JUDGMENT Vineet Saran, J.
1. By means of this writ petition the petitioner has prayed for a direction in the nature of mandamus, commanding the respondents U. P. State Sugar Corporation Ltd. to provide the pay scale of Rs. 2,000-3,500 to the petitioner with effect from 31.7.1986 and pay him the arrears of the difference in salary. A further prayer has been made for a direction to promote the petitioner on the post of Liaison Officer.
2. Brief facts relevant for the decision of this case are that in the year 1973, the petitioner was appointed as Laboratory Chemist in the Amroha Sugar Mills of the respondent U. P. State Sugar Corporation Ltd. Admittedly by the order dated 30.5.1985 passed by the General Manager of the U. P. State Sugar Corporation Ltd., the petitioner was designated as Liaison Assistant in the same pay scale and was attached to the General Section to look after the liaison and public relation work of the factory as well as project work. Subsequently, on 3.12.1987, the respondent-Corporation redesignated the petitioner as Laboratory Chemist in the same scale. On the passing of the aforesaid order the petitioner raised an industrial dispute which was registered as Adjudication Case No. 13 of 1992 with the Labour Court, U. P. at Rampur. By its award dated 30.1.1993 the labour court held that the stand taken by the respondent-Corporation, that the petitioner was designated as Liaison Assistant on trial basis, was not correct. It was also held that the reversion/restoration of the petitioner on the post of Laboratory Chemist was neither proper nor legal. The post of Laboratory Chemist, on which the petitioner was earlier working was a seasonal post, whereas on re-designation as Liaison Assistant, the petitioner became a regular employee, although the pay scale remained the same. The labour court thus directed the respondent-Corporation to restore back the petitioner on the post of Laboratory Assistant with effect from 3.12.1987 and also to pay him all the consequential benefits. The contention of the petitioner is that after having been designated as Liaison Assistant he was entitled to the benefit of the recommendations of the Second Pay Commission, for after being designated as Liaison Assistant, the petitioner ceased to be an employee covered under the Sugar Wage Board. The petitioner thus claims that he would be entitled to the benefit of the circular of the State Government dated 6.9.1989 in this regard.
3. I have heard Sri K.R. Sirohi, learned counsel assisted by Sri Rajesh Tiwari, on behalf of the petitioner as well as Sri Rajendra Kumar Srivastava, learned counsel appearing for the respondent-Corporation and have perused the record.
4. The post of Laboratory Chemist is a post which is covered under the recommendations of the 3rd Central Wage Board for Sugar Industries (Sugar Wage Board for short) issued on 31.1.1989 whereas the post of Liaison Assistant is not covered by the same. The petitioner thus contends that his services would be governed by the U. P. State Sugar Corporation Ltd. General Service Rules, 1988 (Rules of 1988 for short). Chapter II of the said Rules deals with the recruitment, appointment and promotion of the employees of the Corporation. Rule 4 relates to the classification of posts. It provides that the classification of posts under the Corporation for the purposes of appointment, control and discipline shall broadly be as in Appendix-A wherein it is provided that the post carrying scale of pay. minimum of which is Rs. 1,350 per month or above, shall be classified as Officers Group 'A' and the post carrying scale of pay, minimum of which is Rs. 770 per month or above but less than Rs. 1,350, would be classified as Officers Group 'B'. Admittedly, the petitioner is working in the pay scale of Rs. 1,300-2,050. It has thus been contended on behalf of the petitioner that he, not having been covered as an employee mentioned in the recommendation of the third Sugar Wage Board after having been designated as Liaison Assistant on 30.5.1985 and thereafter reinstated/restored back as Liaison Assistant with effect from 3.12.1987 by the order of the respondent-Corporation dated 12.6.1993, thus he has claimed that the petitioner could only be classified as Officer Group 'B' under the Rules of 1988 and would be entitled for such benefits including revision of pay scale, as has been given to the Officers Group 'B' by the recommendations of the Pay Commissions. It has also been contended on behalf of the petitioner that although not admitted, but even if it is assumed for sake of arguments that the petitioner was highly skilled worker, working as Laboratory Chemist, then too under the third Sugar Wage Board the said post (highly skilled) had been merged and categorised as Supervisory Group 'C' and thus also the petitioner, according to the recommendations of the Sugar Wage Board, would be entitled to the scale of Rs. 1,400-2,250, which is also not being paid to the petitioner. The petitioner thus contends that the respondent Corporation has never treated the petitioner as Laboratory Chemist after he had been designated as Liaison Assistant on 30.5.1985. Accordingly, it has been urged that the post on which the petitioner has been working is that of Liaison Assistant which can only be treated as a post of Officers Group 'B' and he would be entitled to the benefits of the same.
