Delhi High Court
Balkishan & Ors. vs D.T.C. & Anr. on 10 January, 2013
Author: Vipin Sanghi
S-3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 10.01.2013
% W.P.(C) 6681/2007
BALKISHAN & ORS. ..... Petitioners
Through: Mr. D.K. Aggrawal, Senior Advocate
along with Mr. Virendra Kr. Singh,
Advocate.
versus
D.T.C. & ANR. ..... Respondents
Through: Mr. J.S. Bhasin & Ms. Rashmi Priya,
Advocates for the respondent/DTC.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
VIPIN SANGHI, J.
1. The petitioners in the present writ petition assail the common order
dated 03.04.2007 passed by the Presiding Officer, Labour Court-XX in
L.C.A. No.103A/2006 (Old No.324/1993) and in L.C.A. No. 103B/2006
(Old No.732/1992). The present petition has been preferred by the
workmen/applicants aggrieved by the decision in L.C.A. No.103A/2006.
2. At the outset, I may give a background summary of the relevant facts
& circumstances. It appears that in the year 1983, in Delhi Transport
Corporation (hereinafter referred to as the DTC) an interim relief of wage
revision was granted to the employees, which was generally termed „head-
start‟. Within the DTC some query was apparently raised, i.e., whether the
said interim relief/head-start would be added to the basic pay while fixing
the pay in the revised pay scales, which were shortly expected to be
rendered by the Fourth Pay Commission.
3. On 20.09.1983, the DTC clarified that the actual treatment of interim
relief for the purpose of pay fixation will depend upon the specific
recommendation of the Pay Commission in this regard. The DTC went on
to refer to its earlier circular dated 15.09.1983 and stated that it was
"indicated" by the said communication that the differential in the head-start
now given in the pay scale will be maintained even while implementing the
scales recommended by the Fourth Pay Commission. An example was also
cited. Therefore, the pay of an individual in the pay scale of Rs.260-400,
drawing a basic pay of Rs.260/- per month, who opted for interim relief at
Central Government rates was fixed at Rs.310/- by adding Rs.50/- as interim
relief to basic pay of Rs.260/-, whereas the pay of an employee who opted
for the corresponding revised pay scale of Rs.284-440 (i.e., with head-start
of Rs.24/-) and was drawing a basic of Rs.284/- per month, will be fixed at
Rs.334/- per month by adding Rs.50/- to his basic pay of Rs.284.
4. The DTC issued yet another communication dated 07.02.1984 to the
same effect. The DTC Workers‟ Union & Others preferred a petition under
Article 32 of the Constitution of India before the Hon‟ble Supreme Court to
seek a writ of mandamus to the DTC to implement the recommendations of
the Fourth Pay Commission, as approved by the Central Government in
respect of the Central Government employees also in respect of the DTC
w.e.f. 01.01.1986, vide W.P.(C.) No. 320/1987. The office order dated
07.02.1984 issued by the DTC was sought to be relied upon by the
petitioners before the Supreme Court.
5. The stand taken by the respondent-DTC before the Supreme Court -
as recorded in the order passed by the Supreme Court on 02.04.1991, was
that the order dated 07.02.1984 had intended that the head-start in the form
of interim relief would not deprive the employees of the full benefits of
either the revised interim pay scale, i.e., the scale as revised during the
interregnum („interregnum‟ meaning the period awaiting the implementation
of the Fourth Pay Commission Report), or the new pay scale subsequently
introduced as per the recommendations of the Fourth Pay Commission. It
was also clearly stated that the revised interim pay scale (with the head-start)
was itself in the nature of an interim relief, pending adoption of the new pay
scale recommended by the Fourth Pay Commission. But once the
employees are placed on the scale recommended by the Fourth Pay
Commission, all the reliefs which they had earlier received would merge
into the new scale, and they would have no entitlement to any additional
payment. Any payment in addition to what the Fourth Pay Commission
recommended would place the employees of the Corporation at an undue
advantage in comparison to the employees of the Government in
corresponding grades. Any such differential treatment would be
discriminatory and, therefore, unsustainable.
