Research › Search › Judgment

Rajasthan High Court · body

2017 DIGILAW 780 (RAJ)

Gopal Prasad S/o Shri Bansidhar v. Managing Director, RSRTC, Parivahan Marg, Jaipur

2017-03-22

SANJEEV PRAKASH SHARMA

body2017
JUDGMENT : Sanjeev Prakash Sharma, J. The petitioner is a Conductor who has been knocking the doors of justice for years together and inspite of directions having been issued in his favour from time to time directing the respondents to pass necessary orders and grant him relief, has again approached this Court by way of the present writ petition for claiming his retiral benefits. Before coming to the controversy of the present case, facts relating to earlier litigation deserve to be noted. 2. The petitioner who was holding the post of Conductor was removed from service by the Divisional Manager, Ajmer vide his order dated 19.4.1991 and an application was moved under Section 33(2)(B) seeking approval before the Industrial Tribunal under the Industrial Disputes Act, 1947 (for short' the Act of 1947'). The Tribunal vide its order dated 19.08.1998 rejected the application for approval. Against the said order, the Corporation filed a writ petition No.1177/1999 before this Court wherein by an interim order dated 28.3.2005 the Court directed the respondents to release the amount of salary of the petitioner for the period from 19.04.1991 upto 05.08.2003 i.e. upto the day when he attained superannuation, within the period of 30 days. Against the said interim order, the Corporation filed D.B. Civil Special Appeal No.418/2005 wherein the Division Bench passed an interim order on 09.05.2005 directing the Corporation to pay wages to the workman as per last drawn for the intervening period. 3. The writ petition preferred by the Corporation was dismissed on 28.02.2008 against which D.B. Special Appeal No.845/2008 was preferred which came to be dismissed on 31.07.2008. SLP No.681/2009 was preferred by the Corporation before the Supreme Court which too was dismissed on 23.01.2009. 4. In consequence thereof the Corporation passed an order on 17.08.2010 holding that the petitioner is entitled for continuity of service from the date of termination till the date of attaining superannuation and also the suspension period was to be counted in service and entire pay and allowances were directed to be released. It was also directed that the petitioner shall be entitled for grant of selection scale, annual increments, bonus etc. for the entire period. 5. It was also directed that the petitioner shall be entitled for grant of selection scale, annual increments, bonus etc. for the entire period. 5. Inspite of the aforesaid order having been passed on 17.08.2010 which was on account of an order passed by this Court in S.B. Civil Writ Petition No.7285/2010 dated 19.05.2010, the petitioner has again approached this Court by way of the present petition praying that although order dated 17.08.2010 has been passed but benefits have not been released to him in consequence of the said order. 6. It appears that this Court directed the respondent-RSRTC to file their reply to the additional affidavit filed by the petitioner pointing out why he had not been paid the arrears and in reply to the said additional affidavit, it has been stated as under: - "It is thus clear that there was no such specific order to count the period of suspension of the petitioner which was prior to his termination dated 19.04.1991. The petitioner remained under suspension from 23.03.1988 to 30.06.1988 for a period of 100 days and from 30.07.1990 to 30.12.1990 for a period of 144 days and as per the opinion of Financial Adviser, the period of suspension of the petitioner was not calculated for grant of selection benefit. Though, the petitioner was appointed on 19.01.1985 and completed 9 years as on 18.01.1994, but in the meeting of the Committee for grant of Selection Scale, it was decided not to include the period of suspension i.e. 244 days, and therefore, in the meeting dated 16.07.2015, 9 years selection benefit was granted w.e.f. 20.09.1994 by excluding the period of 244 days of suspension. Further 18 years selection benefit was to be made applicable on 20.09.2003, but the petitioner was retired from service on 05.08.2003 on getting the age of superannuation and therefore, the 18 years selection benefit is not granted to petitioner by the Committee." 7. It is submitted by the learned Counsel for the respondent that as there was no order passed relating to the period of suspension of the petitioner from 23.03.1988 to 30.06.1988 and for the period from 30.07.1990 to 30.12.1990, on account of the opinion given by the Financial Adviser, the said period was to be deducted from the total length of service and, therefore, even 18 years selection scale cannot be granted to the petitioner. It is stated that as per clause C of the Rajasthan State Road Transport Workers & Work Shop Employees Standing Orders, 1965 (for short 'Standing Orders of 1965'), the period of service of under suspension has to be treated as break in service. 