Andhra HC (Pre-Telangana)
V. Ramachander vs Regional Manager, Apsrtc, Nizamabad ... on 30 August, 2000
Equivalent citations: 2000(6)ALD83, [2000(87)FLR926]
ORDER
1. This writ petition is filed to issue a writ of mandamus declaring the pay fixation made by the respondents without adding national increments for removal period i.e., 28-9-1970 to 30-4-1994 as illegal and contrary to the purport of the award made in IDNo.301/92 dated 15-1-1994 and to direct the respondents to refix the petitioner's pay by adding the notional increments for the removal period along with the consequential benefits flowing out of such fixation.
2. The petitioner was appointed in APSRTC as Conductor on 17-4-1971 and he was removed from service on 28-9-1972 while working at Nizamabad on the allegation that he had involved in cash and ticket irregularities case. The petitioner approached the Labour Court by raising a dispute in ID No.l 10/89 (old) which was renumberedas IDNo.301/92 and the Labour Court by award dated 15-1-1994 directed the respondents to reinstate him into service without break in service but without back wages. The respondents shall also stop one annual increment without cumulative effect from the date of his reinstatement. The said award was published on 26-2-1994 and the petitioner was reinstated into service by order dated 31-3-1994 and the petitioner reported for the duty on 30-4-1994. Thus, the award of the Labour Court, Hyderabad, in ID No.301/92 has become final and enforceable as the respondents have not challenged the same.
3. The petitioner submits that he was reinstated into service subject to the result of the writ petition to be filed by the Corporation in the High Court against the award and on his reinstatement he was paid with minimum Conductor scale of Rs.1,035/-. The petitioner requested the Depot Manager, Kamareddy, for revision of pay fixation, but his request was not considered on the ground that personal file and service records were not received from the legal department and in the meanwhile he was promoted as Assistant Depot Clerk basing on the continuity of service granted by the Labour Court. But till November, 1997, he was paid minimum Conductor scale of Rs.2,340/- and from the month of December, 1997, he was given basic pay of Rs.3,494/-, but no details were furnished to him and the respondents have not communicated any pay fixation order. The petitioner further submits that he had made representations on 21-1-1998 and 19-10-1999 and as the respondents have not considered his request, he was compelled to file writ petition on 6-12-1999.
4. The respondents filed a counter stating that the petitioner was reinstated into service pursuant to the award of the Tribunal subject to the result of the writ petition to be filed by the Corporation against the said award and his pay was fixed after obtaining sanction from the Regional Manager, Nizamabad, vide Note File No.P2/255(11) 94-KMR dated 29-7-1994 and the petitioner was subsequently promoted as Conductor Grade-I with effect from 1-7-1995 and as Assistant Depot Clerk with effect from 14-2-1996 and allowed the pay fixation to the Conductor Grade-I and Assistant Deport Clerk and the petitioner was paid the minimum scale, but on his promotion as Assistant Depot Clerk, his pay was fixed as Rs. 1,645/- and that his pay was increased from Rs.2,340/- to Rs.3,494/- on account of the revision of pay scale with effect from 1-4-1997 and his so called representations dated 22-1-1996 and 28-1-1998 are not traceable in the officer records of the Depot Manager, Bhanswada. There is no denial about the receipt of the advocate's notice dated 19-10-1999. It is contended that the petitioner is not entitled for the relief as he has filed the writ petition after a lapse of five years of the award of the Labour Court and though the petitioner is entitled for the notional increments as he was reinstated into service with continuity of service and also entitled for the arrears of pay three years prior to the filing of the writ petition onwards atone but he is not entitled for the arrears from the date of the award.
5. The uniform contention of the APSRTC in the series of writ petitions that the national increments cannot be added for fixing the salary of the workmen after reinstatement for the cut-off period of employment, the issue has been settled in number judgments of this Court in WA No.2164 of 1998 dated 21-12-1998, in the case of Managing Director, APSRTC v. M. Shankaraiah, (DB), holding that it is only a question of fixation of the salary at the appropriate scale after reinstatement and unless the Labour Court's order is clear, benefit of continuity of service cannot be restricted only to the computation of seniority or for pensionary benefits. The view taken in the series of judgments that to compute the periodical increments that would have been earned by the workman had he been in service during the cut-off employment period and to fix the salary payable to him after his reinstatement by taking into account such increments is upheld in number of Writ Appeal Nos.1060 of 1998 and 395 of 1996 which was upheld by the Supreme Court in Special Leave Petition No.20096 of 1996.
