RESERVED ON 6.8.2018 DELIVERED ON 21.8.2018
Case :- WRIT - C No. - 2125 of 2007
Petitioner :- Dharmendra Chandra Sharma Respondent :- Nagar Palika Parishad Thru' Its Executive Officer And Others
Counsel for Petitioner :- Siddhartha Varma,Hritudhwaj Pratap Sahi,Ramesh Chandra Saxena,Vijay Kumar Singh Counsel for Respondent :- C.S.C.,S.R. Pandey
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Sri G.K. Singh for the petitioner, Sri S.R. Pandey for respondent nos.1 and 2 and Standing Counsel for the State.
2. By way of this writ petition, the petitioner has brought into challenge the order passed by Labour Court, who was supposed to decide the dispute as per the order of High Court in a writ petition filed by the petitioner. The High Court had directed the government to make a reference vide its judgment dated 19.8.2004. The award passed by the Labour Court on 4.10.2006 is assailed by the petitioner to be perverse, bad in eye of law and against principles established.
3. The petitioner challenged the said order on several grounds.
4. The factual scenario as it emerges is that the petitioner was appointed as a clerk on 1.12.1966. It is an admitted position of fact that Municipal Board, Ujhani, District – Badaun, comes in the II category of Nagar Palikas in the State of Uttar Pradesh. The petitioner was promoted to the post of Sectional Head-clerk vide order dated 12.8.1976 and was ordered to function as such. He could not get promotion as Head-clerk of Municipal Board, Nagar Palika Parishad, Ujhani, district – Badaun, as there was only one post of Head-clerk in the said Nagar Palika Parishad and as he was not senior, he could not be posted on the said post. Different Pay Commissions came to be constituted by the State of Uttar Pradesh in 1972, 1979, 1986 and 1996. The Pay Commission report dated 1.8.1972 was given effect to by a Government Order dated 22.6.1974. It is clear that Sectional Head-clerks, who were in the pay scale of Rs.230-300 had to get emolument in the pay scale of Rs.420-15-540-EB-15-570-16-650-17- 667-EB-17-735.
5. The petitioner was not granted the pay scale as there was no mention of Sectional Head-clerk of Grade II, Municipal Board in the Government Order dated 14.2.1990 a fresh order came to be issued by the Government dated 12.5.1992. The Government Order dated 12.5.1992 is also made a part of the writ petition. The clarificatory orders came to be passed clarifying the pay scale of Head-clerk and not the pay scale of Sectional Head-clerk on the post on which the petitioner was working.
6. In order to clarify the Government Order dated 25.5.1983, the District Magistrate, Badaun, by a communication dated 17.2.1984 still wanted to have a clarification from the State Government. The U.P. Government thereafter clarified the stand by a communication/Government Order dated 30.4.1984. The petitioner and like persons preferred a writ petition, being writ petition no.10519 of 1984.
7. The petitioner, who was one of petitioners in other petition, was relegated to alternative remedy of making reference. The petitioners pursuant to the order of the High Court in the said writ petition moved the Government as there was no conciliation which was arrived at under the Act, a reference to the Labour Court was made by Government. The Labour Court dismissed the petitioners' claim on the ground that as the matter was referred belatedly and the petitioner was no longer in service and had superannuated, there was no question of finally adjudicating his matter by the Labour Court, the Labour Court erroneously applied the pay scales determined by the Pay Commissions as implemented by the Government Orders, which related to the Head-clerks and not to the Sectional Head-clerks.
8. If we peruse the Government Order dated 25.5.1983 which was implemented by the Executive Officer, Nagar Palika Parishad, Ujhani, district Badaun, we find that it related only to the Head-clerk and not to the Sectional Head-clerks. After committing this mistake the Labour Court went on to find further that since the petitioner had retired on 31.12.2002, the matter referred to it by the State Government could not be determined by the Lower Court as the relationship of the employer and the employee ceased.
9. The award passed by the Labour Court is assailed. The Labour Court was referred the matter pursuant to the order of this Court and, therefore, whether the petitioner retired or not was not the aspect which had to be decided, as the reference related to Pay which can be given with retrospective effect also. When the petitioner agitated the issue, he was very much in employment. The reference court cannot go beyond the scope of the reference is a well settled legal principle and is enunciated by this Court and the Apex Court in the cases of U.P.S.R.T. Corporation Vs. State of U.P. and others, 2006 (1) AWC 134, U.P. State Sugar Corporation Ltd. and others Vs. Kamal Swaroop Tondon, (2008) 2 SCC 41 and U.P. State Electricity Board and another Vs. Presiding Officer, Labour Court and another, 2018 (5) ADJ 420, and, therefore, the order itself is bad in the eyes of law. The order dated 4.10.2006 of the Labour Court published is quashed and is set aside. The Labour Court shall decide the reference afresh on or before 30.9.2018 and if others are granted pay scale as there were other reference made, the same shall accrue for the benefit of the petitioner also as the State in its reply has stated that as per Government Order dated 30.12.1981 the petitioner was provided the revised pay scale of Rs. 420-735 but subsequently the same pay scale has been amended by the State Government by means of Government Order dated 25.5.1983 and by means of this Government Order, the pay scale of Sectional Head-clerk has been fixed as Rs.340-550 and the petitioner has been given the pay scale of Rs.340-550 by means of order dated 4.4.1984 by the Executive Officer, Nagar Palika Parishad, Ujhani.
10. The State has further submitted that the Head-clerk has been provided the pay scale of Rs.360-620 as per Government Order dated 30.12.1981. It is further relevant to mention here that after clarification sought from the authorities, the State Government has issued a Government Order dated 25.5.1983 by making clarification therein and fixed the pay scale of Sectional Head-clerk as Rs.340-550 and accordingly the same pay scale has been given to the petitioner.
11. The reply of the State is also showing that a casual approach in the matter of an employee is taken by Labour Court and Nagar Palika. Paragraph no.16 of the Affidavit filed by the Chief Standing Counsel on 26.7.2008 filed by Satya Prakash Singh also shows that the matter has been wrongly decided by Labour Court. Instead of remanding the matter to the Labour Court, it is directed to the authorities to recalculate the amount and pay to the petitioner as remanding the matter after such a long period would amount to further harassment to the petitioner, who has now retired and is very aged. The calculation be made on or before 6 weeks. If the same is not complied with, the petitioner will have right to further get the petition revived on an application being made before this Court.
12. The view taken by the Labour Court is absolutely misconceived and against the judgment which hold the field and, therefore, the writ petition is allowed.
13. Having held that the judgments of this Court in U.P.S.R.T. Corporation, U.P. State Sugar Corporation Ltd. and U.P. State Electricity Board (supra) apply in its full force, the respondents will have to recalculate the amount payable to the petitioner and even revise his pension if he is entitled to pensionary benefits. All his benefits will be recalculated by the authorities concerned.
Order Date :- August 21, 2018 Irshad