6. The Supreme Court in its judgment dated 02.04.1991 in D.T.C.
Workers's Union and Others Vs. Delhi Transport Corporation, (1991) 2
SCC 618, observed in relation to the order dated 07.02.1984 of the DTC that
certain interim benefits were granted to the employees preceding the
introduction of the new pay scale on the basis of the recommendations of the
Fourth Pay Commission. These benefits which were either in the nature of
an additional payment or a revised interim pay scale were intended to cover
the period preceding the introduction of the regular pay scale which came
into effect on 01.01.1986. The Supreme Court further observed that the
order dated 07.02.1984 shows that the Corporation was to carry the same
pay structure and DA pattern as in the case of the Government employees in
the corresponding categories. All benefits granted by the Fourth Pay
Commission in the nature of interim reliefs were also to be made available
to the Corporation employees. The Supreme Court further observed that the
overriding consideration behind the order dated 07.02.1984 is that, as in the
case of Government employees, so in the case of the Corporation
employees, the new scales recommended by the Fourth Pay Commission
should be fully implemented. Whatever may be the amounts actually
payable in terms of the interim reliefs, the employees of the Corporation
should neither be paid less nor more than the Government employees in the
corresponding categories. Paragraph 7 of the order is pertinent and the same
reads as follows:
"7. This means that all employees, whether retained on the
original pay scale or placed on the revised interim pay scale
during the period preceding January 1, 1986, will be placed on
the pay scale adopted as per the recommendations of the
Fourth Pay Commission in such a way that they will be fitted
exactly in positions corresponding to their positions on the
earlier pay scales. But the corresponding positions in the new
pay scales will naturally carry better emoluments, so as to
maintain parity with the government employees in like
categories." (Emphasis supplied)
7. Following the aforesaid order of the Supreme Court, the petitioners
preferred the aforesaid L.C.A. No. 324/1993 under Section 33C of the
Industrial Disputes Act, 1947. The respondent-DTC raised objections to the
maintainability of the said petition which was, however, rejected by the
Labour Court. The Labour Court vide its order dated 21.01.2004 allowed
the aforesaid L.C.A. of the workmen and directed to make payment to each
workman or to the LRs.
8. The respondent DTC assailed the said order by filing W.P.(C.) No.
17282/2004, which was dismissed in limine by the learned Single Judge on
16.11.2004.
9. The DTC then preferred L.P.A. No. 519/2005. The Division Bench
after referring to paragraphs 6 & 7 of the judgment of the Supreme Court, as
aforesaid, observed that the Labour Court had not examined the issue
whether the respondents herein were seeking to receive amounts larger than
those payable to the Government employees in the corresponding categories.
Consequently, the Division Bench remanded the case back to the Labour
Court to determine whether the amounts payable to the workmen, including
the interim relief, does not exceed the amount payable to the Government
employees in the corresponding categories. The impugned order has been
passed by the Industrial Adjudicator while considering the matter upon
remand. The Industrial Adjudicator has ruled against the petitioners by
observing that if the interim relief is included while implementing the Fourth
Pay Commission recommendations in respect of the petitioners, their pay
would exceed the amount payable to the Central Government employees in
the corresponding categories. Consequently, they have been denied relief
and their L.C.A. has been dismissed.
10. The submission of learned senior counsel for the petitioners is that
while passing the impugned order the Industrial Adjudicator has not
examined the issue on which the remand had been made, i.e., to determine
whether the amount payable to the workmen, in case the interim relief
granted to them is merged in the basic pay as on 31.12.1985, would exceed
the amount payable to the Government employees in the corresponding
categories.
11. Mr. Aggarwal has tendered in Court a computation in respect of each
of the eighteen petitioners/workmen to show as to how, according to him,
the pay upon refixation under the Fourth Pay Commission, even after taking
the basic pay of each of the petitioners as prevailing on 31.12.1985 -
inclusive of the interim relief/head-start, does not exceed the pay fixed of the
corresponding categories of Central Government employees under the
Fourth Pay Commission. Mr. Aggarwal very heavily relies upon the
communications of the DTC dated 20.09.1983 and 07.02.1984 and submits
that these communications, in no uncertain terms, state that the interim
relief/head-start would be taken into account while fixing the petitioners in
the corresponding pay scales under the Fourth Pay Commission.
