Central Administrative Tribunal - Jaipur
Banshidhar Sharma vs National Institute Of Ayurveda, Jaipur on 27 May, 2022
1
OA No. 241/2019 & OA No. 247/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
ORIGINAL APPLICATION NO. 241/2019
&
ORIGINAL APPLICATION NO. 247/2019
Order reserved on 20.05.2022
DATE OF ORDER: 27.05.2022
CORAM
HON'BLE MRS. HINA P. SHAH, JUDICIAL MEMBER
OA No. 241/2019
Yasin Khan S/o Shri Anwar Khan, Age 43 years, R/o
546, Barah Mori Pathan Colony, Jaipur. Working as
Daily Wager Multi Tasking Worker at National Institute
of Ayurveda, Madhav Vilas Palace, Amer Road, Jorwar
Singh Gate, Jaipur - Group-D. M-9351446689.
....Applicant
Shri Dharmendra Jain, counsel for applicant.
VERSUS
National Institute of Ayurveda, Madhav Vilas Palace,
Amer Road, Jorwar Singh Gate, Jaipur - 302002
through its Director.
.... Respondent
Shri Anurag Agarwal with Shri Satish Pareek, proxy
counsel for Shri M.D. Agarwal, counsel for respondent.
OA No. 247/2019
Banshidhar Sharma S/o Shri Hanuman Sahai Sharma,
Age 40 years, R/P Village Vimalpura Post Karanpura,
2
OA No. 241/2019 & OA No. 247/2019
Via Kaladera, Jaipur. Working as Daily Wager Multi
Tasking Worker at National Institute of Ayurveda,
Madhav Vilas Palace, Amer Road, Jorwar Singh Gate,
Jaipur - Group-D. M-9351446689.
....Applicant
Shri Dharmendra Jain, counsel for applicant.
VERSUS
National Institute of Ayurveda, Madhav Vilas Palace,
Amer Road, Jorwar Singh Gate, Jaipur - 302002
through its Director.
.... Respondent
Shri Anurag Agarwal with Shri Satish Pareek, proxy
counsel for Shri M.D. Agarwal, counsel for respondent.
ORDER
With the consent of learned counsels for the parties, OA No. 241/2019 and OA No. 247/2019 are taken up together for disposal as common question of law and facts are involved in both the cases.
2. For the sake of convenience, brief facts of OA No. 241/2019 are taken up. OA No. 241/2019 has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 for the following reliefs:-
"A The order dated 20.02.2019 passed by the respondent on the application / representation submitted by the 3 OA No. 241/2019 & OA No. 247/2019 appellants may kindly be quashed and set aside.
B by directing the respondent to give minimum pay of the pay scale for the post of multi tasking worker with arrears from September 2016 & interest of 12% per annum.
C. Any other order, relief or direction, which this Hon'ble Tribunal deems fit and proper and just in the facts and circumstances in the case may also be passed."
3. The brief facts of the present case, (OA No. 241/2019), as narrated by the applicant are as under:-
(i). Applicant was appointed on 22.05.1996 on daily wages basis. His services were terminated on 24.05.1997 and so he raised a dispute under Industrial Dispute Act, 1947 and vide award dated 30.11.2014, termination was declared as illegal. He was reinstated with 50% back wages by Central Industrial Tribunal and Labour Court. Respondents challenged the said order before Hon'ble High Court of Rajasthan, Jaipur Bench by way of filing S.B. Civil Writ Petition No. 1637/2005 wherein Hon'ble High Court granted stay vide order dated 22.03.2006 vide its order dated 22.03.2006 staying back wages and only awarding the award. Applicant was reinstated on 4 OA No. 241/2019 & OA No. 247/2019 18.04.2006 but he was paid wages at Rs. 32/- per day.
