The Nidc Ltd. Officers' ... vs Union Of India (Uoi) And Anr.
2005 Latest Caselaw 1162 Del

JUDGMENT

S. Ravindra Bhat, J.

1. This common petition, under Article 226 of the Constitution, filed on behalf of 144 former employees of the National Industrial Development Corporation Ltd. (hereafter called 'NIDC', the second respondent in these proceedings) seeks a direction against the respondents to pay amounts on account of revision of pay scales and other dues.

2. The petitioner, an association of persons, espouses the cause of 144 persons. Names of all those are mentioned in Annexure-A to D to the petition. They retired, or ceased to be employees of the NIDC, pursuant to the Voluntary Retirement Scheme or the voluntary Separation Scheme or they superannuated/ resigned in the normal course. Some of the names are of deceased employees, whose behalf the claims have been raised. All these persons are hereafter compendiously described as 'the petitioners'.

3. The petitioners, at the relevant time, were working with the NIDC. The NIDC was a fully owned Government company. It had invited applications under the Voluntary Separation Scheme. The said scheme, by order dated 01.07.2002, mentioned that if employees did not opt, by 30th Separation 2002, they would be only entitled to retrenchment compensation. In this background, several persons including the 121 employees, whose particulars are mentioned in Annexure-A, applied for voluntary separation; their requests were accepted by separate orders on 9th October 2002, 31st December 2002 and 3rd January 2003. Relieving orders were not passed immediately and were passed on different dates. Likewise, the NIDC had floated a Voluntary Retirement Scheme in the year 2001. Pursuant to this, several persons (whose particulars are shown in Annexure-B) applied requesting for voluntary retirement. Those applications were acceded to and they were voluntary retired from the services.

4. It is averred that at the time when these employees whose particulars are mentioned in Annexures A-D were relieved from the services either on the basis of the VRS, VSS Scheme or on the basis of their having supernnuated/resigned from the services, the issue of pay revision consequent to implementation of the 5th Central Pay Commission's recommendations was pending consideration. It is averred that pursuant to the order of the Supreme Court dated 3rd May 1990, NIDC had issued an office memorandum on 2th April 1998 indicating approval to introduction of revised pay scales. The management of NIDC had by that order dated 29.04.1998, stated that payment under the revised pay scales would be made when the financial/liquidaty position of the company improvd. The petitioners also rely upon another order of NIDC dated 25th May 1998 indicating the revision in the pay scales and showing replacement scales.

5. It is submitted that all employees whose names are listed in the various annexures to the petition have not been paid the arrears/dues pursuant to the pay revision, effected by the two orders even though they have been given the other dues under the VR/VSS Scheme opted for by them. The amounts payable, are on certain heads such as CPF, Arrears of pay from 01.01.96 to 01.01.99, 20% of salary from February 1999 to May 1999, and other benefits that have not been released.

6. The petitioners rely upon a judgment of this Court rendered in the context of similar facts, in writ petition filed by several other employees of NIDC. The Court, in those proceedings (WP(C) 5451/2000 decided on 27th February 2002) stated as follows :

"Respondent No. 2 cannot dispute the same except to the extent that some payments have been made in the past. Learned counsel for the respondent further states that the difficulty is that respondent No. 2 has no money to make the payments to the petitoners which is due to them under the VRS Scheme of 1999. In view of the aforesaid position a direction is issued to respondent No. 2 to make the payment as per Annexure A to H after adjusting the amounts already paid. This payment should be made within period of 3 months. In view of the fact that learned counsel for the respondent has frankly admitted that there is issue of financial incapacity of respondent No. 2, respondent No. 2 may approach respondent No. 1 for making available the necessary funds.

The petitioners in para(b) have also prayed for interest @ 18% per annum on the amounts due. Taking into consideration the fair stand of the respondents, though undoubtedly there has been delay in payment of the amount, I am of the considered view that no interest be paid if the payment is made as aforesaid. This is also taking into consideration the financial position of the respondent No. 2 company as stated by learned counsel. If, however, the payment is not made within the period of 3 monthshen the amounts not paid to the petitioner shall carry interest from 1.1.2000 (as most resignations were accepted in October, 1999) till the date of payment simple interest @ 10% per annum. The writ petition is disposed of in the aforesaid terms leaving the parties to bear their own costs."

7. The NIDC filed its counter affidavit. Its stand is that the Government of India took a decision to close down the Corporation and that a winding up petition, namely, CP No. 303/2003 has been filed before this Court. It is also averred that citation habeen issued in those proceedings and that almost all the admitted dues of the employees and persons whose names have been mentioned in the petition, have been paid. The NIDC states that it is not in position to pay any amounts whatsoever to the employees due to lack of funds.

