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Rajasthan High Court · body

2000 DIGILAW 1486 (RAJ)

Bhola Ram Kumawat v. R. S. E. B.

2000-12-12

RAJESH BALIA

body2000
Honble BALIA, J.–Heard learned counsel for the parties. (2). This petition bearing No. 1560/99 as well as S.B. Civil Writ Petition No. 3994/99 arise out of the same order passed by the Labour Court, Jodhpur on 26.02.1999 deciding the application moved by Bhola Ram (hereinafter described as `the workman) the employee of the erstwhile RSEB now through its successor Corporation (hereinafter called, `the employer). The workman has filed an application for recovery of a sum of Rs. 21, 094 with interest at the rate of 18% under Sec. 33C(2) of the Industrial Disputes Act, 1947 on 21.5.1996 alleging that he was appointed as workcharge Painter by the RSEB on 7.11.1970 and is employed since then under it. By order dated 25.7.1980, the workman was declared to be a Painter II with effect from 1.4.1974 in the pay scale of Rs. 370-570. He was also granted a special advance increment of Rs. 10 w.e.f. 1.4.74 under Regulation 10 of the Regulations of 1978. Arrears on that basis were paid to him and he was being paid in accordance with that order. During this period under Award dated 4.5.1978 he became entitled to increments from Rs. 400 to Rs. 430 w.e.f. 1.4.1978 in the aforesaid pay scale which also was given to him. However, these benefits were withdrawn from the workman later on by considering the grant of advance increment of Rs. 10 to be erroneous grant and amount has been recovered from the workman. Against the said recovery, in the first instance the workman moved a petition before this Court as S.B. Civil Writ Petition No. 7/94 which was dismissed by this Court on 16.4.1996 for availing remedy under I.D. Act 1947 by filing an application before the Labour Court. In pursuance of that order, the workman moved the application u/S. 33C(2) of the Industrial Disputes Act, 1947, as aforesaid. This application was decided by the Labour Court vide order under challenge Annex. 2 dated 26.2.99. The Labour Court found in favour of the employer that the workman was not entitled to grant of advance increment of Rs. 10 on his regular appointment w.e.f. 1.4.74 by regularisation and therefore, the order withdrawing special advance increment and recovery made in pursuance thereof was justified and the application of the workman was rejected. 2 dated 26.2.99. The Labour Court found in favour of the employer that the workman was not entitled to grant of advance increment of Rs. 10 on his regular appointment w.e.f. 1.4.74 by regularisation and therefore, the order withdrawing special advance increment and recovery made in pursuance thereof was justified and the application of the workman was rejected. However, before parting with the case, the learned Judge, Labour Court further clarified that the order would mean that the workman shall be fixed in the minimum of the pay scale of Rs. 370-10-450-12-570 w.e.f. 1.4.74 and not on Rs. 380 but by getting regular increments from that stage when he reaches the stage of Rs. 400 the next increment shall be of Rs. 30. The exact order in which the directions contained is reproduced hereinbelow:- ^^vkosnu vLohdkj fd;k tkrk gSA izkFkhZ Jh Hkksykjke 1-4-74 ls mls ns; osru J`a[kyk esa ewy osru 380@& izkIr djus dk vf/kdkj ugha gS rFkk 380@& :i;s ewy osru fn;s tkus ds vk/kkj ij dh x;h dVkSrh;ka iwjh rjg ls mfpr gSA 1-4-74 ls izkFkhZ osru J`[kyk esa 370@& ij gh LFkjhdj.k dk vf/kdkjh gSA Li"V fd;k tkrk gS fd bl osru J`[kyk esa fu;e o izfØ;k vuqlkj okf"kZd osru o`f);k izkIr djrs gq, 400@& dh LVst ij igqapus ds rqjUr ckn esa vxzhe okf"kZd osru o`f) fl/ks 430@& :i;s ij gksxk vFkkZr~ 400@& ds ckn esa osru o`f) lh/ks 430@& :i;s ij gksxhA** (3). Aggrieved with the aforesaid order, the workman has filed S.B. Civil Writ Petition No. 1560 of 1999 whereas the Rajasthan State Electricity Board, now succeeded by Rajasthan Vidhyut Vitran Nigam Ltd., Jaipur, was aggrieved with the clarification made by the learned Judge, Labour Court and has preferred Writ Petition No. 3994/99. (4). In the first instance, it has been contended by learned counsel for the employer that the controversy raised in this petition refer to the entitlement of the workman to a particular scheme, the entitlement to the claim itself having not been already determined, the Labour Court had no jurisdiction to quantify the grant payable thereunder which alone was the jurisdiction u/S. 33C(2) of the Industrial Disputes Act and the appropriate remedy for the workman would have been to raise an industrial dispute and secure its adjudication. Therefore, even if the workman has same case, he cannot get its adjudication in these proceedings and the workman should be left to