Gautam Verma Vs Bombay Hospital Trust

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO.2121 OF 2004

Shri Gautam Verma, Amba Bhavan, 3rd Floor, 7th Carter Road, Borivali (E), Mumbai-400 066. Versus Bombay Hospital, New Marine Lines, Mumbai-400 020.

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) ) ) )..PETITIONER ) )..RESPONDENT

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Mr. Mihir Desai, for the Petitioner. Mr. C.U. Singh i/b,. Sanjay Udeshi & Co., for the Respondent.

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CORAM: F.I. REBELLO, J. DATE : 24th September,2004

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JUDGMENT:

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1.		By the pr	esent petitio	n the petitioner impugns the
order	dated	27th	Feb	ruary, 2003 passed by the IInd	Labour
Court.	B	y that	order	the petitioner’s claim for wages	based
on the	award	dated	26th	September, 1995 as modified by	minutes
of order	dated	2nd	Septe	mber, 2002 in Writ Petition No.25	26 of
2001	has	been	disposed	of. The petitioner in his	application
before	the	Labour	Court	had quantified the amount due t	o him.
The	petitioner	at	the	time of termination of his service	s was
working	as		Assistant	Accountant. In his application	before
the	Labour	Court	he ha	d prayed that back wages be	calculated
by e	quating	his	post t	o that of Senior Clerk. The	contention
of the	re	spondent	wa	s that there was no post of	Assistant
Accountant	and	the	pos	t of Assistant Accountant was	an
isolated	post	fo	r the	petitioner and that there no posts	of
Assistant	Acc	ountant	un	til September, 1997. It was	further
contended	that		the pe	titioner was claiming salary based	on
settlement	en	tered	into	between the Union. Admittedly	in the
settlement	enter	ed	into	with the Union there was no post	of

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Assistant Accountant. Dealing with the rival contentions the

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learned		Labour Court observed that the	p	etitioner	herein	does
not	belong	to category of Senior Clerk and	as	he	was	never
appointed		to the post of Senior Clerk an	d t	hough	he is	posted
by	way	of adjustment on the post he is	not	entitled	to	the
benefits	of	Senior Clerk in the said	post.		The	learned
Tribunal		further held that the claim by	the	petiti	oner in	a
sum	of	Rs.9,15,159/- as also interest would	be	worke	d out	to
Rs.14,07,5	50/-	was not supported by	any	docum	entary	evidence.
The	content	ion of the respondent here	in	was	that	the
petitioner		at the highest was entitled	to	Rs.	1,68,276/-	based
on	the	minimum wages payable in the	absence	of	any	settlement
covering		the post of the petitioner to	which	he	was	holding
and	to	which he was reinstated. Based	on	this	the	learned
Labour		Court was pleased to partly allow	the	app	lication	and

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directed the payment in a sum of Rs.1,68,276/- to the

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applicant.

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2.		At the	hearing	of this	petition on behalf	of the
petitioner		learne	d	Counse	l contends	tha	t	on	rein	statemen	t the
Petitioner’s		salary		atleast	ought	to	ha	ve	been		calculated
based on	the	salary	of	a	Senior Clerk	.	It	was	not	open	to the
respondent		to	treat	the	petitioner’s	case		based	on		minimum
wages.		The	learned	La	bour Court	in	not	cons	idering	that	the
order	of	r	einstatem	ent	and the	fact	tha	t the	petit	ioner	was
asked	to	do	the	work	of Senior	Clerk		has	misdirect	ed	himself

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in law and consequently the impugned order is liable to be set

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aside.

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. On the other hand on behalf of the respondent learned

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Counsel	points	out t	hat		apa	rt		from the	findings	recorded	by
the	Labour Court	th	ere		was		ano	ther	proceedings	which	was
initiated	by the	petition	er		he	r	ein	before	the	Industrial	Court
being	Complaint (	ULP)	No	.3	27		of	1997.	That	complaint	was
disposed	of by	order	dated			2	9th	August,	2003.	The	learned
Industrial	Court b	y that	o	r	der		in	the	complaint	has	directed
that	the petitioner	he	rein		be		paid	wages	for the	pos	t of
Assistant	Accountant	Grade		C	-5		in	th	e pay	scale	of
490-50-740	-60-1040-70-1390-80-1	790-90-22	40-100-	2	740						from
September,	1997 and	to e	xtend			to		him the	other	benefits	of the
settlement	of	1997	Exhibit			C	-29.	The	petitioner’s	case	for

