Jammu & Kashmir High Court - Srinagar Bench
Hamidullah Andrabi And Others vs State Of J&K; And Another on 9 October, 2018
Author: M. K. Hanjura
Bench: M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
...
SWP no. 775/2017 Date of order: 09.10.2018 Hamidullah Andrabi and others Vs. State of J&K and another Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge i. Whether to be approved for reporting In NET Yes/No ii. Whether to be approved for reporting In Digest/Journal Yes/No _____________________________________________________________ Appearing Counsel:
For Petitioner(s): Mr. Z. A. Shah, Sr. Adv. with Mr. A. Hanan, Adv. For Respondent(s): Mr. B. A. Dar, Sr. AAG with Mr. Saad Ganai, GA 01/ In this writ petition, the petitioners seek a writ of Mandamus directing the respondents to grant the pensionary benefits to them in accordance with their entitlement as per the rules of pension generally governing the Government servants, applicable to them prior to the issuance of SRO 400 dated 24- 12-2009 issued by Finance Department.
02/ The facts that are essential for the decision of the petition on hand are that the petitioners, who have retired from service since long have not so far been paid the pension, even though, many years back, some of them filed representations before the respondents for the release of the pensionary benefits but no step was taken by them in that direction.
___________________________________________________________________ SWP no. 775/2017 Page 1 of 26 03/ The petitioners further submit that from the year 2002 onwards, many writ petitions came to be filed by the employees of the J&K Industries Ltd., (JKI) claiming pensionary benefits and in one of the petitions, bearing SWP No. 1250/2002, this Court, vide order dated 12-03-2009, delivered a decision in favour of the petitioners therein. Being aggrieved of the said decision, the respondents preferred the appeal bearing LPA No. 211/2009, which was decided along with a bunch of other LPAs by the Division Bench (DB) of this Court, vide its judgement dated 08-06-2001, upholding the order passed by the Writ Court. Thereafter the respondents took the matter to the Apex Court of the country by way of filing the SLPs bearing nos. 26483/2011 & 26488/201, which came to be disposed of as withdrawn vide order dated 03-11- 2015 on a request of the learned counsel for the appellants that the appellants want to file a review petition in the Writ Court. It is apt to mention here that when the review petition came for consideration before the Division Bench the same was dismissed by an order dated 29-03-2016.
___________________________________________________________________ SWP no. 775/2017 Page 2 of 26 04/ The petitioners have further stated that in view of the aforementioned developments, the employees of the State owned Corporations are entitled to 'pension'. It is further stated that all the petitioners, who were appointed in the department of respondent No.2 - State Industrial Development Corporation Ltd. (SIDCO), on different dates, have superannuated a long back. In terms of the Service Regulations called "The J&K Industrial Development Corporation Service Regulations, there is no provision with regard to the pension of the employees. However, regulation 68-A of the Service Regulations provides that 'wherever the Corporation Rules are silent or inference cannot clearly be made out, the J&K Civil Service Regulations (CSR) shall apply'. The petitioners have stated further that this court, while deciding SWP no. 1250/2002 on 12-03-2009, inter alia, noticed some facts, which are common between the employees of the JKI & SIDCO, and these are as under:
"That a Committee called 'Rajan Committee' was set up for examining the wage structure of employees of Government Corporations. The report submitted by the said Committee was accepted by the Government on 22-04-1980. The recommendations of the Rajan Committee, among others, were made applicable to SIDCO as well vide order No. 19-GR of 1980 dated 26-04-1980." ___________________________________________________________________ SWP no. 775/2017 Page 3 of 26 05/ The petitioners have further stated that there is no retirement scheme framed in the Corporation, therefore, the J&K CSR is to govern the retiral position of its employees. The petitioners, prior to the year 1980, were getting the service benefits at par with the employees of the Government. It is further stated that the Directors of the JKI have the power to give pension to its employees under clause 78 of the Memorandum/Articles of the Association. Besides in terms of Service Regulations, in the absence of any order, scheme or rule to the contrary, the employees of the Corporation are to receive the same benefits as are generally available to the Government employees. The petitioners have further contended that in view of the fact that the Rules of SIDCO are silent with regard to the grant of pensionary benefits to its employees, and there being no rule to the contrary and regard being had to the J&K CSR, they are entitled to receive the pensionary benefits in the same manner as are being paid to the employees of the JKI, in whose case, the Court has ruled that in absence of any rules regarding retiral benefits, the J&K CSR would be applicable and has its application to the employees of the Corporation also. The ___________________________________________________________________ SWP no. 775/2017 Page 4 of 26 petitioners have further avowed that this position has even been accepted by the Division Bench of this Court by holding that wherever the rules are silent, J&K CSR would become automatically applicable to the employees of the Corporation. 