High Court · 1977

Order

This writ petition has been preferred by the respondents in MP No. 28/96 on the file of the Additional Industrial Tribunal-cum-Additional Labour Court, Hyderabad calling in question the correctness and validity of the orders dated 19.4.2002 passed therein. MP No. 28 of 1996 has been moved by the 1st respondent herein under Section 33.C(2) of the Industrial Disputes Act seeking directions for computation of money and to direct the respondents therein to pay the same, in terms of the orders passed by the competent authority under Section 41 of the Andhra Pradesh Shops and Establishments Act, 1966, which ultimately culminated in the order passed by this court in WP No. 3738 and 3721 of 1984 on 24.6.1986. The case of the 1st respondent is that he was recruited as an Accounts Superintendent in the Andhra Pradesh State Construction Corporation Limited, a Government of Andhra Pradesh undertaking with its headquarters at Hyderabad. He was posted to Godavarikhani where he joined on 14.10.1974. He was placed under suspension from service on

19.5.1975, pending enquiry into certain serious allegations levelled against him. By an order passed on 12.9.1975, he was ultimately removed from service. This order of removal came to be challenged by him before the competent authority under Section 41 of the Andhra Pradesh Shops and Establishments Act, 1966. During the pendency of the said proceedings, taking a compassionate view and on humanitarian grounds, the 1st respondent herein came to be appointed as an Executive Assistant in the same corporation and he was posted to work as such at Metpally. He joined at Metpally on 18.8.1977. The post of Executive Assistant is inferior in status to the post of Accounts Superintendent. The competent authority under Section 41 of the A.P.Shops and Establishments Act, who adjudicated the validity of the orders of removal dated 12.9.1975 passed final orders setting aside the order of removal. The 1st respondent was ordered to be reinstated and he was also ordered to be paid 50% of the wages for the period from 12.9.1975 to 17.8.1977. Wages for the post 17th August 1977 period have been denied as the 1st respondent came to be employed gainfully with the same corporation from 18.8.1977 onwards. To the extent of denying 50% of the wages for the aforementioned period and denial of wages for the period beyond 18.8.1977, the 1st respondent – workman carried the matter in appeal and filed SA No. 26 of 1984 before the Labour Court. The Labour Court allowed the claim of the 1st respondent for payment of differential wages as Accounts Superintendent from 18.8.1977 onwards. He was still not satisfied with the award and therefore filed WP No. 3721 of 1984 questioning the award. The corporation also preferred WP No. 3738 of 1984 aggrieved by the award of the Labour Court. Both

these writ petitions came to be decided by this court on 24.6.1986 affirming the award. Hence, claiming a total sum of Rs.1, 80,000/- on various counts as admissible and payable to him pursuant to the orders passed by the Labour Court whose award has been confirmed by the judgment rendered by this court on 24.6.1986, the present MP No. 28 of 1996 has been moved by the 1st respondent. It will be appropriate to notice the various sums, which he has claimed in the annexure statement of the above MP: the period (1) The differential amount between the subsistence allowance and wages as Accounts Superintendent for the period from 19.5.1975 to 11.9.1975, in a sum of Rs.1600/-. (2) Full pay and allowances at rates admissible at Hyderabad for the period from 12.9.1975 to 19.8.1977 as Accounts Superintendent and 20.12.1975 till 19.8.1977 as Asst. Accounts Officer, Rs.16, 400/-. (3) Since he has been going around the Headquarters of the corporation for his reinstatement, and subsequently he was posted to Metpally on 18.8.1977, he is entitled to be paid travelling allowance at Rs.2500/- for trips undertaken from Godavarikhani. (4) entitled to be paid a sum of Rs.1500/- towards medical allowances. (5) encashment value for 24 days of earned leave and 28 days of half pay leave, for the period he was out of service – Rs.18,000/- (6) differential amount between the post of Accounts Superintendent and the promotional post as Assistant Controller of Accounts for the period from 16.5.1982 to 15.5.1992 - Rs.48, 000/-. (7) Special grade promotion scale from 16.5.1992 to 1996 when MP No. 28 of 1996 is moved which comes to Rs.36, 000/-. (8) Encashment of 74 days of earned leave, which is liable to be sanctioned, for, he was going around various courts, which comes to Rs.32, 000/-. (9) Equivalent value of the casual leaves for a period of 60 days which comes to Rs.24, 000/-. The said MP has been resisted by the present petitioners who filed a detailed counter before the Labour Court. It is pointed out that such a petition is not maintainable, for, by then the 1st respondent herein came to be absorbed in the service of the Government of Andhra Pradesh in its Irrigation Department, upon winding up of the Andhra Pradesh State Construction Corporation Limited and therefore he became a civil servant and consequently ceased to be regulated by the provisions of the Andhra Pradesh Shops and Establishments Act. This apart it was also further asserted that the various sums of money which have become due and payable to the 1st respondent by virtue of various orders passed by the Labour Court as confirmed by this court in WP Nos. 3721 of 1984 have already been calculated and paid to him and any other claim beyond that is incapable of being awarded in an application moved under Section 33.C(2) of the Industrial Disputes Act. It is also pointed out that initially the competent authority under Section 41 of the Andhra Pradesh Shops and Establishments Act, 1966 awarded him 50% of the wages from the date of his removal i.e., 12.9.1975 up to 17.8.1977 and did not award any wages beyond 18.8.1977 as the 1st respondent was appointed as an Executive Assistant in the service of the Andhra Pradesh State Construction Corporation at Metpally

