JUDGMENT:- The petitioner by this petition has challenged the orders dated 19th and 21st March, 1996 delivered by the Industrial Court, Maharashtra, Nagpur in Complaint ULPN No.199 of 1989, instituted by respondent No.2. The respondent No.2 is a registered Trade Union and it filed complaint under Section 28 read with Schedule IV, Item 9 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred as "M.R.T.U. & P.U.L.P. Act") questioning the ceiling placed on their entitlement to special allowance which they were receiving as per decision of their employer dated 29-5-1985. The petitioner is an approved transport corporation formed under section 3 of the Road Transport Corporation Act, 1960 for the State of Madhya Pradesh and it operates even on certain routes outside the State of Madhya Pradesh. It has got its depot at Nagpur in Maharashtra State and said depot is under its Seoni division for administrative control. The dispute was raised by its employees working at Nagpur Depot. This court has while issuing Rule in the matter granted interim relief to the petitioners and therefore, the operation and effect of impugned order has been stayed. The said stay continues to operate even today. 2. The facts are not much in dispute. On 29-5-1985 the Managing Director of petitioner Corporation issued an order having No.1538 to implement the recommendations of Malik Pay Commission and as per clause 1 of the said order, special allowance calculated at 5% of basic pay became payable to such of the employees of the petitioner Corporation, who are posted outside Madhya Pradesh State. Under Section 45 of the Road Transport Corporation Act, 1960, the Rules were framed by the petitioners by name Madhya Pradesh State Road Transport Corporation Revision of Pay Rules, 1987 and these Rules are deemed to have come into force from 1-1-1986. As per Rule No.10 of these Rules, the special pay came to be discontinued till the corporation otherwise directed. The arrears according to this wage revision were payable from 1-1-1987. In other words, the employees were to receive their salary in old pay scale as recommended by Malik Pay Commission till 31-12-1986. On 8-9-1988 the Managing director of the petitioner Corporation issued Order No.1656 and implemented the revised pay scales from 1-11986 with arrears, payable from 1-1-1987. The arrears according to this wage revision were payable from 1-1-1987. In other words, the employees were to receive their salary in old pay scale as recommended by Malik Pay Commission till 31-12-1986. On 8-9-1988 the Managing director of the petitioner Corporation issued Order No.1656 and implemented the revised pay scales from 1-11986 with arrears, payable from 1-1-1987. It appears that after this was implemented, it was noticed by petitioners that the Unit Heads discontinued payment of special allowance in new pay scales because of Rule 10 of revised pay Rules mentioned above. Hence, on 4-21989, the Chairman-cum-Managing Director of the petitioner Corporation has issued Order No.1669 clarifying that employees posted outside the State of Madhya Pradesh will continue to get 5% of their basic pay as special allowance, but it also provided a rider that such amount of special allowance would be same i.e. as it was payable to the concerned employee prior to 31-12-1986 in Malik Pay Commission. In other words 5% of basic pay of revised pay scales which have been implemented from 11-1987 was not permitted as special allowance. 3. The respondent No.2 Union made grievance in this respect and filed Complaint ULPN No.I99 of 1989 mentioned above. It also stated that it was agreed between the employer and employees that the Rules, which may be framed by the Government of Madhya Pradesh in respect of revision of pay of Government servants shall be adopted by the petitioner corporation for its workmen and they relied upon Entry No.12 of the Madhya Pradesh State Government Pay Revision Rules 1987 to state that said Rules does not contain any such ceiling insofar as the amount of special allowance is concerned. The respondent No.2 contended that restriction in respect of special allowance imposed by Order dated 4-2-1989 was in breach of their service conditions and therefore, constituted unfair labour practice under Item 9 of Schedule IV of the M.R.T.U. and P.U.L.P. Act. 4. The petitioners after receipt of notice from the Industrial Court, Nagpur, appeared and filed their composite written statement and reply to the application for grant of interim relief and denied these allegations. 4. The petitioners after receipt of notice from the Industrial Court, Nagpur, appeared and filed their composite written statement and reply to the application for grant of interim relief and denied these allegations. They stated that after pay revision rules framed by the petitioner Corporation under section 45 of the Road Transport Corporation Act came into force, there was no question of paying any special pay and the existing arrangement as per Order dated 29-5-1985 was maintained without any change. They contended that special aIJowance was not a condition of service. They also stated that the Rules framed by the Madhya Pradesh State Government for its employees were not applicable and prayed for dismissal of complaint. 