12. On the other hand, the submission of the respondent/DTC is that the
interim relief/head-start had been granted only as an interim measure
between the period 01.06.1983 and the date of implementation of the Fourth
Pay Commission Report, i.e., 01.01.1986. The respondents have placed on
record, and heavily relied upon communications issued by the Ministry of
Surface Transport, Government of India on 20.02.1991 and 25.02.1991.
The communication dated 20.02.1991 reads as follows:
" GOVT OF INDIA,
MINISTRY OF SURFACE TRANSPORT
TRANSPORT WING, PARLIAMENT STREET,
NEW DELHI-110001
No.HT-12011/9/90-TAC Dated 20.02.1991
To,
The Chairman-cum-Managing Director,
Delhi Transport Corporation,
I.P. Estate, New Delhi.
Subject: Extension of IV pay commission pay scales and
allowances to the employees of Delhi Transport
Corporation.
Sir,
The proposal for extension of IV pay commission pay
scales and allowances to the DTC employees has been under
consideration of the Government. I am directed to convey
Government's approval to the proposal to extend the fourth pay
commission scales of pay and allowances and fixation formula
to DTC employees with effect from 1.1.1986, subject to the
following conditions:-
i) All the pay scales, existing prior to 1.6.1983 will be
allowed corresponding fourth pay commission pay
scales;
ii) The fixation will be relates to the national pay which
would have been drawn on 1.1.1986 if the pre-June 1983
Third Pay Commission scales had continued to operate.
The fixation will be as per the procedure adopted for
Central Government employees. In other words the
benefits in emoluments already allowed to DTC
employees with effect from 1.6.1983 2ill have to be
ignored.
iii) However, there will be no recovery from the employees
consequent on the comparatively higher benefits of
fixation having been enjoyed by them with effect from
1.6.1983 till the date of decision regarding the
implementation of the Fourth Pay Commission pay scales
and allowances.
iv) The other allowances such as DA, HRA, CCA, washing
allowances, conveyance allowances etc. will be regulated
as applicable to Central Government.
These orders would apply to all DTC employees who
were in service as on 1.1.1986 or joined service thereafter.
DTC are requested to take the necessary follow-up
action.
This issues with the concurrence of internal Finance
Wing vide their U.O. No.916/FA/T/91 dated 19.2.1991.
Yours faithfully
Sd/- Illegible
(P. Vijayan)
Director (Road Transport)"
13. The communication dated 25.02.1991 is to the same effect insofar as
it is relevant. Learned counsel for the respondent submits that the proposal
for extension of the benefits of the Fourth Pay Commission to the employees
of DTC required the approval of the Central Government. That approval
was granted conditionally. Without the said approval the Fourth Pay
Commission Report would not have ipso facto become applicable to the
employees of the DTC and the employees of the DTC could not have
granted the pay scales provided for under the Fourth Pay Commission
Report. Therefore, the conditions provided in the said approval cannot be
ignored and the approval has to be viewed in the light of the said conditions.
The said conditions, as aforesaid, are absolutely clear which state that all
pay scales existing prior to 01.06.1983 (i.e., prior to grant of interim
relief/head-start) will be allowed corresponding Fourth Pay Commission
scales. The further condition is that the fixation will relate to notional pay
which would have been drawn on 01.01.1986 if the pre-June 1983 Third Pay
Commission scales had continued to operate. This condition also refers to
the interim relief/head-start granted from 01.06.1983 and, in no uncertain
terms, makes it clear that the said interim relief/head-start shall be ignored.
However, the interest of the employees has been protected by providing that
there shall be no recovery in respect of the interim relief/head-start granted
w.e.f. 01.06.1983 till the date of decision regarding implementation of the
Fourth Pay Commission pay scales and allowances
14. The respondents have also produced two tabulations in their counter-
affidavits of the corresponding posts in the DTC and the Central
Government. The equivalence in the pay scales of these posts has been
displayed in these tabulations. The said tabulations, upon merger, reads as
follows:
Posts in Existing pay Revised Posts in Central Central
DTC scale scale Central Govt. Govt.
