Allahabad High Court
Vijay Shankar Tripathi vs State Of U.P. And 3 Others on 14 June, 2021
Equivalent citations: AIRONLINE 2021 ALL 2120
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED A.F.R. Court No. - 74 Case :- WRIT - A No. - 38695 of 2015 Petitioner :- Vijay Shankar Tripathi Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Birendra Singh, Rajnish Pandey, Virendra Singh Counsel for Respondent :- C.S.C.,Ayank Mishra,Dr. S.K. Yadav, Pranjal Mehrotra Hon'ble J.J. Munir,J.
1. This writ petition puts in issue a decision of the Kanpur Electric Supply Company Limited (for short "the Company"), respondent no.2 and communicated vide order dated 19.04.2014, issued by the Deputy Chief Accounts Officer of the Company, refusing to grant retirement pension to the petitioner.
2. Heard Mr. Hareram Tripathi, Advocate holding brief of Mr. Rajnish Pandey, learned Counsel for the petitioner, Mr. Rajendra Kumar Mishra, learned Counsel appearing for respondent nos. 2, 3 and 4, and Dr. Amar Nath Singh, learned Standing Counsel appearing on behalf of the State.
3. In this writ petition, parties have exchanged affidavits at the admission stage, much before the petition was formally admitted to hearing on 07.12.2020. It was, on that day, heard and judgment reserved. However, on 07.12.2020, Mr. Pranjal Mehrotra, learned Counsel for the Company and its various officers, was not present. It was, therefore, considered expedient to post the matter for further hearing. It came up again on 16.12.2020, when Mr. Rajendra Kumar Mishra, learned Advocate appeared on behalf of the Company and their various officers, that is to say, respondent nos.2, 3 and 4. Learned Counsel appearing for all parties were heard on that day and judgment was reserved.
4. The dispute involved in this writ petition is a sequel to an award dated 18.01.1996, passed by the Presiding Officer, Labour Court (IV), U.P., Kanpur (published on 18.04.1996) in Adjudication Case no.3 of 1988 between the predecessors of the Company, that is to say, M/s. Kanpur Electric Supply Administration, who were the employers and the petitioner, their workman. The award became final between parties, in course of proceedings, the details whereof would be mentioned later in this judgment. The proceedings for execution of the award of the Labour Court led to a settlement agreement being recorded before the Conciliation Officer (Deputy Labour Commissioner, U.P., Kanpur Region, Kanpur) dated 07.11.2001, in terms of which, the petitioner claims a right to receive retirement pension. By the decision impugned, the Company have denied the petitioner's right aforesaid, founded on the Labour Court's award and the ensuing settlement agreement recorded before the Conciliation Officer. It is the aforesaid claim of the petitioner and its repudiation by the Company, which has given rise to this writ petition.
5. The petitioner was appointed as a Clerk on daily-wages on 10.11.1980 with the Kanpur Electric Supply Administration (for short "KESA"), a part of the establishment of the late U.P. State Electricity Board. The erstwhile U.P. State Electricity Board (for short "the Board") was wound up and reconstituted into three companies, one of these being the U.P. Power Corporation Limited (for short "UPPCL"). On 14.01.2000, the KESA, upon dissolution of the Board and its part reconstitution into the UPPCL, was reconstituted as the Kanpur Electric Supply Company Limited (already introduced hereinbefore, for the sake of brevity, as "the Company"). During the KESA days, the petitioner was granted extension as a daily-wage clerk from time to time. There are two extension orders dated 01.01.1981 and 31.12.1981, annexed to the writ petition collectively as Annexure no.2. But, all that does not appear to be very material, considering the fact that the petitioner's tenure and terms of employment as well as dispensation of services at a certain point of time by the KESA has already been through the process of industrial adjudication, culminating in an award of the Labour Court, details whereof would be mentioned later. In substance, the petitioner remained a daily-wage clerk for six years with the KESA and his services were terminated by an oral order dated 31.12.1986, again by the KESA. The petitioner dubbed this sudden termination of his services by the KESA as illegal, arbitrary, and amongst others, one made in violation of the provisions of the Uttar Pradesh Industrial Disputes Act, 1947 (for short "the Act of 1947"). He raised an industrial dispute against the KESA, which, after reference under Section 4-K of the Act of 1947, came to be registered on the file of the Presiding Officer, Labour Court (IV), U.P., Kanpur as Adjudication Case no.3 of 1988. The reference made to the Labour Court under Section 4-K of the Act of 1947 on 06.01.1988, reads to the following effect (translated into English from Hindi vernacular):
"Whether the act of the employers terminating the services of their workman, Vijay Shankar Tripathi, a daily-wage clerk w.e.f. 31.12.1986 is proper and/or lawful? If not, to what benefit/relief is the workman concerned entitled and in what terms?
6. The industrial dispute was tried by the Labour Court and by an award dated 09.04.1996 (published on 18.04.1996), it was ordered that the workman (the petitioner) be reinstated in service by the employers (KESA, now represented by the Company, their successor) on his old terms and conditions of service, together with continuity of service, without any break. It was further awarded that for the period of forced unemployment, the employers would be liable to pay the petitioner wages worked out on a daily basis. Costs in the sum of Rs.300/- were also ordered.
7. The award aforesaid of the Labour Court was challenged by the Board through Civil Misc. Writ Petition No. 19130 of 1996 before this Court. It was pending this writ petition that there was complete reorganization of the existing power distribution bodies in the State. This was brought about by the State Government by means of the U.P. Electricity Reforms Act, 1999. The last mentioned Act dissolved the Board and vested all its properties, rights, interests and liabilities, as they existed, in three different successor Corporations, to wit, the Uttar Pradesh State Power Generation Corporation Limited, the Uttar Pradesh Hydro Electric Power Corporation Limited and the Uttar Pradesh Power Corporation Limited. Along with this transfer of assets, rights and liabilities from the erstwhile Board to the three Corporations, the services of the employees of the Board were transferred to the three successor Corporations on 'as is where is' basis. It was further provided under the scheme for transfer of services of employees of the Board to the successor Corporations that such employees, whose seniority was not required to be determined at the State level, would get absorbed in the services of the Corporation, where they were employed.
8. It appears that by a gazette notification dated 15.01.2001, the State Government notified the Company as a subsidiary company of the UPPCL to succeed the KESA. In substance, therefore, upon dissolution of the erstwhile Board, its rights and liabilities, insofar as the petitioner was concerned, or so to speak, the KESA was concerned, were vested in the UPPCL. There was thus effected a transfer of all the functions, rights and liabilities of the former KESA to the Company. While all this reorganization in the set up of the Company or the employers of the petitioner took place, the writ petition preferred by the former KESA from the award of the Labour Court dated 18.01.1996 came to be dismissed as infructuous by this Court vide order dated 16.05.2000. It has been asserted for a fact that the aforesaid order dismissing the KESA's writ petition was never applied recall of or the writ petition got restored by the Company as the KESA's successor. As such, the order of this Court dated 16.05.2000, dismissing Civil Misc. Writ Petition 19130 of 1996 became final, and with it, the award of the Labour Court dated 18.01.1996.
