AI Structured Summary
Not yet generated for this judgment
Judgment
Amit B. Borkar, J
Heard.
By this Writ Petition under Articles 226 and 227 of the Constitution of India, the petitioners/employees are challenging the order dated 10.12.1999 passed by the learned Industrial Court, Nagpur dismissing Complaint ULPA No. 1338/1994 filed under Item No. 5 & 9, Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short, “the Act of 1971”).
The petitioners herein had filed the complaint alleging that the petitioners were not considered for promotion to the post of Sub-Head of the Section w.e.f. 01.01.1986 on a regular basis though their juniors were promoted. According to them, it amounted to unfair labour practice falling under Item No. 5 & 9 of Schedule IV of the Act of 1971. The petitioners also prayed to grant promotion to the said post retrospectively with all consequential benefits. In the case of the petitioners, the cause of action is continuous; therefore, the complaint is within limitation.
The respondent-Society contested the complaint by stating that the complaint was barred by limitation as the cause of action for filing the complaint arose on 08.09.1990. In contrast, the complaint was filed on 17.11.1994 without application for condonation of delay or giving sufficient cause for the delay. According to the Society, the petitioners were offered a promotion on 08.09.1990, 28.04.1992 and lastly on 17.04.1993, but they refused the same. According to the Society, as the petitioners refused promotion, the employees who were next in line and willing to accept the promotional post were promoted.
The petitioners and the respondents lead evidence before the Industrial Court. The Industrial Court dismissed the petitioners' complaint holding that they had refused to accept Adhoc promotion and, therefore, their juniors were considered for the same. Therefore, the Industrial Court held that the Society had not engaged in unfair labour practice and dismissed the complaint.
The petitioners, being aggrieved by the dismissal of the complaint, filed the present Writ Petition. The learned Single Judge, after hearing both the sides was pleased to remand the present petition to the Industrial Court to grant the opportunity to the petitioners to file an appropriate application for condonation delay and further directed the Industrial Court to consider the application of the petitioners. If the delay is condoned, proceed with the complaint afresh in accordance with the law. The said judgment was challenged before the Division Bench of this Court by way of Letters Patent Appeal No. 567/2010. The Division Bench of this Court, by judgment and order dated 03.09.2021, allowed the Letters Patent Appeal holding that permission granted to the petitioners to seek condonation of delay, in the present facts, is without any legal justification. The Division Bench further directed the learned Single Judge to decide the present petition on merit.
I have heard Shri P. D. Meghe, learned Advocate for the petitioners and Shri H. V. Thakur, learned Advocate for respondents. Shri P. D. Meghe, learned Advocate for the petitioners, submitted that the petitioners were entitled to be promoted to the post of Sub-Head of the Section on the basis of their seniority. He submitted that the petitioners' claim for promotion to the post of Sub-Head on a regular basis was not considered even though they were senior-most, which resulted in unfair labour practice under Item No. 9 of Schedule IV of the Act of 1971. According to him, other employees, who were juniors to the petitioners were promoted on a regular basis. The said action of giving promotion to the juniors, to the exclusion of the petitioners, amounts to favouritism to a set of employees regardless of merit, which is covered under Item No. 5 of the Schedule IV of the Act of 1971. He submitted that the cause of action for the present complaint is continuous as there are allegations of favouritism against the employer.
Per contra, Shri H. V. Thakur, learned Advocate for the respondents, submitted that the cause of action for filing the complaint accrued originally on 08.09.1990 when juniors to the petitioners were granted Adhoc promotion. At the same time, the complaint was filed on 17. 11.1994 with the averments that there is continuous cause of action. He submitted that the petitioners were offered promotion on 8. 09.1990, 28.04.1992 and lastly on 17.04.1993, which the petitioners refused and, therefore, the persons junior to the petitioners were granted promotion. Therefore, according to him, the complaint is barred by limitation. Since the petitioners refused to accept the offer of promotion, there is no unfair labour practice committed by the employer.
I have heard learned Advocates for the parties at length and also perused the record of the case. I have given my due consideration to the rival consideration. A perusal of the record shows that on 8. 09.1990, eight clerks were sought to be promoted on an Adhoc basis which contained names of the petitioners at Sr. No. 2 and 3 (Exh.36). The petitioners, on 17.07.1990, refused willingness to go on transfer to Jhansi on an Adhoc basis on a promotional post. Thereafter, again on 28.04.1992 (Exh.42) willingness of the petitioners was again sought for a promotional post. The petitioners replied to the said communication by stating they were willing to go to Bhopal/Bhusaval/Jabalpur provided they were promoted on promotional post w.e.f. 01.01.1986. The petitioners were thereafter promoted to the post of Senior Clerk on 30.04.1995. In the meantime, the petitioners filed Complaint ULP with the averments of the continuous cause of action on 17.11.1994.
Insofar as the contention of the petitioners that cause of action is continuous is concerned, however, the complaint is filed under Item No. 5 of Schedule IV of the Act of 1971; the petitioners have failed to make specific pleadings regarding favouritism.