8. Having heard learned Counsel for the parties, this Court finds that the petitioner has been subjected to unnecessary harassment at the hands of the respondents who have wrongly interpreted the rules with the purpose to deny the petitioner's dues. 9. For the purpose of the present petition, it would be useful to quote Clause C of the Standing Orders of 1965 which has been referred by the learned Counsel for the respondents :- "(c) If on conclusion of the enquiry, or as the case may be, of the criminal proceedings the workman has been found guilty of the charge and it is considered that an order of dismissal may meet the ends of justice, the employer shall pass orders accordingly. When such orders are passed the workman shall be deemed to have been absent from duty during the period of such suspension and shall not be entitled to any remuneration for such period but the subsistence allowance already paid to him shall not be recovered. Provided that in case of a workman to whom the provisions of clause (2) of Article 311 of the Constitution of India apply the provisions of the Article shall be complied with" 10. Admittedly, vide order dated 17.08.2010, the entire period of service of the petitioner had been regularised including suspension period. It was specifically mentioned in the order that the period of service after termination till date of superannuation as well as the suspension period shall be counted in service and the said period of service shall be counted for calculating the pay and allowances as well as for the purpose of selection grade. The order was passed by the Chief Manager which is still in vogue. The order has not been cancelled by any other higher authority. 11. In the backdrop of the aforesaid order, the objections which have been taken up by the Financial Adviser are clearly misconceived and is nothing but an action to deprive the petitioner of his retiral dues. The order was passed by the Chief Manager which is still in vogue. The order has not been cancelled by any other higher authority. 11. In the backdrop of the aforesaid order, the objections which have been taken up by the Financial Adviser are clearly misconceived and is nothing but an action to deprive the petitioner of his retiral dues. In M.D., Tamil Nadu State Transport v. Neethivilangan, Kumbakonam decided on 04.05.2001 it has been observed by the Apex Court as under :- "From the conspectus of the views taken in the decisions referred to above the position is manifest that while the employer has the discretion to initiate a departmental inquiry and pass an order of dismissal or discharge against the workman the order remains in an inchoate state till the employer obtains order of approval from the Tribunal. By passing the order of discharge or dismissal de facto relationship of employer and employee may be ended but not the de jure relationship for that could happen only when the Tribunal accords its approval. The relationship of employer and employee is not legally terminated till approval of discharge or dismissal is given by the Tribunal. In a case where the Tribunal refuses to accord approval to the action taken by the employer and rejects the petition filed under section 33(2)(b) of the Act on merit the employer is bound to treat the employee as continuing in service and give him all the consequential benefits. If the employer refuses to grant the benefits to the employer the latter is entitled to have his right enforced by filing a petition under Article 226 of the Constitution. There is no rational basis for holding that even after the order of dismissal or discharge has been rendered invalid on the Tribunals rejection of the prayer for approval the workman should suffer the consequences of such invalid order of dismissal or discharge till the matter is decided by the Tribunal again in an industrial dispute. Accepting this contention would render the bar contained in section 33(1) irrelevant. In the present case as noted earlier the Tribunal on consideration of the matter held that the employer had failed to establish a prima facie case for dismissal/discharge of the workman, and therefore, dismissed the application filed by the employer on merit. Accepting this contention would render the bar contained in section 33(1) irrelevant. In the present case as noted earlier the Tribunal on consideration of the matter held that the employer had failed to establish a prima facie case for dismissal/discharge of the workman, and therefore, dismissed the application filed by the employer on merit. The inevitable consequence of this would be that the employer was duty bound to treat the employee as continuing in service and pay him his wages for the period, even though he may be subsequently placed under suspension and an enquiry initiated against him." Thus, after the rejection of application under Section 33(2)(b) of the Act, the entire period of service was required to be counted in view of the rejection of Section 33(2)(b). The termination and the action of the respondents also has been held to be unjustified i.e. the very concept of the Act of 1947. However, it appears that the respondents do not want the law to be interpreted in the manner as it is available in the books. 