The Chief Superintendent (Bsnl), Central Telegraph Office, and ors. Vs. Sri G.Nagaraja, S/O. Gopala Krishnaiyer, and ors. - Court Judgment

Excerpt:
[mr. justice a.n. venugopala gowda, j.] this writ petition is filed under articles 226 and 227 of the constitution of india praying to call for records from central govt, of industrial tribunal at bangalore in c.g.a. no.79/02 and 84/02 on the file of the said court and issue a writ of certiorari to quash the common order dated 30.11.2005 vide annexure -g and consequently to reject the applications, cga no.79/2002 and 84/02 of the respondents vide annexure -a & b filed by the respondents before the cgit, bangalore.1. the applications filed by the respondents under s.33-c (2) of industrial disputes act, 1947 (for short 'the act'), against the petitioners having been allowed by an award dated 30.11.2005, this writ petition has been filed to quash the said award.2. the respondents originally were appointed as telegraphmen at central telegraph office, bangalore and were promoted to the cadre of jamedar on the basis of seniority-cum fitness under 20% scheme and thereafter to the cadre of telegraph overseers. the petitioners introduced a scheme of promotion to the telegraphmen w.e.f 30.11.1983 i.e., one time bound promotion (otbp) with pay scale of rs.800 - 1,150/- and was made available to the telegraphmen, who completed 16 years of service. telegraphmen, who completed 26 years of one more promotion scheme called biannial cadre review (bcr) with pay scale of rs.950 - 1,400/- was introduced w.e.f 01.01.1986 and was made available to the service.3. the 5th pay commission recommendations were implemented by the petitioners w.e.f 01.01.1996, in terms of which, the telegrahmen got scale of rs.2,750 -4,400/- and otbp telegraphmen scale was "3,050 4,590/- and bcr telegraphmen scale was rs.4,000-x00 6,000/-. there was no revision of pay scale of telegraph overseers and they were given scale of rs.3,050 - 4,590/-w.e.f 01.01.1996.4. the 4:" petitioner issued a letter on 29.04.1999, to remove an anomaly, giving option to the telegraph overseers to come to bcr scale. the 2nd petitioner issued orders on 27.08.1999 promoting the respondents to the scale of bcr telegraphmen with effect from the date they completed 26 years of service. all the optees were uniformly placed in the bcr pay scale of rs. 4,000-100-6,000/- w.e.f 01.01.1996. the fixation from 01.01.1996 to 28.04.1999 was on notional basis and no arrears was payable. the payments made between 01.01.1996 to 28.04.1999 was sought to be recovered and hence, the respondents challenged the action by filing applications under s.33-c(2) of the act in the central government industrial tribunal-cum-labour court (cgit). the applications though were opposed by the petitioners herein by filing statement of objections, the cgit by its award dated 30,11.2005 allowed the same and set-aside the orders at exs.a3 & a4 and directed the petitioners to draw and disburse the arrears of pay and allowances due to the workmen with effect from the date of their promotion to bcr cadre giving them the benefit of pay scale of rs.4000-100-6c00 as indicated in the order at ex.a2 with interest at the rate of 6% per annum from respective due dates.5. sri v.narasimha holla, learned counsel appearing for the petitioners, firstly contended that, the tribunal has failed to appreciate that the issues raised in the applications filed before it involved adjudication of rights and entitlements was not maintainable. secondly, in directing the grant of benefit of arrears of pay and allowances from the date of their promotion to bcr cadre, the tribunal has exceeded its jurisdiction. learned counsel pointed out that, the promotion to bcr cadre was much prior to 01.01.1996 and the pay scale of rs.4,000-100-6,000 to bcr cadre was given w.e.f 01.01.1995 or onwards as a result of 5th pay commission report, which was implemented w.e.f 01.01.1996 and if the impugned award were to be given effect to, there will have to be a change in the policy decision of the government of india, which shows non-application of mind and non-consideration of the matter in the correct perspective by the cgit. thirdly, the pay scales of telegraph overseers and bcr telegraphmen under the 4th pay commission report was one and the same i.e., rs. 950 - 1,400/- and thus, there was no anomaly prior to 01.01.1996. it was pointed out that, the 5th pay commission has not provided any specific pay scale for telegraph overseers and they were given the pay scale of rs.3,050 - 4,590/- w.e.f 01.01.1996, but later the anomaly was removed by giving option to the workman to opt for bcr cadre. learned counsel submitted that, thetribunal without noticing the maintainability of the applications and the matter involving disputed questions, has passed the award, which is illegal.6. sri g.a.anthony cruze, learned counsel appearing for the respondents/workmen, on the other hand submitted that, the petitioners are not justified in effecting the recovery of payments made from 01.01.1996 to 28.04.1999 and hence, the tribunal was justified in passing the impugned award.7. the parties have adduced evidence before the cgit. the point raised for consideration was:whether the applicants are entitled to the relief sought for?8. the tribunal, after noticing the evidence, oral and documentary, finding that, the applicants before it have been given bcr promotion as per ex.a2 with effect from the date mentioned against their names and have peer, placed in the pay scale of rs.4,000-100-6,000, which was available to the bcr cadre w.e.f 01.01.1996, has arrived at the conclusion that, the benefit ought to have been given from the date the applicants stood promoted to bcr cadre.9. first and foremost, the relief claimed before the cgit by the respondent herein was not based on any settlement or award. hence, the applications filed under s.33c(2) of the act were not maintainable. though a specific ground in that regard was raised, the tribunal without raising the point and considering the same, has passed the award.10. secondly, as per ex.a2, the respondents/ workmen were promoted upon exercise of the option for the bcr scale of telegraphmen to the scale of pay of bcr telegraphmen with effect from the date/s shown against their respective names in column no.4 of the order and they were placed in the revised pay scale of rs.4,000-100-6,000/- with effect from the date/s shown against their respective names in column no.5. the pay scale of rs.4,000-100-6,000/- has come into being w.e.f 01.01.1996 i.e., pursuant to the recommendations of 5th commission and its implementation by the government of india. the direction issued by the cgit to extend the benefit of pay scale of rs.4,000-100-6,000/- as indicated in the order as at ex.a2 with effect from the date of promotion to the bcr cadre, is ex-facie illegal. the dates on which the respondents/workmen were promoter to bcr cadre is shown at column no.4 i.e., between 31.10.1990 to 01.07.1992. till 01.01.1996, there was no pay scale of rs.4,000-100-6,000/-. the direction issued is apparently without application of mind and without any lawful basis.11. sri anthony cruze, learned counsel appearing for the respondents/workmen does concede that, the grievance of the workmen was only with regard to the recovery sought to be effected by the petitioners herein. learned counsel conceded that, the recovery has already been effected.12. it is apparent that the recovery having been sought to be effected from the workmen's pay, the workmen filed applications before the cgit. the applications having been filed under s.33-c(2) of the act, the grievance being against the recovery, were nor. maintainable. it is trite that, the benefit which can be enforced under s.33-c(2) of the act is a pre-existing benefit or one flowing from a pre-existing right. in state bank of india vs. ram chandra dubey s others, reported in 2001 (1) scc 73, the apex court has held as under:8. the principles enunciated ilri the decisions referred by either side can be summed up as follows: whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed in 'erms of money and which he is entitled to receive from his emplover and is denied of such benefit can approach labour court under section 33-c(2) of the act. 'the benefit sought to be enforced under section 33-c(2) of the act is necessarily a pre-existing benefit or one flowing from a pre-existing right. the difference between a pre-existing right or benefit on one hand and the right or benefit, which is considered just and lair on the other hand is vital. the former falls within jurisdiction of labour court exercising powers under section. 33-c(2) of the act while the latter does not. judged in the background of the principles set out above, it is clear that the award passed by the labour court is indefensible and cannot be upheld. the scope and ambit of s.33-c has been lost sight of and the cgit was clearly in error, in allowing the applications, in the result, the writ petition is allowed and the impugned award is quashed.

