ORDER
F.I. Rebello, J.
1. The petitioner is an ex-employee of respondent No. 1. By this petition he seeks to impugn the order dated 5th February 1997 whereby, by a common order the Labour Court constituted by the Central Government dismissed three applications filed by ex-ernployees of respondent No. 1 including petitioner herein. The Petitioner falls in the category of non award staff. It was the contention of the petitioner that Respondent No. 1 had revised the salary of management staff in terms of Memorandum dated 1st March, 1989 and as such they were entitled to revision of saiary and consequent fixation of pension based on the revised salary. In fact it is pointed out that by letter dated 10th July 1989 the lump sum amount being arrears which they would be entitled to was paid to them and consequently they were entitled to refixation of pension and consequent payment of the dues. The petitioner also contended that employees similarly situated as the petitioner had also moved similar application in respect of the same Memorandum and their applications were allowed. The respondent No. 1 chose not to challenge the said orders and accepted them. It is, therefore, contended that respondent No. 1 has understood the notification in a manner which is sought to be interpreted by the petitioner herein. It is also sought to be pointed out that at any rate accepting in the case of one and denial to the other would amount to arbitrariness or discrimination between employees similarly situated and as such would not constitute fair play by respondent No. 1. It is further pointed out that when two views are possible, merely because another view is also possible and may be better does not warrant acceptance of the other view where another Court of competent jurisdiction has taken one view of the two views possible.
2. In support of their various contention petitioner has relied on the earlier order dated 18th January 1995 passed in the case of K.H. Jogina and others dated 17th October, 1994. Reliance is also placed on the Judgement of the Apex Court dated 7th December, 1981 in Civil Appeal Nos. 351 and 352 of 1976 in the case of Workmen of M/s. Williamson Magor & Co. Ltd. v. M/s. Wiliiamson Magor & Co. Ltd. Principally the said Judgement deals with the issue as to where the promotion is a condition of service in a private company and in respect of what is victimisation. That Judgement is of no assistance in deciding the issues involved in this controversy except for the contention that when two views are possible the one in favour of poorer section should be accepted. Reliance is also placed on the Vth Bipartite Settlement between Managements of ‘A’ Class Banks and their workmen. The respondent No. 1 is a party
to the said settlement. Reference is also made to letter dated 20th September 1989 written by the Indian Banks’ Association. The said letter is addressed to the Chief Executive of Public Sector Banks. Respondent No. 1 is not a public sector Bank. Similar reference is made to the letter dated 12th June 1989 issued by the Indian Banks’ Association to the Chief Executive of Public Sector Bank and ‘A’ Class Private Sector Banks.
3. On the other hand on behalf of the respondent No. 1 it is contended that Memorandum dated 1st March, 1989 is not applicable to the petitioner as he was not in service on 1st January 1989. It is pointed out that in terms of Clause 4-A of the Memorandum to get the benefit of the revision in pay scale an employee must be in service of the Bank as on 31st December 1988 and continues to remain so on or after 1st January 1989. Petitioner was not in service on 1st January 1989. It is further pointed out that one time lumpsum payment was made to all those who could not get the benefit of the revision in pay sale and who were retired between November, 1987 to December, 1988. It is pointed out that amount of Rs. 5,000/- is a lumpsum and is not referable to arrears. In so far as the order dated 17th October, 1994 it is contended was passed without bearing in mind, that the Notification was with prospective effect only and in respect of only those who were in service on 1st January 1989. It is pointed out that merely because the respondent had not challenged the said judgement would not stop them in contending that the said interpretation was not correct. Consequently the said judgment at the highest would apply to employees covered by the said order and not to others. It is also sought to be pointed out that this question could not have been gone into under section 33-C(2) of the Industrial Disputes Act.