12. In the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Shri Ram Gopal Sharma & Ors. AIR 2002 SC 643 , it has been again reiterated as under :- "15. The view that when no application is made or the one made is withdrawn, there is no order of refusal of such application on merit and as such the order of dismissal or discharge does not become void or inoperative unless such an order is set aside under Section 33A, cannot be accepted. In our view, not making an application under Section 33(2)(b) seeking approval or withdrawing an application once made before any order is made thereon, is a clear case of contravention of the proviso to Section 33(2)(b). An employer who does not make an application under Section 33(2)(b) or withdraws the one made, cannot be rewarded by relieving him of the statutory obligation created on him to make such an application. If it is so done, he will be happier or more comfortable than an employer who obeys the command of law and makes an application inviting scrutiny of the authority in the matter of granting approval of the action taken by him. Adherence to and obedience of law should be obvious and necessary in a system governed by rule of law. Adherence to and obedience of law should be obvious and necessary in a system governed by rule of law. An employer by design can avoid to make an application after dismissing or discharging an employee or file it and withdraw before any order is passed on it, on its merits, to take a position that such order is not inoperative or void till it is set aside under Section 33A notwithstanding the contravention of Section 33(2)(b) proviso, driving the employee to have recourse to one or more proceeding by making a complaint under Section 33A or to raise another industrial dispute or to make a complaint under Section 31(1). Such an approach destroys the protection specifically and expressly given to an employee under the said proviso as against possible victimization, unfair labour practice or harassment because of pendency of industrial dispute so that an employee can be saved from hardship of unemployment. 16. Section 31 speaks of penalty in respect of the offences stated therein. This provision is not intended to give any remedy to an aggrieved employee. It is only to punish the offender. The argument that Section 31 provides a remedy to an employee for contravention of Section 33 is unacceptable. Merely because penal provision is available or a workman has a further remedy under Section 33A to challenge the approval granted, it cannot be said that the order of discharge or dismissal does not become inoperative or invalid unless set aside under Section 33A. There is nothing in Sections 31, 33 and 33A to suggest otherwise even reading them together in the context. These Sections are intended to serve different purposes." 13. Thus, in the aforesaid background, the stand taken in the affidavit as quoted above is clearly unjustifiable and cannot be allowed to sustain. Even otherwise, a person who is under suspension is to be treated to be in service. Suspension has always been treated as a part of service and is not considered as a penalty. It is seen that for the suspension period of petitioner, orders have already been passed for treating the suspension period as a part of the service vide order dated 17.08.2010 and, therefore, there was no occasion for the Financial Adviser to treat the said period otherwise and treat it as a break in service for not granting the 18 years of selection scale to the petitioner. 14. 14. Taking into consideration the aforesaid observations, this Court directs that the respondents shall now release the entire retiral benefits and pension as well as the arrears of salary after fixation of his pay on completion of 18 years of service and release the same within a period of one month from today. Interest on the arrears shall be paid @ 9 per cent per annum. 15. This Court would have left the matter at this stage. However, taking into consideration the frivolous argument taken up by the Financial Adviser for denying the petitioner's dues and taking into consideration that the Financial Adviser is supposed to know the law relating to payment of salary for the suspension period and counting the period of suspension for the purpose of service, a cost of Rs. 1,00,000/- is imposed on the Corporation to be recovered from the concerned Officer due to which the litigation continued for more than 13 years. 16. The writ petition is accordingly disposed of. 17. It goes without saying that if the respondent is not complied the order within the stipulated period, the concerned Financial Adviser shall be held in contempt for which the petitioner may initiate contempt proceedings without further notice.