Full Text
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1526 OF 2008
The Municipal Corporation of
Greater Mumbai & Ors. ....Petitioners
Ms. Neeta Karnik, Senior Advocate with Ms. Harshada R. Kshirsagar and
Mr. Piyush Todkar for Respondent.
ORAL JUDGMENT
1. The Petition is filed by the Municipal Corporation of Greater Mumbai through the General Manager of Brihanmumbai Electric Supply and Transportation Undertaking (BEST) challenging judgement and order dated 14 February 2008 passed by the learned Member, Industrial Court, Mumbai allowing Complaint (ULP) No.160 of 2007 filed by Respondent- Union and holding that the Petitioner has engaged in unfair labour practices under Item 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prohibition of Unfair Labour Practices Act, 1971 (MRTU & PULP Act). The Industrial Court has directed Petitioner to cease and desist from engaging in unfair labour practice in the matter of withdrawal of incentive bonus payable to officers of B-Grade effective February 2007. The Industrial Court has further directed Petitioner to pay arrears of incentive katkam Page No. 1 of 18 bonus with effect from February 2007 and to continue to pay the same till such time the said scheme is revised lawfully.
2. The Petitioner is a Municipal Corporation established under the provisions of Mumbai Municipal Corporations Act, 1888. It provides municipal transport service through BEST Undertaking. Respondent is a Union registered under the Trade Unions Act, 1926 and is also a representative and approved union under the provisions of Bombay Industrial Relations Act, 1946 (BIR Act). It was the case of the Respondent- Union that number of settlements were entered into between the employees and BEST from time to time under which the matters relating to the service conditions of the employees employed in the Transport section and in common departments of the Undertaking such as wages, allowances, incentive etc. were settled. By virtue of Settlement dated 21 February 1966 entered into between the Respondent-Union and BEST, it was decided that incentive bonus scheme will be determined for various jobs by negotiations between the Union and BEST. The incentive bonus scheme and its genesis in the principle of job evaluation was part of arbitration award commonly known as ‘Gokhale Award’. Thus, under the settlement dated 21 February 1966, the incentive was being paid to employees employed in different departments and different categories including bus drivers, traffic supervisory staff, working in the Depot, controlling operators, traffic assistants and traffic supervisors of traffic department and maintenance staff including supervisory staff. It is claimed that the employees, whose cause the Union espouses, are actually B grade employees who are glorified as B- Grade officers. It is contended by Respondent-Union that Grade B officers were also covered by various bilateral settlements entered into between the Union and BEST. The B grade officers are placed in three different scales as under: katkam Page No. 2 of 18 Traffic Department Engineering Department G-8 T-8 G-9 GG-5 G-10 GG-6
3. The Chief Personnel Officer of BEST issued communication dated 14 March 2007 discontinuing payment of incentives bonus to officers of Undertaking under various incentive schemes. Aggrieved by the action of the Petitioner in discontinuing the payment of incentive bonus in respect of B Grade officers, Respondent-Union filed Complaint (ULP) No.160 of 2007 in Industrial Court, Mumbai. The Complaint was resisted by Petitioner by filing Written Statement. Both parties led evidence in support of their respective contentions. After considering the pleadings, documentary and oral evidence, the Industrial Court passed judgment and order dated 14 February 2008, allowing the Complaint and has passed the following order:
1. The complaint is allowed with costs of the complainant, which is quantified of Rs.500/-.
2. It is hereby declared that the respondents have engaged in unfair labour practice under item 9 of schedule IV of the MRTU & PULP Act, 1971 and directed to cease and desist from engaging in the said unfair labour practice, in the matter of withdrawing the incentive bonus payable to the officers of "B" Grade effective February 2007.
3. The respondents are hereby directed to pay the arrears of incentive bonus with effect from February 2007 and continue to pay the same till such time the said scheme is revised lawfully.
