Entire Salary Differential Of Higher Post Can't Be Granted Merely Because Additional Duties Were Undertaken By Workman Of Lower Post: Gujarat HC

The Gujarat High Court has held that merely because an employee appointed to Class-IV post is handed over additional duties with respect to a higher post for a temporary period, may be during the leave vacancy of actual employee, cannot demand entire salary differential.

The Court took into account the differential aspect of appointment in Class-IV and Class-III category and concluded that merely because the petitioner, a Class-IV workman was doing additional work of Class-III category, it did not imply that he will be entitled to the pay-scale of Class-III post.

In the instant case, the workman was appointed to the post of a Ward-boy and would take additional responsibilities of a Telephone Operator which was a Class-III post. In such a case, the workman was not entitled to salary differential between the two posts. Justice Kogje explained the fallacy in the Industrial Tribunal's order in the following manner:

"The requirement of the Recruitment Rules specifies that a Ward-boy only to be literate and there is no specification with regard to selection process whereas… post of Telephone Operator being Class-III, the post had prescribed qualification of SSC pass and experience of Telephone Exchange and such person would be eligible for selection process. This being the most important aspect, the Industrial Tribunal ought not to have granted the pay scale of Class-III post to the respondent, who was admittedly appointed on the post of a Ward-boy."

The Petitioner-Corporation herein challenged the IT's order directing him to grant INR 5.4 lacs as differential amount in salary by treating the Respondent-workman as a Telephone Operator in place of a Ward-boy. It was asserted that only in the times of necessity, was the workman required to undertake duties of a Telephone Operator. The workman as a Ward-by had not undergone any selection procedure, as well. Therefore, he could claim only 'charge allowance' at best for the additional work. Per contra, the workman insisted that the Tribunal had take into consideration the duties discharged to conclude that the workman was entitled to the salary differential. Further, the Petitioner had also issued internal advertisement for appointment to the post of a Telephone Operator amongst the existing employees which included the workman.

Perusing these contentions, the Bench observed that the workman, due to past knowledge of telephone operation, undertook the duties by a 'stop-gap arrangement.' The duties were never constant or continuous. It was 'misleading' to state that the workman had performed the duty on a permanent vacant post since 1998. No such entry was made in the service book of the workman, as well. A Ward-boy could not be legally appointed to the Telephone Operator (Class-III), per the Bench. There was also no explanation as to why the Petitioner had waited for almost 11 years to raise the industrial dispute in 2009. Per Justice Kogje, the Tribunal had failed to consider that the Ward-boy's work was more physical than the Telephone Operator's. Thus, the workman got advantage out of his own choice to work as an Operator.

Keeping in view these factors, the Bench set aside the Tribunal's order granting salary differential. However, considering that the workman had worked as an operator at times, he was entitled to INR 2 lacs as difference in salary and not the entire wage differential.

Case No.: C/SCA/3813/2018

Case Title: SHARDA CHIMANBHAI LALBHAI v/s DINESH MOHANBHAI PRAJAPATI

Citation: 2022 LiveLaw (Guj) 372

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