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2020 DIGILAW 103 (JK)

All J&K Workers Union Srtc v. State

2020-02-20

DHIRAJ SINGH THAKUR

body2020
JUDGMENT 1. The present petition has been preferred by All Jammu & Kashmir Workers Union representing the employees of the State Road Transport Corporation. A writ of mandamus is sought by the petitioner-Union directing the respondents to release the arrears of COLA(Cost of Living Allowance) in favour of those whose names figure in the documents forming Annexure-A to the petition. The period for which the COLA is sought to be released is from the year 1999 till 2012. 2. The material facts of the instant case are as under:- 3. Some of the members of the petitioners Union came to be engaged in the erstwhile Government Transport Undertaking (GTU). Subsequently it appears that the State Road Transport Corporation came to be set up and the employees working in the GTU were sent on deputation to work in the State Road Transport Corporation(SRTC). The Government, then, issued an Order No.25- TR of 1979 dated 27.03.1979 giving an option to such employees. With a view as to what precisely was the option given, the relevant clauses of the Government order supra is reproduced hereunder:- 'i. Government servants whose services have been placed at the disposal of the Road Transport Corporation, but who do not want to continue in the said Corporation have the option to: (a) seek retirement from Government services(if they are permanent or have 5 years quasi-permanent service) and receive pensionary benefits from the Government as may be admissible to them under rules: (b) ask for their discharge from service if they are temporary Government servants or quasi-permanent servants with less than 5 years service not contributing to C.P. Fund and receive terminal gratuity benefits from Government as may be admissible to them under rules; (c) ask for their termination of services if they are temporary with C.P.Fund benefits and received employees contribution on their C.P.Fund with interest in full alongwith their own contribution. ii. ii. Government servants who opt for service in the Road Transport Corporation shall have the following options:- (a) permanent government servants (who have been confirmed against permanent posts or declared permanent in the Government Transport Undertaking as on the date of formation of Road Transport Corporation and quasi-permanent Government servants with 5 years or more quasi-permanent service as on the date of formation of Road Transport Corporation have the option to either retain the pensionary benefits available to them under the Government Rules or be governed by the rules of the Road Transport Corporation, insofar as it relates to the benefits consequent upon retirement. In case they exercise upon retirement. In case they exercise the formal option, the will be entitled to receive their pension under pension rules as may be in force in the Government at the time of their retirement from the Corporation; (b) . (c) . (d) in cases of all temporary government servants who did not enjoy C.P.Fund benefits in the Government Transport Undertaking at the time of formation of Road Transport Corporation and such of the permanent Government servants and quasi- permanent Government servants referred to in (a) above as may opt for rule (C.P.Fund benefits) of the Corporation, the Government will pay to the Corporation the C.P.Fund contribution and interest thereon.; (e) . Government servants who opt for service in the Corporation will cease to be Government servants from the date of their exercising option for regulation of this pensionary benefit as under para(IIa). The said Government servants will be deemed to have been the employees of the Corporation and their service conditions so far as they relate to pay, allowances, leave, TA, discipline and conduct etc. etc. except in respect of pensionary benefits will be governed by the rules of the Corporation.' 4. Some of the employees of GTU, who are the members of the petitioner-Union, preferred a writ petition bearing SWP No. 3082- J/2010, whereby they had claimed pensionary benefits which was rejected by the Government vide its order dated 11.09.2003. The petitioners sought a writ of mandamus in the said petition for treating them as temporary employees of the erstwhile GTU and to release all pensionary benefits in their favour as has been done in case of other employees of GTU. 5. The petitioners sought a writ of mandamus in the said petition for treating them as temporary employees of the erstwhile GTU and to release all pensionary benefits in their favour as has been done in case of other employees of GTU. 5. The stand taken by the respondents in the said petition was that the petitioners being not the permanent or temporary employees in the GTU, the benefits as envisaged in terms of the Government order dated 27.03.1979 were not available to them. The Writ Court, however, allowed the writ petition quashing the impugned Government order dated 11.09.2003 as also the communication dated 06.07.2010, whereby the case of the said employees was rejected. It was held that the petitioners for all practical purposes were always treated as temporary employees and thus are governed by the Government order dated 03.10.1986 and consequently held them entitled to be given the right to exercise their option in terms of the Government order dated 27.03.1979. The Court vide judgment and order dated 01.07.2013 passed in SWP No. 3082-J/2010, therefore, directed the respondents to take immediate steps to enable the said employees to exercise the option envisaged in terms of the Government order dated 27.03.1979. 