Jammu & Kashmir High Court - Srinagar Bench
J&K; Industries Employees And Others vs Sh. Shalinder Kumar & Anr on 26 December, 2017
Author: Mohammad Yaqoob Mir
Bench: Mohammad Yaqoob Mir
On board
matter
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
1. Contempt No.134/2017
MP Nos.01/2017, 02/2017 & 03/2017
2. Contempt No.177/2017
MP No.03/2017
3. Contempt No.343/2017
Date of Decision:26.12.2017
1. J&K Industries Employees Association Vs. Sh. Shalinder Kumar & anr.
2. Kashmir Govt. Arts Emporium Low Paid Vs. Sh. B. R. Sharma & Ors
Employees Union
3. J&K Govt. Handloom Silk Weaving Vs. Sh. Shalinder Kumar & Ors.
Factory Workers Union
Coram:
Hon'ble Mr. Justice Mohammad Yaqoob Mir, Judge.
Appearance:
For the Petitioner(s) : Mr. M. A. Qayoom, Adv.
Mr. Altaf Haqani, Adv.
Mr. M. A. Chashoo, Adv.
For the Respondent(s) : Mr. B. A. Dar, Sr. AAG.
i) Whether approved for reporting in Yes/No Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
1. Petitioners in all these three contempt petitions, in effect, till date have not been allowed to reap the fruit of the judgment dated 12.03.2009 rendered by this Court while disposing of bunch of writ petitions i.e. SWP Nos.1250/2002, 1468/2004, 945/2002, 27/2003, 79/2003 and SWP Cont. Nos.134/2017, 177/2017 & 343/2017 Page 1 of 15 No.142/2007. In terms of the said judgment, petitioners were held entitled to be extended retiral and pensionary benefits by adopting J&K CSR. The operative part of the judgment is quoted here-under:
"Though the writ petitioners in all the above numbered writ petitions had claimed pensionary benefits directly or indirectly on the basis of Government Order No.219 dated 8.8.2002 but while considering their cases in the backdrop of the Rule position stated hereinabove they are to be extended the benefits permissible under Jammu & Kashmir CSR, only when the Rule position is silent about the retiral and pensionary benefits. As already concluded that retirement scheme as was required to be framed has not been framed, in absence thereof the petitioners are entitled to be and shall be extended the retiral and pensionary benefits by adopting the J&K CSR, however, only to the extent Jammu & Kashmir Industries Employees Service Rules and Regulations are silent in this behalf. All the writ petitions on aforesaid terms are allowed."
2. The judgment (supra) was challenged by medium of bunch of Letters Patent Appeals bearing LPA Nos.209/2009, 210/2009, 211/2009, 223/2009, 224/2009 and 227/2009 titled "State of J&K and anr. Vs. Tej Krishan Cont. Nos.134/2017, 177/2017 & 343/2017 Page 2 of 15 Kachroo and Ors" unsuccessfully as all the said appeals have been dismissed vide detailed judgment dated 08.06.2001. As against the said judgment dated 08.06.2011, Special Leave Petitions were filed before the Hon'ble Apex Court, same, vide order dated 03.11.2015, were permitted to be withdrawn so as to enable the State to file review petitions before the High Court.
3. Bunch of Review Petitions bearing Review (LPA) Nos.07/2016, 09/2016, 10/2016, 11/2016, 12/2016, 13/2016, 14/2016, 15/2016, 16/2016, 17/2016, 18/2016 and 19/2016 were filed but same stand dismissed by the Division Bench vide detailed judgment dated 29.03.2016.
4. The respondents exhausted all available remedies unsuccessfully, as a result whereof, judgment dated 12.03.2009 has attained finality.
5. Confronted with the non-implementation of the judgment, petitioners have filed three above numbered and titled separate contempt petitions. Respondents from time to time sought time for implementation of the judgment. On 15.09.2017, after noticing prevaricative approach of the respondents in implementing the judgment, it was observed as under:
"Perusal of the record suggest that the Cont. Nos.134/2017, 177/2017 & 343/2017 Page 3 of 15 respondent(alleged contemnor) have shown some seriousness even it appears that the Commissioner-Secretary to Government, Finance Department has noticed the contours of the judgment now a different mode is adopted absolutely in contravention to the judgment.