Judgment:
1. The applications filed by the respondents under S.33-C (2) of Industrial Disputes Act, 1947 (for short 'the Act'), against the petitioners having been allowed by an award dated 30.11.2005, this writ petition has been filed to quash the said award.

2. The respondents originally were appointed as Telegraphmen at Central Telegraph Office, Bangalore and were promoted to the cadre of Jamedar on the basis of seniority-cum fitness under 20% scheme and thereafter to the cadre of telegraph Overseers. The petitioners introduced a scheme of promotion to the Telegraphmen w.e.f 30.11.1983 i.e., One time Bound Promotion (OTBP) with pay scale of Rs.800 - 1,150/- and was made available to the Telegraphmen, who completed 16 years of service. Telegraphmen, who completed 26 years of One more promotion scheme called Biannial Cadre Review (BCR) with pay scale of Rs.950 - 1,400/- was introduced w.e.f 01.01.1986 and was made available to the service.

3. The 5th Pay Commission recommendations were implemented by the petitioners w.e.f 01.01.1996, in terms of which, the Telegrahmen got scale of Rs.2,750 -4,400/- and OTBP Telegraphmen scale was "3,050 4,590/- and BCR Telegraphmen scale was Rs.4,000-x00 6,000/-. There was no revision of pay scale of Telegraph Overseers and they were given scale of Rs.3,050 - 4,590/-w.e.f 01.01.1996.

4. The 4:" petitioner issued a letter on 29.04.1999, to remove an anomaly, giving option to the Telegraph Overseers to come to BCR scale. The 2nd petitioner issued orders on 27.08.1999 promoting the respondents to the scale of BCR Telegraphmen with effect from the date they completed 26 years of service. All the optees were uniformly placed in the BCR pay scale of Rs. 4,000-100-6,000/- w.e.f 01.01.1996. The fixation from 01.01.1996 to 28.04.1999 was on notional basis and no arrears was payable. The payments made between 01.01.1996 to 28.04.1999 was sought to be recovered and hence, the respondents challenged the action by filing applications under S.33-C(2) of the Act in the Central Government Industrial Tribunal-cum-Labour Court (CGIT). The applications though were opposed by the petitioners herein by filing statement of objections, the CGIT by its award dated 30,11.2005 allowed the same and set-aside the orders at Exs.A3 & A4 and directed the petitioners to draw and disburse the arrears of pay and allowances due to the workmen with effect from the date of their promotion to BCR cadre giving them the benefit of pay scale of Rs.4000-100-6C00 as indicated in the order at Ex.A2 with interest at the rate of 6% per annum from respective due dates.

5. Sri V.Narasimha Holla, Learned Counsel appearing for the petitioners, firstly contended that, the Tribunal has failed to appreciate that the issues raised in the applications filed before it involved adjudication of rights and entitlements was not maintainable. Secondly, in directing the grant of benefit of arrears of pay and allowances from the date of their promotion to BCR cadre, the Tribunal has exceeded its jurisdiction. Learned counsel pointed out that, the promotion to BCR cadre was much prior to 01.01.1996 and the pay scale of Rs.4,000-100-6,000 to BCR cadre was given w.e.f 01.01.1995 or onwards as a result of 5th Pay Commission Report, which was implemented w.e.f 01.01.1996 and if the impugned award were to be given effect to, there will have to be a change in the policy decision of the Government of India, which shows non-application of mind and non-consideration of the matter in the correct perspective by the CGIT. Thirdly, the pay scales of Telegraph Overseers and BCR Telegraphmen under the 4th Pay Commission Report was one and the same i.e., Rs. 950 - 1,400/- and thus, there was no anomaly prior to 01.01.1996. It was pointed out that, the 5th Pay Commission has not provided any specific pay scale for Telegraph Overseers and they were given the pay scale of Rs.3,050 - 4,590/- w.e.f 01.01.1996, but later the anomaly was removed by giving option to the workman to opt for BCR cadre. Learned counsel submitted that, theTribunal without noticing the maintainability of the applications and the matter involving disputed questions, has passed the award, which is illegal.

