Travancore Cochin Chemicals Ltd. vs The General Secretary, TCC Thozhilali Union & Ors.

^1. Petitioner is a Government of Kerala undertaking. Petitioner is the Management and the Respondents Nos.1 to 5 are the Union, which represented the Workman in I.D. No.4/2008 of the Industrial Tribunal, Alappuzha. The Government of Kerala referred the following issues for adjudication to the Tribunal as per Notification dated 20.09.2008, which was corrected by the subsequent Notification dated 19.02.2009.

The Workman entered into the service of the Management on 08.10.1987 as a Trainee (Typing). Later he was absorbed in service as Junior Assistant (Typing) and he was confirmed in the post of Junior Assistant (Typing) on 08.04.1990. At the time of his appointment, his qualification was Pre-Degree and Typewriting English (Higher). During the year 1993, he acquired B.Com Degree. From 01.04.1995 he was promoted as Assistant and thereafter he was promoted as Senior Assistant from 01.04.1999. Even before his promotion as Senior Assistant, the Workman was acting as Senior Assistant from 21.11.1997 and getting Acting Allowance @ Rs.65/- per month. The post of Senior Assistant became vacant on 20.11.1997 due to the retirement of Sri. K.A. Leon, Senior Assistant. At that time, the Workman was qualified for promotion as Senior Assistant. But, the Management promoted him as Senior Assistant only w.e.f. 01.04.1999. Accordingly, the Workman claimed promotion to the Grade of Senior Assistant w.e.f. 21.11.1997. Sri. K.J. Sabu was junior to the Workman. Sri. K.J. Sabu joined the service of the Management on 15.03.1989 as Junior Assistant and he was confirmed in the said post w.e.f. 15.03.1990. At the time of appointment, his qualification was B.Com Degree. He was promoted as Assistant from 21.06.1996. The basic pay of the Workman as on 15.09.1996 was Rs.2,015/- whereas the basic pay of Sri. K.J. Sabu who was junior to the Workman as on 15.09.1996 was Rs.2,070/-. The Workman claimed that this anomaly has to be rectified by equalising the basic pay of the Workman as on 15.09.1996 @ Rs.2,070/-, giving him a personal pay of Rs.55/-.

By the impugned Ext.P6 Award, the Industrial Tribunal declared that the Workman is eligible to get promotion to the cadre of Senior Assistant w.e.f. 21.11.1997 with all consequential financial benefits; that the Workman is eligible to get his pay refixed w.e.f. 21.06.1996 in parity with the pay of Sri. K.J. Sabu and consequential benefits; and directed the Management to disburse the arrears of monetary benefits within two months from the date of the Award, failing which interest @12% per annum thereafter is ordered.

The Management has filed this Writ Petition challenging Ext.P6 Award.

I heard the learned Counsel for the Petitioner, Sri. Jai Mohan and the learned Counsel for the Respondents/Union, Sri. C.S. Ajith Prakash.