One opportunity of ten days' time is granted for implementing the judgment, in default Robkar will be framed against all the authorities who directly or indirectly are polluting the stream of administration of justice.
May be it may be too late for them to come out of the troubling situation, therefore, word of caution is enough for them."
6. It is after the aforesaid word of caution was issued, a compliance report has been filed along with Govt. order No.230-IND of 2017 dated 26.09.2017. Vide order dated 02.11.2017, it was noticed that in principle grant of pensionary benefits has been sanctioned but subject to two conditions as incorporated in the aforesaid Govt. order dated 26.09.2017. It was observed that implementation of the judgment can't be conditional, it has to be in its real spirit Cont. Nos.134/2017, 177/2017 & 343/2017 Page 4 of 15
7. Petitioners filed a comprehensive responses so as to show that the conditional order as issued indirectly violates the judgment.
8. The matter was again taken up on 23.11.2017. On the said date learned Sr. AAG produced certain communications so as to show that the method adopted for implementation of the judgment is correct but the petitioners were not satisfied.
9. Relevant to mention that there were two groups of employees of the Jammu and Kashmir Industries Ltd., one group was of those employees who were appointed by the Government prior to 1963 i.e. prior to the date of incorporation of Industrial unites as company and the second group is corporation born employees. In case of first group who too were denied the pensionary benefits while implementing the judgment of the Hon'ble Apex Court, Govt. order No.219-Ind of 2002 dated 08.08.2002, was issued, operative part whereof is advantageous to be quoted:
"Now, therefore, in pursuance of the orders of Hon'ble Supreme Court sanction is hereby accorded to the grant of pensionary and other benefits under Rules as may be applicable from time to time in favour of 169 employees as indicated in the annexure "A" hereto who were Cont. Nos.134/2017, 177/2017 & 343/2017 Page 5 of 15 appointed prior to 3-10-1963 in the industrial units run by the Industries and Commerce Department and later transferred to JKI Ltd. after its establishment. The entitlement for these benefits shall be worked out after deducting the retirement benefits availed by beneficiary at the time of superannuation from JKI including gratuity, employer's share of CP Fund etc. Excess payment, if any, shall be recovered from the concerned."
10. Likewise, while implementing the judgment regarding pensionary benefits in favour of one Syed Ahmad Byhaqi, Govt. order No.278-Ind of 2008 dated 30.10.2008 was issued. Operative part of the said order is relevant to be quoted:
"Now, therefore, in pursuance of the orders of Hon'ble High Court sanction is hereby accorded to the grant of pensionary and other post retirement benefits under rules as may be applicable from time to time in favour of 125 employees as indicated in the Annexure "A"
hereto who were appointed prior to 3-10-1963 in the Kashmir Government Arts Emporium and later transferred to J&K Handicrafts (S&E) Corporation, Limited after its establishment. The entitlement for these benefits shall be worked out Cont. Nos.134/2017, 177/2017 & 343/2017 Page 6 of 15 after deducting the retirement benefits availed by any of the beneficiary at the time of superannuation pension from J&K, Handicrafts (S&E) Corporation including gratuity, employer's share of CP Fund etc. Excess payment, if any, shall be recovered from the concerned."
11. Learned counsel for the petitioners would submit that on the same lines, the judgment as is in favour of the petitioners was to be implemented but instead the order of implementation as issued is conditional.
12. In order to appreciate this submission, Govt. order No.230-IND of 2017 dated 26.09.2017 is relevant to be quoted here-under:
Government of Jammu and Kashmir Industries & Commerce Department J&K Civil Secretariat, Srinagar Subject: Extension of Pensionary benefits to the employees of the J&K Industries (JKI) and J&K Handicrafts Corporation (S&E) (JKHC, S&E) in terms of the judgment of the Hon'ble High Court/Supreme Court.
Reference: Cabinet Decision No. 149/Cir/2017 Dated 26.09.2017.
