Jharkhand High Court
Hatia Majdoor Union vs M/S Heavy Engineering ... on 28 August, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(L) No. 907 of 2009
Hatia Majdoor Union, a registered trade union having its office at
quarter no. B-44, P.O. Dhurwa, P.S. Jagarnathpur, District Ranchi -
834 004 through its General Secretary, Bhawan Singh son of Marehu
Singh resident of P.O. Dhurwa, P.S. Jagarnathpur, District Ranchi
... ... Petitioner
Versus
1. M/s Heavy Engineering Corporation Limited, P.O. & P.S. Dhurwa,
District Ranchi - 834 004 through its Chairman-cum-Managing
Director.
2. The Director (Personnel), Heavy Engineering Corporation Limited,
P.O. & P.S. Dhurwa, District Ranchi
... ... Respondents
---
CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Petitioner : Mr. Nipun Bakshi, Advocate
Mr. Raj Kr. Gupta, Advocate
Mr. Mrinal Singh, Advocate
For the Resp.-State : Mr. Sushant Kumar, Advocate
---
29/28.08.2023
Learned counsel for the parties are present.
2. This writ petition has been filed for the following reliefs: -
"(i) For Appropriate writ or order or direction to the respondents not to
discriminate against some of employees in the matter of pay
revision/fixation of pay simply because they had chosen to go in for
litigation earlier while the others had abstained from such litigation in view
of assurances given by respondents to await the verdict of the court;
(ii) Appropriate writ or order or direction to the respondents for extending
the revised pay scales on the same lines and for grant of same benefits as
the respondents have done by a settlement dated 25.7.2008 to some of its
employees in a Civil Review No. 24 of 2008 vis-à-vis other similarly situated
employees who were not parties in the said litigation which has eventually
led to the said Civil Review no. 24 of 2008 in which a compromise has been
reached between the respondents and those employees by terms of the said
settlement dated 25.07.2008.
(iii) Any other relief or relief to which the petitioner is found entitled to, may
also be granted."
Arguments on behalf of the Petitioner
3. The learned counsel for the petitioner has submitted that earlier an
industrial dispute was raised through the Labour Union which was numbered
as Reference Case No. 09 of 1993 whereby dispute regarding anomalous pay
fixation was referred to Labour Court. In the reference case, the cause of
only 24 workmen were espoused and they were being represented by the
Labour Union. The reference case was decided by directing the respondents
to rectify their pay-scales by considering the increment at first instance at
Rs. 8/- instead of Rs. 7/- and to grant such benefit after revision in the pay-
scale. The Award was challenged in the writ petition being CWJC No. 2785
of 1998(R). The writ petition was dismissed vide order dated 04.07.2003
against which, LPA No. 333 of 2004 was filed which was disposed of with a
direction to the respondent -HEC to file review before the writ court. The
order in the LPA is dated 18.02.2008.
4. A civil review application was filed being Civil Review No. 24 of
2008. Subsequently, the respondent- HEC filed I.A. No. 2285 of 2008 in
civil review application seeking disposal of the review case in terms of the
settlement/compromise which was annexed to the interlocutory application.
Ultimately, vide order dated 25.09.2008, the civil review itself was disposed
of as the dispute between the management and the concerned workmen
stood settled.
5. The learned counsel submits that essentially the dispute was in
connection with pay anomaly and what was settled was the payment of
differential pay in connection with the pay anomaly which was initially
decided in favour of the Labour Union.
6. The learned counsel submits that other similarly situated persons,
whose name did not figure in the list in the aforesaid case filed before the
learned Labour Court, moved the present writ petition immediately after
settlement numbered as W.P.(L) No. 907 of 2009 which has been admitted
by this Court on 02.11.2010.
