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2002 DIGILAW 532 (ORI)

MANORAMA RATH v. ORISSA MINING CORPORATION LTD.

2002-08-21

A.K.PATNAIK, M.PAPANNA

body2002
JUDGMENT : A.K. Patnaik, J. - The petitioner joined the Orissa Mining Corporation Limited (in short, the Corporation) as a Receptionist cum Telephone Operator in the year 1966 was promoted to the post of Senior Receptionist- cum-Telephone Operator in the year 1982. The petitioner submitted an application for voluntary retirement dated March 30, 1998. Her application for voluntary retirement was accepted by the Managing Director of the Corporation with effect from May 31, 1998. The petitioner was paid ex gratia payment equivalent to 461/2 months emoluments and one month's salary in lieu of one month's notice. After she had retired on May 31, 1998, the pay of the employees of the Corporation were revised with effect from January 1, 1996. The petitioner was paid the differential amount towards her salary on account of such revision of her pay with effect from January 1, 1996, she was also paid the differential amount towards gratuity, leave encashment and Contributory Provident Fund on account of such revision of her salary. But, she was not paid any additional amount towards ex gratia payment under the Voluntary Retirement Scheme pursuant to such revision of pay. Aggrieved, the petitioner has filed this writ petition under Article 226 of the Constitution for a direction to the opposite parties to pay her the differential ex gratia amount and one month salary in lieu of notice taking into account her revised pay. 2. Mr. P.K. Rath, learned counsel for the petitioner submitted that under paragraph-5(i) of the Voluntary Retirement Scheme of the Corporation, an employee whose option for voluntary retirement is accepted by the competent authority is entitled to an ex-gratia payment equivalent to 11/2 months emoluments i.e. the last drawn salary for each completed year of service or the last drawn monthly salary multiplied by balance months of service left before normal date of retirement whichever is less. According to Mr. Rath, the expression "last drawn monthly salary" would mean last drawn monthly salary as revised with effect from January 1, 1996. He contended that since the petitioner's salary was revised with effect from January 1, 1996, in the scale of pay of Rs. 4300-115-6600/-, the 461 month's emoluments payable as ex gratia payment under the Voluntary Retirement Scheme has to be calculated at the said revised scale of pay effective from January 1, 1996. He contended that since the petitioner's salary was revised with effect from January 1, 1996, in the scale of pay of Rs. 4300-115-6600/-, the 461 month's emoluments payable as ex gratia payment under the Voluntary Retirement Scheme has to be calculated at the said revised scale of pay effective from January 1, 1996. He further argued that under paragraph 5(vi) of the Voluntary Retirement Scheme, an employee whose option for voluntary retirement is accepted was also entitled to notice pay equivalent to one month's salary and one month's salary would mean revised salary of the petitioner with effect from January 1, 1996. Mr. Rath further contended that since the petitioner was paid gratuity, leave encashment and Contributory Provident Fund calculated on the basis of her revised salary with effect from January 1, 1996, the Corporation was estopped from taking a stand that the last drawn monthly salary of the petitioner cannot be the revised salary of the petitioner effective from January 1, 1996. He vehemently argued that there cannot be two different scales of pay of an employee and the scale of pay of the petitioner which has been accepted for the purpose of calculating gratuity, leave encashment and Contributory Provident Fund has to be taken as the scale of pay for the purpose of calculating the ex gratia payment and the one month's salary payment in lieu of notice under the Voluntary Retirement Scheme. Finally, Mr. Rath argued that the Corporation being an instrumentality of the State has to act as a model employer and cannot discriminate between its employees while granting benefits under the Voluntary Retirement Scheme. Referring to the averments in paragraph-13 of the writ petition, he submitted that the Corporation has given ex gratia payment under the Voluntary Retirement Scheme on the basis of revised scale of pay effective from January 1, 1996 to Shri R.K. Patra and, Shri S.M. Pabak Mishra, ex-employees of the Corporation and the refusal on the part of the Corporation to give similar benefits to the petitioner, is discriminatory and violative of the Right to Equality guaranteed under Article 14 of the Constitution. 