4. The prayer for interest on the arrears of incentive bonus is hereby rejected.
4. Aggrieved by the judgment and order dated 14 February 2008, the Petitioner has filed the present Petition. By order dated 14 July 2008, this Court admitted the Petition and stayed the operation of the order of the Industrial Court. The Petition is called out for final hearing. katkam Page No. 3 of 18
5. Mr. Paranjpe, the learned counsel appearing for Petitioner would contend that the Industrial Court has erroneously exercised jurisdiction in entertaining Complaint filed by Respondent-Union for restoring the cause of B grade officers. That B grade officers do not fit into definition of the term “employee” within the meaning of Section 3(13) of the BIR Act. That the B grade officers, whose cause Respondent-Union was espousing, were drawing basic pay higher than Rs.6500/- per month. That therefore Industrial Court did not have jurisdiction to entertain complaint of unfair labour practice filed by the Respondent-Union on behalf of B grade officers.
6. Mr. Paranjpe would further submit that no notice of change was required to be issued under provisions of Section 42 of the BIR Act before withdrawal of incentive bonus scheme as Section 42 of the BIR Act applies only to ‘employees’ and not to ‘officers’. That since B grade officers do not fit in to the definition of the term ‘employees’, provisions of Section 42 of the BIR Act are inapplicable to them. Mr. Paranjpe would submit that the Industrial Court has erred in relying on judgement of Division Bench of this Court in Vilas Gangaram Khetle vs SD Rane and others[1] which does not deal with the issue of determination of status of a person as employee on the basis of drawl of pay-scale below Rs.6,500/-. Mr. Paranjpe would accordingly submit that the impugned judgment and order passed by the Industrial Court is without jurisdiction as well as wholly erroneous. He would accordingly pray for setting aside the same
7. Per contra, Ms. Karnik, the learned Senior Advocate appearing for Respondent-Union would oppose the Petition submitting that the Industrial Court has correctly appreciated the evidence on record for the purpose of holding that B grade officers are covered by definition of the term 1981 SCC OnLine Bom 501 katkam Page No. 4 of 18 ‘employee’. That the said finding recorded by the Industrial Court is well supported by evidence on record and does not warrant any interference in exercise of jurisdiction under Article 227 of Constitution of India. She would further submit that the Group Insurance Scheme was in vogue for several years, which fact has not been disputed by the Petitioner-BEST. That therefore the incentive bonus payable to B grade officers, which was part of their package, couldn’t have been discontinued or otherwise dealt with without giving them a notice of change. That amendment to the definition of the term ‘employee’ under Section 3(13) of the BIR Act was brought into force from 23 August 2005. That the entire staff of B grade category continued to be governed by standing orders and treated as ‘employees’ by the Petitioner-BEST. She would rely upon judgment of this Court S.A. Sarang vs. W.G. Forge and Allied Industries Ltd. and others[2] in support of her contention that if a workmen/employee is being treated as governed by standing orders, the employer would be estopped from raising a defence that the said individual is not a workman.
8. Ms. Karnik would submit that Petitioner’s witness, in his deposition, admitted that special allowances paid to B grade officers were being considered while computing their basic pay by issuance of circular dated 19 June 2006. That there was also an admission that salaries of B grade officers were increased due to proportionate merging of dearness allowances in their salaries. That calculation of basic wages by the Petitioner-BEST was thus contrary to the provisions of Section 3(13) of the BIR Act, which contemplates exclusion of all allowances.
9. Ms. Karnik would rely upon judgment of Division Bench of this Court in Vilas Gangaram Khetle (supra) and would submit that definition of the term ‘employee’ has been interpreted by the Division Bench and it is held that the definition applies to pay scales and not to individual’s pay. She 1995 I CLR 837 katkam Page No. 5 of 18 would further submit that BIR Act has been promulgated to prevent and resolve industrial disputes and to ensure peaceful and stable working of the employees. The object of the BIR Act is to increase production capacity by ensuring harmonious industrial planning. Relying on judgment in Titaghur Paper Mills Co. Ltd. Vs. Its Workmen[3] she would submit that the concept of incentive bonus is covered by ‘terms of employment’ and cannot be changed without notice of change being issued.
