JAYSING RANGARAO RAUT Vs. MAHARASHTRA STATE ELECTRICITY BOARD

JUDGEMENT

(1.) BY the present petition, the petition is seeking quashing of an order dated 12-12-1991 by which it has been inter alia held that the petitioner shall not be entitled to pay fixation benefits and he shall also not be entitled to arrears for the period of deemed date promotion since he has not performed duties in the said post. By a further writ of mandamus, the petitioner is seeking direction that the petitioner should be paid back Mages consequent of his deemed date promotion to the cadres of assistant Accountant with effect from 1-10-1969. Some of the material facts, briefly stated, are as under :-

(2.) ON 17-10-1958 the petitioner joined service as Lower Division Clerk with the 1st respondent. Sometime in or about 1967, the petitioner was prosecuted both under the Criminal procedure Code and also was subjected to departmental enquiry on the charge that the petitioner has participated in an illegal strike. On 2. 12. 1968, pursuant to the department enquiry, services of the petitioner came to be terminated. Essentially the services Mere terminated on the ground that the petitioner was convicted and sentenced and a fine of Rs. 51/- was imposed upon the petitioner. The said departmental enquiry became a subject matter of an industrial dispute and proceedings were initiated in the Industrial tribunal. The Industrial Tribunal by an order dated 26. 9. 1980 set aside the order of termination and directed reinstatement of the petitioner with continuity of service and consequential benefits. On 6. 10. 1980, the petitioner resumed his duty in the 1st respondent company as Upper Division clerk. Sometime in February 1981, the petitioner passed an examination of Higher Accounts held by the respondent no. 1 for the promotion to the post of Divisional Accountant. Thus, in 1984, the petitioner became entitled to the promotion to the post of Divisional Accountant. According to the petitioner, the petitioner became entitled to the said promotion of Divisional Accountant as per the date of his next junior in the Upper Division clerk. On 27. 2. 1989, the Labour court by its judgment granted the petitioner's claim for medical reimbursement, bonus and leave encashment. On 12-12-1991 the petitioner was given a deemed date of promotion to the, cadre of Assistant accountant with effect from 1. 10. 1969 with pay fixation. However, in the said order it was clarified that the petitioner will not be entitled to any arrears of back wages on the basis of such deemed date promotion. Thereafter the petitioner made various representations for obtaining the back wages and ultimately on the failure of respondent no. 1 to grant such benefits has filed the present writ petition in this Court inter alia challenging the said order dated 12. 12. 1991 in so far as it relates to the ground of benefits of the arrears of back wages.

(3.) THE learned counsel for the petitioner has inter alia contended that the since a deemed date is granted, he is entitled to all the benefits as if he was promoted on the said date which shall include the benefit of back Mages and arrears thereof in accordance with the pay scale of such higher cadre and/or higher post. In support of the aforesaid contention, the petitioner has relied upon a Division Bench judgment of this Court dated 17th March 1988 in writ Petition No. 1745 of 1955 (M. S. Chinchole Ors. vs. The Superintending Engineer, M. S. E. B. Sangli Circle and Ors.) decided by Pendse and Sugla, jj. and particularly he has relied upon paragraph 5 of the judgment which reads as under :-"5. Mr. Gnaisas then submitted that even if the deemed dates of promotion are considered to be accurate, still the respondents Nos. 1 to 3 are declining to pay the difference in salary for Upper division Clerks and of the Lower division Clerks for the period commencing from the deemed date of promotion to the date of actual promotion. In our judgment, the grievance of the petitioner on this count is just and deserves acceptance. The normal rule is when an employee is denied promotion to the higher cadre without any sound reason, then such employee would be entitled to a difference in salary when actually such employee is promoted to the higher post. The employee cannot be deprived of the difference in salary for no fault of his. Mr. Adik submitted that the maharashtra State Electricity Board has famed regulation in exercise of powers conferred by Section 79 (c) of the electricity (Supply) Act, 1948 and a note added to regulation 23 on February 2/, 1973, inter-alia, provides that even when an employee is wrongfully not promoted to the higher post, he Mould not be entitled to the difference in salary from the deemed date of promotion to the date of actual promotion. We have perused the note to Regulation 25 and Me are unable to appreciate how note to a regulation can be relied upon to deprive the petitioners of their dues. a note cannot form part of the regulation but is only an administrative direction and such note, in our judgment, cannot deprive the petitioners of their just dues. In our judgment, the petitioners are entitled to payment of arrears of pay for the period commencing from their deemed dates of promotion till the date of actual promotion and respondents Nos. 1 to 3 shall pay the dues within six weeks from today. "