9. The Company, faced with the prospects of execution of the award dated 18.01.1996 passed against its predecessor KESA, entered into a settlement agreement dated 07.11.2001 before the Conciliation Officer (Deputy Labour Commissioner, Uttar Pradesh, Kanpur Region, Kanpur), duly recorded under Section 4-F of the Act of 1947 read with Rule 5 (1) of the Industrial Disputes Rules, 1957. It is pointed out by the learned Counsel for the petitioner, Mr. Hareram Tripathi, that this settlement agreement was arrived at by the Company to ward off execution of the award passed by the Labour Court, regarding which, execution proceedings had been instituted by the petitioner vide Misc. Case No. 28 of 2001. It is emphasized by Mr. Tripathi that Paragraph No. 8 of the settlement agreement shows that the liquidated sum of back-wages, claimed in the execution case by the petitioner, was a sum of Rs.9,28,473/-. The terms of the settlement agreement, according to the learned Counsel for the petitioner, show that broadly speaking, the petitioner agreed to be adjusted on the post of a daily-wage clerk, that he formerly held, but placed in the regular pay scale of Rs.4200-100-6400/- w.e.f. 01.10.2001, in lieu of forgoing voluntarily all his claims to back-wages.
10. It is further pointed out by the learned Counsel for the petitioner that vide paragraph no. 5 of the settlement agreement, it was covenanted that the petitioner would be entitled to continuity of service w.e.f. 01.05.1982, for the purpose of pension and gratuity alone, and that for the aforesaid period of time, he would not be entitled to any other benefit. To the same end, learned Counsel for the petitioner has drawn attention of the Court to paragraph no. 7 of the settlement agreement, which covenants that all other entitlements of the petitioner, attached to the post of daily-wage clerk in the pay scale of Rs.4200-100-6400 and other admissible allowances thereon, would be determinable w.e.f. 01.10.2001, but no other benefit for the earlier period of his employment in terms of the award would be payable, except pension and gratuity. It was also covenanted that the settlement agreement would be regarded as full and complete satisfaction of the award passed in Adjudication Case No. 3 of 1988.
11. It is next submitted by the learned Counsel for the petitioner that it was in compliance with the award of the Labour Court dated 18.01.1996 passed in Adjudication Case No. 3 of 1988 and the settlement agreement dated 07.11.2001, entered into between parties in proceedings arising from the award, that a letter of appointment, described as adjustment on the post of a daily-wage clerk in the pay scale of Rs.4200-100-6400/-, was issued by the Company in favour of the petitioner, subject to three conditions, largely giving effect to the settlement agreement. It is urged that the first condition clearly indicates that all entitlements of the petitioner attached to the post of a daily-wage clerk in the pay scale of Rs.4200-100-6400/- would be determinable w.e.f. 01.10.2001, together with other benefits payable, according to the award, but except for pension and gratuity, no other benefits would be payable for the former period of employment. The submission of the learned Counsel for the petitioner, therefore, is that the conjoint effect of the award, the settlement and the letter of appointment issued to the petitioner, is that he is not entitled to claim back-wages in terms of the award in consideration of his adjustment now made by the Company on the post of daily-wage clerk in the pay scale of Rs.4200-100-6400/-, except the petitioner's entitlement to pension and gratuity, determinable from 01.05.1982, the former period of his employment.
12. The petitioner retired from service on attaining the age of superannuation on 12.07.2012. He was admittedly paid a sum of Rs.2,29,478/- vide Cheque No. 50914 dated 31.10.2012 towards his General Provident Fund. The petitioner was, however, neither paid gratuity nor pension. He waited for a period of about one year before he submitted a representation dated 05.12.2012 to the Company, represented by its Managing Director, asking for payment of his pension and gratuity. Attention of the Court has been drawn to certain intra-departmental correspondence, being letters dated 28.09.2012 and 29.08.2013, addressed by the Chief Engineer to the Director (Personnel & Administration) of the Company, requesting the latter to seek legal opinion about the tenability of the petitioner's claim to pension and gratuity.
13. It appears that no decision was taken by the Company regarding the petitioner's claim to payment of gratuity and pension for a considerable period of time. The petitioner, therefore, approached this Court, by means of Writ - A No.57607 of 2014, with a prayer that the respondents may be directed to pay his gratuity and pension. The aforesaid writ petition was disposed of in terms of a judgment and order dated 30.10.2014. Learned Counsel has drawn this Court's attention to a copy of the said order passed by this Court, the operative portion whereof reads :
"In view thereof, the writ petition is being disposed of with a direction to the Managing Director of Kanpur Electricity Supply Limited to consider request of the petitioner for grant of pensionary benefits and compute the pension at the earliest and order on release of pension of the petitioner shall be passed expeditiously preferably, within one month from the date of production of a certified copy of this order before him."
14. A copy of the said judgment was lodged with the Managing Director of the Company by the petitioner, along with a covering letter dated 30.01.2015. It is in purported compliance with the aforesaid order passed by this Court in Writ - A No.57607 of 2014 that the Managing Director of the Company has taken a decision to reject the petitioner's claim, both regarding pension and gratuity, which has been communicated by means of the impugned order dated 19.12.2014.
15. The earliest return that was filed on behalf of the Company is one dated 13.04.2018, though this Court ordered the Company to file a counter affidavit pending admission on 15.07.2015. The substance of the stand, discernible from the counter affidavit filed on behalf of the Company, is that they do not disown the fact that the petitioner was earlier a daily-wage employee of the KESA; the fact that the Company is a successor of the KESA; the fact that an award was passed by the Labour Court against the KESA in Adjudication Case No. 3 of 1988; the fact that the Company in place of the KESA entered into a settlement agreement before the Conciliation Officer with the petitioner, in terms whereof the award of the Labour Court stood satisfied; and also the fact that the writ petition preferred by the KESA against the award of the Labour Court was dismissed as infructuous on 16.05.2000, whereagainst no steps have been taken by the Company. The petitioner's claim is, however, resisted by the Company, primarily on foot of the reasoning that the petitioner was appointed afresh, in lieu of his former services with the KESA, and to adjust rights under the award vide letter of appointment dated 01.10.2001, and further that all rights of the petitioner are traceable to 14.01.2000, that is to say, the date of incorporation of the Company. It is urged that none of the rights of the petitioner are traceable or determinable with reference to the period of his service rendered with the KESA.
16. It is also the Company's stand that an Office Memorandum No. 1915 dated 06.06.2003, issued by the UPPCL, of which the Company is a subsidiary, does not provide for a pension scheme. Instead, it provides for a Contributory Provident Fund Scheme. It is further the Company's stand that it was open to the petitioner to fill up the necessary form under the CPF Scheme and secure allotment of a CPF number, which he did not do. Instead, the petitioner secured a General Provident Fund Account number, which was cancelled by the Senior Accounts Officer, Uttar Pradesh State Power Sector Employees Trust, Lucknow vide Letter No. 1804 dated 10.10.2012 w.e.f. the date of allotment of the account number. These averments find place in paragraph no. 17 of the counter affidavit, where it is also said that the petitioner deposited money under the GPF Scheme, which, after cancellation of that account, was refunded to him along with interest by Cheque No. 50914 dated 31.10.2012, worth Rs.2,29,478/-.