7. The learned counsel for the petitioner has also referred to the order
dated 02.08.2012 to submit that the submission of the respondent-
Management has been recorded in the said order wherein they had submitted
that they would seek instruction as to what is the impediment in applying
same pay-scale to the concerned workmen of this case, who are similarly
situated with other workmen, in whose favour Award was made by the
Industrial Tribunal and confirmed upto this Court. Thereafter, the present
matter was adjourned from time to time. He also refers to the order dated
13.10.2022 passed by this Court, wherein it has been recorded that as per the
counter-affidavit filed, there was no denial that the persons involved in the
present case are not similarly situated. He then referred to the order dated
04.05.2023 wherein it was submitted by the respondents that the required
verification was being taken up and two months' time was granted.
8. Ultimately, the required supplementary-counter-affidavit dated
06.07.2023 has been filed in connection with only 71 employees whose
records/promotion could be verified, has been placed on record. The learned
counsel has further referred to the supplementary-counter-affidavit,
particularly paragraph No. 24 to submit that even in the supplementary-
counter-affidavit the fact that the persons involved in the present case are
identically placed as that of 24 persons whose name was involved in the
adjudication by Labour Court, is not in dispute.
9. The learned counsel for the petitioner has submitted that out of the
numerous workmen whose list has been furnished along with the writ
petition, upon thorough search of the record room, personal file of only 18
ex-employees could be traced. The details of those ex-employees have been
mentioned in paragraph 22 of the supplementary counter-affidavit. It has
been further stated that the relevant promotion order from Grade - E to
Grade- CD of 71 ex-employees (including the promotion orders of 18 ex-
employees whose details are mentioned in paragraph 22 of the
supplementary-counter-affidavit) have also been found whose details have
been mentioned in paragraph 23 of the said supplementary counter-affidavit.
10. The learned counsel for the petitioner also submits that the respondent
being model employer ought to have extended similar benefit to similarly
situated persons suo-moto and there would have been no need for each and
every workman to raise an industrial dispute. He submits that the matter
relating to pay anomaly applies to all workmen who are identically placed.
The learned counsel submits that there is no question of different pay-scale
being given to similarly situated persons, who are engaged in similar nature
of work.
11. The learned counsel for the petitioner has relied upon the judgement
passed by the Hon'ble Supreme Court reported in (2011) 4 SCC 374 [Bharat
Sanchar Nigam Limited Vs. Ghanshyam Dass (2) and Others]. He has
relied upon paragraph 25 of the said judgment by referring to the principles
under which similar relief is required to be extended. He submits that in the
said judgement, the earlier judgement passed in the case of K.I. Shephard
reported in (1987) 4 SCC 431 has been quoted.
12. The learned counsel for the petitioner has further submitted that the
petitioner would confine the relief only to the extent of 71 persons whose
record could be verified and those persons whose records could not be
verified, the petitioner has nothing to say.
Arguments on behalf of the respondents
13. Learned counsel for the respondents, on the other hand, does not deny
that 71 persons whose list has been given in the supplementary-counter-
affidavit, were identically placed as that of the 24 persons who were
involved in the adjudication by the Labour Court, but he submits that these
persons having not raised an industrial dispute at the relevant point of time,
are not entitled to similar relief. Their act suffers from laches and delay. He
has relied upon the judgment passed by the Hon'ble Supreme Court reported
in (2006) 11 SCC 464 (U.P. Jal Nigam and Another Vs. Jaswant Singh
and Another) and has referred paragraphs 13 and 15 thereof to submit that
persons who do not take step with regard to their legal right, such non-action
amounts to acquiescence or waiver on their part.
14. The learned counsel submits that the present writ petition was filed
only when the settlement was entered into in the proceeding arising out of
the judgment passed by the learned Labour Court, Ranchi. He submits that
on the sole ground of delay and laches, the present writ petition does not call
for any relief to the 71 persons, whose records could be retrieved and their
details have been mentioned in the supplementary-counter-affidavit.
15. Learned counsel for the respondents has also submitted that in the
tripartite agreement, the present petitioner i.e. the Labour Union was also a
party and therefore, filing of the present writ petition by the same Union
does not call for the relief, inasmuch as, the union would have given the list
of all the employees who were entitled to similar relief. He has also
submitted that huge financial burden will be fastened upon the respondents,
if any relief is granted to 71 persons whose names have been mentioned in
the supplementary counter-affidavit.
