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Gujarat High Court · body

2022 DIGILAW 1774 (GUJ)

UDAY MANGALDAS PAREKH v. ADDITIONAL ENGINEER

2022-12-15

NIRZAR S.DESAI

body2022
JUDGMENT : NIRZAR S. DESAI, J. 1. By way of both these petitions, the petitioners of respective petitions have challenged the award dated 25.02.2012 passed by the Industrial Tribunal, Ahmedabad below Exh.47 in Reference (IT) Case No. 143 of 2006. By way of the aforesaid award, the Labour Court partly allowed the reference of workman and issued a direction upon the employer and held the action of the respondent-Gujarat Energy Transmission Limited of not promoting the workman as Switch Board Operator, Grade-II from the feeder cadre of helper in the year 1994 as illegal and unreasonable and the Labour Court further ordered the employer to give the workman the cadre of a person immediately junior to the workman in the year 1994 and who has been granted promotion in Switch Board Operator, Grade-II and was in service on the date of award and to grant the same benefits by ordering refixation of salary within a period of 30 days. 2. The Labour Court also observed and held that the workman shall not be entitled to any arrears and shall not be entitled to any seniority in the channel of promotional post of Switch Board Operator, Grade-II. The aforesaid order has been challenged by the workman and employer Gujarat Energy Transmission Limited. 3. Special Civil Application No. 14361 of 2013 is preferred by the workman whereas Special Civil Application No. 3330 of 2014 has been preferred by the employer Gujarat Energy Transmission Company Limited challenging the same award. Considering the fact that very award is under challenge by way of both the petitions. 4. The facts are stated from Special Civil Application No. 3330 of 2014 which are as under: The workman Mr. Parekh was appointed as Helper in the year 1990 in the erstwhile company GEB. In the aforesaid Company, there were two channels of promotion at the relevant point of time, as per the Rule prescribed under GSO 315 from feeder cadre of helper, one of the Assistant Lineman and second was Switch Board Operator, Grade-II. Parekh was appointed as Helper in the year 1990 in the erstwhile company GEB. In the aforesaid Company, there were two channels of promotion at the relevant point of time, as per the Rule prescribed under GSO 315 from feeder cadre of helper, one of the Assistant Lineman and second was Switch Board Operator, Grade-II. However, for getting promotion from helper to Assistant Lineman, as per the case of the Company, the person who is standard 9th pass would as per standing order get promotion to the post of Assistant Lineman for which the qualification was that the candidate should have passed standard 9th and he should be able to write reports independently whereas for the post of Switch Board Operator, Grade-II, the qualification as per the standing order was that the person should have studied up to SCC and obtain first class supervisor certificate, second class, wire-man of ITI. In view of above promotional avenues, till 2001, the respondent Company interpreted the Rules as if a person who is standard 9th passed but standard 10th failed, he would be promoted for the post of helper to the post of Assistant Lineman and if a person is standard 10th passed, in that case, that person would be promoted from the post of helper to the post of Switch Board Operator, Grade-II. The educational qualification of the workman is that he has studied up to standard 9th and holding second class certificate of the wire-man. On the basis of the aforesaid qualification, since the workman did not pass the standard 10th examination but has passed standard 9th in the year 1994, he was promoted to the post of Assistant Lineman vide order dated 01.10.1994 and was posted at Viramgam and subsequently, he was posted at Dahegam as well. On the basis of the aforesaid qualification, since the workman did not pass the standard 10th examination but has passed standard 9th in the year 1994, he was promoted to the post of Assistant Lineman vide order dated 01.10.1994 and was posted at Viramgam and subsequently, he was posted at Dahegam as well. Almost 6 to 7 years after the workman was promoted, the respondent Company issued a circular dated 24.10.2001 which was of clarificatory nature and as per the aforesaid circular, in view of various representations received by the authority with regard to the qualification for promotional post of Switch Board Operator, Grade-II from the post of helper and it was clarified that if a person has studied in new SSC system in that case, he should have passed standard 9th and if a person has studied in old SSC system then he should have passed standard 10th for being eligible for promotion to the post of Switch Board Operator, Grade-II, so on the basis of General Standing Order No. 315 prescribing qualification for various posts and qualification for promotional post, the