Punjab-Haryana High Court
Jeet Singh vs State Of Haryana And Others on 3 May, 2024
Author: Jasgurpreet Singh Puri
Bench: Jasgurpreet Singh Puri
Neutral Citation No:=2024:PHHC:061531
CWP-4445-2024 (O&M) -1- 2024:PHHC:061531
CWP-7976-2024 (O&M) and
CWP-8098-2024 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-4445-2024 (O&M)
Date of decision: 03.05.2024
(I)
Jeet Singh
...Petitioner
VERSUS
State of Haryana and others
...Respondents
(II) CWP-7976-2024 (O&M)
Randhir Singh
...Petitioner
VERSUS
State of Haryana and others
...Respondents
(III) CWP-8098-2024 (O&M)
Rajbir
...Petitioner
VERSUS
State of Haryana and others
...Respondents
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
Present:- Mr. S.S. Antal, Advocate, for the petitioners.
Mr. Samarth Sagar, Additional Advocate General, Haryana &
Mr. Ravinder S. Budhwar, Addl. Advocate General, Haryana.
Mr. Pawan Kumar Mutneja, Senior Advocate with
Ms. Suverna Mutneja, Advocate and
Mr. V.S. Mahal, Advocate,
for respondent No.3 in CWP-4445-2024.
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CWP-4445-2024 (O&M) -2- 2024:PHHC:061531
CWP-7976-2024 (O&M) and
CWP-8098-2024 (O&M)
Mr. R.K. Doon, Advocate,
for respondents No.2 & 3 in CWP-7976-2024 &
CWP-8098-2024.
****
JASGURPREET SINGH PURI, J. (Oral)
1. These are three writ petitions filed in which identical issue is
involved and therefore, they are being taken up together for final disposal with
the consent of learned counsels for the parties. The facts are taken from CWP
No.4445 of 2024 being the lead case. The lead case pertains to Karnal
Cooperative Sugar Mill, whereas the other two cases pertain to Sonipat
Cooperative Sugar Mill but the issue involved is the same.
2. The issue involved in the present cases which needs to be
considered and adjudicated by this Court is as to whether the retirement age of
the petitioners would be 58 years or 60 years.
Factual Matrix:-
3. The facts of the present case are that the petitioner was appointed
to the post of Cane Clerk at Bhuna Cooperative Sugar Mills Ltd., Hisar vide
Annexure P-1 on 28.05.1997. In the appointment letter, the retirement age of
the petitioner was fixed to be 58 years. Likewise, there were many other
employees appointed on the similar post in different Sugar Mills in the State of
Haryana including the petitioners of the aforesaid two petitions. Thereafter, the
aforesaid Mill was wound up in the year 2005 and some of the employees of the
aforesaid Mill approached this Court by filing different writ petitions. A bunch
of these writ petitions was decided by a Co-ordinate Bench of this Court on
28.01.2015 vide Annexure P-2 and a direction was issued to the authorities to
adjust all the ex-employees of the erstwhile Bhuna Cooperative Sugar Mills on
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the posts of their respective categories against available vacant posts in the
other Cooperative Sugar Mills subject to their fulfillment of eligibility criteria,
prescribed under the relevant Service Rules. It was also made clear that the
appointments given to the ex-employees of erstwhile Bhuna Cooperative Sugar
Mills would be treated as fresh appointments. The relevant portion of the
aforesaid judgment Annexure P-2 is reproduced as under:-
"Having heard the learned counsel for the parties at considerable length
and after giving thoughtful consideration to the peculiar fact situation
noticed hereinabove, all these writ petitions are disposed of with
direction to the respondent authorities to adjust all the ex-employees of
the erstwhile Bhuna Cooperative Sugar Mills including the petitioners,
on the posts of their respective categories, against available vacant posts
in other cooperative sugar mills, as well as other cooperative institutions
of the respondent State, as early as possible, subject to fulfillment of
eligibility criteria, prescribed under the relevant Service Rules, however,
granting relaxation in age, wherever it is required.
