Jammu & Kashmir High Court - Srinagar Bench
Jk Industries Employees ... vs Mr. Ranjan Prakash Thakur on 22 September, 2021
Sr. No. 5
Before Notice
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CPSW No.134/2017
CM No.2486/2019
CM No. 2516/2019
IA No.1/2017
CM No.1774/2021
IA No.2/2017
IA No.3/2017
CM No. 6715/2020
CM No.6716/2020
c/w
CPSW No.177/2017
IA No.1/2018
CM No.2181/2021
CM No.2314/2021
CM No.593/2020
JK Industries Employees Association ...PETITIONER(S)
Through:- Mr. M. A. Qayoom, Advocate.
Mr. J. A. Kawoosa, Sr. Adv. with
Mr. Aatir Kawoosa, Advocate.
Mr.Shakir Haqani, Advocate.
Vs.
Mr. Ranjan Prakash Thakur ...RESPONDENT(S)
Through:- Mr. B. A. Dar, Sr. AAG.
CORAM:- HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE.
(ORDER)(ORAL)
22.09.2021
1) Petitioners happen to be the employees of J&K Industries
Limited and J&K Handicrafts (S&E) Corporation. It appears that they
had filed a writ petition before this Court whereby they had claimed
benefit on similar lines as was given to certain section of employees of
J&K Industries Limited in terms of Government Order No.219-IND of
MOHAMMAD ALTAF BHAT
2002 dated 08.08.2002. The writ petition came to be decided by the
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Writ Court in terms of judgment dated 12.03.2009. The operative
portion of the judgment is reproduced as under:
"Though the writ petitioners in all the above
numbered writ petitions had claimed
pensionary benefits directly or indirectly on
the basis of Government Order No.219 dated
8.8.2002 but while considering their cases in
the backdrop of the Rule position stated
hereinabove they are to be extended the
benefits permissible under Jammu & Kashmir
CSR, only when the Rule position is silent
about the retiral and pensionary benefits. As
already concluded that retirement scheme as
was required to be framed has not been
framed, in absence thereof the petitioners are
entitled to be and shall be extended the retiral
pensionary benefits by adopting the J&K
CSR, however, only to the extent Jammu &
Kashmir Industries Employees Service Rules
and Regulations are silent in this behalf. All
the writ petitions on aforesaid terms are
allowed."
2) The aforesaid judgment came to be challenged by the
respondents by way of a Letters Patent Appeal before the Division
Bench of this Court and thereafter by way of a Special Leave Petition
before the Supreme Court. Both LPA as well as SLP were dismissed,
whereafter respondents filed a review petition before the Writ Court but
without any success as the said review petition also came to be
dismissed.
3) When the respondents did not implement the judgment of the
Writ Court, the petitioners were constrained to file the instant contempt
petitions. During the pendency of contempt petitions, respondents
issued Government Order No.230-IND of 2017 dated 26.09.2017 in
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compliance to the directions passed by the Writ Court. The same reads
as under:
Government of Jammu and Kashmir
Industries & Commerce Department
J&K Civil Secretariat, Srinagar.
Subject:- Extension of Pensionary benefits to the employees
of the J&K Industries (JKI) and J&K Handicrafts
Corporation (S&E) (JKHC, S&E) in terms of the
Judgements of the Hon'ble High Court/Supreme
Court.
Reference: Cabinet Decision No.149/Cir/2017 Dated 26.09.2017
Government Order :230-IND of 2017
Dated:26.09.2017
Sanction is accorded to the acceptance of the recommendations
of the Group of Ministers (GoM) constituted vide Govt. Order No.1079-
GAD of 2017 dated 21.08.2017 and extension of Pensionary benefits to
the employees of JKI and JKHC (S&E) as per the decisions of the Hon'ble
High Court/Supreme Court which shall be implemented as under:-
1. The respective Corporation shall prepare complete list of
retired employees entitled for pension as per the Court
orders, documenting their last pay drawn details, working out
receivables such as employers share of CP Fund and the
outstanding amount to be paid to bonafide retired employees
and finalizing monthly pension in each case by the Managing
Director, JKI and JKHC(S&E) expeditiously.
2. The Planning, Development and Monitoring Department shall
arrange resources for funding the pension scheme to the
extent there is outstanding towards already acquired land of
JKI by the PW(R&B), ARI & Trainings and Culture Departments
by way of re-appropriation of their CAPEX allocations for the
FY 2017-18.
3. The JKI and JKHC (S&E) shall utilize at least 50% of its
receivables from resources other than received from the
Planning Department, whether land compensation or profits
at later stage for the payment of statutory liabilities and
monthly pension.
By order the Government of Jammu & Kashmir.
Sd/-
Shailendra Kumar
Commissioner/Secretary to Government
Industries & Commerce Department.
