Jharkhand High Court
The Food Corporation Of India Through ... vs The Union Of India on 19 November, 2024
Author: Deepak Roshan
Bench: Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 252 of 2024
The Food Corporation of India through its District Manager (Now Area
Manager), Janardan Paswan, aged about 51 years, Son of Suryavansh
Paswan, resident of Mohaniya, Barki, Kharari, Takia, P.O. & P.S.
Takia, District Rohtas, Bihar, PIN-821113, working at Divisional
Office, 72-A.P. Colony, Gaya, P.O. & P.S. Gaya, District Gaya, Bihar.
... Petitioner/Appellant
-Versus-
1. The Union of India, through Ministry of Labour, New Delhi, P.O.,
P.S. & District New Delhi.
2. Vijayendra Kumar, Ex-A.G.-II, (Depot), Food Corporation of India,
District Officer, Gaya 72, A.P. Colony, Gaya P.O. & P.S. Gaya
(Bihar) and resident of House No.04, Road No.05, Shri Krishna
Nagar, P.O. & P.S. Patna District Patna (Bihar).
3. The Central Government Labour Court No.II, PO, PS, Dist-
Dhanbad.
.... Respondents/Respondents
4. General Manager (Region), (formerly Senior Regional Manager),
Food Corporation of India, Arunachal Building, Exhibition Road,
Patna, P.O., P.S. & District Patna, Bihar.
5. Zonal Manager (F), Food Corporation of India, 10/A, Middleton
Row, P.O. & P.S. Park Street, Calcutta-71, West Bengal.
.... Petitioners/Performa Respondents
---------
CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE DEEPAK ROSHAN
---------
For the Appellant: Mr. Nipun Bakshi, Advocate
Mr. Mrinal Singh, Advocate
For the Respondents: Ms. Leena Mukherjee, C.G.C.
---------
Reserved on: 24.10.2024
Pronounced on: 19/11/2024
Per M.S. Ramachandra Rao, C.J.
1) This Letters Patent Appeal is preferred against the judgment
dated 12.12.2023 in C.W.J.C. No.2382 of 1998 passed by the learned
Single Judge.
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2) The appellant had filed the said Writ Petition invoking the
jurisdiction of this Court under Article 226 of the Constitution of India
seeking a Writ of Certiorari to quash the order dt. 22.08.1997 passed by
Central Government Labour Court No.-II, Dhanbad (for short 'Labour
Court') in L.C. Application No.15 of 1996 filed under Section 33 C(2)
of the Industrial Disputes Act, 1947.
The Background facts
3) The 2nd respondent was a protected workman being a Secretary
(Welfare) of National Committee of the FCI Executive Staff Union. He
was placed under suspension since 23.03.1982.
The order dated 31.8.1990 of the Industrial Tribunal
4) A reference was made on 11.1.1990 at his instance under Section
10 of the Industrial Disputes Act, 1947 to the Central Government
Industrial Tribunal of the question: :
"whether the action of the Management of FCI placing
him under continuous suspension w.e.f. 23.3.1982 till the said
date and denying full wages and other benefits even after
resumption of his duty vide an order dt. 12.8.1982 and
conducting enquiry on dropped charges was legal and
justified?"
5) The said Reference was numbered as Reference Case No.90 of
1990 by the said Tribunal.
6) The Tribunal passed an award on 31.08.1990 in favour of the 2nd
Respondent holding that the Management of the Food Corporation of
India, Patna was not justified in placing him under continuous
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suspension with effect from 23.03.1982 and denying to him full wages
and other benefits even after resumption of his duties.
The Tribunal held that the action of the Management of the
Food Corporation of India in conducting enquiry into the charges
against him though legal and justified, but it should not treat him as
under suspension with effect from 23.03.1982 onwards, that the it
should allow him to join duties and also pay him full wages and other
benefits with effect from 23.03.1982, after revising his pay scale, from
the date from which other workmen of the Corporation have been given
their arrears of wages after revision of the pay scales.
It further directed the Management to allow the 2nd
Respondent to join his duties within one month from the date of
publication of the Award and the arrears of pay as indicated by it
should be paid to him within two months from the date of publication
of the Award.