Government Order: 230-IND of 2017 Dated: 26.09.2017 Sanction is accorded the acceptance of the recommendations of the Group of Ministry (GoM) constituted vide Govt. Order No. 1079-GAD of 2017 dated 21.08.2017 and extension of Pensionary benefits to the employees of JKI and JKHC, (S&E) as per the decisions of the Hon'ble High Court/Supreme Court which shall be implemented as under:
1. The respective Corporations shall prepare complete list of retired employees entitled for pension as per the Court orders, Cont. Nos.134/2017, 177/2017 & 343/2017 Page 7 of 15 documenting their past pay drawn details, working out receivables such as employers share of CP Fund and the outstanding amount to be paid to bonafide retired employees and finalizing monthly pension in each case by the Managing Director, JKI and JKHC, (S&E) expeditiously.
2. The planning, Development and Monitoring Department shall arrange resources for funding the pension scheme to the extent there is outstanding towards already acquired land of JKI by the PW(R&B), ARI & Trainings and Culture Departments by way of re-appropriation of their CAPEX allocations for the FY 2017-18.
3. The JKI and JKHC (S&E) shall utilize at least 50% of its receivables from resources other than received from the Planning Department, whether land compensation or profits at later stage for the payment of statutory liabilities and monthly pension.
By order the Government of Jammu & Kashmir.
Sd/-
Shailendra Kumar Commissioner/Secretary to Government Industries & Commerce Department
13. It is clear that in compliance to the judgment, sanction has been accorded for extension of pensionary benefits to the employees of JKI and JKHC(S&E) but the manner of implementation as indicated is not consistent with the judgment nor is consistent with the sanction granted in favour of the first group of employees or in favour of Syed Ahmad Byhaqi, as quoted hereinabove.
14. Discrimination amongst two groups of the employees of the Industries can't be allowed as being violative of Article 14 and 16 of the Constitution of India. Keeping in view the judgment, disobedience of which is claimed, there is no scope for treating the two groups differently. In this behalf it Cont. Nos.134/2017, 177/2017 & 343/2017 Page 8 of 15 shall be beneficial to quote following portion from para 21 of the judgment dated 08.06.2011 rendered by the Division Bench of this Court while disposing of bunch of LPAs as were filed against the judgment dated 12.03.2009:
"In as much as, we are convinced of the reasoning of the learned Single Judge, we do not find any distinguishing feature between the writ petitioners in SWP No.287/1982 vis-à-vis present private respondents in the matter of applicability of the Civil Service Rules, as has been held by the learned Single Judge......."
15. So it is a clear finding that there is no distinguished feature between the two groups of employees. When it is so, both the groups were required to be treated alike. In this connection it shall also be relevant to quote following portion from para 6 of the judgment rendered in the case of "K. C. Joshi vs. Union of India and Ors" 1985 AIR 1046 (equivalent citation 1985 SCC (3) 153):
"6.........Even if the employees of the Corporation, which is an instrumentality of the State, cannot the be said to be the members of a civil service of the Union or an All India service or hold any civil post Cont. Nos.134/2017, 177/2017 & 343/2017 Page 9 of 15 under the Union, for the purpose of Article 310 and 311 and therefore, not entitled to the protection of Art. 311, they would none-the-less be entitled to the protection of the fundamental rights enshrined in Article 14 and 16 of the Constitution that is they would be entitled to the protection of equality in the matter of employment in public service and they cannot be dealt with in an arbitrary manner."
16. It shall also be relevant to quote following para from the judgment rendered in the case of "State of Gujarat and another vs. Raman Lal Keshav Lal Soni and others" 1984 AIR 161 (equivalent citation 1983 SCR (2) 287):
"There is no force in the contention that some of the officers and servants of the Gram and Nagar panchayats were Government servants from the beginning while other officers and servants of Gram and Nagar panchayats were not and that a classification on the basis of source of their services was permissible. Once they had joined the common stream of service and performed the same duties, it is not Cont. Nos.134/2017, 177/2017 & 343/2017 Page 10 of 15 permissible to make any classification on the basisof their origin."
17. Again following portion from para 27 of the judgment rendered by the Hon'ble Apex Court while disposing of Civil Appeal Nos.626-627 of 2008 titled "A. N. Sachdeva (dead) by LRs & ors. Vs. Maharshi Dayanand University, Rohtak & anr.":
"27. Considering the principles enunciated under Articles 14 and 16 of the Constitution, and that the benefit is not an ex gratia payment but a payment in recognition of past service, in our opinion, discrimination could not have been made between those employees who have been absorbed/allocated are entitled to count their services as qualifying service for the purpose of pension and not those who have been appointed directly...."