10. Ms. Karnik would also rely on definition of the term ‘industrial matter’ under Section 3(18) of the BIR Act in support of her contention that the Act applies in relation to all questions and in relation to an industrial matter having regard to the interest of person immediately concerned and of the community as a whole. Ms. Karnik would accordingly submit that the Industrial Court has rightly exercised jurisdiction for ensuring that the incentive bonus scheme is not discontinued in respect of B grade category staff without issuance of notice of change under Section 42 of the BIR Act. She would pray for dismissal of the Petition.
11. Rival contentions of the parties now fall for my consideration.
12. The jurisdiction of Industrial Court was invoked by the Respondent- Union with a complaint that the Personnel Department of Petitioner withdrew/discontinued payment of Incentive Bonus Scheme, which was applicable to the B grade category officers of BEST. The circular dated 14 March 2007 reads thus: PERSONNEL DEPARTMENT Ref: CPO/L/13264/2007 Date: 14.03.2007 Sub: Discontinuation of payment of Incentive Bonus applicable to the Officers of the Undertaking under various Incentive Schemes 1959 II LLJ 9 katkam Page No. 6 of 18 The General Manager has directed that the various incentive schemes made applicable to the Officers of the Undertaking shall be discontinued with immediate effect.
2. In view of the above, you are requested to instruct the concerned Officer working under you to take needful action in the matter and report the compliance to the Chief Personnel officer so as to submit the same to the general Manager on or before 16th March, 2007 in the following format:- Sr. No. Type of Incentive Bonus Scheme No. of Officers Average monthly Expenditure (Rs.) A Grade Officers B Grade Officers
3. Submitted for an early compliance, please.
13. The Complaint was opposed by Petitioner by contending that B grade category officers, whose cause was sought to be espoused by Respondent- Union, were not covered by definition of the term ‘employee’ under Section 3(13) of the BRI Act. Therefore, Industrial Court raised the framed additional issue as under: Whether the “B” Grade employees/officers referred to in the complaint are employees as per Section 3(13) of the BIR Act, 1946 and if not is the complaint maintainable?
14. The additional issue relating to status of B grade employees/ officers has been answered by the Industrial Court by holding that though outer limit of basic pay reflected in Section 3(13) of the BIR Act is Rs.6,500/- per month, the pay scale of the post of Assistant Traffic Officer was 5575-90- 5665-95-5950-100-6250-105-6565-110-6895-140-7315-170-7825-200-8425 and that therefore, since the beginning of the pay scale was less than Rs.6,500/-. even B grade category employees/ officers would be covered by definition of the term ‘employee’ under Section 3(13) of the BRI Act. The relevant finding recorded by the Industrial Court in paragraphs 15 and 16 of the impugned judgment read thus: katkam Page No. 7 of 18
15. It is pertinent to note that the outer limit of the basic salary exceeding Rs.6,500/- per month, as given in the said definition was introduced by an amendment in the Maharashtra Amendment Act No.38/2005 dated 23.8.2005. It is an admitted fact that before the said amendment, the said limit was of Rs.1,000/- per month, only. It now appears that any person employed primarily in the managerial, administrative, supervisory or technical capacity drawing basic salary, excluding allowances, exceeding Rs.6,500/-per month is not included in the definition of the employee. To put it otherwise, that the person, who is employed primarily in the managerial, supervisory or technical capacity and who draws the basic salary excluding allowances, not exceeding Rs.6,500/- per month (emphasis supplied) is a workman. Therefore, to consider the question as to whether an incumbent is an employee within the meaning of the said definition or not, we have to consider the predominant nature of duties carried out by him alongwith the basic pay, excluding all allowances payable to him. Thus, in my humble opinion, if a person who carries out the duties in the nature of managerial, administrative, supervisory or technical and who is drawing basic salary of below Rs.6,500/-, then he can be called as an "employee". It is not enough to show that the concerned workman is carrying out the duties of managerial, administrative, supervisory and technical only and it has also to be shown and proved that he is drawing the basic salary of more than Rs.6,500/-per month. If any of these two criterias is absent, then the concerned employee falls into the inclusive part of definition of the employee as given in Section 3(13) of the BIR Act. The Witness No.1 Shri. Vijaykumar Indulkar (Exh.C 8) has deposed in his affidavit that the basic pay scale of Assistant Traffic Officer i.e. "B" Grade Officers is Rs.5575-90-5665-95-5950-100-6250-105-6565-110-6895-140- 7315-170-7825-200-8425. He has deposed that there are some "B" Grade Officers, who are drawing basic salary more than Rs.6,500/- per month and he had quoted the names of one Shri. J.A.S. Mulla, Check No.213637, an Assistant Traffic Officer, who