As per case facts, the petitioner institution appealed an Industrial Court order which held them guilty of unfair labor practices. The respondent, an employee, contended she was underpaid compared to ...
WP-79-15-J.doc
Sayali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 79 OF 2015
The Principal, Modern College of Arts,
Science and Commerce, Shivaji Nagar,
Pune- 5 … Petitioner
V/s.
Vineeta Dass
Room No. 356/14, Ahire Gate, Shivne,
Pune -23. Now R/o Flat NO. 18, B – Wing,
Ashirwad Garden Society,
Near Ashirwad Hall, Shivne, NDA Road,
Pune - 23 … Respondent
Mr. S. R. Nargolkar, i/b Mr. Aumkar Joshi, for
Petitioner.
Mr. Kalika Shankar Verma, for Respondent.
CORAM :AMIT BORKAR, J.
RESERVED ON :APRIL 23, 2026
PRONOUNCED ON:APRIL 30, 2026
JUDGMENT:
1.By the present petition preferred under Articles 226 and 227
of the Constitution of India, the petitioners have assailed the
legality, propriety, and correctness of the judgment and order
dated 19 November 2014 passed by the learned Member,
Industrial Court, Pune in Complaint (ULP) No. 202 of 2009. By the
1
SAYALI
DEEPAK
UPASANI
Digitally signed by
SAYALI DEEPAK
UPASANI
Date: 2026.04.30
11:53:24 +0530
WP-79-15-J.doc
said judgment, the petitioner institution has been held guilty of
engaging in unfair labour practice under Items 5, 6, 9 and 10 of
Schedule IV of the Maharashtra Recognition of Trade Unions and
Prevention of Unfair Labour Practices Act, 1971, and has further
been directed to cease and desist from continuing such unfair
labour practices.
2.The facts giving rise to the present proceedings, stated in
brief, are that the petitioners have approached this Court seeking
quashing and setting aside of the aforesaid order dated 19
November 2014. The respondent claimed that she was an
employee within the meaning of Section 3(5) of the said Act and
also a workman under Section 2(s) of the Industrial Disputes Act,
1947. It was her case that she had been working with the
petitioner institution since the year 2005 and was being paid
monthly wages of Rs.3,800/-. According to the respondent, the
prescribed minimum salary payable to a Clerk and Lab Assistant
was Rs.8,200/- and Rs.8,500/- per month respectively. It was
further alleged that when a permanent vacancy to the post of Lab
Assistant/Junior Clerk in the General Category arose in the year
2007, the respondent had applied and was called for interview, yet
she was not selected. It was also contended that when another
permanent vacancy for the post of Junior Library Clerk/Lab
Attendant arose in August 2009 in the General Category, though
the respondent had submitted her application, she was not even
called for interview. On the basis of the aforesaid allegations, the
respondent filed the complaint seeking a declaration that the
petitioners had indulged in unfair labour practices under Items 5,
2
WP-79-15-J.doc
6, 9 and 10 of Schedule IV of the said Act. The respondent further
prayed for a direction restraining the petitioners from continuing
such practices, for payment of salary in the prescribed pay scale
with effect from September 2005, for consideration of her claim
for appointment or promotion to the post of Junior Lab Clerk, and
for her appointment or promotion to the post sought to be filled by
fresh recruitment.
3.The petitioners appeared before the Industrial Court and
filed their written statement resisting the complaint by specifically
denying all allegations and contentions raised by the respondent. A
preliminary objection was taken regarding maintainability of the
complaint. It was contended that the respondent was neither an
employee nor a workman within the meaning of the relevant
enactments and that the Model Standing Orders had no
application to her service conditions. It was further contended that
the petitioner institution was governed by the provisions of the
University Act, 1994, and the service conditions of employees were
regulated by the Standard Code framed thereunder. According to
the petitioners, any grievance arising between employer and
employee was required to be agitated before the special forum
provided under the said statute, and therefore the Industrial Court
lacked jurisdiction to entertain and decide the complaint. It was
also the case of the petitioners that certain courses conducted by
the institution were aided and received governmental grants,
whereas some courses were unaided and run without financial
assistance from the State. Consequently, posts recognised and
sanctioned by the Government were paid salary in accordance with
3
WP-79-15-J.doc
governmental norms, while employees working on non-sanctioned
and non grant posts were paid wages as per the general law and
contractual arrangement.
