Bombay High Court
Mahatma Phule Krishi Vidyapeeth ... vs Ahmed Zilla Shet Mazoor Union And ... on 25 February, 2016
Bench: R.V. Ghuge
WP 4883/09 & others
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.4883/2009
Mahatma Phule Krishi Vidyapeeth
Rahuri, Through its Registrar,
Shri. Jagannath S/o. Vishnu Patil,
Age. 51 years, Occu. Service,
R/o. University Campus, Rahuri,
Tq. Rahuri, Dist. Ahmednagar.
...Petitioner...
Versus
1 Ahmednagar Zilla Shet Mazoor Union,
Trade Union Centre,
Tahesil Kacheri Road, Ward No.1,
Shrirampur, Ahmednagar.
Through its General Secretary.
2 Shri Haribhau S/o Muktaji Bhagat,
Age.77 years, Occu.Retired Employee,
R/o. Babhulgaon, Post. Mulanagar,
Tq. Rahuri, Dist. Ahmednagar.
3 The State of Maharashtra.
...Respondents...
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WITH
WRIT PETITION NO.5373 OF 2009
Mahatma Phule Krishi Vidyapeeth
Rahuri, Through its Registrar,
Shri. Jagannath S/o. Vishnu Patil,
Age. 51 years, Occu. Service,
R/o. University Campus, Rahuri,
Tq. Rahuri, Dist. Ahmednagar.
...Petitioner...
Versus
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1 Ahmednagar Zilla Shet Mazoor Union,
Trade Union Centre,
Tahesil Kacheri Road, Ward No.1,
Shrirampur, Ahmednagar.
Through its General Secretary.
2 Sau. Sitabai Ramchandra Salve,
Age.71 years, Occu.Retired Employee,
R/o. Sade, Post. Sade,
Tq. Rahuri, Dist. Ahmednagar.
3 The State of Maharashtra.
...Respondents...
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ig WITH
WRIT PETITION NO.5590 OF 2009
Mahatma Phule Krishi Vidyapeeth
Rahuri, Through its Registrar,
Shri. Jagannath S/o. Vishnu Patil,
Age. 51 years, Occu. Service,
R/o. University Campus, Rahuri,
Tq. Rahuri, Dist. Ahmednagar.
...Petitioner...
Versus
1 Ahmednagar Zilla Shet Mazoor Union,
Trade Union Centre,
Tahesil Kacheri Road, Ward No.1,
Shrirampur, Ahmednagar.
Through its General Secretary.
2 Shri Raghunath Hanumanta Pawar,
Age.69 years, Occu. Retired Employee,
R/o. Khandambe, Post. Khadambe,
Tq. Rahuri, Dist. Ahmednagar.
3 The State of Maharashtra.
...Respondents...
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WITH
WRIT PETITION NO.5593 OF 2009
Mahatma Phule Krishi Vidyapeeth
Rahuri, Through its Registrar,
Shri. Jagannath S/o. Vishnu Patil,
Age. 51 years, Occu. Service,
R/o. University Campus, Rahuri,
Tq. Rahuri, Dist. Ahmednagar.
...Petitioner...
Versus
1 Ahmednagar Zilla Shet Mazoor Union,
Trade Union Centre,
ig Tahesil Kacheri Road, Ward No.1,
Shrirampur, Ahmednagar.
Through its General Secretary.
2 Shri Murlidhar S/o Daulat Vairagal,
Age.72 years, Occu.Retired Employee,
R/o. Sade, Post. Sade,
Tq. Rahuri, Dist. Ahmednagar.
3 The State of Maharashtra.
...Respondents...
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WITH
WRIT PETITION NO.5594 OF 2009
Mahatma Phule Krishi Vidyapeeth
Rahuri, Through its Registrar,
Shri. Jagannath S/o. Vishnu Patil,
Age. 51 years, Occu. Service,
R/o. University Campus, Rahuri,
Tq. Rahuri, Dist. Ahmednagar.
...Petitioner...
Versus
1 Ahmednagar Zilla Shet Mazoor Union,
Trade Union Centre,
Tahesil Kacheri Road, Ward No.1,
Shrirampur, Ahmednagar.
Through its General Secretary.
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2 Shri Manjabapu Bhagaji Kasabe,
Age.66 years, Occu. Retired Employee,
R/o. Babhulgaon, Post. Mulanagar,
Tq. Rahuri, Dist. Ahmednagar.
3 The State of Maharashtra.
...Respondents...
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WITH
WRIT PETITION NO.5597 OF 2009
ig Mahatma Phule Krishi Vidyapeeth
Rahuri, Through its Registrar,
Shri. Jagannath S/o. Vishnu Patil,
Age. 51 years, Occu. Service,
R/o. University Campus, Rahuri,
Tq. Rahuri, Dist. Ahmednagar.