6. Smt. Nanda R. Rao, learned Counsel for the respondents contended that the benefit of giving notional increments cannot be given to the petitioner for the reasons that the Labour Court has not awarded him the attendant benefits*and he is also not entitled for the arrears of pay from the date of the reinstatement but he is entitled from the date of filing of the writ petition alone. The first contention that the notional increments do not arise for the reason that the Labour Court has not awarded the attendant benefits has been negatived by series of judgments and also finally by a Division Bench of this Court in WA No. 1748/99 and Batch dated 25-11-1999 in the case of APSRTC, Musheerabad v. Chandra Mouli, (DB) the relevant Paras 2 and 3 areas follows:-
"Para 2 : Respondents herein filed writ petitions before this Court assailing the action of the appellant in not granting then notional increments.
Para 3: There is no gain saying that it is well established by umpteen numbers of judgments that where the Labour Court has granted continuity of service the employees are entitled to notional increments resulting in financial benefit from the date of the award."
7. With regard to the other contention that the petitioner is not entitled for the arrears of pay fixation after the notional increments from the date of the award, the learned Counsel for the petitioner relied on a Division Bench judgment of this Court in WA No.1458 of 1999 dated 14-10-1999 in the case of APSRTC, Khammam District v. S. Satynarayana Rao, (DB). In the said writ appeal, appointment was made in 1976, removal from service was in 1978, industrial dispute was raised after nine years i.e., 1987 and the Industrial Tribunal made an award on 10-4-1989 for reinstatement with continuity of service but without back wages and the notional increments were not given for the cut-off period of service. The writ petition was filed in 1999 for giving notional increments and also for revision of pay scale and For the payment of arrears of salary with interest which was allowed on 28-4-1999 against which Writ Appeal No.1458 of 1999 was filed and the Division Bench while observing that there was a delay of 11 years in approaching the Court, the employee cannot take advantage of his own laches in approaching the Court after expiry of three years provided by the Limitation for setting aside the order of fixation of pay which was fixed as far back as 1989 and in those circumstances, the arrears of pay and the interest was denied for the preceding period of three years of filing of the writ petition and held that he was entitled for the notional fixation of pay for the removal period.
8. But the aforesaid judgment in WA No.1458 of 1999 was not followed in WA No. 1748 of 1999 and Batch in its true letter and spirit in the subsequent judgment of the Division Bench in the case of APSRTC v. Chandra Mouli (supra) explained that for approaching the Court within 3 to 5 years the delay is not inordinate on the ground of which the relief may be denied to the workman. The delay in WA No.1458 of 1999 in approaching the Court was 11 years and therefore the relief for the payment of arrears were restricted to 3 years prior to the filing of the writ petition and as the persons in WA No.1748 of 1999 approached the Court within 3 to 5 years which is a reasonable period and the Limitation Act can not be strictly applied and the writ petition cannot be dismissed on account of laches. Laches bars the remedy but not the right and ultimately the aforesaid writ appeal filed by the APSRTC was dismissed.
9. The learned Counsel for the respondents vehemently contended that the relief should be denied to the petitioner on the ground of laches as the delay defeats equity and in support of her contention; she has cited the judgments in the case of Municipal Council Ahmednagar v. Shah Hyder Beig, and State of Punjab v. Krishan Niwas, AIR 1997 SC 234S. In the case of Municipal Council Ahmednagar, the dispute arose under the Land Acquisition Act and the award was passed and possession was taken in 1976 and the writ petition was filed in 3982 for setting aside the award and further relief, and in the other case, the employee who was removed from service for his conviction under Section 302 of Indian Penal Code and after the conviction was set aside by the High Court, he filed an appeal before the Appellate Authority and the Appellate Authority reduced the punishment of removal from service to the lower scale of pay drawn by him and directed that he was not entitled to back wages and the said employee accepted the order of the Appellate Authority and joined the duty and having accepted the said order, subsequently filed civil suit and in those circumstances, the Supreme Court held that by the conduct of the said employee, who has accepted the correctness of the order of the appellate authority and acted upon it, he cannot be permitted to challenge the same in the civil suit. Thus, the aforesaid two judgments have no application to the facts of this case and as rightly observed by the Division Bench in APSRTC, Mushcerabad v. Cliandra Mouli (supra) laches bar the remedy but not the right.
