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2018 DIGILAW 811 (ALL)

LALLAN RAI v. U. P. SAHKARI GRAM VIKAS BANK LTD.

2018-04-04

AJIT KUMAR

body2018
JUDGMENT Hon’ble Ajit Kumar, J.—Heard learned counsel for the petitioner and Sri Azad Khan Advocate, holding brief of Sri Q.H.Siddiqui, learned counsel for the respondent-Bank. 2. The petitioner claims to be paid minimum pay-scale as admissible in law to the post of Accountant/Junior Clerk. of U.P. Sahkari Gram Vikas Bank. However, inspite of rendering the services since 1979, he has not been paid regular/minimum of the pay-scale as prescribed in law to the post of Accountant/Junior Clerk. 3. According to the petitioner, he was initially appointed on 20th December, 1977 for a period of 3 months on consolidated pay of Rs. 300/-, however he was continued in service until 1st July, 1979 when his services came to be terminated. Industrial dispute was raised and the Labour Court vide order dated 28th May, 1984 directed the Bank for reinstatement of service of petitioner, however, as far as back-wages are concerned, only six months back-wages were allowed. Against said order, petitioner filed writ petition No. 9802 of 1984, which was finally allowed vide judgment dated 13.5.1994 directing the Bank to reinstate the petitioner with full back-wages. 4. Against the aforesaid order of Writ Court, Bank approached the Supreme Court vide Civil Appeal No. 668 of 1994, which was ultimately dismissed on 30th October, 1996. Resultantly, the petitioner was reinstated by the Managing Director vide order dated 16.12.1996. It is worth noticeable that by this order petitioner was reinstated on the post of Assistant Branch Accountant/Junior Clerk, a post that was substantively vacant. The order dated 16.12.1996 is quoted hereunder : ^^vkns'k ekuuh; mPpre U;k;ky; flfoy vihy la[;k&6668@1994 esa fnukad 30&10&96 dks ikfjr vkns'k ds vuqikyu ess Jh yYu jk; iq= Jh chjcgknqj jk;] xzke fiijknkmn iksLV&iFkjnsok ftyk & nsofj;ks ¼mŒÁŒ½ dks mRrj Áns'k lgdkjh xzke fodkl cSad fyfeVsM] dh {ks=h; dk;kZy; xksj[kiqj esa lgk;d 'kk[kk vkafdd & voj fyfid ds in ij cSad lsok esa iquZLFkkfir fd;k tkrk gSA ¼Hkxorh Álkn½ ÁcU/k funs'kdA** 5. Although, petitioner was reinstated vide order dated 16.12.1996 and he immediately reported his joining but he was never paid the pay-scale as admissible to the Assistant Accountant/Junior Clerk of the Bank concerned. vide order dated 22nd March, 1999, however, his pay was increased from 1600/- per month Rs. 3000/-, which was again a consolidated pay. 6. Although, petitioner was reinstated vide order dated 16.12.1996 and he immediately reported his joining but he was never paid the pay-scale as admissible to the Assistant Accountant/Junior Clerk of the Bank concerned. vide order dated 22nd March, 1999, however, his pay was increased from 1600/- per month Rs. 3000/-, which was again a consolidated pay. 6. Learned counsel for the petitioner has drawn attention of the Court to an order passed by he Managing Director dated 19.2.2000 in case of another identically placed employee, namely Nand Kishore Awasthi who was also directed to be reinstated by the Labour Court vide Award dated 15.2.1991, and was reinstated by the respondent-Bank in the pay-scale of Rs. 230-285 and consequently, he has been receiving salary in terms of pay-scale and, subsequently corresponding pay revision has also been made from time to time. Although, it is clear from the order passed by the Managing Director that no other service benefits like, earned leave, medical leave and annual increment were made applicable to him. The petitioner, therefore, submits that although, he is entitled to all the service benefits but alternatively in case he was not awarded all benefits he is at-least entitled to the pay-scale as given by the Bank to Nand Kishore Awasthi. 7. Per contra, the arguments advanced by the learned counsel for the respondent is that the petitioner was only appointed on consolidated pay and not in any pay-scale and therefore, consolidated pay has been increased from time to time, which is at present Rs. 3000/-. 8. Rival submissions fall for consideration. 9. Considering the arguments advanced by the learned counsel for the petitioner as well as learned counsel for the respondents, I am of the considered opinion that once the petitioner came to reinstated by the labour Court and the writ petition for full back-wages was also allowed modifying the award of labour Court by giving full back-wages, against which, special leave petition of respondent bank was dismissed, there was no occasion for the respondent not to give him proper salary as admissible to the post of Assistant Accountant/Junior Clerk in the Bank. 10. From perusal of the order of reinstatement dated 16.12.1996 (supra), the Courts find that petitioner was reinstated on a clear post of Assistant Accountant and, therefore, it is also not proper on the part of the respondent-Bank not to give him proper salary as admissible in law. 10. From perusal of the order of reinstatement dated 16.12.1996 (supra), the Courts find that petitioner was reinstated on a clear post of Assistant Accountant and, therefore, it is also not proper on the part of the respondent-Bank not to give him proper salary as admissible in law. It is not disputed by the respondent that petitioner is discharging the duties as regular employee of the bank on the post of Assistant Accountant/Junior Clerk, under the circumstances, petitioner becomes entitled to pay-scale as admissible to the bank employee of the same rank and cadre at least considering the fact that duties being discharged by the petitioner is no less from that of a regular employee. Further once the employee who is also discharging his duties after reinstatement, has given his heydays in the service of the bank, there is no occasion for the respondent-Bank to treat him working on a consolidated pay as irregular or temporary employee working on consolidated pay of Rs. 3000/- only. It is worth noticing that reinstatement order does not disclose any such fact that petitioner was being reinstated only on ad hoc basis. 