18.8.1977. The wages calculated at 50% for the period from 12.9.1975 to

17.8.1977, as per the award of the competent authority, were already paid to the 1st respondent. Therefore, any further claim for wages for the said period is impermissible. Further, he has not been transferred from Hyderabad to Metpally for the 1st respondent to claim as a matter of right, any travelling allowance. On humanitarian grounds, he has been reengaged as an Executive Assistant and posted to Metpally where he joined on 18.8.1977 and hence the question of paying him travelling allowance treating him to have been transferred from Hyderabad to Metpally does not arise. Further, wages last drawn by him while working at Godavarikhani have been taken duly into consideration and account and the 1st respondent cannot calculate the same at the rates admissible at Hyderabad, merely because the headquarter of the corporation is at Hyderabad or the precious plea that the order of removal has emanated from Hyderabad. On merits, each of the claims has been contested as merit less. The respondent has examined himself and also marked four exhibits. On behalf of the petitioners, eight documents have been got marked though none has been examined on their behalf. Ex.W1 is the judgment rendered by the Industrial Tribunal-cum-Labour Court in Second Appeal No. 25 and 26 of 1984 on 17.2.1986. The order passed by this court in WP Nos. 3721/86, 3837 and 3867/86 on 24.6.1997 is marked as Ex.W2. Order in WP No. 6081/83 of the Supreme Court of India has been marked as Ex.W3. A circular issued on 31.5.1996 by the corporation has been marked as Ex.W4. The appointment order dated 23.8.1974 of the 1st respondent has been got marked as Ex.M1. His pay fixation proceedings dated

29.12.1974 and the consequential order dated 30.12.1974 have been got marked as Exs.M2 and M3. A statement containing the details of subsistence allowance paid to the petitioner from 19.5.1979 to 11.9.1975 has been marked as Ex.M4 and the letter addressed by the petitioner herein to the Income Tax Department on 21.11.1987 containing the details of payment of arrears and tax deducted and remitted to Income Tax Department thereon is marked as Ex.M5. The letter addressed by the respondent herein on 14.1.1988 is marked as Ex.M6. The reply furnished by the petitioners herein to the respondent dated 18.2.1988 has been marked as Ex.M7. The letter addressed by the 1st respondent herein on

17.4.1976 is marked as Ex. M8. The Industrial Tribunal cum Labour Court has considered the entire matter and returned the findings on various heads of the claim as under: The tribunal held that that the petitioner before it (respondent No.1 herein) is entitled to be paid pay and allowances in terms of Rule 15 of the Corporation Rules from 12.9.1975 to 19.8.1977, as are payable to an employee with its headquarters at Hyderabad. It was also held that the 1st respondent is entitled to house rent allowance at 20% and City Compensatory Allowance etc., because he was at Hyderabad to secure reinstatement order and his removal order was also issued at Hyderabad only. Further from 20.12.1975 onwards, he is entitled to be paid salary in the post of Assistant Accounts Officer at the same rates as would be payable to an employee working as such at Hyderabad. On the aforementioned count, the 1st respondent was declared as entitled to be paid a sum of Rs.16, 400/-. However, it will be important to notice that in the very next paragraph of its order, the Labour Court has denied any right to the 1st respondent herein to claim travelling allowances from Hyderabad to Metpally. It was clearly noticed by the Tribunal that the 1st respondent herein has not been transferred from Hyderabad to Metpally at all. It was also noticed that the petitioner before it upon being recruited as Accounts Superintendent in the Andhra Pradesh State Construction Corporation Limited has been posted to Godavarikhani through Lr No. Admn/42, dated

