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Himachal Pradesh High Court · body

2012 DIGILAW 158 (HP)

J. P. Thakur v. State Of H. P.

2012-04-03

RAJIV SHARMA

body2012
JUDGMENT : Rajiv Sharma, J.—Since common questions of law and facts are involved in all these petitions, the same were taken up together for hearing and are being disposed of by a common judgment. However, in order to maintain clarity, facts of each petition have been dealt with separately. CWP No. 342/2008-B Petitioners were serving with the Central Cooperative Consumers Store, Shimla registered under the Cooperative Societies Act. Respondent No. 4 requested respondent No. 3 to take up the services of petitioners for procurement and distribution of control articles vide letter dated 10.6.1994. Thereafter, respondent No. 3, agreed vide letter dated 18.6.1994 to utilize 12 shops only for management purpose alongwith 18 workers (10 salesmen and 8 helpers). Condition No. 4 of letter dated 18.6.1994 reads thus: 4. The workers employed in the running of these 12 shops will remain on your roll and Himfed will make payment of their salaries through you at the present pay scale being drawn by each worker. 2. Petitioners preferred petition u/s 72 of the Himachal Pradesh Cooperative Societies Act, 1968 (hereinafter referred to as 'Act' for brevity sake) before respondent No. 2. Respondent No. 2 assigned the matter for adjudication to the Deputy Registrar (Administration), Cooperative Societies. He vide office order 26.7.2003 held that there was no clause in the letter by virtue of which the financial benefits to the petitioners could be frozen. In other words, he has held that the petitioners were entitled to revised pay-scale without arrears of revised pay scales. Respondent No. 3 preferred an appeal before the Additional Secretary Cooperation against the order dated 26.7.2003. He has allowed the payment of arrears and allowances to the petitioners in their existing running pay scale from 25.9.1998. The plea of respondent No. 3 that the arrears of pay be restricted to three years was rejected vide order dated 3.12.2005. Respondent No. 3 challenged order dated 3.12.2005 in this Court by way of CWP No. 272/2006. The same was decided on 21.6.2007 and the matter was remanded back to the Additional Secretary (Cooperation) for adjudication. Joint Secretary (Cooperation) decided the appeal on 3.12.2007. He held that the emoluments of pay which were admissible to the petitioners under the then pay scales could not be withheld. According to him, dearness allowance and other consequential benefits which the petitioners were already getting on the date of agreement would continue to be paid. Joint Secretary (Cooperation) decided the appeal on 3.12.2007. He held that the emoluments of pay which were admissible to the petitioners under the then pay scales could not be withheld. According to him, dearness allowance and other consequential benefits which the petitioners were already getting on the date of agreement would continue to be paid. However, according to him, they were not liable to pay future dearness allowance etc. at par with the employees of the federation. The prayer of the petitioners to get revised pay scale was rejected. In these circumstances, order passed by the Deputy Registrar (Administration), Cooperative Societies was modified. According to the petitioners they are entitled to regular pay scale at par with the employees of respondent No. 3-federation with arrears of consequential benefits like arrears of dearness allowance and other benefits etc. 3. Stand of the respondent-federation is that there was no master - servant relationship between the petitioners and the federation. It is further averred that the petitioners are only entitled to the existing pay scale as per agreement dated 18.6.1994. CWP No. 1001/2008 4. By medium of this petition, the petitioner-federation has also challenged order dated 3.12.2007 passed by the joint Secretary (Cooperation). According to the averments contained in the petition, the workmen were only entitled to the rates as per agreement dated 18.6.1994: According to the petitioner-federation, the workmen are not entitled to annual increments. 5. Respondent-State has filed the reply to the same alongwith respondent No. 7. Petitioner-federation has specifically assailed Annexure A-1 dated 26.7.2003 and Annexure A-2 dated 3.12.2007. Case of the respondents-workmen (hereinafter referred to as 'workmen' for convenience sake) is that they are entitled to regular pay scales at par with the employees of HIMFED revised from time to time with all the consequential benefits. CWP No. 5030/2010 6. Petitioner has assailed the award dated 15.6.2010 passed by the Industrial Tribunal-cum-Labour Court in reference No. 32 of 2001. The employees' union had raised the industrial dispute. The matter was referred to Industrial Tribunal-cum-Labour Court. The Industrial Tribunal-cum-Labour Court has answered the reference on 15.6.2010 by holding that the members of the union were entitled to new pay scale with effect from 1.10.1999 at par with the employees of the petitioner-federation alongwith all admissible benefits. 