SBCWP NO.1139/97. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.1139/1997. Ram Avtar Khandelwal Versus The Industrial Tribunal & Ors. Date of Order:- January 15, 2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Nitin Jain for the petitioner. Shri R.P. Garg for the respondents. ***** BY THE COURT:- This writ petition has been filed by the petitioner challenging the award of the labour court by which reference was made as to the validity of action of the respondent-Corporation in promoting petitioner-Ram Avtar Khandelwal on the post of Assistant Administrative Officer vide order dated 1/8/1975 and further promotion to the post of Administrative Officer w.e.f. 11/5/1980. Learned Tribunal vide its impugned award held that petitioner was not entitled to promotion on the above referred to posts because in its view, fresh appointment was given to the petitioner vide order dated 11/11/1976. SBCWP NO.1139/97. 2 2) Factual matrix of the case is that petitioner was appointed on the post of Accountant with the respondents vide order dated 9/1/1973. However, his services were terminated vide order dated 14/6/1975. Petitioner approached the conciliation officer alleging that his services were illegally terminated without any notice to him and without holding any enquiry. In the course of conciliation proceedings, a compromise was arrived at between the parties and pursuant thereto, petitioner was reinstated in service vide order dated 11/11/1976. Bone of contention between the parties is whether this was a fresh appointment or an appointment, without any benefits for the intervening period, but with continuity of service. 3) Shri Nitin Jain, learned counsel for petitioner has argued that petitioner had pursuant to the understanding reached between the parties in written application before the conciliation officer on 6/10/1976 (Ann.7) in which it was clearly stated by him that respondent-Rajasthan Small Industries Corporation Limited was directed to reinstate him in service on the same post on which he was earlier working and was directed to regularise his service of intervening period by grant of leave without pay but with continuity of service, which condition he was ready to accept. It was subsequent thereto that the respondent Managing Director of the Corporation SBCWP NO.1139/97. 3 passed the order dated 11/11/1976 wherein it was stated that period from 16/6/1975 till the date of his joining would be treated as leave without pay and that he would not be held entitled to any other benefits except for the intervening period. It was submitted that the Tribunal has illegally arrived at a conclusion that the words “that the petitioner will not be entitled for any other benefits in respect of that period” by holding that this was a fresh appointment and therefore he cannot be given relief of continuity in service. Learned counsel submitted that this finding has been recorded against the evidence on record. Reference was made to representation (Annexure-9) which the petitioner made to the respondent wherein he objected to his pay being fixed at 200-400 stating therein that the understanding that was reached between the parties was that petitioner would be entitled to continuity of service and he may not have received benefits for the intervening period and since he had already received two increments prior thereto, he should be fixed at Rs.230/-. Respondent passed the order dated 8/8/1977 whereby the order dated 11/1/1977 was modified and while accepting the representation of the petitioner, his pay was increased to Rs.230/- instead of Rs.200/-. Learned counsel also referred to the statement of pay fixation in the revised pay scale rules of 1976 wherein his initial SBCWP NO.1139/97. 4 appointment was stated as 31/1/1973 and he was held entitled to all the past benefits including increments, which he had earlier received. He has also referred to the order dated 9/7/1981 (Annexure-12) whereby he was confirmed on the post of Accountant w.e.f. 31/7/1973. Reference was also made to another pay fixation order in the revised pay scales of 1987 dated 18/12/1989 (Ann.14) in which his date of entry in the service has been mentioned as 31/1/1973 and continuous period of service as on 1/9/1986 as 13 years. Reference was also made to the seniority list of the post of Accountant (Ann.13) wherein petitioner was shown at Sr.No.1 with the date of his appointment as 31/1/1973 and date of confirmation as 31/7/1973. Learned counsel submitted that while his junior Shri K.C. Gupta was granted promotion earlier than him from the dates referred to in terms of reference dated 1/8/1975, but the petitioner was wrongly denied those benefits of the post of Senior Manager w.e.f. 25/10/1976. Petitioner hence should be held entitled to all benefits. 4) Per contra, Shri R.P. Garg, learned counsel for respondent opposed the writ petition and submitted that the Tribunal has rightly held that order dated 11/11/1976 was in fact the order whereby fresh appointment was granted to the petitioner which was what the understanding reached SBCWP NO.1139/97. 