Govt. Existing revision
Scale scale
Senior Clerk 380-12-440- 1350-30- 13-b 380-12-440- 1350-30-
EB-15-560- 1440-40- EB-15-560- 1440-40-
1800 EB- 1800 EB-
EB-20-640 50-2200 EB-20-640 50-2200
OS 550-25-750- 1640-60- 17-e 550-25-750- 1640-60-
EB-30-900 2600-EB- EB-30-900 2600-EB-
(Plus 75-2900 75-2900
Rs.100/- as (Plus
special pay Rs.100/- as
to qualified special pay
cost to qualified
accountant). cost
accountant)
Assistant 225-5-260- 825-15-900- 4 225-5-260- 825-15-900-
Fitter 6-290-EB-6- EB-20-1200 6-290-EB-6- EB-20-1200
TTC, Fitter, 290-8-330- 975-25- 8 290-8-330- 975-25-
Driver, EB-8-370- 1150-EB- EB-8-370- 1150-EB-
Welder 10-400-EB- 30-1660 10-400-EB- 30-1660
Grade-II 10-480 (Plus (Plus 25/- as 10-480
25/- as duty duty
Allowance Allowance
to vehicle to vehicle
Examiner & Examiner &
instructor instructor
Driver) Driver
Assistant 425-15-500- 1400-40- 14-b 425-15-500- 1400-40-
Foreman EB-15-560- 1800-EB- EB-15-560- 1800-EB-
20-700 50-2300 20-700 50-2300
Conductor 260-6-290- 950-25- 6-a 260-6-290- 950-25-
EB-6-326-8- 1150-EB- EB-6-326-8- 1150-EB-
366-EB-8- 25-1500 366-EB-8- 25-1500
390-10-400 390-10-400
15. Having heard learned counsel for the parties, I am of the view that
there is no error in the impugned order. It appears to me that the DTC while
issuing the communications dated 20.09.1983 and 07.02.1984, on the one
hand, put the employees to caution and notice that the actual treatment of
interim relief for the purpose of pay fixation under the Fourth Pay
Commission would depend upon on the specific recommendations of the
Pay Commission while, on the other hand, ventured to "indicate" that the
differential in the interim relief/head-start granted to the DTC employees
will be maintained even while implementing scales recommended by the
Fourth Pay Commission. The said communications have been issued by the
Deputy General Manager of the DTC. However, when the matter was taken
to Supreme Court in the aforesaid petition under Article 32 of the
Constitution of India, the DTC made its stand very clear by stating that the
interim relief/head-start was being granted only during the interregnum and
that once the employees are placed in the pay scales recommended by the
Fourth Pay Commission, all the reliefs which they had earlier been granted
would merge into new pay scales and they would not be entitled to any
additional payment. The Supreme Court also made its observations in
relation to the order dated 07.02.1984 of the DTC. In respect of the said
communication the Supreme Court, inter alia, observed that the Corporation
shall carry the pay structure and DA pattern as in the case of the
Government employees in the corresponding categories. The overriding
consideration of the Fourth Pay Commission Report was that in the case of
all Government employees the new pay scales recommended by the Fourth
Pay Commission should be fully implemented and the employees of the
Corporation should neither be paid less nor more than the Government
employees in the corresponding categories. Surprisingly, though the
communications dated 20.02.1991 and 25.02.1991 of the Ministry of
Surface Transport, Government of India, whereby approval was granted to
the extension of the Fourth Pay Commission pay scales in respect of
employees of the DTC were issued prior to the decision of the Supreme
Court on 02.04.1991, for some reason these communications - which laid
down the conditions, as aforesaid, were not placed before the Supreme
Court.
16. In my view, had these communications been placed before the
Supreme Court, all the litigation which has ensued thereafter could have
been avoided as the said communications dated 20.02.1991 and 25.02.1991
of the Ministry of Surface Transport leave no manner of doubt that the
interim relief/head-start has to be ignored while implementing the Fourth
Pay Commission Report in the DTC. I agree with learned counsel for the
respondent DTC that the extension of the Fourth Pay Commission Report to
the DTC was conditional and the conditions prescribed by the Ministry of
Surface Transport, Govt. of India were binding on the DTC and its
employees. The said conditions could not have been ignored and, whatever
implications may have been drawn, or assurances given by the DTC to its
employees in the communications dated 20.09.1983 or 07.02.1984, the same
did not hold water in the face of the conditions imposed by the Govt. of
India while extending the benefits of the Fourth Pay Commission Report to
the employees of the DTC.
