Sanwar Lal vs Ajmer Vidut Vitran Nigam Ltd. and Others

Gopal Krishan Vyas, J.�The instant writ petition was allowed by this Court vide order dated 07.07.2011 and the said judgment was challenged by the respondents by way of filing special appeal being DB Civil Special Appeal (W) No. 1006/2011 and the Division Bench of this Court passed an order in the said special appeal on 16.11.2011 whereby the appeal was allowed which setting aside the judgment dated 07.07.2011 and remanded the matter for fresh adjudication.

Learned counsel for the respondents submits that earlier judgment was rendered in absence of counsel for the respondents, therefore, the matter is again heard on merit.

After hearing learned counsel for the parties, in my opinion, the adjudication made by this Court on 7.7.2011 was made after due consideration of the facts and the reply given by the respondents. Therefore, this writ petition is again allowed in following terms:-

This writ petition has been filed by 25 employees of Ajmer Vidut Vitran Nigam Ltd., Ajmer in which the following prayer has been made:

"(a) The Respondents may kindly be directed to get the cases of the Petitioners fixed from the date such fixations have been done in other divisions in respect of the persons junior to them and thereafter the Petitioners may be given all consequential benefits right from the date the junior have been so given the fixation benefits with interest at the rate of 24% p.a. On and from the date the same become payable till the same is paid to them.

(b) Any other appropriate writ, order or direction as may be considered proper in the facts and circumstances of the case may kindly be awarded in favor of the Petitioners.

(c) Cost of the Writ Petition be allowed to the Petitioners."

Learned counsel for the petitioners submits that an agreement was executed in between the Raj. State Electricity Board and the General Secretary, Prantiya Vidyut Mandal Mazdoor Federation in Form ''C" in terms of Section 10B(I) of the Industrial Disputes Act, 1947 in which it was agreed between the said parties to refer certain industrial disputes to the Arbitrators. Further, it was agreed that decision of the Arbitrators shall be binding on them and in case the Arbitrators are equally divided in their opinion, they shall appoint another person as an Umpire whose award shall be binding on them.

In pursuance of the said agreement Mr. Prithvi Singh and Mr. A.L. Sancheti of Raj. State Electricity Board were appointed as Arbitrators. The Arbitrators passed award on 15.6.1978 and as per Para-15 of the award given by the Arbitrators, the following directions were issued:

"15. It has been submitted before us that the arrangements for carrying out fixation/adjustment/promotion as on 1st April, 1968 and thereafter, need to be prescribed in accordance with the terms of reference given to us. Such submissions made to us have been considered by us particularly in context to the plea that the terms of reference given to us is to decide the principle to regulate the fixation/adjustment/promotion of all technical workmen of the Rajasthan State Electricity Board from 1st April, 1968 to 31st March, 1977. Since the rules governing the fixation and for purpose of determination of pay, etc., have been already prescribed, it is our opinion and we decided that in order that no disparity is caused, the same system/principles regulating the fixation/promotions be adopted as that would ensure uniformity and consistency. It is an admitted position that the fixation committees as previously constituted in terms of various agreements are to carry out the fixation/adjustment/promotion in respect to the posts as available upto 31st March, 1968 only except as provided in the agreement dated 7th July, 1973 as modified through another memorandum of agreement dated 2nd November, 1973 and also as provided in the agreement dated 23rd April, 1974. We decide that for carrying out the fixation/promotion against all such posts as created with effect from 1st April, 1968 and onwards excluding the posts created for fixation corresponding to work-load on 31st March, 1968, is to be carried out by the fixation committees as stated in the Schedule ''A'' at Appendix-III unless specifically provided otherwise or fettered in any of the Memorandum of Settlement/Agreement already executed between the Board and the Prantiya Vidyut Mandal Mazdoor Federation for the time periods stated/referred above. These fixation committees will carry out the fixation including the adjustment as enunciated herein following the principles and criteria already followed in the past. We have deemed it proper to prescribe as such as that would be more rational and consistent/uniform. In context to the submissions made in this regard, we note that regulation 29 of the Technical Workmen Service Regulations 1975, contemplates promotion of a candidate from a lower post to higher post to be given effect from the date on which he/she takes over the charge of the higher post. In our opinion such a stipulation can only be made effective on prospective basis but cannot be made applicable in respect to the fixation/adjustment/promotion to the technical workmen as has been contemplated through the various agreements and our Award. We, therefore, prescribe that the application for regulation 29 of the Rajasthan State Electricity Board Technical Workmen Service Regulations, 1975 should not be operative to such extent, and also recommend to the Board for consideration to make suitable modification/amendment".

The benefit of above award was to be given to all the employees including the petitioners but as per contention of petitioners'' counsel due to non-appointment of fixation committee, who carried out the above fixation in respect of Makarana Sub-Division, the petitioners were not granted benefits of award, therefore, so many representation were filed by the petitioners to the respondent Nigam stating therein that certain employees in the same Nigam who were appointed subsequently to the petitioners are getting more salary and it has happened due to the reason that award was not implemented for the employees of Makarana Sub-division because fixation committee was not appointed to make fixation/adjustments in salary of petitioners as per the award.