persons who failed in standard 10th but studied upto standard 10th were not promoted to the post of Switch Board Operator, Grade-II as per new SSC system. Since, the petitioner also could not pass the SSC examination as per new SSC instead of promoting him to the cadre of Switch Board Operator, Grade-II in the year 1994, he was promoted to the post of Assistant Linemen. The circular dated 24.10.2001 is absolutely silent as to whether the aforesaid circular was issued after due deliberation between Chief Engineer, Gandhinagar, Chief Engineer, Vanakbori, Chief Engineer (General) and General Manager, HRD and thereafter, whether it was approved by the Board of the respondent Company or not whereas the original General Standing Order no. 315 came into force after following the aforesaid procedure and after it was approved in the board meeting dated 15.06.1990. 315 came into force after following the aforesaid procedure and after it was approved in the board meeting dated 15.06.1990. On the basis of the aforesaid clarificatory certificate dated 24.10.2001, after the circular was published, the respondent company started promoting helpers who passed standard 9th but could not clear standard 10th examination as per the new SCC to the promotional cadre of Switch Board Operator, Grade-II and therefore, being aggrieved by the same, the workman preferred a reference being Reference (IT) No. 143 of 2006 issued by Industrial Tribunal, Ahmedabad and sought relief of promotion from the year 1994 in cadre of Switch Board Operator, Grade-II. 5. Before the Tribunal, the Standing Order No. 315 as well as the clarificatory circular dated 24.10.2001 were placed on record. Before the Tribunal, the workman also gave a pursis and waived his right of seniority, if the Tribunal grants him the benefit of promotion in the cadre of Switch Board Operator, Grade-II and therefore, after considering the material available on record and after following due procedure, the Industrial Tribunal passed the order dated 25.02.2012 which has already been referred in the foregoing paragraphs. 6. Being aggrieved by and feeling dissatisfied with the aforesaid award, both the workman and the Electricity Company have approached this Court by way of two petitions. The workman challenged the aforesaid award for the purpose of arrears from the retrospective date to the petitioner and the difference of wages i.e. arrears and for all consequential benefits to the petitioner in the cadre of Switch Board operator, Grade-II from retrospective date whereas the respondent company challenged the aforesaid award on the ground of delay as the respondent-Company was of view that after having accepted the promotion given to the workman in the year 1994, it was not open for the workman to challenge the same after 12 years in the year 2006. The respondent-Company also challenged the aforesaid award on the ground that if at this juncture, the case of the workman is considered for promotion in cadre of Switch Board Operator, Grade-II, as per the order of Tribunal, in that case, there is likely-hood that there are many other similarly situated persons also may challenge the action of the respondent-Company of not promoting the persons who were standard 10th failed but 9th passed as per the new SSC or are eligible for promotion to the post of Switch Board Operator, Grade-II as per clarificatory circular dated 24.10.2001 but were not promoted subsequently after publication of circular dated 24.10.2001 or were not given any effect of pay scale on the basis of the aforesaid circular. 7. Learned advocate Mr. Dipak Dave appearing for the respondent-Company opposed the aforesaid award on the aforesaid two grounds and submitted that the Tribunal has committed a grave error by not taking into consideration the delay of 12 years in challenging the action of not promoting the workman in the year 1994. He submitted that once the promotion has been accepted by the workman in the year 1994, it was not open for the workman to challenge the aforesaid action and claim promotion in altogether a different channel after a period of 12 years. Learned advocate Mr. Dipak Dave also submitted that channel of Assistant Linemen and Switch Board Operator, Grade-II are two different channels having same feeder cadre and both are of technical nature, in the cadre of Assistant Lineman, a person is required to climb the poll whereas in cadre of Switch Board Operator, Grade-II, he is required to sit in the office and manage the switch board and therefore, the Tribunal has committed an error by allowing the workman to switch from one channel to another channel after gross delay of 12 years and therefore, the impugned award is bad. 8. As far as the petition preferred by the workman is concerned, learned advocate Mr. Dipak Dave submitted that it was the workman who has on his own volition gave a pursis that he was not claiming any benefit of seniority. 