persecute his remedies in accordance with law if any by raising industrial dispute as best. (5). Though I find some force in the contention raised by the learned counsel for the employer about the field of the jurisdiction on an application being made u/S. 33C of the Industrial Disputes Act, in the facts and circumstances of the present case I am not inclined to non-suit the workman only on that ground. The workman, as noticed above, aggrieved with the withdrawal of advance increment granted to him w.e.f. 1.4.74 in the pay scale of 370 to 570 had knocked the doors of this Court vide Writ Petition No. 7 of 94. The said petition was dismissed by this Court with the following observations:- ``In this case, advance increment given to the petitioner from 1.4.1974 to 31.5.82 has been recovered even after on making fixation which has been challenged in this writ petition. Learned counsel for the petitioner wants to withdraw the writ petition to avail alternative remedy available to the petitioner. In view of above, the writ petition is dismissed as withdrawn. The petitioner will be free to avail alternative remedy and the period spent by him in pursuing writ jurisdiction will not come in his way. The petitioner may move before the Labour Court within one month from the date of receipt of this order and thereafter learned Labour Court will decide the case of petitioner according to law, as early as possible. (6). From the perusal of the aforesaid order, it appears that the workman filed the application under Sec. 33C(2) of the Act of 1947 being led by the observations made above to move an application before the Labour Court within one month from the date of receipt of the said order and the Labour Court had further been directed to decide such application as early as possible. In these circumstances, it would not be in the interest of justice once again to direct the workman to knock the doors of the appropriate Govt. by raising an industrial dispute and referring the dispute for adjudication of the Labour Court which again would go to the same Tribunal it has decided the application u/S. 33C(2). In these circumstances, it would not be in the interest of justice once again to direct the workman to knock the doors of the appropriate Govt. by raising an industrial dispute and referring the dispute for adjudication of the Labour Court which again would go to the same Tribunal it has decided the application u/S. 33C(2). The facts on which claim is founded are also not in dispute. (7). In this view of the matter, it is appropriate case in which this Court should exercise its extraordinary jurisdiction to examine the issues raised in the petition on merit and decide the rights of the parties as they appear from the facts established. (8). There is no dispute about the fact so far as these proceedings are concerned that the workman was first appointed on the workcharge establishment of the employer on 7.11.1970 and under order dated 25.07.1980 the services of the workman were regularised w.e.f. 1.4.74 as Painter II by creating supernumerary post of Painter II and was fixed as such in the employers pay scale No 3-370-10-450-12-570 or Rs. 370-10-450- Efficiency Bar-20-640) w.e.f. 1.4.74. The exact term in which the order was, made has been filed by the employer as Annex. R/2 in Writ Petition No. 1560/99, reads as under:- ``OFFICE ORDER On the recommendation of the Fixation Committee as constituted in terms of Para 15 of the Arbitration Award dated 15th June 1979 and in exercise of the powers delegated dated 15th June 1979 and in exercise of the powers delegated vide Boards order No. RSEB/DD/F.19(76)/D.1620 dated 17th Aug. 1976 Shri Bholaram S/o Shri Moti Ram appointed on dated 7.11.70 as W/C post on workcharge basis in the trade of Painting and continuing as such in the Board, is hereby fixed as Painter II in the Boards Pay Scale No. 3 (R. 370-10-450-12-570) or Rs. 370-10-450 EB 20- 650) with effect from 1.4.74 and for this purpose the supernumerary post of Painter-II is also hereby created. (9). 370-10-450 EB 20- 650) with effect from 1.4.74 and for this purpose the supernumerary post of Painter-II is also hereby created. (9). In this connection, it has been pointed out by learned counsel for the workman that the workman has been continuously in service of workcharge basis prior to 1.4.1974 since 7.11.70 and therefore, in terms of regulation 10 of the Rajasthan State Electricity Board Employees (Emoluments) Regulations, 1978 which provided that after the pay of an employee has been fixed under the revised pay scale on 1.4.74 in accordance with the provisions of Regulation 9, he shall be granted an advance increment at the rate indicated in that regulation. (10). The Explanation which is appended to Regulation 10 defines the expression ``continuous period of service, included the period of service rendered in the workcharge establishment prior to appointment on regular basis. Reading the three provisions of Regulation 9, 10 and Explanation, the learned counsel contends that since the period of service rendered in workcharge employment prior to his appointment in regular establishment on 1.4.74 exceeded three years but less than 6 years and by dint of order dated 25.7.80 he has to be deemed in service on 1.4.74 on the regular establishment as Painter-II, he was entitled to the advance increment of one grade i.e. Rs. 10, and therefore, his fixation at Rs. 380 in pursuance of the order Annex. 