It is further directed that the respondent authorities shall make an
endeavour to adjust all the ex-employees of erstwhile Bhuna Cooperative
Sugar Mills in their respective categories, at an early date because it will
be in the interest of the petitioners as well as the Welfare State. Except in
the emergent situations, the respondent authorities shall not fill any
vacant post in the cooperative sugar mills as well as other cooperative
institutions in the State, till the ex-employees of erstwhile Bhuna
Cooperative Sugar Mills are adjusted. However, it is also made clear
that the appointments given to the ex-employees of erstwhile Bhuna
Cooperative Sugar Mills would be treated as fresh appointments.
With the abovesaid observations made and directions issued, all these
writ petitions stand disposed of, however, with no order as to the costs.
4. In pursuance of the aforesaid direction issued by this Court, the
petitioner was freshly appointed to the post of Cane Clerk (Seasonal) at Karnal
Cooperative Sugar Mills Ltd., Karnal on 02.09.2015 vide appointment letter
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Annexure P-3. In the appointment letter, it was made clear that the appointment
will be a one time measure and it shall be treated as a fresh appointment on the
post on which the ex-employee is adjusted. It was also so incorporated in the
aforesaid appointment letter that the petitioner in all respects will be governed
by the Service Rules of the Mills establishment applicable from time to time to
his rank or class of employment. Furthermore, it was also provided in clause 19
of the aforesaid appointment letter that he will be retired from the Mills services
at the age of 58 years. The relevant clauses of the aforesaid appointment letter
i.e clause 1, 13 and 19 are reproduced as under:-
1. Your appointment with this Mills shall be as one time measure and
your appointment shall be treated as a fresh appointment on the post
on which the ex-employee is adjusted. No benefit of past service
already rendered on the same post or the post of same/higher/lower
pay structure shall be admissible in any respect. The pay shall be fixed
at minimum or at entry level pay, as admissible to a person on the
same post of his first appointment in this Mills.
xxx-xxx-xxx-xxx
13. You will in all respects be governed by the Service Rules of the
Mills establishment applicable from time to time to your rank or class
of employment.
xxx-xxx-xxx-xxx
19. You will be retired from the Mills services at the age of 58 years.
Xxx-xxx-xxx-xxx
5. In this way, there was a specific clause inserted in the appointment
letter of the petitioner that he will be retired at the age of 58 years. The
petitioner accepted the aforesaid terms and conditions of the appointment letter
in whole. The petitioner has filed the present petition seeking a writ in the
nature of mandamus directing the respondents not to relieve him on attaining
the age of 58 years because he is covered by the recommendations of the Sugar
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Wage Board which have been duly accepted and approved by not only the
SUGARFED which is the Apex Body but also by the respondent-Sugar Mill
itself.
6. Since the petitioner and the similarly situated persons are
employees of Sugar Mills, their recruitment, conditions of service and wages
etc. are also being recognised by the Sugar Wage Boards which have been
constitued by the Government of India, Ministry of Labour from time to time.
Since the Sugar Industry occupies an important place in the Indian economy in
pursuance of the recommendations of the second five year plan regarding
setting up of a Tripartite Wage Board for individual industries, the Government
of India in the Ministry of Labour appointed First Central Wage Board for
Sugar Industry on 26.12.1957 to determine the categories of employees
(manual, clerical, supervisory etc.) who should be brought within the scope of
the proposed wage fixation and to work out a wage structure based on the
principles of fair wages as set forth in the report of the Committee on fair
wages. In this way, the First Wage Board laid down a uniform wage structure
for the workers with some regional variations and the report of First Wage
Board was submitted on 26.11.1960. Thereafter, the Second Wage Board for
Sugar Industry was set up and a report regarding the same was submitted to the
Government by the Board on 16.02.1970. The Third Wage Board for Sugar
Industry was set up on 17.07.1985 by the Ministry of Labour, Government of
India with a Resolution to consider the question of a further revision of the
present wage structure in the industry and recommendations will be made
keeping in view the determination of the categories of employees (manual,
clerical, supervisory etc.) who should be brought within the scope of the
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proposed wage fixation and also to work out a wage structure based on the
principles of fair wages as set forth in the report of the Committee on fair
wages which includes the capacity of the industry to pay. Third Wage Board
gave its report in the nature of recommendations on 31.01.1989.