17. The thrust of the Company's submission is that the settlement agreement entered into before the Conciliation Officer on 07.11.2001, to ensure compliance of the award passed by the Labour Court, cannot be enforced for a term therein, which is against the provisions of law. Dilating on this stand, set out in paragraph no. 11 of the counter affidavit, it is urged on behalf of the Company by Mr. Mishra that the petitioner has been retained afresh by the Company w.e.f. 01.10.2001. The Company, in terms of Office Memorandum No. 1915 dated 06.06.2003 issued by the UPPCL, does not have a pension scheme in force. It only has a Contributory Provident Fund Scheme. Therefore, for employees appointed on or after 01.10.2001 to the service of the Company, no pension can be paid under the law. The terms, therefore, carried in paragraph nos. 5 and 7 of the settlement agreement dated 07.11.2001, where the Company has covenanted to pay pension and gratuity to the petitioner, in lieu of his giving up his claim to back-wages under the award, is a covenant that is contrary to the law in force. Therefore, it cannot be given effect to.
18. In support of his submission, learned Counsel appearing on behalf of the Company/respondent nos. 2, 3 and 4, has relied upon a decision of the Supreme Court in PEPSU RTC, Patiala v. Mangal Singh and others1. Learned Counsel has emphasized the holding in PEPSU RTC, where it has been observed:
"29. It is well-settled law that the regulations made under the statute laying down the terms and conditions of service of the employees, including the grant of retirement benefits, have the force of law. The regulations validly made under the statutory powers are binding and effective as the enactment of the competent legislature. The statutory bodies as well as general public are bound to comply with the terms and conditions laid down in the regulations as a legal compulsion. Any action or order in breach of the terms and conditions of the regulations shall amount to violation of the regulations which are in the nature of statutory provisions and shall render such action or order illegal and invalid."
19. In the rejoinder affidavit, that has been filed by the petitioner in answer to the counter affidavit dated 03.04.2018, the terms of the settlement agreement recorded inter partes have been pleaded to, to show that pension and gratuity are determinable in terms of the award, calculating the period of service rendered earlier under the KESA, with continuity for the limited purpose of entitlement to pension and gratuity. The other benefits, particularly back-wages, have been given up by the petitioner in consideration of his adjustment by the Company against the same post that he was holding w.e.f. 01.10.2001. It is emphasized that the petitioner's appointment is not a fresh appointment under the Company, but a reinstatement on account of the award rendered by the Labour Court in his favour, where an adjustment of rights has been arrived at before the Conciliation Officer, in terms of the settlement agreement dated 07.11.2001. Thus, the stand in the rejoinder appears to be that the petitioner cannot be deprived of his rights flowing from the settlement agreement, which, in turn, derives its force from the award of the Labour Court, that together conclude the rights of parties about everything, including pension and gratuity.
20. It is also particularly pleaded in the rejoinder affidavit that one Ramu Bajpayee, a daily-wage clerk under the KESA, whose services were terminated like the petitioner's, had approached the Labour Court, challenging the dispensation of his services. The Labour Court had passed an award in favour of Ramu Bajpayee, where also, a settlement agreement like the one in the petitioner's case, was entered into between Ramu Bajpayee and the Company. It has been pleaded that in Bajpayee's case, a pension payment order dated 29.06.2016 has been issued, in compliance with the office order dated 26.05.2016, treating Bajpayee's services to be those continuing from the erstwhile KESA, for the limited purpose of payment of pension and gratuity, and to abide by the terms of the settlement agreement entered into between the Company and Bajpayee. It is urged on behalf of the petitioner that Bajpayee being similarly circumstanced as the petitioner, denial of pension and gratuity to him is discriminatory.
21. A further counter affidavit dated 06.08.2018 has been filed on behalf of the Company, where the case of the petitioner and Ramu Bajpayee has been attempted to be distinguished, by pleading the differences, shown in tabular form, in paragraph no. 4 of the counter affidavit under reference. The table there is extracted below:
श्री विजय शंकर त्रिपाठी श्री रामू बाजपेयी कार्यालय ज्ञाप सं0 एल0सी0-4 अभि0/3/88/849 दि0 08.11.2001 द्वारा श्री विजय शंकर त्रिपाठी को 01.10.2001 से दैनिक श्रेणी लिपिक वेतनमान रू0 4200-100-6400 के पद पर निम्न सेवा शर्तो के आधीन समायोजित किया गया था।
1. श्री विजय शंकर त्रिपाठी पुत्र श्री भगवती प्रसाद त्रिपाठी को दिनांक 01.10.2001 से दैनिक श्रेणी लिपिक का पद व वेतनमान रू0 4200-100-6400 व उस पर अनुमन्य अन्य हितलाभ देय होंगे किन्तु एवार्ड के अनुसार पेंशन व ग्रेच्युटी को छोड़कर पूर्व की अवधि को अन्य किसी प्रकार का हितलाभ अनुमन्य नहीं होगा।
2 श्री विजय शंकर त्रिपाठी को कम्प्यूटर को ज्ञान अर्जित करने तथा टंकन परीक्षा उत्तीर्ण करने की तिथि से अनुमोदित दैनिक श्रेणी लिपिक पद के हितलाभ (जैसे वरिष्ठता/ पदोन्नति व अन्य) अनुमन्य होंगे व वार्षिक वेतन वृद्धि, समयबद्ध वेतनमान की गणना 01.10.2001 की तिथि से अनुमन्य होगी
3. अभिनिर्णय वाद सं0-3/88 के अर्न्तगत मा0 श्रम न्यायालय-द्वितीय, उ0प्र0, कानपुर के समक्ष रु0 9,20,473.00 की संगणना को जो विविध वाद श्री त्रिपाठी द्वारा दाखिल किया गया है वह समाप्त माना जायेगा।
कार्यालय ज्ञाप सं0 एल0सी0-3 (ए-173/93/ डब्लूपी/3639/ 98) /552 दि0 26.04.2005 द्वारा श्री रामू बाजपेयी को दिनांक 01.01.1979 से रू0 365-585, समय-समय पर संशोधित एवं 01.01.1996 से पुर्नरीक्षित वेतनमान रू0 4200-6400 पर दैनिक श्रेणी लिपिक के पद पर निम्न सेवा शर्तो के आधीन सेवा में पुर्नस्थापित किया गया था।
1. श्री रामू बाजपेयी को दिनांक 01.01.1979 से सेवा में तारतम्यता दी जायेगी।
2. श्री रामू बाजपेयी की सेवा में पुर्नस्थापना के फलस्वरूप दिनांक 01.01.1979 से 31.03.2005 तक का किसी भी प्रकार का भुगतान देय नहीं होगा और न ही श्री बाजपेयी द्वारा पूर्व में वसूलयावी के माध्यम से प्राप्त भुगतान का ही समायोजन किया जायेगा।
3. श्री रामू बाजपेयी को दिनांक 01.04.2005 से वेतन एवं भत्तों को भुगतान किया जायेगा।
22. A supplementary rejoinder affidavit in answer to the counter affidavit dated 06.08.2018 has been filed, being one dated 28.08.2018. In answer thereto, various terms of the settlement agreement have further been pleaded in paragraph no. 5 of the supplementary rejoinder affidavit. Paragraph nos. 11 and 12 of the award, that have led to the settlement agreement, have been pleaded to point out that the Labour Court had determined that the services of the petitioner under the erstwhile KESA were not for a limited period of time, but regular, looking to the period of his retention in service. His termination from service was held to be illegal, particularly, as juniors had been retained. The award had granted reinstatement on his old service conditions with continuity and back-wages for the entire period that he was kept out of employment.
