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Gujarat High Court · body

2016 DIGILAW 2056 (GUJ)

Bipin v. Vayda VS State Of Gujarat Thro Secretary

2016-09-21

ABHILASHA KUMARI

body2016
JUDGMENT : 1. This petition under Article 226 of the Constitution of India has been preferred with a prayer to issue a Writ of Mandamus or an appropriate Writ or direction, quashing and setting aside the impugned orders dated 22.05.2012 and 03.06.2012, passed by the Regional Director of Municipalities, the third respondent herein, whereby it has been directed that the benefits of the 5th Pay Commission granted to the petitioners ought to be stopped and appropriate proceedings for the recovery of the excess amount paid to them should be initiated. 2. Briefly stated, the facts of the case are that the petitioners (36 in number) were working as Daily Wagers under the fourth respondent-Bhuj Municipality. According to them, they had performed their duties without any interruption. The fourth respondent issued a Circular to the effect that Daily Wagers, who had completed 180 days or more of continuous service would-be regularized in service and paid the grade and other facilities payable to regular employees of the Municipality. The said benefits were not extended to the petitioners, therefore, they approached the Labour Court, Rajkot, through the Association by preferring a case, being R.L.C.D. No.22/1988, seeking the relief of regularization of their services and consequential benefits. By an Award dated 01.07.1990, the Labour Court granted the prayers made by the petitioners and directed that they be regularized in service and paid the grade pay and other consequential benefits, within a period of ninety days from the award. The respondent-Municipality complied with the directions of the Labour Court and regularized the services of the petitioners, who were also granted the benefits of the 4th Pay Commission. Later on, the benefits of the 5th Pay Commission came to be conferred upon the petitioners in the same manner as they were given to other employees of the Municipality. The Award of the Labour Court was not challenged either by the Municipality or the State Government and has attained finality. All of a sudden, on 22.05.2012, the third respondent passed the impugned order, stating therein, that all those employees of the Municipality who have been “appointed” by way of the Award and who are receiving the benefits of the 5th Pay Commission, should be deprived of such benefits and appropriate action be taken in this regard. All of a sudden, on 22.05.2012, the third respondent passed the impugned order, stating therein, that all those employees of the Municipality who have been “appointed” by way of the Award and who are receiving the benefits of the 5th Pay Commission, should be deprived of such benefits and appropriate action be taken in this regard. By the impugned order dated 03.06.2012, the third respondent wrote to the Chief Officer of the respondent-Municipality, that they are to act as per the communication dated 03.08.2004 and the guidelines issued by the third respondent. Aggrieved by the above two orders, the petitioners are before this Court. 3. Ms. Dhara M. Shah, learned advocate for Mr. Shivang M. Shah, learned advocate for the petitioners, has submitted that the impugned orders are nonspeaking orders, shorn of any reasons. The petitioners have been granted regularization by the Award of the Labour Court, that has attained finality. The benefits of the 4th Pay Commission and, later, of the 5th Pay Commission have been conferred upon the petitioners, pursuant to their regularization. Such benefits cannot be taken away by the respondents by passing the impugned orders behind the backs of the petitioners. 3.1 It is further submitted that before passing the said orders, respondent No.3 has not granted the petitioners any opportunity of hearing. In spite of the fact that the said respondent was aware of the Award of the Labour Court, he has stated, in the impugned orders, that the sanction of the Competent Authority is required for the regularization of the petitioners which has not been accorded. It is submitted, that once there is a final Award of the Labour Court, no sanction from any authority is required. That on 01.07.1990, when the Award was passed, there were fifty vacant, sanctioned posts in the respondent-Municipality. The petitioners have been regularized against the said posts, therefore, there is no illegality or irregularity in the action of the respondent-Municipality. 3.2 It is lastly submitted that the impugned orders do not speak that any illegality or irregularity has occurred while regularizing the services of the petitioners. They only mention that the approval of the Competent Authority was required to be taken. As already stated, such approval would not be required inthe face of the Award of the Labour Court. 3.2 It is lastly submitted that the impugned orders do not speak that any illegality or irregularity has occurred while regularizing the services of the petitioners. They only mention that the approval of the Competent Authority was required to be taken. As already stated, such approval would not be required inthe face of the Award of the Labour Court. 3.3 On the above grounds, it is prayed that the impugned orders be quashed and set aside and the petition allowed. 