Dharmadhikari B.P., J.@mdashHeard the learned Counsel for the parties.
2. The employer namely Reserve Bank of India challenges the Award dated 4th August, 1992 passed by the Presiding Officer, Central
Government, Labour Court at Nagpur in C.G.I.D.A. Case No. 31 of 1989. The said award is delivered in the proceedings u/s 33C(2) of the
Industrial Disputes Act moved by the present respondent No. 1 claiming the stagnation increment after completion of 23 years of service as per the
provisions of Dighe Award which is applicable and which governs the subject-matter.
3. The case of respondent No. 1 before the Labour Court was that he joined the services on 20th November, 1963 and completed 24 years of
service on 20-11-1987. As per the provisions of the Dighe Award he should have been given stagnation increment from 20-11-1987. He states
that he was drawing his pay in time scale of Group A category and because of his improvement in qualifications namely passing of graduation
examination and clearing CAII-B Part 1 and CALLS Part II examinations. He was also given Award which is applicable and which governs the
subject-matter. 3. The case of respondent No. 1 before the Labour Court was that he joined the services on 20th November, 1963 and
completed 24 years of service on 20-11 1987. As per the provisions of the Dighe Award, he should have been given stagnation increment form
20-11-1987. He states that he was drawing his pay in time scale of Group - A category and because of his improvement in qualifications namely
passing of graduation examination and clearing CAII-B Part-I and CAII-B Part-II examinations. He was also, given advance increments. He
states that on 20-11-1978 he was receiving his pay at Rs. 590/- as substantive pay which was inclusive of three advance increments in pay scale
of Rs. 555 + Rs. 25 + Rs. 10. He further states that to reach the maximum of that scale, he was to draw only one increment and it was to be
released on 20-11-1979. On 7th July, 1979 he passed CAIIB Part II examination and therefore, he became entitled to two advance increments in
terms of the Bipartite settlement of the year 1970. However, the local office did not ask him anything as to whether he was desirous to avail of the
benefit of honorarium in the matter and according to him, he should have been given benefit of Honorarium as only one increment was left to reach
maximum in the time scale after 41/2 months only and as released of two increments was, therefore, not possible. He contends that, therefore, he
was put to loss and he further contends that his last date of increments was also shifted to 7th July, 1979 from 20th November, 1979.
4. It is the contention of respondent No. 1 that under consent award of 1979 Part V(C)(b) he was eligible to draw Rs. 150/- as a special pay
irrespective of the option for advance increment/ Honorarium and this special pay is not linked with the advanced increment or Honorarium. He
states that he was not given two advance increments and also was not allowed to draw Honorarium, but only special pay was released in his
favour and all this created confusion when his case was considered for release of stagnation increment. He contends that he was eligible to receive
benefit of stagnation increment of Rs. 100/- w.e.f. 20-11-1987. The respondent bank has released the said increment from 7th July, 1989 and
therefore, financial loss has been caused to him. He, therefore, filed the application for determination of the amount payable to him inclusive of the
benefits like dearness allowance and also claiming interest. Respondent No. 1 has stated in paragraph 8 of his application that he had to recover
approximately the amount of Rs. 4,000/- towards dues on account of stagnation increment for the period from 1987 to June, 1989.
5. The petitioner bank filed its reply before the Labour Court. Though there is nor much of dispute insofar as the facts in the matter are concerned,
the petitioner bank pointed out to the Labour Court that the stagnation increment is to be released after the employee completes drawing of post
scale special pay after reaching the maximum of time scale. Thus, the petitioner pointed out that the last increment of post scale special pay of Rs.
185/- was released to the present respondent on 7th July, 1984 and in terms of Part II of the settlement regarding stagnation increment of Dighe
Award, he became eligible for first stagnation increment after five years of the last increment of the post scale special pay i.e. from 7th July, 1979.
