DBSAW1302/2005 DBSAW171/2006 DBSAW684/2006 // 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR JUDGMENT IN 1. D.B. Special Appeal (Writ) No.1302/2005 In S.B. Civil Writ Petition No.637/2004 Krishi Upaj Mandi Samiti, Dholpur through its Secretary Vs. Bangali Mal Sharma and Another 2. D.B. Special Appeal (Writ) No.171/2006 In S.B. Civil Writ Petition No.4321/1997 Krishi Upaj Mandi Samiti, Dholpur through its Secretary Vs. Bangali Mal Sharma and Another 3. D.B. Special Appeal (Writ) No.684/2006 In S.B. Civil Writ Petition No.4321/1997 Bangali Mal Sharma Vs. Krishi Upaj Mandi Samiti, Dholpur through its Secretary and Another Date of Order ::: 08.09.2010 Present Hon'ble the Chief Justice Mr. Jagdish Bhalla Hon'ble Mr. Justice Mohammad Rafiq Shri P.K. Sharma } Shri Inderjeet Singh} Counsel for appellants Shri A.K. Sharma } Shri Shobhit Vyas} Counsel for respondents #### //Reportable// By the Court (Per Hon'ble Rafiq, J.):- These three special appeals are directed against a common judgment dated 08.09.2005 DBSAW1302/2005 DBSAW171/2006 DBSAW684/2006 // 2 // delivered by learned Single Judge deciding two writ petitions filed by workman Bangali Mal Sharma. Krishi Upaj Mandi Samiti, Dholpur (for short, 'the KUMS') has preferred first two special appeals against the judgment passed in both the writ petitions No.4321/97 and 637/2004, whereas Bangali Mal Sharma, dissatisfied with certain part of the judgment in his Writ Petition No.4321/1997, has also preferred special appeal claiming certain more benefits. They were heard together and are being decided by this common judgment. Factual matrix of the case is that Bangali Mal Sharma (hereinafter shall be referred to as 'the writ petitioner') was appointed as L.D.C. in the KUMS, Dholpur, on 11.05.1967; he was made permanent on 01.11.1968; his services were terminated on 07.10.1972. An industrial dispute was raised at his instance and a reference with regard thereto was made to learned Labour Court, Jaipur for adjudication. The learned Labour Court, vide its award dated 20.09.1980, held that termination of the employee/writ petitioner was illegal and directed his reinstatement with 50% back wages. The KUMS challenged the award by filing Writ Petition No.1081/1981, which was dismissed by DBSAW1302/2005 DBSAW171/2006 DBSAW684/2006 // 3 // learned Single Judge on 23.03.1995. It then filed Special Appeal No.46/95 before Division Bench of this Court, which too was rejected by judgment dated 16.01.1996. No further challenge was made to judgment of the Division Bench and thus the award attained finality. Since during pendency of the writ petition as also special appeal, interim order was operating whereby implementation of the award was stayed, the workman/writ petitioner was reinstated in service only thereafter on 13.05.1996. He was, however, during pendency of the writ petition, paid a sum of Rs.3000/- as per the interim order passed by this Court and also a sum of Rs.250/- per month as per the provisions of Section 17-B of the Industrial Disputes Act. The employee/writ petitioner filed the first writ petition with the prayer that the respondent be directed to give him all the consequential benefits of the intervening period including promotions by convening review DPC. In the meantime, on attaining the age of superannuation when Bangali Mal Sharma retired, he filed second writ petition No.637/2004 claiming the relief that he should be paid all retiral benefits on the basis of relief claimed in the first writ petition. The learned Single Judge partly allowed the writ petition granting some of the DBSAW1302/2005 DBSAW171/2006 DBSAW684/2006 // 4 // relief prayed for and directed the respondent to consider the case of the writ petitioner treating him to be continuous in service and grant him selection scales on completion of 9, 18 and 27 years of service counting the period from the date of his initial appointment, and fix his pay under the pay scales revised from time to time on notional basis and on that basis compute his pension and other retiral benefits and pay the same to him along with arrears thereof and interest at the rate of 9% per annum thereon and also award costs of Rs.5000/-. Shri Inderjeet Singh, learned counsel appearing for employer-KUMS, has argued that the learned Labour Court, in its award dated 20.09.1980, while declaring termination of the said employee illegal, merely directed his reinstatement with 25% back wages but without any specific direction as to his continuity in service or about the consequential benefits. Unless that relief was specifically granted, such benefits cannot be granted because the award has otherwise also now become final, the workman having not challenged the same. It was argued that the pension scheme in the KUMS was introduced in 1976 at the time when the said employee was not in service and that he was reinstated only in the year 1996, but the fact DBSAW1302/2005 DBSAW171/2006 DBSAW684/2006 // 5 // is that he never opted for pension. He cannot