Rejoinder argument on behalf of the Petitioner
16. In response, the learned counsel for the petitioner has relied upon the
judgment passed by the Hon'ble Supreme Court reported in 2022 SCC
OnLine SC 641 (Rushibhai Jagdishbhai Pathak Vs. Bhavnagar
Municipal Corporation) and has referred to paragraphs 14 to 17 thereof to
submit that as a model employer, once the respondents had accepted the
decision by way of compromise and extending the benefit to the persons
who were involved in the matter decided by learned Labour Court, there was
no reason that uniform benefit should not be extended also to the persons
involved in the present case whose records could be retrieved / identified and
are similarly situated. The learned counsel submits that it has also been
observed therein by referring to another judgement reported in (2015) 1 SCC
347 (State of U.P. & Others vs. Arvind Kumar Srivastava & Others) that
the normal rule is that when a particular set of employees is given relief by
the Court, all other identically situated persons need to be treated alike by
extending that benefit.
17. The learned counsel further submits that appropriate decision in
connection with removal of pay anomaly was taken with regard to 24
employees. There is no justification to deny the same relief to 71 persons
whose names appears in the supplementary-counter-affidavit, who along
with others have approached in this writ petition immediately after
settlement. The writ petition was admitted as back as in the year 2010. He
submits that pursuant to the orders passed by this Court, the respondents
have done the due diligence and the required exercise to identify the records
and verify the credentials of the persons involved in the present case, out of
them, the credentials of only 71 employees could be identified. The learned
counsel submits that the very purpose of conducting such exercise was with
a view to extend similar benefits to the persons who could be identified and
found to be similarly situated.
18. The learned counsel for the petitioner has also submitted that the
matter of settlement was arising out of labour Court's judgment and
therefore, there was no occasion to include other persons therein. He has also
submitted that since it was a tripartite settlement, the same would bind on the
employee in terms of Section 18(3) of the Industrial Disputes Act.
19. So far as financial burden is concerned, the learned counsel for the
petitioner submits that the relief is to the extent ranging from Rs. 9,191/- to
Rs. 60,573/- depending upon the period of work, therefore, he submits that
there is not much financial involvement in the present case considering the
fact that the respondent company is a public sector undertaking and has to
act as a model employer.
Findings of this Court
20. The following foundational facts are not in dispute in the present case:
a. On 20.07.1993, the Government of Bihar vide
notification no. 4/02-2807/93 L&E-1062 referred the dispute
regarding anomalous pay fixation to the Labour Court, Ranchi
which registered the same as Ref. Case No. 09 of 1993.
b. Vide order dated 02.09.1997 (Annexure-1), the reference
was decided by an Award directing the respondent to rectify
their pay scales by considering the increment at first instance of
Rs. 8 instead of Rs. 7 and to grant benefit after such revision in
the pay scale.
c. Vide order dated 18.12.2008 (Annexure-3), L.P.A. No.
333 of 2004 against the dismissal of the aforementioned writ
application was disposed of with a direction to the respondent-
HEC Limited to file review before the writ Court.
d. Civil Review No. 24 of 2008 was filed by the
respondent-HEC Limited. On 05.08.2008, the respondent-HEC
Limited filed I.A. No. 2285 of 2008 in Civil Review No. 24 of
2008 seeking disposal of the review case in terms of a
settlement/compromise which was annexed to the interlocutory
application.
e. On 25.09.2008, Civil Review No. 24 of 2008 was
disposed of as the dispute was settled between the Management
and the concerned workmen. (Annexure-4/A).
f. The petitioner is representing 175 other persons who
claim to be similarly situated persons and are claiming the same
benefits that were extended to the 24 workers in the terms of the
aforesaid compromise/settlement.
21. It is not in dispute that the persons who are being represented before
this Court through the aforesaid Union were not party in the Reference Case
No. 09 of 1993 which was decided in favour of the workmen on 02.09.1997.
The respondent unsuccessfully challenged the award in the High Court and
ultimately during the pendency of review petition the dispute ended in a
settlement between the Management and the concerned workmen and the
Civil Review petition was disposed of on 25.09.2008 by observing that the
dispute was already settled between the Management and the concerned
workmen. Such settlement was reached only after the Award attained
finality.