5 between the parties. Learned counsel submitted that the petitioner has already been promoted on the post of Assistant Administrative Officer vide order dated 31/7/1982 and he has already availed those benefits. Petitioner has already retired from service on attaining the age of superannuation on 30/6/2002 and he has received all the retiral benefits without any protest, therefore, petitioner is not entitled to any other benefits now. Learned counsel submitted that so far as promotion given to the junior of the petitioner i.e. Shri K.C. Gupta is concerned, he was not made party to the writ petition therefore writ petition deserves to be dismissed on this count alone. Learned counsel submitted that the date i.e. 1/8/1975 is the date of promotion of the petitioner on the post of Administrative Officer w.e.f. 11/5/1980, the date 14/6/1975 is the date on which petitioner's services were terminated and 11/11/1976 is the date on which petitioner was reinstated back in service and therefore for this period, it was clearly stated in the order dated 11/11/1976 that petitioner would not be entitled to any other benefits. Argument therefore is raised that petitioner would not be entitled to promotion even for the post of Assistant Administrative Officer vide order dated 1/8/1975. SBCWP NO.1139/97. 6 5) I have given my anxious consideration to the rival submissions and carefully perused the impugned award of the Tribunal. 6) Learned Tribunal in para 24 of the award has merely based its findings that “petitioner will not be entitled to any other benefits in respect of that period”. This observation was with regard to the first date of termination dated 14/6/1975 which refers to the period from the date of termination i.e. 14/6/1975 to 11/11/1976 when he was reinstated. This condition will have to be interpreted keeping in view the attending circumstances and conduct of the parties. Petitioner actually submitted an application to the conciliation officer on 6/10/1976 in which it was clearly stated that the compromise was reached between the parties on the understanding that the intervening period shall be regularised by grant of leave without pay but with continuity of service without any adverse effect of his earlier period of service. The order that was passed was that “petitioner will not be entitled to any other benefits in respect of that period”. When the petitioner was fixed in the pay scale of Rs.200- 400, he immediately represented the respondent and in para 3 of the representation (Ann.9) it was clearly stated that understanding between them was that although for the intervening period above, his SBCWP NO.1139/97. 7 absence shall be regularised by grant of leave without pay but with continuity of service as per salary which he was getting on 13/6/1975 and on that basis, pay fixation shall be done. It was further stated that petitioner had submitted an application before the conciliation Officer on 6/10/1976 in terms thereof. Respondents accepted the contention of the petitioner and partly modified the order dated 11/11/1976 and increased the pay of the petitioner from Rs.200 to Rs.230/- vide revised pay fixation orders in the Revised Pay of 1973 and Revised Pay of 1987 which are on record respectively as Annexure-11 and Annexure-14 clearly indicating therein that the petitioner was held entitled to continuity in service and his date of initial appointment is 31/1/1973. He was confirmed vide order dated 31/7/1973. Respondents by their own conduct has thus all along been accepting the petitioner to be in their continuous service from 31/1/1970 including for the purpose of pay protection. Connotation of the word “will not be entitled to any other benefit except of this period” would also mean that petitioner would be entitled to the notional benefits for this period and not for the actual benefits and this would refer to the pecuniary benefit not that even if petitioner is senior in the cadre yet, his juniors will steal a march over him in the matter of SBCWP NO.1139/97. 8 promotion. When the respondents themselves immediately after the order dated 11/11/1976 modified the said order vide order dated 11/1/1977, these two orders will have to be read conjointly and accordingly it must be held that respondents have approved of continuity of the services of the petitioner which was understanding between the petitioner and them. The fact that Shri K.C. Gupta was junior to the petitioner, has not been impleaded as party, would not make any difference because this is a writ of certiorari which has been filed challenging the award in a reference case decided by the Tribunal and what is being examined by this court is whether award has been rightly passed by the Tribunal or not. The learned Tribunal, in my view, therefore, has erred in law in rejecting claim of the petitioner. 7) In the result, this writ petition is allowed. The impugned award of the learned Tribunal dated 22/1/1997 (Ann.15) is quashed and set-aside and petitioner is held entitled to promotion to the post of Assistant Administrative Officer w.e.f. 1/8/1975 and further to the post of Administrative Officer w.e.f. 11/5/1980 and Senior Manager w.e.f. 25/10/1976 when his junior Shri K.C. Gupta was granted such benefits with all consequential benefits and with interest @ 6% p.a. SBCWP NO.1139/97. 9 8) Compliance of the judgment shall be made within a period of three months from the date copy of this order is produced before the respondents. (MOHAMMAD RAFIQ), J. anil