Satish Shankarrao Deshmukh vs Member, Industrial Court, Maharashtra, Amravati and others

B.P. Dharmadhikari, J.—Heard counsel for the parties.

The contention of Advocate Mardikar is that petitioner has not been given his due date of seniority though Labour Court Akola on 5.3.1981 while setting aside his termination as unfair labour practice ordered his reinstatement on original post. Advocate Mardikar points out that original position is apparent from the resolution of appointment dated 13.12.1974 by which petitioner was initially appointed on daily wages for 3 months along with one Shri Kahale. He points out that though petitioner was terminated, Shri Kahale continued in service and Shri Kahale has been given 2.12.1974 as the date for calculating his seniority list and hence petitioner is also entitled to same date. He contends that the petitioner has specifically raised this grievance before the Industrial Court pointing out that in case of petitioner only different yardstick is being applied. But then Industrial Court has invoked the provisions of Almelkar Award and granted seniority to petitioner from 1.11.1979 i.e. after completion of 5 years of service on daily wage. He has taken Court through relevant documents to substantiate his contention.

Advocate Tajne on the other hand argues that as petitioner was not holding any post, the Labour Court has directed his reinstatement on original position. He further states that during the period for which petitioner was out of employment certain employees were absorbed against permanent vacancies and as such they became senior to the petitioner. He points out that at the relevant time the present respondent No. 2 Municipal Corporation was not in existence, but it was Municipal Council and all relevant recruitment records did not become available to Municipal Corporation. In such situation, Municipal Commissioner found it improper to reopen the seniority list and the learned Member of Industrial Court has rightly after noticing of facts granted the seniority from 1.11.1979. He argues that as employer respondent No. 2 is a public employer, view taken by the Industrial Court needs to be upheld and this Court should not interfere in the matter.

Learned A.G.P. for respondent No. 1 also supports order and points out that the instances of what has been done by Municipal Council earlier were not very relevant and Industrial Court has rightly relied upon provision of Almelkar Award and as petitioner can be said to be holder of post after 5 years from 11.1974 he has been given seniority from 1.11.1979.

Perusal of record shows that appointment of petitioner along with Mr. Kahale and its approval by General Body of Municipal Council on 13.12.1974 is not in dispute. It is also apparent that Shri Kahale is shown to have been appointed against permanent vacancy from 2.12.1974, as direct recruit against vacancy caused by retirement of or removal of Shri Vairale. Next person whose name appears is A.T. Chaporkar and his date of entry has been shown as 11.2.1975. It is, therefore, obvious that had petitioner continued in service, either along with Kahale or after Kahale, depending upon position, then prevailing he could have been absorbed in permanent employment. It is not in dispute that all is exercise took place after 30.4.1979 i.e. after termination of service of present petitioner and in view of provisions of Almelkar Award only.

Learned counsel for petitioner representing him in industrial Court has specifically argued that when Kahale could have been given seniority from 1975, eclining that seniority to petitioner, constituted of adoption of double standards, however, this argument has been not considered further by Industrial Court.

Advocate Tajne has pointed out that the Industrial Court has considered specific defence of present respondent No. 2 that petitioner was only daily wager and therefore, he was reinstated as daily wager as per Almelker Award. Period of 5 years was computed from his initial entry and he has been given seniority whom the date on which that period of 5 years was over. He invites attention of court to discussion in this respect in paragraph 16, 17 and 19 by the Industrial court.

The perusal of office note of respondent No. 2 in this respect shows that the office had recommended seniority from 1.11.1974 to petitioner because he was in employment on 1.11.1974, it has also been found that though Labour court granted him relief of reinstatement on original position, said direction was not entirely acted upon by Municipal Council. It is further noted in the said note that action of giving permanent benefit to these employees was after 30.4.1979 and hence in view of Court''s order and other facts Shri Deshmukh also deserved appointment at least from 21.12.1974 i.e. immediately after ShriKahale. I find that all these facts are not considered by the Industrial Court. If completion of period of 5 years, was a relevant circumstance, there is no material before Industrial court to show that Shri Kahale had on 2.12.1974 completed said period of 5 years. There is also no material to show that other employees whose names appeared after Shri Kahale had similarly worked for five years before they were taken up as permanent employees. On the contrary, it appears that exception is ought to be made only in case of present petitioner only because he was required to approach Industrial Court. In these circumstances, I find that there was no question of reopening of seniority list, as had the petitioner continued in service, his name would have been included in the list immediately after Shri Kahale. It was therefore only question of correction of the list, on account of error The impugned order of Industrial Court is therefore unsustainable, industrial Court has permitted employer to adopt two different standards for employees and that too a hostile norm has been allowed to be applied to petitioner who was directed by Labour Court to be reinstated. I therefore, find hat this definitely constituted unfair labour practice.

Next vacancy after Shri Kahale appears to have become available on 1.2.1975 against which Shri A.T. Chaporkar has been appointed. In such situation I find that petitioner should be given said date i.e. 11.2.1975 for computing his seniority. However, the petitioner has already been given seniority from 1.11.1979 and he has therefore, drawn consequential benefits in these circumstances in order to avoid any loss to the public revenue it is ordered that the petitioner shall be given a deemed date of seniority only and he will not be entitled to any consequential benefits for that period 11.2.1975 to 1.11.1979. It is, therefore, made clear that consequent upon such grant of deemed date, his current salary only shall be revised by giving all increments notionally for the past period. Thus even for past period he will not be given any monetary benefits. The impugned order of Industrial Court is modified by declaring that the petitioner is entitled to grant of a deemed date 11.2.1975 for the purpose of seniority. He is not entitled to any grant of arrears for period from 11.2.1975 till 31.12.2008. However, his salary for the month of January 2009 shall stand revised accordingly by adjusting the increments to which he becomes entitled. For pension and gratuity service from 11.2.1975 shall be taken into consideration. Writ petition is thus partly allowed. Rule made absolutely accordingly. No costs.