Punjab-Haryana High Court
Satyabir Singh vs Haryana Tourism Corporation on 4 May, 2012
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
RSA No. 2163 of 2010(O&M)
Date of Decision: 4.5.2012.
Satyabir Singh --Appellant
Versus
Haryana Tourism Corporation,
Chandigarh & others --Respondents
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA.
Present:- Ms. Abha Rathore, Advocate for the appellant.
Mr. Gautam Kailey, Advocate for respondents no.1 & 2.
Mr. J.P. Rana, Advocate for respondent no.3.
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TEJINDER SINGH DHINDSA.J Plaintiff Satyabir Singh filed a suit seeking a declaration that the order dated 2.8.2002 was illegal and against the provisions of law and that he is entitled to be regularized on the post of Electrician from the date of his acquiring the qualification of I.T.I Diploma. A consequential relief of mandatory injunction was also sought directing the defendants to regularize his services with retrospective effect i.e. from the year 1994-1995 on the post of Electrician as also to pay him all the consequential benefits.
It was pleaded by the plaintiff that he had been working on the post of Electrician since 1984 and he had been initially engaged on daily wage basis and his services were regularized in June, 1988. However, at the time of regularization he was placed as Electrician Helper instead of Electrician as he did not possess the requisite I.T.I Diploma. Thereafter, having taken prior permission from the competent authority to appear in the I.T.I Examination, he had acquired the same in the year 1994-1995 and as such he had become eligible for regularization against the post of RSA No. 2163 of 2010(O&M) -2- Electrician with effect from the date he had acquired the requisite qualifications as also for the wages of the post of Electrician against which he had discharged his duties. It was also pleaded that defendant no.3 namely Rajbir Singh had previously been designated as T.V. Mechanic Helper but upon his having acquired the I.T.I qualification, he had been given the designation of T.V. Mechanic. As such, the plaintiff had also raised the plea of discrimination.
Defendants no.1 and 2 contested the suit raising a preliminary objection that the suit was time barred and that the plaintiff is estopped from claiming such relief. It was stated that when permission was granted to the plaintiff to appear in the I.T.I Examination it had been specifically stipulated that he would not claim any financial benefits by virtue of acquiring such qualification. On merits it was stated that the plaintiff cannot claim parity with defendant no.3 as the plaintiff belonged to electricity trade, whereas defendant no.3 was in a separate trade of a T.V. Mechanic.
Upon the pleadings of the parties, following issues were struck by the Trial Court:-
"1. Whether the plaintiff is entitled to relief of declaration as well as injunction as prayed for by him on the grounds so alleged in the plaint?OPP.
2. Whether the plaintiff has no cause of action to file the present suit?OPD.
3. Whether the plaintiff has no locus standi to file the present suit?OPD.
4. Whether Civil Courts has no jurisdiction to try and entertain the present suit?OPD.
5. Whether suit is barred by limitation?OPD. RSA No. 2163 of 2010(O&M) -3-
6. Whether the suit is bad for non-joinder of necessary parties and misjoinder?OPD.
7. Whether the plaintiff is estopped from filing the present suit by him own act and conduct?OPD.
8. Whether the suit is not maintainable?OPD.
9. Relief."
Upon due appreciation of evidence and having heard respective counsel for the parties, the Trial Court decreed the suit of the plaintiff in terms of setting aside the order dated 2.8.2002, whereby his claim had been declined by the department. A decree of mandatory injunction was also passed in favour of the plaintiff directing the defendants to grant to the plaintiff the scale for the post of Electrician. However, it was held that such scale would be admissible only w.e.f. 28.1.2003 i.e the date of filing of the suit.
Defendants no.1 and 2 preferred a civil appeal and vide impugned judgement dated 30.5.2009 passed by the Additional District Judge (Fast Track Court), Faridabad the appeal has been accepted and consequently the suit of the plaintiff has been ordered to be dismissed. Resultantly, plaintiff Satyabir Singh is in second appeal before this Court.
I have heard Ms. Abha Rathore, Advocate appearing for the appellant, Mr. Gautam Kailey, Advocate appearing for respondents no.1 and 2 and Mr. J.P. Rana, Advocate appearing for respondent no.3.
Upon the pleadings of the parties and upon perusal of the records of the courts below that had been requisitioned, the following substantial questions of law arise for consideration in the present second appeal:-
1. As to whether the claim of the plaintiff regarding wages for the post on which he had worked would construe a recurring cause RSA No. 2163 of 2010(O&M) -4- of action?