11. Equal pay for equal work is the principle on which rests the industrial peace and bonhomie between employer and the employee. On one hand in service jurisprudence in modern times are cannot digest a situation where employees are treated like slaves. Gone are the days encashment. Parity in pay even in respect of temporary employees working on regular basis is valid right recognZed well to be enforceable in law. 12. While considering the applicability of the principle if equal pay for equal work, Supreme Court in the case of State of Punjab v. Jagjit Singh, (2017) 1 SCC 148 , has held that once the ‘onus of proof’ of parity in duties of the subject post with the reference post under the principles of equal pay for equal work is discharged, such an employee is entitled to the benefit of the principle. In the absence of any rationale behind different pay for different employees who are functionally equal, the principle would apply. The Court while setting aside the judgment of full bench of Punjab and Haryana High Court on the point of giving different classification to temporary employees on the subject of wages observed vide 57 and 58 thus: “57. In the absence of any rationale behind different pay for different employees who are functionally equal, the principle would apply. The Court while setting aside the judgment of full bench of Punjab and Haryana High Court on the point of giving different classification to temporary employees on the subject of wages observed vide 57 and 58 thus: “57. Having traversed the legal parameters with reference to the application of the principle of ‘’equal pay for equal work’, in relation to temporary employees (daily-wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires our determination is, whether the concerned employees (before this Court), were rendering similar duties and responsibilities, as were being discharged by regular employees, holding the same/corresponding posts. This exercise would require the application of the parameters of the principle of ‘’equal pay for equal work’ summarZed by us in paragraph 42 above. However, insofar as the instant aspect of the matter is concerned, it is not difficult for us to record the factual position. We say so, because it was fairly acknowledged by the learned counsel representing the State of Punjab, that all the temporary employees in the present bunch of appeals, were appointed against posts which were also available in the regular cadre/establishment. It was also accepted, that during the course of their employment, the concerned temporary employees were being randomly deputed to discharge duties and responsibilities, which at some point in time, were assigned to regular employees. Likewise, regular employees holding substantive posts, were also posted to discharge the same work, which was assigned to temporary employees, from time to time. There is, therefore, no room for any doubt, that the duties and responsibilities discharged by the temporary employees in the present set of appeals, were the same as were being discharged by regular employees. It is not the case of the appellants, that the respondent-employees did not possess the qualifications prescribed for appointment on regular basis. Furthermore, it is not the case of the State, that any of the temporary employees would not be entitled to pay parity, on any of the principles summarZed by us in paragraph 42 hereinabove. It is not the case of the appellants, that the respondent-employees did not possess the qualifications prescribed for appointment on regular basis. Furthermore, it is not the case of the State, that any of the temporary employees would not be entitled to pay parity, on any of the principles summarZed by us in paragraph 42 hereinabove. There can be no doubt, that the principle of ‘’equal pay for equal work’ would be applicable to all the concerned temporary employees, so as to vest in them the right to claim wages, at par with the minimum of the pay-scale of regularly engaged Government employees, holding the same post. 58. In view of the position expressed by us in the foregoing paragraph, we have no hesitation in holding, that all the concerned temporary employees, in the present bunch of cases, would be entitled to draw wages at the minimum of the pay-scale (- at the lowest grade, in the regular pay- scale), extended to regular employees, holding the same post." 13. Article 23 of the Constitution of India prohibits force labour. In these days of unemployment one can be forced to work as under paid worker but it is against constitutional spirit behind guarantee of fundamental rights. Rights that are fundamental to one being human is right to live with dignity as well. 14. Now coming to the pleadings raised in the present petition that the respondent Bank has wholly illegally denied pay-scale to the petitioner only on the ground that he was appointed on fixed pay initially, though identically placed another employee Mr. Nand Kishore Awasthi has been given benefit of pay-scale and further other benefits only because he was appointed in a pay-scale though temporarily. It is therefore, necessary to refer to the pleadings raised in para 13 and 14 of the writ petition and in reply thereof para 9 of the counter-affidavit. “13. That several other persons who have also been appointed on the adhoc basis in the bank, whose services has been terminated by the bank illegally, they also challenged the termination order before the labour Court and after winning the case they were reinstated inn the bank on several dates and they are getting higher salary to the petitioner, though they are much junior to the petitioner. 