7. There were specific provisions pertaining to age of retirement in
the nature of recommendations in both the Second Wage Board and in the Third
Wage Board. In the Second Wage Board, there was a recommendation with
regard to the superannuation age that the age of superannuation shall be 60
years which has been so appended with the present petition at page No.66 of the
paper-book. The relevant portion is reproduced as under:-
3. Superannuation age:
(i) The age of superannuation shall be 60 years. Xxxx
(ii) An employee shall retire on attaining the age of 60 years, but
by mutual consent, his employment may be extended further.
8. Similarly, in the Third Wage Board report again there was similar
kind of recommendations with regard to the age of superannuation at para
No.282 which is appended with the present petition at page No.71 and the
relevant portion is reproduced as under:-
282. The age of superannuation is fixed at 60 years of
completed age. xxxx
9. In para No.33 of the aforesaid recommendation of the Third Wage
Board, it has been so provided that the recommendations made by the Second
Wage Board for Sugar Industry are wholesome and there is hardly any
justification for further improvement thereupon and the norms are by and large
adopted mutatis mutandis. It was specifically provided in the aforesaid
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recommendations that the recommendations of the Board shall govern the
service conditions of the workers of the vacuum pan sugar factories only and
all the employees falling within the definition of 'workman' as contained in the
Industrial Disputes Act, 1947 as amended from time to time shall be covered by
the recommendations as also those employed as Labour Welfare Officers,
medical and educational staff including the categories detailed in the standard
nomenclature. The relevant portion of the aforesaid para No.33 of the Third
Wage Board recommendations as so appended with the present at Annexure
P-7 is reproduced as under:-
33. The recommendations made by the Second Wage Board for
Sugar Industry are wholesome and there is hardly any justification for
further improvement thereupon. The norms are by and large adopted
mutatis mutandis. The recommendations of this Board shall govern
the service conditions of :
(i) The workers of the vacuum pan sugar factories only;
(ii) All the employees falling within the definition of 'Workman' as
contained in the Industrial Disputes Act, 1947 as amended from time to
time shall be covered by the recommendations as also those employed
as Labour Welfare Officers, medical and educational staff including the
categories detailed in the Standard Nomenclature (Annexure XXVIII).
10. In the year 1989, the Registrar, Cooperative Societies, Haryana
wrote a letter to the Managing Director, Haryana State Federation of
Cooperative Sugar Mills Ltd. (SUGARFED) which is the Apex Body for
Cooperative Sugar Mills in the State of Haryana vide Annexure R-2/1 by stating
that Haryana Cooperative Societies Rules, 1989 have been notified on
31.01.1989 and as per the provisions of Rule 29, it is obligatory on the
Cooperative Society to frame Rules for their employees with the approval of
Registrar, Cooperative Societies but the same have not been framed as yet and it
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has become the requirement of law to have Service Rules for employees and
have the approval of the office of the Registrar and it was requested by the
Registrar, Cooperative Societies to the SUGARFED to prepare a set of Model
Service Rules for adoption by their affiliated Societies (Sugar Mills).
