U.P. State Sugar Corporation Ltd. ... vs Ravi Shankar Mishra & Others
2021 Latest Caselaw 11195 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 

 
Court No. - 2
 

 
Case :- SPECIAL APPEAL No. - 147 of 2020
 

 
Appellant :- U.P. State Sugar Corporation Ltd. & Anr. Thru. M.D.
 
Respondent :- Ravi Shankar Mishra & Others
 
Counsel for Appellant :- Sudhanshu Chauhan
 
Counsel for Respondent :- C.S.C.,Gopal Singh Bisht [G.S.Bi,Vijay Kumar Srivastava
 
WITH
 
Case :- SPECIAL APPEAL No. - 150 of 2020
 

 
Appellant :- U.P. State Sugar Corporation Ltd. & Another
 
Respondent :- Rajendra Kumar Mishra & Others
 
Counsel for Appellant :- Sudhanshu Chauhan
 
Counsel for Respondent :- Gopal Singh Bisht [G.S.Bi
 
WITH
 
Case :- SPECIAL APPEAL No. - 151 of 2020
 

 
Appellant :- U.P. State Sugar Corporation Ltd. & Another
 
Respondent :- Suresh Singh & Others
 
Counsel for Appellant :- Sudhanshu Chauhan
 
Counsel for Respondent :- Gopal Singh Bisht [G.S.B]
 
WITH
 
Case :- SPECIAL APPEAL No. - 152 of 2020
 

 
Appellant :- U.P. State Sugar Corporation Ltd. & Another
 
Respondent :- Narendra Kumar Kapoor & Others
 
Counsel for Appellant :- Sudhanshu Chauhan
 
Counsel for Respondent :- Gopal Singh Bisht [G.S.Bi
 
WITH
 
Case :- SPECIAL APPEAL No. - 153 of 2020
 

 
Appellant :- U.P. State Sugar Corporation Ltd. & Another
 
Respondent :- Om Prakash Singh & Others
 
Counsel for Appellant :- Sudhanshu Chauhan
 
Counsel for Respondent :- Gopal Singh Bisht [G.S.Bi
 
WITH
 
Case :- SPECIAL APPEAL No. - 169 of 2020
 

 
Appellant :- U.P.State Sugar Corporation Ltd.Thru Managing Director & Anr
 
Respondent :- Ravi Prabhakar & Ors.
 
Counsel for Appellant :- Sudhanshu Chauhan
 
Counsel for Respondent :- C.S.C.
 
WITH
 
Case :- SPECIAL APPEAL No. - 170 of 2020
 

 
Appellant :- U.P.State Sugar Corporation Ltd.Thru Managing Director & Anr
 
Respondent :- Ram Singh Baghel & Ors.
 
Counsel for Appellant :- Sudhanshu Chauhan
 
Counsel for Respondent :- C.S.C.
 
WITH
 
Case :- SPECIAL APPEAL No. - 171 of 2020
 

 
Appellant :- U.P.State Sugar Corporation Ltd.Thru Managing Director & Anr
 
Respondent :- Diwakar Prasad Singh & Ors.
 
Counsel for Appellant :- Sudhanshu Chauhan
 
Counsel for Respondent :- C.S.C.
 
WITH
 
Case :- SPECIAL APPEAL No. - 172 of 2020
 

 
Appellant :- U.P.State Sugar Corporation Ltd.Thru Managing Director & Anr
 
Respondent :- Rajnish Kumar & Ors.
 
Counsel for Appellant :- Sudhanshu Chauhan
 
Counsel for Respondent :- C.S.C.
 
WITH
 
Case :- SPECIAL APPEAL No. - 173 of 2020
 

 
Appellant :- U.P.State Sugar Corporation Ltd.Thru Managing Director & Anr
 
Respondent :- Yogendra Singh & Ors.
 
Counsel for Appellant :- Sudhanshu Chauhan
 
Counsel for Respondent :- C.S.C.
 
