Punjab-Haryana High Court
Saroop Singh S/O Harbans Singh vs Secretary on 17 May, 2013
Author: K.Kannan
Bench: K.Kannan
R.A-CW-423 of 2011 in CWP No. 8858 of 2007 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
R.A-CW-423 of 2011 in
CWP No. 8858 of 2007
Date of Decision: 17.05.2013
Saroop Singh s/o Harbans Singh ...Petitioner
Versus
Secretary, Labour and Employment ..Respondents
Government of Punjab, Chandigarh & others
CORAM:HON'BLE MR. JUSTICE K.KANNAN
Present: Ms. Abha Rathore, Advocate
for the applicant.
Mr. Sandeep Singh, AAG Punjab
for respondent No.1.
Mr. Vikas Chatrath, Advocate
for respondents No.2. And 3.
K.KANNAN, J.
1. An application for review has been sought by the petitioner on the ground that this Court, while disposing of the writ petition dismissed the petition by wrongly assuming that the petitioner had been given promotion post from the post as Assistant Welder, which he already held. The petitioner has made an averment that the post offered to the petitioner as Welder was not promotional post for Assistant Welder but the said post as Assistant Welder was itself a redesigned as Welder and the next promotion was Welder grade-1. The petitioner's grievance is that he was fully eligible for the post of welder grade-1 and the post that should have been offered to him in compliance with the earlier High Court's direction in CWP No.8581 of 1994 was only the post as Welder grade-1 and not of Welder. Since the petitioner's grievance R.A-CW-423 of 2011 in CWP No. 8858 of 2007 -2- is that he had not been offered benefit of direction already contained in CWP No.8581 of 1994, his grievance whether the action of the respondent was in compliance of the direction given or he was denied promotion in the manner that he urges before the Court, it would become relevant to examine the order itself.
2. In CWP No. 8581 of 1994, which challenged the directions given in the award of the Labour Court, the direction of this Court in the above case was not a direction for promotion but a direction to regularise the workmen and promote them to the promotional post. The order reads : '' Both the regularisation and promotion should be done from the date the persons junior to them on the workcharge establishment were promoted." The direction was therefore, to be understood as a right of the workmen to be regularised and promoted from the date, not from the date of order issued by the High Court on 11.1.1995, but from the date when any junior to the petitioner had been shown to have been promoted on the workcharge establishment. After the order was passed by the High Court on 11.1.1995, the applicant has issued notice to the Executive Engineer, seeking for regularisation and promotion. The Director of PSEB has intimated the Chief Engineer on 31.5.1995 that the petitioner was entitled to be promoted from the date the workmen junior to him on the workcharge establishment were promoted. It also appears that there have been communication from the Assistant Labour Commissioner Mohali as well to the Management to enforce the award already passed as modified by the High Court through its communication dated 16.4.1986.
3. It is in pursuance to this above direction that it appears that Chief Engineer has sent a letter dated 3.7.1995 offering him R.A-CW-423 of 2011 in CWP No. 8858 of 2007 -3- post of Welder at the scale of 950-1800. The order issued on 3.7.1995 according to the petitioner, was not in compliance of direction already issued. His grievance was that when he was being regularised he should have been also promoted but the same was not done and he was being offered the same post as Welder which was merely a redesigned post of Assistant Welder. That it is merely a redesigned post is sought to be established by the applicant by pointing out to, two communications, one a letter by the Chief Engineer to all Superintendents Engineer (Annexure A-1) that refers to filling up post of direct recruitment quota in 3rd category of post which includes "Assistant Welder (now Welder)". In another communication (Annexure P-2) which the petitioner has secured through an information sought under the RTI Act, the Deputy Secretary Finance PSPC has given the information that the Assistant Welder's pay scale on 1.1.1986 was 950-1800 and Welder's pay scale which was increased to 3480-6500 from 1.1.1996 referred to the pre-revised scale as 950-1800 from 1.1.1986. It was only for Welder grade-I, the scales were different from 1.1.1986, i.e. from 1200-2200 increased to 4300-7500 from 1.1.1996. The contention therefore, was that when an offer was made on 3.7.1995 when he was being given the scale of 950-1800 it was indeed scale of Assistant Welder, later designated as Welder and not the promotion post which was Welder grade-1 in the scale of 1200-2200.
4. The management-respondent tries to explain this anomaly by stating that the petitioner did obtain the right for consideration for promotion from the date of order of the High Court but had however, such a right only if a junior in the R.A-CW-423 of 2011 in CWP No. 8858 of 2007 -4- workcharge establishment had been regularised in the post as Assistant Welder/Welder. When he was actually being regularised and offered that post in the year 1995 in response to the direction given by High Court the petitioner refused to accept the same through his letter dated 3.7.1995 i.e. (Annexure R-2/2), wherein he has stated that " this offer of appointment is not acceptable to me and it is not as per the order of the High Court." The petitioner approached to the Court complaining of contempt in COCP No.897 of 1995, wherein the Court merely disposed of his petition with observations that the management would give effect to the order passed by the Court within three months. The management would contend that it again offered the same post through subsequent communication dated 21.9.1995 and this was again refused to be acceped by the petitioner through his letter dated 29.9.1995. Another contempt petition was filed i.e. COCP No.15 of 1996 but the Court dismissed the petition on a response from the management that there had been no disobedience of the order of the High Court but on the other hand the petitioner himself was responsible for not accepting the promotional post. The Court observed while dismissing the petition that the petitioner was unable to show that any Assistant Welder, junior to him had been promoted as Welder or Welder grade-1.