06/ It is further pleaded that the principle adopted by the Court in the proceedings filed by the JKI, applies to the case of the petitioners with equal force. Furthermore, it is stated that the rules governing their services do not prohibit grant of pension and on the contrary the Service Regulations provide, in express terms, the application of J&K CSR to the employees of the Corporation. The petitioners have further averred that they are entitled to the pensionary benefits on the premise that prior to the year 1980, they were on par with the employees of the Government and all the service benefits and privileges which were allowed to the employees of the Government, were enjoyed by the them as well. The petitioners have also stated that the Memorandum/Articles of Association contains some specific provisions, by virtue of which the Board of Directors of the Corporation is under an obligation to give pension to its employees. However, the said obligation is yet ___________________________________________________________________ SWP no. 775/2017 Page 5 of 26 to be discharged. In the end the petitioners have stated that the representations filed by them before the respondents for redressal of their grievances aforesaid, having not been decided, the ends of justice would be met by directing the respondents to pay the pensionary benefits to them as per the rules of pension, which were applicable to the Government servants in other Departments before the issuance of SRO 400 dated 24.12.2009.
07/ The respondent no.2 has filed the objections, wherein it is stated that the petitioners have no cause of action to file the writ petition in view of the fact that none of their constitutional, fundamental or statutory rights has been violated. The writ petition raises pure questions of fact, which do not fall within the scope and purview of being agitated in a writ petition. It is further pleaded that SIDCO is a Corporation, constituted under the Companies Act, 1956, and it is governed by its own Memorandum of the Association and Articles of the Association, therefore, its employees are not entitled to any pensionary benefits. It is further pleaded that every Corporation is governed by its own rules and ___________________________________________________________________ SWP no. 775/2017 Page 6 of 26 regulations and have separate Memorandum of Understanding (MOU), which regulate the functioning and operation of each establishment. In this view of the matter, the JKI cannot be compared with the SIDCO, because its functions are governed by a separate MOU and if the Court has allowed some relief to the JKI, same cannot, necessarily, percolate to the SIDCO, even if both the Corporations are governed by the same Administrative Department. The respondent has further stated that in order to attract the industrialists in the State, the SIDCO was established during the year 1969. Accordingly, eligible persons were employed from time to time, whose service conditions are governed by the rules and regulations of the Corporation itself. However, as and when any State Civil Service Rules and Regulations or any Government order is made applicable to the Corporation, same requires ratification by its Board of Directors and more so, the financial health of the Corporation is of pivotal importance. The respondent has further submitted that the Corporation has been consistently running in losses for the ___________________________________________________________________ SWP no. 775/2017 Page 7 of 26 last decades together, thus, there is no question of paying of pensionary benefits to the petitioners, who have retired since. 08/ It is further stated in the objections that the writ petition SWP 1250/2002, was disposed of with the directions that the employees appointed prior to the year 1963 were entitled to the pensionary benefits at par with the State Government employees because the State Industrial Undertakings were administered by the Directorate of Industries and Commerce, meaning thereby that whosoever was appointed prior to the year 1963 had to be treated on the same pedestal and had to be given the similar treatment as is being made available to the Government employees. It is further contended that in terms of Rajan Commission report/recommendations, which Commission was constituted only for removing disparity in pay, if any, and which report was implemented by the State Government in letter and spirit by enhancing the dearness allowances (DA) of its employees. The respondent No.2 has further stated that the judgement dated 08-06-2011, passed by the Division Bench of the Court, envisages that the provisions of the J&K CSR will automatically apply to the ___________________________________________________________________ SWP no. 775/2017 Page 8 of 26 employees of the Corporation, in case its own rules or orders are silent. However, in the case of MOU of the SIDCO, the pensionary benefits can only be provided by creating a separate fund. As already stated, the Corporation is running in huge losses and reflects no profit, therefore, there is no scope for consideration of the case of the petitioners for providing them the pensionary benefits out of its own resources. The Corporation is at the verge of starvation and is more or less dependent upon the schemes promulgated by the Central and State Governments from time to time. 09/ It is finally pleaded that the petitioners have retired from the Corporation services since and the claim put forth by them, at this stage, for payment of pensionary benefits, is unjustifiable. In this view of the matter, the respondent has prayed that the writ petition be dismissed in limine.