2 dated 25.7.1980 was rightly made and the order withdrawing the advance increment while fixing the pay in the revised pay scale was patently erroneous. It was pointed out by the learned counsel that the learned Judge, Labour Court has seriously erred by not taking into account the Explanation defining the term ``continuous period of service while not considering the service rendered by the workman prior to his regularisation on 1.4.74. (11). Mr. L.M. Lodha, learned counsel for the employer, contended that in view of definition given in the Regulations to the term ``existing employee and the ``existing pay scale, the workman cannot be treated as existing employee in existing pay scale on 1.4.74 for the purpose of granting 10 rupees advance increment or for the purpose of availing 3 grade increments or increment of Rs. 30 on reaching the stage of 400 rupees. 30 on reaching the stage of 400 rupees. For this proposition, he also relies on the Note (1) appended to Table No. 3 which gives the working out of the existing pay scale No. 3 of 120 to 250 while fixation is made under revised pay scale No. 3, and therefore, the Labour Court was right in rejecting the claim of the workman for the grant of advance increment w.e.f. 1.4.74 but was not right in clarifying that still the workman could be entitled to Rs. 30 increment on reaching the stage of 400 in the pay scale. (12). For resolving this controversy, it would be apposite to produce the various regulations referred to and relied on by the respective learned counsel. 5. Definitions: In these regulations, unless there is anything repugnant in the subject or context;- (i) ``Existing Pay Scale means scale of pay applicable to an employee, but for the coming into force of these regulations, in respect of a post held by him on 1.04.1974, substantively or in officiating capacity while retaining lien on a permanent post, or in a temporary capacity. (ii) ``Existing Employee means an employee who is in service on 1.04.1974 and drawing pay in the existing pay scales. xxxxx xxxxxx 9. Fixation of pay in Revised Pay Scale:- (1) The initial pay of an employee shall be fixed in the Revised pay scales in respect of the post which he is holding on 1.4.1974 in the manner hereinafter; (i) where existing emoluments are less than the minimum of the revised pay scale, the pay shall be fixed at the minimum of the revised pay scale; (ii) where the existing emoluments correspondent to a stage in the revised pay scale, the pay shall be fixed at that stage in the revised pay scale, and if there is no corresponding stage in the revised pay scale, the pay shall be fixed at a stage next above the existing emoluments. (iii) in case of an employee whose actual emoluments as on 1.4.1974 exceed the revised emoluments, the difference, if any, shall be treated as personal pay to be absorbed in future increased of pay. (iii) in case of an employee whose actual emoluments as on 1.4.1974 exceed the revised emoluments, the difference, if any, shall be treated as personal pay to be absorbed in future increased of pay. (2) ``Where the emoluments together with D.A. of an employee on 1.9.1976 as a result of fixation of pay under sub- regulation (i) & (ii) above and regulation No. 10 works out to be less than the emoluments which he drew on 1.9.1976, but for coming into force of these regulations, the difference between the emoluments referred to above as on 1.9.76 shall be protected and regulated by fixing pay of such employee in the Revised Pay Scales on 1.9.1976. The pay shall be fixed at the stage corresponding to the pay notionally arrived at by deducting the amount of D.A. admissible alongwith the revised pay scales as on 1.9.1976 from the total emoluments drawn by him in the existing pay scales as applicable from 1.04.1969. If there is no corresponding stage in the revised pay scale, the pay shall be fixed at a stage next above the notional pay indicated above. Note-1 `Emoluments as on ** 1.9.76 but for coming into force of revised pay scales, shall mean pay D.P. & D.A. and ad hoc benefits sanctioned under Orders No.RSEB/F&R/F.16(12) D.7 dated 28.2.1977 and No.RSEB/F&R/F.16 (12) D-a dated 8.3.1977. Note-2 : ``Emoluments as on ** 1.9.76 after fixation of pay in the revised pay scales shall mean pay in the revised pay scales plus DA as admissible under these regulations. (3) The fixation of pay of an employee shall be done in accordance with the provisions of Sub-regulation (1) and (2) above as incorporated in the scale-wise fixation tables (including instructions below them) appended as Schedule - III to these regulations. 