4.The petitioners further contended that the respondent had
throughout worked as an assistant in the Biotechnology
Department, which was a non grant unit, and therefore she could
not claim parity with employees serving on aided posts. It was
additionally urged that the petitioner institution did not constitute
an industry within the meaning of Section 2(j) of the Industrial
Disputes Act, 1947. The allegation of favouritism, discrimination
or partial treatment to any class of employees irrespective of merit
was specifically denied. It was also asserted that the respondent
was not entitled to claim salary in the range of Rs. 8,000/- to Rs.
9,000/- per month from the date of her initial engagement. On
these grounds, the petitioners prayed for a declaration that no
unfair labour practice had been committed by them and that the
complaint deserved dismissal.
5.Upon hearing the parties, the learned Member, Industrial
Court, Pune partly allowed Complaint (ULP) No. 202 of 2009 by
judgment and order dated 19 November 2014. By the said
decision, the Industrial Court recorded a finding that the
petitioners had engaged in unfair labour practice under Item 5 of
Schedule IV of the Act. The petitioners were accordingly directed
to cease and desist from continuing the said unfair labour practice.
The Industrial Court further directed the petitioners to pay to the
respondent salary in the pay scale applicable to Junior Clerks in
aided colleges, as prescribed under the Standard Code and/or as
4
WP-79-15-J.doc
sanctioned by the State Government from time to time, from the
date of her initial appointment and to continue payment of salary
in the said scale thereafter. The petitioners were also directed to
pay arrears of salary within a period of three months from the date
of the judgment. Being aggrieved by the aforesaid findings and
directions, the petitioners have instituted the present writ petition
seeking interference with the impugned order.
6.Mr. S.R. Nargolkar, learned counsel appearing on behalf of
the petitioners, invited attention of this Court to the pleadings
contained in the complaint and submitted that though the entire
case of the respondent is professedly founded upon Item 5 of
Schedule IV of the MRTU and PULP Act, the complaint is wholly
deficient in material particulars. According to him, neither the
names of allegedly comparable employees, nor the nature of duties
discharged by them, nor particulars showing similarity of work
have been pleaded. Referring to Item 5 of Schedule IV, learned
counsel submitted that a mere allegation of favouritism or
partiality is insufficient in law unless it is specifically pleaded and
established that such favouritism or partiality was exercised
regardless of merit. It was further submitted that the respondent
possessed only the educational qualification of Second Year
B.Com., and had not completed graduation and, therefore, was not
eligible for appointment to any regular post in the petitioner
institution. Learned counsel further pointed out that in her cross-
examination, the respondent admitted that the salary paid to other
staff members was the same. He also relied upon the statement of
the petitioner in examination in chief that no sanctioned post of
5
WP-79-15-J.doc
Clerk-cum-Lab Assistant was in existence. It was then urged that
the Standard Code, on which heavy reliance has been placed by
the respondent, would apply only to a person duly appointed on a
permanent post. Inviting attention to Section 57 of the
Maharashtra Universities Act, learned counsel submitted that the
respondent had an efficacious alternate remedy before the
Grievance Committee in respect of disputes not covered by Section
59 of the said Act, and recommendations of such Committee,
subject to decision of the Management Council, are binding in
nature.
7.Learned counsel then invited attention to the impugned
judgment and submitted that while deciding Issue No. 2, namely
whether the respondent was entitled to appointment or promotion
to the post of Junior Lab Assistant or Clerk, the Industrial Court
itself recorded a finding in the negative. According to him, once
such finding was returned, it was legally impermissible for the
Industrial Court to thereafter hold that the respondent was entitled
to the pay scale prescribed under the Standard Code of 1984. It
was submitted that the two findings are mutually inconsistent and
incapable of co existence. Learned counsel sought to distinguish
the judgment of this Court in
Raskar Vidya Damodar @ Bhujbal
Vidya v. Maharashtra Arogyamandal and Others,
reported in 2001
(2) Bom.C.R. 284, by contending that in the said case the
employee concerned was governed by the provisions of the MEPS
Act and had been appointed against a permanent post, and it was
in that factual background that parity of pay scale was recognized.
6
WP-79-15-J.doc
8.Proceeding further, learned counsel submitted that in the
present case the respondent was never appointed to a permanent
or sanctioned post and, therefore, the judgment relied upon by the
Industrial Court had no application whatsoever. Inviting attention
to the pleadings regarding duties allegedly performed by the
respondent, namely, handling admission forms, preparing roll lists,
doing clerical work in the laboratory, working in the chemistry
laboratory and assisting students during practical sessions, it was
submitted that such assertions by themselves do not establish
entitlement to any regular pay scale. It was contended that the
Industrial Court had not accepted the respondent’s grievance
regarding non selection to the post of Lab Assistant on the ground
of discrimination and, therefore, having negatived that part of the
case, it could not have thereafter recorded a finding of
discrimination merely on the basis of non grant of pay scale under
the Standard Code. On these premises, learned counsel urged that
the impugned judgment and order suffer from legal infirmity and
deserve to be quashed and set aside.
