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The Life Insurance Corporation of India Vs. K.M. Rami and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 906 of 1971
Judge
Reported in1975WLN(UC)146
AppellantThe Life Insurance Corporation of India
RespondentK.M. Rami and anr.
DispositionPetition allowed
Excerpt:
life insurance corporation staff regulation, 1956 - rules 14, 19 & 58 grade increment--temporary service on fixed salary cannot be taken into account for purpose of grade increment--temporary service rightly converted into probationary service after he passed the examination--held, date of the grade increment was 1-7-1960 & not 1-1-1960. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was..........was confirmed as an assistant in the aforesaid grade with effect from june 26, 1959 he was given a grade increment on 1-1-60 and thereafter, on, the first of january of the two following years however, in february 1962, it was discovered that the respondent no. 1 was nor entitled to obtain a grade increment with effect from 1.1.60, but that he could receive the first increment in the above mentioned grade only with effect from july 1, 1960, after completion of 12 months' service in the grade concerned the corporation thereupon deducted the amount which was thus erroneously and to the respondent no. 1 mr. rami made a representation to the zonal manager after a lapse of five years on june 14. 1967 objecting to the aforesaid deduction which was ordered to be made in february 1962. as the.....
Judgment:

D.P. Gupta, J.

1. This writ petition has been filed on behalf of the Life Insurance Corporation of India and arises in the following circumstances.

2. The respondent No. 1. K.M. Rami, was initially appointed as an Assistant in the Life Insurance Corporation of India (hereinafter called 'the Corporation') on a temporary basis, on a cons dilated salary of Rs. 130/ per menses by the letter of appointment dated 29-11-58/23-12-58. The respondent No. 1 joined service with effect from December 26, 1958. The said respondent appeared at a test held by the Corporation for the purpose of recruiting probationary staff and was declared successful with the result that his temporary service was converted into probationary one with effect from September 28, 1959 and he was placed in the grade of Rs. 75,5,90 8 136 EB 160 10 220 EB 10-240-15 270. Subsequently, the respondent No. 1 was confirmed as an Assistant in the aforesaid grade with effect from June 26, 1959 He was given a grade increment on 1-1-60 and thereafter, on, the first of January of the two following years However, in February 1962, it was discovered that the respondent No. 1 was nor entitled to obtain a grade increment with effect from 1.1.60, but that he could receive the first increment in the above mentioned grade only with effect from July 1, 1960, after completion of 12 months' service in the grade concerned The Corporation thereupon deducted the amount which was thus erroneously and to the respondent No. 1 Mr. Rami made a representation to the Zonal Manager after a lapse of five years on June 14. 1967 objecting to the aforesaid deduction which was ordered to be made in February 1962. As the said representation was rejected, he submitted an application under Section 33(C)(2) of the Industrial Disputes Act before the Labour Court on July 16, 1968 However, the Central Labour Court, by its order dated April 30, 1969 disagreed with the contention of respondent No. 1 and held that his temporary service was converted into a probationary one only on his being declared successful in 'he requisite test. The application of respondent No. 1 was, therefore, rejected as not maintainable because it was not considered to be an existing right of the respondent No. 1. Thereafter, the respondent No. 1 filed an application before the Payment of Wages Authority under Section 15(2) of the Payment of Wages Act (hereinafter called 'the Act') which, by its order dated August 19, 1970, disallowed the claim for the period from 1.1.60 to October 3, 1968 on the ground that the respondent No. 1 had slumbered over his rights. However, the respondent No. 1 was directed to file a fresh claim for the period beginning from October 4, 1968.