8. As far as the petition preferred by the workman is concerned, learned advocate Mr. Dipak Dave submitted that it was the workman who has on his own volition gave a pursis that he was not claiming any benefit of seniority. He pointed out from the pursis that the petitioner himself has waived his right for seniority and therefore, as the seniority has been waived by the petitioner, he is not entitled to any arrears or any difference of pay as the Tribunal has granted the benefit notionally to the workman on the basis of the aforesaid pursis. 9. By making the aforesaid submissions, learned advocate Mr. Dipak Dave prayed for quashing and setting aside the impugned award and he submitted that in case if this Court does not deem it appropriate to quash and set aside the impugned award in that case no further relief be granted in favour of the workman as prayed for by the workman in Special Civil Application No. 14361 of 2013 and that petition be dismissed. 10. Learned advocate Mr. Acharya appearing for the workman in both the matters submitted that circular dated 24.10.2001 is of clarificatory nature. By way of the aforesaid circular, the original rule for promotion has not been amended, the rules remained the same. However, it was only clarified that how those rule for the purpose of promotion are required to be interpreted. 11. By interpreting the aforesaid Rule in favour of the helpers who were standard 9th pass but standard 10th fail as per new SSC, the qualification which the workman possesses after the publication of the aforesaid circular, the respondent company has promoted a number of persons to the post of Switch Board Operator, Grade-II. Considering the fact that nature of circular dated 24.10.2001 is clarificatory, the same would applied retrospectively not prospectively, once there is no change in the rules prescribing the qualification for the purpose of recruitment and promotion, the same are required to be applied uniformly to all the employees and by not applying the aforesaid rules in light of circular dated 24.10.2001 in case of the petitioner retrospectively from the year 1994, the respondent-Company has discriminated the workman. The Industrial Tribunal, therefore, rightly stopped that discrimination and directed the respondent-Company to act as per their own rules and therefore, the order passed by the Tribunal in any way cannot be said to be illegal. The Industrial Tribunal, therefore, rightly stopped that discrimination and directed the respondent-Company to act as per their own rules and therefore, the order passed by the Tribunal in any way cannot be said to be illegal. 12. He further submitted that a situation, because of the circular dated 24.10.2001 which has been acted upon prospectively by the respondent-Company has taken place, whereby the persons junior to the workman started receiving higher salary and were posted on a higher post as according to learned advocate Mr. Acharya post of Switch Board Operator, Grade-II is higher post as compared to the post of Assistant Lineman. 13. He submitted that the respondent-Company being a State owned company must act as a model employer and must ensure that there may not be any discrimination deliberate or otherwise which may cause any heart burning amongst the employees of the company on account of interpretation and operation of same rules in two different manner in respect of two different persons. 14. Learned advocate Mr. Acharya further submitted that as far as his petition i.e. Special Civil Application No. 14361 of 2013 is concerned, the workman has claimed for difference of salary, arrears and other benefits retrospectively from 1994 for the reason that the rules have remained the same and circular of 2001 was required to be operated retrospectively and therefore, the workman was eligible and entitled to all the benefits from the year 1994. He further submitted that the Industrial Tribunal though has directed to pay him the scale of Switch Board Operator, Grade-II has committed a grave error by not directing the respondent-Company to pay him all the benefits with retrospective effect. 15. Mr. Acharya also pointed out the pursis given by the workman before the Industrial Tribunal and submitted that all that has been given up by the workman is seniority only and language of the pursis is crystal clear that the workman has given up the seniority in the cadre of Switch Board Operator, Grade-II in the pursis nowhere, it is stated that the workman has given up all his monetary benefits or that he should be promoted to the post of Switch Board Operator, Grade-II prospectively and not retrospectively. 16. 16. By making the aforesaid submissions, he submitted that this Court may dismiss the petition preferred by the respondent-Company and allow the petition preferred by the workman by granting the prayers of arrears, difference of wages and other consequential benefits as prayed for by the petitioners. 