WITH
 
Case :- SPECIAL APPEAL No. - 174 of 2020
 

 
Appellant :- U.P.State Sugar Corporation Ltd.Thru Managing Director & Anr
 
Respondent :- Sompal Singh & Ors.
 
Counsel for Appellant :- Sudhanshu Chauhan
 
Counsel for Respondent :- C.S.C.
 
WITH
 
Case :- SPECIAL APPEAL No. - 175 of 2020
 

 
Appellant :- U.P. State Sugar Corp. Ltd. Lucknow Thru M.D. And Anr.
 
Respondent :- Udai Kant Mishra And Ors.
 
Counsel for Appellant :- Sudhanshu Chauhan
 
Counsel for Respondent :- C.S.C.
 
WITH
 
Case :- SPECIAL APPEAL No. - 176 of 2020
 

 
Appellant :- U.P.State Sugar Corporation Ltd.Thru Managing Director & Anr
 
Respondent :- Satya Prakash Singh & Ors.
 
Counsel for Appellant :- Sudhanshu Chauhan
 
Counsel for Respondent :- C.S.C.
 
WITH
 
Case :- SPECIAL APPEAL No. - 177 of 2020
 

 
Appellant :- U.P.State Sugar Corporation Ltd.Thru Managing Director & Anr
 
Respondent :- Himanshu Goel & Ors.
 
Counsel for Appellant :- Sudhanshu Chauhan
 
Counsel for Respondent :- C.S.C.
 
WITH
 
Case :- SPECIAL APPEAL No. - 178 of 2020
 

 
Appellant :- U.P.State Sugar Corporation Ltd.Thru Managing Director & Anr
 
Respondent :- Hari Dutt Sharma & Ors.
 
Counsel for Appellant :- Sudhanshu Chauhan
 
Counsel for Respondent :- C.S.C.
 
WITH
 
Case :- SPECIAL APPEAL No. - 179 of 2020
 

 
Appellant :- U.P.State Sugar Corporation Ltd.Thru Managing Director & Anr
 
Respondent :- Virendra Pal Singh & Ors.
 
Counsel for Appellant :- Sudhanshu Chauhan
 
Counsel for Respondent :- C.S.C.
 
WITH
 
Case :- SPECIAL APPEAL No. - 180 of 2020
 

 
Appellant :- U.P.State Sugar Corporation Ltd.Thru Managing Director & Anr
 
Respondent :- Abhai Jauhari & Ors.
 
Counsel for Appellant :- Sudhanshu Chauhan
 
Counsel for Respondent :- C.S.C.
 

 
WITH
 
Case :- SPECIAL APPEAL No. - 181 of 2020
 

 
Appellant :- U.P.State Sugar Corporation Ltd.Thru Managing Director & Anr
 
Respondent :- Gyanesh Kumar Nigam & Ors.
 
Counsel for Appellant :- Sudhanshu Chauhan
 
Counsel for Respondent :- C.S.C.
 
WITH
 
Case :- SPECIAL APPEAL No. - 198 of 2020
 

 
Appellant :- U.P. State Sugar Corp. Ltd. Lko. Thru. M.D. & Anr.
 
Respondent :- Smt. Sushma Pundir & Ors.
 
Counsel for Appellant :- Sudhanshu Chauhan
 
Counsel for Respondent :- Gopal Singh Bisht [G.S.Bi
 

 
Hon'ble Rajan Roy,J.

Hon'ble Suresh Kumar Gupta,J.

Heard Sri Subhanshu Chauhan, learned counsel for the appellants and Sri Vijay Kumar Srivastava along with Sri Gopal Singh Bisht, learned counsel for the respondents.

These special appeals have been filed by the U.P. State Sugar Corporation Ltd. through its Managing Director hereinafter referred to as ''the Corporation' challenging a common judgment rendered by the writ court on 14.10.2019 in a bunch of writ petitions, the leading Writ Petition being No. 47 (S/B) (now Service Single) of 2014 (Ravi Shankar Mishra vs. State of U.P.).

