Bihar State Warehousing Corpn. vs Braj Mohan Prasad & Ors on 8 January, 2010

[Cites 11, Cited by 7]

Patna High Court - Orders

Bihar State Warehousing Corpn. vs Braj Mohan Prasad & Ors on 8 January, 2010

These four appeals, being interconnected and interlinked, were heard analogously and are being disposed of by a singular order. For the sake of clarity and convenience we shall refer to the facts in C.W.J.C. No. 8670 of 2008.

2. Sans unnecessary details the facts which are imperative to be adumbrated are that the writ petitioner knocked at the doors of this Court under Article 226 of the Constitution of India for issue of a writ of mandamus commanding the respondents to enhance the age of retirement of the employees of 5 the Bihar State Warehousing Corporation (for short `the Corporation') from 58 years to 60 years. It is needless to emphasize the relief clause included the petitioner. It was asseverated in the petition that a Notification was issued by the State Government on 24.03.2005 whereby the retirement age of the employees of the Bihar Government was enhanced from 58 years to 60 years with immediate effect. Certain Public Sector Undertakings of Bihar passed resolutions in accord with the said Notification enhancing the age of retirement from 58 years to 60 years and referred the same to the State Government for approval and, as is demonstrable, the State Government granted approval. It was alleged in the writ petition that the State Government had not acted in a consistent manner inasmuch as it enhanced the age of incumbents of many a Public Undertaking to 60 years, but as far as the respondent-Corporation is concerned, as is evincible, the State Government issued a communication by letter no. 4379 dated 31.10.2008 to the Managing Director of the Corporation conveying its decision to enhance the retiral age of the employees of the Corporation from 58 years to 60 years. On the foundation of the said communication, the Corporation extended the benefit of enhancement of age of retirement with immediate effect. It was 6 asserted in the writ petition that when all the Public Sector Undertakings of the Bihar Government had acted on the basis of the Notification issued by the State Government on 24.03.2005 and they had reaped the benefit, it is inappropriate and inapposite on the part of the Corporation as well as the State Government not to extend the said benefit to the employees of the Corporation. The learned single Judge accepted the stand put forth by the petitioner and allowed the writ petition and directed that the respondent authority shall confer the benefit of enhancement of age from 58 years to 60 years and pay the consequential benefits as a sequitur.

3. Being aggrieved and dissatisfied with the aforesaid order, the State Government has preferred L.P.A. No. 812 of 2009 and the Corporation has preferred L.P.A. No. 1110 of 2009. The Corporation has also preferred L.P.A. No. 1109/2009 and L.P.A. No. 1125/2009 against the orders dated 14.5.2009 and 13.5.2009 passed by the learned single Judge in CWJC No. 6060/2009 and CWJC No. 5787/2009 respectively following the order dated 12.11.2008 passed in CWJC No. 8670/2008 which has given rise to L.P.A. No. 812/2009.

4. Learned counsel for the State while criticizing the order of the learned single Judge has raised the 7 following submissions:-

(a) The learned Single Judge has fallen into a grave error by expressing an opinion that when all Public Sector Undertakings of the Bihar Government have acted on the basis of the Notification dated 24.3.2005, it was incumbent on the part of the Corporation as well as the State Government to give effect to the same though the Notification does not ipso facto extend the benefits to the employees of the Corporation.

(b) The finding recorded to the effect that the State Government had adopted inconsistent approach is neither legally sound nor correct inasmuch as unless an effective lawful decision is taken to enhance the age, there cannot be a comparison between two different Undertakings and on that foundation the decision of the State Government cannot be foundered.

(c) The procedure for grant of enhancement of age is dependent upon many facets but that has been totally ignored by the learned single Judge as a consequence of which the order passed by the learned single Judge does not withstand close scrutiny.

5. Mr. Naresh Dikshit, learned counsel appearing for the Corporation assailing the impugned order of the learned 8 single Judge has urged that the Corporation is bound by the provisions contained in Sections 42 and 43 of the Warehousing Corporations Act, 1962 (for brevity `the Act') and the Regulations, namely, the Bihar State Warehousing Corporation Staff Regulations, 1958 (for short `the Regulations') and unless there are necessary amendments in the Regulations, the Corporation could not have on its own acted to extend the benefits. After the State Government has granted approval, the Corporation has extended the benefit with effect from 31.10.2008 and, therefore, the direction issued by the learned single Judge to confer the benefit of enhancement of age prior to the said date is unsustainable.

