Bolla Krishnamurthy vs The State Of Andhra Pradesh
2021 Latest Caselaw 4474 AP

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      HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU

               WRIT PETITION No.8746 of 2021

ORDER:

This Writ Petition is filed for the following relief:

"....to issue a writ, order or direction more particularly one in the nature of Writ of Mandamus, declaring the action of the respondents in not paying me on par with regular Technical Assistants (Regular Work Inspectors), as arbitrary and violative of Articles 14, 16, 21 and 39d of Constitution of India, consequently direct the respondents to pay Rs.10,59,055/- or such other higher amount as this Hon'ble Court finds it with interest @ 12% p.a., grant costs of the proceedings, and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case."

This Court has heard Sri M.Pitchaiah, learned counsel

for the petitioner and the learned Government Pleader for

Irrigation and Command Area Development.

This case has a long and chequered history. Sri M.

Pichaiah appearing for the petitioner has submitted long and

detailed arguments in this matter. He points out that the

petitioner was initially appointed as an NMR Work Inspector in

the Sub Divisional Office of the 5th respondent. He was

terminated from services on 01.09.1987. The same was

questioned in the Labour Court by filing I.D.No.254 of 1996

and an Award was passed in his favour on 15.09.2001. Since

the award was not implemented E.P. was filed. The petitioner

was then reinstated into services. He was once again

terminated by the respondents. He challenged the same by

filing W.P.No.12755 of 2005, which was allowed on 05.10.2018

declaring that the retrenchment was bad and directed the

petitioner to be reinstated with all consequential benefits.

Challenging the Labour Court Award in I.D.No.254 of 1996, an

appeal was filed by the State vide W.P.No.14480 of 2006. The

said Writ Petition was dismissed on 14.02.2011. Against the

order of the learned single Judge, by which the petitioner was

directed to be reinstated into service (W.P.No.12755 of 2005) a

Writ Appeal No.339 of 2019 was filed by the respondents,

which was also dismissed on merits on 16.03.2021. Since the

payments were not made contempt proceedings were started

(C.C.No.3436 of 2018). In the contempt proceedings also

learned counsel points out that the issues raised in the present

matter viz., the payment of paltry amounts contrary to law was

raised. Learned counsel for the petitioner points out that the

Division Bench while dealing with the contempt left it open to

the petitioner to agitate the same in appropriate proceedings.

The present Writ is filed claiming wages for the period from

21.05.2005 to 25.07.2019. It is submitted after deducting the

amounts paid through the Court a sum of Rs.10,59,055/- is

due.

Sri Pichaiah, learned counsel for the petitioner argues

with his usual force that the payments were only made after

coercive steps were initiated and that despite the efforts of the

petitioner over years he could not get the proper and due

payment. He relies upon the scheduled SSR rates, which are

fixed by the respondent department, based upon the Labour

Department data to support his claim for Rs.10,59,055/-. He

points out that what is stated in the Writ affidavit in terms of

the monetary calculation is not denied in the counter affidavit.

Despite this he submits that at the direction of this Court he

has also filed the SSR rate document to show that his claim is

justified. Learned counsel, therefore, argues that this is a fit

case in which the Court should exercise discretion and allow

the Writ Petition along with interest. He points out that the

order of the learned single Judge in directing the reinstatement

with all consequential benefits was clearly flouted and

therefore he submits that this Court should allow the Writ.

In reply to this learned Government Pleader argues that

the petitioner is not entitled to any relief. He points out that

the respondent has already paid all that is legitimately due to

the petitioner. He relies upon the calculation memo, which

was filed before the Labour Court, and also the payment of

Rs.7,55,305/-. Learned Government Pleader argues that the

petitioner is not entitled to back wages. He points out that the

respondents had rightly followed the procedures stipulated

under Section 17 (b) of the Industrial Disputes Act, which is

also reproduced in the counter affidavit. He points out that

even though the petitioner did not work at all in the relevant

period he was paid Rs.145/- per day as wages. He also states

that the payment made in the Execution Proceedings in the

Labour Court was calculated on the very same basis for the

period from 01.03.2003 to 31.01.2005. He also denies that the

petitioner is entitled to the payment of wages at the SSR rates

as revised from time to time. Learned Government Pleader

argues in line and deriving support from the counter affidavit.

