Gujarat High Court
Ahmedabad Municipal Transport Service vs Asharfunnisha Munavarkhan Pathan on 25 June, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/12230/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12230 of 2016
==========================================================
AHMEDABAD MUNICIPAL TRANSPORT SERVICE
Versus
ASHARFUNNISHA MUNAVARKHAN PATHAN
==========================================================
Appearance:
MR HS MUNSHAW(495) for the PETITIONER(s) No. 1
MR YOGEN N PANDYA(5766) for the RESPONDENT(s) No. 1
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 2
==========================================================
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 25/06/2018
ORAL ORDER
1. Heard Mr.Munshaw, learned advocate for the petitioner and Mr.Pandya, learned advocate for the respondent.
2. In present petition, the petitioner Ahmedabad Municipal Transport Service has challenged award dated 25.2.2016 passed by the learned Industrial Tribunal at Ahmedabad in Reference (IT) No.131 of 2011 whereby the learned Tribunal directed the petitioner to appropriately fix the salary of the concerned workman in appropriate pay scale and to give effect to the recommendations of 6th Pay Commission and to also revise retiral benefits payable on the basis of revised fixation in Page 1 of 13 C/SCA/12230/2016 ORDER salary and to pay salary and retiral benefits accordingly. The learned Tribunal has clarified that the concerned workman will not entitled to arrears. Feeling aggrieved by the said award, the Transport Service has taken out present petition.
3. The relevant facts are not in dispute. The husband (Mr.Munavarkhan Pathan) of the claimant before the learned Tribunal was employee of the petitioner. He died while in service. After the death of Mr.Munavarkhan Pathan, the petitioner, on humanitarian and compassionate ground, employed the original claimant (present respondent / the claimant) by way of ex gratia appointment on supernumerary position. Thus, the original claimant (present respondent) came to be employed with effect from 20.6.1995. The claimant retired from the service when she attained prescribed age of superannuation in March 2010. Accordingly, the claimant rendered service for almost 14 years.
Page 2 of 13 C/SCA/12230/2016 ORDER
4. According to the claimant, when she was in service, the petitioner accepted and implemented recommendations of 6th Pay Commission. On the ground that though other employees were granted benefit of revision in salary pursuant to and on account of implementation of recommendations of 6th Pay Commission, she was denied the said benefit and neither her salary was revised nor retiral benefits were calculated after giving effect to the recommendations of 6th Pay Commission. With the said allegation the claimant raised industrial dispute which culminated into Reference No.131 of 2011. After adjudication of the reference, the learned Tribunal passed impugned award with above mentioned directions.
5. Learned advocate for the petitioner assailed the award on limited ground viz. that the respondent herein, i.e. original claimant came to be appointed on humanitarian and compassionate ground after the death of her husband (who was employee of the Municipal Transport Service). It Page 3 of 13 C/SCA/12230/2016 ORDER is also claimed that in view of such appointment, the petitioner did not follow the prescribed procedure for salary and recruitment and that, therefore, the concerned employee cannot be considered eligible for revision in salary and for the benefit of higher pay scale, more particularly pension. However, the learned Tribunal failed to appreciate the said position and arbitrarily granted benefit. Therefore, according to the petitioner, the award deserves to be set aside.
6. Learned advocate for the respondent opposed the submissions. Learned advocate for the respondent submitted that the learned Tribunal has, even otherwise, not granted benefit of pension. There is no direction by the learned Tribunal to grant benefit of pension. He submitted that the only benefit granted by the learned Tribunal is revision in wages on account of implementation of recommendations by 6th Pay Commission and appropriate revision in retiral Page 4 of 13 C/SCA/12230/2016 ORDER benefits which have already been paid by the petitioner. Learned advocate for the respondent submitted that the petitioner has paid benefits of gratuity and provident fund, however, the said benefits have been calculated on the basis of the salary which was paid to the respondent without granting effect to the recommendations of 6th Pay Commission. Learned advocate for the respondent also submitted that undisputedly, the claimant had rendered services for 14 years and that, therefore, she would be entitled for first higher pay scale on completion of 9 years of service, however, the said benefit is also not granted to the claimant. Under the circumstances, the learned Tribunal has not committed any error in awarding the said benefits.
7. I have considered rival submissions by learned advocates for the contesting parties and the impugned award.
8. As mentioned above, the facts, broadly stated, are not in dispute. It is not in dispute Page 5 of 13 C/SCA/12230/2016 ORDER that the respondent herein joined the service with present petitioner in June 1995 and she worked till March 2010 when she attained age of superannuation. Thus, total service rendered by the claimant is for 14 years.
9. Now, the petitioner wants to differentiate and distinguish the case of the claimant (present respondent) from the case of other employees only on the ground that the petitioner granted employment to the claimant on humanitarian and compassionate ground when her husband (en employee of present petitioner) died while in service and that, therefore, she cannot claim such benefits or treatment on par with regular employees.
10. True it is that by granting appointment to present respondent, the petitioner acted like a modal employer and employed the claimant on humanitarian and compassionate ground.
11. However, merely on the said ground, the Page 6 of 13 C/SCA/12230/2016 ORDER employee cannot be denied the benefits of salary and other benefits which would be payable under and in accordance with the Rules.
