Gujarat High Court
Bh Patel & 6 vs Gujarat Uttar Vij Nigam Ltd & 8 on 15 June, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/2607/1994 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2607 of 1994
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BH PATEL & 6....Petitioner(s)
Versus
GUJARAT UTTAR VIJ NIGAM LTD & 8....Respondent(s)
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Appearance:
MR PM THAKKAR, ADVOCATE for the Petitioner(s) No. 1 - 7
THAKKAR AND PAHWA ADVOCATES, ADVOCATE for the Petitioner No. 1
MR PREMAL R JOSHI, ADVOCATE for the Respondent(s) No. 1 - 2
RULE SERVED for the Respondent(s) No. 1 - 7
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 15/06/2016
ORAL ORDER
By this writapplication under Article 226 of the Constitution of India, the petitioners, former employees of the erstwhile Gujarat Electricity Board, have prayed for the following reliefs :
"(A) Your Lordships be pleased to issue appropriate writ, direction or order of this Hon'ble Court for quashing and setting aside the action of the respondents in seeking to reduce the salary of the petitioners as enumerated in Annexure 'A' to this by way of refixation and that too from retrospective effect and consequent action of the respondents in seeking to recover salary already paid to the petitioners since 1985 as being arbitrary, illegal, null and void and against the constitution guarantees enshrined under Articles 14 and 16 of the Constitution of India;
(B) Your Lordships be pleased to issue a writ of mandamus or any other appropriate writ, direction or order and be pleased to quash and set aside the action of the respondents of refixing the increment date of the petitioners as enumerated at Annexure 'A' to this petition and thereby causing huge recovery and further be pleased to quash and set aside the action of the respondents of placing all the petitioners in the minimum of the pay scale irrespective of their length of service as contained in General Standing Order No.313 as being Page 1 of 5 HC-NIC Page 1 of 5 Created On Fri Jun 17 02:51:05 IST 2016 C/SCA/2607/1994 ORDER illegal, null and void;
(BB) Your Lordships be pleased to direct the respondents to give the pay scale of Rs.11803050 w.e.f. 141985 or from the date when the petitioners became entitled with 18% interest, in the interest of justice;
(C) Your Lordships be pleased to stay the operation, implementation and execution of the order of the respondents at Annexure 'C' colly to this petition seeking to reduce the salary of the petitioners as enumerated at Annexure 'A' to this petition and seeking to change the date of increment with retrospective effect from 1485, pending the admission, hearing and final disposal of this petition;
(D) Your Lordships be pleased to restrain the respondents, their agents and servants from reducing the salary of the petitioners as enumerated at Annexure 'A' to this petition from what they have been getting before the impugned order at Annexure 'C' Colly was issued and be pleased to direct the respondents to pay to the petitioners as enumerated at Annexure 'A' to this petition the same salary as was being paid to each of the petitioners prior to the impugned action of the respondents in reducing their salary by the order at Annexure 'C' Colly to this petition, pending the admission, hearing and final disposal of this petition;
(E) Your Lordships be pleased to issue appropriate interim directions restraining the respondents from effecting any recovery from the salary of the petitioners as enumerated at Annexure 'A' to this petition consequent upon the refixation of their salary with effect from 1485, pending the admission, hearing and final disposal of this petition;
(F) Your Lordships be pleased to grant such other and further reliefs, as are deemed fit, in the interest of justice."
The subject matter of challenge in this writapplication is the refixation of the pay by the then Board in accordance with the General Standing Order substantially on the ground that : (1) such fixation is detrimental to the interest of the petitioners, (2) no opportunity of hearing was given before effecting Page 2 of 5 HC-NIC Page 2 of 5 Created On Fri Jun 17 02:51:05 IST 2016 C/SCA/2607/1994 ORDER such refixation, (3) the petitioners, on the date of issue of GSO 313, were regular employees of the Board, and (4) the provisions contained in the GSO 313 are violative of Articles 14 and 16 of the Constitution of India.
On behalf of the erstwhile Board, an affidavitinreply duly affirmed by the Chief Engineer has been filed, inter alia, stating as under :
"4. I say that none of the above contentions is tenable. I say that the board in consultation with the finance department of the Government entered into a settlement with its employees through their unions, under section 2(p) read with section 18(i) of the Industrial Disputes Act, 1947; agreeing to revise their pay as detailed in the said settlement and to grant certain other benefits to its employees.