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4) However, the said order was found to be not in conformity with
the judgment of the Writ Court and, accordingly, this Court vide
detailed order dated 26.12.2017, while deprecating conduct of the
respondents directed them to implement the judgment in the manner it
has been implemented in respect of first group of employees of the J&K
Industries Limited by issuing a order on the lines of Government Order
No.219-IND of 2002 dated 08.08.2002 and Government Order No.278-
IND of 2008 dated 30.10.2008. Here it would be apt to reproduce the
aforesaid two Government Orders:
Government of Jammu and Kashmir
Industries and Commerce Department
Sub:- SWP No.(Civil) 14235/98 in SWP No.236/82 titled Jawahar Lal
Sazawal and others v/s State and others.
Govt. Order No:-219-Ind of 2002
Dated:- 08.08.2002
1. Whereas Jammu and Kashmir Industries Limited was
established in the year 1963 to run manage and administer the State
Industries undertaking as may be notified.
2. Whereas the Industrial undertakings run by the Director
Industries and Commerce were entrusted to J&K Industries after its
establishment in 1963 along with the employees.
3. Whereas the employees of erstwhile industrial unit entrusted
to JKI were treated as employee of the company by the management.
4. Whereas aggrieved by the action of the management the
employees approached the Hon'ble High Court Jammu and Kashmir
through SWP No.236/82, 287/82 & 549/83 and
5. Whereas in the SLP (Civil) No.14235/98 titled J. L. Sazwal and
other V/s State and others. The Hon'ble Supreme Court set aside the
decision of J&K High Court and held the employees of erstwhile
industrial undertaking entitled to all the benefits accruable to
employees of the Government.
Now therefore, in pursuance of the orders of the Hon'ble
Supreme Court sanction is hereby accorded to the grant of pensionary
and other benefits under Rules may be applicable from time to time in
favour of 169 employees as indicated in the Annexure "A" hereto who
were appointed prior to 3-10-1963 in the industrial units run by the
Industries and Commerce Department and later transferred to JKI Ltd.
After its establishment. The entitlement for these benefits shall be
MOHAMMAD ALTAF BHAT worked out after deducting the retirement benefits availed by
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beneficiary at the time of superannuation from JKI including gratuity,
employees salary of CP Fund etc. Excess payment, if any, shall be
recovered from the concerned.
By order of the Government of Jammu and Kashmir.
Sd/-
Additional Secretary
Industries and Commerce Department
Government of Jammu and Kashmir
Industries & Commerce Department
Sub:- SWP No.1000/2005 titled Syed Ahmed Byhaqi & others
v/s State and others.
Government Order No:-278-IND of 2008
D A T E D:- 30-10-2008
Whereas, S/Shri Syed Ahmed Byhaqi and others have filed
a SWP No.1000/2005 before the Court of Law seeking pensionary
benefits on the plea that they were initially appointed against
permanent posts in Government Arts Emporium well before 1963
which was a Govt. Department and as a consequence of their
appointment in the Govt. services, the conditions of services of the
petitioners were controlled and regulated by the rules contained in
J&K CSR, 1956, which, inter-alia, bestows post retirement benefits
in favour of the employees.
Whereas, the Hon'ble High Court in its judgment dated
31.01.2008 passed the orders operative part of which reads as
under:-
...the petition is disposed of by providing that Govt. is
obliged in law to consider petitioners case at par with those of
petitioners of Sazawals case within parameters of the said
judgments in so far as they are at part with the petitioners of said
case which would automatically mean extension of such post
retirement benefits to petitioners as would have accrued to them
on their having been treated at par with petitioners of Sazawals
case at the relevant point of time with direction to act accordingly.
The petition stands disposed of accordingly along with commented
CMPs.
Now, therefore, in pursuance of the orders of Hon'ble High
Court sanction is hereby accorded to the grant of pensionary and
other post retirement benefits under rules as may be applicable
from time to time in favour of 125 employees as indicated in the
Annexure "A" hereto who were appointed prior to 03.10.1963 in
the Kashmir Government Arts Emporium and later transferred to
J&K Handicrafts (S&E) Corporation, Limited after its establishment.
The entitlement for these benefits shall be worked out after
deducting the retirement benefits availed by any of the beneficiary
at the time of superannuation pension from J&K Handicrafts (S&E)
Corporation Ltd. Including gratuity, employer's share of C. P. Fund
etc. Excess payment, if any, shall be recovered from the concerned.
MOHAMMAD ALTAF BHAT
By order of the Government of Jammu and Kashmir
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5) In compliance with the directions of the Writ Court and the
observations made by the Contempt Court in its order dated 26.12.2017,
Government issued order bearing Government Order No.35-IND of
2018 dated 25.01.2018. It reads as under:
Government of Jammu and Kashmir
Industries and Commerce Department
Civil Secretariat Jammu/Srinagar
Subject:- Extension of pensionary benefits to the
employees of J&K Industries (JKI), J&K
Handicrafts Corporation (S&I) and J&K
Handloom Silk Weaving Factory transferred
from JKI to J&K Handloom Corporation in
terms of the judgments of the Hon'ble High
Court/Supreme Court.