Judgment dt.12.1.1994 in C.W.J.C. No.1519 of 1991
7) This Award of the Central Government Industrial Tribunal was
challenged in C.W.J.C. No.1519 of 1991 by the Management of Food
Corporation of India in the High Court of Patna.
8) The said Writ petition was dismissed by the Division Bench of
the said High Court on 12.01.1994. Costs of Rs.5000/- were also
imposed on the Management.
In the said judgment, it was also recorded that 2nd Respondent
was allowed to join duty on 16.08.1982 by the then Senior Regional
Manager, Patna pursuant to an order dated 10.08.1982 passed by the
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District Judge, Patna in Misc. Appeal No.57 of 1982 and the suspension
order dated 23.03.1982 stood revoked by Management, as he was
allowed to work since 16.08.1982.
It was noted that a 2nd suspension order dated 14.07.1982 was
also issued but the Tribunal had held that it was inoperative from the
date of its issue and that the 2nd Respondent was to be paid full pay and
allowances from the date of suspension till the date of joining of his
duties. The High Court also held that Tribunal rightly held that the
Management was not justified in denying revised full wages and other
benefits to the 2nd Respondent even after revocation of the suspension
order and resumption of his duties.
It also held that there is no error of law involved in the case and
there was also no error of fact in the order passed by the Tribunal
either.
It rejected all the contentions raised by the Management and
directed that the order of the Tribunal should be carried out by
31.01.1994.
9) Thereafter, vide an Office Order Part I No.:1/35/96 dated
14.08.1996 (Annexure 2 in the writ petition), the 2nd Respondent was
promoted to the post of Assistant Grade II (Depot) from the post of
Assistant Grade III (Depot) along with two other persons. His seniority
and pay were restored along with his juniors promoted w.e.f.
28.12.1994 but without arrears of pay. This was reiterated in another
proceeding dated 07.09.1996 also.
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The application filed by 2nd respondent under Section 33C(2) of the Act
10) The 2nd Respondent filed an application No.15 of 1996 under
Section 33C(2) of the Industrial Disputes Act, 1947 contending that he
is a 'protected workman' and Secretary (Welfare) of National
Committee of the FCI Executive Staff Union; that there was a direction
by the Central Government Industrial Tribunal in the award dated
31.08.1990 that he should be given all benefits, which was also
confirmed on 12.01.1994 in C.W.J.C. No.1519 of 1991 by the Patna
High Court; that the basis of promotion is seniority, and juniors of the
2nd Respondent have been promoted on 28.12.1994; and as such, he was
also entitled to get promotion from that very date with wages and other
benefits.
The 2nd Respondent alleged that the Management had issued a
promotion order dated 14.08.1996 with seniority and fixation of pay
with effect from 28.12.1994, i.e., from the date of his promotion; that
the said order of promotion was not released by the Management in
time as it was biased against him as he was representing in various
cases in the Tribunal and before the Additional Labour Court against
the Management; and therefore he is entitled to difference of pay and
allowance from 28.12.1994 to 14.08.1996 from the Management.
11) The Management filed a reply disputing the entitlement of the 2nd
Respondent for the said amount.
It pleaded that that the 2nd Respondent had been convicted by the
Special Judge, CBI, Patna in CBI Case No.10/82 and 11/82; that the 2nd
Respondent had filed two appeals before the High Court of Patna and
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so the application under Section 33C(2) of the Act is not maintainable.
It also contended that by mistake, an ad-hoc order of promotion was
granted to the 2nd Respondent to the post of Assistant Grade II (Depot),
but the said order was subject to vigilance clearance as court case was
pending against him. It was also contended that his promotion was later
cancelled on 08.11.1996.