7. Mr. The employees' union had raised the industrial dispute. The matter was referred to Industrial Tribunal-cum-Labour Court. The Industrial Tribunal-cum-Labour Court has answered the reference on 15.6.2010 by holding that the members of the union were entitled to new pay scale with effect from 1.10.1999 at par with the employees of the petitioner-federation alongwith all admissible benefits. 7. Mr. J.L. Bhardwaj has strenuously argued that his clients are entitled to get the regular pay scale at par with the permanent employees of the HIMFED on the principle of 'equal pay for equal work' and also on the basis of letter dated 18.6.1994. He has supported the orders passed by the Deputy Registrar (Administration) dated 26.7.2003. According to him, order dated 3.12.2007 passed by the Joint Secretary whereby the revised pay scales have been denied to his clients is bad in law. He also argued that this Court had directed the Additional Registrar and not the Joint Secretary (Cooperation) to decide the appeal 8. Mr. K.D. Sood, learned Senior Advocate has vehemently argued that order dated 3.12.2007 is in contravention of letter dated 18.6.1994. According to him, the Joint Secretary (Cooperation) has erred in law by coming to a conclusion that the workmen were entitled to the increments and other benefits on the basis of letter dated 18.6.1994. 9. Mrs. Ranjana Parmar h(sic)vehemently argued that the Labour Court has misread and misconstrued the evidence. According to her, the terms and conditions of the workmen are to be governed strictly as per letter dated 18.6.1994. She also argued that there was no master-servant relationship between the workmen and federation. She also argued that the workmen are only entitled to the benefits, which were available to them on 18.6.1994. She further argued that tile learned Industrial Tribunal-cum-Labour Court has wrongly relied upon the proceedings of meeting held on 28.9.1999. According to her, the Managing Director of the federation has already conveyed to the Registrar, Cooperative Societies that the pay scale being paid to the regular employees of the federation could not be paid to the workmen. 10. I have heard the learned Counsel for the parties and have perused the pleadings carefully. 11. The terms and conditions of the workmen are to be regulated by letter dated 18.6.1994. 10. I have heard the learned Counsel for the parties and have perused the pleadings carefully. 11. The terms and conditions of the workmen are to be regulated by letter dated 18.6.1994. What has been written in clause 4 of letter dated 18.6.1994 is that the workers employed in the running of 12 shops will remain on the roll of Central Cooperative Consumers States Limited (sic stores) (Super Bazar) and the HIMFED will make payment of their salaries through the Administrator Liquidator at the present pay scale being drawn by each worker. 12. It is evident that the HIMFED has only agreed to pay the salary to the workmen of their present pay scale as on 18.6.1994. It cannot be read in condition No. 4 that the HIMFED has ever agreed to pay the workmen revised pay scales which were to be paid to its regularly appointed employees. The terms and conditions are to be read as they are. Joint Secretary (Cooperation) has correctly interpreted clause 4 of the letter dated 18.6.1994 by coming to a conclusion that the workmen were only entitled to annual increments and other consequential benefits, which were available to them on this date. His findings that the workmen were not entitled to regular pay scale at par with the employees of federation are justifiable. 13. There is no merit in the contention of Mr. J.L. Bhardwaj that the Joint Secretary (Cooperation) could not pass order on 3.12.2007 since according to him, the Court had directed the Additional Secretary (Cooperation) to decide the same. It has come in the reply that the Joint Secretary (Cooperation) has also been vested with the powers of appellate authority u/s 93 of the Act and since the Additional Secretary (Cooperation) was not at place, the appeal could be heard by the Joint Secretary (Cooperation). 14. The Joint Secretary (Cooperation) in his order dated 3.12.2007 has held the workmen, as noticed above, entitled to annual increments. However, he has denied the D.A and A.D.A. etc. to the workmen at par with the regular employees of the federation. It is made clear by way of abundant precaution that the workmen will get the benefits, which were payable to the workmen on 18.6.1994. Rather, Mrs. Ranjana Parmar has undertaken at the Bar that the monetary benefits to which the workmen were entitled on 18.6.1994 will be paid to them. It is made clear by way of abundant precaution that the workmen will get the benefits, which were payable to the workmen on 18.6.1994. Rather, Mrs. Ranjana Parmar has undertaken at the Bar that the monetary benefits to which the workmen were entitled on 18.6.1994 will be paid to them. She has also stated that the workmen have also been paid Rs. 1,000/-due to rise in price index. There is merit in the contention of Mrs. Ranjana Parmar and Mr. K.D. Sood, Sr. Advocate that there was no master-servant relationship between the workmen and federation. The federation has merely agreed to help the workmen after the winding up proceedings were initiated. The Liquidator, legally speaking, could not order the federation to engage the workmen after the financial crises in the Central Cooperative Consumers Stores Limited (Super Bazar), Shimla. The Workmen were being paid what was agreed as per letter dated 18.6.1994. There is neither any illegality or perversity or procedural impropriety in order dated 3.12.2007. The same is upheld. 