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PETITIONER: SAVANTH (K.)

       Vs.

RESPONDENT: MYSORE ROAD TRANSPORT CORPORATION & ANR

DATE OF JUDGMENT28/02/1978

BENCH: SINGH, JASWANT BENCH: SINGH, JASWANT KRISHNAIYER, V.R.

CITATION:  1978 AIR 1133            1978 SCR  (3) 398  1978 SCC  (2) 378

ACT: Fixation  of  Pay-Initial  fixation of pay  in  the  revised scale-Scope  and ambit of clause 4 of the  Industrial  Truce Agreement  arrived  at  an  January  10,  1958  between  the management   of   the  Mysore  Government   Road   Transport Department  and the representatives of the  State  Transport Employees’ Federation.

HEADNOTE: Consequent  upon  the  Reorganisation  of  States  and   the formation of the    enlarged  Mysore  State as well  as  the expansion   of   the  Mysore   Government   Road   Transport Department,  it was considered necessary by the  members  of the State Transport Employees Federation and the  Management of  the  Transport Department to have  uniform  pay  scales, service  conditions etc. for the entire Organisation of  the Transport  Department.  Accordingly on January 10,  1958  an Industrial   Truce  Agreement  was  concluded  between   the management    of   the   Transport   Department   and    the representatives of the State Transport Employees’ Federation which  as  given  retroactive effect from,  April  1,  1957, Clause 4(a) of the agreement required the pay of an employee to  be fixed in the new scale at a stage next above his  pay in  the  existing  scale  as  on  1-4-1957  (including   the increment,  if any, accruing on that date).  After  fixation his  initial pay, in the revised scale. an  employee  become entitled  under  clause  4(b) of the  agreement  be  granted advance  increment  at  the  rate of  one  increment  for  3 completed  years of service, two increments for 4  completed years  of  service  and  three  increments  for  6  or  more completed years of service.  The fixation of pay was however made  subject to clause 4(c) which reads : "In  cases  where the minimum pay in the new scale has to be granted under sub clause  (a) of clause 4, the benefit of  advance  increments according  to subclause (b) above shall not accrue when  the increase of the minimum pay in the new scale over the pay in the  existing scale exceeds Rs. 25/- plus one  increment  in the new scale.  In other cases, where the initial pay has to be  fixed  above the minimum, the total benefit  under  sub- clause  (a) and (b) above shall be uniformly limited to  Rs. 25/-  plus one increment in the revised scale subject  to  a minimum of Rs. 51-."