6. To that extent, the case set up is that although the Letters Patent Appeal came to be preferred by the official respondents yet the same was dismissed as withdrawn keeping in view the policy of the Government in that regard. It appears that some of the employees of GTU, by exercising their option, choose to continue to remain as Government employees for the purpose of pensionary benefits and who had been accorded all such benefits. 7. The dispute which survives has been presented in the present petition is only as regards the entitlement of the petitioners to receive the arrears of COLA as also the leave salary which the petitioners claim is due and payable to them on account of their stint in the Corporation during the time they were sent on deputation to work in the SRTC from GTU. In this regard the period that has been mentioned in the writ petition is between the year 1999 to 2012 based upon the communication dated 15.07.2014 of respondent No.5 (Managing Director, J&K State Road Transport Corporation). In this regard the period that has been mentioned in the writ petition is between the year 1999 to 2012 based upon the communication dated 15.07.2014 of respondent No.5 (Managing Director, J&K State Road Transport Corporation). According to this communication an amount of Rs.3.20 crores was worked out as the tentative amount on account of the arrears of COLA for the period January, 1999 to October, 2010. The official respondents including the Corporation, the Transport Department as also the Finance Department in the present petition do not dispute the entitlement of the petitioners to receive either the arrears of COLA or the leave salary, which is payable to the members of the Union. This can be seen with reference to the various orders which are on record. For instance, on the very first date when the writ petition came to be filed before a Co-ordinate Bench of this Court, the Court while issuing notice to the respondents ordered them to release COLA in favour of the petitioners. 8. On account of disobedience of the said order, a Contempt Petition bearing No. 757/2016 was filed wherein a statement came to be made on 13.02.2018 by Mr. Haqani, learned counsel for JKSRTC, that the members of the petitioner-Association were entitled to Rs.6.6 crores on account of arrears of COLA. It was also stated that a decision had been taken by the respondents to award the aforesaid amount to the members of the petitioner-Association in two installments and upon receipt of the budgetary assistance from the last quarter of year 2017- 18 and the remaining 50% shall be paid to them from the budgetary assistance of the year 2018-19. This statement was made on the basis of a communication dated 06.02.2018. The calculation made by the Manager(Finance), JKSRTC, reflects the outstanding amount of Rs.66030953/-. 9. Admittedly, an amount of Rs.1,59,42,836/- has been paid to the members of the petitioner-Union in April, 2018. This, however, does not in the least reflects 50% payment as has been promised by JKSRTC before the Court as was recorded in the order dated 13.02.2018. 10. Today Mr. Haqani, disputes the entitlement of the petitioners to the extent of Rs. 6.6 crores and claims that it was only Rs.3.20 crores and that the calculation made by the Manager(Finance) JKSRTC worked out as arrears of COLA as Rs.66030953/- is not the exact one. 10. Today Mr. Haqani, disputes the entitlement of the petitioners to the extent of Rs. 6.6 crores and claims that it was only Rs.3.20 crores and that the calculation made by the Manager(Finance) JKSRTC worked out as arrears of COLA as Rs.66030953/- is not the exact one. However, notwithstanding the fact that at the time the petition was preferred, only an amount of Rs. 3.20 crores was claimed as arrears of COLA etc. yet admittedly the grant of such amount would perhaps exceed the actual calculation as on date. 11. It appears that the Manager(Finance) JKSRTC while working out the arrears as Rs.66030953/- was calculated only till 2017. However, Mr. Haqani disputes the method of calculation which he says was calculated erroneously. 12. Be that as it may; one thing is clear that all the respondents do not at all dispute the entitlement of the members of the petitioner-Union to receive either the arrears of COLA or the leave salary. The only dispute is with regard to the calculation of the exact amount as also the inability of the Corporation to pay the same. It is said that the Corporation is financially dependent wholly on the support of the Government extended to it from time to time and, therefore, the Government ought to be directed to provide the amount which is payable to the members of the petitioner-Union under a separate Head while giving the budgetary support. 13. On the other hand, the Transport Department as also the Finance Department in their respective replies have taken a stand that the arrears on account of either the COLA or the leave salary has to be provided exclusively by the Corporation from the budgetary support which is being given to it by the Government from time to time. 14. 