15. Now, the Court will advert to the challenge laid to award dated 15.6.2010. The workmen had raised the industrial dispute, which led to reference to the Industrial Tribunal-cum-Labour Court. The precise reference which has been made to the Industrial Tribunal-cum-Labour Court (sic) that whether the workmen were entitled for grant of pay scales, annual increment, additional dearness allowances, interim relief and other regular allowances admissible to them on the basis of revision of pay scale with effect from 1.1.1996. The learned Industrial Tribunal-cum-Labour Court has taken into consideration the statement of PW-1 Deep Ram. According to him, their counter-parts working in the federation were getting regular pay scale. PW-2 Sanjeev Sharma has deposed that the salesmen appointed on the regular roll of federation were getting salary of Rs. 9,673/- and Rs. 7,899 and the workmen were getting only 2,424/-, Rs. 3,183/- and Rs. 2,604/-. PW-3 Mehar Chand has testified that he was working as Sales Supervisor in the Super Bazar since 7.6.1966 to 28.4.1994 and used to get the salary on the State Government pattern. RW-1 Ramesh Bhaik has admitted in his cross-examination that the workmen were not getting the revised pay scale alongwith increments and other benefits. According to him, the fair price shops, which were earlier functioning under Super Bazar were now functioning under the control of HIMFED. RW-1 Ramesh Bhaik has admitted in his cross-examination that the workmen were not getting the revised pay scale alongwith increments and other benefits. According to him, the fair price shops, which were earlier functioning under Super Bazar were now functioning under the control of HIMFED. The learned Industrial Tribunal-cum-Labour Court has misconstrued the letter dated 18.6.1994. It has already been noticed hereinabove that what was agreed by the HIMFED to be paid to the workmen was the existing pay scale drawn by them. The learned Industrial Tribunal-cum-Labour Court has read something in condition No. 4, which was not there. It was never agreed by the HIMFED that the workmen would get revised pay scale at par with the employees of the federation. The learned Industrial Tribunal could not apply the principle of 'equal pay for equal work' in view of specific terms and conditions used in letter dated 18.6.1994. The workmen have never become the employees of the federation. Even as per clause 4, they had to remain the employees of the Central Cooperative Consumers Store, Shimla. The learned Industrial Tribunal has further erred in law by relying upon the deliberations which had taken place on 28.9.1999. As far as proceedings dated 28.9.1999 are concerned, the Additional Secretary (Cooperation) wrote a letter to the Managing Director on 29.1.2000 to inform him about the follow up action which was taken pursuant to the meeting held on 28.9.1999. The Managing Director of the federation apprised the competent authority on 15.2.2000 that it was running into losses and it could not accede to the demands of the employees of the Super Bazar. He also informed that the proceedings were also placed before the Board of Directors/Management of the federation wherein it was decided that in view of continuous losses being sustained by the federation, the business of Super Bazar be transferred to Kailash District Federation. This information was supplied by the Managing Director of the federation on 15.2.2000 vide Annexure R-3 to Additional Registrar (Mont.), Cooperative Societies, Himachal Pradesh. Thereafter, the matter was reported by the Registrar Cooperative Societies to the State Government on 23.2.2000. Thus, the fact of the matter is that no final decision was taken on the basis of proceedings dated 28.9.1999. The learned Labour Court has erred in law by giving undue weightage to the proceedings dated 28.9.1999 while allowing the claim of the workmen. Thereafter, the matter was reported by the Registrar Cooperative Societies to the State Government on 23.2.2000. Thus, the fact of the matter is that no final decision was taken on the basis of proceedings dated 28.9.1999. The learned Labour Court has erred in law by giving undue weightage to the proceedings dated 28.9.1999 while allowing the claim of the workmen. Thus, the Learned Labour Court has erred in law and has also not correctly appreciated the oral as well as documentary evidence; the award is liable to be set aside. Accordingly, in view of the observations and analysis made hereinabove, writ petitions bearing CWP No. 342/2008 and CWP No. 1001/2008 are dismissed. Writ petition rearing CWP No. 5030/2010 is allowed. Award dated 15.6.2010 is set aside. However, before parting with the judgment, it is made clear that the workmen will be entitled to all the monetary benefits, which were being paid to them on 18.6.1994, including increments and other emoluments. Pending applications, if any, also stands disposed of. There shall, however, be no order as to costs.