Thereafter, the SUGARFED drafted common Service Rules for the member
Cooperative Sugar Mills in consultation with the Managing Directors of these
Mills and sent the same to the Registrar, Cooperative Societies vide Annexure
R-2/2 on 03.08.1990. Thereafter, vide Annexure R-2/3 dated 14.11.1990, the
Registrar, Cooperative Societies, Haryana conveyed to the Managing Director
of SUGARFED that the Registrar, Cooperative Societies, Haryana has accorded
approval under Rule 29 of the Haryana Cooperative Societies Rules, 1989 with
some modifications and the approved Service Rules were enclosed for
adoption by the Cooperative Sugar Mills in the State of Haryana and it was
also stated that these Services Rules shall be applicable in the Cooperative
Sugar Mills from the date of adoption by the Board of Directors/Board of
Administrators of the said Cooperative Sugar Mills. Thereafter, vide Annexure
R-2/4, there were some amendments suggested by the Registrar, Cooperative
Societies in the Service Rules which were also directed to be circulated among
the Mills. Thereafter, the Managing Director of SUGARFED sent a letter to all
the Cooperative Sugar Mills of State of Haryana vide Annexure R-2/5 in this
regard. In pursuance of the aforesaid Rules being framed under Rule 29 of the
Haryana Cooperative Societies Rules, 1989, the respondent-Karnal Cooperative
Sugar Mills adopted the aforesaid Rules. Although the aforesaid document
pertaining to the adoptation has not been attached with the present petition but
the learned Senior Counsel appearing on behalf of Karnal Cooperative Sugar
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Mills has stated that the aforesaid Rules were adopted by the Karnal
Cooperative Sugar Mills in the year 1992. Similarly, learned counsel appearing
on behalf of other two cases who is representing the Sonipat Cooperative Sugar
Mills has also supplied a copy of the adoptation of the Rules by the Sonipat
Cooperative Sugar Mills on 27.09.1992 and a copy of the same is also taken on
record as Mark-X which is reproduced as under:-
"THE SONIPAT COOP; SUGAR MILLS LTD. SONIPAT (HARYANA)
Item No.9:- To adopt Service Rules for the employees of Sugar
Mills duly approved by the Registrar, Coop: Societies, Haryana.
It is brought to the notice of Board of Directors that the
Registrar, Coop: Societies, Haryana, has accorded approval of
Service Rules for the employees of Coop: Sugar Mills which
were framed by the Haryana State Fedn. of Coop: Sugar Mills
Limited, Chandigarh, after discussing with the Managing
Directors of the Coop : Sugar Mills. Now, we have been asked by
the Sugar Mills Federation, Haryana, vide its letter No.SMF-
91/ECT/14726-34 dt. 6.5.1991 to adopt the Service Rules. As
such, the matter is placed before the Board for approval to adopt
Service Rules for the employees of our Sugar Mills already
approved by the Registrar, Coop: Societies, Haryana,
Chandigarh."
11. In this way, both the aforesaid Sugar Mills i.e. Karnal Cooperative
Sugar Mills and Sonipat Cooperative Sugar Mills adopted the Service Rules
duly approved by the Registrar, Cooperative Societies and made under Rule
29 of the Haryana Cooperative Societies Rules, 1989. It has also been pointed
out by the learned counsel for the respondents that all the Cooperative Sugar
Mills of the State of Haryana in a similar way adopted the aforesaid
Service Rules in the year 1992 and there is no dispute with regard to
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the same. These Service Rules were acted upon and the service conditions of
the employees were governed by the aforesaid Service Rules.
12. In the year 2004 vide Annexure R-2/8 dated 10.11.2004, the matter
was discussed before the SUGARFED pertaining to revision of pay scale of
the employees of the Cooperative Sugar Mills of the State of Haryana who were
drawing wages as per the Third Sugar Wage Board recommendations since
there was a demand for revision of pay scale at the level of the employees of the
Federation. On 28.08.2009 vide Annexure R-2/9, approval was granted for new
pay scale to the employees of Cooperative Sugar Mills by revising the pay and
various provisions were mentioned pertaining to the Salary Fixation Option,
Salary Fixation System, Variable Dearness Allowance, House Rental
Allowance, Medical Allowance and Retaining Allowance. However, there was
no deliberation nor any decision was taken with regard to the age of retirement
since the aforesaid deliberations were done only for the purpose of pay
revision etc. However, in just less than two months thereafter a letter was
written by the Managing Director of the SUGARFED to all the Managing
Directors of the Cooperative Sugar Mills of the State of Haryana on
12/16.11.2009 vide Annexure R-2/11 with the subject of clarification regarding
retirement age of the employees after new pay scales on Government pattern in
which it was clarified that for the employees who are recruited in old pay scale
before 01.09.2009 (except those who are already getting Government pay
scales), their retirement age will be 60 years, whereas those employees who will
be recruited after giving the new pay scales on Government pattern w.e.f.
