(Heard on admission and interim relief through Video Conferencing.)
1. The Engineer-in-Chief, Public Health Engineering (PHE) Department and others have filed the present Petition under Article 227 of the Constitution of India being aggrieved by the Award, dated 20.6.2019 passed by the Labour Court, Indore in Case No.29/2016/ID/Reference whereby the Respondents have been held entitled for the status of permanent classification and to get the minimum Pay Scale with allowances.
Facts of the case, in short, are as under:
2. Initially, Respondents were appointed on Daily Wages and after completion of 12 years, they were classified as permanent Employees against the post of Daily Wager vide Order, dated 13.8.2004. The Respondents approached the Labour Commissioner under Section 10(1) of the Industrial Disputes Act, 1947 seeking regularization and vide Order, dated 2.3.2016 the State Govt. referred the dispute to the Labour Court for adjudication. The Respondents filed a statement of claim before the Labour Court claiming that, despite classification against the permanent post they are not being paid the regular Pay Scale of the post. The State Govt. has issued a Circular for grant of regular Pay Scale to those Employees, who have completed 10 years of service as a Daily Wager and similarly placed Employees have been regularized by the State Govt.
3. The present Petitioners filed a Written Statement denying the averment made in the statement of claim by submitting that the list of the daily rated Employees has been prepared and as per their seniority in the list at this stage, they cannot be regularized for want of vacant post.
4. After examining the evidence came on record vide Award, dated 20.6.2019 learned Labour Court has held that in the light of the Judgment passed by the Apex Court in the case of Ram Naresh Rawat v. Ashwini Ray and others, 2016 (4) LLN 557 (SC): 2017 (3) SCC 436 the Respondents are entitled to minimum Wages and allowances as per the fixed schedule of the Pay Scale and status of a permanent Employee.
5. Being aggrieved by the aforesaid order, the Petitioners have filed the present Petition before this Court on the ground that the illegal appointment cannot be regularized or made permanent because the present Respondents were not appointed against the sanctioned vacant posts. The Department has decided to review the whole process of classifying the Daily Wage Workers as permanent Employees. The Chief Engineer vide Order, dated 18.1.2017 has directed to conduct a detailed Enquiry about the classification of the Respondents in the year 2004. The Enquiry Report, dated 18.2.2020 has been submitted in which the Enquiry Officer has recorded the findings to the effect that the appointment of the Respondents was not against any clear vacant and sanctioned post, therefore, they are not entitled to classification as permanent Employees.
I have heard the learned Counsel and perused the record and in my considered opinion, the Writ Petition is devoid of substance and merit.
6. It is not in dispute that the Respondents were appointed as daily rated Employees in the P.H.E Department and after completing more than 10 years of service vide Order, dated 13.8.2004 they were classified as permanent Labour against the permanent post, which was cancelled vide Order, dated 23.7.2011. In Writ Petition No.7673/2016 vide Order, dated 21.4.2017 this Court had set aside the Order, dated 23.7.2011 resultantly, the Order, dated 13.8.2004 has been revived and till today the said order has not been set aside or reviewed by the Petitioners. Vide Order, dated 21.4.2017 passed in Writ Petition No.7673/2016 this Court had already directed the Petitioner/Department to give the benefit of the minimum Pay Scale in the light of the Judgment passed in the case of Ram Naresh Rawat (supra). The operative Para of the Order is reproduced below:
The apex Court in the case of Ram Naresh Rawat (supra) in Paragraphs No.22 to 25 has held as under:
€œ22. We may mention, at this stage that this aspect has come up for consideration, in another context, in State of Madhya Pradesh and others v. Dilip Singh Patel and others. That was a case where similarly situated Employees, who were classified as permanent Employees' under the Standing Orders Act, were given minimum of the Pay Scale attached to their posts. However, after the implementation of Sixth Pay Commission, benefits thereof were not extended to these Employees. High Court held that they would be entitled to have their pay fixed as per the revised scales in accordance with the recommendations of Sixth Pay Commission which were accepted qua Regular Employees. This Court, though, upheld the Orders of the High Court giving them the benefit of revision of Pay Scale pertained to Sixth Pay Commission, but at the same time made it clear that they would be entitled to minimum salary and allowances as per the said revised scales and would not be entitled to any increments. It was further held that such increments would be admissible only after regularisation of their services, which regularisation was to take place as per the Seniority List with due procedure. Following passage from the said Judgment, which captures the aforesaid directions, is quoted hereunder:€We have heard learned Counsel for the parties and perused the records. It appears that the Respondents earlier moved before the Administrative Tribunal, Gwalior by filing original applications such as O.A. No.648 of 1995, O.A. No.293 of 1991 etc. In compliance of the Orders passed in such original applications, the Chief Engineer, Yamuna Kachhar, Water Resources Department, Gwalior (M.P.) (by orders issued in between April,. 2004 and June, 2004 provided the minimum Wages and allowances to the Respondents without increment as per the Schedule of the Pay Scale from the date of the Order of the Tribunal. It was further ordered that the regularization of the Daily Wages Employees shall be made as per the Seniority List with due procedure and the benefit of increment and other benefits can only be granted after the regularisation as per the Rules. It was ordered that the order of the Court for benefit of Minimum Wages and allowances shall be...... From the aforesaid facts, it is clear that the Respondents are entitled for Minimum Wages and allowance as per the fixed Schedule of the Pay Scale but without any increment. In such case, if the Pay Scale is revised from time to time including the Pay Scale as revised pursuant to Sixth Pay Commission, the Respondents will be entitled to Minimum Wages and allowance as per the said revised scale without increment. Only after regularisation of their service, as per seniority and rules, they can claim the benefit of increment and other benefits.€œ
23. From the aforesaid, it follows that though a 'Permanent Employee' has right to receive pay in the graded Pay Scale, at the same time, he would be getting only minimum of the said Pay Scale with no increments. It is only the regularisation in service which would entail grant of increments etc. in the Pay Scale.