12. Once a person is appointed and such appointed person renders service to the employer with diligence, complete devotion and regularity and such person performs all duties and functions assigned to him and also discharges his duties in the same manner as other employees and when such person, while in service, is subjected to the rules and regulations of the establishment, including disciplinary rules and he is also subjected to other rules and regulations of the establishment in the same manner as regular employees and he executes same duties as other employees, then only for the purpose of salary and retiral benefits, the employee cannot be discriminated and distinguished and parity in matter of salary cannot be denied only on the ground that at initial stage (in present case before 14 years) the employee was appointed on Page 7 of 13 C/SCA/12230/2016 ORDER humanitarian ground.
13. So far as the claim for pension is concerned, the objection or anxiety of the petitioner is quite reasonable. Undisputedly, in light of the rules and regulations of the petitioner and also on general principle viz. that the claimant was not engaged and appointed on regular and permanent establishment and was not even appointed on regular establishment and even on ad hoc basis and on supernumerary position, the claimant would not be eligible for pension in view of the provisions under the Pension Rules / Scheme of the petitioner.
14. It is pertinent to note that the learned Tribunal being conscious of the said fact, has not passed any order directing the petitioner to grant pensionary benefits to the claimant.
15. From the award, any direction of such nature or such effect does not emerge.
16. Even learned advocate for the respondent Page 8 of 13 C/SCA/12230/2016 ORDER acknowledged the said provision and he rightly submitted that even the learned Tribunal has not granted the said benefit and that, therefore, the respondent's anxiety or objection with regard to pensionary benefits are illfounded and baseless.
17. It is clear that the said benefit is not granted by the learned Tribunal and even otherwise, the claimant would not be eligible for pensionary benefit.
18. However, so far as the claimant's demand for appropriate salary after giving effect to the recommendations of 6th Pay Commission and the benefits of higher pay scale on completion of 9 years of service are concerned, the said claim cannot be denied to the claimant. Likewise, the claimant's demand for revision in the amount paid towards gratuity and provident fund on the basis of the salary paid to her without giving any effect to the recommendations of 6th Pay Commission, also cannot be sustained. Page 9 of 13 C/SCA/12230/2016 ORDER
19. Undisputedly, while in service, the claimant was paid salary of the post in question on the same basis and at par with other employees. Regular pay scale was granted to her and her salary was paid in regular scale. Further, she was not appointed on fixed salary basis. It was not one of the conditions of appointment that she would be paid only fixed salary and she will not be eligible for regular salary in pay scale. As mentioned above, she was subjected to the same rules and regulations including disciplinary rules, as other employees. The claimant performed her duties and functions for the same working hours and in the same manner as other employees.
20. It is also not in dispute that eh petitioner has accepted and implemented recommendations of 6th Pay Commission and all benefits on the basis of the said recommendations have been granted to other employees of the petitioner.
21. In this view of the matter, the direction by the learned Tribunal is just and proper and the Page 10 of 13 C/SCA/12230/2016 ORDER said direction cannot be faulted.
22. Under the circumstances, the claimant cannot be discriminated and distinguished from receiving benefit of recommendations of 6th Pay Commission.
23. The claimant's salary should be appropriately revised.
24. Her salary should be fixed on the basis of and in accordance with the recommendations of 6th Pay Commission and appropriate fixation of her salary should be made after giving effect to the recommendations of 6th Pay Commission in case of the respondent.
25. Consequently, her pay scale shall have to be appropriately fixed on the date when the similar benefits came to be granted to other employees.
26. Of course, she would not be eligible for arrears, as decided by the learned Tribunal. The learned Tribunal has not passed any direction to pay arrears. Therefore, the claimant will not be Page 11 of 13 C/SCA/12230/2016 ORDER entitled for arrears.
27. However, the salary of the respondent at the relevant date will have to be revised and fixed on the basis of recommendations of 6th Pay Commission and the amounts paid to her towards gratuity and provident fund shall have to be consequently and appropriately revised and paid to the claimant.
28. Similarly, when it is not in dispute that the claimant rendered regularly and continuously service for almost 14 years, she would also be eligible for higher pay scale from the date when she completed service of 9 years. The said benefit also should be granted to the claimant.
29. Her salary should be accordingly revised and fixed and the amounts payable towards gratuity and provident fund should be recalculated after giving effect to above mentioned two benefits.
30. The arrears which would otherwise become payable on account of such revision and re Page 12 of 13 C/SCA/12230/2016 ORDER fixation are not granted by the learned Tribunal and consequently, the claimant would not be entitled for arrears, however, the revision in amount payable towards gratuity and provident fund shall have to be paid by the petitioner.
31. The petitioner has failed to make out any ground to convince the Court to set aside the directions. The directions are just, reasonable, fair and proper.
32. With the said directions, clarifications and observations, the petition is disposed of. If the benefits payable under the award are already not paid to the claimant, then the petitioner shall take necessary steps to complete aforesaid exercise and pay the arrears as expeditiously as possible and preferably within four weeks. Orders accordingly.
(K.M.THAKER, J) BHARAT Page 13 of 13