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Madhya Pradesh High Court · body

2013 DIGILAW 1023 (MP)

Gyan Chand Jain v. M. P. Electricity Board

2013-08-29

K.K.TRIVEDI

body2013
JUDGMENT K.K. Trivedi, J.:- By this petition under Article 226 of the Constitution of India, the petitioner, an ex-employee of the M.P. State Electricity Board (hereinafter referred to as the MPEB for brevity) has claimed the benefit of up-gradation in pay, from the due date on completion of the requisite years of service, consequential benefit of revision of pay and payment of arrears of salary along with the interest. The petition was filed when the petitioner was in service, aggrieved by an order by which the petitioner was granted the benefit of up-gradation in the pay scale with effect from 1-4-1997. The facts giving rise to this petition are that the MPEB formulated a policy for the purposes of giving benefit of higher pay scale to its employees, on completion of 9/18/25 years of service. Circulars were issued in this respect on 6-5-1982 and 31-3-1983. However, in continuation of the said circular subsequently a circular dated 3-10-1985 was issued categorically prescribing that those who have not been given any promotion for no fault on their part because of non-availability of the clear vacancy on the promotional post and those who were stagnating in one pay scale for a complete period of 9 years of service, would be put in the next higher pay scale subject to condition that they are found fit for grant of the said benefit. Similar were the conditions for those employees who have completed 18 and 25 years of service without any promotion. It was prescribed in the said circular that options were to be given within three months from the date of order aforesaid by all such employees opting for a date from which they were claiming benefit of higher pay scale. The manner of consideration was also prescribed in the said Scheme. 2. It is the case of the petitioner that he was appointed as Technical Apprentice on 17-3-1976, and on completion of the said training subsequently appointed as Sub Engineer, which post was later on designated as junior Engineer. In terms of the appointment, the period of technical apprenticeship was to be counted in service. According to the petitioner, he has completed 9 years of service on 17-3-1987 and thus, became entitled to grant of benefit of next higher grade pay scale. In terms of the appointment, the period of technical apprenticeship was to be counted in service. According to the petitioner, he has completed 9 years of service on 17-3-1987 and thus, became entitled to grant of benefit of next higher grade pay scale. In terms of the circular though it is alleged by the petitioner that he made an application on 17-3-1987, but ho record is produced. At the relevant time, the petitioner was working in Co-operative Society, which was constituted for the purposes of working in the rural areas discharging functions of the MPEB. The employees and officers of MPEB were sent on deputation to work in the said Society. Since the petitioner was on deputation, his option letter was forwarded, improperly not to the concerning authority of the respondent-MPEB, but to the Chief Engineer. This option was never acted upon and case of the petitioner was never considered. However, he was not granted any benefit of the next higher pay scale and the fact was brought to the notice of the authorities. Later on, such documents were sent for consideration, but the same were not considered. On the other hand, an order was issued on 6-3-1998 giving benefit of higher pay scale to the petitioner with effect from 1-4-1997. The petitioner submitted the representation and contended that the documents were already sent by the concerning authorities where the petitioner was working, therefore, instead of granting the benefit of higher pay scale from the date opted for, grant of such higher pay scale to the petitioner from a subsequent date is not justified and proper. However, again nothing was communicated to the petitioner, no decision was taken on such a representation though correspondence was done in this respect and, ultimately, the petitioner was constrained to file the present petition. On the basis of these allegations, the petitioner has claimed the reliefs indicated hereinabove. 3. On service of the notice of the writ petition, the respondents have filed their return refuting the allegations made by the petitioner. It is very categorically contended by the respondents that by the order dated 6-3-1998 the benefit of higher pay scale was granted to the petitioner and if the petitioner was not satisfied with the said order, he ought to have rushed to this Court at his earliest. It is very categorically contended by the respondents that by the order dated 6-3-1998 the benefit of higher pay scale was granted to the petitioner and if the petitioner was not satisfied with the said order, he ought to have rushed to this Court at his earliest. However, the writ petition was filed only in the year 2000, and therefore, in such a belated claim the reliefs cannot be granted to the petitioner. It is further contended that the case of the petitioner was considered along with those who have not opted for grant of higher pay scale from any date, but on overall consideration, the Committee which was convened its meeting on 10-10-1991, did not find the petitioner fit for grant of such benefit. The petitioner was not fulfilling the criteria laid down by the said Committee and as such, the petitioner was not selected for grant of the said benefit. Again in the year 1993, when the Committee meeting was held on 28-7-1993, the candidature of the petitioner was considered, but he was again not found fit. This being so, there was no occasion for the respondents to consider the case of the petitioner with retrospective effect as he was not found fit and such orders were never called in question. It is further contended that the submission of the option was to be made strictly in accordance to the Scheme. Even if the petitioner was working on deputation, he was required to send the appropriate application to the appropriate authority, which the petitioner has failed to do, as no document is placed on record to indicate that at any point of time such an option was given by the petitioner within the stipulated period. Thus, it is contended that the petition is hopelessly delayed as also based on totally misconceived facts and as such, deserves to be dismissed. 