The petitioner bank contended that the demand made by respondent No. 1 for grant of stagnation increment from 20-11-1987 was, therefore,
unsustainable. The bank also raised objection that as only the monetary part is to be worked out, the respondent No. 1 ought to have moved
Government u/s 33C(1) of the Industrial Disputes Act and his application under that provision would have been time barred. The grievance was
also made that the application is not maintainable u/s 33C(2) of the Industrial Disputes Act as respondent No, 1 did not show any existing right in
his favour.
6. The learned Labour Court has delivered its order on 4-8-1992. It has negatived the case of the petitioner that the period of five years to
become eligible for release of stagnation increment is to be counted after release of last instalment of the post scale special pay. It is found that the
respondent No. 1 reached maximum of his scale on 7-7-1979 and as such, he completed five years on 7-7-1984 and therefore, the stagnation
increment ought to have been released in his favour on 7-7-1984. It further held that as per Section B of Part II of Dighe Award, the second
stagnation increment ought to have been released in favour of respondent No. 1 on 7-7-1989. It accordingly directed the petitioner to pay to the
respondent No. 1 the benefits after releasing these stagnation increments on the dates mentioned above. It is this order which is challenged in the
present petition under Article 227 of the Constitution of India by the employer-bank.
7. Mr. G.G. Modak, Advocate appearing for the petitioner bank had invited the attention of the Court to extract of the Award of National
Industrial Tribunal (Dighe) award which governs the controversy. He points out that Section B of Part 1 of appendix E governs the scales of pay
and respondent No. 1 was receiving his salary in time scale mentioned in Group III at page 61 of this award. The said scale is Rs. 505-30-565-
35-635-40- 715-45-760-50-860-55-970-EB-60-1090-65-1350-70-1420-75-1495. Thus, the total span of this time scale is 20 years. He
points that even within this period of 20 years, a person can reach maximum if he improves his qualifications and for that purpose, he invites
attention of the Court to Part V which deals with advance increments/Honorarium/Special Pay. As per Clause A of this Part, a person who obtains
graduate qualification is entitled to two increments in the scale of pay. Similarly, a person who clears Part 1 examination of CAIIB/CAIB gets one
increment as advance increment and if he passes Part II of that examination, he becomes entitled to two increments in the scale of pay. Thus, a
person who obtains all these qualifications is entitled to receive total five increments as advance increments. Under the circumstances, he would
reach the maximum of time scale in the 15th year of his service. Clause (B) of this part provides for as to when the employee can be paid
Honorarium in lieu of the advance increments at his option. Now the Honorarium for passing Part I of CAIIB/ CIB examination is Rs. 350/- and
for passing Part II of that examination it is Rs. 650/-. Clause (C) which deals with Special pay. It states that the employees in Group I after
reaching the maximum of time scale are eligible to draw special pay of Rs. 23/- after one year, Rs. 46/- after two years, 69/- after three years, Rs.
92 /- after four years and Rs. 115/- after five years. The next sub-clause however imposes ceiling of this special pay and the said ceiling is Rs. 46/-
for graduates, Rs. 23/- for the persons clearing only Part I of CAIIB/CAIB examination, Rs. 69/- for the persons clearing Part II of CAIIB-CIB
examination, Rs. 69/- for the persons clearing graduation and part I of both these exams and Rs. 115/- for the persons clearing graduation and
both the above exams.
8. Mr. Modak, Advocate, points out that the petitioner was only one increment away from the maximum of his time scale on 20-11-1978 and he
passed the Part II CAIIB examination on 7th July, 1979. Therefore, as per this scheme, he became eligible for grant of two increments in the scale
of pay. But as he was only one increment away from the maximum, said two increments could not have been released in his favour. He further
points out that as the employee did not opt to receive Honorarium in lieu of the advance increments, the Honorarium could not be released in his
favour and therefore, the bank had no option but to release the special pay as per Clause (C) above. He points out that the employee cleared Part
II examination of CAIIB on 7th July, 1979 and therefore, the increment date which was 20-11-1979 was preponed and accordingly, it was made
7th July, 1979. He contends that no prejudice has been caused to respondent No. 1 by such preponing. He contends that from 7th July, 1979 the
instalments of special pay were given to respondent No. 1 and as he is the person who has passed graduation, as also Part 1 and II of the
C.A.I.I.B. examination, the limit applicable in his case was Rs. 115/- and accordingly, he was paid Rs. 23/- for one year, Rs. 46/- after two years,
Rs. 69/- after three years, Rs. 92/- after four years and Rs. 115/- for five years. He, therefore, contends that the bank has acted in accordance
with the provisions of the Dighe Award in the matter of release of increments.