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The  initial pay in the revised scale of 175-15-325  of  the appellant  who joined the service on September 1,  1950  and who  on the relevant date was drawing a pay of Rs. 150/-  in the  time  scale  of  150-10-200  was  fixed  @  Rs.  190/-. Dissatisfied  with  the  fixation,  the  appellant  made   a representation to the management urging that his initial pay in the revised scale ought to have been fixed at Rs.  220/-. On   August  1,  1961,  the  Mysore  State  Road   Transport Corporation was constituted and in view of the fact that the service  conditions  of  the  employees  of  the   erstwhile Transport Department were pro tested by Act 34 of 1951,  the appellant  opted for service under the Corporation and  kept on pursuing the earlier representation for correct  fixation of  pay.  His efforts having failed, he made an  application on  December 20 1965 before the Labour Court  under  section 33(c)  (2) of the Industrial Disputes Act, 1947  for  proper adjudication.   Holding that the appellant’s pay had  to  be fixed  at Rs. 220/- p.m. in the pay scale of Rs.  175-15-325 with  a  dearness allowance @ Rs. 501- p.m. as on  April  1, 1957, the Labour Court by its order dated September 30, 1966 allowed  the  claim  of  the  appellant  and  directed   the Corporation to pay him a sum of Rs. 3,345.29 Ds. on  account of  the  benefits  claimed  by  him.   When  this  view  was challenged  before  the High Court by an  application  under Art. 226, the High Court allowed the petition and held  that the  fixation  of  pay at Rs. 190/- made  by  the  erstwhile management was correct. Allowing the appeal by special leave, the Court 399 HELD  :  1. A plain reading of clause 4  of  the  Industrial Truce  Agreement makes it crystal clear that the pay of  the appellant as on April 1, 1957 in the then existing scale  of Rs. 150-10-200 being admittedly Rs. 1501- i.e. less than the minimum pay of the revised scale of Rs. 175-15-325, it  had, according to clause 4(a) of the Agreement to be fixed at Rs. 175/-  which  is  the minimum of  the  revised  scale.   The appellant having put in more than six years’ service and his case  being  clearly  outside the pale  of  the  prohibition envisaged by the first part of sub-clause (c) of clause 4 of the  Agreement,  he had to be granted the benefit  of  three advance increments in terms of the formula contained in sub- clause (b) of clause 4 of the Agreement which would take his initial pay to Rs. 220/-. [402 D-E] 2.   The  second part of sub-clause (c) of Clause 4  of  the Agreement operate only in these cases which fell within  the prohibition contemplated by the first part of sub-clause (c) of  clause 4 i.e. where the increase in the minimum  pay  in the revised scale over the pay in the scale which existed on April 1, 1957 exceeds Rs. 25/- plus one increment in the new scale i.e. if it exceeds Rs. 25/plus Rs. 15/- totalling  Rs. 40/-.   As in the instant case the increase of  the  minimum pay  in the new scale does not exceed Rs. 40/-,  the  second part of sub-clause (c) of clause 4 which is residuary cannot be invoked by the Corporation. [402 E-G] 3.   The  words "in other cases" occurring in the  residuary part of sub clause (c) of clause 4, make it abundantly clear that it is only where a case does not fall within purview of the  first part of sub-clause (c) of clause 4 that it  would be  governed by the second part of the sub-clause.  [402  H, 403 Al

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1502  of

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1971. (Appeal  by Special Leave from the Judgment and Order  dated 14-12-1970  of  the Mysore High Court in Writ  Petition  No. 1176 of 1967). E.   Udayarathnam for the Appellant. S.   V.  Gupte  Attorney  General  and  J.  Ramamurthi   for Respondent No. 1. The Judgment of the Court was delivered by JASWANT  SINGH,  J. This appeal by special  leave  which  is directed  against the-judgment and order dated December  14, 1970  of the High Court of Mysore at Bangalore allowing  the writ petition No. 1176 of 1967 filed before it by the  first respondent  herein  under  Articles  226  and  227  of   the Constitution  and  quashing the orders dated  September  30, 1966 and January 1, 1967 of the Labour Court, Bangalore made in  the  appellant’s application No. 171 of 1965  raises  an interesting  question as to the scope and ambit of clause  4 of the Industrial Truce Agreement arrived at on January  10, 1958  between the Management of the Mysore  Government  Road Transport  Department and the representatives of  the  State Transport Employees’ Federation. It  appears  that the appellant entered the service  of  the Bangalore  Transport Company Ltd. on September 1, 1950 as  a Probationary Traffic Supervisor on a salary of Rs. 80/-  per mensem.   On completion of his probationary period,  be  was confirmed  in the said post on a salary of Rs. 100/- in  the pay scale of Rs. 100-10-150.  By virus of the powers  vested in it under the Bangalore Road Transport Services Act No.  8 of 1956, the Government of Mysore acquired the 400 Bangalore  Transport Company Ltd. with effect  from  October 1,1956  with the result that along with other  employees  of the  Company,  the appellant became a civil servant  in  the Transport  Department  of  the Government  of  Mysore  which catered  to  the transport requirements of the  public.   In course  of  time, the appellant was appointed  as  Assistant Traffic  Superintendent and was given a higher pay scale  of Rs. 150-10-200.  On April 1, 1957 when he held that post, he was  in  the pay scale of Rs. 150-10-200 and was  drawing  a salary  of  Rs. 1501- P.M. With the Re-organisation  of  the States  and  the formation of the enlarged Mysore  State  as well  as  the  expansion  of  the  Mysore  Government   Road Transport  Department (hereinafter referred to as  Transport Department) comprising of the Hubli Region of the  ex-Bombay State Road Transport Corporation, the Raichur Section of the ex-Hyderabad   State  Road  Transport  Department  and   the Bangalore  Transport Service of the  ex-Bangalore  Transport Company  Ltd.  having their respective pay  scales,  service conditions etc., it was considered necessary by the  members of  the State Transport Employees Federation as well as  the Management  of the Transport Department to have uniform  pay scales, service conditions etc. for the entire  Organisation of  the Transport Department.  Accordingly, on  January  10, 1958,  an Industrial Truce Agreement was  concluded  between the   Management  of  the  Transport  Department   and   the representative of the Transport Employees’ Federation  which was given a retroactive effect from April 1, 1957.  Clause 4 of  this  Agreement  which  was  intended  to  bring   about uniformity of pay scales in all the divisions of the  Trans- port Department provided as follows :-               "4.  Weightage in the revised pay scales  will               be admissible only to the regular employees of               the  Government Road Transport  Department  of               Ex-State of Mysore and the Bangalore Transport               Service Unit.