18. When the first group of employees has been unconditionally extended the pensionary benefits and the judgment in their favour has been implemented, there can't be any scope for the respondents to adopt different line while implementing the judgment which is in favour of the petitioners. While implementing the judgment, order was issued by the Government bearing No.230-Ind of 2017 dated 26.09.2017 to the extent of according Cont. Nos.134/2017, 177/2017 & 343/2017 Page 11 of 15 sanction for pensionary benefits in favour of employees of JKI and JKHC(S&E) in pursuance to the decision of this Court and Hon'ble Apex Court. No fault can be found with the same but the mode of implementation, more specifically two conditions i.e. condition No.2 and 3 incorporated therein, directly and indirectly, amounts to violation of the judgment. What can be the reason for the respondents in not implementing the judgment in favour of the petitioners in the manner it has been implemented with regard to first group of employees in whose favour Govt. Order Nos.219-Ind of 2002 dated 08.08.2002 and 278-Ind of 2008 have been issued.
19. Firstly, the respondents have consumed lot of time in implementing the judgment. Then while finding no escape route, in principle they have taken decision to implement the judgment which they have done partly by according sanction for extension of pensionary benefits but made it blunt by prescribing conditional mode for implementation. These types of tactics are unacceptable. No authority, how high or whosoever may be, can sit over the judgment of the Court. Quite strange, the judgment dated 12.03.2009 has attained finality but it has not been implemented in its real spirit.
20. Non-implementation of the judgment in its real spirit either is deliberate Cont. Nos.134/2017, 177/2017 & 343/2017 Page 12 of 15 or is with some design to satisfy the ego.
21. In our Constitutional scheme, a person has a right to fight for his rights and also to fight against any discrimination. When a person fights for his rights by having recourse to litigation and when he finally succeeds, he cannot be deprived of reaping the fruits of successful litigation. Up to the level of Hon'ble Apex Court, petitioners have defended their rights successfully but respondent authorities by one pretext or the other appear to be pre-determined in not implementing the judgment in its real spirit. Govt. order No.230-Ind of 2017 dated 26.09.2017, as shown to be issued in full compliance of the judgment, in effect, has the trappings of negating the implementation of the judgment in its real spirit, which is quite demonstrable in view of the condition No.2 and 3 incorporated in the said order.
22. Disobedience of the judgment has the trappings of shacking the confidence of the rightful litigant public and has a clear effect of polluting the stream of justice. The respondent authorities shall have to bear in mind that any course adopted for diluting the implementation of the judgment in its real spirit has dangerous consequences i.e. the authorities attempting to disobey the judgment perhaps are not conscious that they are doing it at Cont. Nos.134/2017, 177/2017 & 343/2017 Page 13 of 15 their own peril. They were earlier cautioned that it may be too late for them to come out of the troubling situation but same word of caution has not been taken the way it should have been.
23. The non-implementation of the judgment in its real spirit is quite apparent. I am inclined to frame rule against all the respondent authorities but before so doing, an opportunity is granted to the respondents to purge the contempt i.e. to implement the judgment in the manner it has been implemented in respect of first group of employees of the J&K Industries by issuing an order on the lines of Govt. Order No.219-Ind of 2002 dated 08.08.2002 and Govt. Order No.278-Ind of 2008 dated 30.10.2008. Same shall be done without any fail within a period of four weeks and compliance report be filed upto the next date.
24. It has to be emphasized that the petitioners, in terms of the judgment which has attained finality, have to be extended the retiral and pensionary benefits by adopting J&K CSR. In case requisite compliance report is not filed by or before next date, the only course available to the Court would be to frame the rule against all the respondent authorities including those who shall be found responsible for avoiding implementation of the judgment in its real spirit.
Cont. Nos.134/2017, 177/2017 & 343/2017 Page 14 of 15
25. List on 30th January, 2018 in the regular cause list.
(Mohammad Yaqoob Mir) Judge Srinagar 26.12.2017 "Bhat Altaf, PS"
Pronounced today on 26.12.2017 at Srinagar in terms of Rule 138(3) of the Jammu and Kashmir High Court Rules, 1999 (Ali Mohammad Magrey) Judge Cont. Nos.134/2017, 177/2017 & 343/2017 Page 15 of 15