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2003 DIGILAW 212 (RAJ)

Municipal Council v. Mangilal

2003-02-10

SUNIL KUMAR GARG

body2003
Honble GARG, J.–This writ petition under Articles 226 and 227 of the Constitution of India has been filed by the petitioner on 25.8.1992 against the respondents with the prayer that by an appropriate writ, order or direction, the judgment and award dated 30.8.1991 (Annex. 3) passed by the learned Judge, Labour Court, Udaipur (respondent No.2) by which he accepted the application filed by the respondent No.1 workman-Mangilal under Section 33-C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as ``the Act of 1947) against the present petitioner and ordered that the respondent No.1 workman be fixed in the identical pay scale of Conductor, which was given to the employees of the Rajasthan State Road Transport Corporation and further ordered that notional fixation of the respondent No.1 workman with effect from 5.4.1986 on the post of Jamadar made by the petitioner be re-fixed in the pay scale of Conductor etc. etc., be quashed and set aside. (2). It arises in the following circumstances :- The respondent No.1 workman was employed with the petitioner and the services of the respondent No.1 workman were terminated by the petitioner vide order dated 20.3.1970. Thereafter, a dispute was referred to the industrial Tribunal, Jaipur and the Industrial Tribunal, Jaipur passed judgment and award dated 5.4.1986 in favour of the respondent No.1 workman and against the present petitioner by which the termination order dated 20.3.1970 passed against the respondent No.1 workman was quashed and set aside and on the basis of compromise, the respondent No.1 workman was ordered to be reinstated in service with effect from 5.4.1986 on the post of Conductor and for back wages, the respondent No.1 workman was allowed Rs. 10,000/-. Thereafter, the respondent No.1 workman filed an application (Annex. 1) under Section 33-C(2) of the Act of 1947 before the respondent No.2 Labour Court, Udaipur on 10.5.1989 stating inter- alia that the directions given in the judgment and award dated 5.4.1986 passed by the Industrial Tribunal, Jaipur have not been complied with by the present petitioner and in place of Conductor, he was fixed in the salary of Jamadar and that was not according to the terms and directions contained in the judgment and award dated 5.4.1986 and, therefore, it was prayed that his notional fixation of pay on the post of Conductor be made in terms of the judgment and award dated 5.4.1986. A reply (Annex. A reply (Annex. 2) to the application Annex. 1 of the respondent No.1 workman was filed by the present petitioner before the respondent No.2 and it was averred by the petitioner that there was no pay scale of Conductor in the Department of the petitioner and the pay scale which was available and which was given to other Conductors, was given to the respondent No.1 workman and since City Buses were ordered to be closed with effect from 1971 and since then there was no post of Conductor and the Conductors were declared surplus and they were absorbed on the post of Jamadars, therefore, the pay scale of Jamadar was given to the respondent No.1 workman. Hence, the application filed by the respondent No.1 workman be dismissed. After hearing both the parties, the learned Labour Court (respondent No.2) through impugned judgment and award dated 30.8.1991 (Annexure 3) accepted the application of the respondent No.1 workman in the manner as indicated above. Aggrieved from the said judgment and award Annexure 3 dated 30.8.1991 passed by the learned Labour Court (respondent No.2), the petitioner has preferred this writ petition. (3). In this writ petition, the following submissions have been made by the learned counsel appearing for the petitioner:- (i) That the learned Labour Court has committed an error apparent on the face of the record in giving direction to fix the respondent No.1 workman in the identical pay scale of Conductor provided in the Rajasthan State Road Transport Corporation. The learned Labour Court has travelled beyond its authority and jurisdiction under Section 33-C(2) of the Act of 1947. Under the said provision, the learned Labour Court has a power only to make computation of amount as per its earlier award and the Tribunal could not have searched out the identical pay scale from other institution or establishment and then to make a direction for computation of pay. This part of the direction is wholly without jurisdiction. (ii) That since there was no post of Conductor in the Department of the petitioner and all other conductors were declared surplus and they were given the pay scale of Jamadar, therefore, in these circumstances, if the pay scale of Jamadar was given to the respondent No.1 workman, no breach of the judgment and award dated 5.4.1986 was committed by the present petitioner. (iii) That the learned Labour Court had no jurisdiction to pass order under