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Judgment
This petition, under Article 226 of Constitution of India, has been filed seeking following relief (s):-
“(i)That, the action of respondents of not paying the salary to the petitioner from September, 2015 and not paying the regular pay scale and arrears of salary in terms of order passed by this Hon'ble Court in Writ Petition No.4791/2012 may kindly be declared as illegal and be quashed.
(ii)That, the respondents may kindly be directed to allow the petition to sign the attendance register and they may further be directed to make the payment of salary to the petitioner as ordered by this Hon'ble Court in W.P. No. 4971/2012 with arrears and they also be directed to pay the salary withheld from September, 2015.
(iii)That, respondents may kindly be directed to pay the interest on market rate for the entire amount of withheld salary.
(iv)That, the cost of this avoidable litigation may kindly be awarded to the petitioner.
(v)Any other relief, which this Hon'ble Court may deem fit and proper may also be given to the petitioner along with costs.”
It is submitted by learned counsel for petitioner that original petitioner was appointed on vacant and regular post of Peon after participating in the selection process vide order dated 15.11.1996 (Annexure P-1). It is submitted that instead of appointing original petitioner in regular pay scale, he was shown to be appointed on fixed honorarium of Rs.300/- p.m. Thereafter, services of petitioner were terminated by the respondents without compliance of mandatory provisions of Industrial Disputes Act. It is submitted that petitioner challenged his illegal termination by raising the industrial dispute before the State Government under provisions of Industrial Disputes Act, and on failure of conciliation proceedings, the matter was referred to the Labour Court No. 2, Gwalior for adjudication. The Labour Court No.2, Gwalior, passed the award on 03.08.2009 holding the termination of services of petitioner as illegal, found him entitled to be reinstated in service and directed the respondents to reinstate the services of petitioner without back wages (Annexure P-4). Respondent-Municipal Council challenged the award of the Labour Court by filing Writ Petition No.4978/2009 which has been dismissed vide order dated 20.09.2010. Respondents further challenged the said order before the Hon'ble Supreme Court by filing the SLP (Civil) No. 1486/2011 which was also dismissed vide order dated 28.01.2011. Respondents reinstated petitioner but instead of paying him the regular pay-scale or even current wages, continued to pay him wages @ 300/- p.m. Thereafter, petitioner preferred Writ Petition No.4791/2012 claiming the relief of payment of regular pay scale of the post of Peon in the revised pay scale. The said writ petition was decided by this Court by order dated 22.03.2016 and directed the respondents to give benefit of length of service to petitioner from date of appointment up till date in the matter of notional fixation of pay in the pay scale payable to the peon at the relevant point of time and also directed to pay him arrears of pay from the date of award by Labour Court and also directed to continue to pay him revised pay scale of the post of peon. It is submitted that thereafter when respondents did not comply the aforesaid directions then petitioner filed Contempt Petition bearing Conc. No.1526/2016 and petitioner submitted several representations but respondents did not grant the aforesaid benefit to petitioner. It is submitted that order dated 22.03.2016 passed in Writ Petition No.4791/2012 has not been challenged by respondents before the Division Bench as well before the Hon'ble Apex Court and it has attained finality. It is submitted that once the directions have been issued by this Court then the respondents are bound to comply with them, however, contrary to the said directions, during the pendency of present writ petition, respondents issued an order dated 10.05.2018 (Annexure C-1). It is submitted that bare perusal of the order Annexure C/1 reflects that respondents have obtained the opinion of the Finance Department over and above the order and directions of this Court and as per the opinion of the Finance Department dated 09.05.2018, the order has been passed treating the reinstatement of petitioner from 01.01.2011 and directing payment of wages on Collector rate from 01.01.2011 thereafter pay the benefit of Sthai Karmi policy issued by the General Administration Department dated 07.10.2016. The respondents have furnished the documents making payment of Rs. 02,70,008/- to petitioner after adjustment of Rs.16,520/- already paid calculating the arrears from 01.01.2011 to 28.08.2015 on the basis of daily wages fixed by the Collector. This Hon'ble Court in W.P.No.4791/2012 had specifically directed the respondents to accord the benefit of length of service from the date of appointment up till date in the matter of notional fixation of pay in the pay scale payable to the Peon and pay him arrears of pay from the date of award by the Labour Court up till date after adjustment of the amount already paid towards salary and continue to pay him revised pay scale of Peon. Accordingly, petitioner was entitled to the arrears of salary after notional fixation from 15.11.1996 in the regular pay scale of Peon and the arrears of the same are to be paid from the date of award of Labour Court i.e.03.08.2009 but the respondents have made the payment from 01.01.2011 that too of daily wages but not in the regular pay scale of Peon. Therefore, the order of this Court has not been complied with, in totality, by the respondents.