9. Mr. G.G. Modak, Advocate further invites attention of the Court to Part II which deals with stagnation increment. The relevant portion of said
Part II reads as under :
All employees in Group 1 will be granted stagnation increments, subject to a maximum of two, each equivalent to the last increment in the scale of
pay, for every five completed years of service after reaching maximum in the scale of pay and drawl of post-scale special pay, if any and to the
extent admissible. The period of stagnation for this purpose will be reckoned from the date of reaching the maximum of the scale of pay in the
Bipartite Settlement dated 7th October, 1970.
10. He, therefore, contends that even as Per Part II, respondent No. 1 does not become entitle to release of stagnation increment till expiry of the
period of five years after drawl of the post scale special pay. He submits that thus the bank is justified in pointing out that respondent No. 1
becomes eligible to release of 1st stagnation increment only on 7-7-1989 i.e. after expiry of five years of drawl of the post scale special pay. The
contends that the learned members of the Industrial Court has not correctly appreciated the scheme and has misinterpreted the provisions which
has resulted in refusal to exercise jurisdiction in accordance with law. He further points that the learned Labour Court has placed reliance upon the
order delivered by the Central Government Labour Court No. 1 at Bombay in Application No. L.C.B. 42/1989 on 13-8-1990. He points out that
the said order does not in any way considers the controversy which is required to be considered in present matter. He, therefore, contends that the
order of Labour Court shows total non-application of mind and is liable to be quashed and set aside.
11. During his arguments, Mr. Modak, Advocate has placed emphasis upon use of the word "" and"" which appears in Part II. It is his contention
that the said clause which lays down eligibility requires that the employee must reach the maximum of time scale of pay and further he should have
also drawn post scale special pay. He contends that the period office complete years is to be counted after both these events are over. To support
his contention that word ""and"" here is to be interpreted conjunctively, he has placed reliance upon the judgments of the Apex Court reported at M.
Satyanarayana Vs. State of Karnataka and Another, , and Union of India Vs. Justice S.S. Sandhawalia (Retd.) and others, .
12. As against this, Mrs. Deshpande, learned Counsel appearing for respondent No. 1 has stated that the period of five years is to be counted
after the employee reaches the maximum of time scale of pay and the drawl of post scale special pay has got not bearing on release of stagnation
increments. She also relies upon the very same portion of/on which the Counsel for the petitioner has placed reliance. She point our that, the period
of stagnation is to be reckoned from the date of reaching maximum of scale of pay as per Bipratire settlement dated 7-10-1970. She further
contends that the learned Labour Court has, therefore, correctly appreciated the controversy and the order does not call for any interference.
