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Rajasthan High Court · body

2008 DIGILAW 409 (RAJ)

Aziz Nabi v. State of Raj.

2008-02-08

MAHESH CHANDRA SHARMA

body2008
Honble SHARMA, J.–By way of this petition the petitioner has prayed that the respondents be directed to give benefit of pension to him with interest and any other relief or direction which this Court may think just and proper, looking to the facts and circumstances of the case, same may also be given in his favour. (2). Brief facts of the case are that the petitioner was initially appointed in Rajasthan Agriculture Engineering Board (Hereinafter to be referred in short `the Board), a department of Agriculture, which was renamed as Rajasthan State Agro Industries Corporation Limited (hereinafter to be referred in short `the Corporation. (3). Learned counsel for the petitioner submits that he was initially appointed on work charged basis in the Agriculture Department on 9.1.65 and from there he was shifted one to another department and after having converted the Rajasthan Agriculture Engineering Board to Rajasthan Agro Industries Corporation, the services of the petitioner remained same. The services of the petitioner neither terminated nor he was appointed as fresh candidate in the Corporation and even his services were not interrupted even for a single day and due to this action the Board was converted into the Corporation. The petitioner was continued in service since his appointment. (4). The respondent Corporation initiated a scheme namely `Voluntarily Retirement Scheme (Hereinafter to be referred in short `the VRS) to its employees and under that scheme the petitioner sought benefit of VRS. He was given the benefit of VRS and he retired from the service vide order dated 19.9.95 w.e.f. 30.9.1995. (5). The Government of Rajasthan issued a circular No. F2(26) FD (Gr. 2)/74 Jaipur dated 13.7.1994 extending the benefit of pension to the work-charged employees. After retirement, the petitioner made representation to the respondents on 23.3.2004 praying therein to grant pension to him as he was initially appointed in the Corporation and the services of the petitioner were not interrupted by such transfer, therefore, he be treated as government employees. The petitioner was never given termination letter from the Board nor he was informed at any time about his services being treated as a newly appointed in the Corporation. If the petitioner had received any order of termination/new appointment in the Corporation, then definitely he would have challenged the same before the appropriate forum to get the relief. (6). The petitioner was never given termination letter from the Board nor he was informed at any time about his services being treated as a newly appointed in the Corporation. If the petitioner had received any order of termination/new appointment in the Corporation, then definitely he would have challenged the same before the appropriate forum to get the relief. (6). Learned counsel for the petitioner further submits that when the services of the petitioner were changed from Board to the Corporation on 8.7.1970, the petitioner not given any letter to this effect in writing. The place of the industries was not changed, machines/ plants were not disturbed, assets/properties were the same as it was, only name of Engineering Board was changed to the Corporation. Only this change cannot make any difference in the service of the petitioner and because of this reason the petitioner is entitled for grant of benefit of pension. (7). After changing the name of Board to the Corporation, neither the post held by the petitioner nor pay-scale and duties were changed. The name of the present petitioner in the list Annex. 1, although this list of transfer of industry was not provided to the petitioner and workmen thought at that time such change in the name of industry was internal matter of the management and in absence of any order/instructions in the regard the petitioner did not raise any objections. (8). From the narration of facts it is clear that there is no reason what-so-ever for the respondents for subjecting some employees of one group from benefit of pension and others are granted and a discriminatory treatment is given in the matter of grant of pension. The petitioner who was absorbed in the Corporation was initially under direct control of respondent No. 2 and if would have refused his absorption in the Corporation, then his service conditions would have governed by the same set of rules or orders which are applicable to the employees of the Agriculture Department. The parent department of the petitioner is still the Agriculture Department and same set of rules are applicable upon him and one person namely Shri Badri Prasad, who is working in the same department has been allowed the pension. (9). The parent department of the petitioner is still the Agriculture Department and same set of rules are applicable upon him and one person namely Shri Badri Prasad, who is working in the same department has been allowed the pension. (9). Learned counsel for the petitioner further submits that the State Government vide circular No. F.1 (12) FD (Rules) 96 dated 6.3.1997 has taken a decision to pay the benefit of pension to the work-charged employees irrespective of whether deduction towards contributory provident fund was made from their salaries or not. the petitioner was never asked to submit his option