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2022 DIGILAW 1475 (CAL)

Panchanan Bhattacharya v. West Bengal State Electricity Distribution Company Limited

2022-11-23

PARTHA SARATHI CHATTERJEE, TAPABRATA CHAKRABORTY

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JUDGMENT : Partha Sarathi Chatterjee, J. 1. This appeal is directed against the order dated 13.2.2017 passed by the learned Single Bench in the writ petition being W.P. No. 17504 (W) of 2011. 2. Factual conspectus giving birth to this instant appeal is that Singur Haripal Rural Electric Co-operative Society Limited (hereinafter referred to as SHRELCOP) was formed with a view to distribute electricity to its members and consumers in the area within the jurisdiction of the police stations of Singur and Haripal in the district of Hooghly by obtaining licence from the electricity authority under the Indian Electricity Act, 1910. After functioning for about 27 years, the Board of Directors of SHRELCOP submitted an application dated 10.8.2005 before the West Bengal Electricity Regulatory Commission to surrender its distribution licence and as per order dated 7.12.2005, the said licence was revoked with effect from 31.12.2005 and the West Bengal State Electricity Board (in short, the WBSEB) was appointed as Administrator to take over charges of distribution of electricity in that licenced area. Thereafter WBSEB was bifurcated and successor entities were formed on 01.04.2007. One of the said successor entities was West Bengal State Electricity Distribution Company Limited (hereinafter referred to as the WBSEDCL). After issuance of statutory notice, the Commission passed an order on 28.02.2008. In terms of the said order, the respondent no.2 (hereinafter referred to as Director) passed an order dated 02.09.2008 towards absorption of 137 employees of SHRELCOP in WBSEDCL with effect from 29.2.2008 with the following terms and conditions : ‘(i) The date of seniority in respect of 137 nos. of employees shall be at the bottom of the gradation list in respect of each category of employees. (ii) The date of joining in the WBSEDCL shall be treated as the date of notional absorption in WBSEDCL i.e. 29th February, 2008 for the purpose of seniority in the gradation list. However, the inter-se seniority amongst the same category of employees shall be determined from the date of joining at erstwhile SHRELCOP as well as the date of joining at erstwhile SHRELCOP as well as date of birth (in case of date of joining at erstwhile SHRELCOP is same). (iii) All absorbed employees shall be continued to be under Contributory Provident Fund as now existing. (iii) All absorbed employees shall be continued to be under Contributory Provident Fund as now existing. (iv) From the date of absorption such employees shall be guided by WBSEB Employees’ Service Regulations (now adopted by WBSEDCL) and other Rules and Regulations, issued from time to time by WBSEB/WBSEDCL. (v) All employees so absorbed in the service of WBSEDCL shall be liable to be transferred to any unit / office under WBSEDCL. On absorption, they will continue to remain attached Singur-Haripal Distribution (O&M) Division for the present and their future places of posting shall follow in due course. They will be fitted in their respective scales of pay in terms of ROPA-99 by Distribution Finance.’ 3. About a year after such absorption, the employees submitted two representations dated 4.8.2009 and 26.11.2010 ventilating their grievances before the Chairman and Managing Director, WBSEDCL. The main grievances of the appellants were as follows : ‘That although these absorbed employees were getting bonus, D.A. at par with the employees of WBSEDCL but they have not been given benefits of ROPA, 2009 with effect from 1.1.2006 although on 31.12.2005 Administrator was appointed in SHRELCOP and all the assets and liabilities of SHRELCOP were taken over since 31.12.2005 and they were not being given annual increment, promotion, P.F. and retiral and pensionary benefit equivalent to the employees of the WBSEDCL.’ 4. As their representations were not considered, they were constrained to prefer a writ petition being W.P. No. 3973 (W) of 2011 which was disposed of by the Hon’ble Justice Debasish Kar Gupta, as His Lordship then was, on 11.5.2011 by directing the Director to dispose of the representation dated 26.11.2010 by passing a reasoned order, in accordance with law within a period of two months from the date of communication of that order. 