17. During the course of hearing of both these petitions, which were listed from time to time before this Court, upon request made by this Court, learned advocate Mr. Dipak Dave had made available the photocopy of the entire record in the form of a paper book before this Court. The documents produced by way of the aforesaid paper book were not disputed by learned advocate Mr. Acharya and hence, during the course of hearing of both these petitions, for the purpose of examining the documents which were produced before Industrial Tribunal, this Court has relied upon the aforesaid paper book only and all the documents were pointed by both the learned advocates from the aforesaid paper book. 18. I am mentioning about the aforesaid paper book specifically for the reason that though these documents are not the certified copies but are in the form of photocopy. However, the same are not disputed by any of the learned advocates. 19. On perusal of the record, certain facts have emerged undisputed. The undisputed facts are as under: 1. Workman entered the organization in the year 1990 was standard 9th passed and standard 10th failed as per new SSC. 2. Both the petitions were contested mainly on the ground that it is nobody’s case that apart from educational qualification, the workman was not entitled to promotion to the post of Switch Board Operator, Grade-II on account of any other qualification and therefore, the Court has examined the entire issue on the basis of the Standing Order No. 315 and clarificatory circular dated 24.10.2001. 3. It is also an undisputed fact that in the year 1994, the workman was promoted from the post of Helper to the post of Assistant Lineman and there are two separate channels for the purpose of promotion for the post of Helper, one Assistant Linemen and second Switch Board Operator, Grade-II. As per the Standing Order no. 3. It is also an undisputed fact that in the year 1994, the workman was promoted from the post of Helper to the post of Assistant Lineman and there are two separate channels for the purpose of promotion for the post of Helper, one Assistant Linemen and second Switch Board Operator, Grade-II. As per the Standing Order no. 315, the requirement to be promoted to the post of Assistant Linemen is standard 9th pass whereas for the purpose of Switch Board Operator, Grade-II, it is stated that he should have studied up to standard 10th. Initially the pay scale of both the cadres are same. However, once the person enters into a particular channel either of Assistant Lineman or of Switch Board Operator, Grade-II, further pay scales are different on account of promotional avenues in the cadre of Switch Board Operator, Grade-II, there are better promotional avenues as per the say of workman. 20. Therefore, when the workman challenged the action of the respondent of not promoting him in the cadre of Switch Board Operator, Grade-II from the year 1994 on account of circular dated 24.10.2001 as the respondent-Company operate the aforesaid circular prospectively and therefore what is required to be examined is whether the circular dated 24.10.2001 can be said to be prospective in nature or would operative retrospectively. It is true that the Industrial Tribunal though has examined the issue thoroughly but whether the circular would operate prospectively or retrospectively has not been examined by the Industrial Court but since the order of Industrial Tribunal has been contested by learned advocate Mr. Dave on behalf of the respondent-Company on the ground of delay of 12 years, according to this Court, that issue is required to be examined. 21. On perusal of circular dated 24.10.2001, the circular only states that after due deliberations the circular has been issued on the basis of representations received by various employees to interpret it in a particular manner as the persons who have passed standard 9th but standard 10th failed and it has been interpreted as if for promotion to the post of Switch Board Operator, Grade-II, a person should be SSC pass as per the Standing Order no. 315, the clarificatory circular dated 24.10.2001 was issued after due deliberations. The circular is signed by General Manager, HRD. 315, the clarificatory circular dated 24.10.2001 was issued after due deliberations. The circular is signed by General Manager, HRD. What has been clarified by the aforesaid circular is that if an employee has studied in new SSC educational system and is standard 9th passed and if an employee studied in old educational system and if he is standard 10th passed in that case, he should be promoted to the post of Switch Board Operator, Grade-II. 22. Now this circular also mentions about General Standing Order No. 315 and therefore, General Standing Order no. 315 is required to be seen. General Standing Order No. 315 is dated 10.07.1990 and was passed on the basis of the recommendation made by committee of Chief Engineer, Gandhiangar, Chief Engineer, Vanakbori and Generation and General Manager (HRD) on the basis of recommendations made by the aforesaid committee, the recommendations