Ankalkote and petitioner both are Junior Assistants. Ankalkote is admittedly junior to petitioner even though the promotion was refused by petitioner. Therefore, refusal of promotion in this case will not debar petitioner to claim the monetary benefit in view of the circular No.9 issued by the respondent. The case of petitioner ought to have been settled and therefore, to my mind, whatever monetary loss was to be there to petitioner, petitioner is entitled for the interest on the recoverable amount at the rate of 18% per annum from the date of this order till its realisation. Hence, issue no.2 is answered accordingly. 4] In view of the above finding recorded by the labour Court, I do not find any substance in the contention raised by Smt.Reddy that the seniority should have been granted on the date of issuance of the circular and not w.e.f. 1/4/88. 5] Smt.Reddy has urged that the labour Court has no jurisdiction to adjudicate over the dispute under Section 33 (c) (2) of the Industrial Disputes Act. However, in the instant case, there seems to be no dispute but it is merely the entitlement of the respondent on the basis of the circular no.9 dated 26/10/89, which is considered by the labour Court and hence I do not find any substance in the said contention also. 6] Smt.Reddy has urged that the labour Court ought not to have granted interest at the rate of 18% p.a. from the date of the order till its realisation. The interest that is awarded by the Court from the date of the order and not from the date of the filing of the application, and hence I do not find any reason to interfere with the said order, awarding interest at the rate of 18% p.a. by the labour Court. 7] In view of above, there is no substance in the instant Petition. The same is dismissed without any order as to costs. (R.K.DESHPANDE, J.) umg/wp5098-96