The State Of Madhya Pradesh Thr vs Jagdish Singh Rana
2022 Latest Caselaw 16712 MP

                            1

     IN THE HIGH COURT OF MADHYA PRADESH
                     AT GWALIOR
                          BEFORE
     HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
             ON THE 16th OF DECEMBER 2022

             WRIT PETITION No.4127 of 2016

       Between:-

1.     THE STATE OF MADHYA PRADESH,
       THROUGH THE EXECUTIVE ENGINEER,
       PUBLIC HEALTH ENGINEERING
       DEPARTMENT, MOTI JHEEL, GWALIOR
       (MADHYA PRADESH)
2.     SUPERINTENDEING ENGINEER, PUBLIC
       HEALTH ENGINEERING DEPARTMENT,
       PROJECT CIRCLE, THATIPUR, MORAR,
       GWALIOR (MADHYA PRADESH)
3.     CHIEF ENGINEER, PUBLIC HEALTH
       ENGINEERING DEPARTMENT, GWALIOR,
       ZONE GWALIOR (MADHYA PRADESH)
                                    .....PETITIONERS

       (BY SHRI SUSHANT TIWARI - GOVT. ADVOCATE)

       AND
       JAGDISH SINGH RANA, S/O NIHAL SINGH,
       R/O SUDAMA PURI, GHANS MANDI,
       MORAR, GWALIOR (MADHYA PRADESH)
                                       2

                                                     .....RESPONDENT

       (BY SHRI B.P. SINGH - ADVOCATE )

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       This petition coming on for admission this day, Hon'ble
Shri Justice Milind Ramesh Phadke passed the following:

                               ORDER

1. The present petition under Article 226/227 of the Constitution of India had been preferred by the State agitating the order Annexure P/1 dated 06/10/2015 passed by Industrial Court, confirming the order dated 30/06/2015 passed by the Labour Court, whereby it was directed to the Petitioner Department by the Labour Court to pay the difference in salary of a Guage reader from 27/07/1993 i.e. the date of his permanent classification to the extent of Rs.6,71,425/-, within a period of 90 days from the date of the order. Further, in pursuance to the said order an R.R.C. was also issued vide order dated 16/03/2016 vide Annexure P/3. Aggrieved by the said order the present petition had been filed.

2. Brief facts of the case are that the Respondent herein was working as a Guage reader on a regular muster roll on daily wage basis since 1990. Since even after working for more than 5 years the Respondent was not given the status of "Sthaikarmi" he moved before the Labour Court u/s 31(3), 61 & 62 M.P. Industrial Relations Act. Vide order dated 19/11/1999 learned

Labour Court allowed the application and while according the status of "Sthaikarmi" on the post of Guage reader directed the department to pay him the difference of salary w.e.f. 27/07/1993, the date of his permanent classification, within a period of 90 days.

3. Against the said order the department had preferred an appeal before the Industrial Court, Gwalior, which was dismissed on 18/11/2004. The said order of Industrial Court was challenged before the High Court in W.P. No.1847/2008 which also got dismissed vide order dated 30/01/2009. Even after that the department since did not deposit the amount of difference of salary, the Respondent moved the Labour Court once again u/s 108 of M.P. Industrial Relations Act, 1960. The said application came to be allowed vide order dated 30/06/2015 and after adjudication the department was directed to pay the amount of Rs.6,71,425/- within 90 days and in case the amount is not deposited with the aforesaid period, R.R.C was directed to be issued.

4. The order dated 30/06/2015 (Annexure P/2) was challenged by the department before the Industrial Court u/s 67 of the M.P. Industrial Relations Act, 1960, which was dismissed vide impugned order dated 06/10/2015 (Annxeure P/1). Since even after dismissal of their application u/s 67 of M.P.I.R. Act the difference of salary was not paid, an application for issuance

of R.R.C. was moved by the Respondent. Vide order dated 16/03/2016 the application was allowed and R.R.C. for Rs.6, 71, 425/- was directed to be issued. Against the said order the present petition had been filed and the orders dated 330/06/2015 and 06/10/2015 were also challenged.

