IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT DB Civil Special Appeal (Writ) No. 199/2010 in SB Civil Writ Petition No. 1139/1997 The Rajasthan Small Industries Corporation Limited Vs The Industrial Tribunal, Jaipur & anr 10.05.2010 Hon'ble the Chief Justice Mr Jagdish Bhalla Hon'ble Mr Justice MN Bhandari Mr RP Garg for appellant Mr Nitin Jain for respondent No.2 BY THE COURT:
By this special appeal, a challenge has been made to the order dated 15.1.2010, whereby writ petition filed by non-appellant-Ram Avtar Khandelwal was accepted by the learned Single Judge.
It is a case where dispute was raised by non-appellant regarding non-grant of promotion to the post of Assistant Administrative Officer and to the post of Administrative Officer. The reference was answered against the non-appellant and in favour of the management. Aggrieved by the award passed by the Industrial Tribunal, writ petition was filed by the employee which was then accepted.
Learned counsel for appellant submits that order of the learned Single Judge goes beyond terms of reference. The terms of reference so as the dispute was regarding non-grant of promotion to the post of Assistant Administrative Officer w.e.f. 1.8.1975 with confirmation w.e.f. 1.8.1976 and to the post of Administrative Officer w.e.f. 11.5.1980. Learned Single Judge has gone beyond terms of reference and granted benefit of promotion to the post of Sr Manager w.e.f. 25.10.1976 while granting benefit of promotion to the post of Assistant Administrative Officer w.e.f. 1.8.1975 and to the post of Administrative Officer w.e.f. 11.5.1980. Direction for promotion to the post of Sr Manager is thus illegal.
It is further urged that promotion to the post of Assistant Administrative Officer and to the post of Administrative Officer has wrongly been granted for the reason that non-appellant was not in service on the relevant dates.
Learned counsel for non-appellant-employee, on the other hand, submits that non-appellant has rightly been granted relief as after passing of the award against non-appellant person junior was promoted to the post of Sr Manager. Thus, further relief of promotion to the post of Sr Manager was granted. It is urged that merely for the reason that non-appellant was not in service due to illegal termination, it cannot be to his disadvantage. This is more so when pursuant to the settlement between the parties, he was taken back in service with continuity in service except denial of benefit of pay of the intervening period. Once benefit of continuity of service was agreed, non-appellant has to be treated in service for all purposes except specifically denied for in the settlement.
We have considered rival submissions made by learned counsel for the parties and perused the record.
The first issue is as to whether relief has been granted to non-appellant contrary to the terms of reference before the Industrial Tribunal?
For that purpose, we have perused terms of reference which otherwise has been quoted in the impugned award dated 22.1.1997 passed by the Industrial Tribunal and annexed as Annexure-15 to the writ petition. Perusal of the term of reference shows that the dispute was regarding non-grant of promotion to the post of Assistant Administrative Officer and Administrative Officer. In view of aforesaid, neither there was dispute regarding promotion to the post of Sr Manager nor the same was adjudicated upon. In the light of aforesaid, if order of learned Single Judge is looked into then, certainly, relief granted therein for promotion to the post of Sr Manager goes beyond terms of reference.
The argument of learned counsel for non-appellant that in the writ petition, he had additionally prayed for grant of promotion to the post of Sr Manager, cannot be accepted as the reference was answered by the Industrial Tribunal against non-appellant-employee. He was not granted benefit of promotion to the post of Assistant Administrative Officer and Administrative Officer. A challenge to the award was made by filing writ petition thus additional prayer for promotion to the post of Sr Manager cannot be made. The writ petition was filed against passing of the award by the learned Industrial Tribunal thus the learned Single Judge should have restricted relief to the extent of the dispute raised and the reference made. We are thus inclined to interfere in the order of the learned Single Judge to that extent.
Other issue is in regard to entitlement of non-appellant for promotion to the post of Assistant Administrative Officer and to the post of Administrative Officer.
The argument of learned counsel for appellant is that non-appellant was not entitled for promotion to the post of Assistant Administrative Officer and Administrative Officer. The argument of the appellant cannot be accepted. If the non-appellant was terminated w.e.f. 14.6.1975 then, on his reinstatement pursuant to the order dated 11.11.1976 he was given continuity of service. Once continuity of service has been given, consequence has to follow. In the intervening period, one Mr KC Gupta was given promotion to the higher post and, admittedly, Mr Gupta is junior to non-appellant thus, claim of non-appellant was rightly adjudicated by the learned Single Judge to that effect. Since Mr Gupta, who is junior to non-appellant, was given promotion to the post of Assistant Administrative Officer and Administrative Officer thus grant of relief to that extent is in consonance with the dispute raised and reference made. We are of the opinion that termination followed by settlement and reinstatement with continuity of service cannot be taken to be disadvantageous to non-appellant. In fact, settlement had been arrived at between the parties thus non-appellant was reinstated with continuity of service but without monetary benefits of intervening period. Under such circumstances, learned Single Judge has rightly decided the issue in favour of non-appellant to that extent and we do not find error therein.
Consequently, in view of discussion made above, we partly allow the appeal. While maintaining the order dated 15.1.2010 passed by the learned Single judge in regard to relief granted to non-appellant for promotion to the post of Assistant Administrative Officer and to the post of Administrative Officer, we set aside the order to the extent of granting benefit of promotion to the post of Sr Manager.
At this stage, learned counsel for non-appellant prays that non-appellant-employee may be granted liberty to agitate the matter regarding his promotion to the post of Sr Manager before appropriate forum.
It goes without saying that if non-appellant-employee is having any grievance in regard to non-grant of promotion, he would be at liberty to take up the matter before appropriate forum in that regard.
(MN Bhandari), J. (Jagdish Bhalla)CJ bnsharm