6. Before we delve into respective contentions advanced at the Bar it is essential to note certain facts. As is patent, the Corporation had granted the benefit to certain employees immediately after the notification was issued by the State Government but the same was stopped in the month of May, 2008 when it realized that it could not have given the benefit to the employees on its own. The writ petitioners came within the said span of May, 2008 to 31st October, 2008. It has been apprised by Mr. Dikshit that the then Managing Director had extended the benefit as a result of which the employees were 9 superannuated on attaining the age of 60 years but that cannot be taken aid of by the present petitioners inasmuch as an erroneous act does not give nourishment to another erroneous act. In essence, the submission of Mr. Dikshit is that once an error had been committed that cannot be allowed to continue in perpetuity and the Corporation had rightly stopped to extend the benefit after realizing its mistake.

7. Presently to the submissions raised at the Bar. To appreciate the rivalised arguments, we may refer with profit to Section 42 of the Act which deals with the power of Warehousing Corporation to make regulations. The said provision reads as under:-

"42. (1) A Warehousing Corporation may, with the previous sanction of the appropriate Government, by notification in the Official Gazette, make regulations not inconsistent with this Act and the rules made thereunder to provide for all matters for which provision is necessary or expedient for the purposes of giving effect to the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for-

(a) the conditions of service of, and the remuneration payable to, the officers and other employees of a Warehousing Corporation;

(b) the manner in which, and the conditions subject to which, shares of the Central Warehousing Corporation may be transferred;

(c) the manner in which meetings of a Warehousing Corporation and the Executive Committee thereof shall be convened, the fees for attending such meetings and the procedure to be followed thereat;

(d) the duties and conduct of officers and employees of a Warehousing Corporation;

(e) the powers and duties which may be entrusted or delegated to the managing director of a Warehousing Corporation;

(f) generally, the efficient conduct of the affairs of a Warehousing Corporation.

(3) The appropriate Government may, by notification in the Official Gazette, rescind any regulation which it has sanctioned and thereupon the regulation shall cease to have effect."

8. At this stage, we may fruitfully refer to Section 43 of the Act which deals repeal and savings. We are only concerned with sub section (2)(d), which is as follows:-

"43. (1) xxxxx xxxxx (2)(d) anything done or any action taken (including any appointment, nomination, delegation, rule or regulation made) under the repealed Act shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under this Act;".

We have referred to the aforesaid provisions to highlight that the 1958 Regulations have to survive if they are not in consistent with the provisions of the Act. Section 42 of the Act clearly postulates that the Corporation can make regulations 11 with the previous sanction of the State Government. One thing is singularly clear that the resolutions have been passed by the Corporation but no sanction has been given by the State Government. The sanction has been given vide letter dated 31.10.2008. Prior to that, at no point of time sanction had been given and if, we allow ourselves to say so, no document has been brought on record to show anything in that regard.

9. What is canvassed before us is that on the basis of the regulation, the Board of Directors has ample power to extend the age. Inspiration has been drawn from Regulation 13 of the Regulations to show the existence of power. Regulation 13 reads as follows:-

"13. SUPERANNUATION AFTER ATTAINNG THE AGE OF 58 YEARS.

Every employee shall retire on attaining the age of 58 years. Provided that the Board of Directors may in the interest of the Corporation, extend the period of service of an employee beyond the age of Superannuation for such period as may be considered necessary.

Provided further that nothing in this Regulation shall be deemed to affect the powers of the Corporation to employ any person above the age of 58 years on contract."

10. It is urged by Mr. Kumar that if the second part of the Regulations is properly appreciated and understood, it 12 would be clear that the Corporation has the power to extend the period of service beyond the age of superannuation and, hence, there was no illegality in such extension. On a scanning of the provisions as contained in Regulation 13, we are afraid the submission of Mr. Kumar does not really commend acceptance. The first part clearly stipulates that every employee shall retire on attaining the age of 58 years. It pertains to superannuation. The first proviso enables the Board of Directors to extend the period of service of the employees beyond the age of superannuation for such period as may be considered necessary in the interest of the Corporation. The key words are "in the interest of the Corporation", "an employee" and "for such period". If we understand the proviso correctly, it does not really enjoin the Board of Directors with the power to extend the age of superannuation of the employees. In a particular case, there may be grant of extension or continuance of an employee beyond the period of superannuation. Thus, there is an enabling power to allow a person to work beyond the age of superannuation. This is a different kind of continuance and it cannot be equated with the power of enhancing the age of superannuation. We are disposed to hold so as the first part of the Regulations is clear as crystal and specifically deals with the 13 age of retirement. The second part, as is manifest, enables the Board of Directors to extend the period of service of an employee.