The learned Counsel for the Petitioner contended that though the Management specifically raised a contention that the claims have become stale and the reference is bad in the Counter Statement filed by the Management before the Tribunal, the Tribunal did not consider the said contention. At the instance of the Workman, the Respondents/Union raised the Industrial Dispute only in the year 2008 with respect to the service benefits relating to the year 1996-97. Though the Workman was promoted to the post of Senior Assistant on 01.04.1999, the Workman did not claim promotion from an anterior date till the year 2008. The Workman thought of claiming pay parity w.e.f. 21.06.1996 only in the year 2008. The Tribunal ought to have answered the reference, rejecting the claim finding that the claims are stale. Learned Counsel relied on the decision of the Hon'ble Supreme Court in Nedungadi Bank Ltd. v. K.P. Madhavankutty and Others [(2000) 2 SCC 455] in which the Hon'ble Supreme Court found that the Industrial Dispute raised by the Workman is ex facie bad and incompetent on account of the delay in seeking reference. Learned Counsel further contended that as per Ext.W2 Memorandum of Settlement dated 30.09.1987 executed by the Management and the Union produced before the Tribunal, an Assistant working in the Plant Office is entitled to get promotion as Senior Assistant only on completion of four years. Graduate Assistant working in the Administration alone is entitled to get promotion as Senior Assistant on completion of two years. The Workman had been working in the Plant Office of the Management and he completed four years as Assistant only on 01.04.1999, and accordingly, he was promoted as Senior Assistant w.e.f. 01.04.1999. Even though the post was held vacant on 21.11.1997, the Management was unable to promote the Workman as Senior Assistant since he did not have qualifying service as Assistant. The learned Counsel cited the decisions of the Hon'ble Supreme Court in Herbertsons Limited v. Workmen of Herbertsons Limited and Others [(1976) 4 SCC 736] and National Engineering Industries Ltd. v. State of Rajasthan and Others [(2000) 1 SCC 371] to substantiate the importance of Settlement entered into between the Management and the Union and the binding nature of the same. The learned Counsel further contended that the Workman was not entitled to get his pay fixed with the pay of Sri. K.J. Sabu as Sri. K.J. Sabu and the Workman had not been working in the same Department. Sri. K.J. Sabu was attached to the Accounts Department and he was a graduate and therefore he was promoted as Assistant on completion of two years as Junior Assistant and subsequently promoted as Senior Assistant on completion of two years as Assistant, whereas the Workman joined the Plant Office where the qualification fixed for promotion was 4 years’ experience as Assistant. An employee is entitled to get his pay refixed with that of his junior if both have been working in the same post with the same qualifications. Learned Counsel relied on the decisions of the Hon'ble Supreme Court in State of West Bengal and Another v. West Bengal Minimum Wages Inspectors Association and Others [(2010) 5 SCC 225] and in Punjab State Power Corporation Limited v. Rajesh Kumar Jindal and Others [(2019) 3 SCC 547] to substantiate the point that the burden to prove disparity is on the employees claiming parity. Learned Counsel concluded his arguments, praying to set aside the impugned Ext.P6 Award passed by the Industrial Tribunal.

Per contra, learned Counsel for the Respondents/Union advanced his arguments highlighting the limited scope of judicial review under Article 227 of the Constitution of India against the Award passed under the Industrial Disputes Act, 1947. Learned Counsel contended that the Tribunal granted reliefs in favour of the Workman as per Ext.P6 Award on strong reasons. The Tribunal made a specific finding that there is discrimination from the part of the Management in the matter of promotion of the Workman and that Sri. K.J. Sabu is admittedly Junior to the Workman and had been drawing higher pay. The Management did not challenge the reference of the dispute by the State Government and hence the Management is debarred from challenging the Award on the ground of limitation. As a matter of fact, there is no limitation for raising an industrial dispute. It is well settled that when two views are possible and the Tribunal had taken one view, this Court sitting under Article 227 of the Constitution cannot take the other view to set aside the Award. Learned Counsel for the Respondents/Union relied on the decision of the Hon'ble Supreme Court in Essen Deinki v. Rajiv Kumar [2002 KHC 1391] to substantiate the limited scope of jurisdiction of this Court against the Award passed in an Industrial Dispute. Learned Counsel contended that Ext.P6 could not be said to be vitiated by perversity, patent illegality or manifest injustice. The industrial dispute was raised in the year 2008 and the Tribunal passed the Award on 08.02.2011 and the present Writ petition was filed in the year 2013. The Workman retired long back. On the basis of the impugned Award, the Workman will be getting only a nominal benefit and hence it is not in the interest of justice to interfere with Ext.P6 Award at this distance of time. Learned Counsel concluded his argument to dismiss the Writ Petition.

I have considered the rival arguments.

The Management had raised a specific contention in the Counter Statement that the claims are stale and hence the reference is bad. The Industrial Tribunal did not consider the said contention in the impugned award. Non-consideration of a material objection raised by the Management by the Industrial Tribunal is a serious flaw, and in such case, it is to be held that there is patent illegality and perversity in such Award. The Industrial Dispute was raised only in the year 2008 with respect to certain claims of the years 1996 and 1997. It is true that there is no limitation for raising an Industrial Dispute. But that does not mean that the Tribunal/Labour Court is to consider a claim even if it is a stale claim. When there is an unreasonable delay in raising the dispute and the Management has raised an objection that the claims are stale, the Workman has to offer a reasonable explanation for the delay. The Workman got promotion to the post of Senior Assistant on 01.04.1999. It was after about seven years, the Workman raised an industrial dispute. Likewise, the Workman claimed parity of pay w.e.f. 15.09.1996, only after 12 years. In Nedungadi Bank Ltd. (supra), the Hon’ble Supreme Court held that the question whether the disputes are stale depends on the facts and circumstances of each case. In the said case, the dispute was found as stale on account of the delay of seven years. The delay involved in this case could not be said to be reasonable. In such case, it was the burden of the Workman to prove that there was sufficient cause for the delay in raising the dispute. No explanation whatsoever was put forward by the Workman for the delay. Even in this Court, no explanation is offered for the delay. In such case, it is to be found that Ext.P6 suffers from perversity and patent illegality in not considering the question whether the disputes are stale. The Management is perfectly justified in raising the question before the Industrial Tribunal, without challenging the reference.