The facts of the case, in brief, are that the respondents herein are erstwhile employees of the appellant-corporation. A scheme of voluntary retirement was floated on 13.10.2009 (page no.76 of the Special Appeal) in pursuance to which, they applied for voluntary retirement which was accepted. Accordingly, they retired voluntarily. It is informed that they had an option to continue with the company which was purchasing the sugar mills of the appellant-Corporation but the respondents did not choose to do so, instead, they applied for voluntary retirement which was accepted. The nineteen respondents in these nineteen appeals, retired on 30.08.2010, 18.09.2010, 15.10.2010, 18.09.2010, 18.09.2010, 05.10.2010, 07.10.2010, 07.10.2010, 15.10.2010, 07.10.2010, 07.10.2010, 07.10.2010, 07.10.2010, 07.10.2010, 30.08.2010, 07.10.2010, 30.08.2010, 30.08.2010, 15.10.2010 respectively. They were working on different posts in the mills being run by the appellant-Corporation. On 25.08.2010, dearness allowance of the State Government employees was revised in pursuance to the recommendations of the Fourth Pay Commission from 115 % to 129 % w.e.f. 01.01.2010. Thereafter on 11.09.2009, a Government Order was issued in exercise of powers of the State Government under the U.P. Control of Public Corporations Act, 1975 which was addressed to all public corporations/ undertakings, which included the appellant-Corporation herein, wherein, it was mentioned that the State Government had accepted, in principle, enhancement of dearness allowance for employees of such corporations / undertakings, however subject to certain conditions mentioned therein one of which was the paying capacity of the corporation which was to be assessed by an ''Empowered Committee' as mentioned therein. In pursuance to the aforesaid Government Order, the meeting of such Empowered Committee took place on 16.09.2010. The minutes of the meeting are annexed at page no. 240 of the appeal. The Empowered Committee was informed that enhancement of dearness allowance from 115% to 129% w.e.f. 01.01.2010 for employees of the appellant-Corporation would entail an additional burden of Rs.4.87 lac per month or Rs.58.44 lac per year upon the appellant-Corporation. The Empowered Committee on being informed that the Corporation had the means to meet the aforesaid expenditure, it approved such enhancement for its employees. We asked learned counsel for the appellant vide our order dated 08.09.2021 as to whether the proposal which was placed before the Empowered Committee in its meeting dated 16.09.2010 included the financial burden which would have to be borne by the corporation in respect to the seven of the retired employees who are respondents herein, meaning thereby, the respondents who had retired prior to 16.09.2010/ 24.09.2010. He informed that as the proposal which was placed before the Empowered Committee on 16.09.2010 was prepared on 28.08.2010 and these seven respondents were in service at that time, they having retired subsequently, therefore, the proposal included the amount payable to them. He asserted that this was not on account of the fact that they were eligible for enhanced dearness allowance even after acceptance of voluntary retirement but for the reason aforesaid.

After the decision of the Empowered Committee dated 16.09.2010 which was communicated to the Corporation on 23.09.2010, the Managing Director of the Corporation i.e. appellant no.2 issued an order on 29.09.2010 in compliance thereof notifying enhancement in Dearness Allowance. However, in his order, the Managing Director stated that such enhanced dearness allowance would not be available to such officers/ employees whose application for voluntary retirement had been accepted prior to the meeting of the Board of Directors held on 24.09.2010. The minutes of the Board meeting dated 24.09.2010 are not before us. Being aggrieved by this order of Managing Director dated 29.09.2010, twelve of the respondents herein filed writ petitions before the writ court under Article 226 of the Constitution of India and the remaining seven respondents though they also asserted their claim to enhanced dearness allowance, as informed by Sri Subhanshu Chauhan, learned counsel for the appellants, did not challenge the order of the Managing Director before the writ court. The prayers relating to revised pay as per the Sixth Pay Commission's recommendations which in Writ Petition no.47 (S/S) of 2014 are reliefs nos.2 and 3 were not pressed before the writ court meaning thereby, the claim was confined to the payment of enhanced Dearness allowance as per Forth Pay Commission Recommendations as is also mentioned in the impugned judgment.