10/ Heard & considered. 11/ The pick of the argument of the learned counsel for the
petitioners is that the judgment dated 12.03.2009 delivered by this court in SWP no. 1250/2002 along with connected matters bearing the title J&K Industries Employees ___________________________________________________________________ SWP no. 775/2017 Page 9 of 26 Association versus State and others, applies to the instant case in all the fours. Per contra, the learned counsel representing the respondent state has vehemently argued that the said judgment has no application to the facts and circumstances of the case and that the financial health of the SIDCO, which is in a shambles, does not warrant the grant of pension in favour of the petitioners. This argument has been rebutted by the learned counsel for the petitioners by stating that the respondents are pleading sickness of the corporation and the petitioners are claiming their right and on the fundamental premise, rules have to be implemented and interpreted in accordance with the terms of the statute and regulations and no one can mend or bend them. It is also contended that the SIDCO should not have employed the petitioners in case it was not in a position to meet the demand of pension of its employees, and that declining the payment of pensionary benefits to them will result in their exploitation. 12/ Since the case of the petitioners revolves around the judgment cited and detailed above which landed in the Apex Court of the country also wherefrom it was withdrawn, therefore, it ___________________________________________________________________ SWP no. 775/2017 Page 10 of 26 will be appropriate to reproduce the relevant excerpts thereof here-in-below verbatim et literatim.
"The two groups of employees of the Jammu and Kashmir Industries Limited, one group comprised of those who were appointed by the Government prior to 1963 i.e., prior to the date of incorporation of the industrial units of the company and the second group comprise of corporation borne employees. The two groups filed two writ petitions i.e. SWP no. 236/82 captioned Jawahir Lal Sazwal and others versus State and others and SWP no. 287/82 captioned Tej Krishen Kachroo and others versus State of J&K and others. Both the two petitions were dismissed by the Division Bench of this Court on 02.05.1998. In the petition No. 236/82, quashment of clause 1 and 5 of the order No. 19- GR/1980 dated 26.04.1980 and order No. JKI/37/80 dated 08.05.1980 and order No. JKI/264/80 dated 10.11.1980 clause 17 was sought.
Furthermore, mandamus was sought for declaring the petitioners and persons similarly situated with them to be the employees of the State Government and entitled to rights, privileges, benefits as available to the State Government employees in their cadres which are equivalent to the petitioners' cadres and be declared to be governed by Service Rules and Regulations, which are applicable to the State Government employees. Petitioners be held entitled to the same salary, emoluments, DA, leave, etc as will be available to the Government servants under the State Government.
In the petition SWP No. 287/82 filed by the Corporation borne employees quashment of order No. 19/GR/80 dated 26.04.1980, order No. HKI/37/80 dated 08.05.1980, order No. JKI 264/80 dated 10.11.1980 was sought. Furthermore, petitioners ___________________________________________________________________ SWP no. 775/2017 Page 11 of 26 and co-employees be declared entitled to the grant of DA on par with State Government employees. Furthermore, petitioners be declared entitled to get equal pay for equal work and entitled to the same privileges benefits as are available to the State Government employees, in view of the identical discharge of the job by the petitioners and the State Government employees.
Since both the petitions were dismissed by the common judgment, one group i.e. the petitioners of SWP No. 236/82 filed the SLP against the judgment of the Division Bench before the Hon'ble apex Court, whereas the other group (Corporation borne employees) did not choose to file the SLP before the apex Court.
The SLP filed by Jawahir Lal Sazawal and others before the apex Court succeeded. Hon'ble the apex Court, by judgment dated 27.02.2002, has set aside the judgment of the High Court and allowed the appeal by granting relief to the appellants as prayed for in their writ petition.