5. Since the order in the contempt petition referred above as well as contention taken by the respondent is that they had not regularised any person from the workcharge establishment who was junior to the petitioner, the petitioner has moved C.M. No. 3334 of 2013 in the review application seeking for seniority list of Assistant Welder in workcharge establishment from 1986 to 1995 and the date of regularisation of Assistant Welders (workcharged) R.A-CW-423 of 2011 in CWP No. 8858 of 2007 -5- who were juniors to the petitioner in the above seniority list. He has also asked for seniority list of Welder grade-1 in PSEB to identify the persons who are junior to the petitioner. Notice of application had been given by the Court on 6.3.2013 and the PSEB has replied strange by stating that there is no seniority list of Assistant Welder in workcharge establishment either with PSEB or at present with PSPCL. It is also stated that there is no post of Welder grade-1 and has stated that there is no person who had been promoted to the said post. Ranjit Singh and Manmohan Singh, who the petitioner claimed as juniors to him, have joined as Assistant Welder on 8.8.1986 and 23.8.1986 respectively and have joined as Welder against regular post on 18.12.1997 and 19.12.1997 respectively.
6. One thing becomes clear that when the petitioner was refusing to accept the post as Welder, he was labouring under an apprehension and there was no compliance of the direction given by the High Court and he was being given only the scale of Assistant Welder and not the scale of Welder grade-1 that was a promotion post. It is not very clear from the information given by the respondent as to how they could reconcile their own communication that the post of Assistant Welder was treated as now a Welder with the same scale as of Assistant Welder to be treated at par with promotional post. By the information supplied under R-2/10 Ranjit Singh and Manmohan Singh have only joined as Welder on 18.12.1997 and 19.12.1997 respectively. The petitioner cannot complain that there had been any discrimination practised against him. The petitioner must have been treated at least at par with Ranjit Singh and Manmohan Singh and he should have been placed above them.
R.A-CW-423 of 2011 in CWP No. 8858 of 2007 -6-
7. I find that the petitioner has prosecuted the case in all most all the occasions in person and allowed himself at all times the plea that he did not get an order of promotion, the way, the other junior persons got. A right of representation through counsel is seen as the most cherished goal and a prop to access to justice. Legal aid obtains full meaning only in the context of learned member of the bar providing assistance to a litigant. There is an underlying assumption that law is complex in the way we practise it in Courts and it is most exclusive and obfuscating. At the time I passed the impugned order, I was conscious that the petitioner did not have any legal counsel and he was petitioning repeatedly with the same refrain that an earlier relief given by the High Court in CWP No.8581 of 1994 had not been given to him. I had attempted to unravel from the crude pleadings of the party the core grievances, as if to remove to chaff from grain, as it were, and had sounded that the "exercise should again assure to the workman that his grievances were fully addressed and that they were not consigned to back-burner in unthinking haste." There was surely no haste but I realise, I erred all the same, sans the guidance of a lawyer.
10. A response from the workman that he was not accepting the regularisation offered to him may seen crude, but it should be understood in the whole context, that he was complaining that it was not in compliance with the orders of the High Court . How the High Court's order was to be understood is how I have attempted to expatiate. I will not see that any issue of estoppel could come against the petitioner of what he was entitled to. The counsel for the respondents states that the petitioner has since been dismissed from service and, therefore, the review application itself cannot be R.A-CW-423 of 2011 in CWP No. 8858 of 2007 -7- entertained. The counsel for the petitioner, however, states that the validity of the dismissal need not to be addressed here, as it is a subject of challenge in some other forum but the petitioner will be satisfied if his position is made clear that the regularisation which was issued in the year 1995 shall be operative at least insofar as his own position as a Welder is assured and he be placed above Ranjit Singh and Manmohan Singh who had also been regularised. When I passed the judgement earlier I have made an observation to the effect that the petitioner was being promoted from the post of Assistant Welder to Welder. That observation was not correct. The post of Assistant Welder was only a redesigned post. On the date when the regularisation was effected he was also entitled for consideration for promotion. A compliance of the direction of this Court in earlier writ petition arose for the management only when a junior to the petitioner was regularised from the workcharge establishment. When the petitioner himself was regularised there was no further requirement for the petitioner to show that no other junior had been promoted. It was sufficient for him to rely on the fact that his own regularisation could not have been done in purported compliance of the High Court direction unless his junior has been regularised. If he was entitled to be regularised then the additional direction which was found in the order was, he should also to be promoted. He was entitled for the promotion post from the post of Assistant Welder by whatever designation the respondents called.
11. The order already passed by this Court will stand modified and reviewed as the petitioner is entitled to be considered for regularisation and promotion from the date when his junior Ranjit Singh and Manmohan Singh were regularised and placed R.A-CW-423 of 2011 in CWP No. 8858 of 2007 -8- above him. The scales of pay shall be worked out notionally and monetary benefits will be given only from the day when he actually assumed charge.
12. The review application is allowed.
(K.KANNAN) JUDGE 17.05.2013 aarti