CWP No. 14322 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH CWP No. 14322 of 2008 Date of decision October 26, 2009 State of Punjab ....... Petitioner Versus Bod Raj and others ........ Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Ms. Monica Chibbar Sharma, DAG., Punjab for the petitioner. Mr. Subhash Ahuja, Advocate for the respondents. **** 1. Whether reporters of local newspapers may be allowed to see the judgment ? No 2. To be referred to the reporters or not? No 3. Whether the judgment should be reported in the digest? No **** K. Kannan, J. 1. The writ petition has been filed at the instance of the State challenging the recovery certificate issued by the Assistant Labour Commissioner, Gurdaspur for 14,05,452/-. The amount of recovery certificate was in purported compliance of the award of the Labour Court on 25.1.2000 in reference No. 76 of 1998 brought at the instance of the workman through their Union. The award in turn was what provided to all the private respondents herein a right to be considered for regularization CWP No. 14322 of 2008 2 as Fee Inspectors, on par with nine other workmen of their category who had already obtained the benefit of regularization by counting entire service from the date of their initial appointment as Fee Inspectors-cum-baledars in the collection of toll tax in the year 1982 and were also allowed to take the same scale of pay as allowed to the nine workmen by the State Government. 2. The basis of the claim for the workmen was that subsequent to this award which was passed by Industrial Tribunal Punjab on 25.1.2000, the nine workmen who had obtained recovery certificate before the Labour Commissioner for over Rs.10 lacs by claiming a scale of pay in the range of Rs.3120-5160. The response by the State to the claim of the workmen was that the nine workmen had been wrongly paid the amount and as per the directions of the Labour Court already, the claim of the private respondents had been satisfied by regularizing them in the post as baledars and the Government had provided for a scale only in the pay of Rs.2520/-. The contention of the learned counsel for the State was that in the proceedings initiated through a reference No.24 of 2000 before the Industrial Tribunal Punjab at the instance of the Legal Secretary, Trade Union Congress an attempt was made to seek for a scale of pay equivalent to the post like Clerk, Supervisor. Work Inspectors, from the respective dates when they were made regular. The Industrial Tribunal by its award dated 13.5.2003 took note of the objections of the State that the job of collecting toll tax of operators and to maintain all types of ledgers had become irrelevant after the abolition of toll tax and therefore, they had been regularized only in the service of baledars and they were not entitled to claim a pay parity to persons belonging to cadre that they did not belong. The Tribunal therefore, held that the workmen were entitled to the designation of Inspectors and if there was no post of Inspectors in the Service Rules the Government should consider the representations and CWP No. 14322 of 2008 3 take a decision within a period of three months from the date of publication of the award. It transpired that the Government has not taken the decision and the petitioner themselves had moved this Hon'ble Court in CWP No. 7219 of 2008 claiming that they were entitled to be treated on par with Fee Collectors and that they should be put on the same scale of pay as demanded by them through a notice dated 12.3.2008. A Division Bench of this Court on 2.5.2008 directed consideration of the claim by the workmen through notice dated 12.3.2008. 3. In purported compliance of the directions of the Tribunal in reference No. 76 of 1998 dated 25.1.2000 referred to above and yet another reference order of the Industrial Tribunal dated 13.5.2003 in reference No.24 of 2000 also referred to above the Executive Engineer, Central Works Division has passed an order that there was no post or vacancy of Fee Inspectors sanctioned by the Government and that the claim for a pay scale of Rs.3120-5160 cannot be granted and that the workmen in that case should be allowed only the scale of pay of Rs.2620- 4140. Learned counsel appearing for the petitioner would contend that this was the pay which the workmen were already receiving and the additional pay claimed on a higher scale on the basis of which the recovery certificate had been issued was clearly illegal and in excess of jurisdiction. 4. There are two flaws that we can notice ; i) The nine workmen who had been regularized and whose case the private respondents were claiming parity were only entitled to a consideration of the scale of pay as determined by the Government. Learned counsel for the petition is unable to produce before me any order of the Government determining the representation as per the directions already given. One by the Industrial Tribunal and another by a Division Bench of this Hon'ble Court. It is not denied that the nine workmen obtained recovery certificate on the basis of higher scale of pay of Rs.3120-5160. It is not known on CWP No. 14322 of 2008 4 what basis the higher scale of pay had been provided to other workmen. If such amounts have been paid to the other workmen on the basis of any higher scales awarded to them, certainly the private respondents will also have the same benefit. However, if the payment of over Rs.10 lacs to the 9 workmen was illegal and they were not entitled to such sums, the petitioners cannot have equality in illegality if the contention of the Government is tenable. The Government shall take immediate action for tracking the person who was responsible for making the payment and take steps to recover the amount after giving due notice to the persons who had obtained the benefit. It shall also be competent for the private respondents to make appropriate representations to the petitioner for annulling the alleged wrong payment said to have been made. The person responsible for making the payment and causing loss to the government shall be identified and suitable action shall be taken, against such person or persons. The entire exercise shall be done within a period of three months from the date of receipt of copy of the order. 5. The impugned recovery notice is quashed. The private respondents shall not be entitled to the scale of pay of Rs.3120- 5160. Learned counsel for the respondent would submit that the Executive Engineer is himself not competent to decide on the scale of pay and it shall be done by the Government. The orders passed already by the Industrial Tribunal and by the Division Bench of this Court have not yet been complied. It shall be lawful for the private respondents to make an appropriate application to the Government represented through Secretary, Ministry of State Public Works Department or such authority as duly constituted under the State Business Rules who shall take a decision on the appropriate scale of pay for which the private respondents have been convasing for. This exercise shall again be done within a period of three months from the date of receipt of copy of the order. CWP No. 14322 of 2008 5 6. The writ petition is allowed on the above terms. (K. KANNAN) JUDGE October 26, 2009 archana