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2024 DIGILAW 1727 (GUJ)

SARDAR SAROVAR NIGAM LTD. v. PWD EMPLOYEES UNION

2024-08-14

A.S.SUPEHIA, MAUNA M.BHATT

body2024
JUDGMENT : A.S. SUPEHIA, J. 1. ADMIT. Learned advocates appear and waive service of notice of admission on behalf of the respective respondents appearing in the respective appeals. 2. With the consent of the learned advocates appearing for the respective parties, the matters are taken up for final hearing today itself. 3. The present Letters Patent Appeals filed under Clause 15 of the Letters Patent, 1865, are directed against the judgments and order dated 08.02.2024 (in Letters Patent Appeal Nos.1293 and 1294 of 2024) and dated 05.03.2024 (in Letters Patent Appeal No. 1295 of 2024) by the learned Single Judge in the captioned writ petitions, whereby the learned Single Judge has allowed the writ petitions and further directed the appellant-authorities to fix the salary of the respondent-employees on the basis of the pay-scale of Rs.950-1400/- from the date of completion of 15 years of service and they are also held to be entitled for the arrears. 4. At the outset, learned Government Pleader Mr. Verk, appearing for the appellant-State authorities has submitted that the learned Single Judge has not delved into the issue of the eligibility of the respondent-employees, as envisaged in the Resolution dated 17.05.1989. While inviting our attention to the said Resolution, he has submitted that only those semiskilled workers, who possess the certificate of wireman, are entitled to the pay-scale of Rs.950-1400/-, whereas the present respondent-employees would fall under the category No. 2 of the said Resolution dated 17.05.1989, which stipulates the pay-scale of Rs.750-940/- since they do not possess the said certificate. 5. Learned Government Pleader Mr. Verk, has further submitted that at the time of fixation of the pay-scale in the year 1998 vide order dated 28.05.1998, it was clarified that in future, if it is noticed that the pay-scale is incorrectly fixed, the excess amount is required to be recovered from the employees. He has also referred to the pay fixation order dated 09.11.2009 passed by the appellant-Corporation and has submitted that similar condition is envisaged in the said order. 6. Learned Government Pleader Mr. He has also referred to the pay fixation order dated 09.11.2009 passed by the appellant-Corporation and has submitted that similar condition is envisaged in the said order. 6. Learned Government Pleader Mr. Verk, has further submitted that on realizing that their pay-scale of Rs.950-1400 was incorrectly extended, the appellants passed the order re- fixing their pay-scale and the same was reduced to Rs.750- 940/- after they completed 15 years of service since they were unqualified and accordingly, the re-fixation and recovery orders were passed, which were assailed in the captioned writ petitions. 7. Learned Government Pleader has submitted that a specific contention was raised before the learned Single Judge pointing out the aforesaid facts however, the learned Single Judge has not dealt with the same, though the averments of the affidavit-in-reply have been incorporated in the judgment itself. Thus, it is urged that since the respondent-employees were unqualified, when they were extended the pay-scale of Rs.950-1400/- after completion of 15 years, the appellant-authorities have corrected their pay-scale and accordingly, ordered recovery. It is submitted that looking to the qualification, at the relevant time, when the respondent-employees have completed 15 years of service, they would be entitled to the pay-scale of Rs.750-940/-. Thus, it is urged that the appeals may be allowed by quashing and setting the judgment and order passed by the learned Single Judge. 8. In his usual vehemence, learned Senior Advocate Mr. Shalin Mehta, while responding to the submissions advanced by the learned Government Pleader, has submitted that the judgment and order passed by the learned Single Judge does not require any interference since the same is precisely passed after appreciating the service rendered by the respondent-employees. He has submitted that the respondents have categorically stated that they were correctly conferred the pay-scale of Rs.950-1400/- after completion of 15 years of service in view of the Government Resolution dated 17.10.1988. He has submitted that it is an admitted fact that the respondent-employees are semi-skilled and were not possessing the certificate of wireman, however, the said clause of the Resolution dated 17.05.1989, on which the reliance is placed by the appellants would not apply in the case of the respondent-employees since as per the provisions of the Resolution dated 17.10.1988, the semi-skilled workers after completion of 15 years are entitled to the pay-scale of Rs.950- 1400/-. Thus, it is submitted that the provisions of the Resolution dated 17.10.1988 clearly stipulates that those, who are semi-skilled workers and after they complete 15 years of service, they are placed in the pay-scale of Rs.950-1400/-. He has pointed out the Office Order fixing and granting the payscale of Rs.950-1400/- to the respondent- employees after completion of 15 years of service. Thus, it is submitted that the issue is not with regard to the qualification/wireman certificate, but the conferral of pay-scale after completion of 15 years of service. 9. Learned Senior Advocate Mr. Mehta, while placing reliance on the judgment dated 05.07.2019 passed by the Coordinate Bench in Letters Patent Appeal No. 1291 of 2018 and allied matters has urged that the present Letters Patent Appeals may not be entertained as the issue is squarely covered by the judgment of the Division Bench, as the Coordinate Bench, while examining the identical issue, has dismissed the Letters Patent Appeals filed by the State authorities. Thus, it is urged that the present Letters Patents Appeal may not be entertained. 