Research › Search › Judgment

J&K High Court · body

2018 DIGILAW 796 (JK)

S. Kulbir Singh v. State of J&K

2018-10-16

SANJEEV KUMAR

body2018
JUDGMENT : 1. The petitioner calls in question the order issued by respondent No.2 vide its No.JKSRTC/GMA/J/054 dated 02.12.2013 whereby the claim of the petitioner for pension as a Government employee has been rejected. The petitioner also seeks a direction to the respondents to regularize his services as Driver w.e.f. 1984 when he was promoted as Driver in his own pay and grade with all consequential benefits. The petitioner has also prayed for grant of pensionary benefits along with arrears etc. 2. Briefly put, the facts as narrated in the writ petition are as follows: The petitioner was appointed as a Conductor in the erstwhile Government Transport Undertaking (GTU) on 20.02.1962 on permanent basis. In the year 1965, the petitioner along with other Conductors was discharged from service on the allegation that he had not been issuing Page 2 of 9 tickets to the passengers and misappropriating the Government money. The petitioner along with aforesaid Conductors challenged his discharge from service before the Labour Court. While their petition was pending adjudication in the Labour Court, the GTU which, at the relevant point of time was a part of Transport Department of State of Jammu and Kashmir was converted into J&KSRTC (for short ‘Corporation’) in the year 1976. Before the Labour Court, an amicable settlement was arrived at between the Workman including the petitioner and the Management of the Corporation in the year 1977 and a bilateral agreement was executed. Consequently, the Corporation vide its order dated 18.05.1977 reinstated the petitioner and others as Conductors in the Corporation. As is apparent from the order of their reinstatement dated 18.05.1977 (supra), the petitioner, on reinstatement, was held entitled to be in continuous service, but was not allowed any back-wages for the period, the petitioner had remained out of action because of his discharge/termination. While being in the service of the Corporation, the petitioner was further promoted as Driver in the year 1984 in his own pay and grade. It is claimed that along with the petitioner, one Sh. Dewan Chand, who was also terminated from service by the GTU, was also reinstated pursuant to the bilateral agreement arrived at before the Labour Court. 3. It is claimed that along with the petitioner, one Sh. Dewan Chand, who was also terminated from service by the GTU, was also reinstated pursuant to the bilateral agreement arrived at before the Labour Court. 3. The said Dewan Chand, it is claimed, was also promoted as Driver in his own pay and grade, but on his representation, the Corporation regularized his services as Driver and upon superannuation, also sanctioned pension against the post of Driver. The petitioner claims that he was also similarly situated with said Dewan Chand, but neither his services as Driver were regularized nor he was held entitled to any pension. The petitioner filed SWP No. 1392/2003 in this Court which was disposed of by this Court on 14.05.2004 and a direction was issued to the respondents to consider the case of the petitioner in the light of the representation made by him and take a decision for his regularization under rules within a period of two weeks. It may be noted that the petitioner retired on superannuation on 31.03.2004 and before the date of judgment dated 14.05.2004. The matter was considered by the respondent-Corporation in the light of the directions issued by this Court in SWP No. 1392/2003 and vide order impugned, the same was rejected on the ground that the petitioner, on his re-instatement and reemployment in the Corporation, had chosen to be the Corporation employee by contributing towards CPF and was, thus, retired on superannuation from the services on 31.03.2004 by paying him the leave salary as admissible under rules. With regard to CPF, the order impugned stipulates that the same would be released by the Assistant Provident Fund Commissioner, Jammu to the retiree in his account. 4. Since the order impugned was passed during the pendency of this writ petition, as such, the petitioner, with the permission of this Court, amended the writ petition and laid challenge to the order impugned as well. 5. The Corporation has filed its reply to the amended writ petition. In its short reply affidavit, respondent No. 2 has not disputed the fact that the petitioner was re-employed in the Corporation pursuant to the mutual settlement arrived at between the parties before the Labour Court, but it is stated that upon his re-employment in the Corporation, the petitioner opted to be a Corporation employee by contributing towards CPF. In its short reply affidavit, respondent No. 2 has not disputed the fact that the petitioner was re-employed in the Corporation pursuant to the mutual settlement arrived at between the parties before the Labour Court, but it is stated that upon his re-employment in the Corporation, the petitioner opted to be a Corporation employee by contributing towards CPF. He retired on superannuation as an employee of the Corporation and paid the post retiral benefits as are admissible to the Corporation employees. In short, the claim of the petitioner that he had opted to be a Government employee has been disputed. There is, however, nothing stated in the reply affidavits filed by Corporation, one to the initial writ petition and the other to the amended writ petition with regard to one Sh. Dewan Chand who, as per the petitioner, was differently treated and was given all the pensionary benefits admissible to a Government employee. 