be, therefore, now allowed to avail pensionary benefits. It was argued that the learned Single Judge was not justified in directing grant of benefit of selection scale to him payable as per the government circular on completion of 9, 18 and 27 years of service because that is granted only when an employee has actually rendered service whereas the writ petitioner was not on duties throughout. The award of costs of Rs.5000/- was also not justified because the employee could not be paid what was not granted to him as a relief by the learned Labour Court in its award, and the action of the KUMS is perfectly justified. The learned counsel relied on the judgment of the Supreme Court in A.P. State Road Transport Corporation and Others Vs. Abdul Kareem – (2005) 6 SCC 36, to argue that a workman is not entitled to claim any consequential relief on reinstatement as a matter of course, unless it is directed by a forum directing reinstatement. If there was no specific direction, merely because workman had been directed to be reinstated without back wages, he could not claim benefit of increments notionally earned during the period he was out of service. It is therefore prayed that the DBSAW1302/2005 DBSAW171/2006 DBSAW684/2006 // 6 // special appeals filed by the KUMS may be allowed and the judgment passed by the learned Single Judge in the writ petitions be set-aside and consequently, the writ petitions be dismissed. Per contra, Shri P.K. Sharma and Shri Shobhit Vyas, learned counsel for the employee/writ petitioner, argued that once the learned Labour Court directed reinstatement of the writ petitioner with 25% back wages, that would essentially imply that he was granted continuity, and the fact that his termination was held to be illegal with a direction to reinstate him in service, would mean that he would be reinstated in the same position in which he was, when he was removed. It would be therefore deemed as if he has throughout continued in service. The stand taken by the KUMS that in the absence of specific direction regrading continuity of service, the workman writ-petitioner would not be entitled to any benefits whatsoever for the intervening period, is wholly illegal, unjust and unreasonable. The learned counsel submitted that the persons junior to the writ petitioner have reached the senior positions. He made reference to the case of one Shri Madhav Prasad Sharma, who has been promoted to the rank of Supervisor whereas case of present employee was not DBSAW1302/2005 DBSAW171/2006 DBSAW684/2006 // 7 // considered. It is argued that when the workman/writ petitioner was granted the benefits under Section 17-B of the ID Act, although it was meager sum of Rs.250/-, which he was receiving, he should be treated to be an employee of the management for all the purposes. No assertion was made by the management at any point of time during pendency of the writ petition and special appeal, that the workman was gainfully employed elsewhere. The learned Single Judge has failed to appreciate this aspect of the matter by not granting actual benefits of the salary revised from time to time and also the promotions as per his seniority because at the time of termination, the workman/writ petitioner was appointed in the regular pay scale on regular basis. The learned counsel, in support of his argument, relied on the judgment of MP High Court in Madhukar Vs. Bhilai Steel Project and Another – 1966 II L.L.J. 745. We have given our anxious consideration to the rival submissions and perused the material on record. The dispute leading to this litigation arose because of the ambiguity in the award passed by the learned Labour Court which although declared termination of the workman as DBSAW1302/2005 DBSAW171/2006 DBSAW684/2006 // 8 // illegal and directed the management to reinstate him in service with only 25% back wages but did not say anything either way as regards the continuity of service. The core issue that is to be decided now is when the award of the learned Labour Court is silent on this aspect of the matter, whether the workman would not be entitled to any benefit whatsoever based on his continuity in service including the retiral benefits? The judgment of the Supreme Court in AP SRTC Vs. Abdul Kareem (Supra), which has been relied by the learned counsel appearing for the KUMS, arose from a case where the workman was found guilty of willful absence from duty for a long time and in that case there was an order of his reinstatement but no back wages whatsoever were granted. In those facts, it was held by their Lordships that although, the workman was directed to be reinstated without back wages but he could not claim benefits notionally earned during the period of when he was out of service, but at the same time it was also held that there is a difference between an order of reinstatement accompanied by a simple direction for continuity of service and a direction where reinstatement is accompanied by a specific order that the employee