7.10.1974. It was also noticed that the 1st respondent herein was treated by the corporation as if he was on tour between 7.10.1974 to 14.10.1974 and he was paid for TA to which he was entitled. He joined at Godavarikhani on

14.10.1974 and he was found working at Godavarikhani as on 12.9.1975 when he was actually removed from service. It was also noticed that he was posted as Executive Assistant at Metpally where he joined on 20.8.1977, in the post of Executive Assistant. Thus, the Labour Court having noticed that there was no order of transfer of the 1st respondent herein from Godavarikhani to Hyderabad and having noticed that the 1st respondent herein was working at the time of his removal at Godavarikhani, very strangely in the preceding paragraph of its order, directed payment for the post termination period at the rates admissible at Hyderabad on the ground that the 1st respondent was at Hyderabad seeking reinstatement into service. The reason assigned by the Labour Court for allowing the claim of the 1st respondent in a sum of Rs.16, 400/- is, therefore fallacious. Claim for wages is liable to be calculated based upon the position obtaining as on the date of his removal. It is the assertion of the respondents before the Labour Court that they have paid the wages admissible to the 1st respondent herein for the post termination period and they have also deducted the income tax payable thereon and remitted it to the Income Tax Department through letter Ex.M5. In the face of Ex.M5, the Tribunal ought not have allowed the claim of the 1st respondent to be paid salary or allowances calculating the same at the rates admissible at Hyderabad. There is no justification whatsoever to do so, in the absence of any order by the corporation transferring him to Hyderabad. Hence, the wages calculated and paid, already, disentitles the 1st respondent to make any further claim. For the aforesaid reasons claims 1, 2 and 3 noted supra are liable to be rejected. Claim No.4 relating to reimbursement of medical expenses has been rightly rejected by the Labour Court. The 1st respondent has not agitated about the same. Dealing with the claim No.5 relating to the earned leave, the Labour Court has noticed that the earned leave for 46 days for the period from 12.9.1975 to 20.8.1977 has been credited to the account of the 1st respondent and an entry has already been made in his service record to that effect. Inspite of the same, the Labour Court directed encashment of earned leave to the extent of 24 days and 20 days of half pay leave. No reasons have been assigned by the Labour Court as to how the 1st respondent herein is entitled for payment of encashment value for 24 days of earned leave and 20 days of half pay leave. It is relevant to notice that from

20.8.1977 onwards since the 1st respondent has rendered service to the same corporation and consequently earned, during that period leave, the question of recalculating the earned leave for the period beyond 20.8.1977 pursuant to the award passed by the Labour Court in Second Appeal No. 25 and 26 of 1984 does not arise at all. The 1st respondent cannot have the same benefit a second time. That is the reason why the corporation has produced the service record of the writ petitioner to establish that 46 days of earned leave has been credited to the account of the 1st respondent herein for the period when he was out of employment from 12.9.1975 to 20.8.1977. When once earned leave was already credited to the account of the 1st respondent herein, giving a laconic direction to the writ petitioners herein for payment of encashment equivalent of earned leave for 24 days does not simply arise. The Labour court had erroneously directed payment of the encashment value for 24 days of earned leave. There was no explanation anywhere as to basis where from 24 days of earned leave and 20 days of half pay leave, have been worked out by the Labour Court. Without there being a legally enforceable entitlement, the Labour Court does not derive any power or jurisdiction to award monetary claims under Section 33C(2) of Industrial Disputes Act. Hence, the claim No.5 ought to have been rejected. The Labour Court has noticed that the 1st respondent herein has been promoted as Assistant Accounts Officer with effect from

20.12.1975 and as Accounts Officer with effect from 15.5.1979 on par with his junior Sri S.V.Subrahmanyam. Therefore, parity in that respect has been completely restored. The State government has taken a policy decision for winding up the Andhra Pradesh State Construction Corporation Limited with effect from 1.7.1983 through their G.O.Ms. No. 108, GAD (Public Enterprise Department), dated 16.3.1983. That led to a hue and cry and the employees of the corporation sought absorption/continuance in government service. The matter was examined by the Supreme Court and by its order dated

