Karnataka High Court
B.E.L. Officers Association vs Bharat Electronics Ltd,. on 26 August, 2011
Author: Anand Byrareddy
Bench: Anand Byrareddy
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 26'7 DAY OF AUGUST2016
BEFORE
THE HON' BLE MR. JUSTICE ANAND BYRAREDDY.
WRIT PETITION Nos.25988 =, 25966 OF 200 x : RES)
C/W:.
WRIT PETETION Nos. 8424. 18425 OF 2 09 (8: Rj
IN W.PUNos.25958 -- 25960 OF 2009. (S- RE S)
BETWEEN:
I,
nm
B.ELL. Officers' Association, °
Jalahalli, ne nO
Bangalore -- < "560 GiB
Repre ssented by Hs ©
Preside ae Dr. Tr. K. Vijaya asar rathy
Me, Ramaiah Koa
Ae ged about 60> years,
a Sk » Guinadham,
. Residing at No. 104, RK Gardens,
had a
» New BEL Road
© Cross)-b¢ hind Gowri Apartments,
Bunge lore -- 560 054.
Mr.G RS ampath Girl,
Aged about 59 years,
* . S/o.G.S.Ramachar,
Residing at No. 184,
&
Be GL ace SC On SS GU ase Can
a
"Ady (OC cate for MIs. A.G.H. Associates)
- Coustitution of India, praying to quash the office order
"No. HO/798/017 dated 24.06.2009 issued by the second
Ta
4" Main. 6" Block,
BEL Layout,
Vidyaranyvapura, po
Bangalore -- S60 097. . PETER ON ERS
(By Shri. Gk. Vv. Murthy and Shr.Pbo imesh, Advocates) a
AND:
{. Bharat Electronics Limited,
Corporate Office,
Outer Ring Road,
Nagavara,
Bangalore -- 560045, 0.
Represented by its Ch arimars
And Managing Director
be
The General Manager ( HR):
Bharat Elec te onice himi fee 1,
Corporate Office.
Outer Ring Road,
Nagavare,
Bangal lore: = 360: G45.
RESPONDENTS
(By Sh WhALG, Holl la, Senior Advocate for Shri. P.D. Vishwanath,
These Writ Petitions filed under Article 226 of the
eae
IN W.PLNos. 1) 8424-18425 OF 2009 (S-R)}
BETWEEN
|. BEL Technical Cadre
Association,
Represented by is
President Sri Pashupathi,
Aged about 62 years.
baa
H lakshman Rao Sindhe,
Aged about 60 years, _
BEL Technical Cadre ~ nn
Association, MS -- os PETITIONERS
(By Smt. H.Mangalamba Rao, Advocate)'
AND:
i. The Management of BEL
Jalahallt, Represented by)
HUR Manager. >.
Government of India:
Ministiy of Defence,.
Department of Defence Production,
New Delhi,
"No, }9(s8) 2005°D, BEL
"By its Secretary. _.. RESPONDENTS
By Shri A.G.Holla, Advocate for M/s. A.G.H. Associates for
Respondent No.2
~ Respondent No.| ~ served)
g
ee
oe .
; offic cers who are known as executives, working in the first
ie
These Writ Petitions are filed under Articles 226 and 227
of the Constitution of India, praying to quash the office ore der a
Annexure-A dated 24.6.2009 vide Annexure-A and etc. ©
é
These Writ Petitions coming on for Hearing. this day, he:
court made the followmeg:
These matters are heard and disposed of toget het ot as they
involve identical issues.
2. Heard SG KV. Murthy, "Teas ned counsel for the
netitioner in the 'ust of these setitions and the learned Senior
ed counsel for
Advocate Sri A G Holl la appear ne for the learne
the respondents.
