Research › Search › Judgment

Gujarat High Court · body

2019 DIGILAW 1027 (GUJ)

Rajubhai Gokalbhai Desai v. State of Gujarat

2019-10-22

N.V.ANJARIA

body2019
JUDGMENT : N.V. Anjaria, J. 1. As all these 23 petitions involved similar facts, same set of contentions and identical grievance, they were notified and heard together to be treated for disposal by this common order. 1.1 Heard learned advocate Mr. Kinariwala for the petitioners in each of the petitions, learned Assistant Government Pleader Ms. Krina Calla for the respondent - State, learned senior advocate Mr. Shalin Mehta assisted by learned advocate Mr. Hemang Shah and learned advocate Mr. Gautam Joshi for the Gujarat State Road Transport Corporation in the respective petitions. 2. In all these petitions, the petitioners have prayed to direct the respondents to grant them the pay-scale of Class-III employees. The petitioners who are Conductors, want this Court to hold that the action on part of the respondents in granting them the pay-scale of Class-IV is illegal. 3. Drawing the representative facts from first captioned Special Civil Application No. 9898 of 2017, the petitioners came to be appointed as Conductors by respondent No. 3 - Gujarat State Road Transport Corporation by order dated 26th February, 2011 for a period of five years on a fixed pay of Rs. 4500/- per month. The appointment was given on conditions including condition No. 11 mentioned in the appointment order that if the services were found satisfactory during five years, the employee would be given permanent status in minimum pay-scale at the expiry of five years. In other words, on completion of five years of satisfactory services, petitioners were to be considered as regular employees with extension of regular pay-scale. 3.1 It was stated that the competent authority of the Gujarat State Road Transport Corporation (GSRTC) passed order dated 18th September, 2012 whereby the fixed salary of the petitioners was increased from Rs. 4500/- to Rs. 5300/-. On 05th October, 2016, the respondent No. 3 - GSRTC passed order in respect of the employees working as Conductors on fixed salary for five years as above placing them in the pay-scale of Rs. 4440-7400 (Pay Grade Rs. 1400/-), fixed monthly salary of Rs. 5840/- in the said scale. It was provided that until further orders, the employee concerned would have to work at the particular depot. 4440-7400 (Pay Grade Rs. 1400/-), fixed monthly salary of Rs. 5840/- in the said scale. It was provided that until further orders, the employee concerned would have to work at the particular depot. 3.2 A grievance is sought to be raised by the petitioners that the aforesaid pay-scale granted to those working on the post of Conductor is pay-scale of a Class-IV employee and that the pay-scale of Class-III employee was higher. It is the case of the petitioners that their pay-scale was required to be fixed in the said Class-III scale of Rs. 5200-20200 with Pay Grade of Rs. 1900/-. It was further submitted that the Corporation issued Circular dated 28th December, 2016 whereby all the employees working on ad hoc basis were given bonus. It was submitted that in the Notification issued, posts of Drivers and Conductors were not included in Class-IV post but the post of Watchmen, Labourers, etc. were mentioned as Class-IV post. 4. Learned advocate for the petitioners submitted that though the petitioners were granted pay-scale on completion of five years, they were given the post of Class-IV employees and not the Class-III employees, and that they are entitled to get the Class-III scale of Rs. 5200-20200 which is the correct corresponding pay-scale to be granted to the petitioners. It was further submitted that the Corporation fixed the pay-scale for the post of Driver-cum-Conductor at Rs. 5200-20200. It was submitted that the petitioners were paid less amount of salary than such Driver-cum-Conductors which amounted to discriminatory treatment. 4.1 The petitions were contested and the prayers were opposed by respondent No. 3 by filing affidavit-in-reply. On the basis of the affidavit-in-reply, learned senior advocate for the respondent - Corporation raised two main submissions to elaborate them. The first was that recognised Unions had filed Special Civil Application No. 2319 of 2012 and that the issue about granting of pay-scale came to be decided as per the judgment and order dated 15th February, 2016 passed in the said petition and that the said material fact had been suppressed from the Court. 4.2 The second submission was based on the aspect that the employees through their registered Union entered into a settlement with the GSRTC under Section 12(3)(b) of the Industrial Disputes Act, 1947 and that the said settlement would bind the petitioners. 4.2 The second submission was based on the aspect that the employees through their registered Union entered into a settlement with the GSRTC under Section 12(3)(b) of the Industrial Disputes Act, 1947 and that the said settlement would bind the petitioners. It was submitted that the petitioners would not get the pay-scale other than agreed upon and decided in the settlement between the unions and the Corporation. 4.3 It was next submitted that as per General Standing Order No. 645 of 1979 the cadre of Conductor was included in Class-III post. It was further submitted that the pay-scale which the petitioners have been asking for is the pay-scale is not of the Conductors but that of the cadre of Driver-cum-Conductor. As regards the case of the petitioners about extending bonus to the ad hoc employees, it was submitted that the petitioners' entitlement to get the Class-III scale would not arise as they were Conductors. 