Lastly, it is submitted that in W.P.No.14480 of 2006 a

Division Bench of this Court while dealing with the

regularization of the petitioner held that he will not be entitled

to arrears of salary from 25.11.1993. Therefore, learned

counsel argues that the petitioner is not entitled to any relief.

COURT:-

The order passed by the learned single Judge in

W.P.No.12755 of 2005 was dealing with the termination of the

services of the petitioner on 19.05.2005. This order of

retrenchment, which has been passed in May, 2005, was set

aside by the learned single Judge holding that the procedure

under Section 25 (f) of the I.D.Act was not followed and the

defect cannot be cured at a subsequent date. He, therefore,

directed that the petitioner is deemed to be in service "from the

date of retrenchment with all consequential benefits". Against

this W.A.No.339 of 2019 was filed, which was dismissed on

16.03.2021. Since an order of the learned single Judge was

not implemented C.C.No.3436 of 2018 was filed. This was

heard along with the Writ Appeal and also dismissed on

16.03.2021. However, as rightly pointed out by Sri M.

Pichaiah, the issue of arrears / back wages was not decided.

Learned counsel points out to para-4 of the contempt order

wherein the issue of calculation of back wages in view of the

increase in the wage structure etc., is raised. This issue was

left open to be decided by the Division Bench.

The learned counsel for the petitioner had also relied

upon the judgment of the Hon'ble Supreme Court of India in

the case of State of Punjab and Ors., v Jagjit Singh and

Ors., 1 . Here he points out that in paragraph 44 and the

concept of pay parity, regularization was discussed and that it

was held that if the work component is same the petitioners

are entitled to parity.

This Court also notices that it is not correct, as argued

by the learned Government Pleader, that the petitioner simply

accepted all the payments. In the counter affidavit itself it is

clearly written that the petitioner's counsel was not satisfied

with the calculations and the rejoinder has already been filed

to the calculation. This Court also notices that even in the

contempt application, that was argued before the Division

Bench, the issue of revision in the wages etc., has been raised

by the petitioner. Therefore, it is not correct to state that the

amount paid by the respondents were accepted by the

petitioner. From the inception he has been agitating for what

he is claiming as due to him. According to him the

reinstatement with all consequential benefits would include all

(2017) 1 SCC 148

the wages that were applicable and also as per the

modifications on year to year basis. It cannot, therefore, be

said that the petitioner accepted the wages unconditionally. It

is also noticed that all the payments in this case were made

during the course of the Court proceedings only. Therefore, it

is not correct for the respondent to state that the petitioner,

who did not dispute the amount of Rs.7,55,305/-, cannot now

claim the balance amount. The reference and reliance of

Section 17 (b) of the I.D. Act is also not correct in the opinion

of this Court. In the opinion of this Court Section 17 (b) of the

I.D. Act is like subsistence allowance, (which is paid during the

period of suspension). It is a mandatory duty which is fixed

upon the employer to pay the full wages last drawn by

employee during the period, when the proceedings are pending

before the High Court or the Hon'ble Supreme Court of India.

This does not, in the opinion of this Court, preclude the

petitioner from claiming higher wages if the wages have been

revised in the interim period. The order passed by the learned

single Judge of this Court is directing the reinstatement along

with "all" consequential benefits. The action is of the

respondents in this case are clear. At no stage the payment

was made voluntarily. Even in the additional affidavit that has

been filed, in paragraph 5 at page No.3, it was clearly

mentioned that in order to avoid the arrest the back wages were

paid from 26.05.2002 to 25.07.2019.