10. We have heard the learned advocates appearing for the respective parties at length. 11. On a perusal of the judgment and order passed by the learned Single Judge, which is impugned in the present Letters Patent Appeals, we find that the learned Single Judge has not dealt with the issue, which is raised by the learned Government Pleader before us. Instead of remanding the matter, in the fitness of things, we think that since the pay fixation of the respondent-employees travels way back to the year 1998, we have addressed the issue raised before us. We have heard the learned advocates appearing for the respective parties on the issue of qualification/possessing of certificate of Wireman. 12. The facts, which are established from the pleadings, are that all the respondent- employees, after completion of 15 years of service, were conferred the pay-scale of Rs.950-1400. They were conferred the said pay scale in the year 1998. It is not in dispute that the respondents are semi-skilled workmen, and do not possess the Wireman Certificate. The Office Order, which fixes their pay of Rs.950-1400 evidently envisages that the same is premised on the Government Resolution dated 17.10.1988. They were conferred the said pay scale in the year 1998. It is not in dispute that the respondents are semi-skilled workmen, and do not possess the Wireman Certificate. The Office Order, which fixes their pay of Rs.950-1400 evidently envisages that the same is premised on the Government Resolution dated 17.10.1988. The Government Resolution dated 17.10.1988, more particularly paragraph No. 4 clarifies that a semi-skilled worker, who has completed 15 years of service, as per the provisions of Section 25(B) of the Industrial Disputes Act, 1947 is entitled to the pay-scale of a skilled worker. This Resolution is silent about the qualification, which is required to be possessed by a semi-skilled worker, who has completed 15 years of service. It is not disputed by the appellants that the pay scale of skilled workman is Rs.950-1400/1500. Thus, after the respondent-employees who were semi-skilled were placed in the pay scale of Rs.950-1400/1500 on completion of 15 years. After the respondents were placed in the said pay scale, subsequently their pay scale has been also revised from time to time, in view of revision of pay Rules. 13. Thus, all the employees, who are conferred the benefit of pay-scale of Rs.950-1400/1500, which is meant for the skilled worker. Subsequently, it appears that the Road and Building Department issued a Resolution dated 17.05.1989 clarifying that the semi-skilled workers, who possess wireman certificate or equivalent certificate are entitled to pay-scale of Rs.950- 1400/- whereas other semi-skilled helpers would be entitled to the pay-scale of Rs.750-940/-. An objection was taken in the year 2009 that the respondents were illegally granted the pay scale of Rs.950-1400/1500 in view of the said Resolution, and thereafter the appellants placed the respondents in lower pay scale and also ordered recovery. Some of the respondents were also retired from service. The said Resolution nowhere mentions about the length of service, by a semi-skilled worker. Thus, the provisions of the Government Resolution dated 17.05.1989, on which the reliance is placed by the learned Government Pleader, do not stand in conflict with the Resolution dated 17.10.1988, as the Resolution dated 17.10.1988 categorically says that a semi-skilled worker on completion of 15 years of service, is entitled to the pay-scale of skilled worker. It is not disputed before us that a semi-skilled worker is entitled to the pay-scale of Rs.950-1400/1500 of skilled workman after he completes 15 years of service. 14. It is not disputed before us that a semi-skilled worker is entitled to the pay-scale of Rs.950-1400/1500 of skilled workman after he completes 15 years of service. 14. At this stage, it would be apposite to refer to the judgment of the Coordinate Bench of this Court dated 05.07.2019 passed in Letters Patent Appeal No. 1291 of 2018 and allied matters. By examining an analogous issue, Coordinate Bench has held thus: “3. Assailing these findings of the learned Single Judge, Ms. Nisha Thakore, learned AGP, submitted that the respondents original petitioners were incorrectly granted the benefit of the pay scale of Rs.950-1500/- in the year 2001. The consequential revision in the scale of Rs.3050-4590/- and 5200-20200/- could not have therefore been granted. According to Ms. Thakore, the pay scale ought to have been continued to be in the initial pay scale of Rs.750-940/- to be revised to Rs.2550-3200/- and to that of Rs.4440-7440/-. Primarily, this was because as per the Resolution dated 15.03.2010 by which the department adopted the 6th Pay Commission recommendations, since the original petitioners were not possessing the certificate of second class wireman, they were only entitled to the pay scale of Rs.4440-7440/- and not 5200-20200/-. According to Ms. Thakore, the Government Resolution dated 17.05.1989, categorically suggested that only those daily wagers/rojamdars who had the second class wireman certificate or an equivalent qualification would be entitled to the pre revised scale of Rs.950-1400/- and consequentially the revised scale of Rs.5200- 20200/-. 4. Mr. Shalin Mehta, learned Senior Advocate appearing with Ms. Vidhi Bhatt, supported the judgment of the learned Single Judge. In his submission, having worked in the department since 1974 especially carrying out skilled work as so opined even by the departmental head by a communication dated 20.09.2010, their fixation in the scale of 950-1500/- and consequential revision in the scale of Rs.3050-4590/- entitled them to the revision of Rs.5200-20200/- even if they did not posses the qualification of second class wireman. 