...Petitioner...
Versus
1 Ahmednagar Zilla Shet Mazoor Union,
Trade Union Centre,
Tahesil Kacheri Road, Ward No.1,
Shrirampur, Ahmednagar.
Through its General Secretary.
2 Sau. Saraswati Asaram Chitalkar,
Age.76 years, Occu.Retired Employee,
R/o. Babhulgaon, Post. Mulanagar,
Tq. Rahuri, Dist. Ahmednagar.
3 The State of Maharashtra.
...Respondents...
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WITH
WRIT PETITION NO.5599 OF 2009
Mahatma Phule Krishi Vidyapeeth
Rahuri, Through its Registrar,
Shri. Jagannath S/o. Vishnu Patil,
Age. 51 years, Occu. Service,
R/o. University Campus, Rahuri,
Tq. Rahuri, Dist. Ahmednagar.
...Petitioner...
Versus
1 Ahmednagar Zilla Shet Mazoor Union,
Trade Union Centre,
ig Tahesil Kacheri Road, Ward No.1,
Shrirampur, Ahmednagar.
Through its General Secretary.
2 Sau. Sharifa Abbas Shaikh,
Age.70 years, Occu.Retired Employee,
R/o. Pimpri Avaghad, Post. Pimpari
Avaghad, Tq. Rahuri, Dist. Ahmednagar.
3
The State of Maharashtra.
...Respondents...
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WITH
WRIT PETITION NO.5600 OF 2009
Mahatma Phule Krishi Vidyapeeth
Rahuri, Through its Registrar,
Shri. Jagannath S/o. Vishnu Patil,
Age. 51 years, Occu. Service,
R/o. University Campus, Rahuri,
Tq. Rahuri, Dist. Ahmednagar.
...Petitioner...
Versus
1 Ahmednagar Zilla Shet Mazoor Union,
Trade Union Centre,
Tahesil Kacheri Road, Ward No.1,
Shrirampur, Ahmednagar.
Through its General Secretary.
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2 Sau. Shahabai Sarangadhar Tarwade,
Age.71 years, Occu.Retired Employee,
R/o. Khadambe, Post. Khadambe,
Tq. Rahuri, Dist. Ahmednagar.
3
The State of Maharashtra.
...Respondents...
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WITH
WRIT PETITION NO.5601 OF 2009
Mahatma Phule Krishi Vidyapeeth
Rahuri, Through its Registrar,
Shri. Jagannath S/o. Vishnu Patil,
Age. 51 years, Occu. Service,
R/o. University Campus, Rahuri,
Tq. Rahuri, Dist. Ahmednagar.
...Petitioner...
Versus
1 Ahmednagar Zilla Shet Mazoor Union,
Trade Union Centre,
Tahesil Kacheri Road, Ward No.1,
Shrirampur, Ahmednagar.
Through its General Secretary.
2 Sau. Sarubai Sadashiv Umap,
Age.67 years, Occu.Retired Employee,
R/o. Pimpri Avaghad, Post. Pimpri
Avaghad, Tq. Rahuri, Dist. Ahmednagar.
3
The State of Maharashtra.
...Respondents...
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WITH
WRIT PETITION NO.5602 OF 2009
Mahatma Phule Krishi Vidyapeeth
Rahuri, Through its Registrar,
Shri. Jagannath S/o. Vishnu Patil,
Age. 51 years, Occu. Service,
R/o. University Campus, Rahuri,
Tq. Rahuri, Dist. Ahmednagar.
...Petitioner...
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Versus
1 Ahmednagar Zilla Shet Mazoor Union,
Trade Union Centre,
Tahesil Kacheri Road, Ward No.1,
Shrirampur, Ahmednagar.
Through its General Secretary.
2 Sau. Narmadabai Gangaram Waghmare,
Age.69 years, Occu.Retired Employee,
R/o. Babhulgaon, Post. Mulanagar,
Tq. Rahuri, Dist. Ahmednagar.
3
The State of Maharashtra.
ig ...Respondents...
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WITH
WRIT PETITION NO.5603 OF 2009
Mahatma Phule Krishi Vidyapeeth
Rahuri, Through its Registrar,
Shri. Jagannath S/o. Vishnu Patil,
Age. 51 years, Occu. Service,
R/o. University Campus, Rahuri,
Tq. Rahuri, Dist. Ahmednagar.
...Petitioner...
Versus
1 Ahmednagar Zilla Shet Mazoor Union,
Trade Union Centre,
Tahesil Kacheri Road, Ward No.1,
Shrirampur, Ahmednagar.