22. Immediately thereafter, the present writ petition was filed on
25.02.2009. The writ petition was entertained and the respondents were
granted time to file their counter-affidavit vide order dated 06.10.2009. The
writ petition was admitted vide order dated 02.11.2010. On 02.08.2012,
following order was passed at the instance of the Management:
"Learned counsel for the respondent-Management submitted that he shall
take instruction as to what is the impediment in applying same pay scale to
the concerned workmen of this case, who are similarly situated with other
workmen, in whose favour award was made by the Industrial Tribunal and
confirmed up to this Court. For that purpose, he prays for two weeks' time.
Prayer is allowed."
23. On 15.12.2020, the entire case of the petitioner was crystalized in
their submission as under:
"In view of .......................................................................................
Mr. Nipun Bakshi, learned counsel for the petitioner submits that
petitioner -Union has approached this Court with a prayer for pay parity as
per settlement. He further submits that whatever benefit was given to 24
workers, same benefit may be given to the members of the petitioner Union
also. He further submits that it is a case of discrimination and as per the
settlement, the members of the petitioner Union are also entitled for the
same pay-scale.
..................................................................................................."
At the prayer of the Management, the case was adjourned.
24. Thereafter on 13.10.2022, this Court took note of the fact that as per
the counter-affidavit filed in this case, there was no denial that the persons
involved in the present case are similarly situated as that of the employees
involved in the Reference Case. This Court also referred to the litigation
policy. Paragraph 1 and 2 of the order dated 13.10.2022 is quoted as under:
"1. It appears that it is a case of pay anomaly and the matter has been
settled up to the LPA Court. Twenty four workers, who had earlier raised
Industrial Dispute, have been paid. The remaining workmen who are
claiming themselves to be similarly situated that of the twenty four workers,
have approached this Court by filing present writ petition that the fruits of
the Award should also be given to all similarly situated employee. Reference
has been made to the litigation policy also.
2. It further appears that a counter affidavit has been filed where there is
not denial that they are not similarly situated employee."
Upon the aforesaid observations, the respondents sought adjournment.
25. On 04.05.2023, it was submitted by the learned counsel for the
Management that the required verification in connection with the employees
involved in the present case could not be completed and two months' time
was prayed for as the records were old one and under such circumstances,
time till 10.07.2023 was granted to the respondents to complete the
necessary verifications and file their appropriate affidavit. The Chairman-
cum-managing Director (Respondent No. 1) was directed to take special care
and issue necessary instructions and monitor the progress regarding the
verification. Order dated 04.05.2023 is quoted as under: -
"1. Learned counsel for the parties are present.
2. Learned counsel for the respondents has submitted that he has taken up
the matter with the respondents and as per his instructions required
verification could not be completed. The learned counsel further prays for
two months' time to do the needful by way of last chance. The learned
counsel has also submitted that the records are old records and they are
taking time to do the needful.
3. Learned counsel for the petitioner has submitted that the necessary
information in connection with the members of the petitioner union, who are
seeking relief, has been given in Annexure-5 of the writ petition, which is
sufficient for the respondents to verify the claim of the members of the
petitioner.
4. Considering the submissions of the learned counsel for the respondents,
time till 10.07.2023 is granted to the respondents to complete the necessary
verification and file an affidavit before this Court latest by 10.07.2023. The
Chairman-cum-Managing Director (Respondent No. 1) is directed to take
special care and issue necessary instructions and monitor the progress
regarding the verification.
5. Post this case on 12.07.2023 in the supplementary cause list.
6. If the required affidavit is not filed by 10.07.2023, the Chairman-cum-
Managing Director (Respondent No. 1) shall appear in person before this
Court to explain the reasons for non-compliance of the order passed by this
Court.
7. Learned counsel for the petitioner has submitted that since the date has
been fixed in the present case, he does not want to press I.A. No. 7492/2021.