10. Special provision for granting of advance increments to the employees who have put in continuous service for a specified period on 1.4.74. After the pay of an employee has been fixed in the revised pay scales on 1.4.1974, in accordance with the provisions of Regulation 9, he shall be granted advance increments (s) at the rate indicated in clause (a) or in clause (b) whichever is advantageous to an employee. (a) Period of Service Rate of increment (i) For a continuous period of service of 3 years or more but less than 6 years in the post held on 1.4.74. (a) Period of Service Rate of increment (i) For a continuous period of service of 3 years or more but less than 6 years in the post held on 1.4.74. One grade increment ii) xxxxxxx iii) xxxxxxxx xxxxxxx (b) xxxxxxxx xxxxxxx Explanation:- i) the expression ``continuous period of service means period of service rendered in the post held on 1.4.1974 in the Board including the period spent on leave, training deputation etc., and period of service rendered in workcharge establishment prior to appointment on a regular basis. ii) xxxxxxx xxxxxxx (2) xxxxxxx xxxxxxx TABLE NO. 3. Existing Scale No. 3 Revised pay Scale No. 3 126-8-150-10-250 370-10-450-12-570 Sl. No. of Stage Stage in existing Pay scale D.A. Existing emo- luments under Reg.5 (iv) Pay Fixation in Revised Pay scale under Reg. 9. 9. 200.00 195.50 395.50 400.0410.00420.00 10. 210.00 219.50 429.50 430.00 11. xxxxxxx 12. xxxxxxx 13. xxxxxxx 14. xxxxxxx Note No. 1. An existing employee shall, on fixation of his pay at or on reaching subsequently at the stage of 400.00 in the scale not carrying E.B.., have his pay fixed at the stage of 430.00 on the date of his next annual grade increment. 2. The provisions of note 1 shall also apply in case of an existing employee who is entitled to advance increments under regulation 10 of these regulations. (13). Firstly, it must be noticed that these regulations have come into existence only in 1978 but deals with the transactions which had taken in past inasmuch as these regulations have been made operative w.e.f. 1.4.1974. In this context, the ``existing employee has been defined to mean an employee who is in service on 1.04.1974 and drawing pay in the existing pay scale. A perusal of the definition does not by itself make reference to only such employees who had been employed prior to or before 31.03.1974 and does not include the employees who had been appointed w.e.f. 1.4.74. If a person is appointed w.e.f. 1.4.74, he cannot but be a person deemed to be in the service on 1.4.1974. Taking any other meaning would be to ignore the expression ``on in definition and to read the expression ``on as `before or `prior to. The expression `a person in service on 1.4.74 cannot be equated with expression who is in service prior to 1.4.74 and is also in service on 1.4.74. Taking any other meaning would be to ignore the expression ``on in definition and to read the expression ``on as `before or `prior to. The expression `a person in service on 1.4.74 cannot be equated with expression who is in service prior to 1.4.74 and is also in service on 1.4.74. If we refer to the definition of the `existing pay scale, it has the two cumulative conditions before a person can be said to be an existing employee. The `existing pay scale also refers to pay scale applicable to `a person holding a post on 1.04.1974. The existing pay scale refers to the pay scale applicable for the post held on 1.4.74 before it was retrospectively replaced by the revised pay scale w.e.f. 1.04.1974. Therefore, if clause (i) and (ii) read together, lead to one conclusion that a person who is in employment on 1.4.74 and is entitled to draw salary in the existing pay scale applicable to the post held on 1.4.74 which is now sought to be replaced by the revised pay scale under the regulations of 1978. The definition of existing pay scale also does not refer to an employee who is in employment since before 1.4.74 and drawing pay of a post held by him prior to 1.4.74. Whether a person is employed prior to 1.4.74 and continued to hold post on 1.4.74 or a person who has been appointed on 1.4.74 both fall in the same category as the persons employed on 1.4.74 and to both category of persons `pay scale applicable