Through its General Secretary.
2 Sau. Kausalya Haribhau Khalekar,
Age.68 years, Occu.Retired Employee,
R/o. Khadambe, Post. Khadambe,
Tq. Rahuri, Dist. Ahmednagar.
3 The State of Maharashtra.
...Respondents...
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WITH
WRIT PETITION NO.5604 OF 2009
Mahatma Phule Krishi Vidyapeeth
Rahuri, Through its Registrar,
Shri. Jagannath S/o. Vishnu Patil,
Age. 51 years, Occu. Service,
R/o. University Campus, Rahuri,
Tq. Rahuri, Dist. Ahmednagar.
...Petitioner...
Versus
1 Ahmednagar Zilla Shet Mazoor Union,
Trade Union Centre,
ig Tahesil Kacheri Road, Ward No.1,
Shrirampur, Ahmednagar.
Through its General Secretary.
2 Shri Bapu S/o. Ganpat Kachole,
Age.72 years, Occu.Retired Employee,
R/o. Khadambe, Post. Khadambe,
Tq. Rahuri, Dist. Ahmednagar.
3
The State of Maharashtra.
...Respondents...
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WITH
WRIT PETITION NO.5605 OF 2009
Mahatma Phule Krishi Vidyapeeth
Rahuri, Through its Registrar,
Shri. Jagannath S/o. Vishnu Patil,
Age. 51 years, Occu. Service,
R/o. University Campus, Rahuri,
Tq. Rahuri, Dist. Ahmednagar.
...Petitioner...
Versus
1 Ahmednagar Zilla Shet Mazoor Union,
Trade Union Centre,
Tahesil Kacheri Road, Ward No.1,
Shrirampur, Ahmednagar.
Through its General Secretary.
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2 Shri Kisan S/o Rangnath Khedekar,
Age.72 years, Occu.Retired Employee,
R/o. Dhamori, Post. Dhamori,
Tq. Rahuri, Dist. Ahmednagar.
3
The State of Maharashtra.
...Respondents...
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WITH
WRIT PETITION NO.5607 OF 2009
Mahatma Phule Krishi Vidyapeeth
Rahuri, Through its Registrar,
Shri. Jagannath S/o. Vishnu Patil,
Age. 51 years, Occu. Service,
R/o. University Campus, Rahuri,
Tq. Rahuri, Dist. Ahmednagar.
...Petitioner...
Versus
1 Ahmednagar Zilla Shet Mazoor Union,
Trade Union Centre,
Tahesil Kacheri Road, Ward No.1,
Shrirampur, Ahmednagar.
Through its General Secretary.
2 Sau. Taibai Parsharam Waghmare,,
Age.67 years, Occu.Retired Employee,
R/o. Babhulgaon, Post. Mulanagar,
Tq. Rahuri, Dist. Ahmednagar.
3
The State of Maharashtra.
...Respondents...
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WITH
WRIT PETITION NO.5608 OF 2009
Mahatma Phule Krishi Vidyapeeth
Rahuri, Through its Registrar,
Shri. Jagannath S/o. Vishnu Patil,
Age. 51 years, Occu. Service,
R/o. University Campus, Rahuri,
Tq. Rahuri, Dist. Ahmednagar.
...Petitioner...
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Versus
1 Ahmednagar Zilla Shet Mazoor Union,
Trade Union Centre,
Tahesil Kacheri Road, Ward No.1,
Shrirampur, Ahmednagar.
Through its General Secretary.
2 Sau. Draupadabai Nemaji Gaike,
Age.68 years, Occu.Retired Employee,
R/o. Khadambe, Post. Khadambe,
Tq. Rahuri, Dist. Ahmednagar.
3
The State of Maharashtra.
ig ...Respondents...
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WITH
WRIT PETITION NO.5609 OF 2009
Mahatma Phule Krishi Vidyapeeth
Rahuri, Through its Registrar,
Shri. Jagannath S/o. Vishnu Patil,
Age. 51 years, Occu. Service,
R/o. University Campus, Rahuri,
Tq. Rahuri, Dist. Ahmednagar.
...Petitioner...
Versus
1 Ahmednagar Zilla Shet Mazoor Union,
Trade Union Centre,
Tahesil Kacheri Road, Ward No.1,
Shrirampur, Ahmednagar.
Through its General Secretary.
2 Shri Uttam S/o Jairam Pawar,
Age.68 years, Occu.Retired Employee,
R/o. Khadambe, Post. Khadambe,
Tq. Rahuri, Dist. Ahmednagar.
3 The State of Maharashtra.
...Respondents...