10. The question that arises for consideration in this case is what right the petitioner has got to claim the notional increments, resulting in financial benefits, flowing from the date of the award. This issue has been settled in series of judgments. That the petitioner is also entitled to grant of notional increments consequent on his reinstatement and it is not in dispute that he is also entitled for the arrears. But the learned Counsel for the respondents submits that the petitioner is entitled for the arrears only from preceding 3 years of filing of the writ petition and not from the date of the award. These issues have also been well considered and decided in a recent judgment by the learned single Judge of this Court in M, Narsaiah v. Managing Director, APSRTC, . In the said judgment, Brother G. Bikshapathy, J., while extracting the provisions of Section 17-A of the Industrial Disputes Act, 1947, held that as per Section 17, the award shall become enforceable on expiry of 30 days from the date of its publication and it is immaterial whether the workman raised a dispute or the Management fails to implement the award. The benefits arising out of the award would automatically accrue by virtue of the statutory provision, which is intended to protect the interest of the workmen. The workman is entitled to get the award implemented, as the award is statutorily enforceable. In view of the enforceability of the award, the learned Judge held that the said enforceability of the award has not been considered by the Division Bench in WA No.1458 of 1999 (DB) (supra) and as the relevant statutory provision was not considered, the said judgment should be treated as per incuriam. The learned Judge also held that the workman is also entitled for the execution of the award. The provisions of Section 33-C(2) of the Industrial Disputes Act is no bar to entertain the writ petition under Article 226 for remedies said to have been available under Section 33-C(2) and thus rejected the contention of the learned Counsel for the respondents.
11. This being the contention, time and again, in the series of writ petitions by the learned Counsel for the respondents, it has to be considered whether what is the limitation that is applicable for the enforceability of the award. It is not in dispute that as per the award, the reinstatement of the petitioner into service without break in service means the petitioner is entitled for the computation of the notional periodical increments that would have been earned by the employee had he been in service during the cut-off period of employment and the said award has become final. As per the definition of the wages as defined in Section 2(vi) of Payment of Wages Act, 1936, 'Wages' means all remuneration expressed in terms of money or capable of being so expressed which would, if terms of employment, express or implied were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment and includes any remuneration payable under any award or settlement between the parties or order of a Court. As I per Section 11-B of the Industrial Disputes Act, the Labour Court or a Tribunal shall have the power of the civil Court to execute its award or any settlement as a decree of civil Court. Thus, the award is equated to; that of a decree of the civil Court. If it is treated to be a decree of the civil Court, the limitation for execution of any decree other than a decree of mandatory injunction under Article 136 of the Limitation Act, 1963, is 12 years. Therefore, the award of the Labour Court is executable and enforceable within a period of 12 years.
12. The question that arises for consideration in this case is only recovery of the amount pursuant to the execution and enforceability of the award of the Labour Court and as the respondents have not properly understood or appreciated the implication and enforceability of the award in reinstating the petitioner with continuity of service without break but without back wages, the petitioner made representations and he is entitled for the arrears of the refixed pay and notional increments for the removal period.
13. I, therefore, do not see any reason in the contention of the learned Counsel for the respondents to reject the writ petition or deny the arrears of the monetary benefits from the date of the publication of the award till the date of filing of the writ petition. However, in this case, the publication of the award was on 26-2-1994 and the petitioner was reinstated into service on 31-3-1994 and the petitioner approached the Court in 1999 and even otherwise the Division Bench of this Court in WA No.1748 of 1999 in the case of APSRTC, Musheerabad v. Chandramnuli (supra), held that the delay of five years is not unreasonable and the limitation cannot be strictly applied, I reject the contention of the respondents and the petitioner is entitled for the proper fixation of his pay the as per award. Accordingly, the writ petition is allowed and the respondents are directed to refix the salary of the petitioner computing the periodical increments that would have been earned by him had he been in service during the cut-off employment period i.e., from 28-9-1972 to 30-4-1994 and fix the salary payable to the petitioner after his reinstatement by taking into account such increments and pay him arrears within two months from the date of receipt of a copy of this order. No order as to costs.