Panchanan Bhattacharya & Ors vs The West Bengal State Electricity ...
2022 Latest Caselaw 7770 Cal

                      IN THE HIGH COURT AT CALCUTTA
                                 Civil Appellate Jurisdiction
                                    APPELLATE SIDE

Present:

The Hon'ble Justice Tapabrata Chakraborty
                 &
The Hon'ble Justice Partha Sarathi Chatterjee



                                         FMA 799 of 2019

                                Panchanan Bhattacharya & Ors.
                                           versus
                           The West Bengal State Electricity Distribution
                                  Company Limited & Ors.


For the Appellants           :       Mr. Swapan Kumar Nandi,
                                     Mr. Sibnarayan Chattopadhyay,
                                     Mr. Debjyoti Ghosh.


For the W.B.S.E.D.C.L.       :       Mr. Sumit Kumar Panja,
                                     Mr. Sumit Ray.



Hearing is concluded on      :       7th November, 2022.



Judgment On                  :       23rd November, 2022.



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order dated 7.12.2005, the said licence was revoked with effect from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.

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. 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. 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.

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 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.

(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)