4. By filing rejoinder, the petitioner has tried to explain that his claim was not properly adjudicated or considered by the authorities. If his application was not properly received in the office of the respondents though made in appropriate manner, it cannot be a folly on the part of the petitioner. Further, it is contended that the application submitted by the petitioner, received in the office of respondents, has not been annexed with the return to demonstrate that the application was not rightly made by the petitioner. Further, it is contended that the application submitted by the petitioner, received in the office of respondents, has not been annexed with the return to demonstrate that the application was not rightly made by the petitioner. It is tried to emphasize that had the option been properly examined, the claim of the petitioner considered in appropriate manner, the petitioner would not have been denied the benefit of higher pay scale from the appropriate date for which the option was submitted by him. Thus, it is contended that rejecting the stand taken by the respondents, the petitioner would be entitled to the reliefs claimed in the petition. 5. Heard learned Senior counsel for the parties at length and perused the record. 6. Trite it is, that one who claims, is required to prove the same by producing the evidence on record. In a writ petition, the disputed facts relating to making of any particular application for giving option, in absence of any documentary evidence cannot be adjudicated as it would not be possible for the Court to record the evidence. Such disputed facts are always required to be raised in appropriate forum where the evidence could be recorded. This has not been done by the petitioner at the relevant time. The fact remains that if the option of the petitioner was not acted upon, orders were not issued giving him benefit of the higher pay scale, cause of action was available to the petitioner to approach the Labour Court against such inaction on the part of the respondents, but nothing was done by him at that time. It is further to be seen that application was said to be submitted by the petitioner on 17-3-1988, which according to the Scheme was not within time. The order dated 3-10-1985, by which the policy was circulated, contains the specific conditions that the employee will be eligible for exercising option to the next higher scale from the date following the date on which he completed 9/18 years of service in the existing cadre. The order dated 3-10-1985, by which the policy was circulated, contains the specific conditions that the employee will be eligible for exercising option to the next higher scale from the date following the date on which he completed 9/18 years of service in the existing cadre. The other aspect which was categorically emphasized that the exercise of option for higher pay scale shall be permitted only once during the period of service and the employee will have the liberty to select the date from which he would like to avail of this benefit, it was further categorically provided in paragraph 3 of this order that option was to be filled in within three months from the date of issue of the order. Since the order itself was issued on 3-10-1985 three months would complete in the month of January, 1986. Admittedly, till that time option was not submitted by the petitioner as upon his own showing, he made the application only on 17-3-1988 as has been placed on record. It is nowhere indicated as to why the petitioner has not made the application prior to 17-3-1988. Even if he was on deputation and, if he was not aware of the order passed by the respondents, he could have explained these facts in his application which he did not. The condition stipulated in the order indicates that if the option aforesaid is not exercised within the stipulated period, any further option would be from a prospective date only. This being so, unless there is a proof produced to show that any option was rightly given by the petitioner within time, it will not be possible for this Court to accept such a contention of the petitioner. Again even if the date mentioned by the petitioner in his document Annx. P/2 is accepted, the option itself was barred by limitation as it was not furnished within a period of three months from the date of issue of order dated 3-10-1985, therefore, if such an option is not acted upon by the respondents, it cannot be said that the illegality was committed by the respondents. In feet, the petitioner was harping on the premises that he was required to give option within three months from the date he completed the requisite years of service for grant of the benefit of higher pay scale, whereas, it is not prescribed in the Scheme. In feet, the petitioner was harping on the premises that he was required to give option within three months from the date he completed the requisite years of service for grant of the