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Judgment
The petitioner calls in question the Judgment and Award dated 30 June 2017 passed by the Industrial Court in Complaint (ULP) No.282 of 2013. By the said Judgment and Award, the Industrial Court held that the petitioner had indulged in unfair labour practices under Items 5, 9, and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The Industrial Court directed the petitioner to appoint the complainants on the post of Data Entry Operator, if such posts were available, and in the event of non-availability, to appoint them as and when vacancies arise. The petitioner was further directed to grant the complainants the pay-scale applicable to the post of Data Entry Operator with consequential benefits from the date of the Judgment.
The factual background, as set out by the petitioner, is thus. In the year 1995, the petitioner issued Advertisement No.7 of 1995 for recruitment to the technical post of Data Entry Operator. Out of 25 candidates, 15 were appointed strictly on the basis of merit, while the remaining candidates were placed on a waiting list. Respondent Nos. 2 and 3 were placed at Serial Nos.18 and 20 in the said list.
Thereafter, the petitioner issued a separate and distinct Advertisement No.1 of 1997 for recruitment to the post of Data Entry Operator-cum-Clerk. According to the petitioner, this post was distinct and separate from the earlier post of Data Entry Operator. Respondent Nos.2 to 4 came to be appointed in the year 1997 on the post of Data Entry Operator-cum-Clerk. At the time of implementation of the Fourth Pay Commission, the pay-scale applicable to both the posts was identical.
In pursuance of a Government Resolution issued in the year 2006, the General Body of the petitioner passed Resolution No. 1314 revising the pay-scale of the post of Data Entry Operator to Rs.5,000–8,000. In the year 2013, the respondents filed a complaint alleging unfair labour practices under Items 5, 9, and 10 of Schedule IV of the said Act. Item 5 relates to showing favouritism or partiality to a set of workers irrespective of merit. Item 9 pertains to failure to implement an award, settlement, or agreement. Item 10 concerns indulgence in acts of force or violence.
By Judgment and Award dated 30 June 2017, the Industrial Court partly allowed the complaint and issued directions to appoint the respondents on the post of Data Entry Operator. This direction forms the subject-matter of challenge in the present writ petition.
Mr. Dande, learned Advocate for the petitioner, contended that the complaint suffers from a gross delay of about seven to eight years from the date of the Government Resolution dated 14 July 2005. He submitted that Section 28 of the said Act mandates that a complaint must be filed within ninety days from the date of occurrence of the alleged unfair labour practice. According to him, the Industrial Court can condone the delay only upon sufficient cause being shown. He further submitted that the Industrial Court erred in holding that the cause of action was recurring. According to him, while issues relating to pay-scale may, in certain circumstances, have a recurring element, the act constituting unfair labour practice must be traced to a definite point of time. He contended that the alleged occurrence, if any, arose in the year 1997. The claim for pay-scale, being only a consequential relief, could not revive or extend limitation. On this basis, he sought setting aside of the impugned Judgment and Award.
Per contra, Mr. Deshmukh, learned Advocate appearing for respondent Nos.2 to 4 submitted that after the examination and interview process, the respondents were included in the select list prepared in the year 1996. From the said select list, eight candidates were initially appointed, and the remaining seven candidates were appointed thereafter. He submitted that although a fresh advertisement was issued in the year 1997, the respondents neither applied pursuant to the said advertisement nor participated in any fresh selection or interview process under that advertisement. He submitted that the respondents had appeared for the examination and interview pursuant to Advertisement No.7 of 1995, and their selection was completed in that process. The appointment orders issued to the respondents in July 1997 were, according to him, based on the select list prepared from the 1995 recruitment process, and not on the basis of Advertisement No.1 of 1997.
He further submitted that the core grievance of the respondents is that despite being selected for the post of Data Entry Operator, they were appointed as Data Entry Operator-cum-Clerk. Initially, there was no financial prejudice as both posts carried the same pay-scale. However, after the revision of pay-scale in the year 2006, a higher pay-scale was granted to the post of Data Entry Operator. The respondents made representations seeking parity, but the petitioner continued to pay them a lower pay-scale, thereby perpetuating discrimination. He also submitted that in the written statement filed before the Industrial Court, the petitioner admitted that the selection of the respondents had already been completed and that no fresh examination was conducted for the said candidates, including respondent Nos. 2 to 4. He pointed out that the respondents never applied pursuant to Advertisement No.1 of 1997 under which the post of Data Entry Operator-cum-Clerk was notified.
He lastly submitted that the claim for higher pay-scale gives rise to a recurring cause of action, as the entitlement accrues month to month. He placed reliance on the decision of the Supreme Court in Rushibhai Jagdishbhai Pathak v. Bhavnagar Municipal Corporation, (2022) 18 SCC 144. He submitted that the Industrial Court rightly treated the complaint as within limitation, and while accepting the recurring nature of the cause of action, granted monetary benefits only from the date of the order. On these grounds, he prayed for dismissal of the writ petition.