5. Pursuant to the said order dated 11.5.2011, the Director considered and disposed of the representation dated 26.11.2010 by an order dated 26.07.2011. In the said order it was, inter alia, observed that as follows : ‘The writ petitioners are originally the employees of SHRELCOP and whatever be the reasons all of them are the members of CPF Scheme governed under the Employee’s Provident Fund & Miscellaneous Provisions Act, 1952 and their contribution was being managed by the Employees Provident Fund Organisation. In the said order it was, inter alia, observed that as follows : ‘The writ petitioners are originally the employees of SHRELCOP and whatever be the reasons all of them are the members of CPF Scheme governed under the Employee’s Provident Fund & Miscellaneous Provisions Act, 1952 and their contribution was being managed by the Employees Provident Fund Organisation. After absorption, their credit of Provident Fund were being transferred to CPF Trustee Board of WBSEDCL and, on retirement/death of those employees, they have been paid CPF final accumulation from the CPF Trustee Board of WBSEDCL which maintains the fund for those employees of WBSEDCL who are subscribers to the CPF Scheme. So, they were always a member of CPF Scheme and not under Pension Scheme. Since the very date SHRELCOP was taken over, their continuation in CPF Scheme has been honoured and maintained by WBSEDCL and WBSEDCL has been contributing Employer’s share regularly. Therefore, those employees have neither been impacted towards their disadvantage nor being prejudiced consequent to taking over of SHRELCOP and question of granting Pension Scheme does not arise.’ 6. Aggrieved by the said order, the appellants preferred a writ petition being W.P. No.17504 (W) of 2011 which was disposed by the learned Single Bench on 13.2.2017 observing, inter alia, as follows : ‘…. I repeat that in my opinion, the Director has done justice to the order of this Court dated 11th May, 2011. However, direct him to reconsider the case of the petitioners for the purpose of granting the increment and leave salary only from 1st January, 2006 so that it could ensure better retiral benefits to them. This is particularly important because there is no pension. The rest of the order is upheld. The rest of the order is upheld. The Director will pass a reasoned order within three months of communication of this order. I also make it clear that the Director must have the independent power to grant the petitioners the benefits they want. Otherwise he will refer the matter to the Chairman.’ 7. The rest of the order is upheld. The rest of the order is upheld. The Director will pass a reasoned order within three months of communication of this order. I also make it clear that the Director must have the independent power to grant the petitioners the benefits they want. Otherwise he will refer the matter to the Chairman.’ 7. Challenging the said order dated 13.2.2017, the appellants have preferred the present appeal, inter alia, on the grounds that the learned Single Judge has erred in not considering that the appellants are entitled to get all the service benefits including monthly pension at par with the employees of WBSEDCL since they had been absorbed as employees of WBSEDCL and the authority concerned cannot wipe out the past service of the appellants rendered in SHRELCOP. 8. Mr. Nandi, learned advocate appearing for the appellants submitted that charges of assets and liabilities of SHRELCOP were taken over by WBSEDCL on and from 31.12.2005 and an Administrator was appointed on that date. Subsequently, by an order dated 2.9.2008, appellants have been stated to be absorbed with effect from 29.2.2008. Surprisingly, the past service of the appellants had not been taken into account for the purpose of computation of their service benefits and even the leave credited in the account of the appellants had not been carried forward and the benefits of ROPA, 2009 had also been curtailed by conferring the benefits with effect from 29.2.2008 and not from 1.1.2006. In the reasoned order passed by the Director, it was observed that appellants are not entitled to get monthly pension and such view has been endorsed by the learned Single Judge being oblivious of the fact that exercise of option from CPF to GPF is not necessary and it is automatic, as would be explicit from Rule 7 of the WBSEB Employees’ (Death-cum-Retirement Benefit) Regulations, 1985 (hereinafter referred to as the DCRB Regulations). The appellants are entitled to get pension as per the provisions the said DCRB Regulations and accordingly, necessary direction ought to have been given to the authority to disburse monthly pension to the appellants and to release all the service benefits including benefits of ROPA, 2009 to the appellants with effect from 1.1.2006 moreso when the appellants have been rendering the same work as that of the employees of WBSEDCL. Both the groups of employees should be given similar benefits and/or similar pay and should be treated similarly. In support of his such arguments, Mr. Nandia has placed reliance upon the judgments delivered in the cases of Chander Sain vs. State of Haryana & Ors., reported in AIR 1994 SC 972 , State of Mysore and Anr. vs. H. Srinivasmuthy, reported in 1976 (2) SLR 29 (SC), Government of T.N. & Ors. vs. M. Ananchu Asari & Ors., reported in (2004) SCC (L&S) 287 and Rajasthan Rajya Vidyut Vitran Nigam Limited vs. Dwarka Prasad Koolwal & Ors., reported in (2016) 1 SCC ( L&S) 315). 9. He argues that the Director while considering the appellants’ claim had glossed over and has not returned a finding on the issue as to whether the appellants would be entitled to get pension though the said issue was specifically addressed and argued by the appellants. 