14, That it is relevant to the point out here that one Nand Kishor Awasthi who was also appointed as adhoc Assistant Branch Accountant in the bank. His services were terminated by the bank in 1990. He challenges his termination order before the Labour Court Lucknow by filing a case No. 61 of 1990 which were awarded in favour of the employee on 15.2.1991 and in compliance to the said order he was reinstated in the service as an adhoc Assistant Branch Accountant in pay-scale of 230-385.” “9. That the contents of paras 12 and 13 of the writ petition are false and incorrect hence. not accepted and in reply thereto, it is submitted that the petitioner was appointed on the basis of consolidated pay, not on the basis of ad-hoc.” 15. Thus the pleadings of this writ petition are that the petitioner inspite of reinstatement was denied the salary which junior to him are getting has not been denied and therefore, in view of the settled law on the applicability of principles of equal pay for equal work, petitioner has made out a case. 16. On the point of regularZation of the petitioner against the existing vacancy in the bank, the contention is that juniors of the petitioner have been regularZed vide para 11 of the writ petition, which is quoted as under: “11. That since 16.12.1996, the petitioner is working in the bank at its Rudrapur Branch, District Deoria and discharging his duty with full satisfaction of his officials, but the case of the petitioner for regularZation was never considered by the bank in accordance to law while Juniors to the petitioner were regularZed in service.” 17. Defending the decision to deny regularZation, plea taken in the counter-affidavit is that at the time of entry in service, petitioner was not 21 years of age. Since the petitioner was underaged, his appointment cannot be treated to be valid one. Defending the decision to deny regularZation, plea taken in the counter-affidavit is that at the time of entry in service, petitioner was not 21 years of age. Since the petitioner was underaged, his appointment cannot be treated to be valid one. This logic of the respondent is absolutely misplaced as once the labour Court has made an award in favour of the petitioner and directed for his reinstatement and further order of award was affirmed by the High Court modifying that to the extent that full back-wages will be paid to the petitioner and special leave petition of the bank was dismissed by the Supreme Court, it is not open for the respondent bank to have held that petitioner was underaged at the time of initial appointment and therefore, he could not be treated as regular employee and that too after more than two decades and reinstatement order by labour Court. 18. However, the Court is of the opinion that respondent bank should not have been so harsh in respect of a poor class-III employee working for more than two decades on a very consolidated pay and yet discharging full time duty of a clerk. It is not permissible to question the legality of appointment at the fag end of service of an employee, more particularly when at the time of of his reinstatement, there was not ineligibility pleaded by Bank whereas it could have raised the issue in High Court by filing writ petition or even in SLP but it failed to do so. 19. Constitutional Courts have wide powers to exercise discretion wherever it is necessary to advance cause of justice. A long serving employee can be directed to be absorbed against existing vacancy as he had been discharging duties of regular employee. Subhash and others v. Guru Teg Bahadur Hospital and others, (2016) 12 SCC 429 . 20. It is admitted to the respondent bank that petitioner’s case was considered for regularZation while others were considered, but only on account of the fact that he was minor and was not of 21 years of age on the date of initial appointment i.e. 20th December, 1977, he could not be held eligible, but it is a fact admitted fact by the respondent bank that since the date of initial appointment, petitioner has worked on the post on which Bank could have made selection. It is therefore, fault on the part of the bank not to have proceeded with the recruitment against vacancy on which petitioner was working and now to reject claim on flimsy ground that his initial appointment was on fixed pay or that he was not of 21 years of age is too harsh. The petitioner has spent three decades in the service of respondent bank and when it comes to get fruits after retirement to enjoy from long standing services, he is denied everything as if it was his fault to have continued in service with temporary status of employment. 21. As discussed above, since the respondent employer has not proceeded to challenge the order of reinstatement in service and contested only back-wages upto Supreme Court and failed, employment of the petitioner got automatically cemented with respondent establishment and therefore, it was not open for the bank to have denied the regularZation only on the ground that petitioner at the time of initial appointment was not 21 years of age. This ground being not open for the respondent subsequently after his reinstatement as order of reinstatement was never challenged, if any order is passed by the bank denying regularZation to the petitioner, the same is liable to be rendered as null and void. The petitioner is entitled for regularZation if there existed vacancy on which he worked till he attained the age of superannuation. The decision of the authority not to regularZe the petitioner deserves to be revisited by the competent authority in the light of the observations made hereinabove. The petitioner is also held entitled to salary on the principles of equal pay for equal work as he admittedly discharged his duties as full time Accountant on a vacancy existing in the bank. 22. Respondent bank is directed to pass order regarding fixation of pay of the petitioner in the pay-scale in which similarly situated other employee were paid since date of his reinstatement in service on 16.12.1996. It is further directed that petitioner after due fixation of service from 1996 shall be paid entire arrears of salary within three months from the date of production of certified copy of this order. 23. It is further directed that petitioner after due fixation of service from 1996 shall be paid entire arrears of salary within three months from the date of production of certified copy of this order. 23. Since petitioner has already retired from service on 31st January, 2018, for the purpose of post retirement dues, the petitioner’s case for regularZation on existing post on which he had worked shall be revisited in accordance rules and regulations or policy under which his case was earlier considered and rejected by order which has been held hereinabove as null and void. 24. With the above observations and directions, the writ petition is, therefore, allowed.