6. Having heard learned counsel for the parties and perused the record, I am of the view that the only question that arises for determination in this writ petition is; whether the petitioner, upon his reemployment in the Corporation, became the employee of the Corporation by contributing to the CPF etc., or continued to be a Government servant and entitled to all the post retiral benefits including pension as is admissible to the Government employees under rules. The determination of the aforesaid question would call for adjudication and returning of a finding by this Court that the petitioner, upon his reemployment in the Corporation, opted to be the Government employee. There is an incidental question that also needs determination and the same is; whether the petitioner is similarly situated with aforesaid Dewan Chand and has been differently treated by the respondent corporation. 7. There is no dispute with regard to the fact that the petitioner was a permanent employee of GTU which, at the relevant point of time, was a part of Transport Department of Government of Jammu and Kashmir. He was holding the post of Conductor on substantive basis when his services were terminated. He challenged his termination along with others including Dewan Chand, another conductor facing similar charges, before the Labour Court. He was holding the post of Conductor on substantive basis when his services were terminated. He challenged his termination along with others including Dewan Chand, another conductor facing similar charges, before the Labour Court. An amicable settlement was arrived at before the Labour Court and it was agreed that the petitioner and other Conductors, who were before the Labour Court, would be reinstated in service with continuity of their service, but without any back wages. The bilateral agreement was implemented by the Corporation and the petitioner along with others including aforesaid Dewan Chand were reemployed in the Corporation. At this stage, it is relevant to note that during the pendency of proceedings before the Labour Court, the GTU had been converted into a Corporation known as J&KSRTC. 8. As pointed out by learned counsel for the parties that with the conversion of GTU into a Corporation, in terms of Government Order No. T25 TR of 31.08.1976 dated 27.03.1979, the erstwhile employees of GTU, which was taken over by the Corporation, were given an option to retain their status as permanent employees of GTU (Government employees) for the purposes of pensionary benefits or opt to be the employees of the Corporation with the benefits admissible to the Corporation employees including CPF contribution. 9. Obviously, the petitioner could not have made any such option as, at the relevant point of time, the petitioner was not in the service of GTU and was pursuing his litigation before the Labour Court as discharged conductor of GTU. Nothing has been brought on record, either by the petitioner or the respondent-Corporation, to demonstrate, as to whether, on the reinstatement of the petitioner as Conductor in the services of the Corporation, the petitioner was ever given an option to retain his status as erstwhile employee of the GTU (Government employee) for the purposes of pensionary benefits or to opt for the services of the Corporation. The petitioner claims in the writ petition that he had opted to be retained in the SRTC as a Government employee and had not opted for Corporation services. The petitioner claims in the writ petition that he had opted to be retained in the SRTC as a Government employee and had not opted for Corporation services. The Corporation in its reply affidavit though has not specifically denied this assertion of the petitioner, but has submitted that the petitioner, by his conduct, and contributing towards CPF shall be deemed to have opted for the service of the Corporation and, therefore, he was rightly treated as such and given the benefits as are admissible to the Corporation employees on superannuation. 10. With a view to ascertain the aforesaid disputed question of fact, the respondent-Corporation was asked to produce the original record and the same was made available to the Court by Mr. Koul. 11. From the careful perusal of the record, I could not find any document to indicate that the petitioner, on his reinstatement, was given any opportunity to exercise his option, nor do I find anything on record to show that such option, as claimed by the petitioner, was ever submitted to the respondents. It appears that the petitioner was reinstated in service along with other ex-Conductors with the understanding that they will have the benefit of continuity of service right from the date of their initial appointment in the GTU, but would not be entitled to any back-wages for the period w.e.f. the date they were discharged to the date they were actually reinstated. While scanning through the record produced by Mr. Koul for the purposes of finding out, as to whether the petitioner had exercised his option on reinstatement, I came across the noting of the authorities right from the bottom to the top that the persons similarly situated with the petitioner including aforesaid Dewan Chand were treated as Government employees and were retired on superannuation with all pensionary benefits admissible to the Government employees. The authorities have noted at more than one place that it was only the petitioner who was left out and discriminated for no discernible reasons. It is, perhaps, because of this position obtaining in the records, the Corporation in its reply affidavit chose not to rebut the specific averment made by the petitioner in his writ petition with regard to different treatment accorded to one Dewan Chand. 