The Bombay High Court has held that a temporary employee is entitled to be paid at the minimum of the pay scale (entry-level pay) applicable to a regular employee holding the same post, but not to increments or absolute pay parity, based on the principle of ‘equal pay for equal work’. While a grievance regarding incorrect pay constitutes a recurring cause of action, any claim for monetary arrears is subject to the law of limitation. In a complaint of unfair labour practice under the MRTU & PULP Act, 1971, the relief for arrears is restricted to a period of 90 days prior to the filing of the complaint.
The High Court clarified that the grant of back wages is not automatic upon a finding of illegal termination. The burden is on the employee to plead and prove the absence of gainful employment during the intervening period. The court has the discretion to deny or award a reduced percentage of back wages based on factors such as the lack of evidence of non-employment, the length of service, and the financial burden on the employer.
The Industrial Court has jurisdiction to grant the relief of reinstatement even if the original complaint did not concern termination, where the termination occurs during the pendency of the complaint and is linked to the unfair labour practices alleged therein, added the Court.
A Single Judge Bench of Justice Sandeep V. Marne noted that the Industrial Court did not grant the relief of permanency, a fact conceded by the respondents’ counsel. The Industrial Court’s answer to the specific issue of permanency was merely ‘Entitled for equal pay’. As permanency was not granted and this was not challenged by the employees, the Single Judge deemed it unnecessary to examine the University’s powers to create posts or the legal arguments surrounding regularization.
As far as the argument of the University that the Industrial Court lacked jurisdiction to order reinstatement, as termination matters fall under the Labour Court’s purview, the Bench observed that the original complaint was for permanency and equal pay, and the termination occurred during its pendency. The Bench affirmed the Industrial Court’s jurisdiction in such cases.
Further, the Bench upheld the direction for reinstatement. It found no sufficient evidence for the University’s claim that the employees’ tenure ended by efflux of time, as no specific appointment orders were produced. The termination was found to be discriminatory, as 925 other temporary employees continued to work. Also, the termination violated Sections 25F and 25G of the Industrial Disputes Act, 1947, as no notice, notice pay, or retrenchment compensation was given, and the principle of seniority was not followed.
The Bench found the Industrial Court’s direction to pay all employees a salary ‘equal to the lowest grade of salary’ from their joining dates to be ‘grossly erroneous and defies logic’. It observed that there was no reasoning for this direction, which was also contrary to the employees’ own prayer for pay parity on their respective posts.
Moreover, the Bench identified a glaring error in awarding arrears from the initial joining dates, some of which were as early as 2003. It held that while non-payment of correct wages is a recurring cause of action, the recovery of arrears is subject to limitation. For a complaint under the MRTU & PULP Act, the limitation period is 90 days, so arrears could only be claimed for 90 days prior to the filing of the complaint.
Lastly, the Bench noted that the employees had neither pleaded nor provided any evidence that they were not gainfully employed after their services were discontinued. While this could justify a complete denial of back wages, the Bench, considering the peculiar facts that the termination immediately followed the complaint, awarded 50% of back wages from 5 July 2017 to 28 November 2023. For the period thereafter, it awarded full wages, as the employees should have been reinstated per the Industrial Court’s order.
Briefly, the case involves a petition filed by the University of Mumbai challenging a judgment from the Industrial Court, Mumbai. The respondents, 64 temporary employees working in various capacities such as Peon, Clerk, Data Entry Operator, and Scientific Assistant, had filed a complaint alleging unfair labour practices by the University. They sought permanent status and pay parity with regular employees from the date they completed 240 days of service.
Almost simultaneously with the filing of their complaint in June/July 2017, the University issued a circular discontinuing their services, effective 30 June 2017. The Industrial Court, in its final order found the University guilty of unfair labour practices under Item 6 of Schedule IV of the MRTU & PULP Act, 1971. While the court did not grant permanency, it directed the University to reinstate the employees and pay them a salary equal to the lowest grade paid to regular employees from their respective joining dates, along with equal pay at par with permanent employees from 5 July 2017.
Appearances:
Senior Advocate J.P. Cama, along with Advocates Yuvraj Narwankar and Suraj Kaushik, for the Petitioner
Advocates S.C. Naidu, Abhishek Ingale, Divya Yajurvedi, Pradeep Kumar, C.R. Naidu & Co., Manoj Gujar, and T.R. Yadav, for the Respondent