is drawing basic salary of Rs.6,785/-, Shri. S.L. Naronha, Check No.322168 and Shri. M.V. Shirali, Check No.213021, who are drawing basic salary of Rs.6,675/- per month. The said facts also have been deposed by the second witness examined by the respondents Shri. Raghuvir Desai. The respondents have filed on record the pay slips alongwith the list Exh.C-11, referred to above, to show that some of these officers are drawing basic salary of more than Rs.6,500/- per month. The question is when these officers are appointed in a specific time scale, whether for considering the question as to whether they are the employees or not, whether the starting point of the basic salary in the said tine scale should be taken into consideration or whether the actual basic salary drawn by the concerned employee should be taken into consideration. When an incumbent is appointed in the time scale, then his basic salary goes on increasing alongwith the grant of increment payable to him, as per the scales, in which he is appointed. The learned counsel for the complainant Advocate Shri. P.5. Shetty vehemently contended that the katkam Page No. 8 of 18 starting point of the basic salary in the time scale only has to be considered. In Vilas Gangaram Khetle V/s. S.D. Rane, Presiding Officer & Ors.. reported in 1982(42)-FLR-286, our Hon'ble High Court has held that the categories of persons referred in the exclusionary clause of Section 3(13) of the BIR Act, may also be employed to do more than one kind of work and therefore, for finding our whether such persons should be included in the definition or not, the legislature has laid emphasis only on his man and primary work coupled with the pay scale. This view of our Hon'ble High Court can be found in para 14 of the said judgment and in my humble opinion, it answers the above question that for considering the question as to whether an incumbent is an employee or not, besides considering the predominant nature of his duties, the court also has to see the pay scale in which he is appointed and not the actual basic pay drawn by him in the said scale. I may venture to say here that the submission of the learned counsel for the complainant was not replied to by the learned counsel for the respondents and no other authoritative dictum taking a different view was brought to my notice. Therefore, even if some of the incumbents officiating as the officers of the "B" Grade, are at present drawing the basic salary exceeding Rs.6,500/-per month, but as they are substantively appointed to the time scale starting from Rs.5,500/-, which is well below the limit of Rs.6,500/-as given in Section 3(13) of the BIR Act, they will have to be treated as the employees within the meaning of Section 3(13) of the BIR Act. I, therefore, hold accordingly. (emphasis added)
15. Petitioner has challenged the above findings of the Industrial Court by contending that the definition of the term ‘employee’ appearing under Section 3(13) of the BRI Act has been misconstrued by the Industrial Court. It would therefore be apposite to consider definition of the term ‘employee’ under Section 3(13) of the BIR Act, which provides thus: (13) "employee" means any person employed to do any skilled or unskilled work for hire or reward in any industry, and includes - (a) a person employed by a contractor to do any work for him in the execution of a contract with an employer within the meaning of sub-clause (e) of clause (14); (b) a person who has been, dismissed, discharged or retrenched or whose services have been terminated, from employment on account of any dispute relating to change in respect of which a notice is given or an application made under section 42 whether before or after his dismissal, discharge, retrenchment or, as the case may be, termination from employment; but does not include katkam Page No. 9 of 18
(i) a person employed primarily in a managerial, administrative, supervisory or technical capacity drawing basic pay (excluding allowances) exceeding six thousand five hundred rupees per month;
(ii) any other person or class of persons employed in the same capacity as those specified in clause (i) above irrespective of the amount of the pay drawn by such persons which the State Government may, by notification in the Official Gazette, specify in this behalf; (emphasis and underlining added)
16. Thus, definition of the term ‘employee’ under section 3(13) of the BIR Act does not include a person employed primarily in a managerial, administrative, supervisory or technical capacity drawing basic pay (excluding allowances) exceeding Rs.6,500/- per month. Thus, what needs to be established is that a person must be employed primarily in managerial, administrative, supervisory or technical capacity and he must also draw basic pay exceeding Rs.6,500/. In other words, even if person draws basic pay exceeding Rs.6,500/- but is not employed in managerial, administrative, supervisory or technical capacity, he would still be included in definition of the term ‘employee’. On the other hand, a person employed in managerial administrative, supervisory or technical capacity but draws lesser basic pay than Rs.6,500/- would still continue to be covered by definition of the term ‘employee’.
