1) This petition is filed by the S.T. Corporation calling in question the legality of judgment and award dated 10.10.2003 passed by the Industrial Tribunal, Ahmedabad in Reference (IT) No.455 of 1991. The petition arises in the following factual background.
1.1) Reference (IT) No.455 of 1991 was raised by the respondent-Gujarat S.T. Staff Association. The terms of reference, when translated, read as under:
“1)Whether Shri B.N. Gajjar and Shri P.S. Gajjar discharging the duty in Central Store, Naroda as Art-C carpenter be granted 13% special pay as per the settlement?
2) Whether the pay anomaly in case of Shri M.P.Shah, Junior Assistant, Central Store, Naroda be removed?”
1.2) Such questions though not interconnected, came to be decided by the Industrial Tribunal, Ahmedabad by the impugned judgment in a common reference. With respect to question No.1, the Industrial Tribunal relied on its earlier award in Reference (I.T.) No.541 of 1991 dated 30.6.2001. The stand of the S.T. Corporation was that the settlement dated 1.8.1987 did not include the concerned workman and such special pay of 13% was available to another category of employees. In the earlier award, the Industrial Tribunal had found that the action of the S.T. Corporation in denying such special pay to the concerned workman was discriminatory. Following such award, the Industrial Tribunal, in the present case, also directed that the two workmen Shri B.N. Gajjar and Shri P.S. Gajjar discharging the duties as Art-C carpenter would also get 13% special pay from 30th September, 1993.
2) Learned counsel for the S.T. Corporation pointed out that the award dated 30.6.2001 passed in Reference (I.T.) No.541 of 1991 was challenged by the S.T. Corporation before this Court by filing Special Civil Application No.3092 of 2002. Such petition was allowed by an order dated 20.10.2010. The learned judge held and observed as under:
“7)Even otherwise it appears that considering the terms of reference, the Tribunal has materially erred in granting such relief. Terms of reference was not that whether 2P settlement, which does not provide payment of special pay to the helpers of the central store, is fair or not and/or whether the same is required to be modified or not. Under the circumstances, so long as 2P settlement dated 21.12.1989 is in existence and clause 4(B) and 72 is there and it is not modified by the competent Tribunal/Court in an appropriate dispute being raised to the aforesaid, Tribunal could not have passed any order contrary to the binding 2P settlement. If the concerned helpers working in the central store (other than Art 'B' helpers) are dissatisfied with any of the clause of the settlement, they can raise an industrial dispute through Union, if it is permissible under the law. However, as stated herein above, so long as the said settlement is in existence and is not modified, everybody is bound by that. It cannot be disputed by Shri Rathod, learned advocate appearing on behalf of the respondent.
8). In view of the above and for the reasons stated above, the impugned judgment and award dated 30.06.2001 passed by the Industrial Tribunal, Ahmedabad in Reference (IT) No.541/1991 deserves to be modified to the extent and declaring that only those Art 'B' helpers working in the central store shall be entitled to 13% special pay as provided in clause 4(B) of the 2P settlement dated 21.12.1989, subject to clause 72 i.e. they shall not be entitled to additional Rs.20/- as special allowance and so far as other helpers working in the central store are concerned, they are not entitled to 13% special allowance under clause 4(B) of the 2P settlement dated 21.12.1989. Rule is made absolute to the aforesaid extent. No costs.”
3) In view of such decision, the award in favour of the workman with respect to payment of 13% special pay would have to be set aside. Insofar as demand No.1 is concerned therefore, the award of the Industrial Tribunal is required to be quashed.
4) With respect to second demand, the Union had agitated that the workman Shri M.P. Shah, Junior Assistant, was receiving less pay than his junior. The demand of the Union, therefore, was to remove such pay anomaly. The S.T. Corporation contended that such anomaly could not be removed by granting stepping of the pay to the senior since his case did not fall within the circular No.580 of 1977 dated 4.6.1977. In such circular, the conditions for removal of pay anomaly by stepping up of the pay of the senior to the level of his junior who was found to be drawing higher pay, were provided. Such circular reads as under:
“In pursuance to the C.R. No.4028 dated 30.12.1976 read with Government Resolution quoted above, it is hereby directed that the following new Service Resolution No.65(e) may be inserted in the Gujarat State Transport Employees' Service Regulation.
S.R. No.65(e):-
“By virtue of revision in the payscale of the employees or the Corporation, if the pay of a senior person is fixed lower than the pay of a person junior to him after granting next increment in the revised pay scale, the pay of a senior person should be stepped up equal to the pay of a junior person, subject to the following conditions, namely:-
1. That both employees (Junior & Senior) have opted or deemed to have opted for the revised scale with effect from the date of the revision of the pay scale.
2. that both the employees drew the pay at the different stages at the time of the revision of the pay scale, and in that the senior drews more pay than the junior in the existing payscale.
3. that the pay of both the employees is fixed in the same timescale at the same stage in the revised scale.
4. that the junior gets the next increment on a date earlier than his senior as a result of the application of this rule, and
5. that subsequent increments to the senior may be regulated under normal rules, i.e. after completion of a service for the full incremental period i.e. not before one year from the date no which pay in the revised scale is stepped up.
The new Service Regulation comes in force from 1.8.1973 as approved by the Corporation under its C.R. No.4928 dated 30.12.1976 and the Government approved thereto.”
5) The Industrial Tribunal, however, found that the concerned workman was drawing less pay than his junior. Through a detailed discussion, the Industrial Tribunal found that it was a case of pay anomaly. The Union had produced reliable documents in support of the demand. The workman had not been able to produce any counter evidence. On such basis, the Industrial Tribunal directed removal of anomaly in the pay of Shri M.P. Shah with effect from 1.10.1987.
6) The fact that Shri M.P. Shah received less pay than his junior thus remains established. If the stand of the S.T. Corporation was that despite such pay anomaly, stepping up of the pay was not required to be granted since the conditions of circular No.580 of 1977 were not fulfilled, they failed to produce any material for such stand. The conclusion of the Industrial Tribunal, therefore, that in terms of the circular of the S.T. Corporation to step up the pay of the senior when it is found that the junior is drawing higher salary leading to pay anomaly, cannot be found fault with.
7) In the result, the impugned award of the Industrial Tribunal with respect to demand No.1 of the Union, is quashed. With respect to second demand, however, the decision is upheld. Petition is allowed to the above extent. Rule is made absolute with no order as to costs.
(AKIL KURESHI,J.) Vahid