S.M. Laroiya vs Employer In Relation To The ...
2021 Latest Caselaw 4259 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  (Civil Writ Jurisdiction)
                W.P. (L) No. 1549 of 2014
                          ........

S.M. Laroiya                           ....   ..... Petitioner
                              Versus
Employer in relation to the Management
of Barora Area No. 1, Bharat Coking
Coal Limited, Barora, Dhanbad               ..... Respondent

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
                                   ............
For the Petitioner                 : Mr. A.K. Sahani, Advocate.
For the Respondent                 : Mrs. Swati Shalini, A.C. to
                                     Mr. Amit Kumar Das, Advocate.
                                    ........
14/18.11.2021.

Heard, learned counsel for the petitioner, Mr. A.K. Sahani and learned counsel, Mrs. Swati Shalini on the instruction of learned counsel for the respondent, Mr. Amit Kumar Das.

The writ petition has been filed against the award dated 04.03.2013 passed by Central Government Industrial Tribunal No. I, Dhanbad, whereby reference "Whether the demand of the Union for the fixation of the salary of Sh. S.M. Loraiya Accountant at Rs. 1,481/- in the year 1987? is justified ? If so, to what relief is the workman entitled?" is answered against the workman.

Learned counsel for the petitioner, Mr. A.K. Sahani has referred the written statement filed by the Management, which has been brought on record as Annexure-1 and has relied upon para-9 of the written statement, which may profitably be quoted hereunder:-

"9. That the contents of paras 4, 5, 6, 7, 8 & 9 of the written statements of the workman are not fully correct. It is submitted that as per the circular of the management, the clerical staff who were undergraduate and who obtained their degrees privately in course of carrying on their duties got annual increment including the concerned workman. The concerned workman did not obtain permission from the management at the time of appearing in his degree examination and, as such, the local management could not automatically grant him one additional increment in his basis pay and, ultimately, after the matter was brought to the notice of the headquarter, he was given one additional increment with effect from 1.1.87 retrospectively by order dated 16.5.95 and his anomally was removed in respect of payment of one additional

increment in his basic salary. Therefore, all the contentions of the sponsoring union have no merit at all and the same are denied."

Learned counsel for the petitioner has further relied upon written statement filed by the workman, which has been brought on record as Annexure-2 and has referred para-5, 6, 12, 14, 17 & 18 of the written statement, which may profitably be quoted hereunder:-

5. That there was an original circular issued by the management being No. BCCL / PA.5/Grant/ ADV. INCRE /83/9781-9981 dated 21/22 -2-1983 wherein and whereby it was agreed upon to give one annual increment to the employees who are possessing or acquiring Graduation qualification on and after 31.12.1982 and the same Circular was again iterated by the management vide Circular No. BCCL /PA-5-Grant Advance- INCREMENT / 4448- 4648.

6. That in pursuance of the aforesaid Circular and the Policy decision of the management the concerned workman represented before the management for an annual increment in view of his possessing and acquiring Graduation degree but without any effect.

12. That in the year 1987 the basic wage of the concerned workman was fixed at Rs.1331/- whereas the basic wage of J.P. Thakur was fixed at Rs.1481/- and that of R.N. Singh who was many years junior to the concerned workman his basic wage was also fixed at Rs.1481/- in the year 1987.

14. That the basic wage of the concerned workman should have been fixed at least at Rs.1481/- at par with the other junior workman whose names mentioned above whereas legally the basic wage of the concerned workman should have been fixed at more than Rs. 1481/- mainly in the year 1987 as the concerned workman was getting basic wage more than the junior workman whose names mentioned above.

17. That curiously enough the management placed Shri R. N. Singh in the basic wage of Rs.1481/- + one increment, whereas at that time the basic wage of Shri S. M. Loraiya was at Rs. 1331/-.

18. That it is also pertinent to mention that one R. N. Dubey who was transferred to Benidih Colliery in the year 1980 as an Accountant has been given the designation of Accountant with effect from 1980. It is pertinent to mention that Shri R.N. Dubey was many years junior to the concerned workman and he was

appointed in the year 1974 whereas the concerned workman was appointed as Accountant in the year 1972. It is pertinent to mention that Shri R. N. Dubey was not appointed as Accountant in the year 1974 but he was given designation and grade of Accountant in the year 1980 as per alleged order of the Hon'ble High Court.

Learned counsel for the petitioner has further submitted that during evidence, the workman has been examined as WW-1 and he has categorically stated that "Since the year 1972 itself I had been performing the job of an Accountant. Since the year 1975, I had been regularly performing the said job. At the time of take over of the management, I was a B. Com. Part-I pass, and subsequently in the year 1986 I completed my graduation. After completing graduation immediately I had informed the management about that. There was a circular of the management issued on 22.2.83 by which the provision had been made that those who would complete their graduation would be given or provided one additional increment. That circular is still in operation, and is under signature of the then Chief Personnel Manager marked Ext. W-1."

Learned counsel for the petitioner has further submitted that in the evidence of workman, he has also adduced that "One J.P. Thakur who had been working in my section was allowed the benefit accrued out of the said circular. No sooner he approached for the same after completing his graduation but the same without any reason was denied to me. I had raised dispute before the management in that regard."

Learned counsel for the petitioner has further submitted that while passing the award, the learned Tribunal has not considered that the pleading of discrimination with approval and perverse finding has been recorded to the effect that the workman fails to bring on record such pleadings and failed to explain the same and the award is non-speaking and un-explained without considering the pleading and evidence on record and is not sustainable in the eyes of law.

On these two grounds, learned counsel for the petitioner, Mr. A.K. Sahani has thus submitted that the impugned order may be set

aside and considering the equity, such relief, which has already been granted to Mr. J.P. Thakur and others, may also be granted to this petitioner, which the learned Tribunal has miserably failed.