5. Considering the above, the chronology of their service details would suggest that: (I) The petitioners were with the department initially as daily wagers since 1972/74. They became work charge helpers in the year 1989. (II) Though initially they were granted the pay scale of Rs.750-940/- in the year 2001 it was revised to Rs.950-1500/- w.e.f 07.04.1988. The order of revision of the year 2001 categorically states of such revision. They became work charge helpers in the year 1989. (II) Though initially they were granted the pay scale of Rs.750-940/- in the year 2001 it was revised to Rs.950-1500/- w.e.f 07.04.1988. The order of revision of the year 2001 categorically states of such revision. (III) Corresponding revision was granted in the scale of Rs.3050-4590/- w.e.f. 01.01.1998. (IV) Communication dated 20.09.2010 unequivocally indicates that having rendered several years of service and gained experience and since they had undergone training in the mechanical section and they were operating canal gates, they were entitled to the pay scale of Rs.3050-4590/-. The submission therefore of Ms. Nisha Thakore, that once the Resolution of 17.05.1989 specifically indicated that the pre revised scale of Rs.950-1500/- corresponding to the scale of Rs.3050-4590/- could not be granted to the petitioners as admittedly they were not possessing the requisite certificate does not appear to be in sync with the communications of the department itself though the Resolution of 17.05.1989 when read with the resolution dated 15.03.2010 would suggest that a pay scale of Rs.5200-20200/- was only available to a worker possessing second class wireman certificate. The petitioners having rendered more than 28 years of service since 1975 had gained sufficient experience to be entitled to the pay scale of Rs.5200-20200/- as rightly opined by the departmental communication dated 20.09.2010. (V) In addition to the fact that the respondent-original petitioners had gained experience over a period of two and a half decades in the department, the interpretation of the government should fall flat when it is seen in the context of the Resolution dated 17.10.1988. The Resolution dated 17.10.1988 particularly Clause 3 thereof clearly stipulates that on completion of more than ten years but less than fifteen years of service, semi skilled daily wagers are entitled to the pay scale which skilled daily wagers are getting. In spirit of this resolution therefore, the petitioners having completed more than ten years of service, in fact having rendered approximately 25 years of service in the year 2001 rightly became entitled to the pay scale of Rs.950- 1500/- and therefore even on this count the impugned communication dated 03.03.2011 withdrawing such a pay scale and denying them the benefit of pay scale 5200- 20200/- would run counter to the spirit of the resolution of 17.10.1988. 5.1 The learned Single Judge in our opinion has therefore rightly relied on a decision in the case of Bhagwati Prasad vs. Delhi State Mineral Development Corporation, (1990) 1 SCC 361 and placed reliance on Para-6 thereof, which reads as under: “6. The main controversy centres round the question whether some petitioners are possessed of the requisite qualifications to hold the posts so as to entitle them to be confirmed in the respective posts held by them. The indisputable facts are that the petitioners were appointed between the period 1983 and 1986 ever since, they have been working and have gained sufficient experience in the actual discharge of duties attached to the posts held by them. Practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service. Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications. In our view, three years’ experience, ignoring artificial break in service for short period/periods created by the respondent, in the circumstances, would be sufficient for confirmation. If there is a gap of more than three months between the period of termination and re-appointment that period may be excluded in the computation of the three years period. Since the petitioners before us satisfy the requirement of three years’ service as calculated above, we direct that 40 of the senior-most workmen should be regularised with immediate effect and the remaining 118 petitioners should be regularised in a phased manner, before April 1, 1991 and promoted to the next higher post according to the standing orders. All the petitioners are entitled to equal pay at par with the persons appointed on regular basis to the similar post or discharge similar duties, and are entitled to the scale of pay and all allowances revised from time to time for the said posts. We further direct that 16 of the petitioners who are ousted from the service pending the writ petition should be reinstated immediately. We further direct that 16 of the petitioners who are ousted from the service pending the writ petition should be reinstated immediately. Suitable promotional avenues should be created and the respondent should consider the eligible candidates for being promoted to such posts. The respondent is directed to deposit a sum of Rs.10,000/- in the Registry of this Court within four weeks to meet the remuneration of the Industrial Tribunal. The writ petitions are accordingly allowed, but without costs.” 15. Thus, the Coordinate Bench, while examining the similar issue and similar Government Resolutions dated 17.10.1988 and 17.05.1989 has set aside the order of recovery and re- fixation of pay in the cases of those helpers/workers, who did not possess Wireman Certificate. In the present case, the appellants have cancelled the pay scale and ordered recovery after a period of 20 years. It is pertinent to note that for all these years the employees, the pay scale of the employees were also revised from time to time and the same was also subject to scrutiny to Local Fund Audit, however, no objection was raised by it. 16. We do not find any reason to deviate from the observations made by the Coordinate Bench in the judgment dated 05.07.2019. Hence, the Letters Patent Appeals fails and the same are dismissed. Civil Applications also stand disposed of accordingly.