(ii). Applicant then made an application before the authority seeking minimum wages for the period from 01.12.2004 to 28.02.2008 and the same was allowed by the authority under Payment of Wages Act, 1936 vide its order dated 30.12.2009. Again respondents filed an Appeal against the said order, which was dismissed vide order dated 19.05.2012 by the Additional District and Sessions Judge No. 6, Jaipur. Respondents filed an appeal against the order dated 19.05.2012 before Hon'ble High Court of Rajasthan, Jaipur Bench by way of filing Writ Petition No. 11579/2012. In the meanwhile, Writ Petition No. 1637/2005 filed against order dated 30.11.2005 was dismissed by Hon'ble High Court of Rajasthan vide its order dated 25.03.2015. Again respondents filed D.B. Civil Special Appeal (Writ) No. 483/2015 against the order dated 25.03.2015 before Hon'ble High Court of Rajasthan, Jaipur Bench and the same was dismissed vide order dated 13.04.2016 and 50% back wages awarded by Central Industrial Tribunal and Labour Court was forgone by the applicant. Thereafter, respondents issued order dated 28.09.2016 by which 5 OA No. 241/2019 & OA No. 247/2019 salary of the applicant was fixed at Rs. 309/- per day.
(iii). Respondents thereafter withdrew S.B. Civil Writ Petition No. 11579/2012 on 28.08.2017. S.B. Civil Writ Petition No. 14825/2015 filed by respondents was disposed of vide order dated 15.02.2018 (Annexure A/6) by the Hon'ble High Court of Rajasthan in view of settlement between applicant and respondents. Applicant has also filed an Industrial Dispute for regularization of his services which is still pending. It is further stated that respondents are taking same work from the applicant as being taken from regular employees. Hence, applicant is entitled for regular pay scale on the post from the first day of his appointment.
(iv). Applicant states that he is having requisite qualification of the post of Multi Tasking Staff (MTS) since his first date of appointment. Applicant submitted an application for the same but the same has not been decided by the respondents. Applicant filed S.B. Civil Writ Petition No. 17479/2018 before the Hon'ble High Court of Rajasthan and after issuing notices to respondents, the same was dismissed on the ground of jurisdiction and vide order dated 6 OA No. 241/2019 & OA No. 247/2019 24.10.2018 applicant was allowed to withdraw the said Writ Petition with liberty to file O.A. before this Tribunal. Accordingly, applicant filed OA No. 644/2018 for grant of minimum pay scale for the post of MTS to the applicant. Said O.A. was disposed of on 08.01.2019 with a direction to respondents to decide the representation of the applicant. Representation of the applicant was decided by the respondents by rejecting the same vide order dated 20.02.2019 (Annexure A/1) on wrong grounds. Being aggrieved by the action of the respondents, applicant has filed the present O.A. for redressal of his grievance.
(v). In support of his arguments, applicant h a s relied u p on the judgment o f t h e Hon'ble High Court of Rajasthan, Jodhpur B e n c h p a s s e d in the case of T h e S t a t e O f Rajasthan & Ors. vs. Yogendra Kumar K a n o j i y a & O r s . ( D . B . S p l . A p pl . W r i t N o . 68/2021) decided vide its order dated 15.12,2021 relying upon the judgment of t h e H o n ' b l e A p e x C o u r t p a s s e d i n t h e c as e o f State of Punjab & Ors. vs. Jagjeet Singh & Or s . , r e p o r t e d i n 2 0 1 7 1 S C C 1 4 8 .
7OA No. 241/2019 & OA No. 247/2019 4 ( a). After issue of notices, respondents have filed their reply raising preliminary objection about limitation that the present O.A. is totally time barred in view of Section 21 of the Administrative Tribunals Act, 1985 and, thus, the present O.A. deserves to be dismissed being time barred.
(b). Respondents further state that the applicant was engaged by respondents on daily wages vide its order dated 22.05.1996 for a fixed term of three months on contractual basis with the condition that his services will be terminated at any time without any notice even before the expiry of the fixed period. His term came to an end on 21.08.1996. He was subsequently appointed for three months on contractual basis vide order dated 14.02.1997 from 25.02.1997 on daily wages.