01.09.2009 will have retirement age on Government pattern i.e 58 years. The
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aforesaid letter which was in the nature of a clarification is reproduced as
under:-
Ref.No. SMF-2009/AR/5675-84 Dated 12/16.11.2009
To
The Managing Directors
Coop. Sugar Mills Ltd.,
Panipat, Rohtak, Karnal, Shahabad, Sonepat,
Palwal, Jind, Meham, Kaithal & Gohana.
Sub: Clarification regarding retirement age of the employees
after new pay scales on Govt. pattern.
---------------------------------------------------------------------------------
Reference MD, Gohana Sugar Mills' letter No.CDLSM/A/c/09/6106,
dated 3.3.2009 and comments sent by MDs of all other mills in the
matter cited as subject.
In this connection, it is clarified that:-
1) For employees who are recruited in old pay scales before
1.9.2009 (except those who are already getting Govt. pay scales),
their retirement age will be 60 years.
2) The employees who will be recruited after giving the new pay
scales on Govt. pattern effective from 1.9.2009 will have retirement
age on Govt. pattern i.e. 58 years.
Sd/-
Dy. Technical Advisor (1)
For Managing Director
13. Since the petitioner in CWP No. 4445 of 2024 was appointed in
the year 2015 and the other two petitioners in CWP No.7976 of 2024 and CWP
No. 8098 of 2024 were appointed in the year 2016, in their appointment letters,
the age of retirement of the petitioners has been fixed to be 58 years in
pursuance of the aforesaid letter Annexure R-2/11 and aggrieved by the same,
they have filed these writ petitions.
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Submissions by learned counsel for the petitioners:-
14. Mr.S.S.Antal, learned counsel appearing on behalf of the
petitioners submitted that the action of the respondents in retiring the petitioners
at the age of 58 years was not only perverse but also contrary to the Statutory
Service Rules which have been framed while exercising powers under Rule
29 of the Haryana Cooperative Societies Rules, 1989. The Cooperative
Societies Service Rules have been framed under Section 131 of the Haryana
Cooperative Societies Act, 1984. The first argument raised by him was that the
Service Rules which have been attached as Annexure P-11 namely, "The
Service Rules for the employees of the Cooperative Sugar Mills in the State of
Haryana" were framed in the year 1991 and were adopted by the respondent-
Sugar Mills in the year 1992 by the Board of Directors and thereafter, the
same have been acted upon and implemented by the respondent-Sugar Mills till
date and submitted that it is now almost 32 years that the aforesaid Service
Rules are being implemented by the Cooperative Sugar Mills continuously. He
submitted that once the aforesaid Rules which are statutory in nature have been
enforced and are legally enforceable in nature and provide for the age of
superannuation, then no variation could have been made in the nature of a
clarification, although the clarification was adopted by the Cooperative Sugar
Mills later on without amendment of the Statutory Service Rules because it
would be not only detrimental and prejudicial to the interests of the petitioners
but also it will be illegal being contrary to the Statutory Rules. In this regard, he
referred to Rule 14 of the aforesaid Rules of 1991 (adopted in the year 1992).
Rule 14 pertains to retirement which is reproduced as under:-
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"14. Retirement:- All the employees except covered under Sugar Wage
Board shall retire from the service of the society on attaining the age of 58
years. However, this age limit can be extended by a period of 2 years. in
case the employee is found to be outstanding and competent for the duties
and the health of the employee so permits subject to the approval of
Registrar. The retirement age for the employees whereby. Sugar Wage
Board will be as per the retirement age mentioned in the Wage Board
recommendation.
