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Judgment
Akil Kureshi, J.—The petitioner is aggrieved by implementation of the award of the Labour Court as modified by this Court by the employer namely Surendranagar District Panchayat, respondent No. 1 herein.
Briefly stated facts are as follows:
2.1 The petitioner was employed as a clerk in respondent No. 1 Panchayat. Contending that his services were terminated illegally, he approached the Labour Court in Reference (LCR) No. 664/1983. Said Reference was disposed of by Judgment dated 30.10.1987. In the Judgment it was observed that:
The workman filed statement of claim at ex.4. The workman was working as work charge clerk in the office of the Dy. Engineer, Small Irrigation Scheme (Panchayat Sub-Divn.) Chotila (hereinafter refereed to as the employer) since one year on the monthly wages of Rs. 476.28 p. It is the case of the workman that he was illegally discharged from service on 1.7.81 without any ground and without payment of notice pay and retrenchment compensation; that after his discharge fresh recruitment was made and the employee junior to him were continued in service and that inspite of notice dt. 4.2.85 the employer has not reinstated him.
2.2 Defence of the employer however, was:
The workman voluntarily abandoned service and that the fact that notice is served after more than 3� years shows that the workman has voluntarily abandoned service.
2.3 Labour Court passed the following order:
Dy. Engineer, Small Irrigation Scheme, Panchayat Chotila is ordered to reinstate the workman Ghanshyamsinh Kanchansinh to his original post with continuity of service, but with 40% back wages within one month from the date of publication of the award. In case of default the workman will be entitled to full back wages from the date of default till reinstatement.
Dy. Engineer, Small Irrigation Scheme, Panchayat, Chotila is ordered to pay costs of Rs. 200/- to the workman.
2.4 Panchayat appealed against the said order before this Court by filing Special Civil Application No. 1971/1989. High Court modified the order passed by the Labour Court. Though direction for reinstatement was upheld, payment of 100% back wages was modified in following terms:
...The respondent will be entitled to 50% back wages from 4.2.1985 till the date of the award and for a further period of one month thereafter i.e. upto 30.11.1987 and thereafter he would be paid 100% back wages till he is actually reinstated by the petitioner. We grant two weeks'' time to the petitioner to reinstate the respondent pursuant to the present order and to make available to him all consequential monetary benefits on the basis of continuity of service granted by the award. So far as back wages of 50% from 4.2.1985 till 30.11.1987 are concerned, they may be computed along with all consequential increments etc. on the basis of continuity of service and shall be paid over to the respondent within two weeks from today i.e. on or before 19.10.1992 within which time, the respondent shall be reinstated by the petitioner. After such reinstatement, and payment of 50% back wages as aforesaid, the amount of full back wages from 1.12.1987 till reinstatement to be paid with consequential benefits including increments if any and with other benefits of revision of pay scale if any, shall be paid to the respondent within a further period of eight weeks of such reinstatement. Rule is made absolute to the aforesaid extent. No order as to costs. Civil Application does not survive, is disposed of as the main petition is disposed of.
2.5 Implementation of the above order of the High Court has given rise to the present petition.
It is the case of the petitioner that he is not paid full back wages as awarded by the High Court. It is not in dispute that during the pendency of this petition, petitioner has been paid total amount of Rs. 1,07,184/- by way of back wages, etc. It is further the case of the petitioner that he has not been granted benefit of regular increment, that he has not been given other benefits which similarly situated work charge employees had been given. In the petition, petitioner has specifically contended that:
Petitioner submits that by virtue of award annexure-A he is deemed to be in continue service from 1981 therefore in 1994 he had completed 13 years service as a work charge clerk. That all work charge clerk under the respondent No. 3 is getting house rent allowance, increment medical allowances, medical leave and etc. That monthly pay package of the petitioner as compared to the other work charge clerk is ought to have been Rs. 2,200/- upto January 1994 and form January 1994 is Rs,2,400/- but petitioner was paid basic + dearness allowance which comes to Rs. 1,745/- from August, 1993 onwards. That the Junior work charge clerk to the petitioner is getting Rs. 2,400/- though all are similarly situated in the same sub-division....
In reply affidavit in response to the said averment, it is stated as follows:
I further respectfully submit that as mentioned that all the other work-charge employees are getting house rent allowance, increments, etc. but I say that the petitioner has not been discriminated nor any more benefit is paid to any other employee similarly situated with the petitioner. I, therefore, deny that there is no discriminatory treatment meted out to him.
From the above recording of the events and having heard the learned advocates for the parties, issue is very narrow. Short question is whether pursuant to the Judgment of the High Court, the petitioner had been paid all wages as directed or not. Though counsel for the Panchayat contended that petitioner was engaged only by way of ad-hoc arrangement and he was being engaged for 29 days at a time for a month, this issue is no longer open to debate. As already noted, the petitioner has already contended before the Labour Court that he was employed as Work Charge employee. This was not opposed by the employer. Direction for reinstatement to original position therefore, shall have to be understood in this background.
Question is would the petitioner be entitled to regular increment and other benefits?
There is no material on record one way or the other to hold whether work charge employee of respondent No. 1 organization are being granted regular increment or not. Reliance of the petitioner to the observations of the High Court that he shall be entitled to all consequential increments etc. on the basis of continuity of service is also of not much use. Said direction must be understood in the factual background leading to the filing of the petition. No directions were given by the Labour Court for granting increments. Petition was filed by employer and surely High Court was not in process of enlarging the scope of the order of the Labour Court.
Viewed thus, said observations must be understood as of granting such benefit to the petitioner if otherwise available.
Respondents have responded the matter by filing reply. To my mind, what appears to be vague and general response, to the assertion of the petitioner that other similarly situated work charge employees were being granted periodic increments.
Under the circumstances, the defence of the respondents that petitioner being a stopgap employee only for 29 days a month would not be entitled for increment, cannot be upheld. He must be treated to have worked as work charge employee, for want of any material to conclude whether work charge employee of the establishment were receiving increments at the relevant time or not. This petition is disposed of with following directions:
1) The petitioner shall be treated to have been engaged as work charge employee from inception and also past reinstatement.
2) The respondents and in particular respondent No. 1 shall verify the assertion of the petitioner that other similarly situated work charge employee were at the relevant time granted regular increments. If this is found to be true, the petitioner shall also be granted such increments and actual benefit thereof as per the order of the High Court Annexure-B to this petition.
3) Such exercise shall be carried out within eight weeks from he date of receipt of a copy of this order.
4) It will be open for the petitioner to place additional material before respondent No. 1. If such material is produced within two weeks hereof, same shall also be taken into consideration. If ultimately, it is found that the petitioner is entitled to any additional monetary benefits, same shall carry simple interest at the rate of 8% p.a. from the date of such entitlement till actual payment.
Rule made absolute to the above extent.
Direct service is permitted.