23. I have perused the record and keenly considered the submissions made on behalf of both parties.
24. It is common ground between parties that the petitioner was a daily-wage clerk with the erstwhile KESA, of which the Company are successors. He was a daily-wage clerk from 10.11.1980 until 31.12.1986. His services were terminated on 13.12.1986 by the KESA. This termination was the subject matter of an industrial dispute, that was raised at the instance of the petitioner and referred to the adjudication of the Labour Court. The Labour Court passed an award dated 09.04.1996 (published on 18.04.1996), whereby the petitioner was ordered to be reinstated in service by the KESA on the old terms and conditions of service, with benefit of continuity. Back-wages for the period that the petitioner remained out of employment on account of termination of his services were also ordered to be paid to the petitioner, albeit worked out on a daily basis. A perusal of the award rendered by the Labour Court shows that the services of the petitioner were not held to be temporary or for a time bound basis, because he was retained in service for a long number of years and work remained available after his termination. It was also held that the petitioner's services were illegally terminated as juniors were permitted to continue. Admittedly, this award of the Labour Court had become final.
25. The findings returned by the Labour Court in the award show that the services rendered by the petitioner with the Company's predecessors, that is to say, the KESA, have not been held to be temporary or for a limited period of time. A fortiori, the services of the petitioner with the KESA have been held to be regular and permanent in character. It is on the foot of those findings that the Labour Court held the termination of his services illegal, particularly, finding it to be a case where Section 6-P of the Act of 1947 had been violated. This Court must remark that in the award made by the Labour Court, back-wages have been awarded, worked out on a daily basis, while the nature of the petitioner's retention in service has been found to be permanent and not for a limited period of time.
26. The submission of the learned Counsel for the Company that the Labour Court had held the petitioner to be a daily-wager and, therefore, ordered his back-wages to be reckoned on a daily basis, is not tenable. The reason is that the Labour Court directed reckoning of wages on a daily basis, because that is how the petitioner was being remunerated, before his services were unlawfully terminated. But, this does not lead to the inference that the Labour Court held him to be a daily-wager or a workman engaged for some period of time, to meet the exigencies of work. The Labour Court, being a Court of referred jurisdiction, could not grant the petitioner the benefit of regular wages, as that was not the reference made to it. The reference made to the Labour Court was whether the services of the petitioner were unlawfully terminated, and the Labour Court could not travel beyond the terms of the order of reference and questions incidental to it. Since the validity of the KESA's action in terminating the services of the petitioner was referred for a decision to the Labour Court, it was within the legitimate domain of the Labour Court to determine the nature of the petitioner's employment and tenure with the KESA.
27. A perusal of the award also shows that after considering all evidence on record, it was held by the Labour Court that despite there being a requirement of daily-wage clerks, termination of the petitioner's services was both improper and illegal. It was also held that looking to the long number of years of service, the petitioner's tenure cannot be held to be temporary or for a limited duration. It was in the context of these findings that the Labour Court reinstated the petitioner on the old conditions of his service, with continuity. Read as a whole from any angle, the award held the petitioner to be a regular and permanent workman of the KESA. Since this award has become final between parties, it cannot now be assailed collaterally by the Company, who are KESA's successors in the present writ petition.
28. It appears that faced with proceedings for execution of the award vide Misc. Case no.28 of 2001, where the petitioner put forward a claim to back-wages, liquidated in the sum of Rs. 9,28,473/-, the Company entered into a settlement agreement before the Conciliation Officer/ Deputy Labour Commissioner, U.P., Kanpur in proceedings under Section 4-F of the Act of 1947. It is imperative to refer to the settlement recorded before the Conciliation Officer inter partes on 07.11.2001, for every word of it. It reads thus:
"प्रपत्र - I (धारा 4 एफ एवं रुल 5 (1)) समझौते का प्रारुप पक्षों के नाम व पते :-
सेवायोजक पक्षः - (1) मे0 कानपुर विद्युत आपूर्ति कम्पनी लि0, 14/71, सिविल लाइन्स, कानपुर। श्रमिकः - (2) श्री विजय शंकर त्रिपाठी, पुत्र श्री भगवती प्रसाद त्रिपाठी, 86/14, डिप्टी का पड़ाव, कानपुर। सेवायोजक की ओर सेः - श्री ओ०पी० मिश्रा, वरिष्ठ कर्मिक अधिकारी, श्रमिक की ओर सेः - श्री विजय शंकर त्रिपाठी (स्वयं श्रमिक) द्वारा: श्री राम मनोरथ त्रिपाठी - कार्यवाहक अध्यक्ष कानपुर विजली मजदूर सभा 96/10 महात्मा गांधी मार्ग, कानपुर। -:: विवाद का संक्षिप्त विवरण ::-
श्री विजय शंकर त्रिपाठी पुत्र श्री भगवती प्रसाद त्रिपाठी के डेली रेटेड क्लर्क के पद से दिनांक 31.12.86 से सेवायें समाप्त किए जाने के विरुद्ध माननीय पीठासीन अधिकारी, श्रम न्यायालय-4, उ0प्र0 कानपुर में उठउस गए अभिनिर्णय वाद सं0 03/88 में वादी के पक्ष में पुरानी सेवा शर्तों व अखण्डता के साथ सेवा में पुर्नस्थापित करने के हुए एवार्ड दिनांक 18.01.96 (इस अभिनिर्णय वाद के विरुद्ध माननीय उच्च न्यायालय, इलाहाबाद में दाखिल रिट याचिका संख्या - 19130/96 के परिप्रेक्ष में) के क्रियान्वयन स्वरुप उभय पक्षों में सौहार्दपूर्ण वातावरण में निम्नलिखित शर्तों पर आपसी समझौता सम्पन्न हुआ !