17. In the present case, there is no dispute to the position that B category officers are employed primarily in managerial, administrative, supervisory or technical capacity. The only dispute before the Industrial Court was whether they drew basic pay (excluding allowances) exceeding Rs.6,500/- per month or not. In the evidence, it was borne out that out of the 84 number of Assistant Traffic Officers, who fell in B grade category of officers working in the Undertaking, 68 officers were drawing basic pay exceeding Rs.6,500/- per month. Faced with the above difficulty where the B grade category officers were actually drawing basic pay (excluding allowances) of more than Rs.6,500/-. The Industrial Court proceeded to katkam Page No. 10 of 18 examine pay scale of the post of Assistant Traffic Officer of Rs.5575-90- 5665-95-5950-100-6250-105-6565-110-6895-140-7315-170-7825-200-8425. It accordingly proceeded to hold that since starting point of basic pay of B category officers was Rs.5575/-, the same was less than Rs.6,500/- and therefore the Industrial Court proceeded to hold that even B category officers would continue to be governed by definition of the term ‘employee’. The Court has held that starting point of pay scale would be the relevant factor for determining status of B category officers as employees. The Industrial Court has drawn force from judgment of Division Bench of this Court in Vilas Gangaram Khetle (supra), in which this Court held in paragraphs 16 and 17 as under:
16. Therefore, the words and expressions used in the definition clause will have to be read in their context. It will have to be interpreted harmoniously so as to make every part of the definition sensible. It will have to be read as a whole and every part of it must be construed with reference to the context and other clauses so as to make a consistent enactment of the whole statute. In the substantive part of the definition the term “employee” is defined in generic terms. It includes any person employed to do any skilled or unskilled work for hire or reward. The words and expressions used in this definition clause are all comprehensive. The word ‘any’ means each and every or all. So construed the definition will take in its import all persons employed to do all sorts of skilled and unskilled work. Then comes subsecs, (a) and (b) which relate to the persons who are employed by the contractor or persons who are no longer in the employment. Thus having defined the term “employee” in a comprehensive sense, an exception is carved out, by using the expression “but does not include”. If this clause was not in the definition, then even the persons who are sought to be excluded would have been included within the definition. Whenever such an expression is used it normally means that but for such exclusion the main part of the provision would have included what is sought to be excluded. It is needless to say that only that can be excluded which is included in the substantive part Exception is intended to restrain the enacting clause by excluding particular cases. Thus the exclusion clause qualifies the generality of the main clause by providing an exception and taking our as it were from the main enactment a portion, which but for specific exclusion would fall within the main provision. It is well settled that while construing a provision which is divided by sub-sections or subclauses all the constituent parts should be read together because every part or sub-section throws light on the others. The intention of the Legislature is further clear if it is construed in the light of the earlier definition. The earlier definition took in its import only persons employed to do any skilled or unskilled, manual or clerical work and wholly excluded from its import the katkam Page No. 11 of 18 persons employed in managerial, administrative or other categories. The Legislature by the amending Act thought it fit to expand the area and field of the enactment to cover a wider section of the workers and therefore the amendment was introduced by the Act No. 63 of 1953 to make the scope of the definition more comprehensive. But for the exclusion clause the definition would have taken in its import all types of employees including persons employed primarily in the managerial, administrative, supervisory and technical capacity