2. As to whether the suit filed by the plaintiff was barred by limitation?
3. Whether the denial of the post and wages of the post of Electrician to the plaintiff-appellant is discriminatory?
4. As to whether the plaintiff-appellant is estopped in law from claiming the requisite relief as set up in the suit.
Respective counsel for the parties have addressed submissions on the questions of law as formulated herein above.
Re: Questions no.1 & 2 Being interconnected and related the same are being taken up together.
Learned counsel appearing for the appellant would vehemently contend that the appellant was vested with a right in law to claim wages on the post against which he had discharged his duties. Denial of the same would construe a recurring cause of action as on every successive month he was being denied the wages for the post in question and accordingly, counsel would argue that at best his claim for arrears could have been limited to the past 38 months. Learned counsel would also argue that the suit had been filed assailing the order dated 2.8.2002, whereby his claim had been rejected and the suit had been instituted on 28.1.2003 and as such had been filed well within the period of limitation.
Per contra, learned counsel appearing for respondents no.1 and 2 would submit that the claim raised by the present appellant stood rejected vide communication dated 29.12.1997 (Ex.D-3) and as such the suit instituted by the present appellant was clearly time barred.
The Lower Appellate Court while reversing the findings of the Trial Court on the issue of limitation has taken specific cognizance of the RSA No. 2163 of 2010(O&M) -5- letter dated 29.12.1997 (Ex.D-3), wherein the claim of the present appellant regarding the pay scale had been examined and filed by the Managing Director of the respondent-Corporation and intimation of the same had been sent to the Deputy General Manager, Badkhal Lake, Faridabad. On such basis the Lower Appellate Court has held the suit to have been filed beyond the period of limitation and has held the same to be time barred.
I find such view taken by the Lower Appellate Court to be wholly erroneous as also perverse. Undoubtedly, vide Ex.D-3 dated 29.12.1997 a communication had been addressed from the Managing Director to the Deputy General Manager, Haryana Tourism Corporation, Badkhal Lake, Faridabad on the subject of pay scale of Satyabir Singh, Helper Electrician and stating therein that the matter had been examined and filed but there is no evidence adduced on record to prove that such communication was duly forwarded to the present appellant and he had been conveyed the decision contained therein. On the contrary a perusal of the record and in particular with reference to Ex.P-8 dated 4.12.2000 (Ex.P-
10) dated 8.1.2002 would clearly show that not only was the matter with regard to the claim of the present appellant pending consideration but in fact recommendations had been made to the Managing Director by the Incharge, Haryana Tourism Corporation, Badkhal Lake, Faridabad to consider the case and claim set up by the appellant. It is also not in dispute that vide communication dated 2.8.2002 (Ex.P-13) the claim of the present appellant for revision of pay scale as also the claim for the post of Electrician had been rejected. The suit had been instituted assailing such order dated 2.8.2002 on 28.1.2003. Accordingly, the finding returned by the Lower Appellate Court to hold the suit filed by the plaintiff-appellant to be barred RSA No. 2163 of 2010(O&M) -6- by limitation is perverse and based on a misreading and mis-appreciation of evidence.
That apart, it is well settled that an employee, who is in service and is denied the emoluments with regard to a post against which he has discharged his duties and responsibilities would constitute a recurring cause of action. Denial of the requisite pay scale to an employee against which he has admittedly worked entails adverse civil consequences. Such a claim raised by an employee cannot be rejected on the ground of delay/laches and limitation. Delay, if, any that may have occurred in terms of a claim in regard thereto having been raised by the employee concerned at a belated stage would still be entertained and it would be open for the courts to limit the arrears. Resultantly, I answer questions no.1 and 2 as formulated herein above, in favour of the appellant.
Re: Questions no.3 & 4:-
Both such questions are again inter linked and are being taken up for consideration together.
Learned counsel appearing for the appellant would refer to the pleadings and would make a specific reference to the averments made in the plaint contained in para 5, wherein it had been categorically averred that defendant no.3 i.e. Rajbir singh had been previously designated as T.V. Mechanic Helper but on acquiring the I.T.I qualification had been designated as T.V. Mechanic with retrospective effect and all the consequential benefits had been released to him. Learned counsel would also refer to the joint written statement filed on behalf of defendants no.1 and 2, wherein in reply to para 5 of the plaint, it had been merely asserted that the plaintiff cannot compare himself with a T.V. Mechanic as it is a RSA No. 2163 of 2010(O&M) -7- separate trade. Learned counsel would further contend that the claim of the appellant would also be justified and admissible on the principle of equal work for equal pay. Even though, in the year 1988 i.e. the point of time when the services of the appellant had been regularized vide order dated 29.6.1988 (Ex.P-1), it had been clearly stipulated therein that the services of the employees mentioned therein including the plaintiff at Sr. No.10 were being regularized against the vacant post of Electrician, the designation granted was that of a Helper Electrician in the pay scale of Rs.750-940.