3... The brief facts are as follows:
6 Vee first t petition jer is an Association registered under the
Karnataka Societies Registration Aci, 1960 consisting of
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respondent/Company. It is stated that in the year 1977, the first
a
respondent had introduced a "Scheme of Encashment of
Annual Leave" providing for encashment of annual leave-hy its
executives and workmen. The first respondent by an order'
dated 13.05.1982 amended the scheme by substituting Rule So.
with a new Rule whereby the number of days in & month | WS
deemed to be 26 and the following- illustration was 'provided for
purposes of computing the amount af leas re 'encashment.
"Illustration: An employee whose basic pay
is T1200 fom. with DA at %360/- p.m. applies
for enzashinetit ot leave' to the eatent of 20 days
which is admissible. under the Rules . Phe amount
of encashmesit, will he: ( 1200 + 360/26 x 20 +
=] 200/-"
A, o The _ respondent by an order dated 04.07.1985
; thereafter had issued a consolidated scherne of encashment of
leave. in wh ich again the umber of days in a month was stated
"is 26 for purposes of computation of leave encashment. This
- practice continued for a period of nearly three decades and
when matters stood thus, it is the case of the petitioner that the
5
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Ee
a
first respondent issued an order dated 23.06.2006 ame ndin
He
Rule 5.2 of the Leave Encashment Scheme and substi the
same with a new rule by virtue of which, for the conipytation of"
leave encashment amount, the number of days ina month was"
changed to 30 instead of 26, which was an established oractice |
& ae : *
for over 3 decades. Here again, there was ailhistraticn insofar
as the manner of imple mentation ot the 'Rule was concerned
which is as under: |
"fIhisization: Ap-employee whose basic pay
© 20U00/- pe moet with DA at @5301/. per
month, applies : for encashment of jeave to the
extent.of 20 days. which is admissible under the
_ Rules. The amount ¢ yf encashment will be: (9000 +
5 5301/30 x 20 = 29,534 Af",
This had been challenged before this Court by way of a
"writ petition both by the workmen as well as the officers by
Ww ay of Writ Petitiens in W.P.No.8743/2006 -- and
-WP.8653/2006 . The pefitions were contested. However, the
wo
_
es ee
ne
s
cae
same were allowed by an order dated 23.06.2006 on two
grounds:
- Firstly that in framing the leave rules for ifs emplavees:
amendment by which the new Rule was. introduced had. hot
been approved by the Board of Directors and secondly, that the
petitioners had not been heard before: ihe. same was sought to be
amended, It is on those tyo erounids that' the impugned
amendment was serat-naught and the matter was remanded for
a tresh consideration in cerns of the observations made therein,
by an order dated. 19. 2. 20006, Pursuant to which, the second
respondent™ by a farther sider dated 27.2.2007 restored the
earlies rule of coriiputing leave encashment amount on the basis
- _ of 26 days ina. month, Subsequently, a notice was issued
iny iting ob jee tions as regards the proposal to calculate the leave
> encashment on the basis of 30 days a month. Objections were
ined and inspite of the same, the second respondent proceeded
_ te issue an Office Order dated 24.06.2009 amending the leave
Fae
RGU eG
encashment rules again inserting the very Rule which was
under challenge earlier. The same is reproduced hereunder for
In computing the Encashinent_ amount, ihe
rate of encashment per day Of leavé shall first. be'~ .
arrived at. Por this purpose, the monthly rate of
basic pay, personal. pay, if any, and _ Dearness
Allowance shall be added and 'thé-sam sa arrived
at shall then. be divided by Thinty (30). The
resultant figure shall-be the raté.of encashment per
day of leave. "The number of days of leave to be
encashed should then by inultiplied by this rate of
encashment perday fer arriving at the encashment
amount payable. ~
~ TLLUSTRATION: An executive whose basic pay
a ig Z29) OO). per month with DA at €4,918/- per
| "inonth applies for encashment of leave to the
extent of 20 days, which is admissible under the
rules. The amount of encashrment will be:
£29100 + 4918130 x 20 = 222,679".
tgs in this backeround that the petitioners are before this Court.