12) After considering the oral and documentary evidence on record,
the Labour Court, by an order dated 22.08.1997 held that the
Disciplinary Authority of the 2nd Respondent had issued a letter
dated 31.01.1994 that the suspension of the 2nd Respondent was
revoked with immediate effect in compliance with the High Court's
order in C.W.J.C. No. 1519 of 1991 and the 2nd Respondent was
directed to report to the District Manager, FCI, Gaya with immediate
effect and he would be paid full back wages as per Award from
23.03.1982; thereafter promotion was granted to the 2nd Respondent on
14.08.1996 with effect from 28.12.1994; as per the Management
Witnesses also, the suspension order of the 2nd Respondent had been
revoked and he was exonerated from all charges of misconduct and his
case was recommended to Zonal Manager, East, Kolkata for
regularization of his promotion in compliance with the order of the
High Court of Patna passed in C.W.J.C. No.1519 of 1991.
It also noted that the Disciplinary Authority, i.e., S.R.M., Patna
mentioned that there was no vigilance case pending against the 2nd
Respondent nor any such case is contemplated to be started against him.
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It therefore rejected the contention of the Management that
vigilance clearance was not taken from the concerned authority prior to
his promotion.
As regards the cancellation of the promotion allegedly made, it
referred to the statement of MW.2 who had stated in his evidence that
2nd Respondent's case for promotion was considered by the ZPC
consisting of a number of officers and any modification/change could
have been made only by the said ZPC and not by the Dy. Zonal
Manager (East) individually.
It held that admittedly there was no provision of cancellation of
promotion in the FCI Staff Regulations and therefore, the cancellation
order (Exht.M-2) made by the Dy. Zonal Manager (East) is contrary to
the rules which governs the service conditions of the 2nd Respondent
and also beyond his jurisdiction.
It held that the Management failed to show that any proceeding
was started against the 2nd Respondent after giving him promotion vide
Exht.M-1 issued by the S.R.M., Patna and so the order of cancellation
(Exht.M-2) cannot be legal and lawful as the authority issuing it had no
jurisdiction to do so.
Therefore, it concluded that the promotion given to the 2nd
Respondent was from a retrospective date from which his juniors were
promoted and so, the 2nd Respondent would be entitled for all such back
wages and allowances from the date from which promotion was given
to him. It placed reliance on the evidences of Management Witnesses
(MW.1 and MW.2) and concluded that the delay made in the promotion
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order of the 2nd Respondent was not due to any action of the said
respondent himself, rather it was delayed by the Management; that he
was allowed promotion with retrospective date, i.e., 28.12.1994 and the
2nd Respondent had claimed arrears only from that date till 06.09.1996,
which was illegally withheld by the Management.
It held that conviction of the 2nd Respondent by the criminal
court was already considered by the Central Government Industrial
Tribunal in its award and also in C.W.J.C. No. 1519 of 1991 by the
High Court and the said issue cannot be re-agitated.
It also held that the Management could not produce any legal
authority to show that it can deny arrears of wages to the 2nd
Respondent when his promotion was given in compliance of a direction
given by the High Court in C.W.J.C. No.1519 of 1991 and the Award
of the Central Government Industrial Tribunal by which he was allowed
all benefits from 23.03.1982.
It thus found no merit in the stand taken by the Management for
denying arrears of wages to the 2nd Respondent and allowed the L.C.
Application No.15 of 1996 filed by the 2nd Respondent under Section
33C(2) of the Act and directed the Management to make payment of
arrears of wages as per the calculation given by the 2nd Respondent in
two months.
The C.W.J.C. No.2382 of 1998 and judgment therein
13) Challenging the same, the Management had filed C.W.J.C.
No.2382 of 1998(R).
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14) The learned Single Judge dismissed the writ petition on the
ground that the right of the 2nd Respondent to claim the difference of
wages from 28.12.1994 to 06.09.1996 was rightly accepted by the
Labour Court in the light of the order passed in C.W.J.C. No. 1519 of
1991. He rejected the plea of the appellant that there was no
adjudication in that regard previously and so the 2nd Respondent could
not have filed an application under Section 33C(2) of the Act.
The instant LPA
15) Assailing the same, this Letters Patent Appeal has been filed.
16) The principal contention of the counsel for the appellant is that
the judgment of the Division Bench of Patna High Court in C.W.J.C.
