Orissa High Court
Executive Engineer (Elect.), ... vs Presiding Officer, Labour Court And ... on 16 October, 2004
Equivalent citations: 99(2005)CLT93
Author: A.S. Naidu
Bench: A.S. Naidu
JUDGMENT A.S. Naidu, J.
1. The Executive Engineer, Jeypore Electrical Division, Jeypore, Koraput and others have filed these Writ Applications invoking jurisdiction of this Court under Articles 226 and 227 of the Constitution of India assailing the order passed by the Presiding Officer, Labour Court, Jeypore on the applications filed under Section 33-C(2) of the Industrial Disputes Act, 1947. The Labour Court by its order Annexure-1 respectively directed the Orissa State Electricity Board to compute the pension of the petitioners before the said Court who are erstwhile employees of the Board and/or their successors in interest, as per the provisions of the Orissa State Electricity Board Employee's Pension Regulation, 1992 (In short '1992 Regulation') read with the Orissa Pension Rules, 1977 and pay the same within a period of six months from the date of receipt of the said order, failing which the petitioners would be at liberty to file fresh applications under Section 33-C(2) of the I.D. Act for properly computing their claim.
2. The moot point which needs determination in this Writ Application is as to whether the employees of erstwhile Orissa State Electricity Board who have retired prior to 1.4.1990 are eligible to get the benefits flowing from the Orissa State Electricity Board Employee's (Pension including old age and family pension) Regulation, 1992. For answering the said question, the background of the case as spelt out in the inter se pleadings need to considered.
3. Admittedly, the petitioners before the Labour Court in all the cases or their predecessors in interest were employees under the erstwhile Orissa State Electricity Board. They retired from service before 1.4.1990 when Regulation 1992 was introduced. The petitioners approached the Labour Court by filing different applications for adjudication of the dispute invoking jurisdiction under Sections 36-(C)(2) of the I.D, Act claiming computation and determination of pension and/or family pension. The case of the petitioners before the Labour Court was that, initially the service conditions relating to the retirement benefits of the employees of the Board were governed under the provisions of the Employees Provident Fund Act and Payment of Gratuity Act. But then, as the existing system was found not sufficient for protection of retired employees in their old age, the employees through their Union raised a demand before the Board (Management) to introduce Pension Scheme in place of existing Provident Fund and Gratuity Scheme. The Union also raised several other demands. In course of conciliation, a settlement was arrived at between the Management and the workers-Union on 16.2.1983. In the said settlement, it was agreed inter se between the parties that a proposal for introduction of Pension Scheme would be placed before the Board for approval by 31.12.1986. By Resolution dated 28.3.1992 in exercise of power conferred by Section 79(c) of the Electricity (Supply) Act, 1998 a Regulation for payment of pensionary benefit to its employees and families of retired and deceased employees was introduced. According to the petitioners, liability to pay pension to workmen accrued with effect from 1.10.1986 when settlement of industrial dispute between the Management and the workmen represented through the Shramika Mahasangha was arrived at and not from the cut off date i.e., 1.4.1990 stipulated in the Regulation. The petitioners further contended that they are entitled to pension/family pension as prescribed in the Orissa Pension Rules, 1977 with effect from 1.10.1986 and the management having failed to compute and disburse the same, they were constrained to approach the Labour Court invoking jurisdiction under Section 33-C(2) of the I.D. Act.
4. The Management of the Orissa State Electricity Board strenuously repudiated the claim advanced by the petitioners. The specific case of the Management was that the settlement arrived at inter se between the Management and the worker's-Union on 1.10.1986 does not confer any right to receive pension. By the said settlement it was only agreed, as a gesture of good will, that a proposal for introduction of. Pension Scheme for the employees of Electricity Board would be placed before the Board by 31.12.1986. According to the Management-Board, in fact, the Resolution, as agreed to, was placed before the Board in its meeting held on 17.3.1992 and the Board exercising the power conferred upon it under Section 79(c) of the Electricity (Supply) Act, 1948 approved the Resolution. It was further contended that the rights of the workmen, if any, were crisped, curtailed and cabinet in the Regulation itself and it was not open to the petitioners to traverse beyond the stipulations made in the Regulation. It was further contended that the petitions filed under Section 33-C(2) of the I.D. Act were not maintainable and if at all the petitioners were aggrieved, it was open for them to raise industrial dispute and get the dispute referred to the Labour Court in consonance with Section 11 read with Section 15 of the I.D. Act.