5. The respondent No.2 Trade Union did not examine any witness in support of its contention. The petitioner Corporation examined its labour and personal officer in support of its case and they were also cross-examined. On the basis of this material, the Industrial Court has pronounced the impugned orders. The Industrial Court found that by placing ceiling on entitlement of special allowance at 5% of the basic pay as existing on 31-12-1986, there was unfair labour practice under Item 9 Schedule 4 of the M.R.T.U. and P.D.L.P. Act. The Industrial Court has found that the petitioners have unilaterally withdrawn the special allowance as being paid and there was no notice of change issued as warranted by Section 9-A of the Industrial Disputes Act. To arrive at this conclusion, it has also placed reliance upon the judgment of Hon'ble Apex Court reported at 1975 S.C.C. (I&S) page 453, in the case of The Management of Indian Oil Corporation Ltd. Vs. Its workmen. 6. I have heard Advocate Shri. S. V. Golwalkar for petitioners and Advocate Shri. B. M. Khan for respondent No.2. Learned A.G.P. has appeared for respondent No.1. 7. Advocate Shri. Golwalkar appearing for petitioners has contended that burden to show that there was any illegal change or unfair labour practice was upon respondent No.2 and respondent No.2 has not entered the witness box at all even to show that there was any settled service condition, which has been unilaterally withdrawn. Learned A.G.P. has appeared for respondent No.1. 7. Advocate Shri. Golwalkar appearing for petitioners has contended that burden to show that there was any illegal change or unfair labour practice was upon respondent No.2 and respondent No.2 has not entered the witness box at all even to show that there was any settled service condition, which has been unilaterally withdrawn. He has further argued that the case as pleaded was after pointing out the rules framed by the State Government and respondent No.2 has claimed that said rules were applicable even to them and therefore, they were entitled to receive special allowance, without any ceiling. He contends that this case has not at all been considered by the Industrial Court to examine validity or otherwise of order dated 4-2-1989 issued by the petitioners. Impugned order also suffers from material irregularity because the Industrial Court has erroneously found that it was issued by the petitioners to correct any mistake committed by them. He contends that no such mistake has been proved before the Industrial Court and the approach of Industrial Court, therefore, stands vitiated. He has relied upon various Rulings to substantiate his stand to which reference will be made in the course of the judgment. 8. Advocate Shri. Khan appearing for respondent No.2 Union has contended that the entitlement of respondent No.2 has been proved by pointing out the initial order dated 1538 dated 29-5-1985 issued by petitioner Corporation. He states that said order itself shows that special allowance is to be calculated at 5% of the basic pay. He further states that it does not specify that said basic pay has to be in relation to pay scales as fixed only by Malik Pay Commission. He has further contended that in revised pay rules framed by petitioner Corporation, Rule 10 on which the petitioners have placed reliance, deals with special pay and not with special allowance. He contends that by placing reliance upon this Rule No.10, the order dated 4-2-1989 has been passed and therefore, same is unsustainable. He further contends that the case before Industrial Court in this respect was very specific and as the members of respondent No.2 union have not been paid special allowance at 5% of basic pay, as earned by them after 1-11987, there is unfair labour practice, falling under Item 9, Schedule IV of the M.R.T.U. & P.U.L.P. Act. He further contends that the case before Industrial Court in this respect was very specific and as the members of respondent No.2 union have not been paid special allowance at 5% of basic pay, as earned by them after 1-11987, there is unfair labour practice, falling under Item 9, Schedule IV of the M.R.T.U. & P.U.L.P. Act. He contends that if the calculation of special allowance was to be restricted in any manner only to basic as drawn in Malik Pay Commission and it was not to be extended even to revised pay scale, a notice of change under section 9-A of the Industrial Disputes Act was essential and as that has not been done, the Industrial Court has rightly recorded a finding in favour of respondent No.2. He has taken the court through relevant contentions raised by respondent No.2 in complaint and also through the relevant part of the order of the Industrial Court. In support of his contentions, he has placed reliance upon the Ruling in the case of Management of Indian Oil Corporation Ltd. Vs. Its workmen (supra) and in the case of The Workmen of the Food Corporation of India Vs. M/s. Food Corporation of India reported at 1985 LAB I.C. page 876. 