9.Per contra, Mr. Kalika Shankar Verma, learned counsel
appearing for the respondent, opposed the petition and submitted
that the respondent has been continuously serving in the petitioner
college since August 2005 as Clerk-cum-Lab Assistant and initially
received a monthly salary of Rs.3,800/-. He submitted that her
service record has remained uninterrupted and unblemished.
According to him, the respondent answers the description of an
employee under Section 3(5) of the MRTU and PULP Act, 1971, as
well as a workman under Section 2(s) of the Industrial Disputes
7
WP-79-15-J.doc
Act, 1947. It was further contended that the petitioner institution
is a reputed educational college and falls within the ambit of an
industry for purposes of the aforesaid enactments. Learned counsel
submitted that the petitioner employs more than one hundred
persons, of whom about thirty-five hold the posts of Junior or
Senior Clerk and about ten hold the posts of Lab Assistant. He
contended that while the minimum salary payable to Clerks and
Lab Assistants ranges between Rs.8,200/- and Rs.8,500/- per
month, the respondent was intentionally paid only a meagre
amount. According to him, the petitioners deliberately continued
the respondent as a temporary employee for years together with
the object of depriving her of permanency and attendant benefits,
despite completion of the requisite period contemplated under the
Model Standing Orders, namely 240 days of continuous service
and the applicable probationary tenure.
10.Learned counsel further submitted that persons junior to the
respondent, though performing similar duties, were drawing
monthly salary in the range of Rs.8,000/- to Rs.9,000/-, whereas
the respondent was continued on substantially lesser wages. He
pointed out that at the commencement of service she was paid
only Rs.3,000/- per month. According to him, this itself
demonstrates favouritism towards one set of employees regardless
of merit and constitutes unfair labour practice. He further
submitted that the principle of equal pay for equal work has also
been violated. Referring to the evidence on record, learned counsel
submitted that the college is affiliated to the then Pune University
and courses are conducted as per the syllabus prescribed by the
8
WP-79-15-J.doc
University. It was urged that employees of the college are governed
by the Standard Code of 1984 applicable to affiliated colleges and
that the educational qualification prescribed thereunder for the
posts of Lab Assistant and Clerk is merely passing of 10th
standard. He submitted that the complainant was shown as an
office clerk. It was further contended that under the Standard
Code, where a person is appointed on a permanent post, the first
two years are treated as probation and thereafter, upon suitability
being found, such employee is confirmed. According to him, salary
is required to be paid in the scale prescribed by the University or
the Government.
11.Learned counsel submitted that at the time of entering
service, the complainant possessed qualification of First Year
B.Com. and her date of birth is 22 August 1975. It was stated that
she is presently drawing salary of Rs. 7,500/- per month, which is
still lower than the salary payable to a Clerk appointed on
grantable basis. He contended that no specific duty chart was ever
supplied to the complainant and, in substance, the duties
performed by her were the same as those discharged by other
Clerks and Lab Assistants serving on aided posts. It was further
submitted that in the year 2007, though a vacancy on grantable
basis had arisen and though the complainant had applied for the
post of Clerk-cum-Lab Assistant, she was not selected, whereas
Tima Vilas Lad and Vaishali Deshpande were selected. Learned
counsel emphasized that the complainant’s integrity and service
record were never blemished. It was then submitted that in the
year 2009, when another opportunity arose, the complainant was
9
WP-79-15-J.doc
not considered as she had crossed the upper age limit by a few
months. According to him, the petitioners have been paying her
merely under the general law applicable to the management
society, though the Biotechnology courses run by the college are
recognized by Pune University. It was reiterated that the
complainant performs duties similar to those of employees
working on aided basis. Learned counsel then contended that the
Industrial Court has correctly considered the issue of jurisdiction
and that reliance upon Section 57 of the Maharashtra Universities
Act by the petitioners is misconceived. Reference was made to
Chand Shikshan Prasarak Mandal vs. Nagpur University, 2001 (1)
CLR 605.