(emphasis supplied)
15. While referring to the aforesaid Rule, he submitted that for the
purpose of determining the age of retirement, two classifications have been
made under the aforesaid Rule. First classification is that those employees who
are not covered under the Sugar Wage Board would retire at the age of 58 years
and secondly, those who are covered under the Sugar Wage Board will retire as
per retirement age mentioned in the Sugar Wage Board recommendations. He
submitted that although in Rule 14 of the Statutory Service Rules, the age of
retirement of those employees who are covered under the Sugar Wage Board
has not been specifically provided but the age of retirement is provided under
the Sugar Wage Board recommendations which have been reproduced above.
However it has been specifically provided in Rule 14 that for those employees
to whom Sugar Wage Board recommendations are applicable for the purpose of
retirement age, then those recommendations will apply to them. Both the
Second Sugar Wage Board and the Third Sugar Wage Board provided for the
age as 60 years. While again referring to the aforesaid recommendations and
report of the Sugar Wage Board as per para No. 282, it has been so provided
that the age of superannuation is fixed as 60 years of completed age and in the
same Sugar Wage Board report, it has also been mentioned in para No.33 that
the recommendations of the Board shall govern the service conditions of all the
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employees falling within the definition of 'workman' as contained in the
Industrial Disputes Act, 1947 and some other employees. He submitted that the
petitioners were appointed as Cane/Store Clerk and undoubtedly, they are
workmen under the Industrial Disputes Act and therefore for the petitioners in
terms of the aforesaid report of the Third Sugar Wage Board and in the light of
the Statutory Service Rules, the retirement age ought to have been fixed as 60
years and not as 58 years and therefore, the action of the respondents is bad in
law.
16. He further submitted that so far as Clause 19 which was
incorporated in the appointment letters of the petitioners, wherein it was so
provided that the retirement age of the petitioners shall be 58 years is
concerned, the same was contrary to the Statutory Service Rules and it is a
settled law that any clause which is contrary to the Statutory Rule is void ab
initio, non est and cannot be enforced. He further submitted that mere fact that
the petitioners accepted the appointment letters alongwith the aforesaid clause
would not mean that they are estopped from challenging the action of the
respondents since there can be no estoppel against the statute or law. He
submitted that the aforesaid clause was liable to be ignored for the purpose of
retirement of the petitioners in terms of the Statutory Service Rules. To further
substantiate his arguments, he also submitted that even otherwise also, the
aforesaid clause 19 was unconscionable and a result of inequality in the
bargaining power. He submitted that the petitioners and similarly situated
person became unemployed after they were retrenched from the erstwhile
Bhuna Cooperative Sugar Mills and it was only with the intervention of this
Court vide Annexure P-2 that they were adjusted in different Cooperative
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Sugar Mills to earn their livelihood and in getting employment and at that point
of time there was no question of entering into any negotiation or bargaining
with the employer with regard to the fixation of retirement age and the focus
was only to earn livelihood and to support their families. He also referred to a
landmark judgment of Hon'ble Supreme Court in Central Inland Water
Transport Corporation Ltd. And another Versus Brojo Nath Ganguly and
another, 1986(3) SCC 156 to contend that when there is an inequality in the
bargaining power, then such clause cannot be given effect to.
17. Learned counsel further submitted that the letter Annexure R-2/11
was only in the nature of a clarificatory letter issued by the Managing Director
of the SUGARFED and cannot alter the age of retirement without amendment
of the Service Rules. There is no legally enforceable document on the record to
show that an employee who was recruited after 01.09.2009 will not be
governed under the Sugar Wage Board. He also submitted that there is no
document on the record to show that the recommendations of the Sugar Wage
Board which have been crystalized and given effect to have ceased to operate.
He also referred to Rule 43 of the aforesaid Rules which provide that the
employees under the Sugar wage Board will be governed in the matter of pay
and allowanes as per the Sugar Wage Board recommendations and pay of the
other employees will be as per Annexure-A which would mean that the
recommendations of the Sugar Wage Board were given effect to by the
respondent-SUGARFED themselves and in this regard, he also referred to Note
No.2 of Annexure-A which also provides that the pay scale and allowances of
those employees who were covered under the Sugar Wage Board shall be
determined by the Mills as per direction of the State Government from time to
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time with the prior approval of Registrar and the Finance Department/HBPE
through administrative Department.