No.1519 of 1991 had been pronounced on 12.01.1994 and thereafter the
promotion had been given on 07.09.1996 to the 2nd Respondent from
Assistant Grade III to Assistant Grade II; and therefore the issue of
difference in wages between those two dates cannot be said to have
been adjudicated in the said Writ petition by the High Court. According
to him, the said issue is a fresh issue which again requires adjudication
by a competent forum, and, therefore, the application filed by the 2nd
Respondent under Section 33C(2) of the Act ought to have been
dismissed as not maintainable.
17) At first blush, the said argument, no doubt, looks attractive, but it
cannot be accepted since in the Award given by the Central
Government Industrial Tribunal, Dhanbad on 31.08.1990 (regarding the
suspension of the 2nd Respondent with effect from 23.03.1982), the 2nd
Respondent had succeeded, and the said Tribunal had held that his
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continuous suspension with effect from 23.03.1982 and denial of full
wages and other benefits even after resumption of his duties, was bad in
law.
18) The Tribunal had directed the Management not to treat him under
suspension with effect from 23.03.1982 onwards; that it should allow
him to join his duties and should also pay him his full wages and "other
benefits with effect from 23.03.1982" after revising his pay scale from
the date from which other workmen of FCI have been given arrears of
wages after revision of pay scales.
19) Admittedly, this award was affirmed in C.W.J.C. No. 1519 of
1991 on 12.01.1994 whereby the Writ petition filed by the Management
was dismissed with costs and a direction was given in para-21 thereof
that the order of Tribunal must be carried out by 31.01.1994 including
all payments and costs as directed by the High Court.
20) Since the Tribunal in its award dated 31.08.1990 directed the
Management to give all other benefits also, it would certainly include
the benefit of promotion to the 2nd Respondent which was admittedly
given on 14.08.1996/07.09.1996. His seniority was also restored along
with his juniors who were promoted on 28.12.1994 but without any
arrears.
21) The denial of arrears of pay and allowances for the intervening
period between 28.12.1994 and 07.09.1996 is the issue.
22) As rightly held by the Labour Court in its judgment dated
22.08.1997, there were no valid grounds to deny him the arrears of pay
and allowances for this period in the light of the letter of the Assistant
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Manager for SRM, Patna dated 23.05.1996 addressed to the Dy. Zonal
Manager (East), Food Corporation of India that no vigilance proceeding
was either pending or contemplated against him and his promotion
order may be released.
23) Also the Labour Court had relied on the photocopy of the
confidential order of SRM, Patna dated 30.07.1993 where it was
specifically mentioned that after considering all the aspects of the case
of the disciplinary proceeding of the 2nd Respondent, he had come to
the conclusion that the finding of the Enquiry Officer was to be
accepted and respondent No.2 had to be exonerated from the charges
levelled against him in the Memorandum dated 09.08.1984 on account
of misconduct.
24) The Labour Court had also relied upon the order of the High
Court in C.W.J.C. No.1519 of 1991 for payment of arrears of wages
from the date of his promotion i.e. 28.12.1994.
25) The evidence of the Management Witnesses also indicates that
once the suspension order was revoked and the 2nd Respondent was
exonerated of all charges of misconduct, and no vigilance case was
pending against him nor was any such case contemplated, the 2nd
Respondent was entitled to relief.
26) We agree with the reasoning of the learned Single Judge that the
2nd Respondent was only claiming the relief which flowed from the
Award dt. 31.08.1990 of the Central Government Industrial Tribunal,
Dhanbad, which was confirmed in C.W.J.C. No.1519 of 1991 on
12.01.1994; and even the promotion was granted to the 2nd Respondent
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only because of the same, though it was granted on 14.08.1996/
07.09.1996. Having restored his seniority from 28.12.1994 at par with
his juniors who were promoted on that date, denial by the appellants of
arrears of pay and allowances for the intervening period was without
any just cause.
27) Therefore, we find no merit in the instant appeal which is,
accordingly, dismissed. No costs.
(M.S. Ramachandra Rao, C.J.)
(Deepak Roshan, J.)
N.A.F.R.
Manoj/-
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