would be entitled to all the consequential benefits, which necessarily flow DBSAW1302/2005 DBSAW171/2006 DBSAW684/2006 // 9 // from reinstatement or accompanied by a specific direction that the employees shall be entitled to benefits of increments earned during the period of absence. Decision of the Supreme Court in that case was passed on the basis of specific direction contained in the award of the Labour Court that the reinstatement would be without back wages, and there was no specific direction that the employee would be entitled to consequential benefits. It is trite law that a judgment for the purpose of its precedential value has to be appreciated for the proposition of law which it actually decides and not for what can logically follow therefrom because difference of one single fact may make a lot of change in the precedential value of the judgment and that difference in the present case is that while in the cited case allegation against the workman was that he was willfully absent for a long time but in the present case, there is no such allegation herein against the workman that he was willfully absent. Secondly, in the present case, he has not been completely denied the back wages, rather 25% of back wages have been granted to him. Back wages, in our considered view, would have to be computed for the period for which the workman was out of service because DBSAW1302/2005 DBSAW171/2006 DBSAW684/2006 // 10 // the termination order has eventually been held to be illegal. Even if the learned Labour Court has not given any specific direction as regards continuity of service, it should follow as a logical corollary from the award of 25% back wages that it did not intend to deny the benefit of continuity of service to the workman, or else it would have specifically directed so. The workman in the present case has asserted in the Writ Petition No.4321/1997 that when the award was passed, he immediately reported to the KUMS for joining his duties but he was not permitted to join because of the interim order passed by this Court initially in the writ petition by the learned Single Bench and thereafter in special appeal by the Division Bench. It is also a significant fact to be noticed that the workman was paid the last drawn wages as per the provisions of Section 17-B of the ID Act during the pendency of both, the writ petition as also this special appeal. The purpose for making such payment of last drawn wages is to ensure that the workman can sustain himself during the pendency of the proceedings before the High Court, if it is shown that he is not gainfully employed elsewhere. That would mean that he was willing to render his services to the employer. The law has to therefore presume a suspended DBSAW1302/2005 DBSAW171/2006 DBSAW684/2006 // 11 // relationship of master and servant between the employer and employee for the limited purpose of making payment of last drawn wages as per the spirit of Section 17-B of the ID Act. The award of the learned Labour Court shall have in the facts of this case to be construed thus. Adverting now to the claim of the employee/writ petitioner that he should be paid actual benefits of revision of pay scales which took place from time to time and the benefit of promotion treating as if he has never remained out of service, we find that the learned Single Judge has, in the impugned judgment, observed that though removal of writ petitioner was declared illegal by the award dated 20.09.1980 and despite his persistent request for reinstatement, he was dragged into litigation and ultimately the award was upheld up-to the Division Bench of this Court and yet he was deprived of retiral benefits even after attaining the age of superannuation on 31.07.2000. It is on that note that the learned Single Judge awarded to the writ petitioner costs of litigation also. It is to be noted that the award was rendered on 20.09.1980 but thereafter because of the interim orders in the writ petition and the special appeal filed by the management-KUMS operation of the award was DBSAW1302/2005 DBSAW171/2006 DBSAW684/2006 // 12 // stayed. Eventually when the challenge to the award failed with the writ petition and special appeal being both dismissed, the writ petitioner was reinstated in service on 13.05.1996. That means implementation of the award was made 16 years after the date of its passing. The learned Single Judge declined to examine the question of seniority for the purpose of promotion because sufficient material was not placed on record. In order however to compensate the right of the writ petitioner to promotion, he has been held entitled to benefit of selection scales on completion of 9, 18 and 27 years of service on notional basis although counting such period from the date of his initial appointment i.e. 11.05.1967. Such selection scale at the intervel of every nine years is granted in lieu of promotion. Ordering promotion after three decades now might have created several complications for the KUMS. They