8. Accordingly, I.A. No. 7492/2021 is closed."
26. The specific case of the respondents in the counter-affidavit to oppose
the prayer of the petitioner was that the persons involved in the present case
were neither party to Reference Case No. 09 of 1993 nor to the out of Court
settlement arrived at between the Management and 24 workmen in
Reference Case No. 09 of 1993 on 25.07.2008. From perusal of the counter-
affidavit, it further appears that the respondents have tried to reagitate the
challenge to the Award passed by the Presiding Officer, Labour Court,
Ranchi arising out of the aforesaid Reference Case No. 09 of 1993 by stating
that the Award is contrary to the Tripartite Memorandum of settlement dated
16.03.1974.
27. This Court is of the considered view that there is no scope to
challenge the Award passed in Reference Case No. 09 of 1993 which
attained finality and all challenges to the said Award was declined and at the
stage of review, a settlement was arrived at between 24 concerned workmen
and the Management. There is no scope for the respondents to go back to the
earlier settlement of 1974 and assail the Award and question the legality of
the Award passed in Reference Case No. 09 of 1993 in order to decline relief
to the employees involved in the present case subject to verification of their
claim.
28. Pursuant to the orders passed by this Court, a supplementary counter
affidavit was filed by the respondents on 06.07.2023, wherein it has been
stated that pursuant to the earlier order dated 04.05.2023, the respondents
undertook various steps to access whether 173 ex-employees involved in the
present case are similarly situated as that of 24 ex-employees with whom
there was out of Court settlement in the year 2008. They further took the
stand that the records are 40 to 50 years old and upon thorough search in all
records room personal file of 18 ex-employees as per the chart mentioned in
paragraph 22 of the affidavit could be traced out. They have further
submitted that the relevant promotion orders related to promotion from
Grade-E to Grade-CD of 71 ex-employees (including the promotion orders
of 18 ex-employees mentioned in paragraph 22) as per the details given in
the chart in paragraph 23 could be found. Paragraph 23 of the affidavit dated
06.07.2023 is quoted as under: -
"23. That it is stated and submitted that further, the relevant promotion
orders related to promotion from Grade-E to Grade-CD of 71 ex-employees
(including the promotion orders of the 18 ex-employees mentioned in Para 22
above) as per details given below were also found:
Sl. P No. Name of the ex-employee S/Shri Sl. No. in the List of
No. 173 Ex-employees
given by the
Petitioner
1 19830 Kedar Singh 85
2 19958 S N Pandit 19
3 19829 R N Prasad 43
4 19840 Suresh Pandit 04
5 19838 S Kr Lohani 17
6 68131 Suresh Prasad 95
7 19814 C D P Roy 104
8 19817 Laloo Vishwakarma 107
9 19820 Madhu Mahto 106
10 19818 Jit Bahan Baraik 113
11 20333 Sano Mahto 89
12 19834 S K Gupta 76
13 19831 K D Pandey 56
14 19844 R P Sharma 09
15 19835 Ras Bihari Roy 63
16 19045 Ramayan Singh 10
17 38966 Swaraji Manjhi 03
18 34033 S D Das 39
19 38503 Madan Prasad 35
20 38509 T K Singh 118
21 38513 Dashrath Prasad 23
22 38529 Yogendra Nath Mahto 119
23 51263 B N P Yadav 47
24 51189 R N Singh 42
25 51230 Sunder Bhagat 22
26 51288 B Manjhi 101
27 51291 S Hembrom 05
28 51292 D P Sharma 81
29 51285 Tribhuwan Prasad 46
30 51280 U K Singh 171
31 51281 Dineshwar Prasad 50
32 51282 Satrughan Prasad 08
33 51305 N Toppo 79
34 51303 S Pathak 60
35 51300 R R Ram 36
36 51322 Ram Lakhan Ram 82
37 51319 Sudhir Prasad Singh 02
38 51344 Brahmdeo Baitha 49
39 51323 Jag Nandan Prasad 20
40 51326 Gopal Prasad 99
41 51310 R N Singh 07
42 51313 Md. Qumruddin 24
43 51342 I B Prasad Suman 06
44 19350 G N P Singh 61
45 51330 U S Sinha 125
46 51275 S Minz 55
29. The findings of the enquiry have been summarized in paragraph 24 of
the affidavit. However, the respondents again tried to agitate the argument
that the Award passed in the Reference Case was not proper. Paragraph 24
of the affidavit dated 06.07.2023 is quoted as under:
"24. That as per para 4 of the direction of Hon'ble High Court of Jharkhand
at Ranchi dated 04.05.2023 in WP(L) No. 907 of 2009, necessary
verification on the matter of this case has been done and in this regard, it is
stated that on scrutiny of the Personal Files & the promotion orders of the
above given ex-employees, it has been found that the above 71 ex-employees
were also working in similar pay scale of Rs. 352-7-387-8-435 in Grade-E
and after promotion they were also placed in similar pay scale of Rs. 387-7-
422-9-467-11-555 in Grade-CD as that of the 24 workmen who had raised
the industrial dispute and got the award from the Labour Court, Ranchi but
as the reference made by the then Govt. of Bihar for adjudication to Labour
Court, Ranchi was ab-initio illegal the detailed reasons for which are given
below therefore, the question that whether these 173 ex-employees
(including the 71 number of ex- employees whose promotion orders have
been traced) are similarly placed like that of the 24 ex-employees is not
tenable."
30. The main argument advanced on behalf of the respondents before this
Court is based upon the judgment passed by the Hon'ble Supreme Court
reported in (2006) 11 SCC 464 (supra) to submit that case of the persons
involved in the present case suffer from delay and laches and they did not
agitate their legal right at the relevant point of time and such non-action
amounts to acquiescence or waiver on their part and that these persons have
approached this Court only when a settlement was arrived at and benefit was
granted to 24 workmen involved in the Reference Case. On the other hand,
the learned counsel for the petitioner has relied upon the judgment passed by
the Hon'ble Supreme Court in the case reported in (2015) 1 SCC 347
(supra) and also judgment reported in 2022 SCC OnLine SC 641
(Rushibhai Jagdishbhai Pathak Vs. Bhavnagar Municipal Corporation).
31. Upon perusal of the aforesaid judgment reported in (2015) 1 SCC 347
(supra), this Court finds that the judgment passed in the case reported in
(2006) 11 SCC 464 (supra) has also been considered and the principle of
law in dealing with such a matter where one set of employees approached
the Court after a decision rendered in the case of another set of employes has
been laid down. Paragraph 21 and 22 of the said judgment is quoted as
under: -
"21. Holding that the respondents had also acquiesced in accepting the
retirements, the appeal of U.P. Jal Nigam was allowed with the following
reasons: (Jaswant Singh case, SCC p. 471, para 13)
"13. In view of the statement of law as summarised above, the
respondents are guilty since the respondents have acquiesced in accepting
the retirement and did not challenge the same in time. If they would have
been vigilant enough, they could have filed writ petitions as others did in the
matter. Therefore, whenever it appears that the claimants lost time or
whiled it away and did not rise to the occasion in time for filing the writ
petitions, then in such cases, the court should be very slow in granting the
relief to the incumbent. Secondly, it has also to be taken into consideration
the question of acquiescence or waiver on the part of the incumbent whether
other parties are going to be prejudiced if the relief is granted. In the
present case, if the respondents would have challenged their retirement
being violative of the provisions of the Act, perhaps the Nigam could have
taken appropriate steps to raise funds so as to meet the liability but by not
asserting their rights the respondents have allowed time to pass and after a
lapse of couple of years, they have filed writ petitions claiming the benefit
for two years. That will definitely require the Nigam to raise funds which is
going to have serious financial repercussions on the financial management
of the Nigam. Why should the court come to the rescue of such persons
when they themselves are guilty of waiver and acquiescence?
22. The legal principles which emerge from the reading of the aforesaid
judgments, cited both by the appellants as well as the respondents, can be
summed up as under.
