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2018 Supreme(Bom) 703
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
RAVINDRA V. GHUGE, J.
Nagar Urban Cooperative Bank Ltd. - Petitioner
Versus
Mrs. Sandhya Bansilal Dayama - Respondent
WRIT PETITION NO. 3643 OF 2004
Decided On : 09-05-2018
For the Petitioner: Shri S.V. Dixit, Shri L.V. Sangit
For the Respondent: Shri P.V. Barde h/f. Shri T.K. Prabhakaran
Headnote:
Industrial Disputes Act, 1947 - Section 9A - Service of employment - Respondent claim - Petitioner had avoided to bring forth service books of all those employees whose names were mentioned in Annexure D to complaint- petitioner has simply indulged in denial of contentions of respondent- If no such special increments were granted to those employees indicated by respondent petitioner could have produced their service books and could have led evidence to prove that they were never granted such increments- In fact petitioner did not choose to step into witness box and did not lead any evidence issue that needs consideration is whether grant of special increment could be said to be a custom/practice/usage- It appears on basis of evidence that petitioner did have such a practice of granting special increments petitioner is a bank and appears have extended special increments in order to encourage its employees to improve their qualifications which would always be to advantage of petitioner bank- If by improving qualifications performance of an employee was to improve petitioner bank appears to have resorted to policy of encouraging such employees by extending one special increment –Held, Corporation of Greater Mumbai (supra) this Court relied upon Premier Automobile (supra) and Tata Tea Limited (supra) and concluded that a longstanding practice would ripen into an implied agreement and breach of such an agreement would attract rigours of Section 9A as any deviation from such practice or alteration in such practice without issuing a notice of change Section Industrial Disputes Act would be unsustainable petitioner contends that those candidates who respondent claims to have been granted increments were not granted increments for improving their qualifications- So also Recruitment Rules were subsequently altered and only graduates were being recruited by petitioners- This submissions were not proved by recording oral and documentary evidence before Industrial Court- A mere denial of an assertion without evidence would not take case of petitioner any further case Industrial Court has concluded on basis of documentary evidence and in view of fact that petitioner neither led oral evidence nor did it fairly place on record service books of those employees who were said to have been granted special increments that respondent had proved that she was entitled for such an increment- She was in employment when such increments were being extended to other employees for improving their qualifications- In this backdrop Court do not find that impugned judgment would be termed as being perverse or erroneous - Petition dismissed
1. The petitioner/bank is aggrieved by the judgment and order dated 16/10/2003 delivered by the Industrial Court, Ahmednagar, by which, complaint (ULP) No. 301/1993 filed by the respondent has been allowed. The respondent had put forth two claims. One is against her transfer and second is with regard to an additional increment for improving her educational qualifications while in service. Admittedly, the respondent gave up her challenge to the transfer and prosecuted her claim for additional increment.
2. This Court, by order dated 28/01/2005, has admitted the petition and Rule on interim relief was issued. Subsequently, by order dated 01/03/2005, Ad-interim relief in terms of prayer clause B was granted and the impugned judgment of the Industrial Court was stayed.
3. The learned advocate for the respondent informs that the respondent/original complainant has retired on 01/07/2006 and she has been paid her entire retiral benefits as were admissible. If she succeeds in this petition, the pensionery benefits are likely improve and she would be entitled for arrears of one increment.
4. I have heard the learned advocates for the respective sides at length.
5. The submissions of the petitioner can be summarized as under :
(a) The claim for one special increment for improving educational qualifications while being in service, is nowhere provided for in the service rules of the bank.
(b) There is no agreement between the Management and the Union which incorporates any such condition.
(c) There are no pleadings by the respondent in the complaint as regards a right to earn such an increment.
(d) If no unfair labour practice is committed, the Industrial Court would have no jurisdiction.
(e) There was no evidence of implementation of a scheme of granting special increment for improving educational qualifications.
(f) Items 5, 9 and 10 of the Schedule IV of the MRTU and PULP Act, 1971 are not attracted in this case.
6. The submissions of the learned advocate for the respondent/original complainant can be summarised as under :
(A) The respondent joined service as a clerk with the petitioner in 1981.
(B) In 1992 she graduated and obtained the graduation degree while being in service.
(C) It is specifically pleaded in paragraph No.3 (e) of the complaint that there was a custom in the petitioner bank to grant a special increment to those workers/employees who improve their qualifications while being in service.
(D) The respondent acquired employment when she had completed her Matriculation and she improved her qualifications by passing her graduation while being in service.
(E) The list of similarly situated employees, who were granted special increments for acquiring the qualifications of graduates, was a part of the complaint in the form of Annexure-D.
(F) The respondent led evidence and proved her case before the Industrial Court.
(G) The petitioner/Management suppressed the documents with regard to those employees, who were granted special increments mentioned in Annexure-D and did not bring their documents on record.
(H) The petitioner/Management chose to remain silent on the pleadings of the respondent and did not lead oral evidence in support of their contentions before the Industrial Court.
(I) Reliance is placed on the judgment of this Court in the matter of
(1) Premier Automobiles Limited Vs. Engineering Majdoor Sabha and others, (1982), Volume 2 LLJ 73,
(2) P.A.C. Rego Dias Vs. Madura Coats Limited and others (1995) Volume 3 LLJ 79.
(3) Tata Tea Ltd. (Bombay) Employees' Union Vs. Tata Tea Ltd. and anr. 2007 (6) ALL MR 166 and,
(4) Municipal Corporation of Greater Mumbai Vs. Best Workers' Union, 2008(5) Bom.C.R. 478.
7. I find from the record that a specific pleading has been put forth by the respondent in paragraph No. 3 (e) contending that a special increment was granted to those workers who improve their educational qualifications and who have become graduates, while being in service. The names of such workmen, who were granted such increments,