benefit of higher pay scale, whereas, it is not prescribed in the Scheme. A logical meaning is to be inferred as to how and why such a condition was mentioned for giving option. There are provisions made in the Scheme by the respondents that strictly in order of seniority such claim would not be considered. On the other hand, the claim would be considered on the basis of option so made by the employees concerned. It is very categorically provided that in case a senior employee fails to give the option and junior employee gave the option and got the benefit, the senior will not be entitled to claim similar benefit. He will have to make an option in appropriate manner within the time and in case of failure, has to suffer the consequence of not getting the higher pay scale from a date earlier the date of grant of such benefit to junior employee. This makes it clear that intention of the respondent-employer was to grant the benefit of higher pay scale strictly in order of option. Safeguard was given to those who have not given the option, by prescribing that irrespective of the fact that they have not given the option in due course, then-claim would be considered. Therefore, it has to be held that failure on the part of the petitioner in proving the fact that he has given the option within three months from the date of making the Scheme, is enough to deny the benefit of higher pay scale to the petitioner, from the date as mentioned by him in application dated 17-3-1988. 7. Apart from the aforesaid, it has to be seen that there were persons who were given the benefit of higher pay scale and the order in their respect were issued. As has been contended by the respondents, they considered the case of the petitioner in the meeting held on 10-10-1991 found that looking to the Annual Confidential Reports grading of the petitioner, he was not entitled to grant of such a benefit. Many others were given the benefit from the due dates. Naturally the orders were issued in that respect. As has been contended by the respondents, they considered the case of the petitioner in the meeting held on 10-10-1991 found that looking to the Annual Confidential Reports grading of the petitioner, he was not entitled to grant of such a benefit. Many others were given the benefit from the due dates. Naturally the orders were issued in that respect. If that was the situation, at least at that time, the petitioner should have raised the grievance before the authorities in respect of not granting him the benefit of higher pay scale, whereas, the same was extended to many persons and there is every possibility that some of them were junior to the petitioner. However, not only the grievance was not raised before the respondents authorities, no attempt was made by the petitioner to approach the Courts of law. From such an act of the petitioner, it is clear that he was not interested in prosecuting the claim in appropriate manner. Again in the year 1993, when the meeting was held on 28-7-1993, the claim of the petitioner was considered, again he was not found fit for grant of benefit and that being so, it was necessary on the part of the petitioner to agitate the matter in that respect. On 27-12-1993, claims were considered by the respondents, again the petitioner was not found fit for grant of this benefit and many juniors to him were given the said benefit. These orders of the respondents in fact gave cause of action to the petitioner to approach the Courts of law in the matter of grant of higher pay scale, but he did not avail of such opportunities. On the other hand, when the petitioner was granted the benefit of higher pay scale with effect from 1-4-1997 vide order dated 6-3-1998 for the first time, a representation, was made by him on 29-9-1998, as placed on record as Annx. P/8. Nothing has been stated by the petitioner as to why he has not sought any relief with respect to the claim made for grant of higher pay scale, specifically against such an action of the respondents within time. True it is that certain correspondence was going on, some documents were prepared, but nothing is placed on record by the petitioner to indicate that case of the petitioner was considered with respect to grant of benefit with effect from the year 1987. True it is that certain correspondence was going on, some documents were prepared, but nothing is placed on record by the petitioner to indicate that case of the petitioner was considered with respect to grant of benefit with effect from the year 1987. The application submitted by the petitioner were again forwarded by the Co-operative Society where the petitioner was working on deputation on earlier occasion. However, this would not give any benefit to the petitioner. As all such documents placed by the petitioner on record indicate that some option was submitted by him in the year 1988, but that too not within time. As has been pointed out, option was to be given within the period of three months from the date of making of the Scheme and if no option was given within that time, any option submitted was to be treated as an option from the future date, making it prospective and not with retrospective effect. 8. In view of the discussions made hereinabove, this Court finds that the petitioner has completely failed to prove that he submitted option within time indicating the date from which he was seeking placement in the higher pay scale. It is to be held that the petitioner was negligent in prosecuting his remedies if at all he was having any grievances with respect to non-consideration of his claim for grant of higher pay scale within time. 9. The petition fails and is, hereby, dismissed. However, there shall be no order as to costs. Petition dismissed.