Bombay High Court
The Superintending Public Works ... vs Shaikh Jabbar Shaikh Husain on 10 June, 2021
Bench: R. G. Avachat
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8983 OF 2019
1. The Superintending Engineer
Public Works Department,
Circle Office, Bandhkam Bhavan,
Adalat Road, Aurangabad
2. The Executive Engineer,
Public Works Division
at Jalna, Tal. & Dist. Jalna ... Petitioners
(Orig. Respondents)
Versus
1. Shaikh Jabbar s/o Shaikh Husain ...(Orig.Complainant)
Died through his L.Rs
1A. Smt. Shejeda Begam Shaikh Jabbar
Age 60 years, Occu. Household
1B. Shaikh Javed s/o Shaikh Jabbar
Age Major, R/o. J S College Power Room
Jalna
1C. Shaikh Firoz s/o Shaikh Jabbar
Age Major, R/o Panaychi Takki road,
Filter bet Jalna
1D. Shaikh Afroz s/o Shaikh Jabbar
Age Major, R/o Collage Road,
Near Filter bet, Jalna
1E. Sayra Begum Shaikh Akhil
Age Major, R/o H No.4-13-51
Baijipura, Khas Gate,
Aurangabad ... Respondents
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....
Mr. N. T. Tribhuwan, AGP for the petitioners
Mr. R. K. Khandelwal, Advocate for the respondent
....
CORAM : R. G. AVACHAT, J.
RESERVED ON : 10th FEBRUARY, 2021
PRONOUNCED ON : 10th JUNE, 2021
O R D E R :-
. The challenge in this writ petition is to the judgment and
order dated 20.07.2018, passed by the Member, Industrial Court,
Jalna, in Complaint (ULP) No.12 of 2017. By the impugned order,
the Industrial Court has allowed the complaint and directed the
petitioners herein to accord pay scale of the post of Driver to the
complainant/respondent with effect from 01.03.1984. The order was
directed to be complied with within a period of one month from the
date of its communication.
2. The petitioner No.1 is the Superintending Engineer,
Public Works Department (P.W.D.). The petitioner No.2 is the
Executive Engineer of P.W.D. at Jalna. The Complaint (ULP) No.12 of
2017 was filed by the original respondent contending that he joined
the service with petitioner No.2 as a Cleaner on 16.12.1977 on daily
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wages. He continued to work till 16.12.1982. His services came to
be confirmed in terms of the settlement/award by ' Kalekar
Committee'. He was brought on C.R.T. with effect from 16.12.1982
and given the pay scale of the Cleaner. He was assigned the work of
Driver since 01.03.1984. He continued to work as Driver until he
retired on superannuation in the year 2013. He, therefore, claimed
pay scale of Driver from the date he was directed to work as a Driver
to the date of 28.09.2003, on which he was in fact granted the pay
scale of the post of Driver.
3. Before the Industrial Court, the petitioners did not
appear in spite of service of notice of the proceedings. The complaint
was therefore heard exparte against them. On appreciation of the
evidence in the case, the Industrial Court passed the order impugned
in this petition.
4. Heard.
Shri N. T. Tribhuwan, learned Assistant Government
Pleader (AGP), appearing for the petitioners would submit that the
complaint was decided exparte. There was considerable delay in
filing the complaint. The original complainant/respondent was
granted the pay scale of Driver with effect from 28.09.2003, vide
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G.R. dated 29.09.2003. According to the learned AGP, the petitioners
need to be given an opportunity of hearing. The matter, therefore, be
remanded to the Industrial Court. The learned AGP would, further
submit that the post of the Driver was not available during the
period for which the salary of the post of Driver has been asked for.
The original respondent was not appointed on regular basis to the
regular post after selection according to the rules. In support of his
submissions, the learned AGP relied on the judgment of this Court
dated 20.09.2001, passed in Writ Petition No.1740 of 2000 (Chief
Executive Officer, Zilla Parishad, Osmanabad vs Rama Ananda More)
and other connected writ petitions.
5. Shri R. K. Khandelwal, learned Advocate for the
respondent, supports the impugned order.
6. Admittedly, the original respondent/complainant had
joined the service with petitioner No.2 as a Cleaner with effect from
16.12.1977, on daily wages. On completion of five years of service as
a Cleaner, he was confirmed in service. He was brought in the
establishment on C.R.T. with effect from 16.12.1982 and given the
pay scale of the Cleaner. It has further been admitted that although
the original complainant/respondent was a Cleaner, he was assigned
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the work of Driver with effect from 01.03.1984. He continued to
serve as a Driver until he retired on superannuation on 31.03. 2013.
7. The State of Maharashtra, vide G.R. dated 29.09.2003,
decided to give pay scale of the post on which the employees had, in
fact, been serving, although they were holding an interior post. Since
the original complainant/respondent was working as a Driver,
although he was holding the post of a Cleaner, he came to be
granted pay scale of a Driver with effect from 29.09.2003. He had,
accordingly, been paid the salary with effect from the said date to the
date of his retirement. The G.R. specifically states that no employee
would be paid arrears.
8. The original complainant had filed an application under
Section 33-C(2) of the Industrial Disputes Act, 1947, before the
Labour Court, Aurangabad and claimed difference of salary from
01.03.1984 to 29.12.1987. The said proceeding went unchallenged.
The Labour Court passed the order on 20.12.1991, directing the
petitioners to pay the original complainant, the difference of
amount. The said order has been complied with without any demur.
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9. Since the original complainant had admittedly worked as
a Driver with effect from 01.03.1984, he deserves to be paid
monetary benefits (salary) attached to the post of a Driver. The
petitioners could not be benefited on relying on the judgment of this
Court in the case of the Chief Executive Officer, Zilla Parishad,
Osmanabad vs Rama Ananda More (supra) since the claim therein
was for regularisation on the post. Here, the original complainant
simply claimed monetary benefits attached to the post of a Driver. He
did not ask for making him permanent on the said post with effect
from the date he was assigned the work of a Driver. On the principle
of equal pay for equal work, the original complainant thus became
entitled for grant of salary of the post of the Driver. In the complaint
itself, he had explained as to why he did claim the said benefit in the
later part of his service, as according to him he did not want to invite
wrath of the higher ups. It is true that the original complainant has
raised the claim belatedly. The petitioners, however, did not offer
any reason as to why they could not appear before the Industrial
Court and resist the complaint. Their prayer for remand, therefore,
could not be accepted.
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10. Pending the petition, the original complainant passed
away.
11. The petitioners have deposited the amount of arrears
payable to the original respondent pursuant to the impugned order.
The calculations indicate that the amount that has become payable,
is not more than Rs.1,00,000/- (Rupees One Lakh). In this factual
backdrop, I am not inclined to interfere with the impugned order.
The writ petition therefore fails and is thus, dismissed.
12. The amount deposited in this Court pursuant to the
order dated 19.08.2019, be paid to respondent Nos. 1A to 1E.
[ R. G. AVACHAT, J. ]
SMS
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