-:: समझौते की शर्ते :-
1. यह कि सेवायोजक वाद के दाखिल होने के समय कानपुर विद्युत सम्पूर्ति प्रशासन था जो कि वर्तमान में कानपुर विद्युत आपूर्ति कम्पनी हो गई है।
2. यह कि वादी श्री विजय शंकर त्रिपाठी पुत्र श्री भगवती प्रसाद त्रिपाठी उक्त अभिनिर्णय वाद सं0 3/88 में हुए एवार्ड के परिप्रेक्ष्य में 01.10.2001 की तिथि से दैनिक श्रेणी लिपिक, वेतनमान रू0 4200-100-6400 का पद प्रदान किए जाने की स्थिति में एवार्ड के अनुसार देय पिछला सभी प्रकार का हितलाभ स्वेच्छा से छोड़ने को तैयार है।
3. यह कि वादी श्री विजय पांकर त्रिपाठी उक्त अभिनिर्णय वाद के परिप्रेक्ष्य में 01.10.2001 की तिथि से दैनिक श्रेणी लिपिक का पदनाम व वेतनमान प्रदान किए जाने की दशा में दैनिक श्रेणी लिपिक के पद के लिए निर्धारित योग्यता जैरो - टंकण एवं कम्प्यूटर का ज्ञान अर्जित करने एवं विभाग द्वारा आयोजित टंकण परीक्षा उत्तीर्ण करने के पश्चात अनुमोदित दैनिक श्रेणी लिपिक के पद पर समायोजित कर दिनांक 01.10.2001 से वरिष्ठता एवं पदोन्नति हितलाभ देय होंगे।
4. यह कि वादी इस बात के लिए स्वेच्छा से तैयार है कि वह पूर्व में हुए अन्य किसी भी डेली रेटेड क्लर्क के समझौते/वाद का उदाहरण लेते हुए भविष्य में किसी भी प्रकार की मांग नहीं उठायेगा।
5. यह कि वादी को दिनांक 01.05.82 से केवल पेंशन एवं ग्रेच्युटी हेतु सेवा में निरन्तरता का लाभ अनुमन्य होगा और इस अवधि का अन्य किसी प्रकार का दूसरा सेवा हितलाभ अनुमन्य नहीं होगा।
6. यह कि सेवायोजक श्री विजय शंकर त्रिपाठी पुत्र श्री भगवती प्रसाद त्रिपाठी को 01.10.2001 की तिथि से दैनिक श्रेणी लिपिक के पद एवं वेतनमान रू0 4200-100-6400 पर समायोजित करने को तैयार है एवं बिन्दु सं0 1, 2, 3, 4 एवं 5 पर सहमत हैं।
7. यह कि सेवायोजकों द्वारा श्री विजय शंकर त्रिपाठी पुत्र श्री भगवती प्रसाद त्रिपाठी को 01.10.2001 की तिथि से दैनिक श्रेणी लिपिक का पद व वेतनमान रू0 4200-100-6400 व उस पर अनुमन्य अन्य हितलाभ देय होगे किन्तु एवार्ड के अनुसार पेंशन व ग्रेच्युटी को छोड़ कर पूर्व की अवधि का अन्य किसी प्रकार का हितलाभ अनुमन्य नहीं होगा और श्री त्रिपाठी को कम्प्यूटर का ज्ञान अर्जित करने तथा टंकण परीक्षा उत्तीर्ण करने की तिथि से अनुमोदित दैनिक श्रेणी लिपिक पद के हितलाभ (जैसे वरिष्ठता/ पदोन्नति व अन्य) अनुमन्य होने व वार्षिक वेतन वृद्धि, समयबद्ध वेतनमान की गणना 01.10.2001 की तिथि से अनुमन्य होगी।
8. यह कि उक्त अभिनिर्णय वाद सं0 - 3/88 के अनतर्गत माननीय श्रम न्यायालय - द्वितीय, उ0प्र0 कानपुर के समक्ष रू0 9,28,473.00 की संगणना का जो विविध वाद सं0 28/2001 वादी द्वारा दाखिल किया गया है वह समाप्त माना जाएगा और वादी उस पर किसी प्रकार की कार्यवाही नहीं करेगा, अन्यथा की स्थिति में समझोता मान्य नहीं होगा।
9. समझौते के पश्चात वादी एवार्ड के अन्तर्गत पूर्व के किसी भी प्रकार के हितलाभ का अधिकारी नहीं रह जाता है और समझौते से अभिनिर्णय वाद सं0 3/88 का पूर्ण एवं अन्तिम रुप से प्रतिपालन माना जायेगा।
गवाहों के हस्ताक्षर :- पक्षों के हस्ताक्षर :- ह0 अपठित ह0 अपठित (ओ0पी0 मिश्रा) वरिष्ठ कर्मिक अधिकारी सेवायोजक प्रतिनिधि ह0 अपठित ह0 अपठित (राम मनोरथ त्रिपाठी) (विजय शंकर त्रिपाठी) कानपुर बिजली मजदूर सभा सम्बन्धित श्रमिक कार्यवाहक अध्यक्ष श्रमिक प्रतिनिधि कानपुरः दिनांक : 7.11.2001 पक्षकारों ने मेरे समक्ष हस्ताक्षर किए - ह0 अपठित संराधन अधिकारी (उप श्रमायुक्त) उ0प्र0 कानपुर क्षेत्र, कानपुर। Dy. Labour Commissioner, U.P. Kanpur Region, Kanpur" (emphasis by Court)
29. A perusal of the settlement agreement shows that it was entered into between parties, taking cognizance of the fact that the petitioner's services were terminated by the KESA on 31.12.1986; the fact that the petitioner had questioned that termination before the Labour Court, which led to Adjudication Case no.3 of 1988 on the file of the Labour Court-IV, U.P., Kanpur; the fact that that the Labour Court passed an award dated 18.01.1996 in favour of the petitioner, reinstating him on his old terms and conditions of service with continuity; and the fact that the parties had entered into the settlement agreement amicably, in order to implement the award of the Labour Court on terms mutually settled. It has to be remarked here that the settlement agreement has, for its origin and foundation, the award of the Labour Court dated 18.01.1996, and all that has been done by means of the settlement agreement is an adjustment of the rights of parties under the award, with both sides giving up something under the award, in consideration of some benefits mutually agreed.
30. A perusal of paragraph no. 2 of the settlement agreement shows that in consideration of the petitioner giving up all his claims to back-wages under the award, he would be placed on the post of a daily-wage clerk in the pay scale of Rs.4200-100-6400/- with the Company w.e.f. 01.10.2001.
31. Paragraph no. 3 of the settlement agreement shows that the petitioner, in the context of the adjudication case being placed on the post of a daily-wage clerk w.e.f. 01.10.2001 in the specified pay scale, would be required to acquire skills of typing and operating computers, and further to pass a typing test. After passing the required typing test, the petitioner would be adjusted against the sanctioned post of a daily wage clerk, where his seniority would be determined w.e.f. 01.10.2001 and the benefit of promotion also worked out on that basis.