The Apex Court, in the case of Ceat Ltd. Vs. Anand Abasaheb Hawaldar [(2006) 3 SCC 56] had occasion to explain the expression "favouritism and partiality". The Apex Court, in the context of applying a voluntary retirement scheme, interpreted the words favouritism or partiality to one set of workers by observing as under:-
“11. In Item 5 of Schedule IV to the Act, the Legislature has consciously used the words 'favouritism or partiality to one set of workers' and not differential treatment. Thus, the mental element of bias was necessary to be established by cogent evidence. No evidence in that regard was led. On the contrary, the approach of the Industrial Court and the High Court was different. One proceeded on the basis of breach of assurance and the other on the ground of discrimination. There was no evidence brought on as regards the pre-requisite i.e. favouritism or partiality. Favouritism means showing favour in the matter of selection on circumstances other than merit. (per Advanced Law Lexicon by P. Ramanatha Aiyar, 3rd Edn., 2005). The expression 'favouritism' means partiality, bias. Partiality means inclination to favour a particular person or thing. Similarly, it has been sometimes equated with capricious, not guided by steady judgment, intent or purpose. Favouritism, as per the Webster's Encyclopedic Unabridged Dictionary means the favouring of one person or group over others having equal claims. Partiality is the state or character of being partial, favourable, bias or prejudice.
According to Oxford English Dictionary, "favouritism" means - a deposition to show, or the practice of showing favour or partiality to an individual or class, to the neglect of others having equal or superior claims; under preference. Similarly, "partiality" means the quality or character of being partial, unequal state of judgment and favour of one above the other, without just reason. Prejudicial or undue favouring of one person or party: or one side of a question; prejudice, unfairness, bias.
Bias may be generally defined as partiality or preference. It is true that any person or authority required to act in a judicial or quasi-judicial matter must act impartially:
"If however, 'bias' and 'partiality' be defined to mean the total absence of preconceptions in the mind of the Judge, then no one has ever had a fair trial and no one ever will. The human mind, even at infancy, is no blank piece of paper. We are born with predispositions and the processes of education, formal and informal, create attitudes which precede reasoning in particular instances and which, therefore, by definition, are prejudices." (per Frank, J. in Linahan, Re, (1943) 138 F 2d at p.650).”
It is not every kind of differential treatment which in law is taken to vitiate an act. It must be a prejudice which is not founded on reason, and actuated by self-interest - whether pecuniary or personal.
Because of this element of personal interest, bias is also seen as an extension of the principles of natural justice that no man should be a judge in his own cause. Being a state of mind, a bias is sometimes impossible to determine. Therefore, the courts have evolved the principle that it is sufficient for a litigant to successfully impugn an action by establishing a reasonable possibility of bias or proving circumstances from which the operation of influences affecting a fair assessment of the merits of the case can be inferred.
As we have noted, every preference does not vitiate an action. If it is rational and unaccompanied by considerations of personal interest, pecuniary or otherwise, it would not vitiate a decision. The above position was highlighted in G. N. Nayak v. Goa University and Ors. [(2002) 2 SCC 712]”
In the facts of the present case, petitioners have failed to establish favouritism and partiality, since the petitioners were offered Adhoc promotion on 08.09.1990, 28.04.1992 and 17.04.1993. It was due to the refusal of the petitioners to communicate a willingness to accept Adhoc promotion, the employees who were next in the line and who were willing to accept promotional posts were promoted. According to the petitioners, they were not offered a promotional post but were asked willingness to accept a promotional post. A perusal of the letters dated 08.09.1990, 28.04.1992 and 17.04.1993 shows that the petitioners were willing to accept a promotional post. It was only on their refusal to show a willingness to accept promotional posts the employees, who were junior to the petitioners, were promoted. Therefore, in my opinion, the petitioners have miserably failed to prove that there was either favouritism or partiality to one set of workers. Therefore, both the Court below were justified in holding that the petitioners failed to prove unfair labour practice as per Item No. 5 of Schedule IV of the Act of 1971.
Insofar as the point of limitation is concerned, it is a proven fact that on 08.09.1990, the petitioners were asked the willingness for a promotional post, which the petitioners refused and thereafter, on the same day, juniors to the petitioners were promoted. Therefore, in my opinion, the cause of action for filing the complaint accrued on 08.09.1990. According to the pleadings in the complaint, it is not the case of the petitioners that there is a breach of terms of the settlement, and therefore, it cannot be said that the cause of action for filing the complaint is recurring in nature. Accordingly, the complaint was filed on 17.11.1994 and is barred by the law of limitation.
When the juniors in the cadre are conferred with the benefit of the promotion ignoring the seniority of an employee without any justifiable reason, the person aggrieved can always approach the Court. Thereupon he has the right to be considered even for Adhoc promotion. It is true that junior employees cannot be allowed to be promoted over senior employees solely on the ground that promotion granted to them is Ad-hoc in nature. However, we cannot countenance the petitioners' submission that they had not challenged the Adhoc promotion granted to the juniors earlier as the cause of action is continuous.
In the case of State of Uttaranchal Vs. Shiv Charan Singh Bhandari [(2013) 12 SCC 179], the Apex Court, after considering the various earlier precedents in paragraph no. 19, held as under:-
“19. From the aforesaid authorities it is clear as crystal that even if the court or tribunal directs for consideration of representations relating to a stale claim or dead grievance it does not give rise to a fresh cause of action. The dead cause of action cannot rise like a phoenix. Similarly, a mere submission of representation to the competent authority does not arrest time.”
The Apex Court further held in paragraph no. 28 as under:-
“28. Remaining oblivious to the factum of delay and laches and granting relief is contrary to all settled principles and even would not remotely attract the concept of discretion. We may hasten to add that the same may not be applicable in all circumstances where certain categories of fundamental rights are infringed. But, a stale claim of getting promotional benefits definitely should not have been entertained by the tribunal and accepted by the High Court.”
In my opinion, in the absence of proof of favouritism, there is no substance in the petitioners' submission that the cause of action is recurring. Therefore, in my opinion, the Courts below were justifying in dismissing the petitioners' complaint. Accordingly, there is no error apparent on the face of the record.
The petition is therefore dismissed. Rule is discharged.
Pending application, if any, stands disposed of accordingly.