10. According to him, equality and arbitrariness are sworn enemies under public law jurisdiction. Fairness and reasonableness are paramount issues for administrative action. As a model employer the State Government must conduct itself with high probity and candour and cannot act arbitrarily by withholding the benefits as extended to similarly situated incumbents. Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. 11. Per Contra, Mr. Panja, learned advocate appearing for WBSEDCL submits that in the order impugned the learned Single Judge has directed the Director concerned to reconsider the case of the appellants for the purpose of granting increment and leave salary from 1.1.2006 and without awaiting for the decision of the Director, the appellants have preferred the appeal and hence, this appeal is a premature one. He added that appellants would not get monthly pension since they were absorbed in WBSEDCL on the condition that they would be continued to be under CPF Scheme and hence, they are not entitled to get monthly pension. 12. He argues that while rendering service under SHRELCOP, the appellants were under the CPF Scheme. At the time of absorption in WBSEDCL they accepted the specific condition that they ‘shall be continued to be under contributory provident found as now existing’. Having accepted such condition, they cannot turn back and claim pension and as such the learned Single Judge rightly negated such claim and there is no infirmity in the order impugned. At the time of absorption in WBSEDCL they accepted the specific condition that they ‘shall be continued to be under contributory provident found as now existing’. Having accepted such condition, they cannot turn back and claim pension and as such the learned Single Judge rightly negated such claim and there is no infirmity in the order impugned. 13. The appellants were absorbed in WBSEDCL with effect from 29.2.2008 on certain terms and conditions and the office order dated 2.9.2008 postulates that appellants were absorbed on the condition that they shall be continued to be under CPF Scheme. Now, admittedly, before 29.2.2008, appellants did not render any service in WBSEDCL and hence, by passing the reasoned order dated 26.07.2011, the Director concerned stated that before 29.2.2008, the appellants were not employees of WBSEDCL and hence, WBSEDCL denied to grant benefits to the appellants prior to 29.2.2008. 14. The appellants have never challenged the office order dated 2.9.2008 rather they had joined in their respective posts accepting the terms and conditions contained in that office order. It is settled legal proposition that the policy decision taken by the State or its authorities/instrumentalities is beyond the purview of judicial review. This Court in exercise of its power of judicial review cannot relax the conditions incorporated office order dated 2.9.2008. The appellants were always members of the CPF Scheme and after they were absorbed in WBSEDCL, the CPF Scheme has been honoured and there had been no curtailment of any right. It is not a case that prior to absorption in WBSEDCL, the appellants rendered service in Regular establishment under State. Their absorption was subject to the conditions as categorically specified in the office order dated 02.09.2008. 15. It is well known that a decision is an authority for what it decides and not what can logically be deduced therefrom. Even a slight distinction in fact or an additional fact may make a lot of difference in the decision making process. In State of Mysore (supra) employees under the same department were discriminated. In the case of Chander Saim (supra) the dispute was pertaining to specification of a cut of date and application of a different yardstick to some of the employees. The judgment delivered in the case of Government of Tamil Nadu (supra) was also pertaining to arbitrary fixation of a cut-off date. In the case of Chander Saim (supra) the dispute was pertaining to specification of a cut of date and application of a different yardstick to some of the employees. The judgment delivered in the case of Government of Tamil Nadu (supra) was also pertaining to arbitrary fixation of a cut-off date. In the case of Rajasthan Rajya Vidyut Vitran Nigam Limited (supra) the dispute was also relating to exercise of option for switching over from one scheme to another. All the said judgments are distinguishable on facts. 16. We are of the considered opinion that there is nothing wrong with the approach and decision of the learned Single Judge. It was rightly held that the Director had passed a very well-reasoned order. Taking note of the fact that the appellants would not be entitled to pension, the learned Judge directed the competent authority to reconsider the case of the appellant for the purpose of granting the increment and leave salary only from 1st January, 2006. The impugned order does not suffer from any jurisdictional error or any substantial failure of justice or any manifest injustice. Consequently, we have no qualm to hold that there is no infirmity in the order impugned and as such no interference is called for in this appeal. 17. Accordingly, the appeal be and the same is dismissed, however, without any order as to the costs. 18. Urgent Xerox certified copy, if applied for, shall be given expeditiously upon completion of all formalities.