It is further submitted that so far as grant of benefit of Sthai Karmi is concerned, it is also not done properly by the respondents. Even in the category of unskilled classification, the pay scale of 4000-80-7000 is prescribed in the policy and the pay fixation is to be done on 01.09.2016 on the basis of completed years after adding the annual increments from initial date of appointment. It is further submitted that in terms of order passed by this Court, the notional fixation is to be done from the initial date of service i.e. 15.11.1996 and arrears are to be paid under scheme dated 07.10.2016 from 01.09.2016 and annual increments as well as admissible dearness allowance are also to be payable to the petitioner. The respondents have granted the benefit of Sthai Karmi to the petitioner only after the order passed by State Govt. dated 10.05.2018 and the benefit of notional fixation under the policy was also not granted.
Per contra, it is submitted by learned counsel appearing on behalf of the respondent/State that respondents have already paid the arrears of salary to petitioner by passing the speaking order dated 10.05.2018 and compliance report has already been filed by the respondents in Contempt Petition bearing number Conc. No.1526/2016. It is further submitted that after rejoining petitioner regularly performed the duties upto 28.08.2015 and since 29.08.2015 petitioner remained absent unauthorizedly without obtaining leave till 01.11.2015. It is submitted that due to aforesaid unauthorized absence the salary from 28.08.2015 till 01.11.2015 has not been paid to petitioner. It is submitted that after examining the case of petitioner, reasoned and speaking order dated 10.05.2018 has been passed by respondents and petitioner has not challenged the said order dated 10.05.2018.
Heard learned counsel for the parties and perused the record.
From perusal of record, it is gathered that original petitioner was appointed on vacant and regular post of Peon after participating in the selection process vide order dated 15.11.1996 (Annexure P-1). Instead of appointing original petitioner in regular pay scale, he was shown to be appointed on fixed honorarium of Rs.300/- p.m. Thereafter, services of petitioner were terminated by the respondents without compliance of mandatory provisions of Industrial Disputes Act. Petitioner challenged his illegal termination by raising the industrial dispute before the State Government under provisions of Industrial Disputes Act, and on failure of conciliation proceedings, the matter was referred to the Labour Court No. 2, Gwalior for adjudication. The Labour Court No.2, Gwalior, passed the award on 03.08.2009 holding the termination of services of petitioner as illegal, found him entitled to be reinstated in service and directed the respondents to reinstate the services of petitioner without back wages (Annexure P-4). Respondent-Municipal Council challenged the award of the Labour Court by filing Writ Petition No.4978/2009 which has been dismissed vide order dated 20.09.2010. Respondents further challenged the said order before the Hon'ble Supreme Court by filing the SLP (Civil) No. 1486/2011 which was also dismissed vide order dated 28.01.2011. Respondents reinstated petitioner but instead of paying him the regular pay-scale or even current wages, continued to pay him wages @ 300/- p.m. Thereafter, petitioner preferred Writ Petition No.4791/2012 claiming the relief of payment of regular pay scale of the post of Peon in the revised pay scale. The said writ petition was decided by this Court by order dated 22.03.2016 and directed the respondents to give benefit of length of service to petitioner from date of appointment up till date in the matter of notional fixation of pay in the pay scale payable to the peon at the relevant point of time and also directed to pay him arrears of pay from the date of award by Labour Court and also directed to continue to pay him revised pay scale of the post of peon. Thereafter when respondents did not comply the aforesaid directions then petitioner filed Contempt Petition bearing Conc. No.1526/2016 and petitioner submitted several representations but respondents did not grant the aforesaid benefit to petitioner. The order dated 22.03.2016 passed in Writ Petition No.4791/2012 has not been challenged by respondents before the Division Bench as well before the Hon'ble Apex Court and it has attained finality. Once the directions have been issued by this Court then the respondents are bound to comply with them, however, contrary to the said directions, during the pendency of present writ petition, respondents issued an order dated 10.05.2018 (Annexure C-1). Bare perusal of the order Annexure C/1 reflects that respondents have obtained the opinion of the Finance Department over and above the order and directions of this Court and as per the opinion of the Finance Department dated 09.05.2018, the order has been passed treating the reinstatement of petitioner from 01.01.2011 and directing payment of wages on Collector rate from 01.01.2011 thereafter pay the benefit of Sthai Karmi policy issued by the General Administration Department dated 07.10.2016. The respondents have furnished the documents making payment of Rs. 02,70,008/- to petitioner after adjustment of Rs.16,520/- already paid calculating the arrears from 01.01.2011 to 28.08.2015 on the basis of daily wages fixed by the Collector. This Court in W.P.No.4791/2012 had specifically directed the respondents to accord the benefit of length of service from the date of appointment up till date in the matter of notional fixation of pay in the pay scale payable to the Peon and pay him arrears of pay from the date of award by the Labour Court up till date after adjustment of the amount already paid towards salary and continue to pay him revised pay scale of Peon. Accordingly, petitioner was entitled to the arrears of salary after notional fixation from 15.11.1996 in the regular pay scale of Peon and the arrears of the same are to be paid from the date of award of Labour Court i.e.03.08.2009 but the respondents have made the payment from 01.01.2011 that too of daily wages but not in the regular pay scale of Peon. Therefore, the order of this Court has not been complied with, in totality, by the respondents.
