Andhra Pradesh High Court - Amravati
M.V.Nageswara Rao, vs Andhra Pradesh State Road Transport ... on 29 March, 2022
HON'BLE DR. JUSTICE K. MANMADHA RAO
WRIT PETITION No.11362 of 2019
ORDER :
This petition is filed under Article 226 of the Constitution of India for the following relief:-
"to issue a writ order or direction more particularly one in the nature of writ mandamus declaring the action of the respondents in not granting two (2) Special Grade Increments on petitioner completing 12 years and 20 years of service and not crediting 300 days Earned Leaves during the period 2002 to 2012 to the petitioner's Leave Account, as arbitrary, illegal, violative of Articles 14 and 21 of the Constitution of India and consequently direct the respondents to add the above increments and refix the pay of the petitioner and pay incremental arrears with interest @ 12 % p. a., add 300 days Earned Leaves to the Leave account of the petitioner and grant costs of this proceedings and pass such other order or orders......."
2. The case of the petitioner is that he originally joined as a Cleaner in APSRTC on 21.11.1997 and worked for about 2 years. Thereafter, he was promoted as Conductor and worked upto 22.08.2022, on which date, he was placed under suspension by the 3rd respondent on certain false charges. Thereafter, the 3rd respondent passed an order dated 26.12.2012 terminating the petitioner from service. The said order was challenged before the Labour Court, Guntur, vide I.D.No.2 of 2004 and the same was dismissed by the Labour Court vide Award dated 21.12.2005. Aggrieved by the same, the petitioner filed W.P.No.29552 of 2011 before this Court. Vide order, dated 26.03.2012, this Court allowed the writ petition by setting aside the Award of the Labour Court and 2 directed the respondents to reinstate the petitioner with continuity of service and all other attendant benefits, except back wages. It is stated that pursuant to the order dated 26.03.2012 the petitioner was reinstated into service. Since then, he is working in the 3rd respondent depot as conductor.
It is submitted that the petitioner has put in 22 years of continuous service in the 1st respondent Corporation. The service conditions of employees in the 1st respondent Corporation are settled through statutory settlement under the provisions of I.D. Act, between the Management of APSRTC and recognized Trade Union operating in APSRTC. Based on this statutory settlement, the 1st respondent used to issue circular, incorporating the service conditions of the employees in APSRTC. It is further stated that Grant of increment and Special Grade Increment is one of the service conditions. There is a scheme in force for granting Special Grade Increment, who have completed 12 years and 20 years of service, as per the circulars issued by the 1st respondent Corporation from time to time, more particularly, the 1st respondent Corporation issued a Circular No.PD-04/2011, dt.12.01.2011, which laid down that an employee who completes 12 years of service shall be given Special Grade of first advancement and another Special Grade on completion of 20 years of service and consequently these Special Grade Increments should be given to these employees. This Court vide order, dated 26.03.2012 granted attendant benefits. The Special Grade Increments would come within the purview of the expression 'Attendant Benefits'. The 3 petitioner is entitled for addition of these increments to his pay on completion of 12 years and 20 years of service, as per the aforementioned scheme in force in the 1st respondent Corporation.
It is also stated that under APSRTC Leave Regulations, the petitioner is entitled to 30 days for a year as Earned Leaves during the period 2002 to 2012. But the respondents have not added these leaves to the petitioner's account. These Earned Leaves also comes within the meaning of the expression 'Attendant Benefits'. For this, the petitioner requested the respondents for grant of these benefits, but the respondents are dodging the issue. Thereafter, the petitioner got issued a Regd. Legal Notice, dated 29.06.2018, demanding the respondents to add the above two Special Grade Increments to his pay and add 300 days to his leave account. But, the respondents, having received the same, failed to reply, as such, the respondents are liable to pay interest on petitioner incremental arrears. In these circumstances, the petitioner has put to much loss and inconvenience due to non-addition of these increments and Earned Leaves. It is further stated that in similar cases, wherein the employees of 1st respondent claimed the Special Grade Increments in number of Writ Petitions, this Court granted the relief. Hence, the action of the respondents in not granting Special Grade increments and not crediting Earned Leaves from 2002 to 2012, is illegal and arbitrary. Hence, the present petition.
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3. Counter affidavit is filed by the respondents denying the allegations in the petition and contended that the petitioner namely Sri M.V. Nageswara Rao, B.725899, Conductor of Macherla Depot has filed I.D. No.2 of 2004 before the Presiding Officer, Labour Court, Guntur against the removal Order dated 26.12.2002 passed by the Manager, Macherla. After conducting enquiry, the same was dismissed vide order dated 21.12.2005 confirming the removal of petitioner. Aggrieved by the same, the petitioner has filed W.P.No.29552 of 2011 before this Court and the same was allowed vide order dated 26.03.2012 setting aside the Award dated 21.12.2005 and also removal order dated 26.12.2002 and further directed the respondent Corporation to reinstate the petitioner's continuity of service and all attendant benefits, however except wages. Being aggrieved by the order dated 26.03.2012 passed in W.P.No.29552 of 2011, the Corporation has filed an appeal in W.A.No.841 2012 before a Division Bench of this Court and this Court vide order dated 23.07.2012 in WAMP No.1676 of 2012 initially granted interim stay with regard to continuity of service and other attendant benefits. Subsequently, W.A.No.841 of 2012 was dismissed on 24.06.2013. After dismissal of the above Appeal, the proceedings were issued to implement the orders passed in W.P.No.29552 of 2011 dated 26.03.2012 duly giving the benefits of continuity of service with all attendant benefits without back wages from the date of removal i.e., dated 26.12.2002 to the date of reinstatement i.e., 07.08.2012. Accordingly, the increment arrears drawn at 5 Macherla Depot during the period from the month of August, 2012 to July 2017 and Pay Reduction Arrears were recovered in the salary bill of November, 2017.