were placed before the board in its meeting held on 15.06.1990 and accordingly the qualification, experience and channel of promotion for technical post were prescribed. If the circular as well as standing order, both are compared, the circular bears the signature of General Manager, HRD only and it is silent as to whether before issuing any such clarifications, the same procedure has been followed or not. However, considering the fact that the aforesaid circular has been acted upon by the respondent-Company since 2001 for the benefit of its employees for grant of promotion and also considering the fact that the aforesaid circular or its validity is not under challenge before this Court and all that has been prayed for by the workman and considered by the Industrial Tribunal is the fact that if other persons are granted promotion on the basis of clarificatory issued vide circular dated 24.10.2001, whether the workman is also entitled to the benefit of circular dated 24.10.2001 or not and whether that circular would operate retrospectively or prospectively as the respondent-Company has raised the issue of delay. 23. Considering the fact that by way of circular dated 24.10.2001, rules providing the qualification, experience and channel of promotion for technical post are not amended or altered. 23. Considering the fact that by way of circular dated 24.10.2001, rules providing the qualification, experience and channel of promotion for technical post are not amended or altered. The circular is of clarificatory nature and therefore, if without there being any amendment in the original rules any clarification is issued in that case, once the original rule remains the same, the circular also would operate from the date of standing order and therefore, the circular is clarificatory in nature and therefore, the benefit of the circular ought to have been given to the employees who were promoted even prior to issuance of circular. 24. The entire case of the respondent Company is revolving around the fact that the petitioner was offered promotion in the year 1994 in the cadre of Assistant Linemen which without any notice, the workman has accepted, the circular was published in the year 2001 and the dispute was raised about the promotion by the workman in the year 2006 and hence, there is a delay of 12 years and therefore, the reference was required to be dismissed on the ground of delay itself. While considering the aforesaid submission, what is required to be born in mind is the fact that the present workman at the relevant point of time was serving in the Class-IV cadre. At the time when he was promoted to the post of Assistant Linemen, the clarificatory circular was not there, it came to be published only on 24.10.2001 i.e. almost after seven years after the workman was promoted to the post of Assistant Lineman and that 2001 circular was issued by the workman in support of his claim for promotion to the post of Switch Board Operator, Grade-II in the year 2006 i.e. after five years. 25. Since, the respondent-Company started giving promotion to the person who were standard 10th failed, but standard 9th passed on the basis of clarificatory circular dated 24.10.2001 with every single promotion to the identically qualified person who is junior to the workman, the workman’s right to get promotion to the post of Switch Board Operator, Grade-II got effected. The persons junior to the respondent workman were marching ahead in the cadre of Switch Board Operator, Grade-II and though, it has not been admitted by learned advocate Mr. The persons junior to the respondent workman were marching ahead in the cadre of Switch Board Operator, Grade-II and though, it has not been admitted by learned advocate Mr. Dave that promotional avenues in channel of Switch Board Operator, Grade-II are better, the fact remains that when a number of persons having identical qualification as compared to the workman represented before the respondent-Company to promote them in the channel of Switch Board Operator, Grade-II and acceding to their representation when rules were interpreted and clarificatory circular was issued in the year 2001, if both channels are having same benefits, in that case, such number of representations etc. would not have come and it would not have been considered by the respondent-Company. 26. However, since that issue is not before this Court, without entering further into the controversy, when by way of a circular, same rules are interpreted in such a manner that it may benefit the employees then if a person seeking any benefit on the basis of that circular and it must not be denied to that persons on the ground of delay keeping in mind the very object behind the clarificatory circular. 