Regular Second Appeal No. 3162 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 3162 of 2009 Date of decision : August 26, 2010 State of Haryana and another ....Appellants versus Khazan Singh ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Narender Singh, DAG, Haryana for the appellants Mr. RN Lohan, Advocate, for the respondent L.N. Mittal, J. (Oral) This is second appeal by the defendants-State of Haryana and General Manager, Haryana Roadways. Respondent plaintiff Khazan Singh was employee of the defendants-appellants as driver. Plaintiff's claim is that he joined service in the year 1978-79. His services were illegally terminated on 13.2.1989. However, vide award dated 12.11.2002 passed by Labour Court, termination of plaintiff's services was set aside and reinstatement of plaintiff with continuity of service and full back wages was ordered. When the award remained un-implemented, the plaintiff filed complaint and thereupon, defendants deposited Rs 7,14,400/- and the said amount has been Regular Second Appeal No. 3162 of 2009 2 disbursed to the plaintiff. Plaintiff's grouse, however, is that he has not been granted first and second higher standard pay scale/ACP scale although he was entitled to the same on completion of 10 years and 20 years of continuous service. Accordingly, the plaintiff claimed the said benefits by filing the suit. The defendants, inter alia, pleaded that the plaintiff joined service on 11.2.1980 and he became entitled to regularization of service after two years of service with effect from 15.2.1982. It was also alleged that vide award dated 12.11.2002 of the Labour Court all the benefits shall be given to the plaintiff with effect from 3.1.1994, the date of demand notice and therefore, the plaintiff became entitled to the first ACP scale with effect from 1.8.1999 on completion of ten years service (after excluding the period from 13.2.1989, the date of termination of services till 2.1.1994 i.e. till before date of demand notice dated 3.1.1994) and the plaintiff would be entitled to second ACP scale after completion of further ten years service from 1.8.1999. Learned Additional Civil Judge (Senior Division), Jind vide judgment and decree dated 21.1.2009 partly decreed the suit holding the plaintiff to be entitled to first higher standard pay scale/ACP scale with effect from 1.8.1999 on completion of ten years qualifying service and plaintiff was also held entitled to arrears accordingly along with interest @ 6% per annum. The defendants preferred first appeal against the judgment and decree of the trial court whereas the plaintiff filed cross-objections in the said first appeal. Learned District Judge, Jind vide judgment and decree Regular Second Appeal No. 3162 of 2009 3 dated 14.5.2009 dismissed the first appeal filed by the defendants and allowed the cross-objections filed by plaintiff-respondent holding him entitled to first ACP scale with effect from 11.2.1990 on completion of ten years and second ACP scale with effect from 11.2.2000 on completion of 20 years service. Feeling aggrieved, the defendants have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants contended that the plaintiff- respondent was granted continuity of service and back wages from 3.1.1994, the date of demand notice and therefore, the period from 13.2.1989 i.e. date of termination of services till 2.1.1994 i.e. till before the date of demand notice cannot be counted for grant of higher standard pay scale or ACP scale to the plaintiff. The contention cannot be accepted. Full back wages have been awarded by the labour court from date of demand notice i.e. 3.1.1994. However, continuity of service of the plaintiff has to be from the date of his termination i.e. 13.2.1989. Consequently, the period from 13.2.1989 till 2.1.1994 cannot be excluded for extending the benefit of higher standard pay scale or ACP scale. Learned counsel for the appellants next contended that for granting higher standard pay scale or ACP scale only regular service has to be counted and the plaintiff was regularised with effect from 15.2.1982. This contention has to be accepted because relevant rules provide for continuous regular service for grant of higher standard pay scale or ACP scale. Accordingly, period of regular service rendered by the plaintiff with Regular Second Appeal No. 3162 of 2009 4 effect from 15.2.1982 shall be counted for this purpose. Learned counsel for the appellants next contended that higher standard pay scale came into force with effect from 1.1.1994 and ACP rules came into force w.e.f. 1.1.1996 but the lower appellate court has granted first ACP scale w.e.f. 11.2.1990 and second ACP scale w.e.f. 11.2.2000 which is patently illegal. Learned counsel for the respondent contended that plaintiff- respondent may be granted higher standard pay scale or ACP scale as per his entitlement according to relevant rules after considering continuity of his service without any break on account of termination of service which was set aside by the Labour Court. I have considered the aforesaid contentions. Following substantial question of law arises for determination in this second appeal:- “Whether grant of first ACP scale with effect from 11.2.1990 and second ACP scale with effect from 11.2.2000 by the lower appellate court is illegal and contrary to relevant rules and therefore, unsustainable?” As noticed hereinabove, as per contention of learned counsel for the appellants, higher standard pay scale came into force with effect from 1.1.1994 and ACP scale rules came into force with effect from 1.1.1996 and therefore, the plaintiff could not be granted the said scales with effect from 11.2.1990. Grant of the said scales by the lower appellate court with effect from 11.2.1990 and 11.2.2000 is, thus, contrary to rules and therefore, illegal and unsustainable. The substantial question of law framed hereinabove is answered accordingly. Regular Second Appeal No. 3162 of 2009 5 For the reasons aforesaid, the instant second appeal is allowed partly and judgments and decrees of the courts below are modified and the plaintiff is held entitled to first higher standard pay scale/ACP scale on completion of requisite period of regular service as per relevant Rules/instructions or from the date of coming into force of the aforesaid scale whichever is later and second ACP scale on completion of requisite period of service thereafter as per relevant Rules. Actual arrears consequent thereto shall be admissible and payable to the plaintiff with effect from the due date or with effect from 3.1.1994, the date of demand notice, whichever is later. Interest @ 6% per annum on the amount of arrears shall be payable with effect from 12.11.2002, the date of award of the Labour Court or the due date whichever is later. Appeal stands disposed of accordingly. ( L.N. Mittal ) August 26, 2010 Judge 'dalbir'