3. Mr. 3. Mr. J. Mohanty, learned counsel for the opposite parties, on the other hand, submitted that the language of paragraphs-5(i) and 5(vi) of the Voluntary Retirement Scheme clearly shows that the ex gratia payment and one month's salary in lieu of notice are to be calculated on the basis of last drawn monthly salary and not revised salary effective from January 1, 1996. He also referred to the provisions of 8(ii) of the Voluntary Retirement Scheme of the Corporation which provides that the employee, whose application is accepted by the management for voluntary retirement under the scheme and on receipt of the benefits as per the said scheme shall be deemed to have settled his/her accounts fully and finally with the Corporation and shall have no other or further claim what so ever against the Corporation whether at present or in future. According to Mr. Mohanty, the petitioner's application for Voluntary retirement having been accepted by the management of the Corporation and the petitioner having received the benefits as per the Voluntary Retirement Scheme, cannot now make any further claim against the Corporation in the present writ petition. Mr. Mohanty relying on the averments in paragraph-8 of the counter affidavit filed on behalf of the opposite parties 1 to 3 submitted that the ex gratia payment made to the two employees, Shri R.K. Patra and Shri Pabak Mishra, on the basis of their revised scale of pay was contrary to the provisions of the Voluntary Retirement Scheme of the Corporation and the Corporation is taking steps to recover the excess amount paid to the said employees. He further submitted that no other employee of the Corporation has been paid ex gratia payment on the basis of their revised scale of pay. 4. We are unable to accept the submission of Mr. Mohanty, learned counsel for the Corporation that the petitioner cannot claim any further amount after her application was accepted by the management for voluntary retirement under the scheme for voluntary retirement of the Corporation and after she received the benefits of voluntary retirement. This is because paragraph 8(ii) of the scheme for voluntary retirement of the Corporation on which Mr. Mohanty, learned counsel for the Corporation that the petitioner cannot claim any further amount after her application was accepted by the management for voluntary retirement under the scheme for voluntary retirement of the Corporation and after she received the benefits of voluntary retirement. This is because paragraph 8(ii) of the scheme for voluntary retirement of the Corporation on which Mr. Mohanty had place great reliance itself states that the employee whose application is accepted by the management for voluntary retirement under the scheme and who has received "the benefits as per the scheme" shall be deemed to have settled his/her accounts fully and finally with the Corporation and shall have no other or further claim whatsoever against the Corporation whether at present or in future. Hence, the petitioner can always approach this Court under Article 226 of the Constitution making a grievance that she has not received "the benefits as per the said scheme" for voluntary retirement and such an application cannot be rejected on the ground that under paragraph-8(ii) of the scheme for voluntary retirement of the Corporation the petitioner cannot make any further claim whatsoever against the Corporation. 5. Paragraph-5(i) and 5 (vi) of the Voluntary Retirement Scheme of the Corporation on which both Mr. Rath and Mr. Mohanty relied are quoted herein below: "5. Benefits Under the Scheme.- An employee whose option for Voluntary Retirement is accepted by the Competent Authority will be entitled to the following benefits: (i) An ex gratia payment equivalent to 11/2 months emoluments i.e., the last drawn monthly salary (pay + D. A. + any other amount paid towards interim benefit to be adjusted against pay subsequently) for each completed year of service or the last drawn monthly salary multiplied by balance months of service left before normal date of retirement whichever is less. For example, an employee who has put in 24 years of service and has got only two years of service for normal retirement will be entitled to ex gratia payment for only 24 months last drawn salary and not for 36 months. (ii) to (v)......... (vi) Notice pay as per terms of the appointment letter and where no such clause is provided in the appointment letter, one month's salary (Basic + D. A. + Interim benefit if any), (vii) .......... (ii) to (v)......... (vi) Notice pay as per terms of the appointment letter and where no such clause is provided in the appointment letter, one month's salary (Basic + D. A. + Interim benefit if any), (vii) .......... It will be clear from the language used in paragraph 5(i) that ex gratia payment was to be calculated on the basis of "last drawn monthly salary (Pay + D. A. + any other amount paid towards interim benefits to be adjusted against pay subsequently)". In other words, the last drawn monthly pay referred to in paragraph-5(i) of the Voluntary Retirement Scheme of the Corporation meant, pay + D.A. + any other amount paid towards interim benefits to be adjusted against pay subsequently. This provision for addition of D.A. and any other amount paid towards interim benefit to be adjusted against pay subsequently would show that not only the basic pay but also the D.A. and other interim benefits were to be included in the last drawn monthly salary of an employee for calculating the ex gratia payment to be made under Voluntary Retirement Scheme of the Corporation. In other words, till the basic pay of the employee of the Corporation was revised, the existing pay + D.A.