Punjab-Haryana High Court
The Malout Cooperative Spinning Mills ... vs The Presiding Officer on 23 August, 2013
Author: G.S. Sandhawalia
Bench: G.S. Sandhawalia
CWP No. 10885 of 1992 1
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CWP No. 10885 of 1992
Date of Decision:- August 23rd, 2013
The Malout Cooperative Spinning Mills Ltd. ..............PETITIONER(S)
vs.
The Presiding Officer, Labour Court, Bathinda and another
...........RESPONDENT(S)
CORAM:- HON'BLE MR. JUSTICE G.S. SANDHAWALIA
Present:- Mr. Puneet Kansal Advocate,
for the petitioner.
None for the respondents.
G.S. SANDHAWALIA, J.
1. The present writ petition has been filed by the petitioner- Management challenging the award dated 14.05.1992 passed by respondent no. 1 wherein, the application of respondent no. 2-workman under Section 33-C(2) of the Industrial Disputes Act, 1947 (in short 'the Act') was allowed and a direction was issued to fix his pay at `1,680/- per month as on 01.01.1986 instead of `1,500/- per month, so far as basic pay is concerned. A further direction was issued that only increments to the same would be added as and when they fall due and to calculate it without unnecessary delay and pay the same to the applicant after deducting the amount of wages already paid in the corresponding period.
2. Perusal of the writ petition would show that the case of the Management was that respondent no. 2 was appointed as Spinning Supervisor in the scale of `600-20-700-25-850/30-1000-40-1120 vide appointment letter dated 16.06.1987 w.e.f 13.05.1986. However, he was given basic pay of `700/- per month in the said pay scale. The State of Punjab revised the pay scales of the Gupta Shivani 2013.08.27 10:46 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 10885 of 1992 2 employees on the recommendation of the Third Pay Commission and they were notified vide letter dated 09.09.1988 whereby, the scale was revised from `600- 1,120 to `1,500-2,640 as per letter dated 15.09.1988 according to the General Conversion Table. In pursuance of the said revision, respondent no. 2 was granted minimum scale of `1,500/-. However, he filed a petition under Section 33-C(2) of the Act, which was allowed vide the impugned award and he was given the benefit of five advance increments on the strength of his earlier appointment letter and his pay was fixed at `1,680/- instead of `1,500/-. Accordingly, the said award has been challenged on the ground that the pay was to be fixed as per the fitment table which provided the fixation of pay at `1,470/- and is granted the minimum revised scale of `1,500-2,640. The ground taken is that the application under Section 33- C(2) of the Act was not maintainable and the Labour Court had no jurisdiction.
3. Counsel for the Management has accordingly contended that the five advance increments granted earlier were only on account of the fact that the appointment letter was dated 16.06.1987 whereas his appointment in fact was w.e.f. 13.05.1986 in the scale of `600-20-700-25-850/30-1000-40-1120 and thus his pay was fixed at basic pay of `700/- and thus benefit of five advance increments could not be given with the revised pay scale, which has been illegally granted by respondent no. 1-Labour Court. Counsel for the petitioner further also admits that the Management-Mill has now gone into liquidation and has been wound up and is not functioning since the year 1997.
4. None has put in appearance on behalf of the respondents to assist this Court. Perusal of the record goes on to show that while issuing notice of motion, no interim relief was granted to the Management. While admitting the writ petition on 04.12.1992, operation of award was stayed subject to making payment in accordance with the award on furnishing security by the workman- respondent to the satisfaction of the Assistant Labour Commissioner, which was to be accepted after due notice to the Management.
Gupta Shivani2013.08.27 10:46 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 10885 of 1992 3
5. A perusal of the application, which has been filed on 24.09.1990 under Section 33-C(2) of the Act by respondent no. 2-workman, however, would show that the claim of the workman was regarding the deduction of five advance increments made from his wages by the Management which he is entitled to receive to the tune of `12,136.66 ps. The grouse of the workman was that he had been appointed in the scale of `600-1,120 and had been given five increments and the benefit of the same had been withdrawn at the time he was paid the arrears of increment as per revised scales. Relevant portion of the order (Annexure P-4) in the application under Section 33-C(2) of the Act reads thus:-
"2. That at the time of appointment, the pay scale of the said post was 600-1120. At the time of appointment as per the appointment letter, the selection committee has given first five increments to the applicant.
3. That the management has deducted the five increment from the wages of the applicant without notice of personal hearing which the management has no right to deduct the same. As such the applicant is entitled to receive from the respondent Rs.12136.66 ps as arrears of increments as per the revised scale."