and drawing pay exceeding Rs. 1000/-. In the definition as it stands, today the words “skilled and unskilled” are retained and the word “Manual” is deleted. The deletion of the word clearly indicates that words skilled and unskilled which are of wider import, are used in generic sense so as to include all types of skilled and unskilled employees and the Legislature deleted the words “Manual and Clerical” to widen the scope of the definition, and also because they are already included in the generic words “skilled and unskilled”. If even after the deletion of word “Manual” the generic words “skilled and unskilled” are again restricted to the said category only, namely, to “Manual work” then the very purpose of the amendment will be frustrated. Therefore, it is not possible for us to place a narrower construction which would fail to achieve the manifest purpose of the legislation. It will reduce the amendment to futility. Therefore, if the categories of the workers getting more pay and employed in higher categories are included within the scope, of the definition, in our view it will be wholly unreasonable to omit from its import employees working in the lower category and getting lower wages like clerks etc.
17. This question can be considered from one more angle. The exclusion clause indicates that the persons employed primarily in a managerial, administrative, supervisory or technical capacity and drawing basic pay (excluding allowance) not exceeding one thousand rupees are included within the scope of definition. A person may be employed primarily in these capacities, but may also be doing work which is manual or clerical in nature. On the construction suggested by the petitioner only those persons who are employed primarily in these capacities and are also doing manual work will be covered by the definition. But it will not cover a person who is also doing clerical work. Frequently an employee is required to do more than one kind of work. He may be doing manual work as well as supervisory or administrative or technical work. He may be doing clerical work as well as supervisory or technical or administrative work. He may be doing technical work as well as supervisory work. Thus the categories of persons referred to in exclusion clause, may also be employed to do more than one kind of work. Therefore, for finding out whether such persons will be included in the definition or not the legislature has laid emphasis only on his main and primary work coupled with the pay-scale. By cl. (ii) a further power is conferred upon the Government to widen the area and field. (emphasis and underlining added) katkam Page No. 12 of 18
18. The issue before Division Bench in Vilas Gangaram Khetle (supra) was not about application of concept of ‘pay’ or ‘pay-scale’ while determining status of a person as ‘employee’ under Section 3(13) of the BIR Act. The issue before the Division Bench was about treatment of persons employed to do technical, supervisory and clerical work as ‘employees’. The issue was also about status of a person discharging multiple types of duties/work and how to determine his status within the meaning of Section 3(13) of the BIR Act. Merely because the Division Bench used the word ‘pay-scale’ in last sentence of paragraph 17 of the judgment, the Industrial Court proceeded to blindly accept the said word for holding that ‘pay-scale’ would be the determinative factor for deciding status of person as employee under Section 3(13) of the BRI Act. The Industrial Court has just randomly plucked the word ‘pay-scale’ appearing in the judgment without even bothering to consider the ratio of the judgment. Reading of the judgment in Vilas Gangaram Khetle by the Industrial Court is thus perfunctory.
19. It is a well-settled position of law that a judgment is an authority for what it decides and not what can be logically deduced therefrom. In Commissioner of Customs (Fort) vs. Toyota Kirloskar Motor (P) Ltd.4, the Supreme Court stated the law relating to precedents and held that a decision, as is well known, is an authority for what it decides and not what can logically be deduced therefrom. The ratio of a decision must be culled out from the facts involved in a given case and need not be an authority in generality without reference to the reasons, discussions and facts of the case.