according to this circular, had he been asked earlier to submit option for pension, definitely he would have submitted option for pension. After taking VRS, the petitioner made representation/application for giving benefit of pension as per the circular. (10). Learned counsel appearing for the respondents have filed a detailed reply along-with preliminary objections, in which these facts have been controverted to certain extent. He contends that the Rajasthan State Agro Industries Corporation Ltd., was incorporated as a Company under the provisions of the Companies Act of 1956 on 1.8.1969 and the entire share capital of the Corporation is held by the State Government. The Corporation is running into losses since its incorporation on 1.8.1969, except for four years and as there was no possibility of its revival, the Corporation filed a winding up petition before the learned Company Judge of this Honble Court on or about 20.8.1996 which was registered as S.B. Civil Company Petition No. 30/96. This winding up petition was contested by the employees of the Corporation by filing replies and producing various documents. The said company petition was finally decided on 3.9.1997 whereby the winding up petition of the Corporation was allowed and the company was directed to advertise the winding up order and also to file certified copy of the winding up order before the Registrar within the prescribed time period along with intimation to be sent to the Official Liquidator. The said company petition was finally decided on 3.9.1997 whereby the winding up petition of the Corporation was allowed and the company was directed to advertise the winding up order and also to file certified copy of the winding up order before the Registrar within the prescribed time period along with intimation to be sent to the Official Liquidator. By the said order, the Official Liquidator attached to the Court was also appointed as Liquidator of the Company with the direction that he will discharge his duties in accordance with the provisions of the Companies Act of 1956 and the Rules made thereunder and he shall take into his custody or under his control all the properties, effects and actionable claims to which the company is or appear to be entitled. (11). Learned counsel for the respondents further contends that aggrieved by the aforesaid judgment and order of the learned Company Judge, DB Special Appeal (Company) 94/97 and 96/97 were filed by the employees of the Corporation. The Division Bench of this Honble High Court, after hearing arguments of both the parties, has been pleased to dismiss both these appeals and upheld the judgment of the learned Company Judge dated 3.9.1997 vide its order and judgment dated 17.7.2000. (12). Aggrieved by this Judgment dated 17.7.2000, the employees of the Corporation have filed SLP before the Honble Supreme Court which was registered as Special Leave to Appeal (Civil) No. 1271 and 1272. The said SLPs were admitted but the stay applications were rejected by the Honble Supreme Court and the said appeals are still pending before the Honble Supreme Court. (13). Under Section 446 of the Companies Act, it has been specifically provided that when a winding up order has been made or the Official Liquidator has been appointed as provisional liquidator, no suit or other legal proceedings shall be commenced, or if pending at the ate of the winding up order, shall be proceeded with, against the company, except by leave of the Court and subject to such terms as the Court may impose. (14). In view of the aforesaid provisions of the Companies Act, it is only the Company Court which has exclusive jurisdiction to deal with any matter by or against the Corporation as per the provisions of Section 446 of the Companies Act, and the present writ petition is not maintainable and liable to be dismissed summarily. (14). In view of the aforesaid provisions of the Companies Act, it is only the Company Court which has exclusive jurisdiction to deal with any matter by or against the Corporation as per the provisions of Section 446 of the Companies Act, and the present writ petition is not maintainable and liable to be dismissed summarily. (15). Learned counsel for the respondents has further argued that said judgment is not applicable in the case of the present petitioner. The options were invited from the petitioner either to remain in Government service or in the services of the respondent Corporation for permanent absorption and the petitioner exercised his option for permanent absorption with the respondent Corporation and the same was forwarded to the Agriculture Production Secretary by the respondent Corporation. The option given by the petitioner was accepted by the Government of Rajasthan and accordingly the petitioner was permanently absorbed in the services of the respondent Corporation w.e.f 1.5.1973. As such, the petitioner is not entitled to get the pension as claimed by him. Moreover, the order under which the petitioner was permanently absorbed was passed as early as 1973 and according to the same the petitioner is not entitled for pension and as such the petitioner has claimed the said relief after a long delay of 22 years by which no explanation what-so- ever has been given by the petitioner. Without prejudice to the above submission it is submitted that the judgment which the petitioner has referred was given on 3.11.1993 by the Honble High Court and the petitioner has filed