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WITH
WRIT PETITION NO.5611 OF 2009
Mahatma Phule Krishi Vidyapeeth
Rahuri, Through its Registrar,
Shri. Jagannath S/o. Vishnu Patil,
Age. 51 years, Occu. Service,
R/o. University Campus, Rahuri,
Tq. Rahuri, Dist. Ahmednagar.
...Petitioner...
Versus
1 Ahmednagar Zilla Shet Mazoor Union,
Trade Union Centre,
ig Tahesil Kacheri Road, Ward No.1,
Shrirampur, Ahmednagar.
Through its General Secretary.
2 Sau. Kausalyabai Sahadu Jagdhane,
Age.67 years, Occu.Retired Employee,
R/o. Pimpri Avaghad, Post. Pimpri
Avaghad, Tq. Rahuri, Dist. Ahmednagar.
3 The State of Maharashtra.
...Respondents...
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WITH
WRIT PETITION NO.5612 OF 2009
Mahatma Phule Krishi Vidyapeeth
Rahuri, Through its Registrar,
Shri. Jagannath S/o. Vishnu Patil,
Age. 51 years, Occu. Service,
R/o. University Campus, Rahuri,
Tq. Rahuri, Dist. Ahmednagar.
...Petitioner...
Versus
1 Ahmednagar Zilla Shet Mazoor Union,
Trade Union Centre,
Tahesil Kacheri Road, Ward No.1,
Shrirampur, Ahmednagar.
Through its General Secretary.
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2 Sau. Janabai Jagannath Pawar,
Age.68 years, Occu.Retired Employee,
R/o. Khadambe, Post. Khadambe,
Tq. Rahuri, Dist. Ahmednagar.
3
The State of Maharashtra.
...Respondents...
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WITH
WRIT PETITION NO.5614 OF 2009
Mahatma Phule Krishi Vidyapeeth
Rahuri, Through its Registrar,
Shri. Jagannath S/o. Vishnu Patil,
Age. 51 years, Occu. Service,
R/o. University Campus, Rahuri,
Tq. Rahuri, Dist. Ahmednagar.
...Petitioner...
Versus
1 Ahmednagar Zilla Shet Mazoor Union,
Trade Union Centre,
Tahesil Kacheri Road, Ward No.1,
Shrirampur, Ahmednagar.
Through its General Secretary.
2 Shri Savleram S/o Laxman Gadhe,
Age.68 years, Occu.Retired Employee,
R/o. Babhulgaon, Post. Mulanagar.
Tq. Rahuri, Dist. Ahmednagar.
3
The State of Maharashtra.
...Respondents...
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.....
Shri P.L. Shahane, Advocate for petitioners.
Shri S.T. Shelke, Advocate for respondent Nos.1 & 2.
Shri D.R. Korde, AGP for respondent no.3.
.....
CORAM: RAVINDRA V. GHUGE, J.
DATE: 25.02.2016
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ORAL JUDGMENT :
1] All the above petitions have been admitted by
this Court on 8.3.2011.
2] The order passed by this Court on 8.3.2011 reads
as under:-
"1. Heard learned Counsel for the parties.
Learned Counsel for the petitioner submits that
the respondent Union has no authority to file
the complaint on behalf of retired employees. He
further submits that there is no relationship of
employee and employer as such between the
retired employees and the petitioner herein. He
further submits that the complaint was filed in
2004 making grievance about the pension which
according to the complainant was due to be paid
in 1996. Therefore, the Counsel for the
petitioner would submit that the complaint filed
by the respondent Union was beyond the period of
limitation. Therefore, the Counsel would submit
that these writ petitions, relying on the
pleadings in the petitions and grounds raised
therein, may be allowed.
2. On the other hand, the learned Counsel
appearing for the respondents invited my
attention to the relevant rules and in
particular Rule 129B of the Maharashtra Civil
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Services (Pension) Rules, 1982 and submits that
once the petitioners have granted pension and
taken decision to pay pension, in that case
interest should necessarily follow though
members of the respondent Union were entitled to
receive pension in the year 1996. However, the
pension is paid in 2006 with retrospective
effect. However, the interest for the relevant
period has not been paid. Therefore, the Counsel
would submit that these petitions may not be
allowed.
3. Upon hearing the Counsel for the petitioner
and the respondents and upon perusal of the
impugned judgment and order passed by the Court
below and more particularly the discussion in
para 12 of the impugned judgment, I am not
inclined to grant any interim relief. The
relevant rule has been considered by the Court
in para 12 of the impugned judgment. Considering
Rule 129B of the Maharashtra Civil Services
(Pension) Rules, 1982, I am not persuaded to
take different view. However, some arguable
questions have been raised by the Counsel for
the petitioner that after retirement whether
relationship of employee and employer exists
between the petitioner and members of the
respondents Union and also filing of the
complaint in 2004 making grievance of nonpayment
of pension from the date of retirement i.e. in
1996.