to the post held on 1.4.74 shall be the same. But for the regulations of 1978 the pay scale applicable to both the persons shall be the pay scale which would be applicable to the post on 1.4.74 but for the coming into force of the regulations. (14). Therefore, I have no hesitation in coming to the conclusion that all persons whether employed prior to 1.4.74 or employed w.e.f. 1.4.74 are existing employees of the employer on 1.4.74, if they are in actual employment of the employer on 1.4.74. The pay scale applicable to such employee for the post held by them on 1.04.1974 shall be the pay scale which is applicable to the post as on 1.04.1974. The pay scale applicable to such employee for the post held by them on 1.04.1974 shall be the pay scale which is applicable to the post as on 1.04.1974. The fact that an incumbent may be fixed at the minimum of pay scale because he is a fresh appointee on the post on 1.4.74 or such incumbent may be at a higher stage in the said pay scale because the annual grade increment due to increments earned because he was already employed earlier to 1.4.74, is of little consequence. Therefore, the existing pay scale for such class of persons called existing employees would be the pay scale applicable to the employee in respect of the post held by him on 1.04.1974 but for coming into force of Regulations of 1978. It cannot be doubted that once the workman was appointed as Painter-II w.e.f. 1.4.74 by creating a supernumerary post, he was an employee in service on 1.4.74 and had the regulations of 1978 not came into force, the pay scale applicable to him would have been the same as was applicable to Painter-II on 1.4.74. That was the pay scale applicable to post in substitution of which he was to be fixed in the pay scale no. 3 under the regulations of 1978. Thus, the existing pay scale No. 3 in the case of the petitioner was 126-8-150-10-250 and the revised pay scale in which the fixation on revision of pay scale was to be made was 370-10-450-12-570 (in the case of crossing of efficiency bar, at or after the stage of 450 in the pay scale it will go upto Rs. 650 from 450). This is also not the issue that the petitioner was to be fixed in the pay scale of Rs. 370-570 the scale 3 of revised pay scale. Therefore as on 1.4.1974, he was to be fixed atleast on minimum of pay at Rs. 370. But for the revised pay scale that came in force in 1978, he would have been fixed in existing pay scale of Rs. 126-250. (15). Apart from this, so far as clarification by the Labour Court is concerned, the decision merely does not rests on that. The Note 2 to Table No. 3 referred to above, is further indicative that the conclusion to which I have reached is supported by it. 126-250. (15). Apart from this, so far as clarification by the Labour Court is concerned, the decision merely does not rests on that. The Note 2 to Table No. 3 referred to above, is further indicative that the conclusion to which I have reached is supported by it. It clearly provides that the provisions of Note 1 also apply in case of existing employee who is entitled to advance increment under Regulation 10 of these regulations. Therefore, if while examining the claim of the workman for advance increment by taking into consideration the period of service as workcharge employee and by considering that he is found eligible for advance increment, he would be entitled to an increment of Rs. 30 also on reaching at the stage of Rs. 400 in the pay scale in which he has been fixed. That is also suggestive of the fact that those who have been regularised under Regulation 9 as a result of the recommendations made by the Sancheti Committee w.e.f. 1.4.74 by reason of their having rendered sufficient long service on the workcharge establishment for the purpose of securing the benefit of advance grade increment, that service is also to be computed, as contended by the learned counsel for the workman, then the question of nature of employment prior to 1.4.74 for the purpose of grant of increment at the rate of Rs. 30 on reaching the stage of Rs. 400 in the pay scale applicable to the workman would be a normal consequence in continuing in the pay scale whatever may be the interpretation put to Note 2. (16). In fact, the whole contention of the learned counsel for the employer rests on the premise that the benefit of annual increment at the rate of Rs. 30 in the pay scale No. 3 on reaching the stage of Rs. 400 is available only to the members of the service who were existing prior to 1.4.74. This, in my opinion, cannot be accepted except by reading the provision in violation of the expression in the rule. Meaning of word `on cannot be confined to mean `in service on 1.4.74 since before 1.4.74. The expression uses the benefit available to