6. Sri G.A.Anthony Cruze, Learned Counsel appearing for the respondents/workmen, on the other hand submitted that, the petitioners are not justified in effecting the recovery of payments made from 01.01.1996 to 28.04.1999 and hence, the Tribunal was justified in passing the impugned award.

7. The parties have adduced evidence before the CGIT. The point raised for consideration was:

Whether the applicants are entitled to the relief sought for?

8. The Tribunal, after noticing the evidence, oral and documentary, finding that, the applicants before it have been given BCR promotion as per Ex.A2 with effect from the date mentioned against their names and have Peer, placed in the pay scale of Rs.4,000-100-6,000, which was available to the BCR cadre w.e.f 01.01.1996, has arrived at the conclusion that, the benefit ought to have been given from the date the applicants stood promoted to BCR cadre.

9. First and foremost, the relief claimed before the CGIT by the respondent herein was not based on any settlement or award. Hence, the applications filed under S.33C(2) of the Act were not maintainable. Though a specific ground in that regard was raised, the Tribunal without raising the point and considering the same, has passed the award.

10. Secondly, as per Ex.A2, the respondents/ workmen were promoted upon exercise of the option for the BCR scale of Telegraphmen to the scale of pay of BCR Telegraphmen with effect from the date/s shown against their respective names in Column No.4 of the order and they were placed in the revised pay scale of Rs.4,000-100-6,000/- with effect from the date/s shown against their respective names in Column No.5. The pay scale of Rs.4,000-100-6,000/- has come into being w.e.f 01.01.1996 i.e., pursuant to the recommendations of 5th Commission and its implementation by the Government of India. The direction issued by the CGIT to extend the benefit of pay scale of Rs.4,000-100-6,000/- as indicated in the order as at Ex.A2 with effect from the date of promotion to the BCR cadre, is ex-facie illegal. The dates on which the respondents/workmen were promoter to BCR cadre is shown at Column No.4 i.e., between 31.10.1990 to 01.07.1992. Till 01.01.1996, there was no pay scale of Rs.4,000-100-6,000/-. The direction issued is apparently without application of mind and without any lawful basis.

11. Sri Anthony Cruze, learned counsel appearing for the respondents/workmen does concede that, the grievance of the workmen was only with regard to the recovery sought to be effected by the petitioners herein. Learned counsel conceded that, the recovery has already been effected.

12. It is apparent that the recovery having been sought to be effected from the workmen's pay, the workmen filed applications before the CGIT. The applications having been filed under S.33-C(2) of the Act, the grievance being against the recovery, were nor. maintainable. It is trite that, the benefit which can be enforced under S.33-C(2) of the Act is a pre-existing benefit or one flowing from a pre-existing right. In STATE BANK OF INDIA VS. RAM CHANDRA DUBEY S OTHERS, reported in 2001 (1) SCC 73, the Apex Court has held as under:

8. The principles enunciated ILri the decisions referred by either side can be summed up as follows: Whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed in 'erms of money and which he is entitled to receive from his emplover and is denied of such benefit can approach Labour Court under Section 33-C(2) of the Act. 'The benefit sought to be enforced under Section 33-C(2) of the Act is necessarily a pre-existing benefit or one flowing from a pre-existing right. The difference between a pre-existing right or benefit on one hand and the right or benefit, which is considered just and lair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Section. 33-C(2) of the Act while the latter does not.

Judged in the background of the principles set out above, it is clear that the award passed by the Labour Court is indefensible and cannot be upheld. The scope and ambit of S.33-C has been lost sight of and the CGIT was clearly in error, in allowing the applications, In the result, the writ petition is allowed and the impugned award is quashed.