£5 &
B
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SST
5. The learned counsel for the petitioners would point out
that the second respondent had no authority to Bess he
impugned order as the same was not done with the api DEOV va or
the Beard of Directors and secondly, che same. has been 1 m ade -
applicable to executives alone and not to work men: whereas the
scheme was common to both the executives and tae workmen
from inception and the number of days in a month consistently
having been taken as 26, the feason "or the crease to 30 days
is discriminatory an We F violative 2 of: Art fk a of the Constitution
of India. AS ani ican of how the Rule adversely affects the
employees the. CASE: of 2 2 2" petitioner is clted. That he retired
on 31.7 7.2009. and ad accuinulated leave of 280.5 days to his
. credit cat the time of retirement and by virtue of the impugned
° . rule, he was paid $5,72.882/- whereas prior to the amendment.
he would have been entitled to €6,61,020/-. Thereby he has
incurred a loss of over €88,138/- by virtue of the impugned
ic. Similar is the case of the third petitioner who has suffered
adoss of €46,217/-. It is thus the contention of the learned
VN
|
:
counsel for the petitioner, that though the respondents had filed
objections to the notice issued as per the directions. of this
Court, to hear them before amendment of the ~Rule: the~
expressed with reference to the objections that were filed, [tus --
thus contended that there is absolutely no application of mind in
the second respondent having proceeded to seemingly comply
with the orders of this Court, while 'not hhasing taken into
account the objections raised by ine petitioners and hence, it is
violative of principles of natiral justice and suffers from the
very vice on the eround on Which the earlier order of this Court
was passed settin g-at-naught the rule. It is contended that if the
. impugned order has. beer made with an intention to give effect
oto. the directions issued by the Ministry of Defence,
Government of India, it would hardly be necessary to call for
objections from the Executives and workmen and that exercise
"having been undertaken pursuant to the directions issued by this
. Court, it is a travesty of justice that the respondents have failed
%
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OOS
ee SES
to adress the same as the fate of the objections was never made
known to the petitioners. The circumstance that executives and
the workmen of the respondents worked on an average of 26°
wees +
days in a month, as there are generaily 4Sundays which-are -
holidays in a month and the wages are fixed by takiny this into --
consideration, Hence, there is ne justification for taking 30
days as comprising of a month only for purposes of calculation
of leave encashment. The respondent was not bound to follow
the directions of the Ministry of Defence without exercising its
independent judgement in reversing an established rule and
practice which was consistently epplied for over three decades,
as held by the Apex Courtin-the case of Sureshchandra Singh
7 And "Others Vs Fertilizer Corpa. OF India Ltd. (2004) 1 SCC,
592 that each. public sector establishment is an independent
body which haz its own service conditions.
_6. ft is further contended that the law insofar as the
number of days in a month which is required to be taken as 26,
a
eee
is the settled legal position and in this regard. the learned
a
counsel would seek to rely on the case of Digvijay Woollen
i044) and even though the said
decision was rendered: inthe
context of The Payment of Gratuity Act, 1972, the ratio would
be squarely applicable to the ficts of the case. In that, it is
contended that when an officeris entitled to-fuli wages for the
entire month by actually worsing for 26 days, the same should
be taken as the basis. for purposes of leave encashment, as well.
This is emphasized. by the learned counsel with reference to the
circumstance.that fixing 30 days as comprising a month ts also
. not tenable since the morth of February may comprise of 28 or
-..29-days depending on the year. Hence, the number of days in a
month bemg (xed at 26 by taking the average number of
3
's, sworking days was in accordance with the actual fact situation
t z
~ end this has been consistently followed for over three decades.
lias this which is the there of the petitions. Insofar as the
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a
Gasser
say
es
be OES:
second of these petitions is concerned, the only difference being
the petitioners claim to be in the technical cadre. of -the
responden/VCompany. Beyond this, there is no significant ™
difference between the petitioners in thé first and the second of
these petivions.