18. Learned counsel further submitted that the respondent-State is a
Welfare State and respondent-SUGARFED is a part of the State and the
recommendations of Sugar Wage Board which were so adopted by the
respondent were beneficial in nature considering the difficulties and conditions
of service being given to the employees of Sugar Industry throughout India
and it was in this background and the spirit of the same that the age of
retirement for those employees who were covered within the definition of
workmen under the Industrial Disputes Act were granted the benefit of
retirement age of 60 years and therefore, even the action of the respondents
was not only contrary to the Statutory Service Rules but also contrary to the
spirit and rationale of the Sugar Wage Board recommendations which were
meant for the purpose of granting benefit to such employees.
Submissions by learned Senior Counsel for respondent-Karnal
Coooperative Sugar Mills and learned counsel for respondent-Sonipat
Coooperative Sugar Mills
19. Mr. Pawan Kumar Mutneja, learned Senior Counsel with Ms.
Suverna Mutneja, learned counsel for the respondent-Karnal Cooperative Sugar
Mills and Mr. R.K. Doon, learned counsel appearing on behalf of respondent-
Sonipat Cooperative Sugar Mills have submitted that the scope of the Third
Sugar Wage Board was primiarly to fix the wage structure which has been done
by the Sugar Wage Board and the aforesaid recommendations were only for a
period of 10 years which is so reflected in para No.284 of the recommendations
which state that the recommendations are to be effective for 10 years from Ist
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of January, 1988. The aforesaid paragraph of the Third Sugar Wage Board is
reproduced as under:-
284. These recommendations shall remain in force for a
period of 10 years with effect from the Ist of January, 1988.
20. They submitted that in this way the tenure of the Third Sugar
Wage Board ceased to operate in January, 1998, whereas the petitioners have
been appointed in the year 2015 and 2016 which was much after the cessation
of the recommendations. To elaborate their arguments, they submitted that
although in the Service Rules it has been so provided that those employees who
are covered under the Sugar Wage Board will be retired according to the
recommendations of the Sugar Wage Board but the recommendations ceased to
operate in the year 1998 but the petitioners were freshly appointed in the year
2015 and 2016 and therefore, there was no question of the petitioners to have
availed the benefit of the recommendations of the aforesaid Sugar Wage Board.
They submitted that there is no doubt that Rule 14 of the aforesaid Service
Rules consists of two categories and while framing of the Rules, consciously
two categories were created because Rules were made in the year 1991 and at
that point of time the recommendations of the Sugar Wage Board were in
operation and therefore, rightly so a classification was created by making two
different categories of those employees who were covered by the Sugar Wage
Board recommendations and those who were not covered but that would
not mean that the classification will continue to operate indefinitely
notwithstanding the fact that the recommendations ceased to operate after 10
years i.e. in the year 1998 and since the petitioners were recruited much later,
the aforesaid recommendations would not be applicable to the petitioners and
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therefore, the claim of the petitioners that they should be retired at the age of
60 years is misconceived and against the law. While further advancing
arguments, they further submitted that in the year 2004 after the Rules were
framed, it was so thought and with the insistence of various Unions that new
pay scales are to be given and wages are to be revised and consequent upon the
same, there was a revision of pay scale vide Annexure R-2/9 on 28.09.2009 and
those employees who are governed by the Service Rules, they were granted the
revision of pay scale uniformly and therefore, the distinction between those
who were even if workmen and regarding them the age of retirement was fixed
as 60 years, they were to be treated at par with that of those who were otherwise
not governed under the Sugar Wage Board and uniformity was maintained
pertaining to the pay scale and not only this rather in the year 2017, the
recommendations of 7th Pay Commission were also implemented vide Annexure
R-2/10.
21. They submitted that it was in this background that a clarification
was issued in the year 2009 vide Annexure R-2/11 that those employees who
were recruited in old pay scales before 01.09.2009, their retirement age will
be 60 years and those who are recruited after giving the new pay scales on
Government pattern w.e.f. 01.09.2009 will have the retirement age of 58 years.