It is not out of place to mention that apart from the aforesaid enhancement of dearness allowance from 115 % to 129 % w.e.f. 01.01.2010 there was a second consideration for payment of enhanced dearness allowance from 129 % to 145% w.e.f. 01.07.2010 by the Empowered Committee in the light of Government Order dated 11.09.2009 in its meeting held on 08.04.2011 pertaining to employees of the appellant-Corporation and therein also a similar decision was taken as was earlier taken on 16.09.2010. Here again, as a consequence to the aforesaid, the matter was taken before the Board of Directors of the appellant-Corporation in its meeting dated 24.03.2011 and thereafter the Managing Director issued an order on 19.04.2011 granting enhanced dearness allowance as aforesaid subject again to the condition that this enhanced dearness allowance would not be available to the officers/ employees whose application for voluntary retirement had been accepted prior to 24.03.2011 which was the date on which the Board of Directors held its meeting in this context. Here again, the minutes of the Board meeting dated 24.03.2011 are not before us, therefore, we do not know as to whether this condition was imposed by the Board of Directors or by the Managing Director as was the case with regard to decision dated 29.09.2010. Consequent to this decision, the remaining twelve respondents who retired subsequent to 24.09.2010 and have been granted the first enhancement of dearness allowance from 115% to 129 % w.e.f. 01.01.2010 became ineligible rather they were excluded from being given the subsequent enhancement from 129% to 145% w.e.f. 01.07.2010. Needless to say that other seven respondents were neither given the first enhancement nor the second enhancement. This subsequent decision of the Managing Director dated 19.04.2011 was also subject matter of challenge in all the writ petitions before the writ court by the respondents.

The writ court allowed the writ petitions of the respondents only on the ground that a similar writ petition pertaining to another employee of the appellant-Corporation who, in fact, had retired in 2002, albiet, voluntarily, was given the enhanced dearness allowance as and when it was enhanced subsequently, but with retrospective effect, and on a claim being raised before the tribunal, the same was accepted and thereafter the writ petition of the appellant-Corporation before this Court was dismissed. The special leave petition of the appellant-Corporation against the judgment of the High Court was dismissed at the S.L.P. stage itself in limine. We have perused the order of the Supreme Court of India dated 11.02.2013 which is at page no.289. From the nature of the order passed, it is evident that the decision of the Division Bench of this Court in the case of U.P. State Sugar Corporation Limited vs. Up Kaushal Kumar Sharma & Anr passed in Writ Petition no.259 (S/B) of 2011 decided on 09.07.2012 cannot be treated as having been affirmed or having merged in the order of the Supreme Court as the Special Leave Petition was dismissed in limine without giving detailed reasons for the same, except that, the Supreme Court was not inclined to interfere in the matter.

We have perused the judgment passed by the writ court and we find that except for relying upon the decision of the Division Bench in Up Kaushal Kumar Sharma (supra) no other reasons had been given therein for allowing the writ petition of the respondents. Now, in this context, we have perused the judgment of the Co-ordinate Bench in Up Kaushal Kumar Sharma (supra) which is at page no.280 of the appeal and we find from the recitals contained therein that at the relevant time when a cause accrued in favour of Mr. Up Kaushal Kumar Sharma, there was a Resolution of the Board of Directors of the appellant-Corporation that 'dearness allowance may be granted at the State rate to all category of staff in the Corporation irrespective of the fact that they were drawing D.A. or not. This D.A. would automatically be revised from time to time when rates of D.A. applicable to State Government employees were revised'. As informed by learned counsel for the appellant vide G.O. dated 11.09.2009, this Resolution became ineffective because the State Government issued necessary directions in exercise of its powers under the U.P. Control Over Public Corporations Act, 1975 that though it accepts the enhancement of dearness allowance for employees of public corporations/ undertakings governed by the said Government Order, in principle, its implementation was made conditional, one of the conditions being the paying capacity of the Corporation i.e. its financial capacity to bear the additional burden. Thus, the Resolution that dearness allowance would get enhanced automatically once it was enhanced for the State government employees was no longer effective. Secondly, we find that in the said judgment of Up Kaushal Kumar Sharma (supra), the Co-ordinate Bench relied upon judgment of the Supreme Court rendered in Prantiya Vidhut Mandal Mazdoor Federation and Ors. vs. Rajasthan State Electricity Board and Ors. (1992) 2 SCC 723, which, we find was not a case of voluntary retirement but it was a case of wage arrears which included the emoluments. Moreover, we find also find that proposals which were placed before the Empowered Committee on 16.09.2010, though it included the money payable to the seven of the respondents herein, this was not on account of the fact that they would otherwise be eligible for such enhanced dearness allowance even after they retire voluntarily, but only on account of the fact that proposal was prepared on 28.08.2010 on which date they were still in service and therefore, treating them in service, the matter was accordingly placed before the Empowered Committee. All these aspects of the matter have escaped consideration of the writ court though they were relevant.