13. On the other hand, the Transport Department as also the Finance Department in their respective replies have taken a stand that the arrears on account of either the COLA or the leave salary has to be provided exclusively by the Corporation from the budgetary support which is being given to it by the Government from time to time. 14. Having considered the available material in its entirety, I am of the opinion that notwithstanding the fact that the Corporation has not kept its promise as was made before this Court and recorded on 13.02.2018 in the Contempt Petition No.757/2016, wherein a specific assurance had been extended that the entire amount of Rs.6.6 crores would be liquidated upon the receipt of budgetary support of the year 2018-19, which however, has not happened, the Government while providing financial grant and assistance to the Corporation should specify the amount to which the petitioners are entitled to under a separate Head so that such amount could then be released directly in favour of the members of the entitled petitioner-Union through Corporation instead of leaving it to the discretion of the Corporation. In this way counsel appearing for the Transport Department as also the Finance Department submit that the Corporation would be bound down to release the amounts specified and it is been prevented for any other purpose. 15. Data has been made available by Mr. Haqani, which would show that for the year 2014-15, 2015-16, 2016-17, 2017-18, 2018-19 and 2019- 20 an amount of Rs.3,554.16; 3,554.00; 3,000.00; 3,000.00 and 2,600.00 crores was made available to the Corporation by the Government purportedly on account of wage bill for the employees working in the Corporation. Since the official stand is that the Corporation is dependent on the financial support of the Government, the Government cannot refuse to provide arrears of COLA etc. in regard to the retired employees of the Corporation and treat them differently from in-service employees of the Corporation. 16. In view of the above, this petition is allowed with a direction to the Government to provide specifically such an amount as would be calculated by the Corporation representing arrears of COLA and leave salary minus that which has already been paid to such members of the Association who are entitled to the same. 16. In view of the above, this petition is allowed with a direction to the Government to provide specifically such an amount as would be calculated by the Corporation representing arrears of COLA and leave salary minus that which has already been paid to such members of the Association who are entitled to the same. The amount shall be calculated by the Corporation within a period of two weeks positively from today and be forwarded to the Government. While calculating the same, the documents which might be furnished by the petitioner- Association, shall also be kept into consideration. The exact amount shall be communicated to the Finance Department with a copy to the Transport Department. Further, it is made clear that whatever amount is calculated as arrears by the Corporation shall be provided under a separate Head by the name of 'arrears of COLA/Leave salary'. The said amount shall be made available in addition to the wages bill which generally is provided by the Government to the Corporation. 17. Needless to say that the petitioners have been before this Court for last more than 20 years; initially for the purpose of establishing a right to claim pensionary benefits as employees of the Government and the erstwhile Government Transport Undertaking; and now for the purpose of release of COLA and other arrears. No further delay thus can be expected from the Government on this account with a view to further frustrate such employees who are before this Court for last more than two decades. The directions issued shall be complied with within the prescribed time, failing which this Court would be constrained to proceed in a manner by using coercive measures which may be available under law. MP Nos. 03/2016, 01/2018 & 02/2018 18. These are the applications filed on behalf of the applicants seeking their impleadment in the writ petition as party petitioners, by claiming that they are similarly situated to those whose cause is being espoused by the petitioner-Union in the annexure forming Annexure-A to the petition. Mr. Haqani, counsel for the JKSRTC, however, seeks some time to file objections to these applications. 19. Mr. Haqani, counsel for the JKSRTC, however, seeks some time to file objections to these applications. 19. By considering the nature of the prayer made by the applicants in these applications, whose cause is being espoused by the petitioner- Association, would not only prevent multiplicity of litigation on account of filing fresh petitions by these applicants but would save a lot of court time as well. Therefore, the prayer made by Mr. Haqani, for filing objections to these applications is, as such, rejected and the above mentioned applications for impleadment are allowed subject to all just exceptions. The applicants, whose particulars are given in these applications, are accordingly arrayed as party petitioners in the present case. 20. With the above directions, the Writ Petition is disposed of along-with all connected Applications including the Contempt Petition(s).