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             (a)   The pay of an employee shall be fixed in               the new scale at a stage next above his pay in               the  existing scale on 1-4-1957, and,  if  his               present  pay is less than the minimum  of  the               revised scale, his pay shall be fixed at  such               minimum in the revised scale.               Note-The pay in the existing scale on 1-4-1957               includes  the increment, if any,  accruing  on               that date.               (b)   After fixing the pay as above i.e.  4(a)               lie shall be granted advance increments in the               revised scale as under :               (1)   For  3  completed  years  of  service--I               Increment.               (2)   For  4  completed  years  of   service-2               Increments.               (3)   For   6  or  more  completed  years   of               service-3 Increments.               Note-Service means, the entire service of  the               employee  irrespective  of the grade  held  by               him. 401               (c) In cases where the minimum pay in the  new               scale  has to be granted under sub-clause  (a)               of clause 4, the benefit of advance increments               according  to  subclause (b) above  shall  not               accrue when the increase of the minimum pay in               the  new  scale over the pay in  the  existing               scale  exceeds Rs. 25/- plus one increment  in               the  new  scale.   In other  cases  where  the               initial pay has to be fixed above the minimum,               the  total benefit under sub-clauses  (a)  and               (b)  above shall be uniformly limited  to  Rs.               25/-  plus one increment in the revised  scale               subject to a minimum of Rs. 5               (d) The above principle shall apply in  fixing               the  initial  pay  both  in  substantive   and               officiating appointments.               (e)  When the weightage under  sub-clause  (b)               above  takes the total pay beyond  the  scale,               the difference is treated as personal pay.               (f)  The  future increments will  accrue  from               1-4-1958." After  the  conclusion  of the  aforesaid  Industrial  Truce Agreement, then management of the Transport Department fixed the  initial  pay of the appellant in the new scale  at  Rs. 190/-.  Dissatisfied with this fixation,the appellant made a representation to the management urging that his initial pay in  the revised scale ought to have been fixed at Rs.  220/- and that it had been wrongly fixed at Rs. 190/-. On August 1, 1961, a Corporation styled as the Mysore  State Road Transport Corporation’ (hereinafter referred to as ’the Corporation’)  was constituted under section 3 of  the  Road Transport Corporation Act (Act 34 of 1951).  By virtue of  a notification  issued  by  the  Government  of  Mysore  Under section  34  of  the  Act, the  Corporation  took  over  the business of the, Transport Department together with all  its liabilities  as  the sole successor of the  Department.   In view  of the fact that the said notification  protected  the service  conditions  of  the  employees  of  the   erstwhile Transport Department, the appellant opted for service  under the   Corporation   and  kept  on   pursuing   the   earlier representation  made by him for fixation of his initial  pay as on April 1, 1957 at Rs. 220/- in terms of the first  part of  sub-clause  (c)  of clause 4  of  the  Industrial  Truce