the writ petition after a long delay and even according to the same the petitions filed by the petitioner is hopelessly delayed and the same is liable to be dismissed summarily on this ground alone. This is being submitted without prejudice to the submissions that the petitioner is not entitled for any relief as per the judgment dated 3.11.1993. (16). As per the respondents the petitioner is not entitled to file the present writ petition, as he is very much having an alternative remedy to file a civil suit. Since he has not exhausted the remedy of filing of a suit, as such the petition filed by the petitioner is liable to be dismissed summarily. (16). As per the respondents the petitioner is not entitled to file the present writ petition, as he is very much having an alternative remedy to file a civil suit. Since he has not exhausted the remedy of filing of a suit, as such the petition filed by the petitioner is liable to be dismissed summarily. Moreover the relief of the petitioner is already time barred and the Honble High Court and the Honble Supreme Court have held from time to time in their Judgments that in case any relief is time barred for filing of the civil suit the Honble High Court cannot entertain the matter and exercise its extra ordinary jurisdiction under Article 226 for giving any relief to the person. (17). The petitioner was working temporarily in the Agriculture Workshop (Workshop under the Erstwhile Rajasthan Agriculture Engineering Board) and his services were transferred in the respondent Corporation and since then the petitioner became employee of the respondent Corporation and he become subject to all Rules and Regulations of the Corporation and as per law provident fund was deducted from his salary. (18). The employees who opt for the services of the Corporation were further asked to opt whether they want to be governed by the pension scheme or by the provident fund scheme. Only 35 employees opted for the provident fund scheme and did not opt for the pension scheme. (19). The petitioner was not well within his rights to accept the appointment of the Corporation and had gone back to his home. But since he was appointed in the respondents Corporation which he accepted and since he became employee of the respondent Corporation. The petitioner ceased to be a Government servant and became employees of the Corporation. The notification dt. 13.7.1994 is not applicable at all in the case of the petitioner. (20). I have heard learned counsel for both the parties and perused the material available on record. I have also gone through the various judgments cited before me. (21). Similarly situated persons namely Badri Singh who worked as Bulldozer Operator and after retirement pension was allowed to him vide pension payment order dated 23.6.1999. Similarly situated persons, like the petitioner, was allowed benefit of pension opted for pension but the petitioner did not opt. In fact petitioner was never asked to opt for pension. (21). Similarly situated persons namely Badri Singh who worked as Bulldozer Operator and after retirement pension was allowed to him vide pension payment order dated 23.6.1999. Similarly situated persons, like the petitioner, was allowed benefit of pension opted for pension but the petitioner did not opt. In fact petitioner was never asked to opt for pension. Circular dated 13.7.1994 states that even in case option for pension is not filled by employees then it shall be deemed to have opted for pension. (22). This Court in SB Civil Writ Petition Nos. 2793/98, 2185/99, 6824/99, 2968/98 decided on 13.8.2002, 14.2.2003, 11.2.2003 and 30.7.2005 respectively, directed the respondents to pay pensionary benefits to the employees concern, after adjusting the amount of CPF paid to the employees at the time of retirement. (23). The State Government challenged the order passed in SBCW P.No. 2793/1998 by filing DB Civil Special Appeal which was also dismissed vide order dated 2.4.2003, on the basis of delay and merit, the operative portion of which is reproduced as under: "We find no reason to condone the delay in filing the appeal by the State against the order of learned Single Judge. Otherwise also, the respondent No. 1 petitioner was entitled for pension and thats why exactly, the learned Single Judge has ordered. We do not find any error in the order of learned Single Judge, as there is no merit in the appeal itself. No useful purpose will be served to condone the delay of 80 days. Accordingly, the application under Section 5 of the Limitation Act is dismissed. Consequently, the appeal is dismissed as barred by limitation." (24). Against the order dated 2.4.2003, the State preferred a SLP before Honble Apex Court. The Honble Apex Court admitted the appeal but no stay was granted and disposed of the appeal vide its Judgment dated 8.5.2007, the operative portion of which is quoted as under: "After hearing learned counsel for the parties, we are of the opinion that the Division Bench not to have dismissed the appeal. This matter has serious repercussions and financial liability on the State for payment of pension. The High Court should have condoned the delay and heard the matter on merits. We set-aside the order dated 2.4.2003 passed by the High Court, condone the delay and remit the matter back to the High Court to decide the matter on merits. This matter has serious repercussions and financial liability on the State for payment of pension. The