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2005 Supreme(Guj) 289
Gujarat High Court
Judgename :R.S.GARG, RAVI R.TRIPATHI
GUJARAT ELECTRICITY BOARD - Appellant
Versus
BALVANTSINH S.RAHEVAR - Respondent
L.P.A. 1149 of 2003
Decided On : 04/21/2005
Headnote:Point in Issue :
Civil Mistries - Pay Scale of Civil Supervisor - Claim for - Award in favour of same - Admissibility.
Head Note :
Letters Patent - Clause 15 - Civil Procedure Code, 1908 (Central Act 5 of 1908) - Sections 91 and 11 - Industrial Disputes Act, 1947 (Central Act 14 of 1947) - Sections 2(b), 10-A and 33-C(2) - Civil Mistries - Pay scale of Civil Supervisors - Claim for - Award in favour of same - Admissibility - Civil Mistry and Civil Supervisor are totally different cadres, their qualifications are different, the required qualifications are different and their status and work in the establishment are different - In view of this pay scale, available to a Civil Supervisor cannot be awarded to a Civil Mistry because it would virtually abolish one of the cadres - Contention of Counsel for respondents that four of the employees who were Civil Mistries raised industrial dispute in this regard were awarded pay scale of Civil Supervisor 1180-3050 in pursuance to award passed by Tribunal, therefore, same cannot be denied to petitioners has no substance and cannot be accepted - The award made in favour of some of the Mistries would be binding between the parties to the said lis and would not bind any other person - The plea of res judicata or estoppel is also not available to respondents against the appellant Board because the parties are not claiming under the same title nor the parties are same - Court accordingly set aside the judgment of Single Judge granting benefit to respondents.
Held :
It is not in dispute that the Civil Mistries and Civil Supervisors belong to different cadres. It is also not in dispute that the pay scales of Civil Mistries and Civil Supervisors are different. It is also not in dispute that the qualifications to hold the post are distinct and separate and the qualifications for Civil Supervisors are higher in comparison to the qualifications provided for the post of Civil Mistries. It was also admitted that the duties and the work assigned to Civil Mistries and Civil Supervisors are different. From these facts, it would clearly appear that there are two distinct and separate cadres, one of Civil Mistries while the other is of Civil Supervisors. It is also to be seen that revised pay scale of the Civil Mistry is Rs. 980-2280 while the revised pay scale of Civil Supervisors is Rs. 1180-3050. It is trite law that the pay scale of one cadre cannot be extended in favour of another cadre especially when the cadres are different and the work and duties of such incumbents of different cadre are different. [Para 13]
The principles of res-judicata cannot be applied to a matter where the parties are different, they are claiming under different title and in their personal capacity. If the petitioners submission are accepted, it in fact would lead to an anomalous situation because some person may obtain a small relief and at a given point of time suferer or the judgment debtor may not challenge the same but if that order, award or the decree is allowed to be applied as matter of res-judicata, then it would adversely affect the interest and right of the suferer. [Para 17]
So far as the plea raised by the respondents (original petitioners) relating to Civil Mistries-Ukai is concerned The affidavit filed by the respondent is based on fanciful reasons. Serious allegations have been made against the Board but no foundation has been shown. An allegation of conspiracy has been made without any foundation. No circumstances have been brought on record except the fact that the incumbent has been promoted. Promotion is an incident of the service and even if promotion is given to somebody, then that would not mean that the present appellants were playing the game.
[Para 31]
Law Laid Down :
The principles of res judicata cannot be applied to a matter where the parties are different and are claiming under different title and in their personal capacity.
Case Law Analysis :
Pondicherry Khadi & Village Industries Board vs. P.Kulothangan & Anr., 2004 (1) SCC 68 [Para 18];; West Bengal vs. Tarun K. Roy & Ors., 2004 (1) SCC 347 [Para 25].-Relied on
Hindustan Cables Ltd. (M/s.) vs. P.O. Labour Court, Allahabad & Ors., 1998 (78) FLR All. 15 [Para 26];; Rajasthan Atomic Power Project vs. Management of the Rajasthan Atomic Power Project, 1976 LLJ 271 [Para 26];; M. Katju vs. Umeshwar Pandey, 2005 LAB IC 196 [Para 30].-Distinguished
Conclusion :
Civil Mistries and Civil Supervisors are different cadres getting different pay and entitled to different pay scales - If the pay scale of Civil Supervisors is awarded in favour of the Civil Mistress it would virtually merge the cadre of Civil Supervisors and stand abolished - Consequently relief granted by Single Judge to respondents allowing pay scale of Civil Supervisors is not sustainable - Court set aside the impugned judgment.