12.Learned counsel lastly submitted that the College Tribunal
had no jurisdiction to entertain and adjudicate the present
controversy, whereas the Industrial Court was fully competent to
do so since the respondent is an employee within the meaning of
Section 3(5) of the MRTU and PULP Act. According to him, once
the matter falls within the jurisdiction of the Industrial Court, the
remedy before the Grievance Committee stands excluded. He
further submitted that the objection founded upon Government
Resolution dated 10 August 2004, alleging any disqualification at
the time of initial appointment, was never raised before the
Industrial Court and cannot now be permitted to be introduced for
the first time in writ jurisdiction. In view of the aforesaid facts,
circumstances and legal position, learned counsel submitted that
the writ petition is devoid of merit and deserves to be dismissed.
Accordingly, he prayed for dismissal of the petition.
10
WP-79-15-J.doc
REASONS AND ANALYSIS:
13.Having heard the learned Advocates for the parties and
having gone through the pleadings, the deposition and the
impugned order, the controversy in the present petition falls for
consideration on a narrow compass. The respondent had
approached the Industrial Court alleging unfair labour practice
under Items 5, 6, 9 and 10 of Schedule IV of the MRTU and PULP
Act contending that though she was serving the petitioner
institution from August 2005 as Clerk-cum-Lab Assistant, she was
paid only Rs. 3,800/- per month, whereas persons doing like work,
and those junior to her, were drawing salary in the range of
Rs.8,000/- to Rs.9,000/- per month. On the other hand, the
petitioner has disputed the basis of the claim and has contended
that the respondent was never appointed on any sanctioned
permanent post, that the Standard Code has no application to her
case, that the complaint itself lacked necessary particulars.
14.At the outset, it becomes necessary to observe that a
complaint invoking Item 5 of Schedule IV of the MRTU and PULP
Act cannot be permitted to stand on vague allegations. The statute
contemplates a serious charge of favouritism or partiality. Such
charge carries civil consequence. Therefore, the person making
such allegation is required to state the case with reasonable
clearness. Many times one employee may receive different
treatment because of qualification, seniority, efficiency, or nature of
appointment. Unless these distinctions are ruled out every
difference in treatment cannot become unfair labour practice.
11
WP-79-15-J.doc
15.In present matter, the respondent has alleged that proper
wages were denied to her and that junior persons were receiving
higher salary. Such grievance by itself cannot be brushed aside.
However, when the Court examines pleadings, it finds absence of
exact particulars. The names of alleged junior employees are not
set out in the complaint. Their mode of appointment, whether
aided or unaided cadre, whether permanent or temporary, and
what duties they were discharging, are also not stated. In matters
concerning discrimination, if comparison itself is vague,
adjudication becomes uncertain. A Court cannot proceed on
assumption where statutory ingredients require proof.
16.Pleadings in such cases are the foundation on which
evidence is placed. If the foundation is absent, evidence cannot
cure the defect. The employer must know what case is to be met.
Otherwise, cross-examination and explanation become difficult.
For this reason, the petitioner was justified in contending that the
complaint suffered from want of particulars. It is no answer to say
that during evidence a statement was made that some staff
members were receiving more salary or that respondent was doing
clerical and laboratory work. Such assertions cannot substitute
pleadings.
17.The next aspect concerns status of respondent and nature of
her engagement. Respondent has described herself as Clerk-cum-
Lab Assistant and asserted continuous work from August 2005.
Continuity of service is one fact. But continuity alone does not
settle the character of appointment. The petitioner has disputed
that respondent was ever appointed on a permanent, sanctioned,
12
WP-79-15-J.doc
or grant approved post. This dispute is important because
respondent seeks benefit of Standard Code and pay scale
applicable to Junior Clerks in aided colleges. Unless it is first
established that she belonged to such category or was lawfully
entitled to be considered within that cadre, claim for same scale
becomes doubtful.
18.The petitioner has argued that Standard Code applies to
service conditions of employees appointed to permanent posts. If
respondent was engaged in non-sanctioned post or on temporary
basis in unaided section, direction to grant aided pay scale may not
follow. Law recognises distinction between regular cadre and
separate unit engagement. Therefore, before granting scale under
Standard Code, the Court must ascertain source of entitlement. It
also emerges from material that institution was running some
courses on grant basis and some on non grant basis. In many
educational institutions, aided and unaided units function under
same management but financial source, staff approval, staffing
pattern, and pay liabilities differ. Merely because employer is
common, all posts do not become common. Employees in aided
stream may receive government approved scales, whereas persons
in unaided stream may be governed by separate contractual
arrangement. Hence, the distinction between aided and unaided
post has consequence on pay structure, method of recruitment and
regularisation claims.