Section 33-C(2) of the Act of 1947. (4). On the other hand, the learned counsel for the respondents supported the impugned judgment and award passed by the learned Labour Court, Udaipur. (5). I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents and gone through the materials available on record. Points No. (i) and (iii) (6). So far as the argument that the learned Labour Court (respondent No.2) had no power to give directions to fix the respondent No.1 workman in the identical pay scale of Conductor which was given to the employees of Rajasthan State Road Transport Corporation, is concerned, this argument appears to be appreciable one and deserves to be accepted on the ground that the learned Labour Court had no power to give such directions and it could only give direction that the pay scale of Conductor available in the Department of the petitioner be made available to the respondent No.1 workman. (7). Therefore, the directions given by the learned Labour Court in the impugned judgment and award (Annex. 3) to fix the respondent No.1 workman in the identical pay scale of Conductor which was given to the employees of Rajasthan State Road Transport Corporation, cannot be sustained and liable to be quashed and set aside. (8). In this respect, it may be stated here that refusal to pay wages as per the judgment and award constitutes alteration of service conditions and, therefore, application under Section 33-C is maintainable. From this point of view, the argument that the learned Labour Court had no jurisdiction to pass order under Section 33-C (2) of the Act of 1947, cannot be accepted. But, the directions given in the impugned judgment and award Annex. 3 to fix the respondent No.1 workman in the identical pay scale of Conductor which was given to the employees of RSRTC were beyond the powers of the learned Labour Court as such directions could not be passed under Section 33-C (2) of the Act of 1947. Point No. (ii) (9). 3 to fix the respondent No.1 workman in the identical pay scale of Conductor which was given to the employees of RSRTC were beyond the powers of the learned Labour Court as such directions could not be passed under Section 33-C (2) of the Act of 1947. Point No. (ii) (9). So far as the argument that the post of the Conductor was not there and the conductors were declared surplus and were absorbed in the category of Jamadar, is concerned, it would not affect the case of the respondent No.1 workman as in the judgment and award dated 5.4.1986 there was clear direction that the respondent No.1 workman be reinstated on the post of Conductor with effect from 5.4.1986 with all consequential benefits and that is why, in the impugned judgment and award dated 30.8.1991 (Annex. 1), there was clear direction that the respondent No.1 workman should not have been fixed in the pay scale of Jamadar, but should have been fixed in the pay scale of Conductor. The fact that the post of Conductor was not available in the Department of the petitioner would not deprive the respondent No.1 workman from getting the pay scale of Conductor. Awarding of pay scale of Jamadar in place of Conductor would be in conflict with the direction given in the judgment and award dated 5.4.1986 and there is no dispute on the point that the pay scale of conductor is higher than the pay scale of Jamadar. (10). Therefore, that part of the impugned judgment and award (Annex. 3) dated 30.8.1991 directing that notional fixation of respondent No.1 workman with effect from 5.4.1986 on the post of Conductor be made does not suffer from any basic infirmity and illegality and thus, does not require interference by this Court nor it can be said that it was beyond the power and jurisdiction of the respondent No.2 learned Labour Court and the learned Labour Court has power to give such directions under Section 33- C(2) of the Act of 1947. For the reasons stated above, this writ petition is partly allowed in the manner. (i) That the directions given by the learned Labour Court through impugned judgment and award dated 30.8.1991 (Annex. For the reasons stated above, this writ petition is partly allowed in the manner. (i) That the directions given by the learned Labour Court through impugned judgment and award dated 30.8.1991 (Annex. 3) to fix the respondent No.1 workman in the identical pay scale of Conductor which was given to the employees of Rajasthan State Road Transport Corporation, are quashed and set aside and to that extent, the impugned judgment and award Annex. 3 stand modified. (ii) That however, that part of the impugned judgment and award (Annex. 3) dated 30.8.1991 directing that notional fixation of respondent No.1 workman with effect from 5.4.1986 on the post of Conductor be made, is maintained. (iii) That it is made clear that the respondent No.1 workman would be given the pay scale of Conductor with effect from 5.4.1986 available in the Department of the petitioner in place of pay scale of Jamadar. No order as to costs.