+ any other amount paid towards interim benefit were to be taken as last drawn monthly salary for calculating the ex gratia payment. In our considered opinion, therefore, the expression "last drawn monthly salary" in paragraph-5(i) of the Voluntary Retirement Scheme of the Corporation will not mean the revised pay of the employees of the 1 Corporation effective from January 1, 1996. Similarly, in paragraph-5 (vi) of the Voluntary Retirement Scheme of the Corporation one month's salary has been described as basic pay + D.A. + interim benefit, if any. Until the basic pay of an employee of the Corporation was revised, it would mean the existing basic pay + D.A. + interim benefit, if any. Thus, in our considered opinion also, one month's salary in paragraph-5 (vi) of the Voluntary Retirement Scheme of the Corporation cannot mean monthly salary of an employee of the Corporation revised with effect from January 1, 1996. 6. A question arose before the Supreme Court in AIR 1998 511 (SC) as to what was the meaning of expression "full wages last drawn" in Section 17B of the Industrial Disputes Act, 1947. 6. A question arose before the Supreme Court in AIR 1998 511 (SC) as to what was the meaning of expression "full wages last drawn" in Section 17B of the Industrial Disputes Act, 1947. The contention of the learned counsel for the appellant Dena Bank in the said case as stated was that "under Section 17-B of the Act the respondent is only entitled to payment of wages last drawn on the date of the termination of his employment and that the High Court was in error in directing that he should be paid the wages as revised by the appellant-Bank including the increments". The Supreme Court took note of the decisions of the different High Courts on the point and held that the expression full wages last drawn would mean wages at the rate last drawn and not full wages which would have been drawn. Paragraphs 18 and 19 of the said judgment in Dena Bank v. Kiritikumar T. Patel (supra) are quoted herein below at p. 7 of LLJ: "20. As per the decisions of the High Courts referred to above the expression "full wages last drawn" in Section 17-B can mean as under: (i) Wages only at the rate last drawn and not at the rate at which the wages are being paid to the workmen who are actually working Daladdi Co-operative Agriculture Service Society Ltd. v. Gurcharan Singh. 1993 (5) S LR 719 (P&H). (ii) Wages drawn on the date of termination of the services plus the yearly increment and the Dearness Allowance to be worked out till the date of the award. M/s Visveswaraya Iron and Steel Co. Ltd. Vs. M. Chandrappa and another, and Kiritiben B. Amin v. Mafatlal Apparels 1995 (2) G LH 804. (iii) Full wages which the workmen was entitled to draw in pursuance of the award and the implementation of which is suspended during the pendency of the proceedings, Ajay Kumar Minz Vs. State of Bihar and Others ; Macneil and Magor Ltd. v. 1st Additional Labour Court 1995 (1) LLN 1014 (Madras) and P. Chennaiah Vs. Deputy Executive Engineer and Others, . 21. The first construction gives to the words "full wages last drawn" their plain and material meaning. The second as well as the third constructions read something more than their plain and material meaning in those words. Deputy Executive Engineer and Others, . 21. The first construction gives to the words "full wages last drawn" their plain and material meaning. The second as well as the third constructions read something more than their plain and material meaning in those words. In substance these constructions read the words "full wages last drawn as full wages which would have been drawn". Such an extended meaning to the words "full wages last drawn" does not find support in the language of Section 17-B. Nor can this extended meaning be based on the object underlying the enactment of Section 17-B." 7. Mr. Rath, learned counsel for the petitioner, however submitted that the judgment of the Supreme Court in Dena Bank v. Kiritikumar T. Patel (supra) was rendered in the facts of that case and cannot be applied to the facts of the present case. He relied on the following observations of the Supreme Court in Haryana Financial Corporation and Another Vs. Jagdamba Oil Mills and Another, "19. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments." 8. Mr. Rath is right in his submission that the decision of the Supreme Court in Dena Bank v. Kiritikumar T. Patel (supra) was rendered in the facts of that case and, has to be understood in the context of the facts in which the said judgment was rendered. But in the said decision in Dena Bank. v. Kiritikumar T. Patel (supra), the Supreme Court held that the Court has to give the words used in a statute their plain and material meaning and not an extended meaning which does not find support in the language of the statute or in the object underlying the statute. But in the said decision in Dena Bank. v. Kiritikumar T. Patel (supra), the Supreme Court held that the Court has to give the words used in a statute their plain and material meaning and not an extended meaning which does not find support in the language of the statute or in the object underlying the statute. In the present case, similarly, the Court has to give plain and material meaning to the words used in paragraphs 5(i) and 5(vi) of the Voluntary Retirement Scheme of the Corporation and cannot give extended meaning to the said paragraphs which does not find support either in the language used in the said paragraphs or in the object of the Voluntary Retirement Scheme. As discussed above, the expressions "last drawn monthly salary" in paragraph 5(i) have been described to mean pay + D. A. + any other amount paid towards interim benefit to be adjusted against pay subsequently. Such monthly salary would not mean revised pay but pay existing