4. Considering the above the contentions of the parties have to be dealt with. In the first case it is no doubt true that in respect of some employees similarly situated like the petitioner herein, who had approached the Labour Court has and order was passed in their favour. This order was accepted by the respondent No. 1 and implemented. The Labour Court dealt with the said contention at paragraph 18. Labour Court has given reason as to why the said order could not be followed. Cogent reason have been set out therein.
The short point therefore in this petition which has to be considered is whether the petitioner herein is covered by the Memorandum of the Bank dated 1st March 1989. A perusal of the contents will be self explanatory. In para 1 of the said Memorandum under the head “Adjustment in Basic Salary” it is set out that as consequent to the change made effective 1st January 1989 in the rate of Dearness Allowance payable to Management Staff in India, it has been decided to make adjustments in the Basic Salary of all Management Staff. In para 2 it is mentioned that from 1st January 1989 there will be an adhoc increase in Basic Salary to all Management Staff. Clause 4(a) is material and it reads as under:-
4. The above adjustments/increase in Basic salary and lumpsum payments will (a) be made applicable to all India Management Staff in service of the Bank in India as on 31 st December, 1988 and continued to remain so on or after 1st January, 1989.
A reading of the said Memorandum makes it clear that there is a revision in Dearness Allowance and Basic Salary from 1st January, 1989. This revision is applicable to those employees in India who were in service on 31st December 1988 and continued to remain so on or after 1st January 1989. In other words there are two requirements (1) that the person was in service of respondent No. 1 on 31st December, 1988 and (2) that he continue to remain in service on or after 1st January, 1989. It is only when these two requirements are met that the revision in Dearness Allowance and Basic Salary is applicable. In other words those employees who were in service of the Bank on 31st December, 1988 but were not in service on or after 1st January 1989 would not be entitled to revision in Dearness Allowance and Basic pay.
As a result therefore, the wage revision was not applicable to those who were not in service after 1st January 1989.
4(a). An argument was sought to be raised that it was a practice that settlement with Award Staff would be similarly made applicable to the Non-Award Staff and as such the same should be followed in the present case also. It is in this context that Petitioner has contended that letter dated 10th July 1989 should be read. Even if the letter dated 10th July 1989 is so read it does not advance the case of the petitioner as in the said letter it has been made clear that it is a one time lumpsum payment to those who were retired between November, 1987 to December, 1988. Even the various permutation and combinations that are found in the earlier order of the Labour Court in the order dated 17th October 1994 does not in any way deal with the argument that the petitioner is also entitled to revision of pay and consequently refixation of pensionary benefits.
5. Proceedings under section 33-C(2) are in nature of execution proceedings. Qestion incidentals can be considered for the purpose of computation of the mandatory benefit. In the instant case the contention is that the letter extending the wage revision is also applicable to the petitioner herein. I have already held that the petitioner’s case would not fall within the ambit of the said Memorandum. On an interpretation given to the said notice we will have to deal with the other contention on behalf of the petitioner that the Management having accepted the order in case of similarly situated employees cannot be permitted to take a different stand in respect of other employees similarly situated. It is true that normally an employer should not be permitted to take a different stand in respect of the employee including those who have retired who are similarly situated. This would not promote industrial peace nor be conducive to a healthy working environment. However merely because the employer in a particular case chose to accept the order and did not prefer an appeal would not estop it from raising the plea in respect of the other employees that their case was not covered by the said Memorandum. There can be no estoppel in law. One can understand if the view taken by the Labour Court earlier was one of the two views possible. In those circumstances merely because another view is possible which may be a better view the Court would not normally in the matter of extending benefits adopt the other view which would result, in discrimination between employees similarly situated. However, in the instant case as pointed out no other view is possible in so far as the Memorandum dated 1st March, 1989 issued by the Respondent No. 1. The only view possible on the reading of the said Memorandum is that it applies to those who were working as on 31st December, 1988 and continued to remain in employment after 1st January, 1989.
6. In view of the above, there is no merit in this writ petition which is accordingly rejected. Rule discharged. In the circumstances of case, there shall be no order as to costs.
7. Petition dismissed.