4. Ms. Snusha Joshi, learned Assistant Government Pleader, has opposed the petition and has made submissions along the lines of the affidavit-in-reply filed on behalf of respondent No.3. She has submitted that the petitioners are employees of the Bhuj Municipality and were “appointed” pursuant to the Award of the Labour Court. Such appointments were not sanctioned by the Competent Authority, therefore, they cannot be given the benefits of the 5th Pay Commission, which have rightly been withdrawn from them. It is further submitted that the benefits of the5th Pay Commission have been sanctioned to the Bhuj Nagarpalika by respondent No.3, by an order dated 13.07.2011, which contains certain conditions. As per Condition No.2, the benefits of the 5th Pay Commissionare applicable only to the employees, who have been appointed after following the due procedure of law and are in the set up. However, as the petitioners were not in the regular set up, the impugned orders have been rightly passed. 5. Mr. B.Y. Mankad, learned advocate for respondent No. 4 Municipalityhas submitted that the said Municipality has acted in compliance with the Award of the Labour Court and has regularized the services of the petitioners. The Municipality had started to pay them the benefits of the 4th Pay Commission and 5th Pay Commission when respondent No.3 passed the impugned orders. It is further submitted that the Court may, therefore, pass appropriate orders. 6. This Court has heard learned counsel for the respective parties, perused the averments made in the petition, contents of the impugned orders and other documents on record. 7. This Court has also perused a copy of the Award dated 01.07.1990, passed by the Labour Court which is at Annexure to the petition. 6. This Court has heard learned counsel for the respective parties, perused the averments made in the petition, contents of the impugned orders and other documents on record. 7. This Court has also perused a copy of the Award dated 01.07.1990, passed by the Labour Court which is at Annexure to the petition. From a perusal of the Award, it clearly transpires that when the petitioners approached the Labour Court, they had already been appointed as Daily Wage Workers and had worked continuously, as such, for a period of more than 180days. The prayers made by the petitioners before the Labour Court was for the regularization of their services, in view of the Circular issued by respondent No. 4 Municipality, to the effect that Daily Wagers who had completed 180 days, or more, of uninterrupted service, would be regularized. The Tribunal, after scrutinizing the record and hearing the parties, granted the prayers made by the petitioners and direct that their services be regularized and paid the regular pay scale admissible to regular employees. 8. From the above undisputed factual position, it is clear that the petitioners were not “appointed” by way of the Award of the Labour Court, as has been wrongly stated not only in the impugned order dated 22.05.2012, but also in the affidavit-in-reply filed on behalf of respondent No.3, but have been regularized in service. There is, therefore, a basic flaw in the impugned order, wherein it is stated that the benefits of the 5th Pay Commission being received by the petitioners, who were “appointed” by the Award of the Labour Court, should be withdrawn. By way of the Award, no appointments have been directed to be made, but directions have been issued for the regularization of the services of the petitioners. The stand of the respondents as reflected in the impugned orders, as well as in the affidavit-in-reply filed before this Court is untenable, apart from being factually incorrect. The entire premise on which the impugned orders and the affidavit-in-reply have been filed is flawed. 9. It is relevant to note that the respondent-Municipality has complied with the Award of the Labour Court and has regularized the services of the petitioners, in the year 1990. The petitioners have been granted the benefits of the 4th Pay Commission and, later on, the benefits of the 5th Pay Commission. 9. It is relevant to note that the respondent-Municipality has complied with the Award of the Labour Court and has regularized the services of the petitioners, in the year 1990. The petitioners have been granted the benefits of the 4th Pay Commission and, later on, the benefits of the 5th Pay Commission. After about twenty two years, the third respondent has passed the impugned orders directing, unilaterally, that the benefits of the 5th Pay Commission should be withdrawn from the petitioners and recoveries be effected from them. 10. A perusal of the impugned order dated 22.05.2012 shows that it contains no reasons in support of the direction for the withdrawal of the benefits of the5th Pay Commission, except the factually incorrect statement that the petitioners have been “appointed” pursuant to the Award of the Labour Court, without the sanction of the Competent Authority. Such an order is certainly not a reasoned order and, as rightly pointed out by the learned advocate for the petitioners, is a non-speaking order. It is, by now, a settled position of law that an order devoid of reasons cannot stand the scrutiny of law. 11. It further transpires that not only are the impugned orders non-speaking orders, but they have also been passed in violation of the principles of natural justice. The petitioners had been enjoying the benefits of the 5th Pay Commission for a long period of time. Without any prior intimation or opportunity of hearing, the said benefits have been snatched away from them, by the cursory orders impugned in the present petition. The directions contained in the impugned orders for the withdrawal of the benefits of 5th Pay Commission and for effecting recovery of the excess amount would, obviously, have an adverse impact upon the petitioners. They would inflict civil consequences on the petitioners. It is now a well-settled position of law that before passing any order having an adverse impact upon an employee, it is necessary to grant the said employee an opportunity of hearing. The respondents have failed to do so, therefore, the