32. Paragraph no. 4 of the settlement agreement under reference says that the petitioner voluntarily agrees that he would not raise any other kind of claim, based on the agreement entered into with any other daily rated clerk or another daily rated clerk's case (suited between those parties).
33. Paragraph no. 5 of the settlement agreement specifically stipulates that the petitioner would be entitled to the benefit of pension and gratuity w.e.f. 01.05.1982, and for the said purpose alone, he would be entitled to claim continuity of service, but would not claim any other benefit for the said period based on continuity.
34. Paragraph no. 6 of the agreement specifically says that w.e.f. 01.10.2001, the Company are ready to absorb and adjust the petitioner on the post of a daily rated clerk in the pay scale of Rs.4200-100-6400/-, and further that they are agreeable to the terms carried in paragraph nos. 3, 4 and 5 of the settlement agreement.
35. Paragraph no. 7 of the settlement agreement shows that the petitioner would be entitled to other benefits admissible to a daily rated clerk in the pay scale of Rs.4200-100-6400 w.e.f. 01.10.2001, but for pension and gratuity for any earlier period of time, the petitioner would not be entitled to other benefits under the award. It is again a term of this paragraph that with effect from the date of acquiring the necessary computer related skills and passing the typing test, the petitioner would be entitled to benefits attached to the post of a daily rated clerk, such as seniority, promotion and others; and further that the annual increment and time scale would be reckoned w.e.f. 01.10.2001.
36. Paragraph no. 8 of the settlement agreement covenants that the petitioner's claim to a sum of Rs.9,28,473/- brought vide Misc. Case no.28 of 2001 against the Company, founded on the award of the Labour Court passed in Adjudication Case no.3 of 1988, would be considered closed and the petitioner would not take any proceedings for enforcement of that claim; if he does, the settlement agreement would not be binding.
37. Paragraph no. 9 of the agreement unequivocally says that the petitioner would not be entitled to any benefit under the award passed in his favour, and the agreement would be considered a full and complete satisfaction of the award passed in Adjudication Case no. 3 of 1988.
38. Learned Counsel for the Company has laid much emphasis on the fact that the petitioner has been appointed or adjusted on the post of a daily rated clerk, in terms of a fresh appointment w.e.f. 01.10.2001. The rules applicable to the Company do not provide for the provision of either gratuity or pension to any retired employee. It provides for a Contributory Provident Fund alone. It is, therefore, urged by the learned Counsel for the petitioner that the terms in the settlement agreement, that confer a right on the petitioner to receive pension and gratuity, reckoning all his services with the Company's predecessor, KESA w.e.f. 01.05.1982 for that purpose, would be in breach of the law applicable to the Company. It is emphasized that if a term in an agreement goes contrary to the law, which includes statutory rules or a non-statutory regime in force in the employers' establishment governing pension etc., a contract to the contrary cannot be enforced. Much emphasis in this connection has been placed by the learned Counsel for the Company on the decision of the Supreme Court in PEPSU RTC (supra). Learned Counsel for the Company particularly emphasized remarks of their Lordships carried in paragraph no. 29 of the report (extracted hereinabove).
39. A perusal of their Lordships' decision in PEPSU RTC shows that it turned on a different principle in the context of completely different facts. The employee there was a driver with the Road Transport Corporation since 07.11.1974 and governed by the service rules of the Corporation, which entitled him to the benefit of a Contributory Provident Fund and gratuity as his post retiral benefits. His services were terminated on 30.06.1982. The termination was challenged before the Labour Court, which repelled the challenge. On a writ petition, the High Court reversed the order of the Labour Court, set aside the termination, directing the employee's reinstatement w.e.f. 18.06.1996. It appears that on 15.06.1992, the Corporation had introduced a pension scheme for its employees, and also framed regulations to govern the scheme. Regulation 4 of the pension scheme required an employee to exercise his/her option, within a period of six months of the date of issue of the regulations, in order to entitle him to the benefit of the scheme. Time to submit that option was extended until 15.12.1992. Regulation 4 of the Regulations further entitled an employee rejoining service, after leave or suspension, to exercise his option under the scheme, within a period of six months from the date that he rejoined. The employee, before his termination, appears to have submitted a nomination form under the Contributory Provident Fund Scheme. He had not received any retiral benefits upon superannuation, due to pendency of his case in the High Court regarding payment of his back-wages for the period of his absence from service. The employee never submitted an option for the pension scheme, until his retirement.
40. The employee filed a writ petition before the High Court, for a direction to the Corporation to sanction pensionery benefits to him under the pension scheme. The writ petition was allowed by the High Court on ground that the provisions of Regulation 4, that envisaged a period of time to exercise option under the scheme, did not apply to the petitioner, as he was reinstated in service pursuant to orders of the Court. The High Court, therefore, ordered the Corporation to allow the employee to exercise his option under the pension scheme, within six months of the date of their order, and to undertake formalities for payment of pension, within a specified period of time. It was in the aforesaid context and the rights of parties that their Lordships laid down the principle, adumbrated in paragraph no. 29 of the report in PEPSU RTC. There can be little quarrel that statutory rules of statutory bodies bind both the statutory body and the members of the general public, including their employees. But, the issue here does not turn on anything of the kind that obtained in PEPSU RTC for very obvious reasons. The rights of the petitioner here flow from a concluded and final award of the Labour Court passed in an adjudication case between the petitioner and the predecessor of the Company. The award required the petitioner to be reinstated on the old terms and conditions of his service, granting him the benefit of continuity in service. He was also required to be paid back-wages, albeit calculated on daily basis.
41. This Court has already held that the award, read as a whole, clearly found that the petitioner was not a temporary employee or one serving on a fixed tenure. He was held to be a regular and permanent employee of the former KESA, going by the long period of his retention in service. It was on that basis that the petitioner's termination was found to be bad under Sections 6-N and 6-P of the Act of 1947. The award cannot be held to have found the petitioner to be a daily-wager or a fixed term employee. Be it right or wrong, the said award has become final. The sole reason why back-wages were not awarded to the petitioner in terms of a pay scale, after finding him to be not a temporary employer or a fixed term appointee, is the fact that the reference before the Labour Court was about the validity of the termination and not the wage entitlement of the petitioner. In fact, the Labour Court held that retaining the petitioner for such a long period of time, with periodical extensions in service, despite regular work being available, and juniors being retained in service, was unfair labour practice.
42. The purport of the award was so clear that the Company, who could, for whatever reason, not successfully assail it, were aware that it would entitle the petitioner to reinstatement with all back-wages since the date of his termination by the erstwhile KESA. They were also aware that the terms of the award would confer upon the petitioner status of permanence in their establishment, in the event of reinstatement. It is these facts, circumstances and the imminent consequences of the award that led the Company to negotiate with the petitioner and enter into a settlement agreement in substitution of the rights of parties under the award. The petitioner apparently entered into the settlement, because it would bring to an immediate and predictable end, the uncertain and taxing course of further litigation in enforcement of the award.
