Balmik Prasad Tiwari vs The State Of Madhya Pradesh
2022 Latest Caselaw 1289 MP

                                1
                                                WP. No.11373/2016,
                                                 W.P.No.11462/2016




        HIGH COURT OF MADHYA PRADESH,
            PRINCIPAL SEAT AT JABALPUR


Case No. and Parties              W.P. No.11373/2016
name                           Balmik Prasad Tiwari & Anr.
                                            vs.
                            The State of Madhya Pradesh & Ors.

                                  W.P. No.11462/2016
                                     Dayaram Pandey.
                                            vs.
                            The State of Madhya Pradesh & Ors.

Date of Order              28/01/2022
Bench Constituted          Single Bench :
                           Justice S.A.Dharmadhikari
Order passed by            Justice S.A.Dharmadhikari
Whether approved           Yes/No.
for reporting
Name of counsels for Shri Ajeet Kumar Singh for the
parties              petitioners in W.P. No.11373/2016
                     and W.P. No.11462/2016.

                           Shri Anuj Shrivastva, Panel Laywer
                           for the respondents in W.P.
                           No.11373/2016 and W.P.
                           No.11462/2016.

Law laid down
Significant
paragraph numbers

                            ORDER

(28.01.2022)

This order shall govern the disposal of connected writ petition as the similar issue involved in both the writ petitions, therefore, they are heard analogously and decided by this common order. For the sake of convenience, facts are being taken from W.P.No.11373/2016.

2. By way of this petition, under Article 226 of the Constitution of India, the petitioners are seeking following reliefs:-

WP. No.11373/2016, W.P.No.11462/2016

"(i) It is, therefore, prayed that this Hon'ble Court may kindly be pleased to quash the impugned order dated 28-06-16 (Annexure P-1) so far as it relates to the pe- titioners and the restore the order dated 29-06-1999.

(ii) This Hon'ble Court be further pleased to pass any such other orders as this Hon'ble Court may deem fit under the circumstances of the case."

3. Brief facts leading to filing of these petitions are that the petitioner No.1 was initially appointed on the post of Supervisor (Daily Wager) on 01.06.1979, the petitioner No.2 was appointed on the post of Supervisor (Daily Wager) on 03.03.1979 and petitioner No.3 was appointed on the post of Supervisor (Daily Wager) on 01.06.1979. All the three petitioners have filed the dispute before the Labour Court, Rewa seeking regularization, which was allowed by the Labour Court vide order dated 08.06.1998.

4. Being aggrieved by the said order passed by the Labour Court, the respondents preferred an appeal before the Industrial Court, which was dismissed vide order dated 23.02.1999. The respondents ultimately complied with the orders passed by the Labour Court as well as the Industrial Court and granted benefit of regularization to the petitioners vide order dated 29.06.1999 and also extended the benefit of seniority vide order dated 15.10.1999. Thereafter, the petitioners enjoyed the said benefit. The petitioner No.1 stood superannuated on 30.12.2014, petitioner No.2 also retired from service on 31.03.2016 whereas the petitioner No.3 is still working. The respondents vide impugned order dated 28.06.2016 (Annexure P/1) had withdrawn the financial benefits, which were granted to the petitioners on the basis of order passed by the Labour Court on 08.06.1998 and recovery has been directed to be made from the pension of the petitioners.

5. Learned counsel for the petitioners submitted that the impugned order passed after retirement of petitioner No.1 and 2 without assigning any show cause notice and without granting

WP. No.11373/2016, W.P.No.11462/2016

any opportunity of hearing, though, the petitioners are entitled for the benefit in view of the order passed by the Labour Court as well as the Industrial Court, which have attained finality. Reasons assigned in the impugned order dated 28.06.2016 is that in light of the order dated 13.06.2016 passed by the Chief Engineer, Bhopal relying on the judgment dated 27.08.2014 delivered by the Apex Court in SLP No.2057/2058/2014 (Shri Dileep Patel), the petitioners would be only entitled for the minimum of the pay scale instead of the regular pay scale granted to the post of Supervisor, accordingly, directed recovery from the petitioners.

6. Learned counsel for the petitioners contended that in light of the Apex Court's judgment passed in the case of State of Punjab and others vs. Rafiq Masih and others in Civil Appeal No.11527/2014, the Apex Court has held that recovery from the retired employees belonging to Class-III and Class-IV is not permissible.

7. Learned counsel for the petitioners further contended that the order passed in the case of Dileep Patel (supra) is not applicable to the facts and circumstances of the case, since the petitioners were not party in that petition before the Apex Court. The order passed by the Labour Court and the Industrial Court had attained finality, therefore, there was no question of making recovery as well as putting the petitioners on the minimum pay scale. On these grounds, the order dated 28.06.2016 deserves to be set aside and the order dated 26.06.1999 deserves to be restored to its original position.

8. Per contra, the prayer made by the petitioner is vehemently opposed by the learned counsel for the respondents and submitted that petitions are absolutely misconceived having no substance, therefore, the same are liable to be dismissed. It is further contented that the petitioners have been regularized by virtue of order passed by the Labour Court and accordingly they have been granted the benefit of regular pay scale. However, the

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Apex Court in SLP No.2057/2058/2014 vide order dated 27.08.2014 has laid down that annual increment be not granted to the employees who are classified as permanent employees. Accordingly, order of granting regular pay scale to the petitioners along with annual increment has been modified. The order, therefore, could not have suitability, legality and does not call for interference in pursuance to the Apex Court's judgment.

9. Heard the learned counsel for the parties.

10. It is not in dispute that the petitioners have been regularized on the basis of the orders passed by the Labour Court and Industrial Court as admitted by the respondents in their reply. The petitioners were not party before the Apex Court. The case of the petitioner had attained finality since the respondents did not challenge the order passed by the Labour Court and Industrial Court any further, meaning thereby, the same has attained finality. In such circumstances, the order dated 28.06.2016 could not have been passed against the petitioners.

11. Accordingly, the order dated 28.06.2016 is hereby set aside. The order dated 26.06.1999 extending the benefits to the petitioners is hereby restored. Any recovery made in pursuance to order dated 28.06.2016 from the petitioners shall be refunded to the petitioners within a period of three months from the date of receipt of certified copy of the order. Further the respondents are directed to extend the benefit of order dated 26.06.1999 forthwith.

12. Accordingly, the writ petitions stand allowed.

13. No order as to costs.

(S.A.DHARMADHIKARI) JUDGE

vinay* VINAY KUMAR BURMAN 2022.01.31 17:54:08 +05'30'