impugned orders are bad in law on this count, as well. 12. The third ground on which this Court finds that the impugned orders cannot be sustained is that they seek to covertly upset the Award of the Labour Court that has now attained finality. The respondents have failed to do so, therefore, the impugned orders are bad in law on this count, as well. 12. The third ground on which this Court finds that the impugned orders cannot be sustained is that they seek to covertly upset the Award of the Labour Court that has now attained finality. The benefits that have been granted by the Award, which has not been challenged either by the respondent-Municipality or the third respondent himself, have attained finality. After having accepted the Award, it does not lie in the mouth of the third respondent to state that the so-called “appointments” of the petitioners have not been made with the prior approval of the Competent Authority. It cannot brook any further argument that when there is a final Award of the Labour Court, no approval from any executive authority is required. All parties, including the third respondent, are obliged to obey the said Award. By passing the impugned orders, the third respondent is, in an indirect manner, trying to subvert the Award of the Labour Court, which action borders on being a contemptuous one. 13. It has not been denied by respondent No.3 in the affidavit-in-reply, that about fifty sanctioned posts were vacant in the Bhuj Municipality in the year 2012, when the petition was filed. The petitioners have been regularized long back in the year 1990 and are continuing as regular employees of the said Municipality. There is not even a whisper in the impugned orders that the initial appointments of the petitioners were, in any manner, illegal or irregular. If such is not the case respondent No.4 is bound to regularize their services pursuant to the Award, which it has done. Respondent No.3 cannot defy the said Award without challenging it, by passing the impugned orders. No reason, whatsoever, leave alone any cogent reason has been reflected in the impugned orders. Orders of such a nature which are shorn of reasons cannot stand the scrutiny of law on any count. In the considered view of this Court, therefore, they deserve to be quashed and set aside. 14. This view of the Court finds support from thejudgment of the Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) and others, reported in (2015) 4 SCC 334 , wherein the following directions have been issued: “18. 14. This view of the Court finds support from thejudgment of the Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) and others, reported in (2015) 4 SCC 334 , wherein the following directions have been issued: “18. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery; where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred therein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from employees belonging to Class-III and Class-IV service (or Group C and Group D service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employers right to recover.” 15. The petitioners are Class-IV employees, therefore, their cases would be covered by Clauses-(i) and (iii) of the above directions. 16. Even otherwise, the cases of the petitioners are on a better footing, as it is not the case of the third respondent that excess payments have been made to them mistakenly. In the present case, the petitioners have been regularized pursuant to the unchallenged Award of the Labour Court. As there is no challenge to their regularization, they are, for all intents and purposes, regular employees of respondentNo.4Municipalityand have been worked as such. The respondent-Municipality has been granted sanction from the State Government, to grant the benefits of the 5thPay Commission to its employees. The petitioners are also a part of the regular setup of the respondent-Municipality. As there is no challenge to their regularization, they are, for all intents and purposes, regular employees of respondentNo.4Municipalityand have been worked as such. The respondent-Municipality has been granted sanction from the State Government, to grant the benefits of the 5thPay Commission to its employees. The petitioners are also a part of the regular setup of the respondent-Municipality. They are, therefore, entitled to receive the benefits of the 5th Pay Commission, which cannot be taken away from them in such an arbitrary and illegal manner. 17. There is another curious aspect to this case. The third respondent had thought it fit, on 29.01.1993, to issue a communication to the Collector, Bhuj, stating, in the context of the petitioners, that as they had been granted regularization and all benefits of the regular pay scale by the Award of the Labour Court, there is no requirement of seeking prior sanction from the State Government. Suddenly, on 22.05.2012 and03.06.2012, when the impugned orders were passed, the very same respondent has conveniently forgotten his earlier communication and taken a totally contrary stand. Such a volte-face does not behove a responsible Officer such as the third respondent, especially when there are no legal or valid reasons to change the earlier stand. 18. Considered from all angles, the petition must succeed. Hence, the following order : The impugned orders dated 22.05.2012 and 03.06.2012, passed by the third respondent, being arbitrary and illegal, are hereby quashed and set aside. All consequential benefits that accrue to the petitioners by virtue of regular service shall be conferred upon them. The arrears of pay, if any, befrom the date of the receipt of a copy of this judgment. 19. The petition is allowed, in the above terms. Rule is made absolute, accordingly. There shall be no orders as to costs.