7. Yet another contention that is -raised 'by the: learned
counsel for the respondents is that, Article. [14 ef the Articles of
Association of the respondent. -- Cempany empowered the
President of 'india te issue. certain directions in the matter of
governance of the Company, which reads as follows:
Article | 14: ighies of the President:
_ "Notwithstanding anything contained in any of
_ these Articles, the folowing powers shall be reserved by
the President to be exercised at his discretion:
> (ip de give directions to the company as t the
"exercise -and performance of its functions in matters
- invelving national security or substantial public interest and
io ensure that the Company gives effect to such directions'
Gi) to call for such refurns, accounts and other
"nformation with respect to property and activdies of the
Company as may be required from time to time.
ef?
h
apni
OS SOROS CSU SSE
ESSE
The Directors shall duly comply with and give immediate
effect to directives so issued.
Proviso to Articie | i4
PROVIDED THAT all directives issued by the president.
shall be in writing addressed to the Chairman. The Board
shall, except where the president considers. that the interes.
of the national security required otherwise, incorporate the
contents of directives issued by the President inthe Annual
Report of the Company and also indicate i us Tpact Ob the =~
financial position of the Company.)
:
and from a reading of the ue me ie Tearae ed. counsel for the
petitioners having con tended 1 that it it is the: 'President al alone who
shall give directions «0 the. Company as to the exercise and
performance of the unctions in wiatters mvolving national
security or substantial public. interest and to ensure that the
Company sives effect t (6. such directions. In the instant case,
"the directive issued by the Ministry of Defence is not an order
of the, President which would compel the respondent --
Company, to ir ity plement the same. In this regard, he would
~ place reliance on the judgment of the Supreme Court in the case
of Sureshchandra Singh and Others vs. Fertilizer Corpn. Of
ee?
oO
ae
ea
india Limited and others reported in 2004 (1) SCC 592 to
contend that all instructions / guidelines issued by thie.
Government of India would be of two kinds: G@) 'Direciives ~
issued in the name of the President of India, anc! (ii) Guitelines, :
directives as issued by the Administrative Ministry in the naaie
of the President while all other instructions 'ested, by 'the
Department of Public Enterprises or by "the Administrative
Ministry are only advisory which the Board of Directors of the
public sector undertakings concerned may in their discretion
adopt or not, for reasons ro be recorded in writing.
8. The learned counsel 'also contended that the said
amendment wale therefore not prompted by any directive issued
'in the name "ef the President of India and the same being
advisory in ature and ought to have been mechanically applied
_ without independent application of mind by the respondents
"and without indicating reasons and the object which was sought
%
to be achieved by such amendment which was a practice in
vogue for over three decades.
appearing for the learned counsel for the respendents would
submit as follows:
Gi) The respondent -- Company bad framed a scheme of
encashment of annual leave by its office order-dated 3.12.1977
and it was modified from time.to time. The computation of
encashment of armual-leave.amount per day is arrived at by
-
adding the monthly wages (Basic wages plus DA) divided by 30 days. However, the said office order was amended with effect from 13.5.1982 wherein the computation of encashment of.anrpual leave amount per day is arrived at by adding the monthly wages (basic pay plus personal pay plus DA) which is . divided by 2G days, instead of 30 days. This was consolidated "and reissued with effect from 4.7,.1985. The Management while doing so, had reserved the right to interpret, reverse or as modify or withdraw the above scheme af its discretion. [1s stated that the annual proprietary audit in the year 2005 carried out by the office of the Comptroller & Auditor General of India ™ had raised objection to the said computition of encashment of | annual leave and submitted its report to. the Goverament. The communication having been received by the resrondent, the office of the Comptroller and Auditor General of India, by letter dated 10.08.2005 addressed to. the Secretary, Department of Public Enterprises, Minisiry of Heavy Industries and Public Enterprises, mentioned that. some (of the public sector undertakings including the. respondent were still adopting 26 days a month instead of 30 days