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Agreement.  The  efforts made by him in this  behalf  having proved  ineffective,  the appellant made an  application  on December  2O,  1965 before the Labour  Court  under  section 330(2)  of the Industrial Disputes Act, 1947  claiming  that his initial pay as on 1, 1957 had been wrongly fixed by  the management  of  the  Transport Department at  Rs.  190/-  as against Rs. 220/to which he was entitled by virtue of clause 4  of  the Industrial Truce Agreement.  The  appellant  also claimed  increase in his dearness allowance in terms of  the said agreement.  Holding that the appellant’s pay had to  be fixed  at  Rs. 220/-P.M. in the pay scale of  Rs.  175-15325 with  a dearness allowance of Rs. 50/- P.M. as on  April  1, 1957, the  Labour  Court  by its order dated  September  30,  1966 allowed  the  claim  of  the  appellant  and  directed   the Corporation to pay him a sum 402 of Rs. 3,345.29 p. on account of the benefit claimed by him. The Order was challenged by the Corporation before the  High Court  of Mysore by means of a writ petition under  Articles 226 and 227 of the Constitution.  By its aforesaid  judgment and  order dated December 14, 1970, the High  Court  allowed the  petition and held that the erstwhile management of  the Transport Department was right in fixing the initial pay  of the  appellant at- Rs. 190/-.  It is against  this  judgment and  order that the appellant has come up in appeal to  this Court by special leave, as already stated. In the absence of the appellant who has chosen not to appear despite  service, the learned Attorney General has taken  us through  the material on the record and has urged  that  the High  Court was right in reversing the order of  the  Labour Court  and upholding the contention of the Corporation  that the initial pay of the appellant could be fixed only at  Rs. 190/- and not at Rs. 220/- as claimed by the appellant. We  have given our careful consideration to the  submissions made by the learned Attorney General but are unable to agree with him. A  plain  reading  of  clause  4  of  the  Industrial  Truce Agreement  reproduced above makes it crystal clear that  the pay  of  the  appellant  as on April 1,  1957  in  the  then existing scale of Rs. 150-10-200 being admittedly Rs.  150/- i.e.  less than the minimum pay of the revised scale of  Rs. 175-15-325,  it  had,  according  to  clause  4(a)  of   the agreement, to be fixed at Rs. 175/- which is the minimum  of the aforementioned revised scale.  Now the appellant  having put  in  more  than six years’ service and  his  case  being clearly outside the pale of the prohibition envisaged by the first  part of sub-clause (c) of clause 4 of the  Agreement, he had to be granted the benefit of three advance increments in  terms  of  the formula contained in  sub-clause  (b)  of clause  4 of the Agreement which would take his initial  pay to Rs. 220/-.  The second part of sub-clause (c) of clause 4 of  the Agreement which is heavily relied upon on behalf  of the Corporation has no applicability to the present case  as that  part  would  operate only in those  cases  which  fall within  the  prohibition contemplated by the first  part  of sub-clause  (c) of clause 4 i.e. where the increase  in  the minimum  pay in the revised scale over the pay in the  scale which  existed  on April 1, 1957 exceeds Rs. 25/-  plus  one increment in the new scale i.e. if it exceeds Rs. 25/-  plus Rs. 15/- totalling Rs.   40/-.   As in the instant case  the increase of the minimum pay in the new scale does not exceed Rs. 40/-, the second part of sub-clause (c)  of   clause   4 which  is  residuary cannot be invoked by  the  Corporation. The High Court was, therefore, patently in error in  holding

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that the case of the appellant was covered not by the  first part  of  subclause (c) of clause 4 but by the  second  part thereof.   In  so  holding,  it  ’Obviously  overlooked  the significance of the words "in other cases" occurring at  the commencement of the second part of sub-clause (c) of  clause 4.  The said words make it abundantly clear that it is  only where  a case does not fall within the purview of the  first part of subclause (c) of clause 4 that it would be  governed by the second part 403 of  the  sub-clause.  As the case of the appellant  was  not covered  by the ban imposed by the first part of  sub-clause (c) of clause 4 of the Industrial Truce Agreement, he  could not have been denied the benefit ,of the advance  increments which   accrued  to  him  under  sub-clause   (b)   thereof. Accordingly, the order of the High Court which suffers  from a patent erro r cannot be sustained. In  the result, we allow the appeal, set aside the  judgment and  order of the High Court and restore that of the  Labour Court.  In view of the fact that the appellant has failed to appear, we make no order as to costs. S.R                      Appeal allowed. 404