20. In Secunderabad Club v. CIT[5] the Supreme Court has held thus:
21. In the context of understanding a judgment, it is well settled that the words used in a judgment are not to be interpreted as those of a statute. This is because the words used in a judgment should be rendered and understood contextually and are not intended to be taken literally. Further, a decision is not an authority for what can be read into it by implication or
2023 SCC Online SC 1004 katkam Page No. 13 of 18 by assigning an assumed intention of the judges and inferring from it a proposition of law which the judges have not specifically or expressly laid down in the pronouncement. In other words, the decision is an authority for what it specifically decides and not what can logically be deduced therefrom.
21. In Goan Real Estate & Construction Ltd. v. Union of India[6], the Apex Court has held that a judgment must be construed having regard to the text and context in which the same is passed and that the judgment is required to be read in its entirety without reading it as a statute. It is held thus:
31. It is well settled that an order of a court must be construed having regard to the text and context in which the same was passed. For the said purpose, the judgment of this Court is required to be read in its entirety. A judgment, it is well settled, cannot be read as a statute. Construction of a judgment should be made in the light of the factual matrix involved therein. What is more important is to see the issues involved therein and the context wherein the observations were made. Observation made in a judgment, it is trite, should not be read in isolation and out of context. On perusal of para 10 of the judgment, it is abundantly clear that even under the 1991 Notification which is the main notification, it was stipulated that all development and activities within CRZ will be valid and will not violate the provisions of the 1991 Notification till the management plans are approved. Thus, the intention of legislature while issuing the Notification of 1991 was to protect the past actions/transactions which came into existence before the approval of the 1991 Notification.
22. In my view, the Industrial Court has egregiously erred in plucking a random word ‘pay-scale’ appearing in the judgment for assuming that the status of a person as ‘employee’ can be determined with reference to the payscale and not with reference to ‘basic pay’. The Division Bench judgment in Vilas Gangaram Khetle (supra) does not decide that pay scale is the determinative factor for determining status of person under Section 3(13) of the BIR Act. The very basis of finding recorded by the Industrial Court is erroneous.
23. The language of Section 3(13) of BIR Act is plain, simple and unambiguous. It seeks to exclude every person employed in managerial, administrative, supervisory or technical capacity who draws ‘basic pay exceeding Rs.6,500/- per month’. Section 3(13) of BIR Act does not use the word ‘pay scale’. In that view of the matter, the Industrial Court has erred in importing the concept of ‘pay scale’ into definition of the term ‘employee’ under section 3(13) of the BIR Act. By doing so, the Industrial Court has rewritten the definition of the term ‘employee’ under the Act, which jurisdiction it did not have.
24. Thus, the finding recorded by the Industrial Court that B category officers, whose cause Respondent-Union was espousing, were covered by definition of the term ‘employee’ under Section 3(13) of the BRI Act is erroneous and liable to be set aside.
25. Once it is held that the B category officers, on whose behalf the Complaint was filed by the Respondent-Union, were not employees under Section 3(13) of the BIR Act, two difficulties arise for the Respondent- Union. Firstly, the Industrial Court loses jurisdiction to entertain the Complaint as provisions of MRTU & PULP Act apply only in relation to ‘employee’ defined under Section 3(5) of the MRTU & PULP Act.
