Kalumiya Rajanmiya Malek vs Gujarat State Road Transport ... on 12 August, 2016

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Gujarat High Court

Kalumiya Rajanmiya Malek vs Gujarat State Road Transport ... on 12 August, 2016

HC-NIC Page 1 of 11 Created On Wed Aug 17 01:44:36 IST 2016 C/SCA/6224/2008 JUDGMENT By this writ-application under Article 226 of the Constitution of India, the writ-applicant, a former employee of the Gujarat State Road Transport Corporation, has prayed for the following reliefs :

"(A) Your Lordships may kindly be pleased to issue a writ of mandamus and/or writ of certiorari and/or any other writ, order or direction to direct respondents Corporation to pay the pay scale of the Helper as per the directions of this Hon'ble Court at par with the other similarly situated Helpers.

(B) During the pendency and final hearing of the present petition, Your Lordships be pleased to direct the present respondent Corporation to pay the arrears of the pay scale of the Helper at par with the other similarly situated Helpers with effect from 13.6.2002.

(C) Any other and further relief may be granted as Your Lordships deemed fit, just and proper in the interest of justice."

The case of the writ-applicant may be summarised as under :

The writ-applicant joined the services of the Corporation on 8th December 1984 as a permanent Driver. After putting in nine years of continuous service, he came to be terminated on 10th July 1998. The order of termination laid to the Reference (LCN) No.215 of 1998. The Labour Court, vide its award dated 11th April 2001, allowed the reference and ordered reinstatement of the writ-applicant on his original post with continuity of service and full backwages. The Corporation, being dissatisfied with the award passed by the Labour Court, challenged the same before this Court by filing the Special Civil Application No.11285 of 2001. The said writ-application came Page 2 of 11 HC-NIC Page 2 of 11 Created On Wed Aug 17 01:44:36 IST 2016 C/SCA/6224/2008 JUDGMENT to be disposed of vide order dated 24th January 2002 in the following terms :

"Rule. Mr.Shakeel Qureshi, learned advocate waives service of rule. With consent of the parties the matter is taken up for final disposal. The petition filed by Gujarat State Road Transport Corporation (hereinafter referred to as "the Corporation"), whereby the award passed by the Labour Court, Nadiad in Reference (LCN) No.215 of 1998 dated 11.4.2001 is challenged. By the impugned judgement and award the learned Judge of the Labour Court has quashed and set aside the order dated 10.7.1998 dismissing the respondent workman- Driver and had ordered to reinstate the workman on his original post with 100% back wages.

2. The case of the petitioner corporation is that the respondent workman was absent from 24.4.1998 to 29.4.1998 without prior intimation or permission from the authorities. He was served with charge sheet and departmental inquiry was initiated. An order of dismissal came to be passed on 10.7.1998. It is the case of the petitioner corporation that during the inquiry till passing of the order of dismissal, the respondent workman never cared to report for duty or to attend departmental proceedings. This order of dismissal was under challenge in the aforesaid proceedings and the learned Judge, after taking into consideration the case of both the sides, taking a view that the respondent workman was having some trouble with his eyes, therefore, he had made an application for recategorisation on 3.7.1998, a copy of which is produced at page 30 along with the affidavit in reply. It is true that the said application is made just a week prior to passing of order of dismissal. But taking into consideration the fact that the respondent workman was having long service, he was having some difficulty while driving at night time, he was under treatment with Dr.Lukmani and after hearing both the sides, it will be in fitness of things if the judgment and award of the Labour Court is modified. The award to reinstate the workman on his original post of Driver with full back wages is quashed and set aside. Taking a sympathetic view of the matter and taking into consideration that the respondent workman had a genuine reason of eye Page 3 of 11 HC-NIC Page 3 of 11 Created On Wed Aug 17 01:44:36 IST 2016 C/SCA/6224/2008 JUDGMENT sight on account of which he could not discharge his duty, it is thought fit that it will be in the interest of justice if the respondent workman is ordered to be reinstated giving benefit of recategorisation either on the post of Helper or Peon as per the availability of the post with the petitioner corporation. Taking into consideration the principle of 'no work, no wage', the respondent workman is not awarded any wages for the intervening period. However, his services are ordered to be treated as continuous and the petitioner corporation shall see that this benefit of recategorisation is given to him at the earliest but not later than six weeks from the date of receipt of copy of this order.