3. The respondent No. 1 then filed a fresh claim on September 21, 1970 and claimed a sum of Rs. 84.12 p. on account of unauthorised deduction alleged to have been made during the period from October 4, 1963 to October 3, 1969. The claim was resisted on behalf of the Corporation and it was submitted in reply that no unlawful d dictions were made from the emoluments of the respondent No. 1 by the Corporation. The Payment of Wages Authority Ajmer (hereinafter referred to as 'the Authority') decided the matter by is order dated Much 4, 1671. It was held by the Authority that in accordance with the provisions of Regulation 58(1)(iii) of the Staff Regulations 1956 of the Corporation, the employee could claim an increment only after the Completion of one year of service in the grade concerted and that as the respondent No. 1 was appointed in the time-scale with effect from June 26, 1959, he completed one year of service in that grade on June 26, 1960 and consequently, he could be allowed the annual grade increment only with effect from July 1, 1960 However, by a curious process of reasoning, which it is difficult to understand, the Authority further went on to hold that as case of the respondent regarding pay fixation allowing him an annual grade increment with effect from January 1, 1960 had already been decided and closed, the same could not have been reopened on the basis of a circular issued by the Corporation on June 13, 1980. Taking the view that the said circular did not have any retrospective effect, the Authority held that the Corporation was not entitled to refix the wages of the respondent No. 1, and consequently, make deductions from such wages. He, therefore, passed an order for the refund of Rs. 84.12 to the respondent No. 1 in accordance with his reduced claim statement along with Rs. 30/- as compensation.

4. The Corporation has filed the present writ petition against the aforesaid order passed by the Authority dated March 4, 1971.

5. Learned Counsel for the petitioner argued that as the Authority under the Act, in the earlier part of its order itself came to the conclusion that the respondent No. 1 was not entitled to actual grade increment with effect from January 1, 1960, but he could get the said grade increment only with effect from July 1, 1955, the application filed by the respondent No. 1 before the said authority should have been dismissed. He urged that there was no question of any retrospective application of ha circular of June 13, 1960 as the said circular merely clarified the position which existed under Regulation 58(1)(iii) of the Staff Regulations 1955 On behalf of the respondent No. 1, Mr. Samdaria urged that the respondent No. 1 was employed with effect from December 26, 1953 and therefore, he completed one year's service on December 26, 1959 and as such, he was on pled to receive the grade increment with effect from January 1, 1960 and in this context relied upon the definition of the word 'Service' in Regulation 142 of the Staff Regulations 1956. Learned Counsel for the respondent No. 1 further relied upon the terms contained in the letter of appointment of the respondent No. 1 wherein it was mentioned that the temporary appointment of the said respondent would be converted into a probationary one on his passing the requisite test held by the Corporation for recruiting probationary staff and that as soon as the respondent No. 1 passed the test, learned Counsel urged, the temporary service rendered by the respondent No. 1 with effect from December 26, 1958 stood 'converted' into probationary service and it is on this basis, according to that learned Counsel, that the respondent No. 1 was confirmed as Assistant by the Corporation with effect from June 26, 1959. The further contention of the learned Counsel is that the case of the respondent No. 1 in respect of the grant of annual grade increment was decided and closed prior to the issuance of the circular dated June 13, 1960 and therefore, the same could not be reopened on the basis of the aforesaid circular.

6. I have considered the rival contentions of the learned Counsel. In accordance with the terms of letter of appointment of the respondent No. 1, the temporary service rendered by him was either to be converted into a probationary one or to be terminated on the basis, of the result of the test in which he was required to appear. If the respondent No. 1 passed the test, his service was to be converted into probationary service and if he failed, his service was liable to be terminated It was in accordance with this condition that the Corporation 'converted' the respondent No. 1's temporary service into a probationary one, with effect from September 28, 1959, the date on which he was declared success full at the test in question. However, it is not possible to agree with the contend of the learned Counsel for respondent No. 1 that the conversion of the temporary service of the said respondent into a probationary one should be deemed to have become effective from the very date of the inception of such temporary service. In my view, the temporary service of the employee would stand converted into a probationary one only on his passing the test, because it was only on that date that his service would otherwise have stood terminated if he would have failed at the test. However, in view of the provisions of Regulation 19 of the Staff Regulations, the respondent No. 1 was confirmed with effect from June 26, 1959, on the expiry of six months continuous temporary service, although he was not on probation for any time prior to the aforesaid date. Regulation 16 required that an employee of Class III and IV would, on his first appointment in the Corporation, be employed on probation for six months. However, Regulation 19 provides as under:

Where an employee has rendered continuous temporary service prior to his appointment in a permanent vacancy, the provisions of Regulations 15 and 16 regarding the period required to be spent on probation may be waived at the discretion of the authority empowered in Regulation 9 to the extent of the period of such temporary service.