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4. Rule. Mr. Shelke & A.G.P. Mr. Kale, waive
service of notice for the respective
respondents.
5. Interim relief refused."
3] Since a common issue is involved in all these
matters and considering that the petitioner - Mahatma
Phule Krishi Vidyapeeth is common in all these petitions,
these matters have been taken up together for final
hearing by the consent of the parties.
4] The petitioner - University is aggrieved by the
judgment and order dated 7.11.2008 and similar judgments
delivered by the Industrial Court by which interest at
the rate of 10% on the pension amount has been granted.
5] Shri Shahane, learned Advocate for the
petitioner - University has strenuously criticized the
impugned judgments.
6] Shri Shahane contends that firstly there was no
deliberate delay caused by the petitioner - University.
The University has been engaged in litigation on various
issues for a long time. Since the Maharashtra Civil
Services Rules are applicable, the respondent - employees
could not have approached the Industrial Court invoking
the Maharashtra Recognition of Trade Unions and
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Prevention of Unfair Labour Practices Act, 1971
(hereinafter referred to as 'the 1971 Act').
7] He further submits that the University can
neither create posts nor can the University grant pension
to any employee. It is the State Government, which
exercises its powers under the Maharashtra Civil Services
(Pension) Rules, 1982 (hereinafter referred to as 'the
1982 Rules'). The ultimate responsibility to pay the
pension rests on the shoulders of the State, which has
been impleaded as a respondent in these petitions under
the orders of this Court dated 2.12.2009.
8] Shri Shahane further submits that the issue was
as to whether the respondent - employees, who are the
original complainants alongwith the Union were eligible
for pension or not. This was a matter of litigation.
Whether these employees could be termed as being
permanent employees was also a disputed issue and that
was also subject matter of litigation.
9] He submits that about 182 employees preferred
Complaint (ULP) No.36/1977 before the Industrial Court.
By judgment dated 23.7.1984, the Industrial Court
concluded that those daily wagers who had completed 1000
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days of continuous employment, would be entitled for
permanency / regularization and all benefits incidental
and consequential thereto. The Industrial Court,
therefore, granted these benefits to 107 workers from
1.1.1979. About 44 workers had already retired prior to
the delivering of the judgment dated 23.7.1984.
10] Shri Shahane further submits that the University
did not have sanctioned posts. Supernumerary posts were
created by the State in order to avoid disobedience of
the directions of the Industrial Court. No delay was
caused, much less deliberately either by the University
or the State.
11] He further submits that these respondents had
filed Complaint (ULP) No.37/2004 claiming pensionary
benefits and interest thereon. All of them have retired
in between 1991 to 1993. This complaint was filed before
the Industrial Court on 3.3.2004. By the impugned
judgment dated 7.11.2008 and similar judgments, it was
concluded by the Industrial Court that interest on
pension would be payable to the respondent - employees.
He, therefore, submits that the employees themselves had
slept over their rights. Their complaints were untenable
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since they had approached the Industrial Court after a
span of about 10 to 12 years post retirement.
12] He further submits that another objection raised
before the Industrial Court was as to whether retired
employees can form a Union and file an unfair labour
practice complaint. Similarly, the University had raised
an issue that as the complainants had retired, there was
no employer - employee relationship between the employees
and the University and hence the complaint was untenable.
13] Shri Shahane further contends that a declaration
of unfair labour practice made by the Industrial Court
against the University is equally unsustainable since the
University had no role to play in the denial of pension
or interest thereon. He, therefore, submits that these
petitions be allowed and the impugned judgment of the
Industrial Court be quashed and set aside.
14] Shri Shahane relies upon the judgments of the
Hon'ble Supreme Court and the High Courts as follows :-
[1] Air India Cabin Crew Association v.
Yeshawinee Merchant & others (2003 III CLR 1)
[2] Dharam Chand & others v. Haryana
Agricultural University & others (2004 (100) FLR
8 (SC)
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[3] General Workers Union v. Sangli Municipal
Council, Sangli & others (1984 (48) FLR 411
(Bombay High Court)
[4] Hindustan Lever Ltd. v. Ivth Industrial
Tribunal & others (2007 (113) FLR 1090) (Calcutta
High Court)
15] Shri Shelke, learned Advocate appearing on
behalf of the employees has supported the impugned
judgment.