those who are in service on 1.4.74 and not confined to those who are in service since before 1.4.74 and are still in service. Meaning of word `on cannot be confined to mean `in service on 1.4.74 since before 1.4.74. The expression uses the benefit available to those who are in service on 1.4.74 and not confined to those who are in service since before 1.4.74 and are still in service. In these circumstances, the contention of the learned counsel for the employer in this regard cannot be sustained and the petitioner filed by the employer, the Writ Petition No. 3994 of 1999 must fail. (17). So far as the question of the release of advance increment of Rs. 10 on the fixation of workman in the pay scale of Rs. 370 to 570 is concerned, only reason which has prevailed with the Labour Court is that the workman was regularised on the post in the regular pay scale only on 1.4.74 and he was not drawing pay or his emoluments in any pay scale prior to 1.4.74 for any period. Moreover, the emoluments which he was drawing in totality were less than the minimum of the pay scale on 1.4.74 when he was for the first time placed in that pay scale, he could be fixed only at the minimum of pay scale and not with an advance increment of Rs. 10 under the Regulations. The Labour Court has reasoned that since the nature of employment prior to 1.4.74 was not regular and he was not drawing pay in the regular pay scale prior to 1.4.74, he was only entitled to be fixed in the minimum of pay scale which was more than emoluments which was already drawing immediately before the date of his regularisation. However, in reaching this conclusion, it is apparent that learned Judge, Labour Court has not taken into account the Explanation appended to Regulation 10 defining the expression ``continuous period of service. Perhaps, without aid of Explanation, it was possible to reach that conclusion. But in the light of definition of ``continuous period of service, quoted above in Regulation 10, the reason adopted by the Labour Court cannot be sustained. The Explanation makes it unequivocally clear that period of service rendered in workcharge establishment prior to appointment on regular basis is to be treated as continuous period of service for the purpose of applying the regulation relating to granting of advance increment to the employees. The Explanation makes it unequivocally clear that period of service rendered in workcharge establishment prior to appointment on regular basis is to be treated as continuous period of service for the purpose of applying the regulation relating to granting of advance increment to the employees. The title of the Regulation 10 reads ``Special provisions for grant of advance increments to the employees who have put in continuous service for a specified period on 1.4.74. This exercise is to be undertaken after the pay has been fixed under regulation 9. Under Regulation 9 sub clause (1) (i) it is envisaged that where the existing emoluments are less than the minimum of the revised pay scale, the pay shall be fixed at the minimum of the revised pay scale. It is not in dispute and that is also the finding of the Labour Court that on 1.4.74, with effect from the date, the workman was regularised, his existing emoluments were less than minimum of the revised pay scale. It is to be noticed that the expression used in Regulation 9 is not the emolument in any pay scale, but only `existing emoluments suggesting the nature of emoluments irrelevant for the purpose of fixing the pay in the Pay scale in which a man has to be fixed on 1.4.74. It is by dint of this provision, the workman on being regularised w.e.f. 1.4.74 when his emoluments were less than the minimum of the pay scale, he was to be fixed on the minimum of the revised pay scale at Rs. 370-570. It is only after this exercise has been done, the question would arise whether on fixation in the revised pay scale at the minimum of the pay scale, the workman is entitled to any advance increment. If the workman is not already in employment in any capacity prior to 1.4.74, the question of applicability of Regulation 10 would not arise because in that even he is not in continuous service on 1.4.74 and it becomes his first appointment. It is only after the incumbent has been fixed in the revised pay scale, as has to be fixed under Regulation 9, in the case of employees in continuous service, the question of grant of advance increment has to be considered. It is only after the incumbent has been fixed in the revised pay scale, as has to be fixed under Regulation 9, in the case of employees in continuous service, the question of grant of advance increment has to be considered. It is not in dispute before me and cannot be disputed that the workman was fixed and ought to