19.Coming to respondent’s plea of equal work, the Court finds
that respondent has stated she handled admission forms, prepared
roll lists, did clerical work in laboratory, worked in chemistry
13
WP-79-15-J.doc
laboratory, and assisted students during practicals. These duties
indicate useful service and mixed clerical assistance. Yet, equal pay
claim is not decided merely because some duties overlap. The
Court must see whether duties were same in responsibility,
accountability and qualification requirement. A Junior Clerk in
aided establishment may maintain records, registers, examination
data, and confidential correspondence. A laboratory assistant in
approved cadre may handle chemicals and technical assistance.
Unless comparative evidence is brought, similarity in few tasks
cannot establish identity of post.
20.Learned counsel for respondent submitted that juniors were
receiving higher salary. Even assuming some persons junior in age
or later in joining were receiving more, the Court must still ask
why. They may have been selected through regular process. They
may have occupied aided posts. They may have possessed different
qualification or approval. Without these facts, comparison remains
incomplete. The Industrial Court was therefore required to
undertake scrutiny whether respondent and alleged comparators
stood in same area. The record does not establish such parity.
Consequently, finding of discrimination becomes unsustainable
where comparative data is not available.
21.The respondent has also relied on circumstance that
petitioner institution is large establishment, employs many staff
members, is affiliated to Pune University, and therefore must
follow norms. An affiliated institution remains subject to
educational laws and labour laws. However, from this proposition
one cannot jump to conclusion that every person working in
14
WP-79-15-J.doc
institution acquires right to aided scale.
22.The issue is whether respondent has shown a legal right to
the exact scale claimed by her. On this crucial point, evidence falls
short. It has not been shown that respondent was appointed
through prescribed process on permanent post. It has not been
shown that a post of Clerk-cum-Lab Assistant existed. On contrary,
petitioner has stated that such post was not in existence. If that be
so, direction to pay scale of Junior Clerk in aided college cannot be
issued.
23.Another circumstance is the finding recorded by Industrial
Court on Issue No. 2. That Court declined to hold that respondent
was entitled to appointment or promotion to the post of Junior Lab
Assistant or Clerk. This finding has serious bearing. If respondent
was not found entitled to be appointed or promoted to that post,
then direction granting pay scale of same category becomes
difficult to reconcile. When post entitlement is denied, grant of
identical scale without basis creates contradiction.
24.The reliance placed upon decision in Raskar Vidya Damodar
@ Bhujbal Vidya
also does not advance respondent’s cause.
Precedents apply through similarity of material facts. As pointed
out by petitioner, that case arose in context where employee was
governed by MEPS Act and held appointment on permanent post.
In those facts, parity of pay scale may have been considered
justified. Here, the nature of appointment itself is disputed, and
sanctioned status is not proved. Thus, Industrial Court appears to
have relied on said authority without noticing the factual
15
WP-79-15-J.doc
difference. Such reliance was misplaced.
25.It is also necessary to note that respondent’s grievance
regarding non selection to grantable post in year 2007 and non
consideration in year 2009 was examined. Yet Industrial Court did
not grant her appointment or promotion. Once that substantive
relief failed, remaining relief of higher pay scale could not have
been granted. If selection process was invalid, separate findings
were necessary. Where appointment claim fails, grant of equivalent
pay by indirect route is legally impermissible.
26.The respondent may have indeed served for long period.
Long continuation on lesser wages can create hardship. Yet judicial
orders must proceed on rights recognised by law. Length of service,
by itself, does not create right to a scale unless statute, rule,
contract, or parity supports it. Where legal foundation is absent,
relief of parity cannot be sustained on compassionate
considerations.
27.In view of the above discussion and for the reasons recorded
hereinabove, the following order is passed:
(i) The Writ Petition is allowed;
(ii) The judgment and order dated 19 November 2014
passed by the learned Member, Industrial Court, Pune in
Complaint (ULP) No. 202 of 2009 is quashed and set aside;
(iii) Complaint (ULP) No. 202 of 2009 filed by the
respondent stands dismissed;
(iv) Rule is made absolute in the aforesaid terms;
16
WP-79-15-J.doc
(v) In the facts and circumstances of the case, there shall
be no order as to costs;
(vi) Pending interim applications, if any, do not survive and
stand disposed of accordingly.
(AMIT BORKAR, J.)
17
Legal Notes
Add a Note....