Case Referred :
Hindustan Aeronautics Ltd. vs. Presiding Officer, Industrial Tribunal, Agra & Ors., reported in 2005 LAB IC 186.
Decided in Favour of :
Appellant
Application Disposed of Accordingly
( 1 ) PRESENT is an appeal under Clause 15 of the Latent Patent by Gujarat State Electricity Board being aggrieved by the order dated 12. 9. 2002 passed in Special Civil Application No. 6886 of 1992 whereby the learned Single Judge allowed the writ application filed by as many as 23 writ petitioners and directed that the original petitioners who were working as Civil Mistries be given the pay scale as was given to one R. J. Shah and others in Reference (IT) Nos. 71/89, 72/89, 69/89 and 55/89.
( 2 ) IT is not in dispute before us that each of the respondent - original petitioners Nos. 1 to 10 of the List marked as Annexure. A to the writ application are working in the Transmission Division at Navsari, petitioners Nos. 11 to 14 are working in Thermal Power Station, Sikka and rest of the petitioners are working in the Transmission Circle at Jambuva, District Baroda. It is the case of the petitioners that petitioners Nos. 1 to 9 are shown to be permanent while the others are shown to have entered in the service only, but against their names, the date of their becoming permanent has not been mentioned. According to the petitioners, they joined the services in the pay scale of Rs. 290-733 which was revised to Rs. 980-2280. According to them, the petitioners were making repeated representations for grant of pay scale of Rs. 1180-3050, but no action had been taken by the Gujarat Electricity Board. They submit that as many as four employees through Akhil Gujarat Vidhyut Kamdar Sangh raised an industrial dispute which was registered as Reference I. T. Nos. 71/89, 72/89, 69/89 and 55/89. The Industrial Tribunal passed an award on 19. 8. 1994 directing to grant pre-revised pay scale of Rs. 340-982. A copy of the said award has been annexed with the writ application at Annexure. B. It is also the submission of the petitioners that in the year 1985, the respondent Board took a decision to implement the award accordingly granting pay scale of Rs. 1180-3050 to the said Civil Mistries. Thereafter the office order dated 27. 6. 1995 was issued fixing the pay in the scale of Rs. 1180-3050. According to the petitioners, as they were entitled to pay scale of Rs. 1180-3050 and a competent Tribunal had made an award in favour of some of the employees, they through their recognised Union, namely, Akhil Gujarat Vidhyut Kamdar Sangh, made certain representations to remove the disparity in the matter of grant of pay scales to the employees belonging to same categories but nothing fruitful could be done in the matter.
( 3 ) THE petitioners submit that the petitioners even in their individual capacity made representations to the Department for grant of the pay scale, but the representations fell on the deaf year of the Department. Constrained by the circumstances, a notice was served on the Electricity Board on 11. 6. 1997, but the same remained unreplied. According to the petitioners, as Civil Mistries are entitled to pay scale of Rs. 340-942 and revised pay scale of Rs. 1180-3050 and as there is an award of the competent Tribunal in favour of some of the employees who are similarly situated and as the said award has been in force and implemented in case of those employees, the petitioners who are similarly situated, are also entitled to the said benefits. The petitioners, therefore, prayed that the petitioners be placed in the pay scale of Rs. 340-942 and revised pay scale of Rs. 1180-3050 with retrospective effect i. e. from the date of their appointment, interest at the rate of 24% on the arrears be paid to them and any other relief which the Court deems fit be also granted.
( 4 ) THE respondents in their reply raised number of pleadings submitting inter alia that the cadres of Civil Mistries and Civil Supervisors (Sub-Overseer) are different. Revised pay scale of Civil Mistries is Rs. 980-25-1080-2280 while the pay scale of the Civil Supervisor (Sub-Overseer) is Rs. 1180-40-3050. According to them, the qualification to occupy the post of