13. After hearing both the Counsel and in view of the stand taken by the petitioner- bank, a question as to the fate of the employee who reaches
maximum without improving his qualification and the fate of the employee who is otherwise similarly situated but improves his qualification, came up
for consideration. In the process it was found that a person who improves qualification and therefore, draws post scale special pay is placed at
disadvantageous position as compared to the person who does not improve his qualification because the instalment of post scale special pay is little
less than the last instalment in the time scale to which a person becomes eligible after five years upon reaching maximum of time scale. In this
connection, attention of the Court was invited to the policy decision of petitioner which is placed along with the written submissions by respondent
No. 1 on 25-11-1993. The said decision is dt. 22-1-1992 and the relevant portion there of reads as under :
It has been brought to out notice that in a few cases the implementation of the aforesaid provision has given rise to situations where more qualified
employees draw lower pay, though for a temporary period, than their less qualified juniors. The matter has, therefore, been examined and it has
been decided as under :
In cases where more qualified senior employees in Group ''A'' draw lower pay then less qualified juniors because of the formers acquiring the
relevant educational qualifications after or just before reaching the maximum of the pay-scale, the pay of such seniors will be protected by granting
them the difference in amount in the form as and of ''personal pay'' as an when anomalies area
14. Thus, it is apparent that because of reading of requirement of counting the period five years after drawl of post scale special pay, such
contingency has arisen, if one ignores the post scale special pay for the purposes of granting of stagnation increment, such contingency would not
arise. In this connection, it would be necessary to refer to the judgments of the Hon''ble Apex Court to which reference is made by the learned
Advocate Mr. Modak. The first judgment in the case of M. Satyanarayana (supra) consider the case of the political sufferer or freedom fighter
who has been defined to mean a person who prior to August 15,1947 participated in National Movement and even after August 15,1947
participated in the struggle in any princely state for securing is accession. The case of the appellant before the Hon''ble Apex Court was that his
father had participated in 1942 Movement and was imprisoned between September 10, 1942 to October 2, 1942. The appellant claimed
admission on the ground of being a son of a freedom fighter or political sufferer and for that purpose, he contended that both these parts of
definition should be read independently of each other. The Hon''ble Apex Court has refused to read that word in disjunctive sense and has held
that the word ""and"" has been used in conjunctive sense. The Apex Court has found that if expression ""and"" in Clause (a) is read independently,
then there was no need for a person to suffer at all and mere partitions would be enough to make him political sufferer. That should defeat the
rationale behind the rule. It would, therefore, frustrate the intention and purpose of the legislature. It has been thereafter concluded that the
expression ""and "" in these circumstances cannot be read disjunctively.
15. The next ruling ie. Union of India Vs. Justice S.S. Sandhawalia (Retd.) and others, again considers the similar situation and in paragraph 18,
the provision which entitles a Judge to a staff car and 150 litters of petrol per month or actual consumption of petrol whichever is less, fell for
consideration. The said provision (Section 22-B of the High Court Judges (Condition of Service) Act, 1995) has been interpreted by the Hon''ble
Apex Court to mean that entitlement of a Judge for petrol can be availed independently of the staff car. The petitioner before the Apex Court was
not provided with the staff car, but he was allowed to use his entitlement of petrol in another vehicle for which Government has made payment. The
Hon''ble Apex Court has held that under the provisions having regard to the High Office which a judge enjoys, it is considered proper and
commensurate with his status that he provided with the staff car for use by himself and his family members and ''and'' a maximum of 150 litres of
petrol. The Hon''ble Apex Court refused to read the word ""and"" as word ""with"" and has also stated that otherwise it would lead to absurd situation
in which the Government may not provide a staff car and may also deny benefit of petrol entitlement on the ground that without the staff car the
judge cannot be given the petrol.