Learned counsel would contend that the designation of Helper Electrician had been given in the year 1988 as the plaintiff at that point of time did not possess the I.T.I qualification, even though, he had continuously discharged the functions of the post of an Electrician. Learned counsel would further argue that upon acquiring the qualification of I.T.I in the year 1994-1995 the plaintiff was vested with a right to be re-designated on the post of Electrician and to be released the emoluments in the pay scale of Rs.950- 1500.
Learned counsel appearing for respondents no.1 and 2 would, however, contend that the appellant cannot claim parity with Rajbir Singh, defendant-respondent no.3 as he was in a separate trade and as such the plea of discrimination was not available.
Learned counsel for respondents no.1 and 2 wold also submit in terms of making a reference to Ex.D-2 communication dated 27.10.1992 that the appellant was estopped in law from raising a claim in as much as when permission had been granted to the plaintiff for appearing in the I.T.I Examination, it had been specifically stipulated that he would not claim any financial benefits by virtue of acquiring the I.T.I qualification. RSA No. 2163 of 2010(O&M) -8-
I have given my thoughtful consideration to the submissions advanced by learned counsel for the parties.
Vide Ex.P-1 dated 29.6.1988 the services of various employees including the plaintiff had been regularized. They had been designated either as Helper Electrician or Helper A.C. Operator or Helper A.C. Mechanic or Helper Electrician as in the case of the present appellant. Even though, the trades mentioned were different i.e. Electrician, A.C. Mechanic, A.C. Operator etc. but they were all granted the identical pay scale of Rs.750-940. There is no dispute as regards the fact that defendant- respondent no.3 Rajbir Singh, who had also been granted the pay scale of Rs.750-940 initially as he also did not possess the I.T.I qualification but later on, on acquiring the requisite qualification he had been designated as T.V. Mechanic retrospectively and had been granted the pay scale of Rs.950-1500. The document adduced on record as Ex.P-11 dated 21.3.2002 may also be noticed, wherein while recommending the case of the present appellant it had been specifically noticed by the Officer Incharge, Haryana Tourism Corporation, Badkhal Lake, Faridabad that one Sh. Jagat Singh, who had earlier been regularized as Helper A.C. Mechanic had thereafter been given the pay scale of A.C. Mechanic. On a pointed query having been put to the counsel appearing for respondents no.1 & 2 it could not be disputed that even though, the trade of such employees be it Helper A.C. Mechanic, A.C. Operator, Helper Electrician being different but prior to acquisition of I.T.I qualification the scale admissible was Rs.750-940 and upon acquiring the I.T.I qualification the scale of Rs.950-1500 had been released in favour of Sh. Jagat Singh, A.C. Mechanic and Rajbir Singh, defendant-respondent no.3. As such, it is clear that discrimination against RSA No. 2163 of 2010(O&M) -9- the present appellant in so far as the denial of the pay scale of the post of Electrician with effect from the date he acquired the I.T.I qualification was writ large. On the basis of parity itself the appellant was entitled to be designated on the post of Electrician as also for the grant of pay scale for such post with effect from the date he acquired the I.T.I qualification.
The plea of estoppel raised on behalf of respondent- Corporation is wholly devoid of merit. An employee may have been informed that he is being granted permission to acquire higher qualifications but he would not be entitled to claim any financial benefits in respect thereof but such a stipulation at the hands of an employer and that too at the hands of a Welfare State cannot estop an employee from claiming his fundamental right to the pay scale for the post for which he has been found entitled to and has in fact discharged the duties. There can be no waiver of such right.
For the reasons recorded above, I even answer questions no.3 and 4 in favour of the appellant.
Accordingly, the present second appeal is allowed. The impugned judgement dated 30.5.2009 passed by the Lower Appellate Court is set aside and consequently the judgement and decree dated 1.9.2007 passed by the Trial Court is restored.
Appeal allowed in the aforesaid terms.
(TEJINDER SINGH DHINDSA) JUDGE May 04, 2012.
lucky Whether to be reported? Yes.