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2004 DIGILAW 713 (JHR)

Jai Prakash Mahto v. Central Coal Fields Ltd.

2004-07-16

N.N.TIWARI

body2004
JUDGMENT N.N. Tiwari, J. 1. In this writ petition the prayer of the petitioner is for issuance of an appropriate direction to the respondents to regularize his service on the post of Munshi and to pay the difference in wages since 2.1.1995. 2. The claim of the petitioner is that he was appointed as piece rated loader in the respondents company on 13.2.1988 and subsequently by office order dated 23.8.1996 the petitioner was authorized to work as a Munshi, according to him, which he has already been doing with effect from 2.1.1995 as per the direction of the Project Officer. The further case of the petitioner is that he has been discharging duty of a Munshi, although he was given payment to the post of category 1 Mazdoor w.e.f. 20.10.1997. The further case of the petitioner is that all along the respondents addressed the petitioner as Munshi and in fact he has been discharging the duties of Munshi for which he is entitled to get higher pay scale of a Munshi. According to the petitioner, he possessed all the requisite qualification, which is required for the said post. The petitioner also claims that he has been discharging the duty of a Munshi for a long period and is entitled to be regularized on the post of Munshi and to get pay scale of Munshi and consequent difference of pay, which he claims with effect from 2.1.1995. 3. The respondents contested the claim of the petitioner by filing a counter affidavit and stating, inter alia, that the petitioner is a piece rated worker and he has exercised his option to work as category No. 1 General Mazdoor and to accept minimum wage payable to category No. 1 in the pay scale of Rs. 65.40-1, 08-80.52. According to the respondents, an employee can not be automatically regularized or placed on a higher post only on the claim of his working on the post and discharging equivalent duties unless and until the vacancy exists and the candidate fulfills the requisite eligibility criteria and selected in test. It is stated that Munshis in the respondents company are placed in clerical Grade II subject to their performing specific job and the petitioner is not discharging the duty of clerical grade II and he has not been posted against the post of Munshi either through promotion or by prescribed scheme. It is stated that Munshis in the respondents company are placed in clerical Grade II subject to their performing specific job and the petitioner is not discharging the duty of clerical grade II and he has not been posted against the post of Munshi either through promotion or by prescribed scheme. Respondents denied that the petitioner has been performing job of a Munshi equivalent to clerical Grade II and in the said premise respondents claimed that the petitioner is not entitled to relief as prayed for in this writ petition and the same is liable to be dismissed. 4. After hearing the parties and going through the records, I find that the respon-. dents have addressed the petitioner as Munshi and in office order issued by the Superintendent of Mines Kedia under ground project being Ref. No. OM/KUGP/ 96/317-20. dated 16.9.1996, whereby the petitioner has been authorised to continue as Munshi mentioning therein that he has been working as Munshi with effect from 2.1.1995. The said office order dated 16.9.1996 has been annexed as annexure-1 to the writ petition. Further in another order No. PO/KUGP/97/260-62. dated 9.7.1997 (Annexure-5) addressed to the petitioner in which warning was issued stating that most of tubs are under loaded due to his poor supervision which is serious matter which results into stock shortage and financial loss to the company and for that he has been warned to properly supervises the loading and that on failure disciplinary action under the company rule may be initiated against him. In subsequent office order No. SOM/KUGP/99734-36. dated 8.5.1999 some persons have been directed to work as shift incharge addressing them as Munshi. The name of the petitioner appears at serial No. 2 of the said order. The said orders have not been disputed by the respondents. Thus it is evident from the said orders issued by the respondents that the petitioner has been working as Munshi and discharging some type of supervisory duty. 5. Mrs. The name of the petitioner appears at serial No. 2 of the said order. The said orders have not been disputed by the respondents. Thus it is evident from the said orders issued by the respondents that the petitioner has been working as Munshi and discharging some type of supervisory duty. 5. Mrs. Rina S. Kumar learned counsel appearing on behalf of the petitioner has submitted that the said office orders go to sufficiently show that the petitioner has been discharging the duty of a Munshi which is a clerical grade II post and which carry higher pay scale than that of a category I, Mazdoor, According to the learned counsel, though the respondents are taking work of a Munshi from the petitioner yet they are not giving the pay scale which a Munshi Is entitled to get. According to the learned counsel, since the respondents are instrumentality of a Welfare State, every action on their part should be fair bona fide and reasonable but the respondents are discriminating against the petitioner and they have been unfairly treating him by paying less than what he is actually entitled to get. According to the learned counsel, since the petitioner has been working on that post for a petty long time, he is entitled to be regularized against that post with appropriate pay scale and he is also entitled to get difference of pay w.e.f. 2.1.1995. 6. Mrs. Sheela Prasad learned counsel appearing on behalf of the respondents on the other hand submitted that though in the office orders as contained in Annexures 2 and 3 the petitioner has been addressed as Munshi yet by mere nomenclature, a person is not entitled to be regularized on the said post and/or is not entitled to pay scale of that post. According to the learned counsel, for regularisation there are legal formalities to be observed. According to her regularization is subject to the availability of the vacancy and eligibility and selection of the candidate. According to her, the management has already formulated scheme for regularization and mode of selection which is called the Cadre Scheme for Ministerial Staff. The said scheme has been annexed as Annexure-D to the counter affidavit filed by the respondents. 7. Mrs. Prasad further submitted that it is not admitted that the petitioner has been discharging the duties of clerical Grade II. The said scheme has been annexed as Annexure-D to the counter affidavit filed by the respondents. 7. Mrs. Prasad further submitted that it is not admitted that the petitioner has been discharging the duties of clerical Grade II. And such disputed question of fact cannot be decided in writ jurisdiction of this Court. 8. Having heard the learned counsel for the parties and duly considered the records of the case I find that there are office orders issued by the respondents addressing the petitioner as Munshi. However, it is not clear from the office orders as to whether the pelitioner has been discharging the duty of clerical Grade II or clerical Grade III. The learned counsel for the petitioner also cannot convince this Court, from the materials on record, on the said point. However, from the records at least it is clear that the petitioner has been discharging some sort of supervisory duty and that admittedly he is not being paid on Lhe pay scale of a supervisor or clerical Grade II. In view of the said admitted position. the grievance of the petitioner requires consideration somewhere. However In view of the nature of the dispute it cannot be adjudicated upon by this Court in exercise of its writ jurisdiction, but the respondents can effectively redress the grievance of the petitioner, giving due consideration on his claim. 9. Accordingly the petitioner is directed to file a fresh representation with all necessary details and supporting documents before the General Manager through Project Officer Kedia Under Ground Project CCL Hazaribagh within one month from the date of the receipt of a copy of this order. On receipt of such representation the General Manager Kedia Under Ground Project shall fix a date of hearing with a due notice to the petitioner in writing and afford him sufficient opportunity of hearing. The General Manager, thereafter, will consider the representation as well the office orders already issued by the respondents earlier and other material on record and thereafter he shall pass a speaking order in accordance with law within one month thereafter. If the General Manager finds that the petitioners claim is genuine he shall ensure effective redressal of the petitioners grievance. The General Manager, thereafter, will consider the representation as well the office orders already issued by the respondents earlier and other material on record and thereafter he shall pass a speaking order in accordance with law within one month thereafter. If the General Manager finds that the petitioners claim is genuine he shall ensure effective redressal of the petitioners grievance. If the petitioner is found entitled to any monetary benefits on account of admissible pay scale or otherwise, the General Manager will ensure that the same is calculated and communicated to the petitioner and arrears if any Is paid within a period of three months from his order on the petitioners said representation. 10. The writ petition stands disposed of with the above directions.