Bombay High Court
The Member Secretary, ... vs Dada Tukaramji Vaidya on 14 March, 2022
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 930 OF 2021
The Member Secretary, Maharashtra Jeevan -- Petitioners
Pradhikaran and others
Vs.
Dada Tukaramji Vaidya -- Respondent
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. D.M. Kakani, Advocate for Petitioners
Mr. M.R. Rajgure, Advocate for Respondent
CORAM : MANISH PITALE, J.
DATE : 14 MARCH 2022
By this Writ Petition, the petitioners have challenged
judgment and order dated 09/01/2020, passed by the Industrial
Court, Nagpur, whereby a complaint filed by the respondent was
partly allowed and certain directions were issued against the
petitioners.
2. The grievance of the sole respondent before the
Industrial Court was that the petitioners had delayed the payment
of pension to him while treating him as having retired from the
post of Store Keeper. It was claimed that there were certain
recoveries also contemplated against the respondent for alleged
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additional payments / increments given to the respondent by
treating him as promoted to the post of Store Keeper.
3. The case of the petitioners was that although the
respondent was promoted to the post of Store Keeper, he had not
cleared the professional examination, which was mandatory. He
could not have been exempted from appearing for the professional
examination and that he ought not to have been promoted from
the post of Assistant Store Keeper to the post of Store Keeper. It
was submitted that in this backdrop, the processing of pension
papers was being undertaken and this led to payment of
provisional pension to the respondent.
4. The Industrial Court took into consideration the oral
and documentary evidence on record and found that despite the
contentions raised on behalf of the petitioners, it was clear that no
recoveries could be made for alleged additional payments given to
the respondent. It was also found that since the respondent was not
at fault, there was no question of the pension being paid to the
respondent for any post other than the post of Store Keeper, as the
respondent had retired from the said post. Accordingly, the
complaint was partly allowed and the petitioners were directed to
fix the pension of the respondent on the last pay drawn on the post
of Store Keeper and a further direction was given to release the
arrears of the pension and gratuity within 60 days, failing which
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the petitioners were directed to pay interest @ 8% p.a., till actual
payment along with costs of Rs.10,000/-.
5. When the petition was called out for hearing, Mr.
Kakani, learned counsel for the petitioners submitted that the
petitioners were raising grievance only in respect of Clause 6 of the
impugned order, which directs payment of interest @ 8% p.a. and
costs of Rs.10,000/-. On instructions, Mr. Kakani, learned counsel
for the petitioners submitted that the petitioners were not raising
any grievance as regards the other clauses of the operative portion
of the impugned order.
6. On the other hand, Mr. M.R. Rajgure, learned counsel
for the respondent submitted that the direction to pay interest and
to pay costs was justified because the respondent stood retired as
far back as in the year 2010, whereupon he was paid only a paltry
provisional pension and that justice was ultimately done by the
Industrial Court by the impugned order and any further delay
ought to invite payment of interest and costs as directed by the
Industrial Court.
7. In order to examine the rival contentions of the parties,
it would be appropriate to refer to the operative portion of the
impugned order. The same reads as follows :
"1] The Complaint is partly allowed.
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have committed unfair labour practice under Items 9
& 10 of Schedule IV of MRTU & PULP Act.
3] The Complaint is dismissed against the
Respondent No.4.
4] The Respondent Nos. 1 to 3 are directed to
desist from committing such unfair labour practice.
5] The Respondent Nos. 1 to 3 are directed to fix
the pay as lastly drawn by the Complainant for
calculation of his pension without making any
deduction of increments already granted to him and
to start the pension within 60 days.
6] The Respondent Nos. 1 to 3 are further
directed to release the arrears of pension and gratuity
within 60 days. On failure to fix the pension and
release of arrears as above within 60 days, the
Respondent Nos. 1 to 3 shall pay interest at the rate
of 8% per annum on the said amount till actual
payment thereon along with cost of Rs.10,000/-."
8. As noted above, the petitioners have not raised
grievance in respect of Clauses 1 to 5 of the above quoted order,
but they are aggrieved by the direction given in Clause 6 of the said
order. While raising grievance regarding the said clause, it is also
brought to the notice of this Court that although the arrears of
pension and gratuity were to be released within 60 days from the
date of the order, the process of actual disbursement did take some
time because of the intervening circumstances created by the
Covid-19 pandemic and the consequent lock down.
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9. Perusal of impugned order and the judgments that
were placed before the Industrial Court would show that in similar
cases, the Division Bench judgments of this Court have held that
pension should be fixed by ignoring increments granted to
similarly situated employees, who had not passed the professional
examination and yet, they were promoted as Store Keeper.
10. In the present case, there is no dispute about the fact
that the respondent has not cleared the professional examination
and yet he was promoted as Store Keeper. The judgments placed
before the Industrial Court, particularly judgment in the case of
Mohan R. Bobde Vs. State and Ors. (Judgment and order dated
10/06/2009, passed in Writ Petition No. 2163/2009), show that
exemption from clearing the professional examination could not
have been granted. Despite the aforesaid position, the petitioners
have indeed issued gratuity payment order and commutation
payment order, both dated 27/10/2020, in favour of the
respondent by treating him as retired from the post of Store keeper.
The calculations have been made on the basis of the last pay drawn
and accordingly, the pension has been calculated and the difference
in pension is also paid.
11. In these circumstances, this Court is of the opinion that
the petitioners have indeed complied with the direction of the
Industrial Court. Although the order of Industrial Court dated
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09/01/2020, stipulated that disbursal of the arrears of pension and
gratuity and compliance of other directions ought to be made
within 60 days, failing which the petitioners would be liable to pay
interest and costs, considering the fact that peculiar circumstances
was created by Covid-19 pandemic, this Court is of the opinion
that it would be burdensome for the Petitioners to pay interest and
costs, despite the fact that they had indeed complied with the order
passed by the Industrial Court. The delay is sufficiently explained
on behalf of the petitioners in view of the peculiar facts and
circumstances. This Court is also conscious of the fact that the
position of law that can be interpreted from the judgments placed
before the Industrial Court on behalf of the petitioners may have
the effect of grant of reduced pension to the respondent. Yet, the
petitioners have proceeded to grant relief to the respondent by
treating him as having retired from the post of Store Keeper and
the pension payable to the respondent along with the arrears has
been calculated on the basis of last pay drawn by the respondent on
the post of Store Keeper.
12. Considering all these circumstances, this Court is of
the opinion that Clause 6 of the impugned order deserves to be set
aside, particularly in the backdrop that on 27/10/2020, the
petitioners have admittedly granted relief to the respondent in
terms of Clauses 1 to 5 of the impugned order. It is held that the
petitioners will not be liable to pay interest @ 8% p.a. and costs of
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Rs.10,000/-, as directed in Clause 6 of the order. Needless to say,
Clauses 1 to 5 of the impugned order are upheld.
13. The Writ Petition stands disposed of.
JUDGE
Digitally signed by:MILIND
P DESHPANDE
Signing Date:15.03.2022
18:02
MP Deshpande