and thereby are making excess "month. The-Government of India agreed with the audit objections and. communicated that a month is normally taken as "to consist Gf 30 days as was the general practice followed by L the Central Government and it is in this background that the .Mrnistry of Delence issued communications directing the 5a Low SS SSS CC SUSE Gi respondent -- Company to take action in the matter. It is stated that the respondent is a Central public sector undertaking and is bound to follow the directives of the Ministry of Defence.and and it is in the wake of this development tnat the Clause 5.2'ef ~ the office order was amended substituting 30 days in place of 26 days and the subsequent-everts leading up to the earlier writ petition and the present, is in that background. While the learned Senior Advocate would also. subinit that originally the month was takes as 30 days "for the purpose of leave encashment however, when ithe Apex Court by its judgment in Dievijay Woollen ills Limived Vs. Shri. Mahendra Prataprai 7 Buck sepotied in AIR | 980 SC [944 which is relied upon by the ». Jearned counsel for the petitioners, was rendered which was in the-context of The Payment of Gratuity Act, while interpreting a ie ressions 'Average of the basic wage' and with reference ~ "touthe definition of 'wages', the Supreme Court having _ expressed that the number of days in a month ought to be S Government of fpdia ig considered as 26 days for purpose of Payment of Gratuity Act, the same had been uniformly adopted by the Public . Seetir enterprises including the respondent and it is thereafter thai the"
month was considered as 26 days though it was 30 days int he > first place and the amendment having been, effected, the sae was If practice as stated by tie leamed. connss el for the petitioner, for a long time, In the subsequent decision of the Supreme Court in the case of Gur Jambheshveur University v. Dharan Pal reported Ay AIR wie 2007 se 1040, the decision in Digvijay Woollen Mills s Lid, wes referred to and extensively 4 discussed to hald that the saitie wus rendered in the context of the Payment of Gratuity Act and with specific reference to the _ provisions contained therein which could not be applied in "FES pévt of com put ation of other benefits due to workmen and emplcyees" under other legisiation, as for instance, the 'retrenchmeht compensation payable under Section 25-F(b) with reference to the definition of 'wages' in Section 2(aaa) of the Sea Industrial Disputes Act, 1947 and the Supreme Court the expressed as follows:
refore
13. The principle laid down in the case of > Jeevanial (Supra) and Shri Dig jiy Wogiler, A lamited. v. MP. Butch AIR 1880 SC 14d con have 7
-
no application for dete mining the retrenchment compensation under Section 25F (o) ar thie Ae urrin B herein nis bee an i the word "average pay" cect defined in Sectitn Haag) OF the Ach. The coneept of 26 working dayewas olvee heevi g regard to the defiainon af the word.' wages" as given i Section fy Act which uses tre aolis mets wh ie Irare earned by an oft duty oF ") leave. ° Therefore, here is ne warrapit Or justification for Lnporting the pri ple of 26 w ork ine devs for deiermining BE "The. COMP! Section OS PUD) of the Act.
pees "There is another important feature which i z es notice. Subsequent to the decision of t LES art in Jeevanial (supra) an explanation has been added after second proviso to Section 4(2) af the / Ay Payinent of Gratuity Act, by Act No.2 of L987, which reads as under:
"Eaxplanation:- In the case of a monthiy ited peateveea the filiee lenge? 4 riled employee, ie Pileer dave A za sion which is payable in lernis of caleulaied by dividing tie monthly rate of wees last drawn by him by twenty-six and mudtipiving > the quotient by fiftee By adding the explanation, the legisltture-- the statute in line wainr the pri has browuehs i latd down in the case of f Jeevernlai.| (sup PEP ain has ulven statuiory recooniite to the orinciple eveived., viz., that in case of monthly rated "emplevee fe aa) fifteen days' wages shall be. ce elevlated by slividin rie the monthly rate. of WALES By multiplying the Hoi jen by fifts Sei Bul mo suck amend nent hess be mciite aL the lndustrial Disptes. Act che' legisheiere eM wanted that for the purposes of Section 25K) also the average pay heed jo be deiernit ned i bydiv iding the monthly wages 'by Aver a sum ilar amendment could have . be en meade. Bua fie legiste dfure has chosen not io do 80 fi hisigan 'gdditional reason for holding that ihe principle of "aventy-six working days" is not to be applied for determining the -- retrenclunent contnensation under Section 25F(b) af the Act."