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being paid benefits under the earlier settlements was

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rejected. . The learned Industrial Court found that when

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the	pet	itioner	was re	instated	the	respo	n	dent	paid	th	e	salary
as	per	the	scale	given	in	the		app	ointment		letter	by
considerin	g	contin	uity of	service	.	It		was	furt	her	found	that
the sa	lary	provided	under	the	Minimum	W	a	ges	Act	for	the	Senior
Clerk	was	more	than	the	said	sca	l	e.	Deali	ng	with	the
contention		that	the r	espondents	herein		w	ere	guilty		of	unfair
labour	practice	under	Item	9 of	Schedule	I	V	of	the	M	.R.T.U.	&
P.U.L.P.		Act	the	learned	Industr	ial		Court	found		that	the
petitioner		herein	had	been	unable	to			establish		that	the
respondent		had	committed	unfair	labour		p	ractice	unde	r	Item	9
of	Schedul	e IV	of the	M.R.T.U.	&	P.	U	.L.P.	Act.		The	learned
Industrial		Court	further	found	that	there		was	no		post	of
Assistant		Accountant	in	the	resp	onden	t		hospital		and	the
petitioner	wa	s the	first	such	person	to		be	appoi	nted.		Further

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finding	recorded	w	as that	the	said	post	was	not	in	bargaining
category.		The	learned	Indust	rial	Court	for	all	these	reasons
held	that	the	petitioner	was	not	entitled	to	the	benefit	of
earlier	settlement,		but	entitled	to	the	benefits		under	the

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settlement dated 1st September, 1997 as in that settlement the

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post of Assistant Accountant had been created.

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3.		A	fter hearing the learned Counsel the ques	tion rea	lly
is w	hethe	r	the order of the Lab	our	Court suffers		fro	m	any
error	ap	parent	on the face of the	rec	ord. It	m	ust	first	ly be
noted		that	the petitioner wa	s	appointed a	s			Assistant
Accountant.			His services came to	be	terminated	a	s		Assistant
Accountant.			The order of reinstatem	ent	was to the		p	ost	to
which	he	w	as posted. In so far	as	the post		of		Assistant
Accountant		is	concerned until the	settle	ment of		1st	S	eptember,
1997 i	n	the	earlier settlements there	was	no wage		rev	ision	for
the	post	of	Assistant Accountant.	Once	that be the		cas	e	the
question	of	pa	ying the petitioner in	the	scale of		Sen	ior	Clerk
would	not	aris	e as the order of	rei	nstatement was		to		reinstate
him	to	the	post of Assistant Accoun	tant	and not to		any		other
post.		Ther	efore, at the highest	th	e petitioner	h	aving		been
reinstated		to	the post of Assis	tant	Accountant		wo	uld	be
entitled		to t	he salary of that post	in	terms of		the	lett	er of
appointment		a	nd if there is any	su	bsequent revisi	o	nsto		those
revisions.		T	here were subsequent	re	vision but		befor	e	1st
September,		1997	the post of Assi	stant	Accountant		w	as	not
included	in	the	settlement for wage	increas	e. It	i	s o	nly	from
1st	Sep	tember,	1997 that new post	of	Assistant Ac	c	ountan	t	by
promotion		was	created and new	pa	y scales c	a	me	to	be

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sanctioned	.		Cons	idering	th	e	salary	o	ffered	to the petitioner
was	found	to	be	less	than	the	minim	um	wages	payable that was
also	paid.		Once	that	be	the	case	it	really	cannot be said
that	the		finding	reco	rded	by	the	Labo	ur C	ourt discloses any
error	of	law	apparent	on	the	face	of	the	reco	rd. Apart from
that	the		interven	ing	circum	stances,	na	mely	the	order dated
29th	August,	2003	in	co	mplaint	No	.327	of	1997	wherein also the

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Industrial Court has taken a view similar to the Labour Court,

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which order has not been challenged.

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. For all the aforesaid reasons I find no cause for

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interference. Hence petition rejected.

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(F.I. REBELLO, J.)

Gautam Verma v. Bombay Hospital Trust

Case brief

What is this about?

What did the court decide?

Gautam Verma v. Bombay Hospital Trust

Case brief

What is this about?

What did the court decide?

What the court decided

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