The rival submissions have been carefully considered. The record has been examined in the light of the statutory scheme and the evidence placed before the Industrial Court.
The petitioner questions the Judgment and Award mainly on two grounds. First, that the complaint was hopelessly barred by limitation under Section 28 of the Act. Second, that no unfair labour practice was made out, as the respondents were appointed to a different post under a separate recruitment process and no legal right accrued in their favour to claim appointment or pay-scale of Data Entry Operator.
On the aspect of limitation, Section 28 of the Act requires a complaint to be filed within ninety days from the occurrence of the alleged unfair labour practice. The provision, however, also recognizes that where sufficient cause is shown, delay may be condoned. The crucial issue, therefore, is whether the alleged unfair labour practice was a one-time event or whether it continued to operate so as to give rise to a recurring cause of action.
The petitioner asserts that the alleged illegality, if any, occurred in the year 1997 when the respondents were appointed as Data Entry Operator-cum-Clerk. According to the petitioner, that event attained finality long ago and cannot be reopened after several years by treating the grievance as recurring. This submission has force to the extent that appointment to a particular post is ordinarily a one-time act.
However, the complaint before the Industrial Court was not confined merely to the nomenclature of the post. The core grievance was unequal treatment in pay despite similarly placed work and despite the respondents having been selected through the same recruitment process as Data Entry Operators. The evidence shows that initially both posts carried the same pay-scale. There was no financial prejudice at that stage. The grievance became real and concrete only when, pursuant to the Government Resolution of 2006 and the General Body Resolution of the petitioner, a higher pay-scale was granted to the post of Data Entry Operator alone.
From that point onwards, every month the respondents were paid a lower salary than what was paid to Data Entry Operators, despite their claim of having been selected for that very post. Such payment is not a past and closed transaction. It renews itself with each salary cycle. The law is settled that claims relating to pay disparity operate on a recurring basis. The decision of the Supreme Court in Rushibhai Jagdishbhai Pathak squarely applies. The Industrial Court, therefore, committed no error in treating the complaint, insofar as it related to pay-scale, as within limitation.
The Industrial Court also exercised restraint by granting monetary benefits only from the date of the Judgment. This itself answers the grievance of the petitioner on delay. Past claims were not reopened. Only future parity was ensured.
The next question is whether the respondents were justified in claiming that they ought to have been appointed as Data Entry Operators and not as Data Entry Operator-cum-Clerk. On this issue, the respondents’ submissions are supported by the record. It is not disputed that the respondents appeared for examination and interview pursuant to Advertisement No.7 of 1995 for the post of Data Entry Operator. It is also not disputed that select list was prepared, and that appointments were made from that list in phases.
The petitioner’s own written statement admits that the respondents were not subjected to any fresh examination in 1997. This admission is significant. If the respondents were appointed under Advertisement No.1 of 1997 for a different post, a separate selection process would have been necessary. The absence of such a process clearly indicates that the appointments issued in July 1997 were traceable to the earlier selection for the post of Data Entry Operator.
The mere use of a different designation in the appointment order cannot defeat the substance of the selection process. Courts are required to look at the real nature of the transaction and not its form. The Industrial Court rightly concluded that the respondents were selected as Data Entry Operators but were appointed under a different label.
Once this conclusion is reached, the question of unequal treatment becomes unavoidable. When persons selected through the same process are treated differently in matters of pay without any rational basis, it amounts to favouritism and discrimination. Such conduct squarely falls within Item 5 of Schedule IV of the Act. The failure to extend the revised pay-scale, despite repeated representations, also attracts Item 9. There is no material to show that the respondents voluntarily accepted a lower status or waived their rights.
The petitioner’s contention that the posts of Data Entry Operator and Data Entry Operator-cum-Clerk are distinct loses significance in the face of the admitted facts. Distinction in cadre or duties can justify differential treatment only when supported by a lawful recruitment process and clear service conditions. That foundation is absent here.
The direction issued by the Industrial Court to appoint the respondents as Data Entry Operators, subject to availability of posts, is also reasonable. It does not disturb existing appointments. It balances administrative constraints with the respondents’ rights. The alternative direction to consider the respondents as and when vacancies arise further demonstrates judicial restraint.
In sum, the Industrial Court has considered the pleadings, admissions, and evidence in their proper perspective. The findings are neither perverse nor contrary to law. The reasoning reflects a correct understanding of limitation, recurring cause of action, and the concept of unfair labour practice.
No case is made out for interference in the writ jurisdiction. The Judgment and Award dated 30 June 2017 passed by the Industrial Court in Complaint (ULP) No.282 of 2013 calls for no interference.
The writ petition, therefore, stands dismissed. No costs.
At this stage, learned Advocate for the petitioner seeks extension of the stay granted during pendency of the writ petition. However, for the reasons recorded in the judgment, the request for continuation of the stay is rejected.