5. Learned counsel for the State contended that the Courts below erred in passing the impugned orders as the computation of the wages had been done treating the salary at par with the regular employee, when the Respondent was not accorded the permanent status and she was only entitled for minimum of wages appended with the post of Guage Reader. It was further submitted that in the light of the decision of the Hon'ble Supreme Court in the matter of Ram Naresh Rawat Vs. Ashwini Ray reported in (2017) 3 SCC 436, the calculation of the difference of salary had been made and the amount accordingly had been paid, as per the directions of this Court, thus, it was prayed that the impugned orders dated 30/06/2015 passed by Labour Court, order dated 06/10/2015 and order dated 16/03/2016 again passed by Labour Court issuing R.R.C. deserves to be set aside and accordingly be set aside.

6. Per Contra, learned counsel for the Respondent stated that since the rights of the Petitioner had been determined in a duly constituted proceeding by the Labour Court vide order dated 19/11/1999, which had attained finality, as the appeal against

the said order as well as the Writ Petition thereafter preferred by the Department/Petitioner had been dismissed, cannot be challenged again. Reliance was paid in the matter of Raj Kumar Bhatia Vs. Subhash Chandra Bhatia reported in (2018) 2 SCC 87 for the proposition that in the exercise of jurisdiction under Article 227 of the Constitution of India, the High Court does not sit as an Appellate Court or Tribunal and therefore, cannot review and reassess the evidence upon which the inferior court or Tribunal passed the order assailed before it.

7. Heard the parties at length and perused the record.

8. The contention of the Counsel for the Petitioner from his entitlement had basically narrowed down to the fact of payment of the difference of salary amount calculated as per Ram Naresh Rawat's case (supra), thus, the question of entitlement for receiving the salary difference is no more an issue. The issue now remains as to whether Ram Naresh Rawat's case (supra) will have retrospective effect and difference of salary qua the Petitioner would be calculated as per the directions contained therein?

9. For that it is necessary to first understand the concept of "prospective overruling". It is well established principle of law that the principle of prospective overruling of judgment, does not apply except where, it is specifically mentioned. The rule is vividly discussed in the matter of State of M.P. Vs. Radha

decided in Writ Petition No.70/2017 (The Chief Engineer, Public Works Department and another Vs. Radha Bai) by this Court and after a detailed discussion it had been concluded that the principle of prospective overruling would not apply in respect of the judgment passed by the Hon'ble Supreme Court unless and until it is expressly so mentioned in the judgment.

10. Further it had been held that where the rights of a party has been considered and declared, then the said proceedings cannot be reopened on the ground that in the later Judgment, a contrary decision had been taken to the judgment on the basis of which, the rights were declared. The Hon'ble Supreme Court in the case of Union of India Vs. Madras Telephone SC & ST Social Welfare Assn. reported in (2006) 8 SCC 662 has held as under :

"21. Having regard to the above observations and clarification we have no doubt that such of the applicants whose claim to seniority and consequent promotion on the basis of the principles laid down in the Allahabad High Court's judgment in Parmanand Lal case have been upheld or recognised by the Court or the Tribunal by judgment and order which have attained finality will not be adversely affected by the contrary view now taken in the judgment in Madras Telephones.

Since the rights of such applicants were determined in a duly constituted

proceeding, which determination has attained finality, a subsequent judgment of a court or tribunal taking a contrary view will not adversely affect the applicants in whose cases the orders have attained finality. We order accordingly."

11. Thus, it is clear that the judgment passed by the Hon'ble Supreme Court in the case of Ram Naresh Rawat (supra) would not apply in the present case as the rights of the Petitioner was already crystallized by the order passed by the Labour Court on 19/11/1999 and it had already attained finality and now it is not open for the petitioners to reopen a case which has already been finalized. Accordingly, the respondent is entitled for the difference of salary as directed by the Labour Court.

12. Even in the light of the judgment passed by the Hon'ble Supreme Court in Raj Kumar Bhatia Raj Vs. Subhash Chandra Bhatia reported in (2018) 2 SCC 87 it is not open for this Court to reconsider or re-evaluate the order dated 19/11/1999 passed by the Labour Court, which had attained finality.

13. Since the Petitioners even after a long period had only deposited a sum of Rs.4,57,77/- which is a part payment, the balance amount for which R.R.C had been issued by the Labour Court is directed to be paid within 10 days with an interest of

6% from the date it fell due till its payment.

14. The Petition therefore, miserably fails being sans merit and is hereby dismissed.

E-copy/Certified copy as per rules/directions.

(Milind Ramesh Phadke) Judge Pawar*

ASHISH PAWAR 2022.12.22 15:48:03 +05'30'