5. At the outset it may be stated that it is the uncontroverted position stated by the Corporation that the cadres of Class-II and Class-III are identified with different posts. The petitioners who are working as Conductors are treated under Class-IV post whereas Driver-cum-Conductors belong to the Class-III post. 5.1 In addition to the above, it was given out on behalf of the respondent - Corporation that settlement under the Industrial Disputes Act, 1947 was arrived at between the recognised Unions and the employees and the pay-scales were agreed and fixed. It was uncontrovertedly stated that such pay-scales are applied to the petitioners at the end of the five years. 5.2 In this regard, Section 18 of the Industrial Disputes Act, 1947 may be noticed. "18. Persons on whom settlements and awards are binding. - (1) A settlement arrived at by agreement between the employer and workman otherwise than in the course of conciliation proceeding shall be binding on the parties to the agreement. (2) Subject to the provisions of sub-section (3), an arbitration award which has become enforceable shall be binding on the parties to the agreement who referred the dispute to arbitration. - (1) A settlement arrived at by agreement between the employer and workman otherwise than in the course of conciliation proceeding shall be binding on the parties to the agreement. (2) Subject to the provisions of sub-section (3), an arbitration award which has become enforceable shall be binding on the parties to the agreement who referred the dispute to arbitration. (3) A settlement arrived at in the course of conciliation proceedings under this Act or an arbitration award in a case where a notification has been issued under sub-section (3A) of section 10A or an award of a Labour Court, Tribunal or National Tribunal which has become enforceable shall be binding on- (a) all parties to he industrial dispute;" (b) all other parties summoned to appear in the proceedings as parties to the dispute, unless the Board, arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, records the opinion that they were so summoned without proper cause; (c) where a party referred to in clause (a) or clause (b) is an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates; (d) where a party referred to in clause (a) or clause (b) is composed of workmen, all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part." 5.3 In view of sub-section (3) of Section 18 as above, the settlement arrived at in terms of the conciliation proceedings is binding not only to all the parties of industrial dispute but as contemplated in Clause (d) of sub-section (3), where a party referred to in Clause (a) is composed of workmen or settlement would be binding to all the persons who were employed in the establishment or who are part of the establishment to which the dispute relates to and further that all persons who may subsequently become employee in that establishment or part. 5.4 Thus, the settlement would bind the petitioners. 5.4 Thus, the settlement would bind the petitioners. Though it was sought to be submitted on behalf of the petitioners in this regard that settlement was arrived on 31st March, 2008 whereas the appointments of the petitioners were subsequent, however the settlement even if entered prior in point of time, would have statutory operation and the same would override the terms and conditions of the appointment order. The conditions in the appointment letter could not negate the applicability and operations of the statutory effect of the settlement which would bind the petitioners herein. 5.5 Furthermore, in the additional affidavit-in-reply, the corporation has stated that even new settlement has come into force with three recognised workers' Union representing the employees of the Corporation which are (a) Gujarat State Transport Workers Federation (Majoor Mahajan); (b) Gujarat State S.T. Employees Mahamandal (INTUC) and (c) Gujarat S.T. Majoor Mahasangh (B.M.S.). It was uncontrovertedly stated that the said three Unions have submitted a chartered of demands on 01st August, 2018, the employees went on strike pursuant thereto and on 06th March, 2019, in the presence of parties, the issue was resolved by arriving at an agreement. It was submitted that the petitioners have accepted these settlement also. 5.6 It was stated with regard to the new settlements arrived at that the Corporation issued Resolution No. 2149 with reference to the settlements. Therein the Conductors were given pay-scale of Rs. 15700-50000 with Grade Pay of Rs. 1650/- as per the Seventh Pay Commission as against the pay-scale of Rs. 4440-7400 with Grade Pay of Rs. 400/-. It may be recollected that the grievance of the petitioners relates to this pay-scale of Rs. 4440-7400 but now the new corresponding scale has been given under the fresh settlement arrived at. It was also stated that the Drivers were given pay-scale of Rs. 18000-56900 with Grade Pay of Rs. 1800/- as against pay-scale of Rs. 4440-7400 as per the Seventh Pay Commission. 5.7 There is no gainsaying in law that the present petitioners are bound by the settlement. In any view, if there is any grievance about the latest settlement in which the pay-scales are dealt with and agreed upon, it is open to the petitioners to chose their remedy available in law in that regard. 6. Besides the above consideration which render the petition liable to be dismissed, there is a weightier and clinching aspect. In any view, if there is any grievance about the latest settlement in which the pay-scales are dealt with and agreed upon, it is open to the petitioners to chose their remedy available in law in that regard. 