9. Perusal of complaint as filed by respondent No.2 before respondent No.1 Industrial Court, reveals that in para 2 thereof the respondent No.2 union has pointed out that it was agreed condition of Service that special allowance at the rate of 5% of the basic pay is to be paid to the members of respondent No.2 union and it has, therefore, become a property and it cannot be taken away without following due procedure of law. In para 3, there is reference to agreement that it was agreed after report of Malik Pay Commission between the parties that the Rules framed by Madhya Pradesh State Government in respect of revision of pay of Government servants would be adopted by respondent corporation before it for its employees. Then there is reference to such Rules of Government of Madhya Pradesh published on 12-5-1987 and then provisions of Entry No.12 of those rules have been pointed out to state that said rules does not put any ceiling on calculation of special allowance. Then there is reference to such Rules of Government of Madhya Pradesh published on 12-5-1987 and then provisions of Entry No.12 of those rules have been pointed out to state that said rules does not put any ceiling on calculation of special allowance. It has been thereafter contended that the order dated 4-2-1989 amounts to an order reducing the rate of wages and change in agreed service conditions, without following due procedure of law. 10. Perusal of communication dated 4-2-1989 which has been impugned by respondent No.2 before Industrial Court reveals that it nowhere mentions that the Corporation induced any mistake as found by the Industrial Court and therefore, in order to rectify it, the same has been issued. The Industrial Court in para 15 of its judgment has found that even after application of revised pay scales i.e. after 1-1-1987 the employees were paid special allowance for some months and when this fact came to the knowledge of petitioners, they issued order dated 4-2-1989 stating that payment of special allowance at 5% of basic pay of revised pay scale was due to oversight or mistake on their part. It has therefore, observed that the petitioners cannot be allowed to agitate that it was due to their mistake that special allowance was being paid to the employees of petitioner Corporation working outside the State of Madhya Pradesh. Order dated 4-2-1989 clearly shows that petitioners have stated that after Revised Pay Rules framed by petitioners, the unit heads discontinued payment of special allowance in new pay scale under Rule 10 of Revised Pay Rules. It further mentions that this was done in accordance with the Circular No.11146 dated 9-9-1988 issued by the Financial Adviser and Chief Accounts Officer with reference to the Managing Director's order dated 29-5-1985. However, in para 3 it mentions that the proposal was thereafter approved on 17-1-1989 by the Board of Directors of petitioner Corporation and directions were issued to pay special allowance to the employees posted outside the State of Madhya Pradesh at 5% of their basic pay, provided the amount of payment would the same as it was on or prior to 31-12-1986 under Malik Pay Commission. 11. 11. Advocate Shri. Khan appearing for respondent No.2 Union has invited attention to the statement made in written statement by the petitioners wherein it has been mentioned that the petitioners have for some time released special allowance at 5% of not the old basic pay but 5% of the new and revised pay. However, the written statement further states that it was on account of oversight and mistake. The written statement further points out provisions of Revised Pay Rules of 1987 in which it has been expressly stated that the employees would not be entitled to any special pay after Revised Pay Rules came into force. It appears from said written statement that the employees were given an option and after getting option the revised pay has been implemented from 1-10-1988. Therefore, to set the situation right, the order dated 4-2-1989 has been issued and special allowance has been expressly restricted to 5% of the basic pay which employees were getting on 31-12-1986 under Malik Pay Commission. The learned Member of Industrial Court has not considered this later part of the written statement. In this respect it also deserves to be noted that respondent No.2 Trade Union did not enter into witness box and the witness examined by the petitioners was not cross-examined on these lines to demonstrate that there was no such bona fide error or mistake. It appears that the Rules have been framed in 1987, they were to come into force on 1-1-1987, but ultimately benefit is first released from 1-10-1988 after taking option from the employees. In the circumstances, during the period between 01-1-1987 to 1-10-1988, if some employees are paid special allowance at 5% of the new or revised pay scale, that by itself would not make any difference and would not constitute a condition of service in the face of Rule 10. 12. Respondent No.2 union has tried to distinguish before this court for the first time between special allowance and special pay. However, this difference sought to be made, was not made before the Industrial Court at any point of time. Perusal of complaint filed by them before the Industrial Court clearly reveals that in para 3, respondent No.2 Trade Union has expressly mentioned special pay as stipulated in Entry No.12 of Revised Pay Rules framed by the Madhya Pradesh Government for Government employees. Perusal of complaint filed by them before the Industrial Court clearly reveals that in para 3, respondent No.2 Trade Union has expressly mentioned special pay as stipulated in Entry No.12 of Revised Pay Rules framed by the Madhya Pradesh Government for Government employees. Not only this, the entire pleadings and its consideration by Industrial Court also reveal the respondent No.2 - Trade Union has treated special allowance and special pay as same thing. 