SAUDAGAR MIAN Vs. HEAVY ENGINEERING CORPORATION

JUDGEMENT

(1.) THIS appeal from the appellate decree is by the plaintiffs, other than plaintiff No, 14. Originally, they were appointed by defendant respondent No. 1 as crane operators on the construction side and placed under different grades with different scales of pay. Certain dispute arose between the workmen, represented by the union, and the employer, respondent No. 1, and there was a conciliation proceeding. As it appears from Ext. B, dated 10th of February, 1964, the workmen and the employer arrived at a settlement. The settlement arrived at with regard to temporary regular workers is contained in paragraph 4 of that document and is as follows: Temporary regular workers be made regular and all facilities enjoyed by the regular workers be extended to them: It was agreed that the temporary regular workers for this purpose be divided into two categories. Category 1: All such temporary regular workers as are skilled in those trades as may be required in production shall be absorbed according to the vacancy arising in the production side. Category 2: All such temporary regular workers as are skilled in those allied trades which would normally be not required on the production side shall be reoriented in allied trades required in connection with production side shall be absorbed as regular workers. The management will also give preference in conversion from construction to production to its construction workers over all outside recruitments. But due to the magnitude of the manning problem recruitments and placements may be concurrent. Pay of construction workers earmarked for production will be safeguarded from the date that this conversion is decided upon, though such workers may be kept on construction until their services can be spared for production. Seniority, however, will count from the date when a worker joins as an employee of the H. E. C. Production in this context means production, maintenance, operation and such other jobs as may be connected with the regular functioning of the factory or the industry. Circular No. 22/64 dated 11th of March, 1964 was issued by the secretary of respondent No. 1 pursuant to the agreement reached between the workmen and it with regard to temporary regular workmen. The appellants were working as temporary regular workmen on the construction side and Nos. 1 to 4 of them were transferred from the construction side to the production side sometime in June, 1963. Appellants 5 to 13 were transferred from the construction side to the production side sometime in May, 1964 and were placed in different shops of respondent No. 1. The case of the appellants is that in the order of transfer they were put in grades different from those as shown in the office orders, by which they were transferred from the construction side to the production side and, on a verbal protest made by them, respondent No. 1 and its officers corrected the mistakes with regard to gradation of the appellants. Accordingly, office order No. SE (Maint)/3(228)/64-1954 dated 29/30 June, 1964 was issued correcting the mistakes in the gradation of the appellants. Respondent No. 1 also advertised certain posts by Ext. 3. Applications were to reach it by 7th of October, 1963. In this advertisement, different grades of pay scales were referred to and it was stated that the pay of the appointees would be fixed in one of those scales of depending on their experience and qualifications, and result of the interview. Applications for posts of crane operators were also invited by the said advertisement. According to the appellants, they were entitled to scales of pay according to their gradations and scales of pay mentioned in Ext. 3, inasmuch as there were eight grades of employees and eight scales of pay. Their request for payment to them according to the said pay scales having been turned down by respondent No. 1 they instituted this suit claiming a declaratory decree that they were "entitled to the pay (wages) according to the gradations of the production side of the defendant No. 1 in H. M. B. P. as notified by office order No. SE (Maint)/3 (228) G-4-1964 dated 29/30-6-64".

(2.) THE defence of respondent No. 1, relevant for the decision of this appeal, was that there were only four grades of crane operators and not eight, as claimed by the appellants. Pay scales Nos. 5 to 8 of Ext. 3 only were applicable to the crane operators, grade Nos. I A, IB, 2 and 3 getting scales Nos. 5, 6, 7 and 8, respectively. It was further averred that the suit was not maintainable before a civil Court and it was also barred by Section 34 of the Specific Relief Act (Act 47 of 1963), because the appellants did not claim any consequential relief in the shape of arrears of pay to which they were entitled according to them.

(3.) MR. Lalnarain Sinha, appearing for the appellants, has contended that the Court of appeal below has erred in holding that the suit was not maintainable before a civil Court, the delay was rightly condoned and the appellants before this Court had no case on merit. He has conceded that the finding of the lower appellate Court that the suit was barred by Section 34 of the Specific Relief Act was correct but has submitted that it was a fit case where the prayer of the appellants for amending the plaint by adding a consequential relief (for which they have filed a separate petition before this Court) should be allowed. MR. K D. Chatterji, appearing on behalf of the respondents, has supported the judgment of the lower appellate Court on all points. He has further contended that it is not a case where amendment of the plaint should be allowed at the second appellate stage.