High Court should have condoned the delay and heard the matter on merits. We set-aside the order dated 2.4.2003 passed by the High Court, condone the delay and remit the matter back to the High Court to decide the matter on merits. Since it is a pension matter, the matter should be taken up by the High Court immediately and dispose it of as early as possible within three months after receipt of a copy of this order. The appeal is, accordingly, disposed of. In case the incumbents are drawing the pension, the same will not be disturbed till the order is passed by the High Court." (25). The Division Bench of this Court finally decided the special appeal filed by the State of Rajasthan, bearing number as DB Civil Special Appeal No. 320/2003, State of Rajasthan & Anr. vs. Mohd. Rafiq and another, vide judgment dated 22.11.2007. The judgment dated 22.11.2007 is reproduced as under: "This matter was called cut on 21.11.2007 twice but no-one appeared on behalf of the appellant. Today again it has been called out for hearing yet no on appears. It has been pointed out by the counsel for the respondents that the respondents has been availing the pension any benefit for the last ten years and his entitlement has been upheld by the learned Single Judge also. The appeal under the circumstance is dismissed in default as also on merit." (26). So far as the submission of Mr. M.D. Agarwal, learned counsel for the respondents regarding granting stay by the Division Bench of this Court vide order dated 23.8.2005 in DB Civil Special Appeal No. 768/2005, is concerned, in my view the same does not reverse the final judgment of this Court because the stay order is in personam and interlocutory in nature. Hence, the same will not be applicable in all pendings cases. The operative portion of the order dated 23.8.2005 passed by the Division Bench is reproduced as under; "Issue notice to the respondents. Issue notice of stay application also. Meanwhile, the operation of the impugned order dated 30.7.2005 shall remain stayed." (27). Hence, the same will not be applicable in all pendings cases. The operative portion of the order dated 23.8.2005 passed by the Division Bench is reproduced as under; "Issue notice to the respondents. Issue notice of stay application also. Meanwhile, the operation of the impugned order dated 30.7.2005 shall remain stayed." (27). This Court in a similarly situated case bearing SBCW P.No. 2968/98, Usman Ali vs. State, vide order dated 11.2.2003 has been pleased to grant pensionary benefits to the petitioner, the operative portion of which is quoted as under: "For the reasons afore-mentioned, I direct the respondents to allow pensionary benefits to the petitioner and pay pension after deducting the amount of Contributory Provident Fund paid to petitioner. This order shall be complied with within ninety days from today. No order as to costs. However, it is made clear that neither the petitioner is entitled to the interest nor the respondents can change the interest on the amount of Contributory Provident Fund." (28). The case of the present petitioner is squarely, covered by the Judgments, referred to above and the same have not been reversed by any appellate Court. It is a fact that similarly situated persons after retirement are getting pension and this Court cannot over-look the above discrimination and three similarly situated persons are getting the pension vide others dated 13.8.2002, 14.2.2003 and 11.2.2003 respectively. (29). Apart from the afore-said order, there are other cases decided by this Court. The same are, therefore, binding for deciding the present controversy. (30). So far as circular dated July 13, 1994 issued by the Finance Department is concerned, it is stated that on absorption/appointment of work-charged employee on regular post, the period of service rendered by him as work-charged employee while drawing pay in the pay scale prescribed for him excluding the period of Muster roll service (daily wages/casual labour) be counted as a service qualifying for pension irrespective of whether deduction towards contributory provident fund was made from his salary or not. (31). Such work-charged employees may be allowed option either to retain contributory provident fund within two months from the date of his appointment/absorption on regular post, as the case may be. In case where option is not received within the stipulated period, it shall be deemed that he has opted for pension rules in lieu of Contributory Provident Fund. (32). (31). Such work-charged employees may be allowed option either to retain contributory provident fund within two months from the date of his appointment/absorption on regular post, as the case may be. In case where option is not received within the stipulated period, it shall be deemed that he has opted for pension rules in lieu of Contributory Provident Fund. (32). Hence, in view of above discussion, this writ petition stands disposed of on the following terms: A. The writ petition filed by the petitioner is allowed and the respondents are directed to give pensionary benefits to the petitioner within a period of three months from the date of receipt of certified copy of this order. However, the petitioner shall not be entitled to any interest on the arrears of pension. The respondents are further directed that they shall not charge any interest on the amount of Contributory Provident Fund. B. Parties shall bear their own costs.