3. The petition is disposed of with the aforesaid directions. Rule is made absolute to the aforesaid extent. No order as to costs. Direct service is permitted."

Pursuant to the order passed by this Court referred to above, the writ-applicant was reinstated in service but as a Trainee Helper. He had to be reinstated on the post of Helper because his vision had got impaired and it was found that he would not be in a position to serve as a Driver. The writ- applicant retired in the year 2014.

The grievance voiced in this writ-application is twofold. First, the reinstatement should not have been as a Trainee Helper but should have been on the post of Helper, and secondly, the amount of pension which has been fixed is not in accordance with law.

Mr.Trivedi, the learned counsel appearing for the writ- applicant vehemently submitted that having regard to the order passed by this Court referred to above dated 24th January 2002, the reinstatement should have been on the post of Helper. His client should have been paid the salary of a Helper Page 4 of 11 HC-NIC Page 4 of 11 Created On Wed Aug 17 01:44:36 IST 2016 C/SCA/6224/2008 JUDGMENT and not that of a Trainee Helper. His second contention is that the amount of Rs.1000=00 per month fixed by the Corporation towards the pension is a mockery and the Court should look into this aspect of the matter.

On the other hand, this writ-application has been vehemently opposed by Ms.Mandavia, the learned counsel appearing for the Corporation. Ms.Mandavia clarified that pursuant to the order passed by this Court, the reinstatement was on the post of the Trainee Helper, but within 180 days thereafter, the writ-applicant was put in the original time-scale and he retired also accordingly. She clarified that the pension rules which are applicable to a Government servant are not applicable to the employee of the Corporation. The maximum amount of pension which the highest authority of the Corporation drawing as on date is Rs.2,000=00. According to her, if the writ-applicant has any grievance with regard to the policy of the Corporation in this regard, then he should challenge the same. Ms.Mandavia has placed reliance on the following averments made in the reply which, by and large, clarifies the issue.

"3. I say and submit that the petitioner had retired on 31.7.2014. The petitioner has not filed amendment in the petition contending that he is getting less amount of the pension. However, as per the order passed by the Hon'ble Court I am explaining the policy of pension published by the corporation. The family pension scheme is applicable to the employees of the corporation. It is made applicable compulsorily from 1971 earlier the option was required to be given to the employees whether they want to join in this scheme or not ? Now, 1971 scheme has been replaced by the new scheme of 1995. This is known as employee's pension scheme 1995.




                                      Page 5 of 11

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           C/SCA/6224/2008                                              JUDGMENT

4. I say and submit that 10% amount (PF) required to be deducted from the salary of the employee and the same amount would be deposited by the corporation. Out of these total amount 8.33% amount (Maximum Rs.541/-) should be deposited with the Commissioner of Regional Fund Office as a fund of the pension and remaining amount should be deposited with P.F. Trust of the corporation.

5. From 1995, the limit of the pension of the employee as under:

                Time Limit                      Basic Pay               Max.amount
                                                Limit                   as per 8.33%

                From Nov. 1995                  3500                    417
                From 1.6.2001                   6500                    541
                From 1.9.2014                   15,000                  1250
                                                       (Basic + Grade Pay + DA)

Hence, whatever the pay of the employee at the time of retirement is but maximum contribution would be only Rs.541/-. Therefore, the petitioner is getting the amount of pension is just and proper as per the scheme prevailing in the corporation. Copy of the relevant portion with regard to pension of an employee is annexed herewith and marked as Annexure R1 to the reply.