have been fixed at the minimum of the revised pay scale 370 to 570 on 1.4.74. Thus, on appointment of the workman on regular basis w.e.f. 1.4.74 as Painter - II in the scale of 370- 570 and his existing emoluments being less than 370 rupees, his entitlement to be fixed in the minimum of the pay scale at Rs. 370 under Regulation 9, the further question required consideration about the granting of advance increment. The regulation 10 provided that where a person is in continuous service of three years or more but less than 6 years on the post held on 1.4.74, he is entitled to one grade increment. In operation of this clause concept of continuous service on 1.4.74 was brought in to make it clear that the incumbent should not only be in employment on 1.4.74, but he should be in continuous employment on 1.4.74. The Explanations make it further clear that this continuous period of service has nothing to do with the nature of work on regular establishment. Even if he has completed service of three years or more on workcharge establishment, he would become entitle to one grade increment and more grade increments depending on continuous length of service rendered by him prior to 1.4.74. With this background, it is to be noticed that the workman being in employment as Painter on workcharge establishment on daily rated basis, until his regularisation w.e.f. 1.4.74 since Nov., 1970, was in service for more than three years but less than 6 years. Therefore, on fixation in the regular pay scale at the minimum, Regulation 10 operated in favour of the workman and he became entitled to one grade increment of Rs. 10 on account of his continuous service on workcharge establishment for more than three years but less than six years as on 1.4.74. This position was reflected in the initial fixation of the pay at Rs. 10 on account of his continuous service on workcharge establishment for more than three years but less than six years as on 1.4.74. This position was reflected in the initial fixation of the pay at Rs. 380 in favour of the workman and he was paid all arrears as well as continuously paid salary as fixed at Rs. 380 on 1.4.74 until such release of advance grade increment was withdrawn. The fact that two separate orders have not been made by the employer; one for fixing in the minimum of the pay scale under Regulation 9 and thereafter another order granting special one grade increment under Regulation 10, but has fixed consolidated sum by one single order, would not affect the substance of the ultimate order fixing the pay at Rs. 380 in the pay scale of 370 to 570. That order of the employer, in my opinion, was in accordance with the Regulations 9 & 10 read together. There was no error in that fixation. (18). The Labour Court, in my opinion, has clearly erred in not taking into consideration the definition of `continuous period of service stated in the Explanation to Regulation 10 and therefore, erred in its conclusion by merely making reference to the entitlement to the fixation at the minimum of the pay scale as envisaged under Regulation 9 because he was getting lesser emoluments than the pay scale at the time of his regular appointment on 1.4.74. (19). For the reasons aforesaid, the claim of the workman that the order withdrawing the amount of special increment was invalid, and therefore, consequential recovery made from him was not justified, merits acceptance. (20). Accordingly, the writ petition No. 1560/99 filed by workman is allowed. The order of the Labour Court to the extent it upholds the action of the employer in withdrawing the advance increment granted in favour of the workman w.e.f. 1.4.74, and affecting recovery is set aside. It is also declared that the workman is entitled to get grade increment of 30 Rupees on reaching the stage of 400 in the pay scale 2 370-570. It is also declared that the workman is entitled to get grade increment of 30 Rupees on reaching the stage of 400 in the pay scale 2 370-570. Accordingly, the employer is directed to refix the salary in the pay scale as aforesaid and refund the amount of recovery made from the workman as a result of its order withdrawing the amount of advance increment w.e.f. 1.4.74, the date with effect from which the workman was regularised on the post of Painter-II, and pay further arrears of advance grade increment due to the workman within a period of three months. In case the employer fails to make the payment of arrears within a period of three months, the workman shall be entitled to the interest @ 18% from the date of this order until the payment is made. The employers petition No. 3994/99 is dismissed. (21). In the facts and circumstances of this case, there shall be no orders as to costs. (22). Both the petitions accordingly stand disposed of.