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2007 DIGILAW 225 (ORI)

Sita Gouda v. Union of India

2007-04-04

I.MAHANTY

body2007
JUDGMENT I. MAHANTY, J. — The petitioner, Smt. Sita Gouda, W/o. Late Basu Gouda has filed the present writ petition seeking to chal¬lenge the inaction of the opposite parties 3 and 4, i.e., Admin¬istrative Officer and Assistant Administrative Officer of Calcut¬ta Dock Labour Board in not taking any action on the petitioner’s application for grant of family pension. 2. It is averred in the writ application that the husband of the petitioner, namely, Late Basu Gouda @ Basudev Gouda, who was an employee of opposite party No.2, after attaining the age of superannuation, had retired from service w.e.f. 1.5.1992 and thereafter, passed away on 17.12.1996. 3. Learned counsel for the petitioner placed reliance upon the circular issued by opposite party No.3, i.e. Circular No.S-A/2(d) 671 dated 20.2.1997 which provides for exercise of option by the widow/widower and in their absence by the eldest survived member of the family of the deceased C.P.F. beneficiaries who were in service on 1.1.1986 but have since died either before or after retirement. 4. It is averred in the writ application that the petitioner submitted an application alongwith required documents for grant of family pension which was received by the Establish¬ment Section of opposite party No.2 on 28.6.1997 and thereafter, despite several reminders made by the petitioner to opposite parties 3 and 4, there has been complete inaction on the part of the opposite parties for releasing family pension in favour of the petitioner in terms of the aforesaid Circular. 5. It is pointed out by the learned Central Govt. Standing Counsel that the Circular referred by the petitioner is erroneous and in fact, the Ministry of Surface Transport vide letter No.A/38011/23/94/PE-I dated 9.1.1997 took a decision to grant family pension and, accordingly, pursuant to such decision the Dock Labour Board issued Circular vide No. S-A/2(a)/671 dated 20.2.1997 inviting option from amongst the retirees who were in service on 1.1.1986. In this respect, it will be more appropriate to refer the decision taken by the Central Govt. In this respect, it will be more appropriate to refer the decision taken by the Central Govt. in paragraph - (o) at page-4 of Parawise Comments which is as follows : “(a) CPF beneficiaries who were in service on 1st January 1986 but have since retired and in whose case retirement benefits have also been paid under the CPF Scheme, will have now option to have their retirement benefits calculated under the Pension Scheme provided they refund to the Port Trust, the Port Trust/Dock Labour Board’s contribution to the Contributory Provi¬dent Fund and interest thereon, drawn by them at the time of settlement of the CPF account. Such option shall be exercised latest by 31st March 1997. (b) In the case of CPF beneficiaries who were in services on 01.01.1986 but have since retired and in whose case the CPF account has not already been settled they will be allowed retire¬ment benefits as if they were borne on pensionable establishment unless they specifically opt by 31.03.1997 to have their retire¬ment benefits under the CPF Scheme. (c) In the case of CPF beneficiaries, who were in service on 01.01.1986 but have since died either before retirement or after retirement the case will be settled in accordance with (a) or (b) above as the case may be. Option in such cases will be exercised latest by 31.3.1997 by the widow/widower and in absence of widow/widower by the eldest survived member of the family, who would have otherwise been eligible for family pension under the Family Pension Scheme if such Scheme were applicable. (d) In the types of cases covered by (a) and (b) above, Port Trust/Dock Labour Board’s contribution to the Contributory Provi¬dent Fund together with interest drawn at the time of retirement, the amount will have to be refunded latest by 31.03.1997. If the above amount is not refunded by the said date, simple interest thereon will be payable @ 10% per annum for the period of delay beyond 31.03.1997.” In the light of the submissions advanced by the learned counsel for the opposite parties, it is clear that while admit¬ting the petitioner to her claim to family pension, yet, they seek to defend their inaction on the ground that, since no budge¬tary support is provided by the Government, the Dock Labour Board presently, has to meet its obligation from its internal re¬sources. 6. 6. Learned counsel for the petitioner, on the other hand, vehemently submits that the obligation of the Dock Labour Board cannot be affected by the technical plea of financial constraint and drew my attention to paragraph-v of the Parawise Comments filed by the Board, the relevant portion of which, is quoted herein below: “Even the Board had to defer salary & wages to its employees and workers vide Resolution No.14 dated 16.11.2001. The Board used to pay salary, monthly wages/pensioners belatedly up to the middle of 2003. Present monthly revenue is adequate to meet the current salary/monthly wages to its employees & workers and excess, if any, is utilized to make payment of pension.” 7. Relying upon the aforesaid averments contained in the Parawise Comments, learned counsel for the petitioner submits that the petitioner has applied for release of family pension in the year 1997 since her husband expired in the year 1996 who had superannuated in the year 1992. It is further contended that though the Dock Labour Board has made an averment that the pay¬ments towards arrear pension has been cleared up upto 2003, gross discrimination has been done against the petitioner. In other words, learned counsel for the petitioner submits that once the Dock Labour Board claims to have paid retirement benefits upto 2003, no justification whatsoever exists for non-payment to the petitioner at least till 2003, as averred in its reply. 