JUSTICE MRS. ERUM SAJAD GULL, J.--- The afore-titled appeal has been directed against the impugned judgment dated 03.04.2019 passed by learned Punjab Labour Court No. VII, Gujranwala.
2. Brief facts of the case as per grievance petition are that the appellant upgraded and awarded two steps time scale to all the workmen from. BPS-15 to BPS-17 as 38 LS-I on the basis of 30% of sanctioned strength, who were also qualified DPE. That the respondent fell within the 30 percent quota and also fulfilled the criteria.
Hence the respondent appeared before the Selection Board on 2.6.2015. However, the respondent was denied his right of being upgraded on account of pendency of some inquiries against him. That the case of the respondent is that of discrimination. That the competent authority exercised its discretion in a capricious and arbitrary manner as per inquiry note and Audit Para of LSIs mentioned at serial No. 5 6, 8, 19, 22, 23 and 36 were also pending but they were conditionally upgraded vide order dated 26.6.2015.
3. The grievance petition was adjudicated upon. The learned Punjab Labour Court No. VII, Gujranwala after recording of oral as well as documentary evidence of the parties and after fulfilment of other codal formalities decided the grievance petition in the following terms:-- "6. The accumulative effect of the above discussion is that the grievance petition in hand is hereby accepted with the result that petitioner is upgraded from BPS-15 to BPS-17 w.e.f. 26.6.2015 with all back benefits. This judgment will be implemented within two weeks positively."
4. The appellant aggrieved by the judgment dated 3.4.2019 of Punjab Labour Court No. VII, Gujranwala filed the afore-titled appeal before this Court.
5. Learned counsel for the appellant; inter alia, contended that other workmen of the department having similar qualifications as that of the respondent were granted time scale up-gradation provisionally as only Audit Paras were pending against them and no serious inquiries were pending against them. Further contended that only those workmen were recommended to be upgraded by the respective Selection Board of the department against whom no inquiries were pending. Also argued that the respondent is involved in six disciplinary cases out of which one is still pending against him. Therefore his name was not placed before the Board proceedings for up-gradation in scale. Contended that no violation of SOP has been committed by the Selection. Board and no injustice has been done with the respondent as other workmen against whom inquiries are pending were also not considered for up-gradation by the Selection Board. Finally contended that the afore titled appeal be accepted and the impugned judgment of the Labour Court be set aside.
6. Conversely learned counsel for the respondent vehemently opposed the arguments and grounds raised in the memo. of appeal and argued in favour of the impugned order. The counsel contended that the appellant counsel has argued the case on concocted facts as the respondent was mala fidely not considered for up- gradation in scale. Further argued that no Audit Paras or any inquiries are pending against the respondent. That workmen in the same department against whom Audit Paras and inquiries are still pending have been upgraded provisionally.
That as case of the respondent is at par with them therefore the department should have also upgraded the respondent. Finally argued that the Labour Court rightly set aside the impugned office order and upgraded the respondent.
7. Arguments have been heard and the available record with the appeal has been perused.
8. The respondent's grievance as prayed for in his grievance petition is that he be granted two steps Time Scale up-gradation from BPS-15 to BPS-17 as per office order dated 2.7.2015 passed by the competent authority Exhibit P-2. The respondent's plea before the Labour Court was that the appellant department had done away with the rule of equality and he was discriminated with by the department in the matter of up-gradation of his post while said benefit had been extended to similarly placed employees/workmen of his department. It is pertinent to mention here that the respondent impugned the decision of the Selection Committee dated 26.6.2015 and the office order dated 2.7.20'15 through a belated grievance petition which was filed on 3.1.2017 before the Labour Court. For this delay no plausible reason has been adduced by the respective respondent as to why he remained mum for one and a half year. The only reason coming to the mind for this delay is probably that he was clearing all the inquiries pending against him.
9. The question to be determined in this case is whether the plea of discrimination raised by the respondent was correct and he was not up-graded in his post vide office order dated 2.7.2015 due to mala fide of the appellant/department. While other similarly placed workmen working in the same department as that of the respondent were up-graded as per office order dated 2.7.2015.
10. The respondent has not denied that when the Selection Board had convened its meeting on 26.06.2015 six inquiries were pending against him due to which he was not recommended for up-gradation by the Selection Board. The plea of this respondent is that other of his colleagues who were upgraded had Audit Paras pending against them but still they were upgraded provisionally with a condition that within three months they would furnish certificate of clearance of pending Audit Paras against them, which they have not done till date. It has been noticed that both the parties have not exhibited the decision of the Selection Board dated 26.6.2016.
Neither have the other orders been exhibited which are mentioned in the impugned office order dated 2.7.2015.