would, in that case, be required to review all the promotions granted at various levels to so many persons. To that extent, we are satisfied that in the facts of present case grant of benefit of selection scale would be as good as promotion. But the question that then arises whether, despite entitlement of the writ petitioner to selection scale on completion of 9, 18 and 27 years of DBSAW1302/2005 DBSAW171/2006 DBSAW684/2006 // 13 // service, should he be denied the actual benefits only for the reason that he has not actually rendered service? On the record, we find the order dated 11.05.1967 by which the writ petitioner was appointed as LDC on temporary basis. But then, by subsequent order dated 01.11.1968 he was made permanent in that appointment, which fact has been noticed by the learned Single Judge also in the first page of his judgment. Even if, therefore, he could not be granted regular promotion on the basis of seniority from the date of such permanent appointment, there is no reason why should he be denied of actual benefits of selection scales at-least from the date of award where after he was all along willing to serve the KUMS and in fact offered to join soon after the said award was passed. He was, however, not permitted to join the service because of interim order initially passed in writ petition and later on in special appeal, both of which were ultimately dismissed. As per the scheme of selection scale in the shape of assured career promotion scheme, the Government by its notification dated 25.01.1992, has ordered grant of selection scales on completion of 9, 18 and 27 years of service as the case may be. For the purpose of DBSAW1302/2005 DBSAW171/2006 DBSAW684/2006 // 14 // grant of selection scale at every span of 9 years of service, the period has to be calculated from the date of initial appointment on substantive appointment basis. So far as the period from the date of termination of the writ petitioner on 07.10.1972 up to the date of passing of the award on 20.09.1980, it has to be obviously regulated by the direction contained in the award of the learned Labour Court that the workman would be entitled to reinstatement with 25% of the back wages. However, when the award was upheld by learned Single Bench by dismissal of the writ petition as also by the Division Bench by dismissal of the special appeal, the right of the workman/writ petitioner to be reinstated in service would relate to the date of passing of the award and there is no justification why should he be denied the actual benefits from the date of the award till he attained the age of superannuation on 31.07.2000. It was because the employee/writ petitioner cannot be penalized for the delay in disposal of the writ petition and special appeal. Had it been a writ petition challenging termination order directly before this Court, denial of whole or part of back wages would have been justified. However, this court has to apply a different yardstick because rights of the writ DBSAW1302/2005 DBSAW171/2006 DBSAW684/2006 // 15 // petitioner stood crystallized after an adjudication on 20.09.1980 by award of the labour court. Implementation of the award, however, remained stayed in writ petition and special appeal filed by the KUMS which were ultimately dismissed. He cannot be denied the benefit of actual benefits for the purpose of consequential benefits. However, in computation of such actual benefits the KUMS would be entitled to reduce total payable sum by such amount which it has already paid to the employee by virtue of the order passed by this Court under Section 17-B of the ID Act. In view of what has been discussed above, special appeals preferred by KUMS are liable to be dismissed and both are accordingly dismissed. However, the appeal preferred by employee/writ petitioner Bangali Mal Sharma is allowed in part with a direction to KUMS to pay to him actual benefits of selection scale on completion of 9, 18 and 27 years of service, as the case may be, with benefit of revised pay scale from time to time, from the date of his regular appointment i.e. 01.11.1968 and in so far as the actual benefits are concerned, he shall be entitled to only 25% of such benefits for the period from the date of termination i.e. 07.10.1972 till the date of award i.e. 20.09.1980. However, he would DBSAW1302/2005 DBSAW171/2006 DBSAW684/2006 // 16 // be entitled to actual benefits of such selection scales on completion of 9, 18 and 27 years of service from the date of the award till the date of his superannuation with interest at the rate of 9% per annum. It is clarified that the interest shall be payable only on the arrears computed after the date of award till the date of superannuation and not before. The impugned judgment passed by the learned Single Judge accordingly stands modified and the writ petitions are allowed in the terms indicated above. In the facts of the case, there shall be no order as to costs. (Mohammad Rafiq) J. (Jagdish Bhalla) CJ. //Jaiman//