It is significant to notice that in the aforesaid Regulation 12 the period of probation was to be 'waived' to the extent the employee had rendered continuous temporary service in the Corporation. It has not been provided in the aforesaid Regulation that such continuous temporary service would be treated as service rendered on probation but the word 'waived' used in the aforesaid Regulation 19 leads to the conclusion that the temporary service rendered by the respondent No. 1. prior to the date of his confirmation remained as temporary service on a fixed salary. The respondent No. 1 was put on the time scale for the first time when be was confirmed with effect from June 26, 1959 and according to the Regulation 58(1)(iii), he could claim grade increment in such time scale on the first January or first July, immediately following the completion of one year of service, which would naturally be referable to service rendered in the time scale. The Authority also, on a correct interpretation of Regulation 58(1)(iii), came to the same conclusion that the respondent No. 1 could not be allowed grade increment with effect from January 1, 1960 as the temporary service rendered by him on fixed salary could not be considered for the purposes of determining the date of grade increment under Regulation 68(1)(iii).

7. As regards the contention of the learned Counsel for respondent No. 1 that service as defined in Regulation 14(2) includes the period during which an employee was on duty and as such, the service of the petitioner with the Corporation began on December 26, 1958, it may be observed that it is no doubt correct that the service as defined in Regulation 14(2) includes temporary service as well yet for the purposes of Regulation 58, in order to determine the date on which the grade increment was to fall due, the completion of one year's service in the grade concerned is the deciding factor. It cannot be lost sight of that while the respondent No. 1 was in the temporary employment of the Corporation, he was not put on the time scale but he was given merely a fixed salary and therefore, the service rendered on fixed salary could not be taken into consideration for the purpose of fixing the date of grade increment.

8. The circular dated June 13, 1963 neither amended Regulation 58 nor it brought about any change in the conditions of service of the respondent No. 1. The said circular was merely in the nature of a clarification and therefore, is difficult to appreciate the argument of the learned Counsel for the respondent that the said circular was given retrospective effect by the Corporation in rectifying its earlier error in allowing grade increment to the respondent No. 1 with effect from January 1, 1960 There is no question of any retrospective operation in the present case in as much as Regulation 58(1)(iii) stood, as it was, in the Staff Regulations, 1956, and the right of the respondent No. 1 was to be determined in accordance therewith It is absolutely illogical to say that the case of the respondent No. 1 was decided & closed and could not be reopened. If the respondent No. 1 was not entitled to get the grade increment with effect from 1-1-60 but was only entitled to the same with effect from 1.7.60, the Corporation within its rights to correct the error which it had committed earlier. It is surprising that although the Corporation had corrected its mistake in February 1962 and deducted the excess amount paid to the respondent No. 1 at that time, yet the Authority entertained the claim of the respondent No. 1 on September 21. 1970, after a lapse of almost eight years and showed the application of the respondent No. 1 even after coming to the conclusion that he was not entitled to the annual grade increment with effect from January 1, 1960 The latter part of the order of the Authority is, therefore, erroneous and the same is even contrary to the finding recorded by the Authority itself in the earlier part of the impugned order, wherein the authority came to a definite conclusion that in accordance with the Stiff Regulations 1956, the respondent No. 1 was entitled to obtain the grade increment with effect from July 1, 1960.

9. In view of the aforesaid discussion, the writ petition is allowed and the order of the Payment of Wages Authority, Ajmer, dated March 3, 1971 is quashed. However, in the circumstances, the parties are left to bear their own costs.


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