We also find merit in the submission of learned counsel for the appellant that the law with regard to voluntary retirement is that one who accepts the Golden Handshake would only be entitled to the sum promised under the Voluntary Retirement Scheme and no other amount. This is for the reason that such Golden Handshake includes ex-gratia and other payments which such retiree would otherwise not get had he continued in service. We may refer to the decision of the Supreme Court in the case of IFCI Ltd. vs. Sanjay Behari and Others 2019 SCC Online SC 1211 wherein this aspect of the matter fell for consideration and the law in this regard was explained in para no.21 to 24 which are quoted herein below:-

"21. The principle ground for assailing the impugned order is that any scheme for voluntary retirement is a package by itself. One cannot, thus, look to other voluntary retirement schemes, or other rules and regulations for the said purpose. 22. In our view, there can be no quibble with this fundamental principle. In fact, we had the occasion to recently propound the legal position in this behalf, in National Insurance Special Voluntary Retired/Retired Employees Association v. United India Insurance Co. Ltd.. The view taken is that it is not appropriate to add or subtract from the Scheme, nor can any concessions be given contrary to the Scheme, or if they are not provided for under the Scheme. What is to be seen are the clauses of the scheme under which voluntary retirement has been taken and the terms of the scheme must be strictly followed. This Court observed as under:

"19. We have, thus, no hesitation in coming to the conclusion that statutory or contractual, such voluntary retirement schemes as the SVRS-2004 Scheme have to be strictly adhered to, and the very objective of having such schemes would be defeated, if parts of other schemes are sought to be imported into such voluntary retirement schemes. What is offered by the employer is a package as contained in the schemes of voluntary retirement, and that alone would be admissible.

20. The issue which arose in Manojbhai N. Shah (Manojbhal N. Shah v. Union of India, (2015) 4 SCC 482: (2015) 2 SCC (L&S) 55] was qua the revision of pay, with retrospective effect. That was the only issue. That issue was decided against the beneficiaries of the SVRS-2004 Scheme. If there are certain observations made by that Bench while deciding so, qua aspects which are not forming the subject matter of that dispute, the same cannot be read to amount to grant of rellef/benefits, contrary to the terms of the Scheme, and that too, in the absence of any specific directions.

22. It is, thus, abundantly clear that nothing more would be given than what is stated in the scheme, and for that matter, nothing less. If the employees avail of the benefit of such a scheme with their eyes open, they cannot look here and there, under different schemes, to see what other benefits can be achieved by them, by seeking to take advantage of the more beneficial schemes, while simultaneously enjoying the more beneficial aspects of the SVRS-2004 Scheme."

23. In the present case, VRS-2008 has received consideration right till the Supreme Court and attained finality on the issue of benefits and Incentives sought to be claimed beyond the Scheme, in P.P. Vaidyal case. Interestingly, some of the respondents, apparently, are common between that case and the present case. Thus, not having succeeded on one aspect, another aspect is now sought to be agitated.