12. Having regard to the pleadings of the parties and on perusal of the original record produced by Mr. 12. Having regard to the pleadings of the parties and on perusal of the original record produced by Mr. Koul, learned counsel for the Corporation, I am of the considered view that the petitioner was, without any reason or justification, chosen for differential treatment. The moment the petitioner was reinstated in the service pursuant to the bilateral agreement, it was the duty of the Corporation to give him an opportunity to exercise option as had been granted to the employees of GTU at the time of conversion of GTU into J&KSRTC. Obviously, no such opportunity was ever granted to the petitioner and other similarly situated persons. I see a reason in not granting this opportunity to the petitioner as in terms of the bilateral agreement, the petitioner was held entitled to the continuity of his service, though without back wages. The respondent-Corporation, thus, understood the "continuity of service” as the continuation of the petitioner and other persons similarly situated with him as employees of the Government. It is because of this reason they were not asked to exercise their option. Once the respondent-corporation treated all the similarly situated persons including the aforesaid Dewan Chand as Government employees, I see no reason or justification to subject the petitioner to a different treatment and hostile discrimination. 13. In view of the foregoing , I find merit in the submissions of learned counsel for the petitioner and reject the stand of the respondent- Corporation. The writ petition is, accordingly, allowed and the order impugned is quashed. The petitioner is held entitled to be treated as a Government employee in the services of the Corporation and entitled to all the pensionary benefits admissible to the Government employees under relevant rules at the time of his superannuation. The petitioner is also held entitled to payment of arrears on account of pensionary benefits along with interest at the rate of 6% per annum. Let the case of the petitioner for pensionary benefits be processed by the Corporation within a period of four weeks from the date certified copy of this order is served upon it. The competent authority shall accord consideration to the case of the petitioner and release the pension and arrears of pension in favour of the petitioner within one month from the date of receipt of complete case of the petitioner from the respondent-Corporation. The competent authority shall accord consideration to the case of the petitioner and release the pension and arrears of pension in favour of the petitioner within one month from the date of receipt of complete case of the petitioner from the respondent-Corporation. Needless to say that sum on account of leave salary etc, if any, received by the petitioner from the Corporation shall be subject to adjustment in the pensionary benefits, to be sanctioned in favour of the petitioner in terms of this Judgment. 14. So far as the grievance of the petitioner that he officiated as Driver for long, but his services were not regularized is concerned, the same is not tenable in view of his service record. 15. I have gone through his service book minutely and find that the petitioner, who was reinstated as Conductor in the Corporation and joined as such on 18.05.1977 was further promoted as Driver in the pay scale of Rs.300-550 on 25th July 1983. Thereafter, his pay scale of Driver has been revised from time to time. The petitioner ultimately retired on superannuation as Driver. The last pay revision in the case of the petitioner was effected on 01.10.1997 when the pay scale held by him i.e. Rs. 1200-2140 was revised to Rs.4000-6090 and his salary was accordingly fixed. The aforesaid grades are apparently the grades of the Driver and not that of the Conductor. In the face of the aforesaid position obtaining in the record, it is not understandable as to how the petitioner feels that his services as Driver were not regularized or that he was not released the pay scale of the Driver. His service record, particularly his service book speaks otherwise. Be that as it is, the fact remains that the petitioner has retired on superannuation as Driver holding the pay scale attached to the post of Driver and, therefore, would be entitled to pensionary benefits as such. 16. It is made clear that petitioner was erroneously not treated as a Government employee and was made to contribute towards CPF, as such, whatever amount that stands in the name of the petitioner in his CPF shall be released by the concerned authority forthwith and in any case within four weeks from the date of receipt of copy of this order. 17. Disposed of as such along with connected IA.