16]
He submits that this is a classic example of a
University as well as the State Government attempting to
tire out their own employees and making them suffer grave
hardships in their old age post retirement. These
employees have virtually spent their entire life time
working with the petitioner and litigating against the
petitioner. Even for permanency, they were compelled to
file Complaint (ULP) No.36/1977, which was decided in
their favour on 23.7.1984 by the Industrial Court. The
said judgment has attained finality after the litigation
concluded. They were granted benefits of permanency from
1.1.1979.
17] He further submits that Rule 129-B of the 1982
Rules is squarely applicable to this case. Delay in
payment of pension for whatever reasons beyond six months
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attracts interest of 10%.
18] He vehemently denies the contentions of Shri
Shahane that these employees were sleeping over their
rights and were negligent. After they retired in 1991
and thereafter they were not paid pension by the State.
The University had not properly dealt with their cases
and had not forwarded proper instructions and papers to
enable them to earn their pension in their retirement.
The employees agitated on the said issue for a long time
and finally preferred Writ Petition No.4195/2002 before
this Court. The said petition was disposed of by this
Court by order dated 21.4.2003 and the employees were
permitted to approach the Industrial Court.
19] Shri Shelke takes a strong exception to the
submission of Shri Shahane as regards formation of a
Union and maintainability of a complaint. He submits
that after this Court by its order dated 21.4.2003
permitted the employees to approach the Industrial Court,
they had approached the Hon'ble Supreme Court, which
dismissed their Special Leave Petition and upheld the
order of this Court permitting the employees to approach
the Industrial Court.
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20] He submitted that in these two rounds of
litigation before this Court and the Hon'ble Supreme
Court, the University had not pressed its submission that
these employees cannot agitate against the employer since
there was no employer - employee relationship or that a
complaint of unfair labour practice was not maintainable
or that the retired employees could not have formed a
Union. This Court had disposed of the writ petition of
the employees on the ground that they can approach the
Industrial Court. Now the University contends that they
could not have approached the Industrial Court. This is
yet another sign of the University attempting to tire out
its employees.
21] He relies upon Rule 129-B to contend that no
element of discretion is available while granting
interest on pension. If interest is payable, it has to
be at the rate of 10%. He, therefore, prays for the
dismissal of these petitions.
22] Shri Shelke relies upon the judgment of the
Hon'ble Supreme Court in the matter of Dr.Uma Agrawal v.
State of U.P. & another (AIR 1999 SC 1212).
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- 22 -
23] The learned AGP appearing on behalf of the State
relies upon the affidavit in reply commonly filed on
20.9.2010 in Writ Petition No.5373/2009.
24] He relies upon the Government resolution dated
8.3.2006 and submits that indeed the 182 workers were
constantly in litigation in claiming several rights while
in service and post service. They had also filed Writ
Petition No.7198/2004 before this Court claiming pension
and benefits incidental thereto. By communication dated
21.4.2005, the proposal for grant of pension was taken up
by the State for a decision. Eventually, by the
Government resolution dated 8.3.2006, the State
sanctioned the funds for payment of pension to the
respondent - employees.
25] The learned AGP, therefore, submits that neither
has the State acted unfairly, nor has it deliberately
delayed the payment of pension to these employees. He
supports the contentions of Shri Shahane for the
petitioner and prays that these petitions be allowed.
26] I have considered the submissions of the learned
Advocates as have been recorded hereinabove and I have
gone through the petition paper books as well as the
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judgments cited with their assistance.
27] I find it appropriate to deal with the
objections of Shri Shahane at the very outset. Under the
1971 Act, which is applicable within the State of
Maharashtra, Schedules II, III and IV define various
unfair labour practices being committed by the employer
and by the Union / employees. By the judgment of the
Hon'ble Supreme Court in the matter of Vividh Kamgar
Sabha v. Kalyani Steels Ltd. & another (2001) 2 SCC 381
and in the matter of Cipla Ltd. v. Maharashtra General
Kamgar Union (2001) 3 SCC 101), it has been concluded
that a complaint of unfair labour practice will not be
maintained before the Labour Court or the Industrial
Court if the disputed issue as to who is the actual
employer is to be gone into. In the instant case, no
such issue is involved.
28] It is trite law that when certain benefits
statutorily available to employees and which are in
connection with their terms and conditions of service,
are not paid to the employees after severing of employer
- employee relationship or after retirement, there shall
be a notional extension of employer - employee
WP 4883/09 & others
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relationship between the parties if the workers make a
claim for payment of such outstanding benefits invoking
Item 9 of Schedule IV of the 1971 Act.