24. We may usefully refer to the judgment in A.K. Bindal v. Union of India, which set forth the very rationale of introducing a scheme for voluntary retirement, l.e., to reduce surplus staff and to bring in financial efficiency. It is in this context that it is referred to as the 'Golden dshake'. Ex gratia amounts are paid, not for doing any work or rendering any service, but in lieu of employees leaving services of the company and foregoing any further claims or rights in the same. It is optional, not compulsory. It is a take it or leave it situation. Thus, anyone availing of a VRS does so with his eyes wide open. On having availed of the benefits under the scheme, if there are future changes, which may give any of the monetary benefits, the same cannot be read into the scheme. This would defeat the very purpose of having a VRS, i.e., to bring in financial efficiency, as it would not be possible that despite having paid the amounts, the organization can be lumped with further financial liability arising from re -thoughts by such persons, who have already availed of the VRS. The VRS cannot be frustrated in this manner."

It has been similarly held by the Supreme Court in the case of National Insurance Special Voluntary Retired/ Retired Employees Association and Anr. vs. United India Insurance Company Ltd. And Anr. (2018) 18 SCC 186. Para no.19 of the which reads as under:-

"19. We have, thus, no hesitation in coming to the conclusion that statutory or contractual, such voluntary retirement schemes as the SVRS-2004 Scheme have to be strictly adhered to, and the very objective of having such schemes would be defeated, if parts of other schemes are sought to be imported into such voluntary retirement schemes. What is offered by the employer is a package as contained in the schemes of voluntary retirement, and that alone would be admissible."

We may also refer to another decision of the Supreme Court in Manojbhai N. Shah and ors. vs. Union of India and ors. (2015) 4 SCC 482, wherein the question which fell for consideration was as to whether the employees who had opted for voluntary retirement under the scheme were entitled to get the benefit of additional pension on the basis of revised salary in pursuance to the Notification which was applicable in the said case or not. In this regard, the submissions made by learned counsel for the parties were noticed in para no.20, 21, 22, 23, 24, 25 and 26 and thereafter, it was held that employees who had taken the benefit under the scheme and had already retired would not be entitled to additional pension due to retrospective increase in pay in pursuance of the Notification dated 21.12.2005. They would be entitled only to revision of ex-gratia amount upon retrospective increase in the salary. This latter part was on account of a clear stipulation in the Notification which is quoted in para no.13 of the said judgment that in case, wage revision is effected from a date prior to the date of this notification in the Official Gazette, the benefit of revised pay for the purpose of payment of ex gratia will be allowed. According to learned counsel for the appellant, in the case at hand, there is no such provision. However, it is a moot point as to whether assuming for a moment that the enhanced dearness allowance would not be available to the respondents retrospectively whether they would be entitled to the enhancement of the ex gratia amount under the Voluntary Retirement Scheme which they have received or for that matter whether they would not be entitled for the same merely because there is no provision in the scheme at hand in this regard. This aspect of the matter has also not been considered by the writ court.

We have referred to the aforesaid decision to drive home the law on the subject that merely because there is revision of pay or dearness allowance subsequent to voluntary retirement, albeit, retrospectively one who has voluntary retired and has accepted a Golden Handshake in the form of amount payable under such scheme including ex-gratia amount which he would not have got had he continued in service, would not be entitled to anything extra than what has already been received by him under this voluntary retirement scheme as per the said decisions. We may quote para no.28, 29, 30, 31 , 32, 33 of the said decision.

"28. There is no doubt that the Scheme had been framed by the employers to see that their expenditure in long term is decreased by making one-time payment of additional amount to the employees opting for retirement under the Scheme. Strength of the staff was going to be reduced substantially due to voluntary retirement of several employees and the reduction in the staff was to result in reduction in the burden of salary and establishment expenditure. With the aforestated intention, which had been clearly revealed in the Scheme, the employers had floated the Scheme and several employees of the employers had taken due advantage of the Scheme by opting under the Scheme and by taking not only ex gratia payment of salary but also additional pension, which they would not have received otherwise. It is not in dispute that the employees opting for retirement under the Scheme were to get benefit of additional five years of service while calculating the pension. As stated hereinabove, the said benefit was substantial and the said benefit along with benefit of ex gratia payment, tempted number of employees who opted under the Scheme and retired happily after getting all retiral benefits.