The position of the appellants (writ petitioner of SWP No. 236/82) is that they were appointed in the industrial unit prior to incorporation as Company i.e. prior to 1963 and were appointed by the Government, so were Government employees. The industrial units were transferred to the Jammu and Kashmir Industries Limited but their position remained that of the Government employees. Hon'ble apex Court taking the position of the petitioners as having been appointed prior to the incorporation i.e. prior to 1963 has held as under:
"There is nothing in the instructions which could remotely be construed as an order abolishing the posts held by the appellants. Had the appellants been appointed as employees of the company, they should have been issued letters of appointment by the company. No appointment letter was issued to any of the appellants by the company."
It has further been held:
___________________________________________________________________ SWP no. 775/2017 Page 12 of 26 "The irresistible conclusion is that the appellants were and continued to be servants of the state government as the permanent residents of state of Jammu and Kashmir are entitled under section 10 of the State Constitution to be treated on par with other government servants in keeping with Article 14 and 16 of the Constitution of India. By impugned orders the state government has sought to deny the appellants such equality. The impugned orders cannot therefore be constitutional sustained and must consequently be quashed."
It is no more res-integra that the employees appointed prior to 1963 shall enjoy the status, like other Government servants, so shall be governed by the service rules and regulations applicable to the state employees and also to the salary and other benefits available to the Government servants under the State Government.
While complying with the judgment the Government order no. 219/Ind of 2002 dated 08.08.2002 referred in detail hereinabove was issued.
Now the bunch of writ petitions above numbered have been filed by the employees both who have retired and who are continuing in the service of the company. They claim the same benefit. The moot question for consideration is as to whether such benefit is available to them or not. As detailed hereinabove the apex Court in the background of the position of the appellants therein being the Government servants having been appointed in the year 1963, so their status of Government servants has been maintained. As a necessary corollary they have been held entitled to be treated at par with other Government servants.
The Corporation borne employees claim that even though they had not challenged the judgment of the Division Bench, but still they are entitled to the benefit as the law laid down by the apex court is law of the land so will govern all the employees irrespective of being Corporation borne employees but same is not ___________________________________________________________________ SWP no. 775/2017 Page 13 of 26 correct as there is distinction between their appointment and the appointment of the appellants of SLP.
Afore-stated position apart, it is contended that until 1979 the Corporation borne employees as well as the employees of the erstwhile Government industrial units were getting pay/allowance/leave on par with the employees of other Government Departments and have also been given the benefit of pay revision in the year 1973. The position was altered pursuant to order of Governor dated 26.04.1980, followed by orders of the Company dated 08.05.1980 and 10.11.1980. The position of both the groups of employees until 1979 i.e. until acceptance of 'Rajan Committee report' was that they were getting all service benefits on par with the employees of other Government Departments. The fact of the matter is that the three orders i.e. 19/GR/80 dated 26.04.1980, 08.05.1980 and JKI/264/80 dated 10.11.1980 which were impugned, have been quashed by the Hon'ble apex Court vide judgment dated 27.02.2002. So these three orders are non-existent, therefore, position relegates back to the year 1979, so the Corporation borne employees are entitled to be treated the way they were treated until year 1979.
This contention raised has a substantial force, because the three orders which altered the position prevalent up to year 1979 viz-a-viz pay/allowance/leave and other benefits on par with other employees of the Government, stand quashed. When it is so, admittedly, the position relegates to the position prevalent up to 1979, so this group of the employees in that background is entitled to be given all service benefits as were available to them in accordance with the position prevalent up to year 1979.
___________________________________________________________________ SWP no. 775/2017 Page 14 of 26 The cumulative effect of aforesaid position is that Corporation borne employees both retired and continuing shall be entitled to the service and other benefits in accordance with the system as was prevalent in the year 1979, as the order NOs. 19/GR/80 dated 26.4.1980, JKI/37/80 8.5.1980 and JKI/264/80 dated 10.11.1980, which had altered the position are no more in existence having been quashed by apex court.
The another situation as emerge from the facts and circumstances is as to whether any retirement scheme is framed so as to govern the Corporation borne employees. In this connection position has to be ascertained form the Articles of Association, Memorandum of Association and J&K Industries Employees Service Rules and Regulations. Board of Directors possess the specific powers as is clear from Article 73(33) of the Articles of Association, same is quoted hereunder:
73. Specific powers to Directors-Without prejudice to the general powers conferred by the last preceding Articles, and the other Powers conferred by these Articles, the Directors shall exercise the following powers with the sanction of the Governor that is to say, powers:
(33) to grant benefits, concessions and other facilities admissible under statutes and rules governing service in the State."