8. Mr. Maulick Nanavati, learned counsel for the petitioners, in addition to reiterating the submissions made in the petition, also relied upon a letter dated 17th May 2002 in which the Central Government had sanctioned a sum of Rs. 1,32,58,000/- to NIDC fopayment of arrears on account of revision of pay scales and other dues to the ex employees in terms of the order of this Court in WP(C) 5451/2000. He submitted that the entitlement of the petitioners was due the fact that they were in employment when the NIDC decided to revise their pay and bring it in line with the recommendations of the 5th Central Pay Commission. He submitted that the factual position of the previous proceedings too was identical; the petitioners there were also retired/retiring emloyees of the NIDC, were working when the orders were passed in April/May 1998, for increase in pay scales. The Court accepted their claim to be just and reasonable and directed the respondents to release the amounts. In the present proceedings too, the employees were working with the NIDC at the relevant time till their cessatopm from employment, either on superannuation, or voluntary retirement resignation, or voluntary separation under the schemes. They too were consequently entitled to equal treatment, keeping in mind that the pay revision occurred when they were in the services and continued till they cease to be in the employment of NIDC.

9. In the course of proceedings, two orders were passed on 25th February 2004 and 27th July 2004 granting time to the Central Government to indicate as to why similar benefits ought not to be given to the employees in these proceedings as in the case of W(C) 5451/2000. The matter was thereafter adjourned on two further occasions; no affidavit was filed by the Central Government.

10. Counsel for NIDC, in the course of hearing, did not make any attempt to distinguish the facts of this case from those in WP(C) 5451/2000. She however submitted that after the decision to the Government to liquidate the company and issuance of the cittion order, NIDC only had skeleton staff, on contract basis and there was practically no amount lying with it to be disbursed. She however did not dispute that this petition is on behalf of the 144 ex-employees who were working with NIDC when it took decision to implement the recommendations of the 5th Central Pay Commission and grant new pay scales to its employees.

11. The factual matrix in this case shows that in all particulars the case of the petitioners is covered in WP(C) 5451/2000 decided on 27th February 2002. There also, the petitioners were employees of NIDC; they were seeking the relief of arrears of salary and other benefits, arising as a consequence of the pay revision decided upon by the NIDC, while adopting the 5th Central Pay Commission's recommendations. The order also noted an identical submission that NIDC was not in possession of funds that it as awaiting amounts from the Central Government. In those proceedings too, the petitioners had opted to retire from the NIDC voluntarily under the VRS Scheme of 1999. The Ministry of Heavy Industries and Public Enterprises, Central Government, itself acepted the order and directed by its letter dated 17th May 2002, the release of 1.32 Crores, for payment of arrears on account of revision of pay scales and the other dues to the ex-employees.

12. In view of the above position, I am of the considered view that the 144 petitioners, who were in the employment of NIDC, when the decision to revise pay scales was taken, cannot be denied the benefit of revision of pay scales and consequent payment ofamounts, which was granted to other employees, who were the petitioners in WP(C) 5451/2000. The Government of India, recognized this position, as is evident from its own order dated 17th May 2002. Yet the 144 persons, on whose behalf, these proceedings have been filed, have been denied that benefit. The inaction on the part of the respondents, particularly, the Central Government is not acceptable; it amounts to hostile discrimination without any discernable logic or criteria, against these 144 employes.

13. The respondents, in my considered view, cannot also plead laches or seek to limit or curtail entitlement of the petitioners in these proceedings. Admittedly, all of them had worked at the relevant time, when the decision to revise pay scales was take. Hence, the fact that they have approached the Court some time later, cannot be a reason to deny relief to them. Moreover the latter/decision of the Central Government dated 17th May 2002, to release the amounts on account of revision of pay scale, has of endure in favor all persons. The Supreme Court in the case of M.R. Gupta v. Union of India held as follows:

"The Tribunal misdirected itself when it treated the appellant's claim as 'one time action' meaning thereby that it was not a continuing wrong based on a recurring cause of action. The claim to be paid the correct salary computed on the basis of proper pay fixation, is a right, which subsists during the entire tenure of service and can be exercised at the time of each payment of the salary when the employee is entitled to salary computed correctly in accordance with the rules. This right of a government servant to be paid the correct salary throughout his tenure according to computation made in accordance with the rules, is akin to the right of redemption which is an incident of a subsisting mortgage and subsists so long as the mortgage itself subsists, unless the equity of redemption is extinguished. It is settled that the right of redemption is of this kind. (See Thota China Subba Rao v. Mattapalli Raju AIR 1950 FC 1 : 1949 FCR 484 : 50 Bom LR 181 : (1950) 1 MLJ 752."

14. In view of the foregoing conclusion, writ petition is allowed to the extent that the respondents are directed to ensure that the persons, whose names are mentioned in Annexures A-D to this writ petition are granted the same benefits of pay and allowances etc. as were granted to the petitioners in WP(C) 5451/2000 decided on 27th February 2002, within a period of 12 weeks from today. In the event of failure to comply with these directions, the respondents shall pay interest at 8% per annum after 12 weeps till the date of payment of these amounts.

15. The Writ petition is disposed off in the light of the above directions. No costs.