29. Normally, retrospective rise in salary is given to those who are in service at the relevant time or who had retired in normal circumstances. The employees who had opted under the Scheme had not retired as per the normal conditions of service but had retired under the Scheme upon taking some special additional benefits.

30. It is also pertinent to consider Clause 5(2) of the Scheme, which has been reproduced hereinabove. According to the said clause, ex gratia amount was to be paid to the employees concerned on the date of his/her being relieved and it was clarified that in case of wage revision effected from a date prior to the date on which the said Scheme had been notified in the Official Gazette, the benefit of revised pay for the purpose of payment of ex gratia would be allowed. Meaning thereby, the employees who had opted under the Scheme and retired from service were entitled only to revision of ex gratia amount upon retrospective increase in the salary. Intention of the employers. is clearly revealed from Clause 5(2) of the Scheme. The intention was to give. benefit only in relation to ex gratia amount and not in relation to the pension. Had the intention been to give benefit of additional pension also, the said fact would have been incorporated in the aforesaid clause. In normal circumstances when an employee retires from service, his relationship with a the employer comes to an end. It is also a well-settled legal position that after retirement, normally no disciplinary action can be initiated against the employee concerned, Similarly, the retired employee would not have any right of redetermination of his pension but only in cases where salary is revised with retrospective effect, the retired employee gets the benefit of additional pension and that too in certain cases.

31. In the instant case, it is crystal clear that the employees had already opted under the Scheme-under a specially made scheme, which was framed only with an intention to reduce future expenditure of the employers. If all these benefits are given to the persons who had already opted under the Scheme and had retired, the real purpose with which the Scheme had been framed would be frustrated.

32. We do not agree with the submission made on behalf of the employees that action of the employers in not giving pay rise to the employees in pursuance of the notification is discriminatory in nature. The employees who retired under the Scheme form a separate class of employees who were given many benefits, which are not given to the employees retiring in normal course. If they all form a separate class, by no stretch of imagination can it be said that all those who retired under the Scheme and those who retired in normal course, are similarly situated. Thus, in our opinion, there is no violation of Article 14 of the Constitution of India in the instant case.

33. Similarly, there is no violation of the principle of equal pay for equal work. True, that those who retired under the Scheme did the same work which was being done by those who retired in normal course, but one cannot forget the fact that those who retired under the Scheme got substantially higher retirement benefits. In the circumstances, we do not accept the said submission also."

We may also take note of the fact that as regards reliance placed by Sri Up Kaushal Kumar Sharma in his case decided by a Co-ordinate Bench as already referred hereinabove, upon a decision of the Karnataka High Court in the case of ITI Limited and etc. Vs. ITI Ex./ Vr. Employees and Etc (2002 LAB I.C.1036), the said decision, though, it was not relied specifically by the Co-ordinate Bench in his case, was set aside by the Supreme Court of India vide a decision reported in (2010) 12 SCC 347 ITI Limited and etc. Vs. ITI EX/ VR Employees/ Officers Welfare Association and Ors.

The law as discussed hereinabove has also not been considered by the writ court.

