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2016 DIGILAW 613 (ORI)

Laxmi Prasad Panigrahi v. State of Orissa

2016-08-09

S.N.PRASAD, SANJU PANDA

body2016
JUDGMENT : S.N. Prasad, J. This writ petition is against the award dtd.7th November, 1997 passed in Industrial Dispute Case No. 31/1997 (60/93) whereby and where under the reference has been answered against the petitioner. 2. The brief fact of the case of the petitioner is that he was appointed as Clerk with a consolidated salary of Rs.150/-per month under M/s. Hira Cement Employees Credit Co-operative Society, the opposite party no.3 on 15.6.1979. The management after being satisfied with the performance of the petitioner has posted him as Jr. Accounts Assistant w.e.f.1.7.1983 in the scale of pay of Rs.255-5-285-7-320-EE-10-230 along with dearness allowance, medical allowance and house rent which will be paid separately as per the said letter. Again on 1.9.1984 the post of the petitioner was redesignated and he was promoted to be posted as Accounts Assistant by the Management Society with a pay scale of Rs.300-6-330-8-370-E.B. -10-410 with usual D.A. and other service benefits which was also admissible to the employees of the Bank and same was duly received by the petitioner without any protest. The opposite party no.3 vide the Board resolution dtd.4.9.1984 had implemented the pay scale as was applicable to the employees of the S.D.C.C. Bank and as such the service condition of the said bank was made applicable to the employees of opposite party no.3. Again on 5.1.1985 all the members of the Board have decided to enhance the dearness allowance of the petitioner in the line of increase given to the S.D.C.C. Bank w.e.f.1.1.1984. However, the decision taken by the Board by virtue of the said resolution has been made applicable only for one year, i.e. from 1.1.1984 to 5.1.1985 and extended till 30.6.1986 and thereafter the petitioner was denied the benefit of D.A. as per the terms of the resolution. The grievance of the petitioner is that pay scale of the S.D.C.C. bank has been changed and enhanced but the petitioner has not been given parity, accordingly he has raised his grievance before the competent authority but on failure of conciliation a reference has been made to the effect that “Whether the action of the management of Hira Cement Employer Credit Cooperative Society in fixing the scale of pay of Rs.790/- to Rs.1110/- instead of Rs.840/- to Rs.1240/-of Sri laxmi Prasad Panigrahi, Accounts Assistant w.e.f. 1.7.1986 is legal and/or justified? If not, what relief the workman is entitled to?” And thereafter the Industrial Tribunal after taking into consideration the rival submission of the parties has answered the reference against the petitioner, the petitioner being aggrieved with the same is before this court by way of this writ petition on the ground that the Tribunal has not appreciated the entire aspects of the matter. The Tribunal ought to have taken into consideration the pay scale of employees of S.D.C.C. bank and by virtue of the decision of the management – opposite party no.3 the benefit of D.A. and other benefits has been given at par with the employees of S.D.C.C. bank but only for a specific period and thereafter the benefit has not been extended but this aspect has been ignored by the learned Tribunal. 3. Learned counsel for t he petitioner while assailing the award has submitted that the finding given by the Tribunal is totally perverse and as such it is a fit case wherein this court sitting under Article 226 of the Constitution may interfere. 4. The opposite parties have appeared and contested the case. Arguing on their behalf learned counsel has submitted that there is no infirmity in the award, rather the Tribunal after taking into consideration the entire aspect of the matter has passed the award. Learned Tribunal has taken into consideration the fact that the service condition of the S.D.C.C. Bank and the service condition of opposite party no.3, the employer of the petitioner are totally different and as such the petitioner cannot claim any parity in the pay scale in comparison with the employees of S.D.C.C. bank. It has been submitted that the petitioner has not made out any case that similarly situated employees working under opposite party no.3 has been given enhanced pay scale. The learned Tribunal after taking into consideration this aspect of the matter has answered the reference against the petitioner, hence there is no infirmity in the same. They have submitted that this court may not exercise the extraordinary jurisdiction conferred to it under Article 226 of the Constitution of India by assuming the power of appellate court. 5. Heard the learned counsels for the parties and perused the documents on record. The facts giving rise to the dispute in the case is regarding disparity in the pay scale as per the grievance of the petitioner. 5. Heard the learned counsels for the parties and perused the documents on record. The facts giving rise to the dispute in the case is regarding disparity in the pay scale as per the grievance of the petitioner. The petitioner who admittedly was appointed under M/s. Hira Cement Employer Credit Cooperative Society on a consolidated pay and thereafter by virtue of the decision taken by the Board in its meeting the D.A. and Additional D.A. has been provided to the petitioner but for a limited period, thereafter it has not been extended. The grievance of the petitioner is that he ought to have been given parity in pay scale as that of the employees of the S.D.C.C. bank. This grievance of the petitioner is based upon the decision of the Board’s meeting of opposite party no.3, the employer and according to the petitioner when once the opposite party no.3 has decided to extend the parity in pay scale as that of the employees of S.D.C.C. Bank, the same cannot be recalled. But when it has been recalled, dispute has been raised by making an application before the Conciliation Officer, but on failure of conciliation, the failure report was submitted, thereafter the appropriate Government has referred the dispute before the Tribunal for its adjudication. From perusal of the order passed by the Tribunal, the Tribunal has framed three issues:- (i) Whether the reference is sustainable ? (ii) Whether the action of the management of Hira Cement Employees Credit Cooperative Society in fixing the scale of pay of Rs.790/- to Rs.1110/- in stead of Rs.840/- to Rs.1240/- of Sri Laxmi Prasad Panigrahi, Accounts Assistant w.e.f. 1.7.1986 is legal and/or justified ? (iii) If not, to what relief the workman is entitled? The learned Tribunal while answering the issue no.