The main contention of learned counsel for the petitioners is that award was to be implemented by the respondent Corporation for the petitioners who were working in Makarana sub-division but due to non-appointment of fixation committee, the award was not implemented in the Makarana Sub-Division where the petitioners were working. The claim of the petitioners is that as per para 15 of the award, the respondents were under obligation to appoint fixation committee for adjustment/fixation of salary but due to inaction on the part of the respondent Nigam the fixations were not carried out and as a result thereto the persons working in other sub-divisions where fixation committee was appointed, their fixations were made and they are getting more pay and pay-scales as compared to the petitioners though they are similarly situated and working in the Makarana sub-division. Therefore, it is prayed that the respondents cannot discriminate the case of the petitioners for granting the benefits of Sancheti Award as provided in para 15 of the award.

Learned Sr. Advocate Mr. Marudhar Mridul argued that the discrimination practised by the respondents is in violation of Article 14 and 21 of the Constitution of India. Therefore, directions may be issued to the respondents to grant benefits of Sancheti award to the petitioners for which fixation committee may be appointed and further respondents may be directed to give instruction to the fixation committee to make fixation of pay scale of petitioners as per para 15 of the Sancheti Award, which is granted to other similarly situated employees working under the control of Ajmer Vidhyut Vitran Nigam Ltd., Ajmer.

Per contra, in reply filed by the respondents, the main objection is that after 16 years, this writ petition has been filed, therefore, at this belated stage, no benefit can be granted to the petitioners. Further, it is submitted that necessary fixations have already been made in accordance with the rules and circulars issued by the respondent Corporation from time to time, therefore, the petitioner''s contention cannot be accepted that due to non appointment of fixation committee, the benefits under Sancheti Award was not extended to the petitioners. Further, it is contended in the reply that award was terminated vide notification published in the newspaper - Raj. Patrika on 6.7.1985 vide notification dated 29.6.1985, therefore after termination of award now no benefits can be given to the petitioners. Therefore, this writ petition may be dismissed.

In rejoinder filed by the petitioners, it is specifically stated that the ground of delay is not sustainable because it was the duty of the respondents to appoint the fixation committee for Makarana Sub-division also and admittedly the said committee was not constituted for Makarana sub-division and for the said inaction on the part of the respondents, the petitioners cannot be held responsible and benefits cannot be denied solely on the ground of delay.

Learned counsel for the petitioners submits that as per verdict of Hon''ble Supreme Court, denial of fixation in the pay is continuing wrong, therefore, limitation will not come in the way of the respondents to grant benefits of Sancheti Award to the petitioners. Therefore, this writ petition may be allowed and prayer made by the petitioners may be granted.

After hearing learned counsel for the petitioners and perusing the reply filed by the respondents and other documents placed on record, the following facts are not in dispute:

(a) That the award was passed by the Sancheti Committee an respondents took decision to implement the award.

(b) That there is no denial in the reply that the benefits of Sancheti award was not extended to similarly situated persons working in other divisions.

(c) That the award was in existence from 1979 till the date of termination vide notification dated 29.6.1985 and in this period all the petitioners were working under the control of respondent Nigam.

(d) That admittedly no fixation committee was appointed for the employees of Makarana sub-division for granting benefits of fixation under the Sancheti Award.

In my opinion, the main ground for denial of benefits under Sancheti award is delay and for delay the petitioners cannot be held responsible because once the award was passed then it was to be implemented by the respondents as per the agreement in which it was accepted by both the parties that it has binding force upon both the parties and non-implementation of the award only in case of petitioners is lack on the part of the respondent employer and petitioners cannot be blamed. Once, it is decided by the respondents to implement the award then it is obligatory duty of the employer to implement the award and allow the benefits to all the employees as per the agreement. Here in this case, the respondents are admitting that the award was in existence since 15.6.1979 to 29.6.1985 and all these petitioners were working under the control of Makarana Subdivision and benefits of fixation was granted to other employees working in other sub-divisions while appointing fixation committee then why this benefit was not extended to the petitioners inspite of the fact that the award is to be implemented for all the employees. In this view of the matter, the ground of delay taken by the respondents is hereby rejected.

Further, in my opinion, the respondents'' action is in violation of Articles 14 and 21 of the Constitution of India because after passing Sancheti Award, it was to be implemented for all the employees and if due to any inaction on the part of the respondents, petitioners were not given benefits of Sancheti Award, then delay cannot be attributed upon the petitioners. The petitioners are very much entitled to get benefits as per agreement from the date on which the similarly situated persons were granted benefits.

In this view of the matter, this writ petition is allowed. The respondent Corporation is hereby directed to appoint fixation committee for granting benefits of Sancheti Award to the petitioners within a period of two months from the date of receipt of certified copy of the order and grant the benefits of Sancheti Award within a period of three months thereafter and all the benefits may be extended to the petitioners within the said period.