During the course of argument, we were taken through Regulation no.43 of the relevant Regulations applicable to the employees of the corporation according to which the allowances payable were to be determined by the Board or by the Managing Director if such power was delegated to him by the Board. The appellants sought to bring on record a Resolution of the Board allegedly delegating such power in favour of the Managing Director. This Resolution has been placed before us along with the supplementary affidavit on 27.09.2021. We have perused the said Resolution, especially, Sl. no.5 and 18 thereof which were relied by learned counsel for the appellant. Sl. no.5 relates to fixation of pay. We asked learned counsel for the appellant as to whether under the service rules or under the scheme of the service rules, pay includes allowances such as dearness allowance, he could not point out any such provision before us. As regards Sl. no.18 which relates to sanction of recurring revenue expenditure, we are not convinced that entitlement of employees to dearness allowance would be included in it per se as this heading would be attracted only after initial decision is taken by the competent authority as regards entitlement of employees to enhanced dearness allowance. However, as already stated earlier, the Managing Director in his order has referred to two Resolutions of the Board of Directors, one dated 24.09.2010 and the other dated 24.03.2011 which are not on record. Therefore, it is not very clear as to whether the orders issued by the Managing Director are merely in compliance of any decision taken by the Board of Directors i.e. so far as they decline the benefit of enhanced dearness allowance to the respondents herein or it is an independent decision taken by the Managing Director himself without any such decision of the Board, thereby dis-entitling the respondents herein from such benefits. But this aspect of the matter as to whether the Managing Director had competence in this regard and whether the decision was taken at the competent level or not has also not been considered by the writ court. It is also a moot point as to whether, assuming that the Managing Director independently took such a decision which he was not authorized to take would make any difference in the matter if, in view of the law discussed hereinabove, the respondents were otherwise not entitled to the said benefit, but as already stated these aspects have not been considered by the writ court. These aspects would have to be considered by the writ court to the extent required in the light of what has been discussed in this judgment.

Now, there is another aspect of the matter as pointed out by Sri V.K. Srivastava, learned counsel for the respondents that subsequent to retirement of the respondents herein there were other voluntary retirements of employees of the appellant-Corporation in 2012 to whom the benefit of enhanced dearness allowance with retrospective effect was extended in 2013. The respondents have brought on record certain documents but we find that this aspect of the matter has also not been considered by the writ court. Learned counsel for the appellant submits that the scheme under which the respondents herein retired and the scheme under which other persons retired subsequently in respect to whom it is said that they have been given the same benefit was very different. While in the first V.R.S. was brought in pursuance to disinvestment exercise wherein certain mills were to be sold out to certain purchasers and the employees had an option either to continue with the purchasers or to opt for voluntary retirement. The respondents herein opted for voluntary retirement. He says that the subsequent scheme was for reducing the expenditure. As the writ court has not considered this aspect of the matter, therefore, we decline to record any conclusive opinion on this count as to whether the respondents have been discriminated or not subject of course to the law on the subject discussed hereinabove.

Sri V.K. Srivastava, learned counsel for the respondents informed that retirees of 2012 who were given the enhanced dearness allowance retrospectively in 2013, were also initially declined the said benefit but the said Managing Director by his orders granted the same. Therefore, it is matter to be seen as to how far the Managing Director has competence in this regard, if it is so. Counsel for the appellant says that there was a resolution of the Board in this regard.

In view of the above discussions, as the writ court has decided the writ petitions only on the basis of the decision in Up Kaushal Kumar Sharma (supra) without considering the law on the subject as discussed hereinabove as also relevant factual aspects pointed out hereinabove, especially, in view of the fact that at the time when Up Kaushal Kumar Sharma retired, there was a Resolution of the Board of Directors for automatic enhancement of dearness allowance to employees of the corporation consequent to any such enhancement in respect of the State Government employees, whereas in this case, the said Resolution was not applicable because of Government Order dated 11.09.2009, and also as the Special Leave Petition against the judgment in Up Kaushal Kumar Sharma, after being converted into civil appeal, was dismissed with the observation that the question of law is left open, which we have now clarified, therefore, for all these reasons the impugned judgment can't be sustained. We quash the judgment of the writ court. The writ petitions shall now be restored for hearing afresh in the light of this judgment. We request learned Single Judge to dispose of the writ petitions at the earliest say within two months. The writ petition shall be posted before the writ court on 10.11.2021 amongst the first ten cases of the day.

The appeals are allowed in part.

Order Date :- 06.10.2021

Shanu/-