27. Further with every single promotion to the person who is identically qualified but junior to the workman, the workman would get effected and therefore, even if there is delay of 14 years, the grievance of respondent-workman was justified that he was required to be promoted from the year 1994 and more particularly, when he was ready to give up seniority. Further even delay also cannot be said to be of 14 years, if the circular dated 24.10.2001 was published in the year 2001 only and if the same was relied upon and benefits were prayed in the year 2006, it cannot be said that the workman has belatedly approached the reference Court, the date of publication of circular and its implementation are two different aspects what has been pointed out by learned advocate Mr. Dave is the fact that the circular was published on 24.10.2001, however, in absence of any material showing that when the respondent-Company acted upon the aforesaid circular and promoted the workman junior to the workman, it cannot be said to the reference preferred by the workman was suffering from the vise of delay. Therefore, the aforesaid contention of Mr. Dave cannot be accepted. 28. Therefore, the aforesaid contention of Mr. Dave cannot be accepted. 28. As far as the second contention of Mr. Dave that if the order of the Industrial Tribunal is allowed to stand, in that case, it may create complications in the respondent-Company as there is a likely-hood that a number of other persons also may come forward and may claim the similar benefits. The aforesaid contention also cannot be accepted for the fact that the clarificatory circular was issued by the respondent-Company on the basis of representations that was received by the company, once the circular was the creation of company itself, the company cannot run away from its effect. Before issuance of circular of 2001, the company as stated in circular itself, there was due deliberation, what was deliberated by the then officer of the company is not known but if the circular was published after due deliberations, even the consequential effects of the circular also must have been thought by the company at the relevant point of time and therefore, now after granting the benefits of that clarificaory circular dated 24.10.2001 to so many employees the company cannot run away from its responsibility and liability to treat other employees equally and cannot deny the promotion or any other benefits. 29. However, presently, as I am examining the award passed by the Industrial Tribunal, the question about any other employees claiming the same benefit is out of question for the reason that original reference is of the year 2006 though the apprehension about the other employees is shown by the learned advocate for the company, however, there are no details about how many other persons have claimed the benefit in the same line by the respondent-workman is available before this Court. 30. It is needless to say that every claim cannot be considered uniformly, it must be considered independently on the basis of the material and therefore, in respect of every claim, as and when situation arises, the concerned forum can always examining the claim independently on its own merits and therefore, apprehension of Mr. Dave is ill-founded and cannot be accepted. 31. As far as the question about backwages and other consequential benefits like difference of pay and arrears is concerned, then, I have heard learned advocates for the respective parties and I have also perused the record passed by the Industrial Tribunal. Dave is ill-founded and cannot be accepted. 31. As far as the question about backwages and other consequential benefits like difference of pay and arrears is concerned, then, I have heard learned advocates for the respective parties and I have also perused the record passed by the Industrial Tribunal. By granting the workman benefit of cadre of Switch Board Operator, Grade-II as at par with the benefits received by the person junior to the workman having identical educations qualification and in service, the Tribunal was justified in passing the aforesaid order for the reason that the Tribunal tried to strike balance between the respondent-Company as well as workman. 32. When the workman was promoted to the cadre of Assistant Lineman, at that time, that clarificatory circular was not there in the year 1994 and therefore, once that clarification was not there and the workman has actually drawn the salary and allowances of cadre of Assistant Lineman, at belated stage, if that is granted to the workman that would not only cause administrative issues but also would set a bad precedence and every persons would start claiming their rights on the basis of the same past circular and therefore, the Tribunal was justified in granting the benefits to the workman prospectively. 33. In view of the aforesaid discussions as well as on perusal of award passed by the Industrial Tribunal, I do not see any reason to interfere with the aforesaid award and therefore, the same is not interfered with. In the result, both the petitions fails and the same is required to be dismissed and the same is dismissed accordingly. Rule is discharged. No order as to costs.