43. It is in the background of the aforesaid facts that the genesis of the settlement agreement has to be considered, and rights of parties flowing therefrom construed. The award is explicit about the fact that it stems from and proceeds on the basis of rights of parties flowing from the award of the Labour Court. It brings about a mutual adjustment of rights of parties under the award, acceptable to both. This, however, does not mean that the directions in the award that have been held to be concluded and modified in terms of the settlement agreement, can be regarded as non-existent. These only stand discharged and modified in terms of the settlement agreement. As already remarked, but for the settlement agreement, the petitioner would have got continuity of service for all the period of time that he was employed with the KESA and the period that he was thrown out of service by them. That benefit for the petitioner would fall on the shoulders of the Company. The foremost of the burdensome consequences would be the liquidation of a long bill of back-wages, besides reinstatement of the petitioner, who had been adjudged a permanent employee of the Company's predecessors by the Labour Court. The petitioner would also be entitled to reckon his seniority in the service of the Company, counting all the days that he spent with their predecessor, KESA. It was to get rid of most of these taxing consequences of the award that the Company bargained with the petitioner to settle on terms expressed in the agreement, where the petitioner gave up almost everything due to him under the award, except his right to receive pension and gratuity, reckoned from 01.05.1982. Of course, reinstatement in service and adjustment on the post styled as a daily wage clerk, in the grade of Rs.4200-100-6400, was a part of the bargain.
44. The settlement agreement does not abnegate the adjudicated status of the petitioner as a regular and permanent employee of the erstwhile KESA, the Company's predecessor, but only obviates most of the consequences flowing from the award, particularly, back-wages and seniority. In consideration of the petitioner giving up his back-wages and seniority, he has been adjusted on the post of a daily-wage clerk in the pay scale of Rs.4200-100-6400 w.e.f. 01.10.2001, with other benefits as to seniority and promotion becoming available to him upon his acquiring the necessary necessary computer related skill and passing the typing test. All this would not have been so, if the award were to be enforced as it is. But, the petitioner accepted these terms to obviate, as already said, the taxing and uncertain course of further enforcement of his rights under the award through litigation, with all its known vagaries. It can, however, never be doubted that from the adjudication made for the petitioner by the Labour Court embodied in the award, the petitioner never gave up his right to receive pension and gratuity, to which he was entitled as an employee of the erstwhile KESA. Rather, under the settlement agreement, the right to receive those two benefits, that were admissible to the employees of the KESA, was specifically preserved for the petitioner under paragraphs nos. 5 and 7 of the settlement agreement.
45. The stand of the Company that the petitioner has received a fresh appointment under them in terms of the letter of appointment dated 08.11.2001 w.e.f. 11.10.2001 and that the rules applicable to the Company, unlike their predecessor KESA, do not provide for pension and gratuity as post retirement benefits, but a Contributory Provident Fund alone, is misconceived. The petitioner's appointment by the Company is no fresh appointment under them of any kind. It is adjustment of the petitioner's rights in their establishment as an employee of the erstwhile KESA, that he has won on adjudication in an industrial dispute. Therefore, the petitioner's appointment in the Company's establishment is no more than an adjustment made by dint of the Labour Court award, based on the long service rendered by the petitioner with the KESA, found to be illegally terminated, as modified by the settlement agreement dated 07.11.2001.
46. This origin of rights of the petitioner to be absorbed/adjusted in the establishment of the Company is vivid from the letter of appointment dated 08.11.2001 issued by the Company, that is quoted in extenso :
कानपुर विद्युत आपूर्ति कम्पनी लि0 14/71, सिविल लाइन्स केस्को-कानपुर प्र0सं0-एफ0सी0-4अभि0 3/88/849 दिनाँक, 08 नवम्बर, 2001 कार्यालय-ज्ञाप श्रम न्यायालय-चतुर्थ, उ0प्र0, कानपुर के अभिनिर्णय वाद संख्या-3/88 में हुये एवार्ड दिनाँक 18-1-96 के परिपालनार्थ उभय पक्षों में हुये समझौते दिनांक 8-11-01 के अनुपालन में श्री विजय शंकर त्रिपाठी पुत्र श्री भगवती प्रसाद त्रिपाठी को दिनाँक 11-10-2001 में दैनिक श्रेणी लिपिक (वेतनमान रु0 4200-100-6400) के पद पर निम्न सेवा शर्तों के अधीन समायोजित किया जाता है:-
(1) श्री विजय शंकर त्रिपाठी पुत्र श्री भगवती प्रसाद त्रिपाठी को दिनाँक 1-10-2001 से दैनिक श्रेणी लिपिक का पद व वेतनमान रु0 4200-100-6400 व उस पर अनुमन्य अन्य हितलाभ देय होगें किन्तु एवार्ड के अनुसार पेंशन व ग्रेच्युटी को छोड़कर पूर्व की अवधि का अन्य किसी प्रकार का हितलाभ अनुमय नहीं होगा।
(2) श्री विजय शंकर त्रिपाठी को कम्प्यूटर का ज्ञान अर्जित करने तथा टंकण परीक्षा उत्तीर्ण करने की तिथि से अनुमोदित दैनिक श्रेणी लिपिक पद के हितलाभ (जैसे वरिष्ठता/पदोन्नति व अन्य) अनुमन्य होगें व वार्षिक वेतन वृद्धि, समयबद्ध वेतनमान की गणना 1-10-2001 की तिथि से अनुमन्य होगी।
(3) अभिनिर्णय वाद संख्या-3/88 के अर्न्तर्गत माननीय श्रम न्यायालय द्वितीय उ0प्र0 कानपुर के समक्ष रू0 4200-100-6400 की यथावत का जो विनियमन वाद श्री त्रिपाठी द्वारा दाखिल किया गया है वह समाप्त माना जायेगा।
श्री विजय शंकर त्रिपाठी की दैनिक श्रेणी लिपिक के पद पर समायोजित करते हुये अरजियों की खण्ड, केस्को में तैनात किया जाता है।
ह0/अपठनीय मो0 इफ्तिखारूद्दीन प्रबंध निदेशक।
प्रतिलिपिः-निम्न को सूचनार्थ एवं आवश्यक कार्यवाही हेतु प्रेषितः-
1- महाप्रबंधक (वितरण)-प्रथम, केस्को।
2- उप मुख्य लेखाधिकारी, केस्को।
3- वरिष्ठ कार्मिक/प्रशासनिक अधिकारी, केस्को।
4- सहायक महाप्रबंधक (वा0 एवं वि0), जरीबचौकी खण्ड, केस्को को इस आशय के साथ प्रेषित कि वे श्री फूलचन्द, दैनिक श्रेणी लिपिक, जरीबचौकी खण्ड को स्थानान्तरित स्थान के लिये अवमुक्त करना सुनिश्चित करें।
5. सहायक अधीक्षक, लीगल सेल (स्थापना), केस्को।
6. न्यायालय पत्रावली।
7. श्री विजय शंकर त्रिपाठी पुत्र श्री भगवती प्रसाद त्रिपाठी।
8. कार्यालय अधीक्षक, स्थापना अनुभाग, केस्को।
9. श्री सी0के0 त्रिपाठी, स्थापना अनुभाग, केस्को।
ह0/ अपठनीय (ओ0पी0 मिश्रा) वरिष्ठ कार्मिक/प्रशासनिक अधिकारी।"
(emphasis by Court)
47. A perusal of the letter of appointment clearly traces the petitioner's right to the award of the Labour Court dated 18.01.1996, as subjected to adjustment on compromise between parties, in terms of the settlement agreement dated 07.11.2001. The first condition, subject to which the petitioner has been absorbed in the Company's service, clearly indicates the preserved right of the petitioner to receive pension and gratuity due under the award. In these circumstances, it can hardly be gainsaid that the Company, who on their establishment, do not have provision for payment of pension or gratuity to retired employees, are not bound by the settlement agreement dated 07.11.2001. The award of the Labour Court, giving rise to the agreement passed against the predecessor KESA, or still more, the letter of absorption/adjustment issued to the petitioner dated 08.11.2001, expressly preserve for the petitioner the right to receive pension and gratuity. All this is so because the petitioner is to be regarded and ever to be so regarded as an employee, who has come to the Company's establishment from the establishment of their predecessor KESA, where there was provision for payment of both pension and gratuity, post retirement to their employees.