It is further submitted that though the petitioner was awarded continuity of service with all attendant benefits, he is not eligible for 300 days of Earned Leaves as claimed by him in the present writ petition, because the Earned Leaves are added to the Leave account of the employee only when he physically attends to his duties. As per APSRTC Employees' Leave Regulations, 1963, Regulation 34 clearly says in Class-I, Class- II and Class-III Service be one-twevlth of the period spent on only, which was not happened in the case of the petitioner. As such, the petitioner is not eligible to get Earned Leaves for the out of service period.
It is further submitted that with regard to grant of 12 years and 20 years special grade increments, for receiving 12 years and 20 years special grade increments, the employee must be continuously in service and has to physically attend to his normal duties as in case of Earned Leaves. It is submitted that as per the PD Circulars No.65/1989 and 4/2011, dated 12.01.2011, the petitioner is not eligible for TWO special Grade Increments and Earned Leaves as he has not performed his duties physically during the period from 26.12.2002 to 07.08.2012 i.e., from the date of removal till the date of re- instatement. It is submitted that in view of the above, this Hon'ble High Court granted continuity of service for the purpose of retiral benefits like Gratuity, Seniority and for the 6 purpose of chart seniority, but not for Special Grade Increments and Earned leaves. Hence in any view of the angle, there are no justifiable grounds that warrant interference of this Court and therefore prayed to dismiss the writ petition.
4. Heard Sri M. Pitchaiah, learned counsel appearing for the petitioner and Sri P. Durga Prasad, learned Standing Counsel for APSRTC appearing for the respondents.
5. Learned counsel for the petitioner Sri M. Pitchaiah, strenuously contended that there is no distinction between active service and notional service for the purpose of reckoning service for sanction of Special Grade. Adverting to the petitioner's case, he contended that the petitioner has been directed to be reinstated by the respondents with continuity of service except back wages and hence he shall be deemed to be in service through out. He relied upon a judgment of High Court of Andhra Pradesh at Hyderabad reported in M.D. Rahamatullah versus Depot Manager, APSRTC, Karimnagar1, wherein it was held that "line of authorities on this question is rather uniform and it is held time and again that whenever a Labour Court directs reinstatement with continuity of service but without back wages, the employee concerned will be entitled for all the benefits flowing from continuity of service. The only restriction is upon payment of back wages which is imposed by the Labour Court Award itself."
1 W.P.No.26584 of 1996 9CDJ 1999 APHC 360) 7
6. The short question that arises for consideration is whether the period during which the petitioner was out of service prior to his reinstatement is to be counted for continuity of service for the purpose of Special Grade or stagnation increments.
7. As seen from the record, the petitioner previously has filed W.P.No.29552 of 2011 before the High Court of Andhra Pradesh at Hyderabad questioning the award dated 21.12.2005 passed in ID No.2 of 2004 by the Labour Court, Gunur and the same was allowed vide order dated 26.03.2012 and the impugned award was set aside. Consequently, the order of removal passed against the petitioner is also set aside and the respondent-APSRTC are directed to reinstate the petitioner into service with continuity of service and all other attendant benefits, however except back wages. Being not satisfied, the APSRTC management preferred an appeal before a Division Bench of the High Court of Andhra Pradesh at Hyderabad in W.A.No.841 of 2012 and the same was dismissed vide order dated 24.06.2013.
8. It is pertinent to note that as per Circular issued by the 1st respondent vide Circular No.PD-04/2011, dated 12.01.2011, which laid down that an employee who completes 12 years of service, shall be given Special Grade of first advancement and another Special Grade on completion of 20 years of service and consequently these Special Grade Increments should be given to these employees. 8
9. From a reading of the above Circular, as the petitioner has completed more than 21 years of service, he is entitled for two Special Grade Increments. The petitioner has already filed WP No.29552 of 2011 and the same was allowed and thereafter the management has filed W.A.No.841 of 2012 and the same was dismissed.
10. It is pertinent to note that the petitioner merely sought for grant of stagnation increments together with arrears but he did not challenge the impugned Circular. Hence the principles of constructive res judicata do not operate and this writ petition is therefore maintainable.
11. In view of the foregoing reasons, the Writ Petition is allowed. The respondents are directed to sanction Special Grade Increments to the petitioner and refix the pay of the petitioner and to pay the incremental arrears, if any, under the Special Grade with interest @ 12% p.a., within a period of three (03) months from the date of receipt of a copy of this order. No order as to costs.
As a sequel, interlocutory applications, if any pending, shall stand closed.
______________________________ DR. K. MANMADHA RAO, J.
Date : 29 -03-2022 Gvl 9 HON'BLE DR. JUSTICE K. MANMADHA RAO WRIT PETITION No.11362 of 2019 Date : 29.03.2022 Gvl