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2002 DIGILAW 1731 (RAJ)

B. R. Sachdeva v. State of Rajasthan Another

2002-10-22

SHIV KUMAR SHARMA

body2002
JUDGMENT 1. - In all these writ petitions the petitioners seek to set aside the order dated May 17, 1999, issued by the Commissioner and Secretary to Government Department of State Enterprise, and consequential other orders. As questions of fact and law in these writ petitions are identical I propose to decide them by a common order. 2. In order to understand the controversy the facts of S.B. Civil Writ Petition No. 3673 of 1999 need be noticed. 3. The petitioner B.R. Sachdeva, was regularly selected and appointed on the post of Junior Assistant (LDC) w.e.f. November 30, 1978 in the Rajasthan State Tanneries Limited Tonk (for short RSTL). The State of Rajasthan issued an order in 1987 directing RSTL to issue guidelines for providing revised pay scale to its employees and the petitioner became entitled for the scale of 895-1720 in view of the said guidelines. In the year 1988 the State of Rajasthan took a decision to close down RSTL and the petitioner was sent on deputation to the Rajasthan State Bridge Construction Corporation Limited (for short RSBCC) vide order dated January 31, 1989. The petitioner got his application forwarded from RSTL to RSBCC vide communication dated January 20, 1989 for absorption in view of directions issued by the State of Rajasthan vide order dated July 19, 1988. The Financial Advisor cum Secretary of RSTL vide letter dated May 2, 1989 wrote to RSBCC to revise the pay scale of the petitioner and RSBCC on May 10, 1989 revised the pay scale of 500-860 of the petitioner to that of 895-1720 and fixed the pay at Rs. 1140/- with effect from September 1, 1986. The petitioner was permanently absorbed in RSBCC vide order dated January 1, 1993 w.e.f. February 1, 1993 as Junior Assistant. On completion of 9 years service the petitioner was provided the selection scale vide order dated January 27, 1998. Thereafter the State of Rajasthan issued an order on May 17, 1999 whereby the decision taken on April 15, 1989 to provide revised scale to the petitioner was withdrawn including all consequential orders issued subsequently and further direction was issued to refix the salary of the petitioner and to recover excess payment made to him. The petitioner has challenged the aforesaid order dated May 17, 1999 and other consequential orders in the instant writ petition. 4. The petitioner has challenged the aforesaid order dated May 17, 1999 and other consequential orders in the instant writ petition. 4. The respondent No. 1 State of Rajasthan submitted return to the writ petition and averred that it never directed RSTL to revise pay scales of the employees in 1987. As matter of fact the State of Rajasthan in 1987 merely issued guidelines and RSTL was not bound by them. The pay scales of the employees of the State Government did not become automatically applicable to the employees of RSTL but depended on the financial position, Memorandum of Association and Articles of Association of RSTL. The Board of Directors of RSTL having received the guidelines of the State of Rajasthan dated 7.4.87/21.7.87, considered the same and took decision on September 29, 1987 by agenda No.8, as under: "8. New Pay scales of the employees. The letter from B.PE. dated 21.7.87 was seen by the members of the Board. It was felt by the Board that it may be considered only when some rehabilitation programme of the company is finalised. It was also felt by the board that in view of the condition in the agreement between the union and the management dated 15-16 Jan. 1985 the Union should not have even raised the demand before expiry of the three years. The matter was deferred by the Board for the time being." 5. The respondent No. 1 further averred that the Board of Directors even in the subsequent meeting dated March 25, 1988 also deferred the matter. The respondent No. 1 denied that the order dated May 2. 1989 was issued by the Financial Advisor-cum-Secretary of RSTL in compliance of the Government order dated 7.4.87/21.7.87. The officer who had taken decision on May 15, 1989 was misled by the petitioner while making his application dated April 4, 1989. Thus on the basis of the wrong decision the petitioner got his basic pay revised as Rs. 1200/-. The respondent State further stated that 104 retrenched employees of RSTL by producing wrong and bogus claims on the basis of aforesaid order, got the ex-party directions from Payment of Wages Authority causing a big loss to the State Government. Thus on the basis of the wrong decision the petitioner got his basic pay revised as Rs. 1200/-. The respondent State further stated that 104 retrenched employees of RSTL by producing wrong and bogus claims on the basis of aforesaid order, got the ex-party directions from Payment of Wages Authority causing a big loss to the State Government. When this fact came to the knowledge the State Government withdrew the said illegal decision dated May 14, 1989 by the order dated May 17, 1999 and also directed for recovery of the excess amount paid. 6. The respondent No. 2, also filed return and also pleaded that the order dated May 17, 1999 was rightly passed by the respondent No. 1. Rejoinders to the replies and replies to the rejoinders have also been filed by the parties. 