26. The second difficulty is that provisions of Section 42 of the BIR Act also apply only to only the ‘employees’. Section 42 of the BIR Act provides thus:
42. Notice of change.- (1) Any employer intending to effect any change in respect of an industrial matter specified in Schedule II shall give notice of such intention in the prescribed form to the representative of employees. He shall send a copy of such notice to the Chief Conciliator, the Conciliator for the industry concerned for the local area, the Registrar, the Labour Officer and such other person as may be prescribed. He shall also affix copy of such notice at a conspicuous place on the premises where the employees affected katkam Page No. 15 of 18 by the change are employed for work and at such other place as may be directed by the Chief Conciliator in any particular case. (2) Any employee desiring a change in respect of an industrial matter not specified in Schedule I or III give a notice in the prescribed form to the employer through the representative of employees, who shall forward a copy of the notice to the Chief Conciliator, the Conciliator for the industry concerned for the local area, the Registrar, the Labour Officer and such other person as may be prescribed. (3) When no settlement is arrived at in any conciliation proceeding in regard to any industrial dispute which has arisen in consequence of a notice relating to any change given under sub-section (1) or sub-section (2), no fresh notice with regard to the same change or a change similar in all material particulars shall be given before the expiry of two months from the date of the completion of the proceeding within the meaning of section 63. If at any time after the expiry of the said period of two months, any employer or employee again desires the same change or a change similar in all material particulars, they shall give fresh notice in the manner provided in sub- section (1) or (2), as the case may be. (4) Any employee or a representative union desiring a change in respect of
(i) any order passed by the employer under standing orders, or (ii) any industrial matter arising out of the application or interpretation of standing orders, or (iii) an industrial matter specified in Schedule III, except item (5) thereof shall make an application to the Labour Court and as respects change desired in any industrial matter specified in item 5 of Schedule III, to the Industrial Court: Provided that no such application shall lie unless the employee or a representative union has in the prescribed manner approached the employer with a request for the change and no agreement has been arrived at in respect of the change within the prescribed period.
27. Thus, no notice of change is necessary in respect of persons who do not fit into definition of the term ‘employee’ under Section 3(13) BIR Act.
28. Consequently, the Industrial Court has erred in entertaining the Complaint filed by the Respondent-Union and has further erred in granting relief in favour of Respondent-Union for restoration of incentive bonus scheme for B category officers.
29. Reliance by Ms. Karnik on definition of the term ‘industrial matter’ under Section 3(18) of the BIR Act does not cut any ice. Even if it is katkam Page No. 16 of 18 assumed that payment of incentive bonus is an industrial matter, unless provisions of Section 42 of the BIR Act get attracted, the finding of failure to give notice of change cannot be recorded. Also of relevance is the fact that relief is granted by Industrial Court by holding that B category officers are ‘employees’ within the meaning of Section 3(13) of the BIR Act. The Industrial Court has not granted benefit by holding that discontinuation of Incentive Bonus Scheme is an ‘industrial matter’ within the meaning Section 3(18) of the BIR Act.
30. Ms. Karnik has relied on judgment of Supreme Court in Titaghur Paper Mills (supra), in which it is held that incentive bonus is covered by terms of employment and that therefore, the same cannot be changed without notice of change. There is no dispute about this proposition. However this would apply in relation to all persons fitting into definition of the term ‘employees’. For invoking the requirement for issuance of notice of change, Section 42 of the BRI Act needs to apply. In the present case, provisions of Section 42 of the BRI Act do not apply to B category officers of the BEST. The reliance by Ms. Karnik on the judgement of the Apex Court in Titaghur Paper Mills is therefore inapposite.
31. Ms. Karnik has also relied upon judgment of this Court in S.A. Sarang (supra) in support of her contention that if a workman/employee is being treated to have been governed by standing orders, the employer is estopped from raising a defence that the said individual is not a workman. In my view, the judgement is of no relevance for deciding the issue at hand. The whole case of the Respondent-Union was premised on non-issuance of notice of change under Section 42 of the BIR Act. It is conclusively proved that B category officers, whose cause Respondent-Union espoused, are not ‘employees’ and provisions of Section 42 of the BIR Act do not apply to them. In that view of the matter, judgment of this Court in S.A. Sarang (supra) would be of a little assistance for deciding the issue at hand. katkam Page No. 17 of 18
32. Considering the overall conspectus of the case, I am of the view that the Industrial Court has erred in allowing the Complaint filed by the Respondent-Union. The impugned judgement and order dated 14 February 2008 passed by Industrial Court is indefensible and liable to be set aside
33. Writ Petition accordingly succeeds and I proceed to pass the following order:
(i) Judgement and order dated 14 February 2008 passed by learned
(ii) Complaint (ULP) No.160 of 2007 is dismissed.
34. Writ Petition is allowed in above terms. Rule is made absolute. There shall be no order as to costs. (SANDEEP V. MARNE, J.) katkam Page No. 18 of 18