1G. In the wake of the said opinion expressed by the Supreme Court, the error cormmitted by the Public Sector Enterprises was apparently taken note of in having raised the & SOSA OF audit objection as aforesaid, and the consequent directions issued have been diligently followed by the respondent 'and therefore, the amendment to the Rule is in consonance with the © law of the land. Further, the objection: that the earlier directions of this Court that the amendment ought to be preceded -by. the approval of the Board of Directors and that the infirmities continue in the present case, on hand,.to wit, that the present amendment is also not preceded by the approval of the Board of Directors as contended by the petitioners, is not entirely correct. The learned Serice. Advocate syould submit that though the approval, did not orecede theamendment, the same has been ratified by the Board and im this regard, has produced the . Resolution of the Board. of Directors which has indeed ratified the amendment by its resolution dated 30.10.2009. The same is produced before the Court though a copy of the same was not o. "annexed tothe statement of objections. 5 Sos ER RSET baat wes Li. Phe learned Senior Advocate would submit that in so far as the argument as regards the directive of the Ministry of Defence being advisory he would submit that it need ne deraia, a guideline in the case of the first line ef cases, the vespondlét would have no choice. In the second of the eases, if in the event there is a guideln e sued by the Ministry under which the respondent functions, it 'is. "is ually complied with in the normal course and af other circumstances 'exist, it would seek the advise of thes concer ned Ministry for variance in the application OF the. samme, As the guideline was clearly in consonance "with the, law of the land, the respondents having 7 impleraented the same, cannot be found fault with and it was : certainly within its discretion to comply with the directions issued having regard to the position of law. [tis further pointed Jo gut that'as laid down by the Supreme Court in the case of Guru nbheshwar University, the Payment of Gratuity Act is a legislation which has defined 'wages' for the purposes of that a &f Ay fo Sees wy ee ae ' 8 Act and that not being the same which can be uniformly appitec d in respect of other legislation and this being expecially: so having regard to the explanation appended to Section 4(2) ¢ of the Payment of Gratuity Act by Act No.22/97 which has further , fortified the position that im case of a nronehly rated emplo see, 15 days wages shall be calculated while _ providing che 'monthly rate of wages last drawn by-him by 26 Sandi by multiplying th the quotient by 15. By ac iding the. exp pation . the jegislation has brought the nai in line with the 'principle laid down in Dievyay Mills. cast dant has given statutory recognition to the otinciple evolved aad isin this vein that the learned counsel would submit since es ralip pur "poses the officers are paid for the . Tour, ou nday is aviv whi ch they do not work, the question of : . foting ib. iit as 26 days lor purposes of computing the leave encagbment "hot tenable and therefore, the same being "relevant oily for the purpose of Payment of Gratuity Act, 'cannot' be pressed into service in so far as the adoption of the va od Sal same for purposes of leave encashment and hence would submit that the petitions be dismissed.
12. The learned counsel for the petitioner. by way of"
reply, would seek to draw a distinction between the } udgment in the case of Guru Jambheshwar University. and Digvijay Woolen Mills Limited in pointing out that in the case of Guru Jambheshwar University Case itseit which has extracted the judgment of the Apex Courtin Jeevanla! (1929) Ltd. vs. Appellate Authority veported in AIR 1984 SCW 1842 holding that sub-section (2) of Section 4~provides for payment of gratuity inthe rate of "fifteen days' wages" based on the rate of wages. last drawn by the employee for every completed year of service. This is also adopted in the present case on hand which refers fo-the rate of monthly pay and therefore, it is to be "provisions of Payment of G ratuity Act also should be applied in respect of the case on hand and hence, the reliance placed on 26 the judgment in Guru Jambheshwar University's case cannot be strictly applied to the present case on hand.