29] In the instant case, apparently, the issue is
with regard to the services performed by the employees
with the employer. Having failed to grant the service
benefits post retirement, these workers approached this
Court in Writ Petition No.4195/2002. By order dated
21.4.2003, this Court permitted the employees to approach
the Industrial Court. This order was sustained by the
Hon'ble Supreme Court in the Special Leave Petition
preferred by the employees. In these peculiar facts of
the case, the contention of Shri Shahane that the
complaints were untenable, deserves to be rejected.
30] The next issue is as regards whether interest is
payable on pension and in what circumstances. Rule 129-B
of the 1982 Rules reads as under:-
"129-B. Interest on delayed payment of pension -
(1) If the payment of pension has been authorised
after six months from the date when its payment
became due and it is clearly established that the
delay in payment was attributable to
administrative lapse, interest at the rate 10 per
cent per annum in respect of the period beyond six
WP 4883/09 & others
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months shall be paid on the amount of pension :
Provided that, no interest shall be payable if
the delay in payment of pension was attributable
to the failure on the part of the Government
servant to comply with the procedure laid down in
this Chapter :
Provided further that, no interest shall be
payable for the period for which a provisional
pension is sanctioned. In case of Government
servant to whom provisional pension is sanctioned
an interest as provided shall be paid after a
period of six months from the cessation of
provisional pension till the final pension is
authorised.
(2) On an application made by the pensioner the
concerned Administrative Department in Mantralaya
shall consider the request for payment of interest
and where the Department is satisfied that the
delay in the payment of pension was caused on
account of administrative lapse, that Department
shall make a recommendation to the Finance
Department for the payment of interest.
(3) If the recommendation of the Department
made under sub-rule (2), is accepted by the
Finance Department, the Department concerned shall
issue Government sanction for the payment of
interest.
(4) In all cases where the payment of interest
has been authorised with the concurrence of the
Finance Department, the Department concerned shall
WP 4883/09 & others
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fix the responsibility and take disciplinary
action against the Government servant or servants
concerned who are found responsible for the delay
in the payment of pension and recover the amount
of interest required to be paid from the
Government servant, or servants concerned,
including the concerned officer, who are found
responsible for the delay in the payment of
pension.
(5) If as a result of Government's decision
taken subsequent to the retirement of a Government
servant, the amount of pension already paid on his
retirement is enhanced on account; or
(a) grant of pay higher than the pay on which
pension, already paid was determined: or
(b) liberalisation in the provisions of these
rules from the date prior to the date of
retirement of the Government servant concerned, no
interest on the arrears of pension shall be paid."
31] Due to the amendment dated 5.5.1990 with effect
from 1.8.1986 and the amendment dated 1.11.2008 with
effect from 24.4.1995, Rule 129-B (having undergone a
change) post amendment reads as under:-
"129-B. Interest on delayed payment of pension -
(1) Where the payment of pension of family
pension authorised after six months from the date
when its payment became due, an interest at the
WP 4883/09 & others
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rate applicable to General Provident Fund deposits
shall be paid on the amount of pension, in respect
of the period beyond six months;
Provided that, no interest shall be payable if
the delay in payment of pension was attributable
to the failure on the part of the Government
servant to comply with the procedure laid down in
this Chapter :
Provided further that no interest shall be
payable for the period for which a provisional
pension is paid. In case of Government servant to
whom provisional pension is sanctioned an interest
as provided shall be paid after a period of six
months from the cessation of provisional pension
till the final pension is authorised.
(2) Every case of delayed pension or family pension,
as the case may be, shall suo motu, be considered
by the concerned administrative Department, and
where the Department is satisfied that the delay
in the payment of such pension was caused on
account of administrative lapse, that Department
shall sanction payment of interest after obtaining
the admissibility report in this behalf from the
Accountant General (Accounts and Entitlement),
Maharashtra, Mumbai or Nagpur, as the case may be.
The approval of the Finance Department for the
payment of such interest shall not be necessary.
(3) In all cases, where interest has been
authorized on pension or family pension, as the
case may be, due to administrative lapse, the
WP 4883/09 & others
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concerned Administrative Department shall fix the
responsibility and take disciplinary action
against the Government servant or servants
concerned, including the concerned officer, who
are found responsible for the delay in the payment
of such pension and recover the amount of interest
required to be paid from the Government servant or
servants concerned including the concerned officer
who are found responsible for the delay in the
payment of such pension.
(4) If as a result of Government's decision taken
subsequent to the retirement of a Government
servant, the amount of pension already paid on his
retirement is enhanced on account of-
(a) grant of pay higher than the pay on which
pension, already paid was determined: or
(b) liberalisation in the provisions of these
rules from the date prior to the date of
retirement of the Government servant concerned, no
interest on the arrears of pension shall be paid."