Learned counsel, Mrs. Swati Shalini on the instruction of learned counsel for the respondent, Mr. Amit Kumar Das, has submitted that the respondent has filed counter-affidavit and para-11 of the same may be taken note of:-

"11. That in reply to the statements made in paragraphs 5, 6, 7, 8, 9, 10, 11, 12 and 13 of the writ application, it is stated that as will be apparent from bare perusal of the writ petition filed by the petitioner, his grievance is that he was entitled to one annual increment as he completed his Graduation in the year 1986 and he, therefore, should have been granted an increment in view of the circular dated 22.02.1983. The respondent-Management had appeared and filed a detailed written statement which has been annexed as Annexure-1 to the writ application, wherein the Management had specifically stated that the basic wage of the concerned petitioner was fixed at Rs. 2130/- with effect from January, 1987, Rs. 2217/- with effect from 17.04.1987 and Rs. 2297/- with effect from May, 1988 at par with that of Shri P.N. Tiwary, another Accountant who was similarly situated with him. Therefore, when the basic of the petitioner was Rs. 2217/-, his salary from January, 1987 became much more than the basic and the demand of the petitioner for his fixation of salary at Rs. 1481/- which is not even 50% of the salary which he got is ridiculous and is an absurd demand without any justification. When the Management fixed the basic salary of the petitioner at Rs. 2130/- with effect from 01.01.1987, the question of paying him less than that as salary per month with effect from 1987 does not and cannot arise. Thus, the petitioner is in utter confusion to understand the pay fixation although he is working as Accountant and he has filed the present case due to serious confusion in his mind.

The petitioner also failed to justify as to how his case was on a footing similar to that of Sri P.N. Tiwari.

Apparently, the circular dated 22.02.1983 (Ext. W-1) has been quoted in the Award at para-3 wherein it is specifically mentioned that the increment is admissible only in respect of the employee who has already obtained higher qualification during

curtained period from 20.11.1974 to 31.12.1982. This benefit will not be applicable beyond 31st December, 1982. Thus, apparently, the writ petitioner had completely Graduation in the year 1986 and, therefore, he is not entitled to the benefit of grant of one increment in lieu of the said circular. The petitioner has failed to substantiate or show any employee who had completed his Graduation or obtained higher qualification after 31.12.1982 and was granted such benefit. The case of the petitioner is not comparable either with Sri J.P. Thakur or Sri. R.N. Singh, as will be apparently from bare chart annexed by the petitioner himself wherein the basic salary of the petitioner on 01.01.1980 was less than both the two employees."

Learned counsel for the respondent has further submitted that by way of supplementary counter-affidavit, the Circular issued by Bharat Coking Coal Limited contained in Ref. No. BCCL/PA- V/Grant/Adv. Inc/83/9781-9981 dated 21/22.02.83 has been brought on record as Annexure-B, wherein it has been specifically mentioned in point no. (2) "Advance increment will be admissible in respect of the employees who have already obtained higher qualification during the service period from 20.11.1974 to 31.12.1982. This benefit will not be applicable beyond 31st December, 1982."

Learned counsel for the respondent, Mr. Swati Shalini has thus submitted that the petitioner has failed to bring on record any letter of BCCL to show that this circular has been extended subsequently, as the dispute, which has been raised by the petitioner, is with regard to on or after 31.12.1982 and that has already been clarified by this circular that this must be on or before 31.12.1982, as such, the writ petitioner has no case and writ petition is fit to be dismissed.

Learned counsel for the petitioner in reply to the same has submitted that as per pleading of the petitioner, the petitioner has passed B.Com. Part-I prior to 31.12.1982, which was completed in the year 1987, as such, this circular is applicable with the petitioner.

Considering the rival submissions of the parties and looking into facts and circumstances of the case, it appears that the question which has been raised by the petitioner that the reference has not

been answered by the learned Tribunal on the basis of pleadings of the parties or evidence of the parties, this Court negates the same on the ground that reference is "Whether the demand of the Union for the fixation of the salary of Sh. S.. Loraiya Accountant at Rs. 1,481/- in the year 1987? is justified? If so, to what relief is the workman entitled?" and this demand of the Union is only on the basis of the Circular, which was issued and brought on record as Annexure-B to the supplementary counter affidavit, wherein the condition has been mentioned at point (2) that the benefit will not be applicable beyond 31st December, 1982, so to get the benefit of additional increment, the person must satisfy that he has obtained the higher qualification on or before 31.12.1982. From pleading of the parties and also from the materials brought on record, it appears that it is not in dispute that the petitioner has not completed his higher education on or before 31.12.1982.

So far the submission made on behalf of the petitioner that higher education means part-I examination, this Court fails to accept that if a person is passed intermediate examination, he can be considered to be intermediate passed, but if a person has passed B.A. Part-I examination, he cannot be considered as graduate, rather his educational qualification can only be considered to be intermediate passed, as such, this Court, in view of the finding recorded by the learned Tribunal, is not inclined to interfere with the same, as reference has been rightly answered by the learned Tribunal. The learned Tribunal has to strict in deciding the reference in view of judgment passed by the Apex Court in the case of Mukand Ltd. Vs. Mukand Staff & Officers' Association reported in (2004) 10 SCC 460, which has also been reiterated by the Hon'ble Division Bench of this Court in C.Rev. No. 85/2012 with C.Rev. No. 86/2012 that the learned Tribunal cannot travel beyond the terms of reference, which has rightly been done by the learned Tribunal.

Accordingly, the writ petition is hereby dismissed.

(Kailash Prasad Deo, J.) Sunil/-