26.11.1986, the Supreme Court directed the State government to continue in service the employees of the corporation either under the state government or under any other state government corporations. Accordingly, the state government continued the services of the employees of the corporation and paid them the salaries and allowances with effect from 1.7.1983. Subsequently, the state government issued orders through their G.O.Ms.No. 67, Irrigation and Command Area Development Department (Public Works Establishment – I) dated 30.3.1991 finally ordering for the closure of the corporation. The employees of the corporation came to be absorbed in the government service in its Irrigation and Command Area Development department. Orders to this effect have been passed through their G.O. Ms. No. 87, Irrigation and Command Area Department dated 26.3.1993. Thus, the 1st respondent herein has also come to be absorbed into the service of the Government of Andhra Pradesh in its Irrigation and Command Area Development department pursuant to the orders of the state government contained in G.O. Ms. No. 87, dated 26.3.1993. By virtue of these orders, the 1st respondent has become the servant of the Government of Andhra Pradesh. But nonetheless he solicited to be retained in service till he attained the age of 60 years in terms of the conditions of service, which are applicable for the corporation employees. He instituted WP No. 7177 of 2001 before this court in that respect. That writ petition came to be dismissed by judgment and order passed on 19.7.2001 holding that the 1st respondent herein is a government servant and hence he is liable to be regulated in the matter of conditions of service at par with other state government servants, but not by such conditions of service which are applicable to the employees of the former State Construction Corporation. Hence, it was held that he is liable to be retired from service on attaining the age of superannuation of 58 years. It will also be relevant to notice that the respondents before the Labour Court had categorically pointed out that the backwages payable to the 1st respondent herein for the period from 12.9.1975 to 17.8.1977 have already been paid and similarly he was also been promoted to the next higher posts of Assistant Accounts Officer and Accounts Officer on par with his junior Sri S.V.Subrahmanyam. It was further pointed out that the post of Assistant Controller of Accounts which was available in the service of the Andhra Pradesh State Construction Corporation Limited stood abolished automatically with the closure of the said corporation with effect from

1.7.1983 pursuant to the orders passed by the State Government through their G.O. Ms.No. 87, and hence he is not entitled to claim promotion to the post of Assistant Controller of Accounts, a post which is not correspondingly available in the Irrigation and Command Area Development department of the Government of Andhra Pradesh, where he got absorbed. Further, the 1st respondent has also instituted WP No. 11450 of 1988 in this court seeking that very relief. The said writ petition was dismissed by this court on 30.1.1995 and hence the 1st respondent could not have agitated such an issue in MP No. 28 of 1996 instituted by him after the dismissal of WP No. 11450 of 1988 filed by him. It’s unfortunate, that the Labour Court has ordered payment, on the above count, in a sum of Rs.48, 000/-. It is truly baffling as to how the 1st respondent could lay any claim for promotion to the post of Assistant Controller of Accounts before the Labour Court after his claim in that respect has been rejected by the judgment rendered in WP No. 11450 of 1988 by this court and in spite of such a specific pleading, the Labour Court has proceeded to order the claim of the 1st respondent in a sum of RS.48, 000/-. The Labour Court unfortunately has not applied its mind fully and completely to the contentions canvassed by the present writ petitioners. It ought to have called upon the 1st respondent to demonstrate as to how he was entitled for each one of his monetary claims and for payment of differential wages to the post of Assistant Controller of Accounts after the writ petition filed by him in WP No. 11450 of 1988 has been dismissed by this court. The Labour Court clearly cannot sit in judgment over an order passed by this court with regard to the entitlement of the 1st respondent for promotion to the post of Assistant Controller of Accounts. With regard to the claim for payment of differential wages, the petitioners have produced proof of payment, Ex.M5. Without any regard and consideration for the same, the Labour Court has mechanically ordered for payment of Rs.48,000/-, under Claim No.6. There is no basis, much less any justification for doing so. Claim No.7 is made in a sum of Rs.36,000/- as due and payable on the count of Special Grade Promotion scale for the period from