32] The phraseology used in Rule 129-B prior to the
amendment reproduced as above indicates that if pension
is paid after six months from the date when it became
payable and due and if it is established that the delay
in payment was attributable to administrative lapses, the
interest at the rate of 10% p.a. in respect of the period
beyond six months is to be paid. No such interest will
WP 4883/09 & others
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be payable if the delay is attributable to the conduct of
the employee.
33] Considering the facts and circumstances, as
recorded above, I have no doubt that there is no delay
caused by the employees with regard to their claim of
pension. The petitioner was aware that Complaint (ULP)
No.36/1977 having been allowed on 23.7.1984 and the
judgment of the Industrial Court having attained
finality, these employees were eligible for permanency
benefits from 1.1.1979. As such, they had fulfilled the
criteria of qualifying service for pension. The State
Government should have acted in promptitude in releasing
their pensionary benefits. Same were not made available
and that led to a struggle by the respondents. They
finally reached this Court, which permitted them to
approach the Industrial Court. Therefore, they filed
Complaint (ULP) No.37/2004 before the Industrial Court.
34] During the pendency of the complaint, the State
came out with a Government resolution dated 8.3.2006,
which has been referred to by the learned AGP in his
submissions. By the said Government resolution, the
employees were granted their pension and the State made
WP 4883/09 & others
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the necessary funds available. This indicates that the
State had in fact gone slow on the rights of the
employees and only after they resorted to litigation
after some agitation that the State Government woke up to
grant the funds for their pension.
35] The learned AGP has also pointed out the
Government resolution dated 21.1.2000 by which the issue
of these 182 employees was considered and posts were
created. Needless to state that despite the judgment of
the Industrial Court dated 23.7.1984, the Government
brought out a Government resolution as late as on
21.1.2000 for sanctioning posts as per the judgment of
the Court so as to ensure that these employees are
absorbed.
36] In the light of the above and considering that
Shri Shelke, learned Advocate has criticized the State
Government saying that this is a classic example of a
model employer acting in a manner unbecoming of such
employer, I find that had the State Government acted with
promptitude, this situation could have been averted and
the issue of payment of interest would not have cropped
up.
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37] Considering the facts of this case, Rule 129-B
as it stood before its amendment, would be applicable.
Rule 129-B leaves no room for exercising discretion by
any authority. The Industrial Court was, therefore, left
with no scope for interpreting Rule 129-B as to whether
10% interest was the maximum that could be granted or
whether anything less than 10% could also be granted.
The Industrial Court has, therefore, followed the rule in
the book and has granted 10% interest.
38] Considering the above, I do not find that the
Industrial Court has committed any error so as to term
the impugned judgments as being perverse or erroneous or
causing grave injustice to the petitioner. No
interference in these judgments is called for to this
extent.
39] Notwithstanding the above, I find some force in
the submissions of Shri Shahane that a declaration of
unfair labour practice could not have been made against
the University for two reasons. Firstly, that despite
the judgment of the Industrial Court referred to above
dated 20.3.1984, the State Government introduced the
Government resolution dated 21.1.2000 for creation of
WP 4883/09 & others
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posts. After the retirement of the respondent -
employees in and around 1991, the State Government
introduced the Government resolution dated 8.3.2006 for
grant of pensionary benefits. The University had no role
to play in this area.
40] I, therefore, find that the petitioner is right
in contending that the Industrial Court in these peculiar
circumstances, could not have held that the petitioner -
University is guilty of unfair labour practice under Item
9 of Schedule IV notwithstanding the fact that reliefs
can be granted to the complainants only after such a
declaration is arrived at. It is in these peculiar
circumstances that the Industrial Court could not have
made this declaration against the petitioner. Ideally,
the complainants should have arrayed the State Government
as the respondent in its complaints, which direction was
finally issued by this Court on 2.12.2009 and thereafter
the State Government was added as a respondent to this
litigation.
41] As such, the impugned judgment of the Industrial
Court to the extent of declaration of unfair labour
practice against the petitioner is set aside. Rest of
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the judgment of the Industrial Court is sustained.
42] Needless to state that since the State
Government is being burdened with interest and which is
being paid from the tax payers' money, it is expected
that the State Government will make necessary arrangement
for the payment of the interest as granted by the
Industrial Court as expeditiously as possible and
preferably within a period of four months from today.
43] These petitions are, therefore, partly allowed
only to the extent of setting aside the declaration of
unfair labour practice. Rule is made partly absolute
accordingly. No order as to costs.
(RAVINDRA V. GHUGE, J.)
ndk/c2521610.doc