11. Submission of Mr. Kumar is that the said proviso confers the power on the Board and an exception is carved out in clear cut terms. The role of a proviso has to be appositely understood. In this regard we may also refer with profit to the decision in Maulavi Hussein Haji Abraham Umarji v. State of Gujarat & Anr., AIR 2004 SC 3946, which lays down as follows:-

"11. The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. As was stated in Mullins v. Treasure of Survey (1880 (5) QBD 170), (referred to in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha (AIR 1961 SC 1596) and Calcutta Tramways Co. Ltd. v. Corporation of Calcutta (AIR 1965 SC 1728), when one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject-matter of the proviso. The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of the main enactment and its effect is confined to that case. It is a qualification of the preceding enactment which is expressed in terms too general to be quite accurate. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. "If the language of the enacting part of the statute does not contain the provisions which are 14 said to occur in it you cannot derive these provisions by implication from a proviso." Said Lord Watson in West Derby union v. Metropolitan Life Assurance Co. (1897 AC 647) (HL). Normally, a proviso does not travel beyond the provision to which it is a proviso. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other. (See A.N. Sehgal and others v. Raje Ram Sheoram and others (AIR 1991 SC 1406);

Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal and others (AIR 1991 SC 1538) and Kerala State Housing Board and others v. Ramapriya Hotels (P) Ltd. and others (1994 (5) SCC 672)."

xxx xxx xxx xxx "15. "The ordinary and proper function of a proviso coming after a general enactment is to limit that general enactment in certain instances" (per Lord Esher in Re Barker, 25 QBD 285)."

And again their Lordships have expressed thus:-

"18. It is well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the Legislature. The language employed in a statute is the determinative factor of legislative intent."

12. In case of S. Sundaram Pillai etc. v. V.R. Pattabiraman, AIR 1985 SC 582, it has been held as follows:-

"26. ...................... The well established rule of interpretation of a proviso is that a proviso may have three separate functions. Normally, a proviso is meant to be an exception to something within the main enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. In other words, a proviso cannot be torn apart from the main enactment nor can it be used to nullify or set at naught the real object of the main enactment."

In the said case it has been further held as follows:-

"35. While interpreting a proviso care must be taken that it is used to remove special cases from the general enactment and provide for them separately."

Eventually their Lordships in para 42 enumerated as follows:-

"42. We need not multiply authorities after authorities on this point because the legal position seems to be clearly and manifestly well established. To sum up, a proviso may serve four different purposes :

(1) qualifying or excepting certain provisions from the main enactment;

(2) it may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable;

(3) it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and (4) it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provison."

13. In this regard we may also refer with profit to the decision in Swedish Match AB & Anr. v. Securities and Exchange Board & Anr., AIR 2004 SC 4219, which is as follows:-

"51. It is a well-settled principle of law that where wordings of a statute are absolutely clear and 16 unambiguous recourse to different principles of interpretations may not be resorted to but where the words of a statute are not so clear and unambiguous, the other principles of interpretation should be resorted to."

14. We have referred to the aforesaid authoritative orders to highlight that the proviso in the present context has been utilized to create an exception and that to a limited exception. Hence, the words used therein are clear, unambiguous and convey restrictive facet of it. The submission advanced by the learned counsel for the employees relying on the second limb of Regulation 18 is unacceptable and accordingly we repel the same.

15. Quite apart from the above, if we appreciate Section 42 of the Act 58 of 1962, it is difficult to hold that the age of superannuation can be extended up to 60 years without approval of the State Government. If such a power is conferred on the Corporation, it would violate the mandate of Section 42 of the Act.

16. In course of hearing, Mr. Kumar, has recommended certain documents by which the Board of Directors have recommended the State Government to grant permission for enhancing age of superannuation from 58 years to 60 years commencing from 30th April 2005. This has been 17 done after the circular was issued. The said resolution has been passed after publication was made on 31.10.2008.

17. In view of the aforesaid, we are only inclined to direct the State Government to reconsider the matter for grant sanction with retrospective effect making a provision, if possible, with the notional benefit to the employees, who have suffered in the interregnum period from May, 2008 to 31st October, 2008. We reiterate we have left it to the discretion of the State Government. The action in this regard may be taken within three months.

18. Ex consequenti, the Letters Patent Appeals are allowed and the orders passed by the learned single Judge are set aside. In the facts and circumstances of the case there shall be no order as to costs.

( Dipak Misra, C.J. ) ( Dr. Ravi Ranjan, J. ) Patna High Court.

The 8th January, 2010.

AFR.

Dilip/P.S.

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Patna High Court - Orders