The learned Counsel for the Petitioner cited the decisions of the Hon'ble Supreme Court in National Engineering Industries Ltd. (supra) and Herbertsons Limited (supra) in order to enlighten the importance of settlement. In Herbertsons Limited (supra), the Hon'ble Supreme Court held that settlement is arrived at in the course of collective bargaining and therefore is entitled to due weight and consideration. In National Engineering Industries Ltd. (supra), the decision is to the effect that settlement is to be preferred over an Award after adjudication of an industrial adjudication, as the settlement is likely to lead to more lasting peace than an Award and that the settlement is arrived at by the free will of the parties and is a pointer to there being goodwill between them. There is no dispute that the Workman had been working in the Plant Office. As per Ext.W2 Settlement on promotion policy, the provision for promotion to graduate Assistant upon completion of two years is not available to Assistants working in Plant Office. But the Industrial Tribunal refused to rely on the terms of Ext.W2 Settlement finding that there is reason for not including the case of graduates in the Plant Office. Relying on Ext.W3 RTI Application and Ext.W4 Reply, the Tribunal found that at the time of execution of Ext.W2 Settlement, no graduate was working in the Plant Office and hence the case of graduates was not included in the Settlement. The Tribunal also referred to the cases of two employees who were promoted to the post of Senior Assistants on attaining graduation. It is not clear from the Award whether those employees had been working in the Plant Office at the time of their promotion. Considering the material before it, the Tribunal has arrived at a finding that the approach of the Management in not including provision for promotion of graduate employees on completion of two years to the post of Senior Assistants is discriminatory. The Management did not adduce any reason for not including provision for promotion of graduate employees in the Plant Office on completion of two years like other graduate employees in other departments. In such case, the contention of the Respondents/Union appear to be more probable, and at any rate, the correctness of the Tribunal is not a matter for this Court to consider while exercising jurisdiction under Article 227 of the Constitution of India challenging the Award of the Industrial Tribunal. It could not be said that there is perversity or patent illegality with respect to the said finding of the Tribunal.

The learned Counsel for the Petitioner cited the decision in West Bengal Minimum Wages Inspectors Association (supra) to contend that equal pay for equal work is not a fundamental right and that the burden to prove disparity is on the employees claiming parity. The learned Counsel cited the decision of the Hon'ble Supreme Court in Rajesh Kumar Jindal (supra) in which also the Hon'ble Supreme Court held that the burden of proof in establishing parity in pay scales and the nature of duties and responsibilities is on the person claiming such right and that the person claiming parity must produce material before the Court to prove that the nature of duties and functions are similar and they are entitled to parity of pay scales. The Hon'ble Supreme Court followed its earlier decision in Steel Authority of India Limited and Others v. Dibyendu Bhattacharya [(2011) 11 SCC 122] in which it is held that equal status and nature of responsibilities of the duties attached to the two posts have to be taken into consideration for equivalence of the posts; that the constitutional scheme postulates equal pay for equal work for those who are equally placed in all respects; that the Court must consider the factors like source and mode of recruitment/appointment, the qualifications, the nature of work, the value thereof, responsibilities, reliability, experience, confidentiality, functional need, etc.; and that the equality clause can be invoked in the matter of pay scales only when there is wholesome/wholesale identity between the holders of two posts. The Tribunal, after adjudicating the facts before it, held that the Workman was senior to Sri. K.J. Sabu and found that the Workman is entitled to get his pay equalised with that of Sri. K.J. Sabu. It is clear from the Award that Workman was promoted as Assistant w.e.f. 01.04.1995, whereas Sri. K.J. Sabu was promoted as Assistant w.e.f. 21.06.1996, and that relying on this fact, the Tribunal found in favour of the Workman. Here also, even if the decision of the Tribunal is erroneous, this Court exercising its jurisdiction under Article 227 of the Constitution of India cannot interfere with it.

In view of the patent illegality and perversity on the face of Ext.P6 Award in adjudicating stale claims of the Workman, despite the specific objection from the Management, the Management is entitled to succeed in this Writ Petition. Accordingly, this Writ Petition is allowed setting aside Ext.P6 Award passed by the Industrial Tribunal.