(c). Applicant along with four other persons had approached Hon'ble High Court of Rajasthan, Jaipur Bench by way of filing S.B. Civil Writ Petition No. 492/1999 for allowing them to continue till regular selections are held. The said Writ Petition was disposed of by the Hon'ble High Court vide its order dated 04.02.1999. Again order of the Hon'ble High Court dated 04.02.1999 was challenged by one Shri Meetha 8 OA No. 241/2019 & OA No. 247/2019 Lal by way of filing D.B. Civil Special Appeal (W) No. 510/1999, which was allowed by the Hon'ble High Court of Rajasthan, Jaipur Bench vide its order dated 16.08.1999. Even the respondents had filed an appeal against the order dated 04.02.1999, which was registered as D.B. Special Appeal No. 450/1999, but the same became infructuous as impugned order against which the D.B. Appeal was filed, was already set aside by the Hon'ble High Court in identical D.B. Appeal No. 510/1999.
(d). Respondents had out of five candidates including the applicant in S.B. Civil Writ Petition No. 492/1999 had selected two candidates as they were found suitable. Again applicant along with two other persons filed Writ Petition No. 6558/1999 before the Hon'ble High Court inter alia stating that the respondent Institute has undergone with selection process from 08.10.1999 to 12.10.1999 and selected only two candidates, who were working on daily wages basis, though five posts were advertised. Hon'ble High Court vide its order dated 04.01.2002 dismissed Writ Petition No. 6558/1999, holding that there was no post available with the Institute to be filled in by giving appointment to the petitioners after two posts were 9 OA No. 241/2019 & OA No. 247/2019 filled in. It was also held that simply as the petitioners were appointed on temporary basis, they have no right over the posts unless the posts are available and they stand in merit for getting appointment on a particular post. Aggrieved by the said order, applicant along with two other persons preferred D.B. Special Appeal No. 291/2002 before Hon'ble High Court and the same was dismissed as withdrawn vide order dated 15.04.2002.
(e). Respondents state that thereafter the facts are not disputed about chain of disputes filed before Industrial Tribunal as well as Hon'ble High Court. In addition, respondents state that D.B. Civil Special Appeal (Writ) No. 483/2015 when listed for hearing on 04.04.2016, during the arguments before the Hon'ble High Court, the learned counsel for the applicant had categorically stated that in addition to whatever amount has been paid to him, he will not claim any more amount from the Management. Learned counsel for respondents had submitted to the Hon'ble High Court that the worker has taken amount in pursuance of the orders passed by the Payment of Wages Authority in spite of stay order by the Hon'ble High Court. The Hon'ble High Court while dismissing the Appeal vide its order dated 10 OA No. 241/2019 & OA No. 247/2019 13.04.2016 (Annexure A/4) observed that it is made clear that the workman will not be entitled for any further back wages except whatever has been paid to him.
(f). Respondents further state that by withdrawal of the Writ Petition, the applicant has clearly stated before the Hon'ble High Court that he will not claim any other amount from the Respondent-Institute. Even as per the order dated 15.02.2018 passed by the Hon'ble High Court it has been clearly observed that in terms of the settlement arrived between the parties, the proceedings filed by the applicant claiming minimum wages will be withdrawn immediately. It was further denied by the respondents that the same work from the applicant is being taken which is being taken from the regular employees. It was further denied that the applicant is entitled for salary as per regular pay scale from any date. It was also denied by them that the applicant is having requisite qualification of the post of MTS. Respondents also states that the ratio decided by the Hon'ble Apex Court in case of State of Punjab & Ors. vs. Jagjeet Singh & Ors., reported in 2017 1 SCC 148 is not applicable to the facts of the present case. Therefore, the respondents pray that the 11 OA No. 241/2019 & OA No. 247/2019 applicant is not entitled for any reliefs and the O.A. is liable to be dismissed summarily.