6. In the reply, this fact is not denied. Rather, it is admitted and the plea taken is that the five increments were given as a good gesture and were never part of the pay, which is contrary to the terms of the appointment letter, which has been placed on record as Annexure P-1 in which, it is clear that his appointment was w.e.f. 13.05.1986, one year one month prior to the appointment letter dated 16.06.1987 and in the basic pay of `700 per month. Thus, it was admitted, as a matter of record, that the sum of `12,136.66 ps. had been retained by the Management at the time of the payment of revised pay scales given in the year 1988. Thus, the submission of the counsel for the petitioner that the proceedings Gupta Shivani 2013.08.27 10:46 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 10885 of 1992 4 under Section 33-C(2) of the Act were not applicable to the deduction made, is without any basis. The workman's right to claim his wages as per the appointment letter were justified and a pre existing right was there in his favour and he was entitled for the wages as per the terms of appointment and Management had no right to deduct the said amount on the revision of the pay scales. This fact would be further clear from the statement of the workman, which has been attached as Annexure R-1 with the written statement of the workman wherein, it is stated that the arrears of the five increments which were granted to him were recovered from his salary on the plea that the same were wrongly given to him and its recovery was made at the time when the arrears of the revised pay scales were given. This fact is also admitted in the statement of the Welfare Officer, Kishanjit Singh (RW-
1) wherein, he also admitted in his cross examination that the benefit of five advance increments was not granted to the workman, the detail of which had been given in Annexure R-1. In view of these facts, the submission of counsel for the petitioner cannot be accepted that the application under Section 33-C(2) of the Act was not maintainable.
7. However, submission that the benefit of the advance increments cannot carry on to the revised pay scales is with merit and a perusal of the award would go on to show that this benefit of five advance increments while refixing the pay of the workman has been granted and his pay has been refixed at `1,680/- w.e.f. 01.01.1986 instead of `1,500/- per month. This benefit has been granted in spite of the fact that there was no such claim which would be clear from the application filed under Section 33-C(2) of the Act, which has been reproduced in para no. 5 above and as the prayer was only restricted to deduction of `12,136.66ps. at the time of revision of the pay scales. Accordingly, the benefit of fixing his pay at `1,680/- w.e.f. 01.01.1986 cannot be sustained. Reliance can be placed upon judgment of the Hon'ble Apex Court in U.P. State Road Transport Corporation vs. Barinder Bhandari, 2006 (10) SCC 211 wherein, it was held that Gupta Shivani 2013.08.27 10:46 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 10885 of 1992 5 arrears of pay relating to difference of salary, leave encashment and arrears of dearness allowance arising out of the implementation of the recommendations of the Pay Commission could not be claimed under a petition under Section 33-C(2) of the Act. Accordingly, the benefit granted by the Labour Court and upheld by the High Court in that case was set aside. The relevant observations read as under:-
"2. Appellant calls in question legality of the judgment rendered by a Learned Single Judge dismissing writ petition filed by it. Appellant had filed writ petition with the prayer to quash the order passed by the Presiding Officer, Labour Court, Dehradun in Misc. Case No. 144 of 2001.
3. Background facts in a nutshell are as follows:
A claim petition was filed by the respondent No.2 purported to be under Section 33 C(2) of the Industrial Disputes Act, 1947 (in short the `Act') for payment of arrears relating to difference of salary, leave encashment, arrears of dearness allowance arising out of implementation of the recommendations of the 5th Pay Commission, The Labour Court accepted the prayer and directed payment within a period of two months. Said order was challenged before the High Court by a writ petition.
4. Stand of the appellant before the High Court was that the application in terms of Section 33 C(2) was misconceived. The High Court took the view that the recommendations of 5th Pay Commission are binding on the appellant-corporation and, therefore, dues are payable. Gupta Shivani 2013.08.27 10:46 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 10885 of 1992 6
5. Learned counsel for the appellant submitted that the scope and ambit of Section 32 C(2) of the Act has been lost sight of by the Labour Court and the High Court was clearly in error in dismissing the writ petition and in upholding the order passed by the Labour Court.
6. There is no appearance on behalf of the respondent in spite of service of notice.
7. The benefit which can be enforced under Section 33 C(2) is a pre-existing benefit or one flowing from a pre-existing right.
xxx xxx xxx
9. The position was re-iterated by a three-Judge Bench of this Court in State of U.P. and Anr. v. Brijpal Singh, [2005] 8 SCC 58.
10. Judged in the background of principles set out above, the orders passed by the Labour Court and the High Court are indefensible and are accordingly set aside."
8. Accordingly, keeping in view the above observations, the writ petition is partly allowed and the relief granted to the workman of refixation of pay at `1,680/- per month as on 01.01.1986 instead of `1,500 is set aside. However, the recovery of `12,136.66 ps., which was admittedly made at the time of revision of pay scales, is held to be unjustified. The petitioner-Management will be at liberty to recover the excess amount paid on account of the refixation of the pay but will not be entitled to recover the sum of `12,136.66 ps. The writ petition stands partly allowed, in the above terms.
23.08.2013 (G.S. Sandhawalia) shivani Gupta Shivani Judge 2013.08.27 10:46 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 10885 of 1992 7 Gupta Shivani 2013.08.27 10:46 I attest to the accuracy and integrity of this document High Court Chandigarh