So as to further verify the requirements of up-gradation, neither did the respondent move any application for procurement of the said orders/documents. There is a note at the back of the office order dated 2.7.2015 that before fixation of pay it shall be ensured by the concerned office that no inquiry/disciplinary case is pending against the officials and presently they are not undergoing any major penalty imposed upon them. The argument of the counsel for the respondent that having pending Audit Paras against any employee or having pending inquiry against an employee are one and the same thing is not correct. To differentiate between pending Audit Paras and pending enquiries the two terminologies are briefly discussed below:-- "Audit Para: Government expenditures are mainly managed from the public funds collected through different sources like sales tax, excise tax, income tax etc. The purpose of audit is to ensure that the funds allocated to the concerned department has been utilized as per law. Its objective includes examining fairly, independently and impartially, leakages and loss of revenue due to negligence, inefficiency, omission or commission and reporting its retrieval. Its aim is also to check the accuracy of calculation.
Any irregularity, inefficiency, omission found or question arises during the internal or external Audit are normally noted and are informed to the concerned DDOs which is called Audit Para. There is a procedure for the settlement of Audit Paras as well.
In brief Audit Para is basically a query raised by the Auditing Authority which must be satisfactorily answered."
Pending Inquiry: Means initiation of an enquiry after a complaint is lodged against an employee/workman. Which could lead to his suspension or dismissal if found guilty in the said enquiry.
11. After the name of the respondent was not considered by the Selection Board on 26.6.2015. The pending enquiries against the respondent were finalized and he was found guilty in five enquiries for which penalties were imposed upon him. Only in one enquiry the respondent was exonerated. The details of the penalties imposed against the respondent in the said inquiries is Mark-RE. While Mark-RF till Mark-RL are the office orders imposing penalties upon the respondent after he was declared guilty in the said enquiries held against him. Admittedly, the respondent has not challenged the penalties imposed upon him and has accepted the same. The document Ex.P-4 dated 28.10.2016 according to which no inquiry was currently pending against the respondent is of no avail to the respondent. As the Selection Committee had convened its meeting one year before on 2.6.2015 and at that time inquiries were pending against the respondent. Another document exhibited by the respondent is Ex.P-4/2 is also of no benefit to him as according to this document no Audit Para were pending against the respondent from 26.6.2015 to 30.9.2015. This document is also mentioning the period after the Selection Board had given its decision on 2.6.2015. Also this document is mentioning the Audit Paras and not the pending inquiries against the respondent. There is nothing on record to establish that the appellant department had any kind of enmity or animosity against the respondent due to which they made sure he was deprived of his right of up-gradation. Also the respondent has not referred to any workman in his department against whom there were pending inquiries like himself at that time who was considered for up-gradation. If that was the case then the respondent could have raised the plea of discrimination. But that is not the case here as all the workmen who were upgraded had no pending enquires against them, on 2.6.2015 when the Selection Board passed its decision. During arguments learned counsel for the respondent handed over a document dated 26.8.2016 and tried to establish that the workmen upgraded by the appellant department had not only Audit Paras pending against them but had inquires pending against them as well. This document was admittedly not exhibited before the trial Court and is a photocopy pertaining to the period after 2.6.2015 that is the date of decision passed by the Selection Board. It is possible that after the Selection Board gave its decision with the passage of time some inquiries were initiated afterwards against the said workmen. But even if that is so it is the department to decide whether the said workmen should be demoted or not. The respondent on the other hand at this stage cannot claim any benefit in the light of the said document. The respondent has hence failed to establish that at the time the Selection Board passed its decision of upgrading there were inquiries pending against some workmen of his department who were inspite of the pending inquiries upgraded. According to the office order dated 2.7.2015 the workmen against whom Audit Paras were pending the SEs concerned verified that they had seen and confirmed the relevant record which was available for verification from Audit and outstanding Paras against the officials were treated as nil.
12. Before the trial Court the appellant department produced Tariq Masih, Assistant Director, as RW-1 The said witness in his affidavit submitted before the trial Court, categorically stated that the Selection Board did not upgrade the respondent as six disciplinary cases were pending against him. in his cross-examination RW-1 further clarified that at the time when the Selection Board upgraded the workmen mentioned in the office order Ex. P/2 only Audit Paras were pending against them which were declared nil by the competent authority in the same office order the said witness admitted that no Audit Paras were pending against the respondent at that time and inquiries were pending against him due to which as per policy he was not upgraded. The respondent before the trial Court appeared as PW-1 and in his cross-examination admitted that when the Selection Board was considering the workmen for up-gradation, at that time six inquiries were pending against him. The respondent stressed before the trial Court that workmen mentioned in the office order who were upgraded had not only Audit Paras pending against them but also had inquiries pending against them but still they were upgraded. The respondent did not produce any other witness of document before the trial Court to establish his this plea of discrimination and has hence hopeless failed to establish his plea of; discrimination. The respondent has also failed to prove mala fide of the appellant department for ignoring him while up-grading other similarly placed workmen.
13. In view of what has been observed above the afore-titled appeal is accepted and Judgment dated 03.04.2019 passed by the Punjab Labour Court No. VIII, Gujranwala is set aside.