(Per : HON'BLE MISS JUSTICE R.M.DOSHIT) 1.The appellant in these two appeals is the Food Corporation of India (hereinafter referred to as the "Corporation"). The Corporation challenges the common judgment & order dated 22nd September, 1997 passed by learned Single Judge in Special Civil Applications nos. 3144 of 1995 and 5936 of 1995.
2.The writ petitioners in the above referred writ petitions (hereinafter referred to as the "Workmen") were working as Tally Clerks. In the year 1991 the workmen were rendered surplus as Tally Clerks and were liable to be retrenched. The Corporation, however, considered their case sympathetically and decided to absorb them, in Class-IV service with protection of pay scale. Consequently by communication dated 17th December, 1991 the workmen were called upon to opt for absorption in any Class-IV category post the scale of which was not higher than that applicable to Tally Clerk, with an assurance that their existing scale of pay would be allowed as personal pay. In the alternative, in case the workmen did not opt for absorption in class-IV category post they would be retrenched. By communication dated 23rd December, 1991 the workmen applied for some more time to consider the offer and to submit their option. In the meantime the workmen preferred Special Civil Application No. 9049 of 1991 and challenged the aforesaid communication dated 17th December 1991. The said petition was contested by the Corporation. In view of the statement made in the counter affidavit filed on behalf of the Corporation that:-
" It is submitted that the pay scale of the Tally Clerks is protected while offering them absorption in Class-IV category. These Tally Clerks are to be brought from the pay structure of departmental workers to the pay structure of FCI staff."
the workmen withdrew the writ petition. Even thereafter the workmen avoided to exercise option either to opt for absorption in class-IV category post or for retrenchment. Several memos calling upon the workmen to exercise their option were issued by the Corporation. By memorandum dated 19th May, 1994 the workmen were called upon to exercise their option within 15 days from the receipt of the said memo, failing which the workmen would be retrenched.
3.Feeling aggrieved the workmen preferred Misc. Civil Application No. 1478 of 1994 under the Contempt of Courts Act, 1971. The said application came to be dismissed on 21st January, 1995 (Coram: M.B. Shah, J [as he then was] & Mr. D.H. Nasir,J). Once again the workmen failed to exercise their option. By letter dated 29th March, 1995 the Sr. Regional Manager (Gujarat) was directed to take action to retrench the workmen after following the due procedure. No sooner the said communication was issued then the workmen appear to have exercised their option on 18th April, 1995. However, apprehending their retrenchment the above referred writ petitions were preferred on 21st April, 1995. In the writ petitions the workmen sought direction against the Corporation not to retrench the workmen and other Tally Clerks and to absorb the workmen and other Tally Clerks in Class-IV service, subject to appropriate fixation in the matter of pay and pay scale.
4.The above writ petitions were contested by the Corporation. It was averred, inter alia, that as assured the pay of the workmen was protected and as against the existing pay scale of Rs.1130-1735 the workmen were offered the pay scale of Rs.1230-1755.
5.The learned Single Judge was pleased to allow the petitions and to direct the Corporation to continue the workmen in their existing pay scale of RS.1130-1735 as revised from time to time. The Corporation was permitted to absorb the workmen in Class-IV service so that they would be entitled to draw allowance and other benefits as available to class-IV employee. Feeling aggrieved the Corporation has preferred the present Appeals.
6.We are of the view that the learned Single Judge has erred in granting the reliefs beyond what was prayed for. Learned Single Judge has also erred in construing the statement made by the Corporation in its affidavit reproduced hereinabove. Evidently the workmen did not exercise option for absorption in Class-IV category post pursuant to the intimation given to them on 17th December, 1991. Thereafter the workmen did not respond to the memos issued on 30th April, 1993 and 15th May, 1993. In response to the memo dated 19th May, 1994 the workmen preferred Misc. Civil Application No. 1498 of 1994 but did not offer their option. The option as required was given for the first time on 18th April, 1995 after dismissal of the aforesaid Misc. Civil Application. The said option exercised by the workmen gave an impression that the said options were exercised pursuant to the above referred order dated 25th January, 1995 made on Misc. Civil Application No. 1478 of 1994. It would not be out of place to mention here that the Special Civil Application No.9049 of 1991 preferred by the workmen was withdrawn unconditionally. The Misc. Civil application No. 1478 of 1994 was dismissed. In neither of the said orders any observation was made by the Court with respect to the rights of the workmen or the obligations of the Corporation. Evidently the aforesaid options were made as late by 18th April, 1995 with a view to avoiding the retrenchment. Immediately thereafter, without waiting for the response by the Corporation the above writ petitions were preferred on 21st April, 1995. As it is disclosed in the counter affidavit the workmen had also raised industrial dispute against the apprehended retrenchment.
7.We are of the opinion that as the workmen had availed of the alternative statutory remedy, the learned Single Judge ought not to have entertained the petition under Article 226 of the Constitution. The relief to continue the workmen in the existing pay scale of Rs.1130-1735 as revised from time to time was beyond the scope of the petition and the assurance given by the Corporation. It should be noted that retrenchment was a necessary consequence of being rendered surplus. In that event the case of the workmen was considered by the Corporation sympathetically. As the Corporation had decided to absorb the workmen in Class-IV category post with protection of pay scale as personal pay, the workmen could not have asked for continuance of the same pay scale as revised from time to time as a matter of right. What was assured was the protection of pay scale as personal pay which could not have been read to mean protection of existing pay scale as revised from time to time. The words 'personal pay' have a specific connotation in service jurisprudence. It necessarily means protection of pay / pay scale to be adjusted against the future increments / pay scale as the case may be. In any view of the matter the workmen did not have a right to absorption in Class-IV service nor had they right to receive salary of a Tally Clerk after absorption in Class-IV service.
8.For the aforesaid reasons the Appeals are allowed. The impugned judgment & order passed by the learned Single Judge is quashed and set aside. The Special Civil Application Nos. 5936 of 1995 and 3144 of 1995 are dismissed. The parties shall bear their own cost.
Registry is directed to maintain copy of this judgment in each Appeal.