8. In view of the averments made by the Dock Labour Board in their affidavit that they are able to meet the current salary and the wages of the workers, I do not find any reason as to why the case of the petitioner has not been considered for re¬leasing the benefits due to her for more than a period of 10 years. Apart from the aforesaid aspects, the learned Central Standing Counsel submits that the Union of India is no way re¬sponsible to meet this financial obligations and categorically states that although the scheme had been approved by the Union of India, such approval has been made categorically without budge¬tary support from Union of India. 9. On consideration of the aforesaid contention, it has to be considered keeping in view of the Dock Workers (Regulation of Employment) Act, 1948 and the rights and obligations arising from the aforesaid enactment. 9. On consideration of the aforesaid contention, it has to be considered keeping in view of the Dock Workers (Regulation of Employment) Act, 1948 and the rights and obligations arising from the aforesaid enactment. The Parliament has not only created the Dock Labour Board but also a scheme for ensuring regular employ¬ment of workers as well as to look after the workers’ interest and to secure their rights. The Act permitted such Labour Boards to frame schemes to protect the interest of workmen and the same is required to be approved by the Central Government with neces¬sary changes as may be suggested by the Central Government. Even apart from this, the Constitution of the Dock Labour Board is in the hands of the Union of India and the function of the Dock Labour Board, as contemplated under Section 5-B of the Act, shall be responsible for administering the scheme for the port or group of ports for which it has been established and shall exercise such powers and perform such functions as may be conferred on it by the scheme. Sub-section (2) thereof stipulates that the Union Govt. has responsibility to exercise its powers and the discharge of its functions to issue necessary directions and a Board shall be bound by such directions as the Govt. may, for reasons to be stated in writing, give to it from time to time. Section 5-C of the Act also stipulates for auditing all of the actions of such Dock Labour Board and under Section 6, the Govt. has right to appoint the Inspectors for the purpose of overseeing the work of the Dock Labour Board. Section 6-A stipulates that the Government may, at any time, appoint any person to investigate or inquire into the working of a Board and submit a report to the Govern¬ment. Most importantly, under Section 6-B the Govt. has also power to supersede a Board when the Board is unable to perform its functions and/or has persistently made default in the dis¬charge of its functions. 12. The provisions of the Dock Workers (Regulation of Employment) Act, 1948 clearly indicates the pervasive control by Union of India on all Dock Labour Boards. Most importantly, under Section 6-B the Govt. has also power to supersede a Board when the Board is unable to perform its functions and/or has persistently made default in the dis¬charge of its functions. 12. The provisions of the Dock Workers (Regulation of Employment) Act, 1948 clearly indicates the pervasive control by Union of India on all Dock Labour Boards. Apart from that, this also establishes the fact that it is the responsibility of the Union Government to discharge its statutory responsibility in order to ensure the Dock Labour Board’s function and schemes have been approved and maintain financial control over such schemes in order to ensure that the benefits of the schemes are reached to the workmen. 13. On a reading of the rights and obligations imposed by the Act, I am of the view that the Union Government cannot disown its responsibility for the purpose of meeting obligations of the Dock Labour Board, especially obligations arising out of schemes which were duly approved by the Union of India. Therefore, the financial constraints cannot and do not come in the way of pass¬ing direction in the present writ application to the Dock Labour Board to release the family pension due to the petitioner within a period of three months from today. I am of the view that gross discrimination has been made against the petitioner since the said benefits have been released to others till 2003. The peti¬tioner has made an application in terms of the stand taken by the Dock Labour Board to release the arrears of pension as has al¬ready been released by it till 2003. Family Pension for the period from the year 2004 till date of this Judgment be released in favour of the petitioner within a further period of six months. 14. Family Pension for the period from the year 2004 till date of this Judgment be released in favour of the petitioner within a further period of six months. 14. Learned counsel for the petitioner also placed reliance upon the Judgment of the Hon’ble Supreme Court in the case of State of Maharashtra v. Manubhai Pragaji Vashi and others AIR 1996 SC 1 , in which Hon’ble Apex Court has held as follows : “The plea of paucity of funds pleaded by the State would not be tenable as the paucity of funds can be no reason for discrimi¬nation.” Apart from the above, I am of the view that if any financial stringency is faced by the Dock Labour Board to meet its lawful obligations, the Union of India is also equally responsible for meeting such lawful obligations of the Dock Labour Board towards the employees. 15. In view of the aforesaid findings arrived by me, the writ application is allowed. Opposite Parties 2, 3 and 4 are directed to release the petitioner’s family pension dues till 2003 within a period of three months from the date of receipt of the copy of this Judgment and the balance dues for the period from 2004 till date be released within a further period of six months therefrom. Application allowed.