5. The Presiding Officer, Labour Court, however, by the impugned order arrived at a conclusion that the Regulation, 1992 can be made applicable to the petitioner with effect from 1.4.1990 as was decided vide Item No. 14 of the settlement dated 6.7.1991. The Presiding Officer further held that family pension should be made available from 1.4.1990 and not from 1.4.1985.
6. Mr. Nanda, Learned Senior Advocate appearing on behalf of the Management relying upon a decision of this Court in the case of Surendra Nath Biswal and Ors. v. Presiding Officer, Labour Court and Anr., 2004 (1) OLR 647 forcibly contended that the petitions filed under Section 33-C(2) of the I.D. Act were not maintainable. According to Mr. Nanda, none of the criteria catalogued in Paragraph 8 of the judgment is satisfied in the present case. In the alternative, Mr. Nanda submitted that a Division Bench of this Court in the case of Prune Chandra Nanda v. Grid Corporation of Orissa Ltd. and Ors., 87 (1999) CLT 827 on similar facts and circumstance, have held that the cut off date in the Board's Regulation so far as the pensionary benefit is concerned is 1.4.1990 and those employees who have retired prior to 1.4.1990 cannot claim the benefit. According to Mr. Nanda, in view of the aforesaid clear finding of a Division Bench of this Court, the dispute as to whether the petitioners or their predecessors who admittedly retired much before 1.4.1990 are entitled to receive pension or not has already been resolved and needs no further adjudication.
7. Mr. Dora, Learned Counsel appearing on behalf of some of the Opp. Parties placed reliance on the settlement arrived at inter se between the Management and the employees-Union dated 1.10.1986. Clause 8 of the said settlement reads as follows :
"It is agreed that a proposal for introduction of Pension Scheme for the employees of O.S.E.B. shall be placed before the Board for approval by 31st Dec. 1986.
According to Mr. Dora, the Management agreed to introduce the Pension Scheme by the aforesaid settlement. Placing the Scheme for approval by 31.12.1986 was merely a Ministerial Act and the delay in carrying out such Ministerial work cannot take away the rights accrued to the workmen to receive pension from October, 1986 as agreed to in the settlement. Mr. Dora also relied upon the Resolution dated 19.3.1991 and the subsequent memorandum of settlement dated 6.7.1991 and strenuously submitted that all the petitioners are entitled to the benefits as per the settlement arrived at by the Management which is binding on the workmen as also the Management in consonance with the provisions of the I.D. Act. According to Mr. Dora, the decision of the Division Bench of this Court in the case of Prune Chandra Nanda (supra) cannot be treated as a ratio, inasmuch as the observations made in Paragraph 7 of the said judgment is not binding upon this Court as the Division Bench has not taken into consideration several material facts like the settlement arrived at and other materials. According to Mr. Dora, all the petitioners are entitled to pension or family pension at the rates stipulated in the Orissa Pension Rules, 1977 irrespective of the dates of retirement and the cut off date fixed in the Regulation shall not curtail their rights and as such, the decision of the Presiding Officer, Labour Court is just, proper and equitable and should not be interfered with.
8. The argument advanced by Mr. Dora is also adopted by Mr. Miser, Learned Counsel appearing on behalf of some of the workmen. According to Mr. Mishra, the facts of Prune Chandra Nana's case are different from the present case and as such, the said decision cannot be treated as a precedent. Mr. Miser also relied upon a decision of the Supreme Court in the case of State of U.P. and Anr. v. Synthetics and Chemicals Ltd. and Anr., (1991) 4 SCC 139 and submitted that the principle of Sub-silent is attracted in the present case specially in view of the fact that the Division Bench was silent with regard to the settlement arrived at inter se between the Management and the worker's-Union.