5. The main thrust of the argument of Sri R.K. Srivastava, learned counsel for the respondent is that the petitioner is an employee covered under the Sugar Wage Board and is not an employee of the Corporation and thus he would not be entitled to the relief which has been prayed for. He has placed reliance on a decision of this Court in Writ Petition No. 17847 of 2002. Amar Nath and Ors. v. State of U. P. and Ors., wherein, while dealing with the case of employees who were covered by the Sugar Wage Board, this Court held that they cannot be equated with the employees of the Corporation who can be transferred, I am unable to accept this contention of the learned counsel for the respondent that the petitioner is not an employee of the Corporation, as after the U. P. Sugar Undertakings (Acquisition) Act, 1971 having come into force, all the employees of the Sugar units which had been acquired by the State of U. P. were deemed to be employees of the Corporation and as such there can be no distinction for such purpose with regard to the employees of the Corporation and employees covered by the Sugar Wage Board. In any case the petitioner having been initially appointed in the year 1973, after the said Act of 1971 had already come into force, he, having been employed by the Corporation, could be treated as nothing else but an employee of the respondent-Corporation. The distinction as sought to be carved out by the learned counsel for the respondent does not have any force or relevance as to what is to be considered by this Court is whether the petitioner is covered by the recommendations of the Sugar Wage Board or the Rules of 1988. In this regard it has been submitted on behalf of the respondents that since the petitioner had himself approached the Labour Court as a workman in which the award dated 30.1.1993 has been passed, the petitioner cannot now turn around and say that he is not a workman and would be governed by the Rules of 1988. From the record it is clear that the petitioner had approached the Labour Court when, by an order dated 3.12.1987, he had been reverted as Laboratory Chemist which post would be governed by the industrial and labour laws, but since the petitioner, after the award of the Labour Court, has been redesignated and restored back as Liaison Assistant, in my view the petitioner would now not be treated as workman, and the contention of the respondent that Rules of 1988 would not apply in the case of the petitioner, does not have much force. The petitioner, as Liaison Assistant, is not amongst the category of workers covered by he recommendations of the Sugar Wage Board. Such being the position and he being paid in the scale of Rs. 1,300-2,050, he could only be classified as an Officer Group 'B' under the provisions of Appendix 'A' to the Rules of 1988.
6. In the end Sri Srivastava, learned counsel for the respondents submitted that the respondent-U. P. State Sugar Corporation Ltd. has been declared as a sick unit by the B.I.F.R. vide its order dated 31.8.1995. Several units of the respondent-Corporation are lying closed down and the Corporation is facing heavy losses. It has thus been urged that if the direction to pay higher salary to the petitioner is issued, the respondent-Corporation would suffer irreparable loss. He has placed reliance on a decision of the Apex Court in Officers and Supervisors of I.D.P.L, v. Chairman and M.D., I.D.P.L. and Ors., 2003 (4) AWC 2780 (SC) : (2003) 6 SCC 490, wherein it has been held that the economic viability or the financial capacity of the employer is an important factor which cannot be ignored while fixing the wage structure and revision of pay scale of the employees. In the said case the respondent-Company had been suffering heavy losses for the last many years and some units of the Company had already suspended their operations and no unit was actually functioning. In such a situation, it was held that the employees could not legitimately claim that their pay scale should necessarily be revised and enhanced even though the organisation in which they were working was making continuous losses. In the present case, the petitioner is not claiming revision of salary for any class of the employees of the Corporation. He is only claiming that he is entitled to the benefit of the recommendation of the Second Pay Commission and such subsequent recommendations which have already been given to other employees of the Corporation, and which have wrongly and illegally been denied to him. Thus, the ratio of the aforesaid decision of the Apex Court would not apply to the facts of the present case.
7. The petitioner having been held not to be covered by the recommendations of the third Sugar Wage Board, and governed by the Rules of 1988, would thus be entitled to the benefits of the recommendations of the Second Pay Commission and also such subsequent recommendations with regard to revision of salary, as has already been given to other employees of the Sugar Corporation falling in that category.
8. Learned counsel for the petitioner has further submitted that the petitioner is entitled for being promoted as Liaison Officer, as one Sri S. D. Singh, who was appointed as Liaison Assistant on 23.7.1986, (more than a year after the petitioner was designated on such post on 30.5.1985) had been promoted as Liaison Officer by the order of respondent-Corporation on 31.7.1986. The petitioner thus contends that he is entitled to be appointed and promoted as Liaison Officer with effect from the date when the said S. D. Singh had been promoted. With regard to such prayer for being granted promotion on the post of Liaison Officer, in my view, the same may be considered and determined by the respondent authorities in accordance with law, upon a representation being made in this regard by the petitioner. The same shall be decided by the respondent -Corporation, expeditiously, after considering the availability of post and other relevant factors.
9. In the result, this writ petition is partly allowed. The pay scale of the petitioner shall be revised as per recommendations of the Second Pay Commission and also such subsequent recommendations, as has been done in the cases of other Officers Group 'B' of the Corporation and he shall also be given all consequential benefits. The petitioner may approach the respondent No. 2 with regard to his other grievance regarding grant of promotion on the post of Liaison Officer who shall decide the same in accordance with law.