Plain reading reveals that the benefits available to the services in the State are extendable to the employees of the J&K Industries Limited.
Appearing counsel for the petitioners would contend that the retirement scheme has not been framed, Rules and Regulations are silent, when it is so J&K CSR will govern ___________________________________________________________________ SWP no. 775/2017 Page 15 of 26 the retiral position of the employees. There is no denying the fact that both groups of employees were getting the service benefits on par with Government employees. Applicability of J&K CSR has been adopted by the Jammu & Kashmir Industries Limited in the cases where rules are silent, same is substantiated by approved proposal by the Board of Directors on 06.12.2004. The proposal and approval is reproduced hereunder:
"The J&K Industries Employees Rules and regulations have not been updated, modified or amended since its application to the employees of the corporation during 1968. The Corporation is applying different provisions of J&K CSR wherever and whenever the Rules of the company are found silent on the subject under process at administrator, level, the adoption of J&K CSR by the corporation is necessary as the company has been already adopting/applying different SROs viz. Maternity benefits and special investments for family planning etc. issued by the Government from time to time. The company has recently applied the Article 226 (2 &3) of J&K CSR for premature retirement of the officers involved in multi-lakh criminal mis-appropriation /embezzlement in Government Silk Weaving Factory, Rajbagh, by retiring two of its officers have challenged the action of the management in the High Court of J&K at Srinagar under a service writ petition NO. 434-501/2004. Although the objections were filed in both the cases through Government Advocate, it was advised by the concerned advocate that before applying the provision of J&K CSR, the same should be got adopted in the corporation. The Board of Director are requested to approve adoption of J&K CSR's by the J&K Industries Limited in the cases wherever rules are silent.
___________________________________________________________________ SWP no. 775/2017 Page 16 of 26 Minutes/Items No.9.
The proposal put forth was approved by the board on 6.12.2004."
Article 89 of the Articles of Association reads as under:
"Notwithstanding anything contained in any of these Articles the Governor may from time to time issue such directives or instructions as he may think fit in regard to the finances and the conduct of the business and affairs of the Company, and the Directors shall duly comply with and give effect to such directives or instructions."
Under Article 89 the instructions have been issued by the Governor on 08.10.1963 circulated by Industries and Commerce Department under No.135-S/66 dated 11.08.1970 Instruction No.4 deals with specific responsibilities of the Board of Directors, which inter alia include the personal responsibilities head-(C) of instruction No.4, reads as under:
"In accordance with the provisions of Jammu & Kashmir Civil Service Regulations, Jammu and Kashmir Government Service (Classification, Control and Appeal) rules, Government Servants Conduct Rules Recruitment Rules and other Service Rules and Regulations in force from time to time."
Clause (vii) is quite relevant to be reproduced, which reads as under:
"To approve managerial and employment benefit and retirement schemes subject to the approval of the Governor."
So in terms of Instruction No.4-C (Vii), the Board of Directors were required to frame the retirement scheme which till date has not been framed nor it is shown as to ___________________________________________________________________ SWP no. 775/2017 Page 17 of 26 what type of retiral benefits shall be available to the employees of the J&K Industries Limited. When the rule position is silent about the retiral benefits, then the employees are to be governed by the J&K CSR, which as per approval of the Board of Directors has been adopted, as is quite evident form the approved proposal, quoted above."
13/ The pith and core of the judgment supra is that when the rule position is silent about the retiral benefits, then the employees are to be governed by the J&K CSR, which as per the approval of the Board of Directors has been adopted, as is quite evident form the approved proposal, quoted above. The petitioners in this case appear to be on the same page and pedestal as that of the petitioners in the judgment cited above. The SIDCO is a fully owned company of the government. The petitioners were appointed in SIDCO from the date of its incorporation viz. 1969 and all of them have attained the age of superannuation on different dates. The SIDCO was brought into existence on 17.03.1969 when it was incorporated under the Companies Act of 1956.
