Andhra HC (Pre-Telangana)
M. Narsaiah vs Managing Director, Apsrtc, ... on 20 June, 2000
Equivalent citations: 2000(4)ALD581, 2000(5)ALT655, [2000(86)FLR936]
ORDER
1. This writ petition is filed seeking writ of mandamus directing the respondents to release notional increments and fix the pay of the petitioner taking into account the notional increments.
2. The facts leading to the filing of the case are as follows: The petitioner was working as conductor in the Andhra Pradesh State Road Transport Corporation. He was removed from service on certain cash and ticket irregularities on 17-6-1981. Thereupon he raised an industrial dispute before the Labour Court. The Labour Court by award dated 17-12-1988, on the basis of the memo filed by the parties, directed reinstatement of the petitioner into service within thirty days from 6-12-1988 with continuity of service but the Corporation should reinstate the petitioner initially as conductor on usual pay and allowances subject to production of valid conductor's licence by the petitioner.
3. In pursuance of the award passed by the Additional Industrial Tribunal-cum-Additional Labour Court in ID No.39 of 1987 the petitioner was reinstated into service in the year 1989. However, the grievance of the petitioner is that his pay was not properly fixed and his notional increments were not taken into consideration while fixing his pay. Therefore, after issuing notice'to the Corporation the petitioner has filed the present writ petition seeking appropriate relief.
4. The learned Counsel appearing for the petitioner submitted that the Labour Court passed the award granting reinstatement with continuity of service and therefore necessarily the notional increments have to be added to the pay of the petitioner for the purpose of fixation of pay at proper stage and for consequential arrears. He relies on the judgment of this Court in Writ Petition Nos. 11182 and 11186 of 1992 dated 17-10-1995 which has been confirmed by this Court in the case reported in Vice-Chairman, Managing Director, APSRTC, Hyderabad v. N. Raj Reddy, 1997 (2) An.WR 69.
5. On the other hand the learned Standing Counsel for the Corporation submitted that granting notional increments to the petitioner consequent on his reinstatement is not much in dispute as he is entitled for notional increments on the basis of the judgment delivered by this Court. However, the petitioner cannot claim arrears right from 1989 and he can only claim from the date of the filing of the writ petition and as there was inaction on the part of the petitioner he is disentitled to claim the arrears from 1989 as he did not raise in dispute till 1997 and therefore he should be denied arrears consequent on the refixation of pay and the benefits should be released only from the date he filed the writ petition. She heavily relies on the judgment of the Division Bench of this Court in Writ Appeal No.1458 of 1999 dated 14-10-1999, APSRTC v. S. Satyanarayana, (DB). She submitted that there are unexplained laches on the part of the petitioner. Therefore the State cannot be mulcted with financial burden on account of the inaction on the part of the petitioner. She also relies on the decisions of the Supreme Court reported in Sudhir Vishnu Panvalkar v. Bank of India, , State of Mafiarashtra v. Digambar, and The Municipal Council, Ahmednagar and another v. Shah Hyder Beig and others, JT 1999 SC 336.
6. The issue that arises for consideration is whether the petitioner is entitled for fixation of pay with notional increments and consequential arrears from Ihe date of filing the writ petition or from the date when the award became enforceable?
7. The Division Bench of this Court, while considering the situation, as arising under this writ petition, held that the petitioner did not take any steps for a long period and therefore he should be penalised for the unexplained laches and therefor directed arrears of refixation of pay only from the date of filing the writ petition.
8. The learned Counsel for the Corporation submits that the present writ petition is on identical terms and therefore the petitioner will be entitled for arrears only from the date of filing the writ petition but not from the date of implementation of the award.
9. It is no doubt true that in a catena of decisions it is held that the discretionary power vested with this Court under Article 226 of the Constitution of India cannot be exercised in favour of a person who is not active or vigilant in prosecuting his case and that he cannot be rewarded with benefit for his inaction. In the instant case the matter is covered by the provisions of the Industrial Disputes Act (for short 'the Act'). The award was passed by the Labour Court under Section 17-A of the Act and the award becomes enforceable on the expiry of thirty days from the date of its publication under Section 17 of the Act. Section 17-A(1) is extracted as under:
"17-A. (1) An award (including an arbitration award) shall become enforceable on the expiry of thirty days from the date of its publication under Section 17. Provided that-
(a) if the appropriate Government is of opinion, in any case when the award has been given by a Labour Court or Tribunal in relation to an industrial dispute to which it is a party; or
(b) if the Central Government is of opinion in any case whether the award has been given by a National Tribunal that it will be inexpedient on public grounds affecting national economy or social justice to give effect to the whole of any part of the award the appropriate Government or as the case may be the Central Government, by notification in the Official Gazette, declare that the award shall not become enforceable on the expiry of the said period of thirty days."
10. Therefore, the statutory provision itself has self dynamic proportion to the effect that the award gets automatically enforced after expiry of thirty days. It is immaterial whether the workman raises the dispute or the management fails to implement the award. The benefits arising out of the award would automatically accrue by virtue of the statutory provisions. As this provision was intended to protect the interest of the workmen wherein even though he gets award in his favour stilt if it is not implemented it should be treated as if it has been implemented and gets statutory entbrceabilily. This aspect was not considered by the Division Bench while dealing with the matter in Writ-Appeal No. 1458 of 1999 (DB) (supra). The Division Bench was carried away by the only fact that the workmen did not make any grievance about the fixation of pay duly taking into account the notional increments that had accrued to him on the reinstatement with continuity of service. Obviously the Court's attention was not drawn to the relevant slatute, per consequence, the decision of the Division Bench was rendered without reference to the relevant statutory provisions. Under those circumstances, the decision has to be treated per incuriam and I respectfully do so. Therefore, on the facts the judgment of the Division Bench is deemed to cover the situation arising in the said writ appeal and it did not intend to lay down the law having binding precedent. Hence I am of the considered view that the petitioner is entitled for the arrears of reflxation duly taking into account notional increments. The learned Counsel, however, relied upon the judgment of the Supreme Court which states lhat the delay defeats the purpose but that will not be of much help to the Corporation. The statutory protection is given to the award in the Act and therefore it automatically gets enforceability after expiry of thirty days. Therefore, the decisions of the Supreme Court are not applicable to the present case.
11. Lastly the learned Standing Counsel for the Corporation as last straw in the camel mouth, submits the writ petition is not maintainable as the petitioner has to seek appropriate relief under Section 33(c)(2) of the Act and therefore the writ petition has to be dismissed. The petitioner has filed the writ petition for proper fixation of his pay pursuant of the award as the award has not been implemented for several years, it is always open for the petitioner either to approach this Court or approach the appropriate Forum under Section 33(c)(2) of the Act and it is not necessary that he should approach the Tribunal for appropriate relief, Moreover the writ petition was admitted by this Court three years back and it would not be proper to dismiss on this ground. Further the petitioner is not seeking computation of wages in pursuance of the award, but only seeking direction to properly fix his pay as per the award. Therefore, 1 have rejected this contention.
12. Under these circumstances the writ petition is allowed and the respondents are directed to refix the salary of the petitioner duly taking into consideration the notional increments and release arrears within three months from the date of receipt of a copy of this order. No costs.