6. Besides the above consideration which render the petition liable to be dismissed, there is a weightier and clinching aspect. The G.S.R.T.C. Driver, Conductors, Traffic Staff Association, a registered trade union representing member employees of respondent No. 3 - GSRTC had filed Special Civil Application No. 2319 of 2012 wherein prayer was made to direct the GSRTC to pay the scale of Drivers and Conductors in particular pay-scale and to pay them the arrears as per the benefits of Sixth Pay Commission Recommendations at par with the government employees. In that petition, it was the case put forth that members of the Union who were Drivers, Conductors and Traffic Staff were aggrieved by fixation of pay-scale of Rs. 4400-7400 instead of Rs. 5400-20200. The defence of the respondent employer was that settlements were signed between the union and the Corporation under Section 12(3)(b) of the Industrial Disputes Act. The workers had accepted the settlement and the pay-scales were fixed accordingly. 6.1 The Division Bench in GSRTC Driver, Conductor, Traffic Staff Association (supra) declined to accept the prayer on the ground that the settlement under the Industrial Disputes Act was entered into. It was observed and held thus, "4. Having heard learned counsels for the parties and on perusal of record, including the reply affidavit filed on behalf of the respondent Corporation, we are not inclined to accept the prayer made by the petitioner since the respondent Corporation has entered into settlement under Section 12(3)(B) of the Industrial Disputes Act, 1947 with recognized unions of GSRTC. Further, based on such settlement, Circular dated 07.09.2002 is issued to all recognized unions where it is averred that no change would be made by Corporation without consulting the recognized unions in conditions of service, which are existing. Even, on 03.11.2010 General Manager [Administration] of the respondent Corporation issued circular which inter alia deals with pay fixation to employees of the respondent - Corporation pursuant to the necessary sanction granted by the Government in this regard. Even, on 03.11.2010 General Manager [Administration] of the respondent Corporation issued circular which inter alia deals with pay fixation to employees of the respondent - Corporation pursuant to the necessary sanction granted by the Government in this regard. The above circular referred to the discussion which took place between recognized unions on 25.08.2010 and referred the following conditions: "[i] Having regard to Pay Band and Grade Pay as decided by the Govt. As found in Annexure-1, the employees of the Corporation will be paid in the pay scales of amended pay structure; and [ii] The period of settlement would be for a period of 10 years i.e. to say that it would be in effect up to 31/3/2018 and according to settlement the changes would be made only in pay scales and HRA and rest of the allowances would be paid according to existing settlement in force introduced by the Corporation." 6.2 It was further elaborated by the Division Bench. "5. Pursuant to the above discussions with the recognized unions, the pay scales would be paid in cash from 01.01.2011 and effect shall be given from 01.04.2008 and period from 01.01.2006 to 31.03.2008 will be treated as notional. Even circulars are issued to the above effect. Fixation of pay and pay scales were introduced and it is clearly laid down how Pay Band was required to be decided and Grade Pay would be accordingly fixed. The respondent - Corporation has also produced a chart to show that what are the pay scales of Government of Gujarat employees and the pay scales of employees of the respondent Corporation and in many cadres if actual 6th Pay Commission pay scales are accepted the unions and their members, class-III and IV employees of the respondent - Corporation will not be at an advantage as there are several pay scales, which are being given in past and the allowances which are being given to them are better under the settlement. Even, drivers with the respondent Corporation are getting better pay, overtime and other allowances than the drivers of the Government of Gujarat, where no such benefits are given. Thus, on facts, the respondent No. 1 is justified in granting proper pay scales in different cadres." 6.3 It was in terms held that no parity of pay-scales other than what was agreed and considered in the various settlements could be conferred upon the employees. "6. Thus, on facts, the respondent No. 1 is justified in granting proper pay scales in different cadres." 6.3 It was in terms held that no parity of pay-scales other than what was agreed and considered in the various settlements could be conferred upon the employees. "6. The contention of Mr. Iyer, learned counsel for the petitioner about applicability of revision of pay rules and other such rules framed in exercise of powers conferred under proviso to Article 309 of the Constitution India for employee of Department of Transportation of State of Gujarat are also applicable to the respondent Corporation, no such material is produced on record. However, on perusal of such rules as shown would reveal that the said Rules and pay revision would ipso facto not applicable to the employees of respondent Corporation and their service conditions are governed under Gujarat State Road Transport Corporation [Pay Revision] Rules, 2010 framed in exercise of powers conferred under Section 45 of the Gujarat State Transportation Corporation Act, 1950. Collectively, we are of the considered opinion that no parity of pay scales other than what is in vogue pursuant to various settlements arrived at with recognized unions of respondent Corporation under Section 12(3)(b) of the Industrial Disputes Act, 1947, can be conferred upon the employees of the petitioner union." 6.4 When the aforesaid observations and position of law laid down by the Division Bench in G.S.R.T.C. Driver, Conductor, Traffic Staff Association (supra) holds the field, any relief contrary to or in conflict with the same, could hardly be granted. The petitioners are not entitled to the relief prayed for, on all the scores above. 7. For the foregoing reasons and discussion, all the petitions are meritless. They are hereby dismissed. Notice in each of the petitions is discharged. No costs.