22.1. The normal rule is that when a particular set of employees is
given relief by the court, all other identically situated persons need to
be treated alike by extending that benefit. Not doing so would amount to
discrimination and would be violative of Article 14 of the Constitution
of India. This principle needs to be applied in service matters more
emphatically as the service jurisprudence evolved by this Court from
time to time postulates that all similarly situated persons should be
treated similarly. Therefore, the normal rule would be that merely
because other similarly situated persons did not approach the Court
earlier, they are not to be treated differently.
22.2. However, this principle is subject to well-recognised exceptions in
the form of laches and delays as well as acquiescence. Those persons
who did not challenge the wrongful action in their cases and
acquiesced into the same and woke up after long delay only because of
the reason that their counterparts who had approached the court
earlier in time succeeded in their efforts, then such employees cannot
claim that the benefit of the judgment rendered in the case of similarly
situated persons be extended to them. They would be treated as fence-
sitters and laches and delays, and/or the acquiescence, would be a valid
ground to dismiss their claim.
22.3. However, this exception may not apply in those cases where the
judgment pronounced by the court was judgment in rem with intention
to give benefit to all similarly situated persons, whether they
approached the court or not. With such a pronouncement the obligation
is cast upon the authorities to itself extend the benefit thereof to all
similarly situated persons. Such a situation can occur when the subject-
matter of the decision touches upon the policy matters, like scheme of
regularisation and the like (see K.C. Sharma v. Union of India). On the
other hand, if the judgment of the court was in personam holding that
benefit of the said judgment shall accrue to the parties before the court
and such an intention is stated expressly in the judgment or it can be
impliedly found out from the tenor and language of the judgment, those
who want to get the benefit of the said judgment extended to them shall
have to satisfy that their petition does not suffer from either laches and
delays or acquiescence."
32. The judgement passed in the case of (2015) 1 SCC 347 (supra) has
been followed in the case reported in 2022 SCC OnLine SC 641
(Rushibhai Jagdishbhai Pathak Vs. Bhavnagar Municipal Corporation).
33. This case is to be decided on the touch stone of the principles laid
down by the Hon'ble Supreme Court in paragraph 22 of the aforesaid
judgment reported in (2015) 1 SCC 347 (supra) and while doing so it is
essential to see as to whether the declaration of right of similarly situated
persons who were party in the Reference Case was a declaration only in their
connection or it was a declaration which covered all similarly situated
persons.
34. This Court finds that the dispute which was referred to the Industrial
Tribunal was pursuant to Notification dated 20.07.1993 and the terms of
reference was under:
"Whether decrease in pay instead of increase in pay due to prometon in
'CD' Grade from E grade of the workmen is proper? If not what relief the
concerned workmen are entitled to?"
35. The learned Labour Court formulated two points for determination, as
under: -
"(i) Whether pay of the concerned workmen decrease instated of increase
due to promotion in C.D. grade from E grade is proper?
(ii) To what relief the concerned workmen are entitled?"
36. The learned Labour Court considered all the materials placed before it
and decided the aforesaid point No. 1 vide paragraph 15 and point No. 2 vide
paragraph 16, which are quoted as under: -
"15. From above facts and circumstances of the case it appears that there
was anomaly in pay structure of C.D. grade. The increment after promotion
to C.D. grade in its scale ought to have been Rs. 8 at initial label. This
anomaly in pay structure caused loss to the concerned workmen at the time
of fixation of the pay at promotion and even after revision of pay scales it
continued to be in decreasing tendency in fixation of pay subsequent there
to. Thus I find that basic pay of the concerned workmen were fixed at the
label which was less than it ought to have been. The case was recalling.
Thus this point is accordingly answered.
16. Point no.2 :- From above facts it is evident that pay of the concerned
workmen were fixed less than ought to have been. In this view of the matter
the concerned workman are entitled for arrears of pay and consequential
relief after re-fixation of pay on promotion considering the increment at first
instance Rs. 8 instead of 7 and subsequent benefit after revision of pay
scale. Hence this point is also answered."
