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2016 DIGILAW 198 (GUJ)

Gujarat Rajya Ardha Sarkari Audhyogik Karmachari Sangh v. Chief Administrative Officer

2016-01-28

K.M.THAKER

body2016
JUDGMENT : K.M. Thaker, J. 1. Heard learned advocates for the petitioner and the respondents. 2. The petitioner has prayed, inter alia, that: "15(A) This Hon'ble Court be pleased to issue an order, writ in the nature of mandamus and/or or certiorari or any other writ order or direction, declaring the impugned decision of respondents to reduce the wages and status of the employees at Annex.A to the petition, as arbitrary, illegal, unjust and violative of Sec. 9(A) of I.D. Act and also violative of Art. 14 & 16 of the Constitution of India and be pleased to quash and set aside the same and direct the respondents to restore the position of petitioner employees at Annex.A as if the impugned orders were not issued and further direct to grant all consequential benefits to the petitioner with 18% interest. (B) Be pleased to direct the respondents to extend the benefits of modified circular dt. 17.10.1988, to the petitioners, in light of the judgment of the Division Bench of this Hon. Court in Ashok Mehta's case and direct the respondents to pay the arrears of amount to the petitioner employees at Annex.A with 18% interest." 3. From the relief prayed for by the petitioner, it comes out that the petitioner felt aggrieved by the action of the respondent of rectifying the pay scale attached to the post held by the petitioner which would result into reduction of salary payable to the petitioner and may also entail recovery. 4. It appears that the petitioner also claimed that the respondent had granted pay scale of Rs. 950-1500 vide order dated 7.6.1999, however, subsequently the respondent informed the petitioner that the pay scale attached to the post held by the petitioner would be Rs. 750-940 and not Rs. 950-1500. In this background, the petitioner has prayed for above-quoted relief. 5. The respondents have opposed the petition by filing reply affidavit. 6. In the reply affidavit, various objections with regard to maintainability of the petition are raised. It is claimed that the petitioner has invoked provisions under the Industrial Disputes Act, 1947, more particularly section 9A of the Act and claimed that any action could not have been issued without notice of change as contemplated under section 9A and that, therefore, the petition should not be entertained and the petitioner should be relegated to the learned Labour Court for adjudication of the dispute. 7. 7. It is also claimed that the petitioner being a daily wager and class IV employee, he would be entitled for pay of Rs. 750/- and according to the government resolution dated 17.10.1988 he would be entitled for fixed pay of Rs. 750/- plus dearness allowance. 8. In the reply affidavit, the respondents have further claimed that: "7. I say that the petitioner is S.S.C. Pass. Initially, the petitioner was engaged on 1.1.1989 as Office Boy on daily wage basis for miscellaneous work due to exigency of work and he worked upto September, 1989. Thereafter, since there was no regular work in the Office of the Executive Engineer, from October, 1989, he was engaged on part-time basis and he was being paid his wages on hourly basis and he continued as such upto November, 1991. I respectfully submit that from March, 1991 to December, 1991 the petitioner was not working with the respondent i.e. for a period of 10 months. During this period the petitioner was not in the employment of the respondent Board. 8. I further state that from January 1992 the petitioner was again engaged as Office Boy for miscellaneous work in the Office of the Public Health Works Division at Jamnagar as daily wager on purely temporary ad hoc basis. I state that in the months of January and February 1992 the petitioner had worked as Office Boy for 41 days only. Thereafter, again from March 1992 to June 1992, i.e. for a period of 4 months, the petitioner was not in the employment of the respondent Board. After a period of 4 months, again in the month of July 1992, the petitioner was given work of Watchman and he worked as Watchman till September, 1992 and from September, 1992 the petitioner continued in service as Watchman in view of the interim order passed by this Hon'ble Court in Special Civil Application No. 6918/92. I respectfully submit that the petitioner was engaged and continued in service only on humanitarian ground and only with a view to see that the petitioner may make his livelihood. 9. I say that on 31.12.1995, the petitioner had completed 5 years continuous service as unskilled labour (Watchman) and considering his 5 years continuous service, the petitioner was placed in the fixed pay of Rs. 750/- w.e.f. 1.1.1996 under the Government Resolution dated 17.10.1988. 