16.5.1992 to 1996. Firstly, there is neither any factual foundation or legal entitlement. By G.O.Ms.No.67, Irr & CAD Department, dated 30.3.1991, the State Government has taken a decision to close down the A.P. Construction Corporation Limited. Subsequently, by an order passed in G.O. Ms. No. 87, I & CAD dated 26.3.1993, all the employees, including the 1st respondent, of the corporation have been absorbed into Government Service. Therefore, the Labour Court cannot adjudicate any monetary claims arising out of service rendered to the State Government by the former employees of the corporation. The 1st respondent came to be absorbed in the service of Irrigation Department as an Accounts Officer. Thus, he ceased to be a workman/employee, for his conditions of service to be regulated or examined by Shops and Establishment Act and the Labour Court. Therefore, no claim of the 1st respondent for the post absorption period is capable of being entertained and examined by the Labour Court. This apart, the 1st respondent was promoted as Assistant Accounts Officer and accounts Officer w.e.f., 20.12.1975 and 15.5.1979 respectively, on par with his junior. The differential wages in that regard have been calculated and paid, as per Ex.M5. The claim of the 1st respondent for further promotion as Assistant Controller of Accounts has been negatived by this court in WP No. 11450 of 1988. Hence, no further monetary claims in this regard, are liable to be entertained. Further, if there are any special grade scales available in the service of the corporation, the terms and conditions, subject to which, any such claims can be made have got to be examined, at the first place. Secondly, whether such claims for Special Grade Scales falls within the scope of the award passed by the Labour Court has got to be examined, before the same can be ordered in an application taken out under Section 33 C(2) of the Industrial Disputes Act. These legal requirements have been discarded by the Labour Court. Hence, this claim of the 1st respondent deserves to be thrown out. That takes us to the last 2 claims, which can be dealt with together. If the 1st respondent has initiated legal proceedings before the competent authority under the A.P. Shops and Establishment Act, followed up by the Appeal before the Labour Court and then a writ petition before this court calling in question his illegal termination from service, he can not claim, as a matter of right and demand his employer, to grant him compensatory earned leave for 74 days and then pay for it’s cash equivalent. The number of days he attended the courts, was as a part of his right/exercise to prosecute the cases. An employee, after rendering certain period of continuous service only, will earn a day’s leave, which he can accumulate subject to a ceiling limit. Hence it is called “earned leave”. It is not an act of gratis but earned by rendering service. Hence, the employer can not be saddled with an obligation to grant him equal and corresponding number of days of earned leave. Similarly, every employee, is allowed or permitted to avail 12 days of casual leave in a year. Since, the 1st respondent is out of employment for 5 years, he claimed 60 days of casual leave ( 5 x 12) and conversion of them into cash equivalent. No employee who is in service, can accumulate, the unavailed casual leaves or seek for cash equivalent therefor. Therefore, these two claims of the 1st respondent are fanciful claims, deserving no consideration at all. Since the 1st respondent has appeared in person and was not able to articulate his grievances properly, I called upon the Engineer-in- Chief of the Irrigation & CAD Department to independently examine the claim and furnish a detailed reply, together wit supporting documents. Accordingly, the Engineer-in-Chief has furnished a fairly exhaustive reply on

18.8.2008 pointing out as to how all the eligible monetary claims of the 1st respondent are satisfied. He also enclosed the supporting documents. But, yet, the 1st respondent was not satisfied and imagines that his legitimate claims have not been settled. I therefore leave the matter here. The writ petitioners have contended out that under Section 41(3) of the Andhra Pradesh Shops and Establishments Act, 1966, the appellate jurisdiction has been conferred upon the Labour Court. The Labour Court has therefore been chosen only as an appellate tribunal. It has not been conferred by the Andhra Pradesh Shops and Establishments Act with any powers of executing its orders. Hence, the MP No. 28/1996 is not maintainable. Section 33C(2) of the Industrial Disputes Act reads as under: 33C Recovery of money due from an employer - (1) xxx (2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at should be computed, the question may, subject to any rules that may be made under this Act, be decided by such such benefit Labour Court as may be specified in this behalf by the appropriate Government within a period not exceeding three months. Provided that where the presiding officer of a Labour it necessary or Court considers expedient so reasons to be recorded in writing, extend such period by such further period as he may think fit. to do, he may, Therefore, Section 33.C(2) is a special piece of provision made available to the Industrial workmen for securing what is legitimately due to them and what has already been crystallised and awarded to them. The Labour Court which has been conferred the powers of second appellate authority. Therefore the power available under Section 33C(2) of the Industrial Disputes Act can be availed by the aggrieved workman for securing execution of an order passed by it, in exercise of the appellate jurisdiction conferred on it by virtue of sub-section (3) of Section 41 of the Andhra Pradesh Shops and Establishments Act, 1966. Therefore, the forum, which has been constituted as an appellate tribunal, cannot be denied the power to invoke the provisions contained in the Industrial Disputes Act in favour of such employees of the Shops and Establishments, to secure execution of the Award passed by it. Hence, I do not see any merit in this contention. For all the reasons, set out supra, I allow the writ petition and set aside the order passed on 19.4.2002 in MP No. 28 of 1996 by the Additional Industrial Tribunal-cum-Additional Labour Court, Hyderabad. Parties do bear their costs. -------------------------------------- knk N.RAMAMOHANA RAO,J Dt : 18.9.2009