Ref:-i) Hon'ble High Court Order dated 26.12.2017 in
Contempt No.134/2017 MP Nos 01 of 2017,
02/2017 & 03/2017, Contempt No.177/2017
MP No03/2017 and Contempt No.343/2017
ii) Finance Department U.O No.A/13(98)-IV-34
dated 23.01.2018
Government Order No.35-IND of 2018
Dated :25.01.2018
Whereas, vide Government Order No.230-IND of 2017 dated
26.09.2017 issued under endorsement No.IND/Legal-135/2011-ii
dated 26.09.2017 sanction was accorded to the extension of
pensionary benefits to the employees of JKI and JK HC (S&E) as per
the decisions of the Hon'ble High Court/Supreme Court;
Whereas, the said Order was held negating the
implementation of the judgment in its real spirit by the Hon'ble High
Court in its order dated 26.11.2017 and a direction was passed to the
respondents to implement the judgment in the manner it has been
implemented in respect of first group of employees of the J&K
Industries by issuing an order on the lines of Government Order
No.219-IND of 2002 dated 08.08.2002 and Government Order
No.278-IND of 2008 dated 30.10.2008;
Therefore, in partial modification to the Government Order
No.230-IND of 2017 dated 26.09.2017, sanction is hereby accorded
to the grant of pensionary and other benefits to the employees of
JKI, J&K HC(S&E) and the eligible employees of J&K Handloom
Development Corporation from JKI, under rules as may be applicable
from time to time and on the lines it has been sanctioned in favour
of the employees of JKI/K&K HC(S&E) vide the Government Order
No.219-IND of 2000 dated 08.08.2000 and Government Order
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No.278-IND of 2008 dated 30.10.2008. The entitlement for these
benefits shall be worked out after;
i. deducting the retirement benefits availed by any of the
beneficiary reitree at the time of superannuation from JKI,
J&K HC(S&E) Corporation and the J&K Handloom Silk Weaving
Factory including gratuity employer's share of CP fund, ex-
gratia etc.
ii. recovery of excess payment, if any, from the concerned.
Further, the amount of CPF contribution of the in-service
employees shall be deducted and credited to a separate account to
be opened for the purpose without any employer share and the
employer's share lying with the Provident Fund Commissioner shall
be recovered.
The condition No.2 &3 of the Government Order No.230-IND
of 2017 dated 26.09.2017 shall be deemed to have been deleted.
By order of the Government of Jammu and Kashmir.
Sd/-
Commissioner/Secretary to Government
Industries and Commerce Department
6) A perusal of the aforesaid order clearly reveals that its contents
are identical in terms as are contained in Government Order No.219-
IND of 2002 dated 08.08.2002 and Government Order No.278-IND of
2002 dated 30.10.2008.
7) It has been contended by learned counsel appearing for the
petitioners that in terms of the judgment of Writ Court, the petitioners
were entitled to fixation of their salary at par with the employees of the
State Government and that presumptive pay for the purposes of
calculation of their pension was to be fixed accordingly but in their case
the same has not been done and, as such, the judgment of the Writ Court
has not been implemented in its letter and spirit. It is claimed that the
petitioners are not only entitled to arrears of salary but also re-fixation
of their pensionary benefits.
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8) Learned counsel for the respondents on the other hand has
contended that the judgment of the Writ Court stands complied with in
its letter and spirit and whatever was directed by the Writ Court is
reflected in the Government Order No.35-IND of 2018 dated
25.01.2018.
9) I have heard learned counsel for the parties and perused the
record of the case.
10) As is clear from the operative portion of the judgment of the Writ
Court, which is quoted in the preceding paras, petitioners have been
found entitled to retiral benefits by adoption of Jammu and Kashmir
Civil Service Regulations as according to the Writ Court, J&K
Industries Employees Service Rules and Regulations are silent on this
aspect of the matter. Vide order dated 26.12.2017 passed by this Court,
it has been made clear that the respondents have to issue an order on
the lines of Government Order No.219-IND of 2002 dated 08.08.2002
and Government Order No.278-IND of 2002 dated 30.10.2008 and the
same would be complete compliance of the judgment of the Writ Court.
11) As already noted, Government Order No.35-IND of 2018 dated
25.01.2018 is exactly on the similar lines as Government Order No.
Government Order No.219-IND of 2002 dated 08.08.2002 and
Government Order No.278-IND of 2002 dated 30.10.2008. There is no
dissimilarity or deviation in the said order issued by the Government in
compliance to the judgment of the Writ Court. Thus, it cannot be stated
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that there has been any willful default or disobedience to the directions
of the Writ Court on the part of respondents.
12) So far as the individual cases of employees with regard to
incorrect fixation of their pay or pension in pursuance of the aforesaid
Government order is concerned, the same cannot become subject matter
of these contempt proceedings. The record shows that the respondents
have complied with the judgment of the Writ Court in its letter and spirit
and in case some individual employees feel dissatisfied with the
fixation of their pay or pensionary benefits in pursuance to Government
Order No.35-IND of 2018 dated 25.01.2018, issued by the respondents,
it is open to them to make a representation to the concerned department
in this regard and in case their grievances are not redressed within a
reasonable time, they are at liberty to avail appropriate legal remedies.
13) For the foregoing reasons, no case for proceeding against the
respondents is made out. The contempt proceedings are dropped and
the contempt petitions are disposed of accordingly.
(SANJAY DHAR)
JUDGE
SRINAGAR
22.09.2021
"Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
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