MR. YASHWANT VISHRAM SORAP Vs. THE GENERAL MANAGER, BEST UNDERTAKING, MUNICIPAL CORPORATION OF GREATER BOMBAY AND THE GENERAL SECRETARY, BEST WORKERS UNION

JUDGEMENT

(1.) THE present complaints are filed by the Complainants under Items 5 and 9 of Schedule IV of the MRTU & PULP Act, 1971 as the Respondents have committed unfair labour practices on and from 26th March 1991. The Complainants have been in the employment of Respondent No. 1 with check No. 204178 P.S. 24/01 & Check No. 177716 P.S. 24/01 in the Transportation Engineering Department, Operation Section, Dadar Workshop, Bombay 400 014. The Complainants Mr. Yeshwant Vishram Sorap had entered into employment of Respondent No. 1 on 12th December 1958 and Mr. Balaram Krishna Chilveri had entered into an employment of the Respondent No. 1 on 23rd December 1977. The Complainant Mr. Y.V. Sorap vide letters dated 30th December 1988 resigned from the services of the BEST Undertaking after 30 years of prolonged service due to heart attacks as he was rendered incapable of undergoing the strains of his duties and hence reigned on medical advice. The Complainant Mr. Balaram Krishna Chilveri vide his letter dated 15th December 1989 resigned from the services of the BEST Undertaking. Their resignations came to be accepted with effect from 30th January 1989 and 31st January 1990. On resignation from the employment of the Respondent No. 1, the Complainants came to be paid all their terminal dues like Provident Fund, Gratuity, etc. on the basis of the wages which they were drawing at that time.

(2.) THE Complainants submit that the Respondent No. 2 is a statutory Corporation constituted under the provisions of the Bombay Municipal Corporation Act, 1888, the BEST Undertaking has carrying on the activity of carriage of passengers by omnibus and supply of electricity in the city of Greater Bombay on behalf and under the control of the said Corporation. Respondent No. 1 BEST Undertaking is covered under the provisions of the Bombay Industrial Relationship Act. Respondent No. 3, the BEST Workers Union, is the representative and approval union under the Bombay Industrial Relations Act, 1946.

(3.) THE Complainants submit that the Municipal Corporation of Greater Bombay to which the BEST Undertaking belongs is statutory Corporation and as such is a "State". It, therefore, cannot discrimination the employees in the matter of payment of wages for a particular wage period and for a particular set of workers. All the employees employed by the Respondent No. 2 through the Respondent No. 1, is the category during the period from 1st January 1988 to 31st March 1990 deserves to be treated equally and hence they are fully entitled to the benefits under the said Agreement irrespective of duties due to which they cease to be employees of the undertaking. The cause of action of employer -employee relationship is irrelevant for the purpose of deciding payment of wages for a particular wage period. The principle of "equal pay for equal work" applies to all such cases. If two sets of employee have served during a particular wage period they are to be treated equally and any such discriminatory clauses in the Agreement in against the basis fundamental right of wage equality and is also against the principles of natural justice, social justice, social equity on which principle labour legislations are created. The Complainants further submit that any discriminatory clause is against submits policy in terms of section 25 of the Indian Contract Act 1872 and is breach of express provision of law and plea against the interest of the employees employed by the BEST Undertaking and trust being illegal deserves to be strode down. The derail of benefits under the said Agreement as the basis of separate reasons for promotion of employer -employee relationship submits to unfair labour practices under Item 5 of Sch. IV of the MRTU & PULP Act, 1971 viz. to show favouritism or partiality to one set of workers regardless of merits. The Complainants further submits that the Respondent No. 1 is statutorily bound to give benefits of Gratuity and Provident Fund on the revised wages. The Complainant has the basic right to receive Provident Fund and Gratuity on the revised wages because the Employees Provident Fund Act and Misc. Provision Act 1952, and the Payment of Gratuity Act 1972 are enacted by Parliament and relevant clauses 3(iv) of the said Agreement cannot override both these Statutory Act. Hence, the relevant clause 3(iv) of the said Agreement deserves to be struck down because the relevant clause 3(iv) is of such a nature that if permitted, it would defeat the provisions of the Employees Provident Fund and Misc. Provisions Act, 1952 and the Payment of Gratuity Act, 1972. Such a clause is in contravention of Section 23 of the Indian Contract Act, 1972 and hence the relevant clause is null and void. It is further submitted that the provisions of the Employees Provident Fund and Misc. Provisions Act and the Payment of Gratuity Act are mandatory in nature and contracting out of the same is not permissible. The Complainants submit that clause 5 of the said Agreement is restricting the Complainant from enforcing his rights under the law and hence clause 5 of the said Agreement is void to that extent in terms of Section 28 of the Indian Contract Act.