16. However the situation in the present case is different. The clause in part I as reproduced above contains two contradictory provisions. The first
is in relation to calculation of five completed years of service and the second is about counting period of stagnation. The first part states that five
completed years of service is to be counted after reaching maximum in the scale of pay and drawl of post scale special pay, if any and to the extent
admissible. As per the of second clause, the period of stagnation for this purpose will be reckoned from the date of reaching the maximum of scale
of pay. Thus, as per one part, the period of five years is to be counted after reaching the maximum of time scale and after drawl of post scale
special pay. As per the scheme mentioned above, the special pay is drawn for five years and therefore, if the first part is taken into consideration,
the employee would be entitled to stagnation increment after completion of period of five years during which he receives post scale special pay
after reaching the maximum of time scale. As per the second part of the above clause, the period of stagnation is to be reckoned from after
reaching maximum of the scale of pay and thus, he becomes entitled to first stagnation increment after completing five years after reaching
maximum in time scale. Thus, in view of the mutually contradictory provisions appearing in this clause, a interpretation which appears proper and in
favour of respondent No. 1 in case of ambiguity will have to be adopted. As already discussed above, in case of two similarly situated employees
one of whom improves qualification while other does not, the incongruent situation which results is required to be taken care of in view of the
circular issued on 22nd January, 1992 and by ordering release of personal pay in favour of such person who improves the educational
qualification. However, if the words ""And drawl of post special pay, if any and to the extent admissible"" are read disjunctively, the lacuna which is
otherwise appearing can be removed. The stagnation increment is given only because a person stagnates at some stage in the time scale after
reaching maximum because of absence of any other increment in it. Keeping in view this intention and last part of Part II of Dighe Award, it is clear
that the employee like respondent No. 1 becomes entitled to release of stagnation increment after expiry of the period of five years after reaching
the maximum stage in time scale of pay. Thus, release of stagnation increment does not depend upon the factor whether he has improved his
qualification and therefore, has become eligible to special pay or whether the he has not improved his qualification and therefore, he has not drawn
the special pay. According to me, this is the only interpretation which can be put upon the above portion of Part II, which determines the eligibility
of an employee for stagnation increment.
17. Even in the case reported at Union of India Vs. Justice S.S. Sandhawalia (Retd.) and others, , the Hon''ble Apex Court has refuse to read the
word ""and"" conjunctively and has further held if two views are reasonably possible, the Apex Court would lean in favour of the view which would
be favourable to the subject. In the facts of the case, in view of the two mutually contradictory provisions, two view are possible and therefore, a
view which favours respondent No. 1 is required to be accepted, it is to be noted that the Labour Court was exercising the jurisdiction under the
welfare statue where benefit of doubt of benefit of ambiguity is always given to the workmen/labour. Under the circumstances, I do not find that the
Labour Court has committed any error by directing the petitioners to release the stagnation increment in favour of the respondent No. 1 upon his
completion of five years after reaching the maximum of time scale i.e. w.e.f. 7-7-1984 and release of second stagnation increment from 7-7-1989.
18. The grievance made by the learned Counsel for the petitioner is that, in his application u/s 33C(2), the petitioner had asked for release of
stagnation increment from 20-11-1987 and the Labour Court has granted stagnation increment w.e.f. 7-7-1984, which is misconceived. The
employee, as mentioned in the earlier part of the judgment, clearly sets out his case and has stated that he becomes eligible to, two stagnation
increments after 24 years of service and he has further stated that his juniors have been given stagnation increment from 20-31-1987 and therefore,
he is entitled to get first stagnation increment of Rs. 100/- w.e.f. 20-11-1987. However, the Labour Court has rightly found that he becomes
entitled to stagnation increment after completion of five years as per the scheme of Award. Relief given to employee is, therefore, not illegal and
does not warrant interference in writ jurisdiction.
19. Though the learned Labour Court has placed reliance upon the Award dated 13th August, 1990 delivered by Justice S.N. Khatri, still after
going through the said order, I do not find any similarly between the dispute decided by him and the dispute which was for consideration before the
Labour Court.
20. Mr. Modak, Advocate also argued that the Labour Court u/s 33C(2) could not have interpreted the terms and conditions of the Award and
there was no existing right in favour of respondent No. 1. The Award which is place on record by the petitioner-bank itself creates an existing right
in favour of respondent No. 1 and the Labour Court has only interpreted its various clauses together and has given benefit to respondent No. 1.
Therefore, I do not find any substance in the said argument. This Court has, while granting stay in the matter, directed the petitioner to deposit the
amount of Rs. 2,000/- and the same has been deposited in this Court on 8th July, 1993 by the petitioner. Under the circumstances, respondent
No. 1 is directed to withdraw that amount.
21. In the circumstances, I do not find any merit in the petition. The writ petition is accordingly dismissed. No orders as to costs.