So far as grant of benefit of Sthai Karmi is concerned, it is also not done properly by the respondents. Even in the category of unskilled classification, the pay scale of 4000-80-7000 is prescribed in the policy and the pay fixation is to be done on 01.09.2016 on the basis of completed years after adding the annual increments from initial date of appointment. In terms of order passed by this Court, the notional fixation is to be done from the initial date of service i.e. 15.11.1996 and arrears are to be paid under scheme dated 07.10.2016 from 01.09.2016 and annual increments as well as admissible dearness allowance are also to be payable to the petitioner. The respondents have granted the benefit of Sthai Karmi to the petitioner only after the order passed by State Govt. dated 10.05.2018 and the benefit of notional fixation under the policy was also not granted.
The order dated 22.03.2016 passed in Writ Petition No.4791/2012 has not been challenged by respondent/State and this Court has already directed the respondents in the following manner:
“This writ petition under Article 226/227 of the Constitution of India is filed with the grievance that though the petitioner is serving with respondents as peon since year 1996 by virtue of appointment letter (Annexure P/1) after following due procedure of selection and more than 20 years period has passed by, still he is being paid Rs. 300/- per month as honorarium. It is submitted that under similar circumstances, the Coordinate Bench of this Court in W.P.No. 4335/2006 (Prem Narayan Vs. State of M.P. & Ors.) decided on 11/2/2009 has ordered the respondents therein to pay the petitioner revised honorarium payable to him from time to time. Hence, seeks parity in the matter of payment of fair wages.
Learned counsel for the respondents per contra contended that since petitioner was appointed for a specific period of one year and thereafter his services were terminated. Industrial Dispute was raised and upon failure of conciliation, a reference was made to the Labour Court at the instance of respondentworkman. The Labour Court vide award dated 3/6/2009 has ordered reinstatement of the petitioner without back wages. As a consequence thereof, the petitioner has been reinstated in service on same terms and conditions on which he has been appointed vide appointment letter (Annexure P/1) i.e. on payment of Rs. 300/- per month. The aforesaid justification in the counter affidavit is a classic case of exploitation and unfair labour practice as for last 20 years, even after reinstatement, he is being paid Rs. 300/- per month under the pretext of original terms and conditions of the appointment letter. This Court is of the view that respondents have not so far acted fairly in the matter of wages to the petitioner though he is continuously working as peon as per the award pass by the Labour Court after setting aside of his termination order. Accordingly, this writ petition is disposed of with following directions:-
(i)respondents shall accord the benefit of length of service to the petitioner from date of appointment up till date in the matter of notional fixation of pay in the pay scale payable to the peon at the relevant point of time and pay him arrears of pay from the date of award by Labout Court up till date after adjustment of the amount already paid to the petitioner towards salary and continue to pay him revised pay scale of peon.
This Court has already directed the respondents to pay benefit of length of service to petitioner from date of appointment up till date in the matter of notional fixation of pay in the pay scale payable to the peon and also directed to continue to pay him revised pay scale of peon. Once this Court has already directed for notional fixation of pay in the pay scale payable to the peon and also directed to continue to pay him revised pay scale of peon, then certainly petitioner is entitled to regular pay-scale.
Consequently, present petition stands disposed of in the following manner:
The respondents are directed to pay the regular pay scale of peon with effect from 03.08.2009 and also directed to pay annual increments as per the pay-scale and also directed to pay regular pay scale and revised increments on the post of regular peon.
Respondents are directed to pay arrears with effect from 03.08.2009.
Respondents are directed to pay consequential benefits of regular pay-scale with increments from 03.08.2009 within a period of three months from the date of receipt of certified copy of this order. They are directed to pay interest at the rate of 6% per annum from the date of entitlement till actual payment, failing which the aforesaid amount would carry interest at the rate of 12% per annum from the date of entitlement till actual payment.
As the original petitioner has left for his heavenly abode on 30.04.2023, respondents are directed to give all benefits to the wife of original petitioner i.e. present petitioner.