5. The applicant has not filed any rejoinder rebutting the submissions of the respondents.
6. Heard learned counsels for the parties and perused the material available on record including the judgements cited by the parties.
7. The learned counsel for the applicant as well as the respondents reiterated their submissions as stated earlier.
8. The present case of the applicant has a chequered history of litigations entered into between the applicant and the respondents since his termination of services on 24.05.1997 till the settlement arrived at between the parties and as agreed by them as recorded by the Hon'ble High Court of Rajasthan, Jaipur Bench vide its order dated 15.02.2018 (Annexure A/6) in S.B. Civil Writ Petition No. 14825/2017 with S.B. Civil Writ Petition No. 14681/2017.
12OA No. 241/2019 & OA No. 247/2019
9. In the said order dated 15.02.2018 passed in S.B. Civil Writ Petition No. 14825/2017 with S.B. Civil Writ Petition No. 14681/2017, the Hon'ble High Court of Rajasthan, Jaipur Bench has recorded several litigations and in the nutshell the highlights of the said order as discussed by the Hon'ble High Court is as under:-
"The matter was heard by the Division Bench and it was brought to the notice of the Court that employees have been reinstated in the year 2006 and they are continuously working. The Court after recording statement of workmen- employees that workmen will not be entitled for any back wages except whatever was paid to them, dismissed the Special Appeals.
It is brought to the notice of the Court that employer-petitioner passed an order dt. 8th September, 2016, where now respondent- Employee is paid minimum wages @ Rs. 309/- per day and as such the employer is now continuously paying the respondent-employee on daily wages basis and prevalent minimum wages is paid to them. It has also been informed that minimum wages for the period 2006-08 or up-to September, 2008 have already been paid to the employee-respondents.
The only dispute is with regard to the payment of minimum wages from October, 2008 to August, 2016.
This Court on previous occasion had asked both the learned counsel to have instructions from their client with respect to settling the issue amicably.
Learned counsel for the petitioner-employer submits that they are prepared to pay minimum wages to the respondents-employees from the month of October, 2008 to August, 2016 13 OA No. 241/2019 & OA No. 247/2019 provided the respondent-employees withdraw their application filed before Payment of Wages Authority and as such payment is being made to them should be treated as final settlement against payment of minimum wages to the respondent-employees.
Counsel submits that the penalty and interest which is being claimed by the employees- respondents will also not be admissible to them, in view of the offer made to the employees. Counsel further submits that the amount which is already paid @ Rs. 32/- per day as daily wager to the employee is required to be deducted/adjusted from the payment which will become due to the respondents-employees on account of granting them minimum wages.
Learned counsel for the respondent-employees, Mr. Dharmendra Jain, on instructions submits that if payment of minimum wages is made to the employees from October, 2008 to August, 2016, no claim will be made in respect of the minimum wages due from initial date of appointment till the reinstatement.
The present writ petitions are disposed of in the terms of settlement arrived between the parties and it is directed that the proceedings filed by the employees-respondents from claiming minimum wages before the Payment of Wages Authority will be withdrawn immediately.
The employer-petitioner is directed to pay arrears on account of revision of wages of the employees by paying them the minimum wages w.e.f. October, 2008 to August, 2016, after adjusting the amount already paid to them.
It is made clear that the amount which is already paid for the period 2006-08 even along with interest and penalty, will not be required to be refunded / adjusted. The required payment will be made to the employee concerned within a period of six weeks.