48. It is not the Company's case that for employees of the former KESA, there is any statutory rule empowering them to vary or change conditions of service of such employees upon the Company, stepping into the shoes of the KESA. Therefore, the employees of the erstwhile KESA, who were entitled to pension and gratuity in their service, would continue to be entitled upon absorption in the Company's service. It is for the said reason that the Company with open eyes accepted for a term in the settlement agreement that the petitioner would forego all his monetary benefits relating to the period of service with the KESA that he was entitled to under the award, except his pension and gratuity reckoned w.e.f. 01.05.1982. For the same reason, the letter of absorption/adjustment issued by the Company to the petitioner dated 08.11.2001, reserves the petitioner's right to receive both pension and gratuity. It is, thus, not a case, where the petitioner is pleading or asserting a contractual right that conflicts with a statute, a statutory rule or a non-statutory regulation, governing post retiral benefits, admissible to employees of the Company. He is asserting his rights under a concluded award of the Labour Court to the extent, it has been modified and mutually adjusted between parties through the terms of a contract incorporated in the settlement agreement.
49. Quite apart, the respondents are a State instrumentality and are required to be fair in their dealings with citizens in general, and their employees in particular. After all, they are always required to be model employers. The stand of the Company in securing a complete discharge of the petitioner's rights under the award passed by the Labour Court, that has become final through a settlement agreement recorded before the Conciliation Officer, and then turning around to deny one of the most valuable terms of that settlement favouring the petitioner, by pleading a rule regarding non-provision of pension and gratuity in the Company's establishment, is patently unfair and shockingly unconscionable; it is almost dishonest and mala fide. The Company's stand, if it were upheld, would be permitting them to rob the petitioner of a valuable part of the fruits of the award passed by the Labour Court in his favour, that he never bargained for in the adjustment of his rights in substitution of that award, incorporated in the settlement agreement. In fact, this stand of the Company, if upheld, would lead to a defeat of the petitioner's fundamental rights to a fair treatment by the State, guaranteed by Articles 14, 19 and 21 of the Constitution. It would be permitting the State to act very unfairly vis-à-vis their employee and a citizen.
50. It also deserves mention that the Company, while absorbing the petitioner in their service, have chosen to describe the petitioner as a daily rated clerk (दैनिक श्रेणी लिपिक). He has been likewise described in the settlement agreement dated 07.11.2001. This description for the petitioner is patently not just a misnomer, but one that does not and cannot describe his status correctly. For a fact, the Labour Court, while faulting the petitioner's termination of service as illegal, had determined the nature of his employment, holding that it was not temporary or for a specific period of time. It was, thus, implicitly regarded as permanent, even if that word was not used in the award. There is no scope, therefore, to infer that the petitioner was held to be a daily rated clerk by the Labour Court while passing the award between the petitioner and the KESA, that has become final.
51. Quite apart, both the settlement agreement dated 07.11.2001 and the consequential letter of absorption dated 08.11.2001, clearly say that the petitioner has been placed in the pay scale of Rs.4200-100-6400/- in more than one of the paragraphs. The petitioner has also been held entitled to seniority and promotion, subject, of course, to passing a typing test. There is no case that the petitioner has not passed that typing test, pleaded by the Company or otherwise brought to the Court's notice. It is a contradiction in terms to say that the petitioner is absorbed as a daily rated clerk and then to provide that he is placed in the pay scale of Rs.4200-100-6400/- with a right to earn seniority and promotion. A daily rated clerk cannot be appointed and placed in a pay scale. He is and has to be remunerated on a daily basis, which is not at all so in the petitioner's case; nor can it be so, given the rights that the petitioner has acquired under the award. Therefore, the petitioner's description in the settlement agreement and the letter of appointment as a daily rated clerk is no more than a misnomer or a mis-description, that arises as a result of the Company's malice or a poor understanding of the law. In no case, it would derogate from the rights of the petitioner or his status as a regular and permanent clerk, placed in a certain pay scale, mentioned in the settlement agreement as well as his appointment order.
52. The result is that the decision of the Managing Director of the Company holding the petitioner disentitled to pension and gratuity, communicated through the impugned order dated 19.12.2014 issued by the Deputy Chief Accounts Officer of the Company, must be held to be manifestly illegal. It is required to be quashed.
53. This writ petition, accordingly, succeeds and stands allowed with costs.
54. Let a writ of certiorari issue, quashing the decision of the Managing Director of the Company communicated through the impugned order dated 19.12.2014, Annexure no.1 to the writ petition. Let a mandamus issue, ordering the Managing Director of the Company, its Chief Engineer and Deputy Chief Accounts Officer, respondent nos. 2, 3 and 4 in that order, to forthwith disburse the gratuity and arrears of pension due to the petitioner with 6% interest per annum, calculated on the sum of gratuity from the day after the petitioner's retirement and on the arrears of pension from the month next following the petitioner's retirement, all to be done within a period of one month of the date of receipt of a copy of this order. The respondents are further directed to pay regular pension month by month henceforth, on the date that it falls due, regularly and without interruption. Any delay in payment of the monthly pension would also carry interest at the rate of 6% for the period of time that the delay in disbursement occurs.
55. Let this order be communicated to the Managing Director, Kanpur Electric Supply Company Limited, the Chief Engineer, Kanpur Electric Supply Company Limited and the Deputy Chief Accounts Officer, Kanpur Electric Supply Company Limited, with all their offices located at KESA House 14/71, Civil Lines, Kanpur Nagar through the Chief Metropolitan Magistrate, Kanpur Nagar by the Registrar (Compliance).
Order Date :- June the 14th, 2021 Anoop / I. Batabyal