17. The tabulation provided by the petitioner, in my view, suffers from a
basic fallacy. To demonstrate the same, I may set out hereinbelow the first
entry in the said tabulation pertaining to Sh. H.S. Gaur, OS-1281.
S. No. Name, Existing Basic pay on Revised scale Pay Scale as Pay scale as
Design. & Basic which DTC and Basic Pay per IVth Pay per 3rd Pay
T. No. pay as on brought each as per circular Commission Commission
31.12.85/ employees dt. 15.9.83,
1.1.86 as per 3rd 20.9.83 &
pay 7.2.84
commission implemented
pay scale in DTC in
lieu of 1st
Interim Relief
1. Sh.H.S. 945 900 580-30-790- 1640-60- 550-25-750-
Gaur, OS, 35-945 2600-75-2900 30-900
Fixation of pay as per 4th pay Fixation of pay should DTC Fixation of pay as done by the
commission recommendation fixed as per 4th Pay commission DTC after brought down the 3rd
on the pay received by Central recommendation on the pay Pay commission
Govt. employee as on received by the DTC employee recommendation as on
31.12.85/1.1.86 as on 31.12.85/1.1.86 31.12.85/1.1.86 as per formula
of 4th Pay commission scales.
BP as on 1.1.86 945.00 BP as on 1.1.86 945.00 BP as on 1.1.86 900.00
DA on 608 points 1390.00 DA on 608 points 1390.00 DA on 608 points 1342.00
Ist IR 70.00 Ist IR 70.00 Ist IR 70.00
2nd IR @ 10% 94.50 2nd IR @ 10% 94.50 2nd IR @ 10% 90.0
Weightage @ 20% 189.00 Weightage @ 20% 189.00 Weightage @ 20% 180.00
Total 2688.50 Total 2688.50 Total 2582.00
Pay fixed at 2750 Pay fixed at 2750 Pay fixed at 2600
18. In the aforesaid tabulation, the existing basic pay of Sh. H.S. Gaur as
on 31.12.1985 has been shown as Rs.945/- on account of the grant of head-
start; without the head-start the same was Rs.900/-. By treating the existing
basic pay as Rs.945/-, the petitioners state that the pay scale 580-30-790-35-
945 (which is the head-start pay scale) has the corresponding pay scale in
the Fourth Pay Commission as Rs.1640-60-2600-75-2900. However, the
respondent has disregarded the head-start and for the purposes of
determining the corresponding pay scale, the petitioner‟s pay scale under the
Third Pay Commission, i.e., Rs.550-25-750-30-900 has been considered.
The petitioners in the aforesaid illustration, have assumed the basic pay of
Rs.945/- and pay fixation has been computed at Rs.2,750/-. Obviously, if
the basic pay is treated as Rs.945/- -- both in respect of the employees of
the DTC as well as the employees of the Central Government, since the
same Pay Commission Report is made applicable, the pay fixation would
also be identical, which has been shown as Rs.2,750/-. However, what is
missed out by the petitioners is that in the basic pay of the Central
Government employee at Rs.945/-, no interim relief is added, whereas in the
basic pay of the petitioners as shown in the tabulation is inclusive of interim
relief/head-start. Therefore, the said comparison is misleading. The
comparison has to be by taking the basic pay of the employees of the DTC
without the interim relief, and then comparing the same with that of the
Central Government employees whose basic pay also does not carry the
element of interim relief. It is, therefore, obvious that if the interim
relief/head-start is loaded on to the basic pay, the employees of the DTC
would obviously steal a march over corresponding employees of the Central
Government. If such pay fixation is permitted, it would lead to a systemic
error and would have a slow balling effect as it would disturb the entire
structure of pay fixation within the DTC vis-à-vis Central Government.
Employees of the same category in the DTC would enjoy higher pay scale as
compared to the employees of the Central Government. This was certainly
not intended either by the DTC, much less by the Central Government and
the Supreme Court also did not approve of such an eventuality. The
aforesaid communications of the DTC do not bind the Central Government
and the approval granted by the Central Government cannot be looked at,
bereft of the conditions imposed by it while granting its approval to
extension of the Fourth Pay Commission Report to the DTC.
19. For the aforesaid reasons, I find no merit in this petition and dismiss
the same, leaving the parties to bear their own Costs.
VIPIN SANGHI, J.
JANUARY 10, 2013
BSR
