1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Writ Petition No. 2647/2002 1 Maharashtra State Road Transport Corpn, Wardha Through its Divisional Controller, Arni Road, Yavatmal. 2. Vice Chairman and Managing Director, Maharashtra State Road Transport Corpn, Central Officers, Anandrao Nair Marg, Bhayakhela, Bombay-8. ... Petitioners .versus. 1. Mohammad Umar Pir Mohammad, Aged about 55 years, Occupation: Service, R/o Mahadeoraopura, Wardha, Tah. & Distt. Wardha. 2. Industrial Court, Civil Lines, Nagpur ... Respondents. ------------------------------------------------------------------------------------------------ Mr. S. C. Mehadia, Advocate for the petitioners. Mr. A. H. Jamal, Advocate for respondent no.1. ------------------------------------------------------------------------------------------------ Coram : A.P.Lavande,J Date : 17.9.2008 Oral Judgment Heard Mr. Mehadia, learned counsel for the petitioners and Mr. Jamal, learned counsel for respondent no.1. 2 2. By this petition, the petitioners challenge Judgment and Order dated 8.9.2001 passed by the Industrial Court, Nagpur in Complaint (ULP) No. 825/95 under Section 28 of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act 1971(“the Act” for short). 3. Respondent no.1 was appointed as a clerk by the petitioners Corporation with effect from 1/12/1974. One Shri D.S. Pendam and Shri S.A. Yadao were appointed as Clerks by the petitioners on 1.3.1973. At the time of their official appointment, respondent no.1 as well as Mr. Pendam and Mr. Yadao were getting pay of Rs. 120/- per month. Respondent no.1 was appointed as Jr. Assistant with effect from 9.9.1978 and Mr. Pendam was promoted on officiating basis as Jr. Assistant with effect from 9.9.78. The respondent no.1 was appointed as Jr. Assistant with effect from 1.10.1977 and Mr. Yadao was promoted from 28.4.1982. Mr. Pendam was appointed on regular basis as Jr. Assistant on 9.9.1978. In the year 1988 there was a settlement between the Corporation and its Union. Pursuant to the said settlement, the petitioners issued 3 Circular no. 9 dated 26.10.1989. The petitioners also issued another Circular dated 23rd May 1991 relying upon the Circular dated 26.10.1989 alleging unfair labour practice, respondent no.1 filed complaint against the petitioners seeking direction that he may be paid salary as being paid to Mr. Yadav and Mr. Pendam in the year 1989. The pay scale of respondent no.1 was Rs. 1500/- per month and that of Mr. Pandam and Mr. Yadav was Rs. 1500/- and Rs. 1840/- per month respectively. Upon representation being made by Mr. Pendam, the petitioners granted him pay scale of Rs. 1840/- per month at par with Mr. Yadav on the ground that Mr. Pandam and Mr. Yadav were appointed as Clerks on the same day i. e. 1.3.1973. According to respondent no.1, since he was senior to Mr. Yadav in the post of Jr. Assistant, he was entitled to the same scale as has been given to Mr. Yadav. 4. The petitioners filed written statement and contested the claim of respondent no.1. The petitioners relied upon Circular dated 23rd May 1991. On behalf of respondent no.1 one witness each was examined. The Industrial Court, after appreciating the evidence led by the parties including the Circulars dated 26.10.1989 and 23.5.1991 allowed the complaint and directed the petitioners to fix 4 the basic pay of respondent no.1 at par basic pay of employee with retrospective effect. Aggrieved the Corporation has invoked writ jurisdiction of this Court. 5. Mr. Mehadia, learned counsel for the petitioners submitted that the Industrial Court has not appreciated the evidence led by the parties in proper perspective and has wrongly placed reliance upon Circular dated 26.10.1989. According to learned counsel, in terms of Circular dated 23.5.1991 he was not entitled to the same scale as that of Mr. Pendam, who was admittedly senior to respondent no.1 in the basic of clerk. He, therefore, submitted that the impugned order passed by the Industrial Court deserves to be quashed and set aside. 6. Per contra, Mr. Jamal, learned counsel appearing for respondent no.1 supported the impugned order and submitted that the reasons given by the Industrial Court cannot be faulted. According to Mr. Jamal, since respondent no.1 and Mr. Pendam were promoted as Junior Clerks on the regular basis on the same dated 9.9.1978, respondent no.1 was entitled to same scale of pay as that of Mr Pendam in terms of Circular dated 26.10.1989. According to Jamal, Circular dated 23th May 1991 is not attracted in the present 5 case. Therefore, no interference is called for by this Court in exercise of writ jurisdiction. 7. I have considered the submissions made by the learned counsel for the parties and perused the record. Since the controversy whether Circular no.9 dated 26.10.1989 attracted to the case of respondent no.1, it would be appropriate to quote para 3 which is the relevant paragraph of the said circular upon which the reliance has been placed by the learned counsel appearing for both sides. It reads thus: “3. As a result of pay fixation in the new pay scale, it was pointed out by the unions that there are some cases where in the new pay scale the basic pay of a junior in the same pay scale even though immediately prior to revision of pay scale effective from 1.4.1988, the pay of the junior person was less than that of the senior person. In such cases the pay of senior person will be refixed at a stage at which the pay of his junior has been fixed. Even after such a pay fixation, later on, if the pay of the junior person is raised by one stage by grant of annual increment resulting into the junior person once again drawing higher pay, the pay of the senior person shall once again be refixed on that day. In such a case of second refixation, the senior person will draw his next annual increment after completion of 12 months i.e. date of increment will be changed. In case where the junior person is drawing higher pay as a result of some advance increment in recognition of merit then, the senior person will not be entitled to refixation of Pay a 6 stipulated earlier. Similarly, if a senior person is drawing less pay because of punishment of stoppage of increment, he will not be entitled to refixation as stipulated earlier. 8. According to Mr. Mehadai, in terms of Circular dated 23.5.1991 respondent no.1 is not entitled to same scale were that of Mr. Pendam. 9. The question which arises for consideration in the present petition is Whether the Industrial Court was justified in placing reliance upon Circulars dated 26.10.1989 and 23.5.1991 and giving benefits of the said circular to respondent no.1. 10. Since respondent no.1 and Mr. Pendam were promoted to the post of Jr. Assistant on regular basis on the same date i.e. 9.9.1978. Para no.3 of the said circular dated 26.10.1989 is clearly attracted. Therefore, once the petitioners give scale of Rs. 1840/- per month to Mr. Pendam respondent no.1 could not have granted pay scale Rs. 1500/- and he was entitled to claim the same scale as granted to Mr. Pendam. Although respndent no.1 was junior to Mr.Pendam in the post of clerk insofar as Circular dated 23th may 1991 is concerned. Perusal of the said circular discloses that having regard to the factual position, the said Circular is not attracted in the 7 present cae. Therefore, the finding given by the Industrial Court that respondent no.1 is entitled to same scale of pay as to Mr. Pendam cannot be said to be illegal or peverse. Therefore, no interference is called for with the impugned order passed by the Industrial Court. 11. For the reasons aforesaid, I find no merit in the present petition. Hence, Rule is discharged. Having regard to the facts and circumstances of the case the parties to bear their own costs. Judge 8