6. I say and submit that the corporation would deposit the amount as stated hereinabove with RPFC. Then the RPFC would decide that how much amount required to be decided as the amount of the pension. The corporation is not deciding the amount of the pension. Therefore, as per the order passed by the Hon'ble Court I cannot give the calculation of the pension amount which the petitioner is getting. However, we wrote a letter to RPFC vide letter no.stg/acc/pension/ 2285/dt.31.5.16 or provide the calculation of the pension. Copy of the letter dated 31.5.16 is annexed herewith and marked as Annexure-R2 to the reply.

7. I say and submit that the petitioner was selected as driver on 24.4.1985 and he has given his first posting at Mahudha depot. But he had not presented himself on the Page 6 of 11 HC-NIC Page 6 of 11 Created On Wed Aug 17 01:44:36 IST 2016 C/SCA/6224/2008 JUDGMENT place of duty. So, on Dt.27.2.1986 he was informed to remain present, however, not reminded present. So, again he was informed vide letter dated 21.3.1986. But he had not remain present on the place of duty. Therefore, the decision is taken to remove his name from the merit/waiting list. That decision is informed to him vide letter dated 29.4.1986. Hence, he has filed reference no.126/1997 and in Lok-Adalat which was held at Nadiad, the reference had been disposed of with the understanding between the parties that the name of the petitioner would be included in waiting list again with effect from 19.1.1998. Accordingly, the petitioner was taken back in service as Badly Kamdar - driver from 13.4.1998. He has to take charge at Borsad depot on or before 18.4.1998. The petitioner had taken charge from Dt.18.4.1998 as Badli Kamdar Driver on daily rated basis of Rs.83-89.

8. From 24.4.1998, the petitioner remained unauthorized absent on the duty without prior permission. The notices are given to him to remain present. The departmental inquiry was held in which also he had not remained present. So, ex-party inquiry held and, he was dismissed from the service on 10.7.1998. The petitioner had not remained present in the inquiry, on the duty, but he is very vigilant to the file litigation. Again he filed reference no.215/1998 before the Labour Court on 11.4.2001 the Labour Court had allowed the reference and reinstatement with back wages and continuity has been awarded the corporation had challenged the said award by filing Special Civil Application No.11285/2001 before this Hon'ble High Court had modified the award and directed to us to reinstate the workman by giving the benefit of recategorization either on the post of Helper or Peon as per availability of the post and order of back wages was set aside.

9. I say and submit that according as per the order of Hon'ble High Court the petitioner was reinstated on the post of Helper on 15.6.2002 at Nadiad Depot. Now, the petitioner has prayed that he should be given salary which is being given to one M.G.Malek who is serving as Helper without giving service details of M.G.Malek. I am giving the service details as under :

M.G.Malek was appointed as Driver on 7.12.1979.


                                     Page 7 of 11

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           C/SCA/6224/2008                                          JUDGMENT

Thereafter, he was given time scale on 7.8.1980. He never terminated or dismissed from the service. His service is continued from the date of joining. He had served continually as a driver upto 31.12.1996. Here also he has some problem in eyes. So, the civil surgeon has declared him 'unfit'. Hence he was given posting on the category of the helper naturally his service of driver requires to be take into consideration. Hence, he was given pay scale of Rs.750-1700 when he was given posting as helper, was getting as 1580/- as driver. So, from 1.1.1997 the pay was fixed as 1552/- + 28/- P.P. then released increments etc. Hence, the petitioner cannot compare his case with M.G.Malek.

10. I say and submit that as stated hereinabove, the petitioner was taken on select list/waiting list from 19.1.1998. He presented himself on the duty on 18.4.1998. Then he never remained present on duty so, dismissed from the service. After getting the order from this Hon'ble Court he was sent in the training of Helper (Meh.General) for 3 years. All the three years he was given stipend of Rs.1900/-, Rs.2000/- and Rs.2100/-

respectively.