I say that the G.S.O. 312 and G.S.O. 313 are issued pursuant to the said settlement incorporating the terms of the said settlement. I, therefore, respectfully submit that the G.S.O. 312 and G.S.O. 313 are binding to the beard and its employees. Neither of the parties can wriggle out of its terms on any pretext whatever. The petitioners are, therefore, not entitled to challenge the provisions made in G.S.O. 313 since the said provisions are binding to the petitioners.
5. I say that the pay revision made under G.S.O. 312 and G.S.O. 313 has been given effect from 1.4.1985. The G.S.O. 312 deals with pay revision of regular employees of the board as well as other benefits like L.T.C., C.L.A., H.R.A., leave, etc. The G.S.O. 313 deals exclusively with the payrevision of work charged employees of the board. I say that the workcharged establishment is distinct from the regular establishment. Therefore, different schemes have been evolved for calculating the existing pay and date of increments for the regular employees and workcharged employees. Since the pay revision has been given effect from 1.4.1985 the date relevant for calculating the existing pay and exertaining the status of an employee would be 31.3.1985. I say that on 31.3.1985 the petitioners were workcharged employees. I say that their subsequent absorption on regular establishment is irrelevant for the purpose of fixation of pay as on 1.4.1985. Thus the petitioners claim that G.S.O. 313 is not applicable to them requires to be rejected. I say that prior to 1.4.1985 the petitioners have not rendered any service on regular establishment and, therefore, their claim for service weightage also requires to be rejected. I say that the workcharged establishment is different and distinct from the regular Page 3 of 5 HC-NIC Page 3 of 5 Created On Fri Jun 17 02:51:05 IST 2016 C/SCA/2607/1994 ORDER establishment. The board, therefore, lawfully make two different sets of service conditions for such employees. I. however, deny that under G.S.O. 312 the regular employees are given the benefit of increments earned by them by stage to stage fixation of pay as alleged. I. Therefore, deny that G.S.O. 313 is violative of Articles 14 and 16 of the constitution of India. I deny that G.S.O. 313 is violative of principle of 'Equal Pay For Equal Work".
6. I say that the two salient features of G.S.O.313 are
(i) the incumbent are not entitled to service weightage;
(ii) the next increment shall accrue on completion of one year's service in the revised scale.
Thus the 1st increment in the revised scale would fell due on 1.4.1986 and on no other date.
7. I say that, however at the Wanakbori Thermal power station, while fixing the initial pay of workcharged employees in the revised scale, the above referred provision was inadvertently overlooked. The incumbents were permitted to draw the increment on the dates they were due in the old (unrevised) scale. This irregularity was brought to the notice of the authorities by some of the employees. I say that authorities therefore, refixed the pay of all the workcharged employees and worked out the recoveries to be effected from each of such employees. It was the petitioner no.2 who has time and again reminded the board not to delay the matter and effect recovery from such employees. I say that a English translation of one of such application is annexed hereto and marked Annexure 1. I say that the board is entitled to refix the pay of the workcharged employees as on 1.4.1985 and effect recovery of excess payment made to such persons under erroneous payfixation. I say that what is sought to be done by the board is correcting the error committed while revising the pay and implementing the G.S.O. 313. I say that the board is not required to hear its employees for correcting its error or for implementing its standing order which is binding to its employees as well. I, therefore, deny that the action of the board requires to be quashed or setaside as alleged.
8. I say that circular 371 has no relevance to the subject matter of this petition.
Page 4 of 5HC-NIC Page 4 of 5 Created On Fri Jun 17 02:51:05 IST 2016 C/SCA/2607/1994 ORDER I say that no right conferred upon the petitioner under circular 371 is being infringed by fixing their pay in the revised scale in consonance with the provisions of G.S.O. 313."
I take notice of the fact that at the time of admission of this matter, interim relief in terms of para 13(E) was granted. Between 1994 till this date, on number of occasions, the matter was dismissed for default. I take notice that in one of the orders even cost of Rs.12,000=00 was imposed. However, the fact remains that on restoration, the interim relief continued. As on date, all the petitioners have retired from service.
It is not in dispute that no recovery came to be effected till this date.
Mr.Thakkar, the learned counsel appearing for the petitioners, submits that the order of refixation of the salary detrimental to the interest of his clients never came to be executed, may be because of the interim relief in terms of para 13(E).
Although 13(E) only speaks about recovery consequent upon the refixation of the salary, since the petitioners have retired from service, recovery is out of question even if it is to be held that the refixation was justified and legal.
In view of the statement made at the bar, no further adjudication in my opinion is required.
In view of the above, this writapplication is disposed of.
(J.B.PARDIWALA, J.) MOIN Page 5 of 5 HC-NIC Page 5 of 5 Created On Fri Jun 17 02:51:05 IST 2016