7. I have given my anxious consideration to the rival submissions and perused the material on record. 8. A combined look at the circular dated July 2, 1991 issued by the State Enterprises Department and the Circular dated March 10, 1992 of the Rajasthan Financial Corporation Demonstrates that para 9 of the Circular dated July 2, 1991 of the para 3 of the Circular dated March 10, 1992 are identical and read as under: "In cases where the surplus employees are not drawing pay in pay scale related to Index Point 608, their pay would be notionally arrived in the pay scale related to Index point 608 and then fixed in the pay scale of the absorbing organisation with reference to such notional pay." It thus appears that whether or not the pay of the absorbed employee was fixed in the revised pay scales with the erstwhile employer, his pay was required to be notionally arrived at with reference to the revised pay scale of 1986 (Index Point 608) and 1988 and his pay would be fixed in the organisation where he was absorbed. 9. 9. Para 5 of the Circular dated July 2, 1991 provides that "surplus employees on absorption shall be governed by the rules of the absorbing enterprises." It is thus abundantly clear that basic pay of the employee in RSTL was to be protected and even if his pay was not fixed in the said pay scale would have to be done by the absorbing organisation taking into consideration the pay notionally arrived at under the Revised Pay scale Rules of 1986 and 1988. It appears from the material on record that they pay of the employees of RSTL was notionally fixed in the revised pay scale of 1986 and 1988 but actual payment consequent to the fixation was not made during the period of employment in RSTL. The Last Pay Certificate appeared to have been issued to the employees under the orders of the Payment of Wages Authority. 10. A perusal of the order dated December 30, 1999 of the State of Rajasthan also goes to show that the State of Rajasthan was of the view that since RSTL was transferred to private sector on November 12, 1992, the State Government was not concerned with it and its employees were not the employees of the State Government. In last but one para of the said order it was stated that where fixation had been done by the Absorbing Department in accordance with the guidelines dated July 2, 1991, the State Enterprises Department had no reason to interfere. 11. Indisputably the impugned order dated May 17, 1999 and consequential orders were passed without providing opportunity of hearing to the petitioners. Refuting the arguments advanced on behalf of the petitioners that the impugned orders and other consequential orders were against the principles of natural justice, learned Additional Advocate General canvassed that where the orders were ab initio void and without jurisdiction, the principles of natural justice were not required to be followed. Reliance was placed on Kendriya Vidyalaya Sangthan v. Ajay Kumar Das (2002) 4 SCC 503 wherein their Lordships of the Supreme Court indicated that where the appointment orders are a nullity, the question of observance of principles of natural justice would not arise. 12. In the instant matters as already stated that the RSTL had been one of the Units of State of Enterprises Department of the State of Rajasthan, till its transfer in 1992 in the private sector. 12. In the instant matters as already stated that the RSTL had been one of the Units of State of Enterprises Department of the State of Rajasthan, till its transfer in 1992 in the private sector. The question of granting revised Pay Scales of 1986 and 1988 although was considered by the Board of Directors of RSTL yet could not be finalised, due to financial problem. Thereafter on April 15, 1989 the Managing Director RSTL allowed fixation benefits notionally to the petitioners who were at that time on deputation to other Public Sector Undertakings. As the Payment of Wages Authority issued directions to implement the said order and the petitioners on absorption were governed by the rules of the absorbing enterprise, I find no merit in the submissions of the learned counsel for the respondents that the order dated April 15, 1989 of the Managing Director of RSTL was without jurisdiction and ab initio void. To my mind the petitioners were entitled to revised Pay Scales of 1986 and 1988 and the State of Rajasthan could not have interfered with the orders of granting the said pay Scales which were implemented through the directions of the Payment of Wages Authority. The orders of granting revised Pay Scales to the petitioner cannot be termed as nullity and observance of principles of natural justice was a condition precedent before passing any order against the petitioners. The delay of six years in passing the impugned order dated May 17, 1999 has also not been explained by the respondents State of Rajasthan. The directions issued by the Payment of Wages Authority attained finality and that were never called in question by the State of Rajasthan. Thus the impugned order dated May 17, 1999 and all consequential orders are arbitrary and against the doctrine of Audi Alterm Partem. 13. For the foregoing reasons I allow the instant writ petitions and set aside the order dated May 17, 1999 of the Commissioner and Secretary to the Government, State Enterprises Department and all consequential orders. There shall be no orders as to costs.Writ Petitions Allowed. *******