11. Thereafter, from 16.12.2000 he has been paid the salary as per the pay scale of the helper i.e. 2500-5775 and given time scale on 2500/- after that he was being given the benefits on increment etc. Therefore, the petitioner cannot compare his case with M.G.Malek. Both the cases are entirely different. The petitioner is already retired from the service on 31.7.2014.

12. I say and submit that in the petition the petitioner had not mentioned anything with his service details. And also not given service of M.G.Malek and simply one ground the petition is filed. Now, looking to above mentioned facts, it is clear that the petitioner cannot get the benefits like M.G.Malek.

13. I say and submit that the name of the petitioner was included in the waiting list again as the compromise made before the labour court on 19.1.1998. Thereafter, as stated in above mentioned paragraphs that he did not remained present and he raised dispute and ultimately, the Hon'ble Court has ordered to give him posting from Dt.15.6.2002. The Hon'ble Court has set aside the order Page 8 of 11 HC-NIC Page 8 of 11 Created On Wed Aug 17 01:44:36 IST 2016 C/SCA/6224/2008 JUDGMENT of labour court giving him backwages. But the services of the petitioner require to be counted as continuous from 1998 only pension scheme calculation. But by bonafide mistake it was given fresh appointment so far as gratuity is concerned. Now, it would be counted earlier 4 years service and the gratuity would be paid accordingly. I undertake to give the benefits of gratuity expeditiously as we have already paid pension from 1998. We will pay the difference amount of gratuity from 1998 to 2002 within short time.

We have already paid retirement benefits to petitioner as under :

1. Gratuity 1,16,862/- Date 7.8.2014

2. Revised Gratuity 4,090/- Date 1.11.2014

3. Provident Fund 2,21,655/- Date 29.10.2014 To the aforesaid reply filed on behalf of the Corporation, a short rejoinder has also been given in writing by the writ-

applicant.

Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is, whether the writ-applicant is entitled to the reliefs prayed for in this writ- application.

Let me first take care of the averments made in para 13 of the affidavit-in-reply filed on behalf of the Corporation. In the reply, it has been admitted that a sum of Rs.40,370=00 is due and payable to the writ-applicant towards the gratuity, i.e. the amount towards the difference of gratuity for the period between 1998 and 2002. The officer who is present in the Court today makes a statement that a cheque of the amount of Rs.40,370=00 shall be drawn in favour of the writ-applicant and will be handover to him by the end of this month. The Page 9 of 11 HC-NIC Page 9 of 11 Created On Wed Aug 17 01:44:36 IST 2016 C/SCA/6224/2008 JUDGMENT Corporation is directed to act accordingly.

So far as the grievance with regard to the salary of post of Helper is concerned, it appears that for a period of 180 days from the date of the reinstatement the writ-applicant was treated as a Trainee Helper. In fact, there was no reason for the Corporation to reinstate the applicant as a Trainee Helper. However, I am told that within 180 days thereafter he was put in the original time-scale.

There is no clarity as such so far as this issue is concerned, and I left it open for the writ-applicant to raise it before the Corporation once again. If this issue is raised by an appropriate representation, the Corporation shall look into the same and take an appropriate decision in accordance with law in that regard.

So far as the pension amount is concerned, it appears that the pension rules which are otherwise applicable to a Government servant are not applicable to the employee of the Corporation. The calculation and the fixation of pension so far as the employees of the Corporation are concerned, is altogether on a different basis and considerations. In such circumstances, a meager amount of Rs.1,000=00 has been fixed towards the pension. This issue as regards the policy of the Corporation need not be gone into in the present proceedings. In an appropriate case, the Court may examine the policy. However, in the present case no relief can be granted to the writ-applicant in this regard.

With the above, this writ-application is disposed of. Direct Page 10 of 11 HC-NIC Page 10 of 11 Created On Wed Aug 17 01:44:36 IST 2016 C/SCA/6224/2008 JUDGMENT service is permitted.

(J.B.PARDIWALA, J.) MOIN Page 11 of 11 HC-NIC Page 11 of 11 Created On Wed Aug 17 01:44:36 IST 2016

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