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[Cites 3, Cited by 3]

Madhya Pradesh High Court

Data Ram Kuber vs The Mp State Co-Operative Dairy ... on 3 December, 2013

              Data Ram Kuber Vs. The M.P. State Co-operative Dairy Federation Ltd. & Ors.

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                    Writ Petition No. 16199 / 2011
3.12.2013.

         Shri Brain D'Silva, learned Senior Advocate with Shri
G.P. Dubey and Shri V. Bhide, counsel for the petitioner.

         Shri Pranay Gupta, learned counsel for respondent

Nos.1, 2 & 3.

Smt. Sharda Dubey, learned Panel Lawyer for respondent No.4/State.

Challenging the action of respondent Corporation in denying the petitioner various benefits and passing an order rejecting the claim of petitioner, this writ petition has been filed.

Petitioner was working in various Cooperative Unions (Milk Federation) and an order was passed in the year 2002 compulsorily retiring him from service. The compulsory retirement of not only the petitioner, but all the other employees were challenged before the High Court by all the employees. The challenge was accepted by the High Court and even though initially the Single Bench of this Court dismissed the writ petitions, writ appeals have been filed and a Division Bench of this Court found that compulsory retirement ordered by respondent federation was not correct. The recording of ACR based on which the decision was taken to treat the employees as dead wood was found to be unsustainable and the compulsory retirements were quashed Data Ram Kuber Vs. The M.P. State Co-operative Dairy Federation Ltd. & Ors.

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by the Division Bench vide order dated 9.10.2007 in various writ appeals. The orders were passed in various writ appeals including W.A. No.662/2006 decided on 9.10.2007. The Division Bench held compulsory retirement to be illegal and directed for reinstatement of employees but only granted 20% backwages for the intervening period.

At the instance of employees and the respondent cooperative society matter traveled to the Supreme Court and the Supreme Court upheld the order passed by the Division Bench of this Court, did not interfere with the quashment of the order of compulsory retirement, but only interfered with the order passed in the matter of granting backwages and modified the order of granting 20% backwages. The Supreme Court enhanced the backwages and directed for payment of 50% backwages. As a result of the order passed by the Supreme Court on 15.4.2009 the position is that the compulsory retirement of all the employees, including the petitioner herein was quashed and he was directed to be reinstated by granting 50% backwages.

As far as this aspect of the matter is concerned, the same has been finalized and there is no dispute in the matter. However, after the reinstatement the petitioner have now filed this writ petition claiming the following reliefs :

The first relief claimed is that after the decision was taken by the Division Bench of the High Court on 9.10.2007 Data Ram Kuber Vs. The M.P. State Co-operative Dairy Federation Ltd. & Ors.
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petitioner is entitled to full backwages for the period after 9.10.2007 till decision was taken by the Supreme Court on 15.4.2009. It is stated that for this period instead of granting only 50% backwages full backwages be granted to the petitioner.

Having heard learned counsel for the parties, I am of the considered view that now this question cannot be looked into by this Court. When the matter was decided by the Supreme Court on 15.4.2009 the Supreme Court directed for reinstatement of petitioner with 50% backwages and as the Supreme Court has restricted grant of 50% backwages the order of Supreme Court has to be implemented after it was passed on 15.4.2009, as the order passed by the High Court dated 9.10.2007 merges with the order of Supreme Court. That apart, as the Hon'ble Supreme Court has not issued any order in this regard, petitioner is only entitled to 50% backwages till the matter was decided by the Supreme Court on 15.4.2009. Accordingly, the first relief claimed for full backwages from 9.10.2007 to 15.4.2009 cannot be allowed. To that extent the relief claimed is rejected.

The second relief claimed is that for the entire period when the petitioner remained out of service due to the illegal compulsory retirement the entire provident fund contribution i.e. 100% contribution should be deducted and amount credited to the Provident Fund Account of the petitioner. This Data Ram Kuber Vs. The M.P. State Co-operative Dairy Federation Ltd. & Ors.

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is also not permissible in view of clause 29.3 of the Employees Provident Fund Scheme 1952. It is clearly stipulated in the scheme that the contribution shall be calculated on the basis of basic wages and allowances actually drawn during the whole month, i.e. on the basis of actual work of the employee and once the employee have not worked, actual contribution cannot be deducted for the period when they are not working.

That apart, this question has already been considered and decided by the Supreme Court in the case of Prantiya Vidhyut Mandal Mazdoor Federation Vs. Rajasthan State Electricity Board and Others, AIR 1992 SCC 1737. It has been held by the Supreme Court that when arrears of backwages are paid retrospectively and there is no actual performance of work, the contribution towards Provident Fund cannot be made under this scheme, accordingly, in the light of aforesaid statutory principle the second relief also cannot be granted and the same is also rejected.