Evaluating and assessing the rule position regarding the grant of pension to the employees of the SIDCO, clause ___________________________________________________________________ SWP no. 775/2017 Page 18 of 26 XIV of the memorandum of association requires to be noticed at first and it provides as under:
"Subject to the provisions of the Companies Act to grant funds annuities, pensions, allowance, gratuities and bonuses to any employees or ex-employees (including Director and Ex- Directors of the company or their relations, connections or dependents of any such personal) of the company or its predecessors in business and to establish or support associations institutions, clubs, schools, hospitals, dispensaries, canteens, hotels, restaurants, houses, dwelling, chaws, funds, schemes, and trusts (scientific, educational provident or otherwise) which may be considered calculated to benefit any such persons or the public or otherwise advance the interest of the company of its members and to establish and contribute to any scheme for the purchase by trustee of shares in the company to be held for the benefit of the company's employees to enable them to purchase shares of the company and to formulate and carry into effect any scheme for sharing the profit of company with its employees or any of them to subscribe or guarantee money for charitable or benevolent objects or for any exhibition or for any public, general useful object or earmark a portion of the profits of the company or create a fund or for any such objects or purposes."
Clause 78 of the memorandum of association at XVI is also germane to the issue and it reads as under:
"To give, award or allow any bonus, pension, gratuity or compensation to any employee of the company or his widow, children or dependents, that may appear to the Directors just or proper, whether such employee, his widow, children or ___________________________________________________________________ SWP no. 775/2017 Page 19 of 26 dependents, have or have not a legal claim upon the company."
Clause XVII depicts and portrays the following:
"Before declaring any dividend and subject to the approval of the government, to set aside such portion of the profits of the company as they may think fit; to form a fund to provide for such pensions, gratuity or compensation or to create any provident or benefit fund in such manner as the Directors may deem fit."
14/ The SIDCO has also framed service regulations called "Jammu and Kashmir Industrial Development Corporation Service Regulations". The Regulations do not contain any provision with regard to the payment of pensionary benefits.
However, Regulation 68A is equipped as under:
"68A. Wherever the corporation rules are silent or inference cannot clearly be made out, the J&K CSR shall apply."
15/ While deciding SWP no. 1250/2002 dated 12.03.2009, this court noticed certain facts and features which are common between the employees of JKI and SIDCIO and these are as under:
a) That a committee called "Rajan Committee" was set up for examining the wage structure of employees of Government corporations. The report submitted by the said Committee was accepted by the Government on 22.4.1980. The recommendations of Rajan Committee, among others, were ___________________________________________________________________ SWP no. 775/2017 Page 20 of 26 made applicable to SIDCO as well vide Order no. 19-GR of 1980 dated 26.4.1980.
b) That as in the case of JKI, several orders came to be issued in SIDCO. These orders are order no. IDC/80/79 dated 05.05.1980, IDC/80/80 dated 05.05.1980, IDC/80/84 dated 05.05.1980, IDC/80/87 dated 05.05.1980, which among other things proposed rationalization in pay scales of various corporations.
c) Rationalization of pay scales was also effected in the corporation. Prior to implementation of the Rajan Committee Report, the employees of SIDCO were being granted leave as per Leave Rules applicable to government servants in general, medical allowance as per government orders issued from time to time, TA&DA as was applicable to the government servants, benefit of revision of the pay scale was also given to the employees of SIDCO prior to 1980.
d) In the case of JKI the memorandum/articles of association also provided that J&K CSR would govern the employees of the corporation wherever the rules are silent. There is no retirement scheme framed in the corporation and, therefore, J&K CSR is to govern the retiral position of the employees. The petitioners were getting the service benefits prior to 1980 which were at par with government employees.
e) As in the case of JKI employees, under Clause 78 of Memorandum/Articles of Association the Directors of the company have the power to give pension to the employees of the company and in terms of service regulations, in the absence of any rule, scheme or order to the contrary the employees of the Corporation are to receive the same ___________________________________________________________________ SWP no. 775/2017 Page 21 of 26 benefits as are available to the government servants generally.
f) The position of the JKI employees with regard to retiral benefits is silent. The court in the case of JKI employees has ruled that in such a situation J&K CSR would be applicable as is the case of SIDCO employees.