24. In view of the aforesaid, we do not find any substance in the contentions raised by the Petitioners in these Contempt Petitions. We are conscious of the fact that in some cases, on earlier occasions, the State Government while fixing the Pay Scale, granted increments as well. However, if some persons are given the benefit wrongly, that cannot form the basis of claiming the same relief. It is trite that right to equality under Article 14 is not in negative terms (See Indian Council of Agricultural Research & Anr. v. T.K. Suryanarayan and others).
25. These Contempt Petitions are, accordingly, dismissed.€
As this Court has already quashed the Order, dated 23.7.2011 and other identically placed persons are getting regular Pay Scale, the Petitioner shall also be entitled for minimum of the regular Pay Scale without increments from the date he was classified as permanent i.e. on 13.8.2004. The exercise of passing appropriate order and making payment of Salary as per the Supreme Court Judgment be concluded within a period of three months from the date of receipt of certified copy of this order.
7. Being aggrieved by the aforesaid order, the Petitioners filed Writ Appeal No.979/2018 and vide Order, dated 10.8.2018 the Division Bench of this Court has dismissed the Writ Appeal with further direction to grant the minimum regular Pay Scale to the Respondents from the date of their classification, as directed by the Apex Court in the case of Ram Naresh Rawat (supra). While passing the aforesaid order, the Division Bench has held that the Respondents have been classified as permanent Employees on 13.3.2004, therefore, now at this stage after a period of 14 years, we cannot grant liberty to the Appellants to consider as to whether the Respondents have been classified as per the policy framed by the State Govt. or they have been entitled to classification as permanent Employees under the rules, hence in view of the above-settled position of law by this Court, again and again, the Petitioners have wrongly directed for re-examining the issue of permanent classification of the Respondents made in the year 2004. Despite the Order passed by this Court, the State Govt. vide Order, dated 18.1.2017 has directed all the Chief Engineers to reexamine the case of permanent classification. Shri Ajay Kumar Shrivastava, Superintending Engineer, PHE Indore has submitted a Report, dated 18.2.2020 i.e., after the impugned Award passed by the Labour Court.
8. In case of another set of Daily Wagers the validity of the Order, dated 13.8.2004 came up for consideration before this Court in Writ Petition No.5034/2011 when the Labour Court directed to pay the regular Pay Scale and other benefits to those Employees, who had been classified as permanent Employees vide Order, dated 13.8.2004. Vide Order, dated 13.12.2011 this court not only dismissed the Writ Petition filed by the State and also held that after classification as permanent Employees they cannot be deprived of the benefit of regular Pay Scale available to them. Against the aforesaid order, S.L.P No.20025/2011 has also been dismi
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ssed by the Apex Court. Despite the aforesaid orders now by impugned Award Labour Court has also directed to grant minimum Pay Scale to the Respondents in the light of the Judgment passed by the Apex Court in the case of Ram Naresh Rawat (supra) and that too the present Petitioners/State are not able to digest the same and approached this Court by way of this Petition challenging the Award passed by the Labour Court. This is nothing but misuse of process of law, wastage of Court's valuable time, public money and harassment to the poor Class-IV Employees. The issue, which had attained finality way back in the year 2004 and approved by this Court, as well as the Apex Court in the year 2011 and now the Petitioners, are trying to reopen it to withdraw the minimum benefits payable to the Respondents. The conduct of the Petitioners are liable to be condemned. The Office of Advocate General must give a proper opinion/advice to the concerned Department before filing such frivolous Writ Petitions on the dead issue. 9. In view of the foregoing discussion, the Petition is dismissed. The Order passed by the Labour Court be complied with.