37. Thus, the issue before the learned Labour Court was as to whether on
account of promotion from Grade-E to Grade-CD there could be a decrease
in pay instead of increase of pay and ultimately, the learned Labour Court
found that there was anomaly in pay structure of Grade-CD and that
increment promotion to Grade-CD in its scale ought to have been Rs. 8 at
initial level and found that the basic pay of the concerned workmen were
fixed at a level which was less than it ought to have been fixed.
Consequently, it was held that the concerned workmen were entitled for
arrears of pay and consequential relief after re-fixation of the pay on
promotion considering the increment at the first instance Rs. 8 instead of Rs.
7 and subsequent benefit after revision of pay scale.
38. This Court is of the considered view that the anomaly in the pay scale
which was decided by the learned Labour Court while deciding the first
point of determination cannot be said to be confined only to the workmen
who were party in the Reference Case. There can be no reason to hold that
such declaration regarding anomaly of pay scale was only with respect to the
workmen who were involved in the Reference Case and will have no bearing
on other employees who are similarly placed. In such circumstances, the
case will be governed by para 22.1 of the judgement reported in (2015) 1
SCC 347 (supra).
39. The fact remains that the order passed in the Reference Case was
subject matter of challenge before this Court in writ petition and also in the
Letters Patent Appeal wherein this Court refused to interfere with the Award
and the order passed in the Reference Case became final and binding on the
Management. However, at the stage of review petition filed after dismissal
of the Letters Patent Appeal, the Management and the concerned workmen
entered into some kind of settlement. The terms of settlement has been
brought on record by the writ petitioner wherein with regard to 24 workmen
who were involved in the Reference Case were paid lump sum amount
depending upon their date of suppression which was inclusive of all
consequential benefits arising out of Award dated 02.09.1997 pronounced on
17.04.1998 by the learned Labour Court in Reference Case No. 09 of 1993.
40. The respondent-Management in their affidavit after verification of all
the records available with them could find that out of 175 workmen involved
in the present case, the records for verification was available only in
connection with 71 workmen whose names have been enumerated in
paragraph 23 of the counter-affidavit which has been quoted above. The
workmen involved in this case have not placed on record any foundational
document in connection with each one of them except a chart giving the
name, designation etc. and it was only by the orders passed by this Court that
verification was undertaken and affidavit was filed by the respondents
stating that verification could be done only in case of 71 workmen. The
learned counsel for the petitioner also has fairly confined his relief to only
71 workmen during the course of arguments.
41. Accordingly, this Court is of the considered view that the relief can be
granted only in connection with aforesaid 71 workmen and relief no can be
granted with regard to those persons whose records could not be verified by
the respondents as the records are old and not traceable.
42. Having found that the anomaly in connection with pay scale would
not remain confined to only the workmen who raised the industrial dispute in
the Reference Case No. 09 of 1993 and while considering the principles of
law in such matter as decided in the aforesaid judgment reported in (2015) 1
SCC 347 (supra), this Court is of the considered view that the relief which
was extended to 24 workmen in the Award passed in the Reference Case
should be extended to 71 workmen as aforesaid and as such relief cannot be
denied on account of delay and laches in view of the fact that the order
passed in the Reference Case amounts to declaration in connection with the
pay scale which cannot remain confine to only the workmen who had raised
the industrial dispute.
43. Accordingly, this writ petition is allowed only to the extent it relates
to aforesaid 71 workmen whose records could be traced out by the
respondents and no relief can be granted to those whose claim could not be
verified on account of non-availability of old records. It is not in dispute that
earlier dispute related to Reference Case No. 09 of 1993 ended in settlement
dated 21.07.2008. Accordingly, the aforesaid 71 workmen would be entitled
to the same benefits as was made available to the workmen who were party
in the settlement dated 21.07.2008.
44. The respondents are directed to quantify the amount payable to 71
workmen and remit it to their respective bank account within a period of
three months from the date of communication of a copy of this order, failing
which the quantified amount will carry interest @ 6% from the date of filing
of this writ petition till payment.
45. This writ petition is accordingly partly allowed in the aforesaid terms.
46. Pending interlocutory application, if any, is closed.
(Anubha Rawat Choudhary, J.)
Mukul