The present writ petition stands disposed of in the terms of above settlement arrived between the parties"14
OA No. 241/2019 & OA No. 247/2019
10. After passing of the said orders by the Hon'ble High Court of Rajasthan dated 15.02.2018, the applicant approached the respondents by making an application dated 9/10.05.2018 (Annexure A/7), that on the basis of the judgement of the Hon'ble Apex Court in the case of State of Punjab & Ors. vs. Jagjeet Singh & Ors., reported in 2017 (1) SCC (L&S) 1, since he is working on the post of MTS, at present he is not getting minimum pay and as held by the Hon'ble Apex Court that any employee is entitled to get the minimum pay scale of the said post, he too is entitled to get the benefits of pay scale of the post of MTS. Since the said representation of the applicant was not decided, he approached this Bench of the Tribunal by way of filing OA No. 644/2018, which was disposed of by this Tribunal vide its order dated 08.01.2019 (Annexure A/9). Thereafter, the respondents in compliance of the directions of this Tribunal, considered the representation of the applicant and personal hearing was afforded to him and after going through the judgement of the Hon'ble Apex Court as well as the other orders of the Courts have rejected the representation of the applicant by speaking order 15 OA No. 241/2019 & OA No. 247/2019 dated 20.02.2019 (Annexure A/1) which is the impugned order in the present Original Application.
11. The grounds raised by the applicant is that since he is performing the same work as done by a regular MTS, so he is entitled for minimum pay of pay scale of the post of MTS from the date of his first appointment as he is having the requisite qualification of the post of MTS from the first date of his appointment. Therefore, the rejection of the representation of the applicant and not making payment of the minimum of the pay scale of the post of MTS is arbitrary, illegal and in violation of Articles 14, 16 and 39-d of the Constitution of India.
12. I do not agree with the grounds raised by the applicant in view of the settlement agreed by the applicant himself with the respondents and which has been clearly recorded by the Hon'ble High Court in its order dated 15.02.2018 whereby the applicant is now estopped from raising fresh demands as it was made clear in the said order that no claim will be made by the applicant in respect of the minimum wages due from initial date of appointment till the reinstatement. It was also clarified that the 16 OA No. 241/2019 & OA No. 247/2019 proceedings filed by the employees-respondents for claiming minimum wages before the Payment of Wages Authority will be withdrawn immediately. It was also directed to the employer-petitioner to pay arrears on account of revision of wages of the employees by paying minimum wages w.e.f. October 2008 to August 2016, after adjusting the amount already paid to him. It was also clarified that the amount already paid to the applicant for the period 2006-08 even along with interest and penalty will not be required to be refunded/adjusted and the said payments were to be made to the employee concerned within a period of six weeks.
13. I also do not agree with the stand of the applicant that since he is doing work of MTS and has requisite qualifications he is entitled for minimum pay scale of the post of MTS as once he has settled his claim for minimum wages which is recorded in the order of the Hon'ble High Court and once payments have been accepted by him according to the orders of the Hon'ble High Court, now he cannot take a 'U' Turn and state that he is entitled for the minimum of the pay scale of the post of MTS. He cannot re- agitate the issue of minimum pay scale which has 17 OA No. 241/2019 & OA No. 247/2019 already attained its finality before the Hon'ble High Court when the judgement of the Hon'ble Supreme Court passed in the case of State of Punjab & Ors. vs. Jagjeet Singh & Ors. (supra) was already in existence prior to the passing of the order dated 15.02.2018. Thus, I am not convinced with the arguments put forth by the applicant as he cannot come out with a new ground in the present O.A. that he is entitled to get benefits as per the judgement of the Hon'ble Apex Court passed in the case of State of Punjab & Ors. vs. Jagjeet Singh & Ors. Since the applicant is working as a daily wager with the respondent-Institute and is a low paid employee, I restrain myself from imposing costs upon the applicant and further restrain him from entering into frivolous Petitions and not only wasting the time of the Department unnecessarily but also wasting the valuable time of the Court which could have been utilized in other litigations.
14. With these observations, as the action of the respondents is just and proper, there deserves no interference by this Tribunal in the order dated 20.02.2019 (Annexure A/1) and, thus, Original Application being devoid of any merits deserves to be 18 OA No. 241/2019 & OA No. 247/2019 dismissed. Accordingly, Original Application No. 241/2019 is dismissed with no order as to costs.
15. In view of the above observations and discussions, the connected Original Application No. 247/2019 is also dismissed with no order as to costs.
(HINA P. SHAH) JUDICIAL MEMBER /nlk/