The next relief claimed is that for the period when petitioner was out of employment and when the impugned action of compulsory retirement was in existence, certain benefit for pay as per the 5th pay commission recommendations were to be implemented by the respondent federation and some allowances in lieu of implementing the 5th pay commissions recommendation were granted to the Data Ram Kuber Vs. The M.P. State Co-operative Dairy Federation Ltd. & Ors.

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employees. It is stated that petitioner was not granted these allowances. It is pointed out by Shri Brain D'Silva, learned Senior Advocate that in the light of law laid down by the Supreme Court in the case of Chairman-cum-Managing Director, National Textiles Corporation Ltd. And Others Vs. N.T.C. (WBAB and O) Ltd. Employees Union and Others, AIR 2004 SC 179 and on the principle of equal work and equal wages petitioner is entitled to the benefit of allowances as other employees working in the respondent federation have been granted.

Respondents have filed the reply and it is pointed out by the respondents that petitioner is deputed to work in various cooperative union and allowance is paid by the cooperative union depending upon the financial condition of the respective union. Based on their financial condition certain unions have granted allowance and certain unions have not granted allowance. Accordingly, it is stated that petitioner cannot claim allowance in lieu of implementation of 5th pay commission recommendation.

Shri Brain D'Silva refuted the aforesaid and pointed out that petitioner is employed in the respondent federation and thereafter deputed to work with a particular union and if in lieu of order of deputation passed petitioner is required to work in a union where employees are not getting the benefit of allowance, the same cannot be denied to the petitioner, Data Ram Kuber Vs. The M.P. State Co-operative Dairy Federation Ltd. & Ors.

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when other employees originally working in the federation are getting the said benefit, it is said that this is in discrimination and in violation of Article 14 of the Constitution.

Keeping in view the aforesaid grievance of petitioner I am of the considered view that rejecting claim of petitioner for grant of allowance is not proper, each and every case has to be examined in the light of right accruing to the employees by virtue of their contract of appointment in the dairy federation and after considering the benefit granted to the employees of dairy federation a decision taken after applying the law laid down by the Supreme Court on the principle of grant of equal work for equal wages. That being so, respondents are directed to reconsider the question for grant of allowance to the petitioner in lieu of 5th pay commission recommendation. On petitioner's raising the claim along with relevant documents before the respondents, the respondents shall reexamine the claim in the light of observations made hereinabove and shall decide the claim for grant of aforesaid allowance within a period of 45 days from the date of receipt of certified copy of this order.

Next relief claimed is non-consideration of case of petitioners properly for the purpose of grant of time bound promotion during the period they have came out service. It is pointed out by learned counsel for the petitioner that the Data Ram Kuber Vs. The M.P. State Co-operative Dairy Federation Ltd. & Ors.

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claim of petitioner for grant of time bound promotion is rejected on the ground that the ACR's of petitioner are not up to the mark. It is pointed out by Shri Brain D'Silva, learned Senior Advocate that the ACR's based on which the claim of petitioner for time bond promotion is rejected was already considered by the High Court at the time of evaluation of claim of petitioner when challenge to the compulsory retirement was made and it has been held by the High Court that the ACR's were not written properly, finding there to be illegality in recording of ACR's interference into the matter of compulsory retirement was made by the High Court, it is, therefore, said that on the basis of same CR now time bound promotion cannot be denied.

Shri Pranay Gupta, learned counsel for the respondent refuted the aforesaid and submits that High Court has not made any observations with regard to recording of ACR and, therefore, no such illegality is committed. It is also apparent from the record that in the case of certain employees, who are before this Court time bound promotion is already granted, but certain employees have not been granted time bound promotion.

Keeping in view the fact of each case and based on the service record claim for time bound promotion, has to be evaluated separately and a decision taken. Accordingly, the question with regard to the employees who have not been Data Ram Kuber Vs. The M.P. State Co-operative Dairy Federation Ltd. & Ors.

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granted time bound promotion the matter is remanded back to the respondents with a direction to examine the case of each individual separately, grant opportunity to hear to the individual, thereafter to consider and decide the claim for time bound promotion afresh in accordance to law within a period of 45 days.

While considering the case for time bound promotion of the employees like the petitioner who have not granted these benefits, observations if any made by the High Court in the matter of recording of ACR shall be taken note of and decision taken. The decision making process shall be concluded within a period of 45 days from the date of receipt of certified copy of this order.

With the aforesaid, the petition stands disposed of.

Certified copy as per rules.

(RAJENDRA MENON) JUDGE ss/-