16/ This court in terms of judgment dated 12.03.2009 rendered in a bunch of writ petitions bearing SWP nos.
1250/2002, 1468/2004 and others has authoritatively pronounced that the employees, in respect of whom, the rules are silent regarding the grant of retiral and pensionary benefits have to be extended the benefit of the provisions as they exist under J&K CSR. In the writ petitions numbered above, the petitioners claimed pensionary benefits and the court after finding that the retirement scheme as was required to be framed has not been framed, held them to be entitled to pension and directed that they be paid retiral and pensionary benefits in light of the scheme of J&K CSR. The Regulations are admittedly silent on the issue of the grant of pensionary benefits to the petitioners and as such, in view of the Regulation 68-A read with the judgment ___________________________________________________________________ SWP no. 775/2017 Page 22 of 26 dated 12.03.2009 passed in SWP no. 1250/2002 etc. the petitioners are entitled to the pension and they have to be paid the pensionary benefits accordingly. It is very relevant to mention here that the judgment dated 12.03.2009 passed in SWP no. 1250/2002 etc. has been upheld by the Division Bench of this court in LPA no.
211/2009 and others in terms of the judgment dated 08.06.2011. Therefore, what can be said is that wherever in a corporation rules are silent with regard to the payment of pensionary benefits and there being no contrary rule or scheme in such corporation, CSR is made applicable by the rules or by any order of the Corporation. The case of the petitioners is also based on the said principle laid down by this Court. The petitioners also claim pensionary benefits on the basis that the rules governing their service do not prohibit grant of pension and on the contrary service regulations expressly provide application of CSR. Since the respondents have not provided pensionary benefits despite the demands extended by the petitioners vide ___________________________________________________________________ SWP no. 775/2017 Page 23 of 26 various representations including the Notices dated 30- 03-2012 and 24-11-2015, copies whereof are attached to the petition as Annexures "G" and "H" buttressed with all that has been said and done above, therefore they have a right to claim the same.
17/ Dealing with an almost identical matter, being SWP no.
2786/2011 titled Ghulam Mohammad Mir and others versus State and others, this court by a judgment dated 15.12.2017 authored by me, held as under:
"Testing the instant case on the above scales, clause 22(b) regulates the pensionary claims of the erstwhile GLU employees who had exercised their option to serve the corporation under its rules and regulations and had put in five years or more service as on 31.3.1983, which date stands changed now in terms of the order dated 18.11.2015 and besides that they have been held entitled to pension as per the decision of the government. The employees appointed in the corporation after 30.06.1979 and borne on the establishment of the corporation have, however, been held entitled to be paid service benefits as laid down in J&K State Forest Corporation Service Regulations, 1981. There is no provision in the regulations of 1981, governing the grant of pension to the employees appointed in the corporation after 30.06.1979. These employees have, therefore, to be paid pension by following Regulation 7 of the Regulations of 1981, which deals with residuary matters and provides as under:
___________________________________________________________________ SWP no. 775/2017 Page 24 of 26 "7 RESIDUARY MATTERS:
In respect of matters of procedure or any other issue, not expressly provided herein, the provisions of these rules and the procedure applicable generally to the state government employees in such matters, shall always be deemed applicable to the employees of the corporation."
In view of the above Regulation, the petitioners have to be treated on the same pedestal in which the state government employees are dealt with in the matter of the accord of pension under the provisions of J&K CSR.
18/ The judgment cited above also fits to a 'T' to the instant case and the principle of law evolved in it has to be applied to the case of the petitioners as well. It may also be added here that in the case of State of Kerala and others versus M. Padmanabhan Nair, AIR 1985 SC 356, the Supreme Court observed that pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement but have become, under the decisions of this Court, valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment. The view was reiterated in Dr. Uma Agarwal versus State of U.P. and another, AIR 1999 SC 1212.
___________________________________________________________________ SWP no. 775/2017 Page 25 of 26 19/ In view of the preceding analysis, the petition of the petitioners is allowed and the respondents are directed to pay, grant pensionary benefits to the petitioners in accordance with their entitlement as per the rules of pension governing the government servants generally as were applicable to them before issuance of SRO 400 dated 24.12.2009.
20/ Disposed of.
(M.K.HANJURA)
JUDGE
TARIQ Mota
SRINAGAR.
09.10.2018
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