13. The facts also demonstrate that the petitioners ordered to pay 5% of basic as special allowance on 29-5-1985 and this has continued till the Revised Pay Rules framed under section 45 of the Road Transport Corporation Act came into force. It is to be noted that these Revised Pay Rules expressly remove entitlement of the members of respondent No.2 union in this respect. Rule No.10 specifically states that there would be no special pay in revised scale to any of the Corporation employee till the Corporation otherwise directs. Respondent No.2 has accepted the implementation and application of these Revised Pay Rules from 1-1-1987 and as already mentioned above, all the employees submitted their options by 30-9-1988 and accordingly revised pay scales have been released on 1-10-1988 with arrears from 1-11987. The respondent No.2 Union has not challenged Rule 10 of these Revised Pay Rules framed under section 45 of the Road Transport Corporation Act. The said Rule itself expressly stipulates that there would be no special pay till the Corporation, otherwise directs. The direction of Corporation to the contrary is included in the order dated 4-2-1989. The learned Member of the Industrial Court has not considered this aspect of the matter. The record demonstrates that prior to coming into force of these Revised Pay Rules, the members of respondent No.2 union working outside the State of Madhya Pradesh were getting special allowance at 5% of the basic pay and the same has been maintained even by the order dated 4-2-1989 but the entitlement has been restricted only to 5% of basic as on 31-12-1986. This is, therefore, a direction to the contrary as envisaged by Rule 10 of the Revised Pay Rules of 1987 framed by petitioner Corporation for their employees and accepted by respondents. This is, therefore, a direction to the contrary as envisaged by Rule 10 of the Revised Pay Rules of 1987 framed by petitioner Corporation for their employees and accepted by respondents. It is, therefore, clear that in the absence of challenge to said Rule 10, the respondent No.2 Trade Union could not have independently made any grievance pointing out that any service condition settled in view of orders of petitioner Corporation dated 2-5-1985 has been breached. I find that the Industrial Court has totally overlooked this aspect of the matter. In other to show that there was any settled service condition entitling the members of respondent No.2 Union to claim special allowance at 5% of basic pay, it was necessary for respondent No.2 union to enter into witness box and also to raise challenge to the Rules framed under section 45 of the Road Transport Corporation Act. The Revised Pay Rules are statutory rules and have not been challenged. I, therefore, find that the Industrial Court has lost sight of the material defect which existed in challenge before it. It appears that reference to entry No.12 of Madhya Pradesh State Government Pay Revision Rules, 1987 was made by respondent No.2 to get over Rule 10 of their own Pay Revision Rules. But, that aspect is neither proved nor considered by the Industrial Court. 14. The learned counsel appearing for respondent No.2 union has relied upon the judgment in the case of the Management of Indian Oil Corporation Ltd. Vs. Its workmen (supra) of Hon'ble Apex Court. From the facts of said case, it appears that there, after Central Government issued Notification on 39-1957 granting compensatory allowance at certain rates to all Central Government employees, the appellant employer before Hon'ble Apex Court also granted same compensatory allowance to all its employees in September, 1959. This grant was not made through any standing order or Circular, but it was also allowed and accepted to have been given as an implied condition of service. Thereafter, on 8-12-1960, the Central Government issued another Notification and gave option to its employees receiving compensatory allowance to choose between House Rent Allowance or compensatory allowance. This grant was not made through any standing order or Circular, but it was also allowed and accepted to have been given as an implied condition of service. Thereafter, on 8-12-1960, the Central Government issued another Notification and gave option to its employees receiving compensatory allowance to choose between House Rent Allowance or compensatory allowance. In view of this Notification, the appellant employer thought that contents of said Circular were binding on the company and therefore, they unilaterally, without giving any notice to the workers, withdrew the concession of the compensatory allowance, which had been granted to the workers in September, 1959. It is, therefore, clear that there was no mandate or any other order requiring appellant before Hon 'ble Apex Court to withdraw compensatory allowance extended by it to its employees and further the Central Government had by its Notification dated 8th December, 1960 given option to its employees between House Rent Allowance and compensatory allowance. The Central Government, therefore, had not withdrawn the allowance. The observations made by the Hon 'ble Apex Court needs to be understood in this background. Here, it has not been demonstrated that there was any settled service condition in view of order of Management dated 29-5-1985. The special allowance at 5% of basic pay as directed to be released by order dated 29-5-1985 has been accepted and is being released by petitioners even after revision of pay scale after 1-1-1987 subject to "otherwise direction" under Rule 10 of statutory Rules. 