at the time of acceptance of voluntary retirement + D.A. + any other interim amount paid towards interim benefit. The object of voluntary retirement is to give an option to the employee to retire before his/her date of superannuation by receiving an ex gratia payment as well as an option to the Corporation either to accept or not to accept such option for voluntary retirement exercised by an employee. Obviously, the Corporation has to work out the financial implications of accepting the option exercised by a particular employee for voluntary retirement before it decides to accept or not to accept such option exercised by an employee for voluntary retirement. For working out such financial implications, the pay as existing at the time of acceptance of the option of the employee for voluntary retirement + D.A. + any other amount paid towards interim benefits can be taken into account and not the revised pay which may accrue to the employee on account of pay revision subsequent to acceptance of the option of the employee for voluntary retirement by the competent authority of the Corporation. Thus, neither the language nor the object of paragraph 5(i) supports the contention of Mr. Thus, neither the language nor the object of paragraph 5(i) supports the contention of Mr. Rath that the revised pay of the petitioner effective from January 1, 1996 will have to be taken into consideration for making out the ex gratia payment under paragraph 5(i) under the scheme for voluntary retirement of the Corporation. Similarly, the language of paragraph 5(vi) of the scheme for voluntary retirement of the Corporation would show that one month's salary in lieu of one month notice can be paid to the employee by the Corporation and for working out the financial implications, it will have to take into consideration the basic pay of the employee at the time of accepting his option for voluntary retirement + D.A. + interim benefit and not the pay as may be revised subsequent to the acceptance of option of the employee for voluntary retirement. The contention of Mr. Rath that one month's salary in lieu of one month notice in paragraph 5(vi) of the scheme for voluntary retirement of the Corporation would mean revised pay effective from January 1, 1996. Therefore, does not find support from either the language or the object of paragraph 5(vi) of the scheme for voluntary retirement of the Corporation. 9. The contention of Mr. Rath that the petitioner has been paid the gratuity, leave encashment and Contributory Provident Fund calculated on the basis of his revised pay effective from January 1, 1996 and the Corporation cannot now take a different stand for the purpose of calculating the ex gratia payment and the one month's salary under paragraphs 5(i) and 5(vi) of the scheme for voluntary retirement of the Corporation also has no merit. Gratuity, leave encashment and Contributory Provident Fund have to be calculated in accordance with the provisions of the Act or the Rules under which such gratuity, leave encashment and Contributory Provident Fund are to be paid whereas the ex gratia payment of one month's salary in lieu of one month notice are payable in accordance with the provisions in paragraphs 5(i) and 5(vi) of the scheme for voluntary retirement of the Corporation and if the said provisions in paragraphs 5(i) and 5(vi) of the scheme for voluntary retirement of the Corporation do not permit calculation of ex gratia payment and one month's salary in lieu of one month notice on the basis of revised pay of the petitioner effective from January 1, 1996, the petitioner cannot be paid such ex gratia payment and one month's salary in lieu of one month's notice on the basis of such revised pay effective from January 1, 1996. 10. Similarly; the contention of Mr. Rath that if two other employees, namely, Shri R. K. Patra and (sic) Pabak Mishra have been paid ex gratia payment and one month's salary in lieu of one month notice on the basis of their revised pay effective from January 1, 1996, the denial of similar benefits to the petitioner would be discriminatory and violative of Article 14 of Constitution is also misconceived. As has been held by the Supreme Court in Harpal Kaur Chahah (Smt) v. Director, Punjab Instructions "Article 14 cannot be extended to legalise illegal orders though others had wrongly got the benefits of the orders." If Shri R.K. Patra and Shri Pabak Mishra have been paid their ex gratia payment and one month's salary in lieu of one month's notice under paragraph 5(i) and 5(vi) of the scheme for voluntary retirement of the Corporation on the basis of their revised pay effective from January 1, 1996 even though, the same were not payable to them under the said provisions of the Voluntary Retirement Scheme of the Corporation, the petitioner cannot claim that under Article 14 of the Constitution the petitioner was entitled to such illegal benefits taken by Shri R.K. Patra and Shri Pabak Mishra from the Corporation. 11. For the aforesaid reasons, we hold that the petitioner is not entitled to the reliefs claimed in this writ petition. The writ petition is accordingly dismissed. 11. For the aforesaid reasons, we hold that the petitioner is not entitled to the reliefs claimed in this writ petition. The writ petition is accordingly dismissed. But considering the facts and circumstances of the case, parties shall bear their own costs. Final Result : Dismissed