Supreme Court - Daily Orders
Abasarprapt Bharatiya Khadyanigam ... vs Food Corporation Of India . on 8 September, 2016
Bench: J. Chelameswar, Abhay Manohar Sapre
W.P.(C)No.62/2011
ITEM NO.106 COURT NO.5 SECTION X
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Writ Petition(s)(Civil) No(s). 62/2011
ABASARPRAPT BHARATIYA KHADYANIGAM K.&ANR Petitioner(s)
VERSUS
FOOD CORPORATION OF INDIA & ORS. Respondent(s)
(with office report)
Date : 08/09/2016 This petition was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE J. CHELAMESWAR
HON'BLE MR. JUSTICE ABHAY MANOHAR SAPRE
For Petitioner(s) Ms. Daisy Hannah,Adv.
Ms. Ekta Pradhan,Adv.
Mr. Shekhar Kumar,Adv.
For Respondent(s) Mr. Ajit Pudussery,Adv.
Mr. K. Vijayan,Adv.
Ms. Shruti S. Haranika,Adv.
UPON hearing the counsel the Court made the following
O R D E R
The writ petition is disposed of, in terms of the signed order.
[O.P. SHARMA] [RAJINDER KAUR]
AR-cum-PS COURT MASTER
(Signed order is placed on the file)
Signature Not Verified
Digitally signed by OM
PARKASH SHARMA
Date: 2016.09.14
17:05:53 IST
Reason:
1
W.P.(C)No.62/2011
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL)NO.62 OF 2011
ABASARPRAPT BHARATIYA KHADYANIGAM
KARAMCHARI KALYAN SAMITY& ANR. PETITIONER(S)
VERSUS
FOOD CORPORATION OF INDIA & ORS. RESPONDENT(S)
O R D E R
This petition is filed under Article 32 of the
Constitution of India. We are informed that the first petitioner
is a Society registered under the West Bengal Societies
Registration Act, 1961 comprising of 453 members. The members of first petitioner were initially employed with the State of West Bengal in the Department of Food & Civil Supply in the year 1966. Subsequently, they were sent on deputation to the first respondent-Corporation where eventually all of them were absorbed in the service of the Corporation in the year 1984, the details of which is not necessary for the present purpose.
The petitioners claim that consequent upon their absorption to the service of the first respondent-Corporation, they are entitled to certain benefits conferred under Regulation 81 of the Food Corporation of India (Staff) Regulations, 1971 (for short “Regulations”). Regulation 81 of the Regulations reads as follows: 2 W.P.(C)No.62/2011
“81. Pay on first appointment:
The pay of an employee on first appoint to a post in the service of the Corporation shall be fixed at the minimum of the time scale applicable to the post to which he is appointed, or where the post is on a fixed pay, such fixed pay.
Provided that where any person appointed to a post to which a time-scale is applicable has been in continuous service for a period of not less than 2 years in any Department of the Central or any State Government or any Public sector or Private Sector Undertaking immediately preceding such appointment, the appointment authority may in its discretion fix the pay at the stage in the time-scale applicable to the post of the post next higher than the pay last drawn by him in such department of undertaking and may in addition in his discretion, grant one advance increment.” The specific case of the petitioners is that they are entitled to grant of one advance increment pursuant to their absorption into the service of the first respondent-Corporation. Though the Regulation stipulates that the employers has some discretion in the matter of granting such advance increment (admittedly) in the case of number of other employees who were absorbed into the service of the first respondent-Corporation from different sources. Such discretion was exercised in favour of the employees. Insofar as the employees who were originally under the employment of Union of 3 W.P.(C)No.62/2011 India were given the benefit of one advance increment as a matter of policy but such a benefit was denied to the absorbed employees which initially belonged to the State service.
Aggrieved by such a decision not to exercise a discretion in favour of some of those employees who were earlier employed with the State of West Bengal approached the High Court successfully. The matter was eventually carried to this Court by way of an appeal by the Food Corporation of India. By a judgment dated 12.5.2009 in Food Corporation of India vs. Ashis Kumar Ganguly and Others reported in (2009) 7 SCC 734 this Court dismissed the appeals.
The petitioners herein claim parity with the respondents (employees) in the above mentioned case. In all respects the members of the first petitioner are on par with the respondents in the above mentioned except that the members of the first petitioner herein retired at least by 2010 on various dates prior to that.
The instant petition is filed in the year 2011 by which point of time none of the members of the first petitioner is the employee of the first respondent-Corporation. The only dispute is regarding the entitlement of the members of the first petitioner for grant of an additional increment at the time of their initial appointment (absorption into the service of the first respondent).
In view of the above reported judgment of the Food Corporation of India (supra), the right of the members of the first petitioner 4 W.P.(C)No.62/2011 herein to claim such an increment is not disputed by the first respondent-Corporation. However, the learned counsel for the respondent submitted that notwithstanding the fact that they have such a right but they cannot get any relief in view of the judgment of this Court in State of Madhya Pradesh & Ors. vs. Yogendra Srivastava reported in (2010) 12 SCC 538. Para 18 of the said judgment dealing with the question of pay fixation of salary or any allowance reads as follows:
“18. We cannot agree. Where the issue relates to payment or fixation of salary or any allowance, the challenge is not barred by limitation or the doctrine of laches, as the denial of benefit occurs every month when the salary is paid, thereby giving rise to a fresh cause of action, bnased on continuing wrong. Though the lesser payment may be a consequence of the error that was committed at the time of appointment, the claim for a higher allowance in accordance with the rules (prospectively from the date of application) cannot be rejected merely because it arises from a wrong fixation made several years prior to the claim for correct payment. But in respect of grant of consequential relief of recovery of arrears for the past period, the principle relating to recurring and successive wrongs would apply. Therefore, the consequential relief of payment of arrears will have to be restricted to a period of three years prior to the date of the original application (See M.R. Gupta vs. Union of India (1995) 5 SCC 628 and Union of India v. Tarsem Singh (2008) 8 SCC 648) 5 W.P.(C)No.62/2011 It can be seen from the above extract that this Court categorically laid down that relief of payment of arrears has to be restricted for three years from the date of the original application.
In the instant case as already noticed above, all the members of the first petitioner retired sometime prior to 2010, the exact dates are not available on record. If the first respondent- Corporation had granted them one increment contemplated under of provisions of Section 81 of Regulations(supra), it would have made some difference in their pay in each successive month of their service.
In the circumstances, in the light of the law laid down by this Court in the case of State of Madhya Pradesh & Ors. vs. Yogendra Srivastava (supra), we are of the opinion that the members of the first petitioner are entitled for payment for three years prior to 18.11.2011 (the date on which the first petitioner made a representation to the respondent-Corporation) to claim the benefit of the judgment passed in Food Corporation of India vs. Ashis Kumar Ganguly and Others (supra). The first respondent-Corporation is directed to verify with reference to each of the members of the first petitioner Society, their entitlement for the relief indicated above and pass appropriate orders and if anyone of the members of the first petitioner Society is, in fact, in service in 6 W.P.(C)No.62/2011 the interregnum between 19.11.2008 to 18.11.2011, make payments, if any, found due to the members of the first petitioner. The members of the first petitioner Society are directed to make representation giving details of their retirement of each one of the members of the first petitioner-Society for the purpose of above mentioned exercise.
The writ petition is disposed of accordingly.
…......................J. [ J. CHELAMESWAR ] …......................J. [ ABHAY MANOHAR SAPRE ] NEW DELHI SEPTEMBER 08, 2016 7 W.P.(C)No.62/2011 8