10. 9. I say that on 31.12.1995, the petitioner had completed 5 years continuous service as unskilled labour (Watchman) and considering his 5 years continuous service, the petitioner was placed in the fixed pay of Rs. 750/- w.e.f. 1.1.1996 under the Government Resolution dated 17.10.1988. 10. At this stage, it is relevant to point out that the Road and Building Department by its Resolution dated 1.5.1991 decided that the daily wager who had passed S.S.C. Examination and completed 7 years continuous service should be assigned Class III clerical work. Since this resolution was not applicable to the daily wagers of the respondent Board, the respondent Board by its Circular dated 29.8.1991 informed all the concerned Authorities of the Board that the said Resolution is applicable only to the daily wager working in the Road and Building Department and does not apply to the daily wagers of the Board. This pay scale was granted subject to the conditions set out in the said order. Under the circumstances, though, the petitioner was not entitled for the pay scale of Rs. 950-1500, (revised pay scale Rs. 3050-4950) however, the Office of the Board through inadvertent mistake, granted the pay scale of Rs. 950/- in the clerical cadre. 11. I say that the petitioner was engaged by a Watchman and he has never been promoted to the higher post of Clerk and he remained as Class IV employee and therefore, he is entitled for the pay of Class IV employee only. It is relevant to point out that the respondent Board is having its Recruitment Rules for the post of Clerk and all regular appointments/promotions are being made strictly in accordance with the said Regulations." 9. The petitioner has controverted the said reply by filing rejoinder. The petitioner claimed that after considering his representation and looking to the nature of work of the petitioner, he was treated and designated as skilled employee and the pay of Rs. 950-1500 was granted. However, the respondent unilaterally decided to cancel the order by which the pay scale of Rs. 950-1500 was granted and decided to place the petitioner in pay scale of Rs. 750-940. 10. 950-1500 was granted. However, the respondent unilaterally decided to cancel the order by which the pay scale of Rs. 950-1500 was granted and decided to place the petitioner in pay scale of Rs. 750-940. 10. Having regard to above facts and the reply by the respondent, it appears that at this stage, the petition can be disposed of by permitting the petitioner to submit detailed application/representation narrating the factual background which is mentioned in present petition along with the relevant documents and such application/representation may be considered on merits by the competent authority of the respondent and thereafter fresh decision may be taken. 11. Having regard to the facts of the case, Mr. Pathak, learned advocate for the petitioner submitted that the petitioner is agreeable for such course of action. Therefore, following order is passed. 12. At this stage, this petition is disposed of. The petitioner will submit application/representation justifying his claim that the pay scale of Rs. 950-1500 which was granted vide order dated 7.6.1999, should not be disturbed and otherwise also he is entitled for the said pay scale in view of the nature of the duties performed by him. The petitioner will submit such application/representation within three weeks after the receipt of the order. 13. After such application/representation is received, the competent authority of the respondent will consider it afresh without being influenced by the earlier decision which is impugned in present petition and will pass appropriate fresh order on merits after considering the application/representation and after granting opportunity of hearing to the petitioner. Such fresh order shall be passed within four weeks after receipt of the application/representation from the petitioner. 14. Until that period, the interim relief granted by this Court in present petition vide order dated 11.8.2006 will operate and it will operate further for one week after the order is communicated to the petitioner. 15. It is clarified that if the competent authority does not accept the petitioner's application/representation and passes an order which is against the petitioner, then so far as the issue related to recovery is concerned, the respondent will abide by and follow the procedure explained by Hon'ble Apex Court in the case of State of Punjab v. Rafiq Masih [ (2015) 4 SCC 334 ]. With the aforesaid clarifications and directions, the petitions are disposed of. Rule is discharged.