(i) has held that the reference is maintainable and thereafter proceeded to decide the issue no.(ii), while answering, it has been taken note by the Tribunal regarding the factual aspect of the matter and also the parity of pay scale and other service benefits to be given to the petitioner similar to the employees of S.D.C.C. bank. The Tribunal after appreciating the rival submission of the parties has came to conclusion that the employees of the S.D.C.C. Bank Ltd. got their pay, D.A. as per the employees of the Government revised rate from time to time but it is not applicable to the management of opposite party no.3. The management of the first party and the Management of S.D.C.C. bank are not the same. The S.D.C.C. bank and opposite party no.3 are two separate establishments having two different managements and thereafter after taking into consideration the fact that the petitioner who was working under opposite party no.3 on the basis of bylaw having its own service condition and regulation while on the other hand the employees of S.D.C.C. bank is having their own service condition and regulation and it is settled that if an employee is working in an establishment the service condition of that establishment will be applicable to such employees and he cannot take parity of the service condition of other employees working under different establishment and taking into consideration this aspect of the matter the grievance raised by the petitioner regarding parity in pay scale with the employees of S.D.C.C. bank has been answered against him. Learned counsel has further taken note of the fact that the petitioner had not made out a case that he has been discriminating by granting lesser pay scale in comparison to the employees working in the same establishment. Thus the Tribunal after appreciating the entire aspect of the matter has came to a conscious finding that the petitioner has got no right to get parity in the service condition in comparison to the employees working in other establishment since the pay scale is also a service condition, hence the petitioner cannot claim parity in the pay scale in comparison to the employees working under the S.D.C.C. Bank Ltd. From perusal of the finding given by the Tribunal, in our considered view the Tribunal has taken note of all aspects of the matter and thereafter passed the award. 6. Now the question is whether this court sitting under Article 226 of the Constitution of India can interfere with the award assuming the power of appellate court. This has been answered by Hon’ble Apex Court in the case of Syed Yakoob Vs. 6. Now the question is whether this court sitting under Article 226 of the Constitution of India can interfere with the award assuming the power of appellate court. This has been answered by Hon’ble Apex Court in the case of Syed Yakoob Vs. K.S. Radhakrishnan and others, AIR 1964 SC 477 wherein it has been held that the High Court sitting under Article 226 of the Constitution of India may not exercise its power to review the fact finding giving by the Tribunal after appreciation of the factual aspect produced before it, otherwise also it will be said that the High Court has acted as appellate court. The proposition laid down by the Hon’ble Apex Court in the case of Syed Yakoob (supra) still holds good and in this respect reference may be made to the judgment rendered by Hon’ble Apex Court in the case of M/s. Pepsico India Holding Pvt. Ltd. Vs. Krishna Kant Pandey, (2015) 4 SCC 270 wherein their Lordships while discussing the scope of Article 226 of the Constitution of India in the matter of showing interference with the finding of the Tribunal has been pleased to hold after placing reliance upon the judgment rendered in the case of Chandavarkar Sita Ratna Rao Vs. Ashalata S. Guram, (1986) 4 SCC 447 as follows:- “17. In case of finding of facts, the court should not interfere in exercise of its jurisdiction under Article 227 of the Constitution. Reference may be made to the observations of his Court in Bathutmal Raichand Oswal v. Laxmibai R. Tarta where this Court observed that the High Court could not in the guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal. The High Court was not competent to correct errors of facts by examining the evidence and reappreciating. Speaking for the Court, Bhagwati, J. as the learned Chief Justice then was, observed at p. 1301 of the report as follows: (SCC p. 864, para 7) “The special civil application preferred by the appellant was admittedly an application under Article 227 and it is, therefore, material only to consider the scope and ambit of the jurisdiction of the High Court under that article. Did the High Court have jurisdiction in an application under Article 227 to disturb the findings of fact reached by the District Court? Did the High Court have jurisdiction in an application under Article 227 to disturb the findings of fact reached by the District Court? It is well settled by the decision of this Court in Waryam Singh v. Amarnath that the ... power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways v. Sukumar Mukherjee to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors. This statement of law was quoted with approval in the subsequent decision of this Court in Nagendra Nath Bose v. Commr. of Hills Division and it was pointed out by Sinha, J., as he then was, speaking on behalf of the court in that case: It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the power under Article 226 of the Constitution. Under Article 226 the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority.” However the High Court can interfere if there is any error of jurisdiction or if there is perversity in the finding but here since there is no error of jurisdiction and also there is no perversity in the finding, in our considered view there is no infirmity in the order passed by the Tribunal, as such there is no need of interference. Accordingly the writ petition fails and it is dismissed.