13. One other contention that is made is that the rule ~ having been arnended by the impugned order dated 24.06.2008. and the same having been ratified by the Board ona subsequent date, ought to be given effect to troni-the date of ratification by the Board of Directors and the teave that has accrued to the petitioners prior to ie said date-ought not to be taken away by applying the rule as onihe date of payment, denying the benefit of leave encashment Hat would have accrued prior to the date of amendment being ratried by the Board of Directors. oid. In the wake of these rival contentions, the point for consideration is, "Whether the petitioners' claim that the number of days "which ought to be considered as a month should be continued .as 26 or whether the amendment seeking to apply the original ~ position where the month was construed as 30 days for the purpose of leave encashment ought to be held to pe leg aland valid?"
15. As pointed out by the learned Senice. Advocate, ie Digvijay Woolen Mills Limited, the: c ~ , taken note 2 oft the fact that the only reason for adopting 2 days as being the month is the consistent practice tht, had been followed by all Wage Boards and Wage Fixing: Authorities 'or Tribunals in the country by the method of 26 '\workii g days in the pattern of fixing of v wages and therelore. it was held to be legitimate and monet diay mom is understood to mean 30 days but.in the matter of calcul lating the gratuity, a person who vie far 26 days a month could not have been held to be bad jh law, Iei8-on this reasoning alone for the purpose of Payment oF Gratuity Act. that the month was held to be taken as 26 days. "Having regard to the later Judgment and that judgment having been applied for all purposes in all the Public Sector Oe "oo, fireésent Case on hand, is not an argument that can be readily Enterprises, was in the wake of the said judgment which was belatedly realised to be erroneous after the Supreme Couit pronounced its judgment in Guru Jambheshwar University case ° as consisting of 26 days for the purpose.ot Payment of Gramuty -- Act. did not rest on any established principle or other measure which could be applied with precision: .it. was therefore held by the Supreme Court as not being applicable fer purpose of other legislation as for instance, the Industrial Disputes Act, 1947. In that view of the matter, to-rely upon the particular expressions employed in the provisions. of the Payment of Gratuity Act and to demonstrate that similar words have been employed in the _ present, amendment with reference to the rate of monthly pay or the jate of wages as contemplated under the Payment of Gratuity Act-and therefore, the same being applicable to the ~ accepted, CO ae 29
16. In so far as the contention that the direction issued by the Ministry of Defence was merely advisory and since it "was not issued in the name of the President, the respondent was not bound to implement any such direction may also not be tenable since it is within the discretion of the © fespondent ~ Company in following such directions or instr actions issue ae fom time to time and it is not a case shore the pdadent 'ig béfore this Court secking to contend that such 3 a direetion doe s not bind the respondent and that it is net binind io followin The respondent having willfuby 2 appli sd the s 8 a0 ne, as it is in line with the law laid down by the Apex co "oui there is no infirmity nor can it be said to be "invalid. "The. "teriher contention that the amendment 7 has neh been appteved by the Board of Directors, would also
- not Survive for consideration | in view of the same having been ratified by the Board by its resolution as per the documents "which are: produced before the Court. Hence, the several 'oyounds raised in the writ petition cannot be sustained. i7, The contention as to the 1985 scheme not having received the prior approval of the Board of Directors of the. respondent ~ Company, is not tenable since the schéme WARS it. the first instance introduced by the Managing. Directer of the - Company and was never approved by the Board of Direcrors. Hence, the consequent changes subsequiently nave also not been approved by the Board of | directors The question of the Board of Directors therefore approving the. present amendment, may not arise for consicetation. However, since this aspect of the matter was not brought to the notice of this Court on the earlier occasion and the respondents havin g suffered an order whereby they were reyuired to obtain an approval of the Board and such . approval has been granted by Ratification, any such mifirrnity
-.stands.cured.
"18: In-so far as the contention that the petitioners must "have-the benefit of the leave encashment that has accrued to ~.ihéem prior to the amendment of the rule bemg ratified by the "e & Sowa ue