Coming to the calculation of the amounts the counsel for

the petitioner has relied upon the data, which is furnished in

paragraph 3 of his writ affidavit, which details the periodic

increase on a year to year basis. The respondent-department

did not deny all these figures that are expressly mentioned in

para-3. An additional memo was also filed on the direction of

this Court showing the enhancement in the schedule of rates

from time to time. Reading of these enhanced schedule of rates

show that the State is fixing these rates based upon the details

of the wages that are obtained from the Labour Department.

The SSRs also detail that the wages should not be less than

the minimum wages from the schedule of appointment. In the

opinion of this Court the respondent State, who is expected to

be model employer is bound to pay the minimum wages. Even

otherwise, the minimum wages are statutorily payable by every

employer, provided the employment is within the schedules of

the State Minimum Wages Act. In the case on hand the

petitioner has filed data to show that his claim is based upon

the calculation of wages, which are given by the respondent's

departments only. The case law cited by the petitioner also

supports his contentions. This Court does not find any reason

to disbelieve the same or to negative the same. The data is

sufficient for this Court to conclude that the petitioner is

entitled to claim Rs.10,59,055/-.

The issue that survives for consideration is interest:

The petitioner is not claiming any interest from any

"specific date", but a reading of paragraph-5 shows he is

claiming interest from the date of order of the learned single

Judge in W.P.No.12755 of 2005. As noticed earlier, the

payments made by the respondent-State are not voluntary

payments. The payments were made during the course of

Court proceedings and after orders were passed in favour of

the petitioner. The counter affidavit also shows that in order

to avoid arrest the payment was made. In the opinion of this

Court the petitioner can claim both the principal amount due

and interest as all consequential benefits which were given to

him. The person, who is deprived of his money is entitled to

claim interest by whatever name it is called. In the

Constitution Bench judgment reported in Secretary,

Irrigation Department, Government of Orissa and Others

v G.C.Roy 2 (while dealing with a case under the Arbitration

Act) the Constitution Bench held that a person who deprived

of his money is entitled to interest. In the opinion of this Court

the ratio of said decision about the delayed payment and

interest thereon is applicable even to the present case. The

petitioner has been agitating for his right since decades. It is

a clear case of individual against the mighty State, a David

versus Goliath story. Despite his efforts the complete payment

(1992) 1 SCC 508

due to him has not been paid over the years. Even in the

contempt application the issue about the periodical revision of

wages was raised and this was left open for this Court to

decide. This Court already held that in view of the above,

periodical revision in the wages are also to be paid to the

petitioner. In line with the said conclusion this Court holds

that interest is payable both due to the delay and for the

procrastination of the respondents. However, no basis is filed

for the interest claim that is made at 12% p.a. As per the

Interest Act interest is payable at the rate which the money is

taken in deposit by Commercial Banks but this is a matter of

pleading and proof. However, Section 34 of CPC, which deals

with post decree interest talks of 6% p.a. from the date of

decree till the date of payment. This can be adopted as an

yardstick by this Court. Therefore, there shall be a direction

to pay the outstanding viz., Rs.10,59,055/- along with 6%

interest per annum from 05.10.2018 (date of Writ Petition

order) till the date of actual payment.

It is also made clear that order in W.P.No.1448 of 2015,

which deals with the benefits of regularization cannot be used

to deny the emoluments due to the petitioner. In that case, the

issue of regularization of the petitioner and the benefits due to

him consequent to regularization was being discussed. The

present case arises out of the order passed by a learned single

Judge directing the "consequential benefits" to the petitioner,

which has been confirmed in a Writ Appeal by the Division

Bench also. Hence, in order to implement the order of the

learned single Judge in W.P.No.12755 of 2005 it is ordered and

directed that the petitioner is entitled to the payment of

Rs.10,59,055/- along with 6% per annum interest as

mentioned above.

With the above direction, the Writ Petition is allowed.

There shall be no order as to costs.

Consequently, the Miscellaneous Applications pending, if

any, shall stand closed.

__________________________ D.V.S.S.SOMAYAJULU, J Date:03.11.2021.

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