15. The other two rulings on which the learned counsel appearing for respondent No.2 has placed reliance are in the case of The Workmen of the Food Corporation of India Vs. M/s. Food Corporation India (supra) of Hon'ble Apex Court and in the case of Transport and Dock Workers' Union and others Vs. Food Corporation of India (FCI) and another, reported at 1986 LAB I.C. page 1393 of the Bombay High Court. Both these rulings consider the effect of not giving notice of change as contemplated by Section 9-A of the Industrial Disputes act. As already mentioned above, the respondent No.2 Union has not shown that there was any settled service condition to pay 5% of basic pay as special allowance and further the union has not challenged the provisions of Statutory Service Rules framed by the petitioner Corporation in 1987 under section 45 of the Road Transport Corporation Act. As already mentioned above, the respondent No.2 Union has not shown that there was any settled service condition to pay 5% of basic pay as special allowance and further the union has not challenged the provisions of Statutory Service Rules framed by the petitioner Corporation in 1987 under section 45 of the Road Transport Corporation Act. I, therefore, find that these rulings are also not in any way helpful to respondent No.2. 16. The learned counsel appearing for petitioners has placed reliance on rulings in the case of Shankar Chakravarti Vs. Britannia Biscuit Co. Ltd. and another, (particularly para 31) reported at AIR 1979 SC page 1652 in the case of Narang Latex and Dispersions Pvt. Ltd. Vs. S. V. Suvarna (Mrs.) and another (particularly para 7) reported at 19904(11) C.L.R. page 51; and in the case of State of Maharashtra and others Vs. Presiding Officer, Industrial Court, Civil Lines, Nagpur and others (particularly para 8), reported at 2001(2) C.L.R. page 155 to substantiate his stand that the burden was upon respondent No.2 to show that there was any settled service condition which has been unilaterally withdrawn by petitioners. The later two judgments are the judgments of this court. He has also relied upon the judgment of Madras High Court in the case of Special officer, vellore Co-operative Sugar Mills, Ammundy Post, Vellore Vs. Presiding Officer, Labour Court Vellore and others reported at 2005(111) L.L.J. page 141, judgment of Allahabad High Court in the case of Etawah Kshatriya Gramin Bank, Etawah Vs. Presiding Officer, Central Government Industrial Tribunal-Cum-Labour Court, Kanpur and others reported at 2003 L.L.R. page 1130; and the judgment of Delhi High Court in the case of UCO Bank Vs. Presiding Officer and another reported at 2000(1) C.L.R. page 105, for same purpose. I find that there can be no debate about this proposition. The learned counsel appearing for petitioners has also cited the judgment of this court in the case M. R. Fernandes Vs. Air India Ltd. and another reported at 2004(2) L.L.N. page 963 to contend that the learned Member of the Industrial Court has erred in accepting any complaint filed by respondent No.2 itself has sufficient material to record a finding. It is no doubt true that the judgment in the case of M.R. Fernandes (supra) supports the proposition as canvased. 17. Air India Ltd. and another reported at 2004(2) L.L.N. page 963 to contend that the learned Member of the Industrial Court has erred in accepting any complaint filed by respondent No.2 itself has sufficient material to record a finding. It is no doubt true that the judgment in the case of M.R. Fernandes (supra) supports the proposition as canvased. 17. The learned counsel for petitioner has also contended that the complaint as filed by respondent No.2 Union does not contain assertion that the activity of petitioners is an "industry" or members of respondent No.2 are "workmen". It is argued that unless and until these facts are pleaded, the Industrial Court does not get jurisdiction. During the course of argument Advocate Shri. Khan appearing for respondent No.2 has stated that there was no such objection as stated above raised in written statement before the Industrial Court. The learned counsel for petitioner has relied upon judgment of this court in the case of State of Maharashtra and other Vs. Presiding Officer, Industrial Court, Civil Lines, Nagpur and other, reported at 2006(5) Mh.LJ. page 838: [2006(6) ALL MR 267]. He argues that this latest judgment considers all earlier judgments of the Hon'ble Apex Court and further argues that as very basic fact' has not been pleaded or raised in the ULP complaint, the complaint ought to have been dismissed. I find that all these judgments consider the establishments of State Government about coverage of which under section 2(j) of the Industrial Disputes Act, there can be some doubt. Insofar as establishment of petitioners is concerned, 'there can be no such doubt and admittedly the petitioners have not raised any such ground in their written statement before the Industrial Court. I am, therefore, not inclined to accept these contentions of petitioner. 18. In view of the discussion above. I find that the impugned order dated 19th & 21st March, 1996 of the Industrial Court is unsustainable. The same is accordingly quashed and set aside. 19. Writ petition is allowed accordingly, Rule is made absolute. However, in the circumstances of the case, there shall be no order as to costs. Petition allowed.