9. Mr. C.A. Rao, Learned Counsel appearing on behalf of some of the Opp. Parties also reiterated the stand taken by Mr. Dora and Mr.. Miser and relying upon the decision of the Supreme Court in the case of M/s. A. One Granites v. State of U.P. and Ors., AIR 2001 SC 1203 submitted that this Court can refer the matter to a Larger Bench.
10. Heard Learned Counsel for the parties at length and perused the materials available. Clause 8 of the Settlement arrived at between the Management and the Shramika Mahasangha dated 1.10.1986 clearly reveals that, in fact, it was agreed upon that a proposal for introduction of Pension Scheme would be placed before the Board for approval by 31.12.1986. Learned Counsel for the Opp. Parties, however, submits that the said clause read with subsequent resolution confers a right upon the workmen to claim pension and the cut off date i.e., 1.4.1990 introduced by the Regulation is unjust, illegal and the petitioners are not bound by the said clause. But then the Tribunal has only held that the employees, irrespective of their retirement shall be entitled to pension and family pension as the case may be only from 1.4.1990 i.e. the date stipulated in the Resolution. Thus, the contention that the right flows from the date of Settlement between the worker's Union and Management cannot be accepted. It is pertinent to mention here that the workmen have accepted the order passed by the Commissioner and by not challenging it, cannot be permitted to traverse beyond the conclusion arrived at.
11. The question for consideration before the Division Bench of this Court in the case of Prune Chandra Nanda (supra) was as to whether an employee who had retired prior to 1.4.1990 was eligible to receive pension. In the said case, the petitioner was an erstwhile employee of the O.S.E.B. he retired from service on 30.6.1988. He approached this Court for two relieves (1) His period of service under the Ex-State of Bazaar during its Durban Administration from 1.6.1947 to October, 1948 should be directed to be counted towards the period of his service and (2) His pension should be directed to the calculated accordingly and disbursed. While answering the second question, the Division Bench of this Court in Paragraph 7 of the judgment held as follows :
"So far as the Board's Regulation for pensionary benefits are concerned the cut off date is found to be 1.4.1990 and, therefore, the petitioner having retired prior to 1.4.1990 cannot claim the benefit and this proposition of law has been well settled by the Supreme Court in the cases of State of West Bengal v. Ratan Behari Dey and Ors., 1993 Lab. IC 2199 and State of Rajasthan and Anr. v. Amrit Lal Gandhi and Ors., 1997 Lab. IC 420."
12. Perusal of the decision, thus, clearly reveals that this Court held unambiguously that the said petitioner having retired prior to 1.4.1990 could not claim pensionary benefits. Judicial discipline and propriety demands that a Bench consists of a Single Judge should follow the decision of a Division Bench and more so, when there is no divergent or contradictory decisions. While deciding the issue, a Bench consisting of a Single Judge cannot doubt the correctness of a decision arrived at by a Larger Bench. The decision of a Larger Bench binds a Single Judge of the same Court and the judicial discipline obliges the Single Bench to follow it regardless of any doubt about its correctness. The only situation when a Single Judge can refer a matter directly to a Full Bench is there being earlier conflicting judgments and/or when the Bench comes to a conclusion that the judgment is so incorrect that in no circumstance can it be followed.
13. Keeping in mind the aforesaid dictum, after considering the materials available and submissions advanced by the Learned Counsel for the parties. I have no hesitation to hold that I am bound by the conclusion arrived at by the Division Bench of this Court in the case of Prune Chandra Nanda (supra). The Division Bench has clearly held that an employee of the O.S.E.B. who retired prior to 1.4.1990 would not be entitled to pension. The said decision being clear and unambiguous, the principle of Sub-silent will not apply to the present case.
14. In view of the ratio of the aforesaid decision of a Division Bench of this Court, the conclusion arrived at and the direction issued by the Presiding Officer, Labour Court cannot be sustained. Accordingly, the Writ Applications are allowed and the impugned orders, Annexure-1 respectively in all the cases are quashed. The parties to bear their own costs.