They submitted that the aforesaid clarification which was issued by the
SUGARFED to the Cooperative Sugar Mills was thereafter adopted by the
Cooperative Sugar Mills themselves by passing of a Resolution by the Board of
Directors which has also been annexed as Annexure R-3/2 dated 28.01.2010.
They submitted that once the clarification issued by the Managing Director of
the SUGARFED has been accepted and adopted by the Cooperative Sugar Mills
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on 28.01.2010, then after the aforesaid adoptation, it would become an
enforceable law. The aforesaid adoptation vide Annexure R-3/2 is reproduced
as under:-
"THE KARNAL COOP. SUGAR MULLS LTD. KARNAL
Copy of agenda item No.5 along with explanatory note & decision
passed by the BOD in its meeting held on 28.01.10.
To grant approval for implementation of retirement age of the
employees who will be recruited after giving new pay scales on Govt.
pattern from 1.9.2009 will have retirement age on Govt. pattern i.e 58
years. For employees who are recruited in old scales before 1.9.09
(except those who are already getting Govt. pay scales), their
retirement age will be 60 years.
It is submitted for the information of the Board that a letter No.SMF-
2009 AR5077 dated 12/16.11.2009 is enclosed as Annex. P. has been
received in this office from the office of MD., Haryana State Fed. of
Coop. Sugar Mills Ltd.Panchkula vide which, the clarifications are as
under:
1. The Employees who are recruited in old pay scales before
1.9.2009 (except those who are already getting Govt pay scales),
their retirement age will be 60 years.
2. The employees who will be recruited after giving the new pay
scales on Govt. pattern effective from 1.9.2009 will have
retirement age on Govt. pattern i.e. 58 years.
The agenda is placed before the Board for grant approval for
implementation of retirement age of the employees.
Decisions
Approved.
Sd- Sd-
Managing Director Chairman
No. ---10/Geni- 592 Dt. 18.02.2010
CC- O.S./ H.T.K. for information &n/a Sd/- Managing Director
22. While again referring to the aforesaid Resolution approved by the
Board of Directors of Karnal Cooperative Sugar Mills, they submitted that
earlier also when the Draft Rules of 1991 were sent to the Cooperative Sugar
Mills, they were approved by the Board of Directors and were implemented and
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now again when a clarification letter has been issued, the same has also been
accepted subsequently by the Board of Directors and therefore any employee
who has been recruited after 01.09.2009 will be governed by the subsequent
Resolution which has been approved by the Board of Directors which has the
force of law. They further submitted that under the Cooperative Societies Act,
the executive power vests with the Society itself through its General Body or
Board of Directors and therefore now the Resolution dated 28.01.2010 passed
by the Karnal Cooperative Sugar Mills has the force of law and therefore, the
petitions filed by the petitioners should be dismissed only on the ground that
they were recruited in the years 2015 and 2016 that was much after the passing
of the Resolution in the year 2010.
23. Mr. Mutneja, learned Senior Counsel and Mr. Doon, learned
counsel for Sugar Mills specifically submitted that so far as the Service Rules
of 1991 are concerned, since they were framed under Rule 29 of the Haryana
Cooperative Societies Rules, 1989, the same are Statutory in nature and they
are not disputing the aforesaid position. They also submitted that the petitioners
are drawing the salary at the government pattern equally as that of the other
government employees.
24. Learned Senior Counsel further submitted that a similarly situated
person, who was also appointed as a Cane Supervisor with the Karnal
Cooperative Sugar Mills in the year 2015 and had retired on attaining the age of
58 years challenged the action of the respondents in CWP No.9401 of 2021,
which was decided on 23.11.2021 vide Annexure R-2/12, whereby a Coordinate
Bench of this Court had dismissed the petition on the ground that when the
petitioner of that case was appointed, there was a specific clause in the
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appointment letter that he will retire at the age of 58 years and the petitioner
having accepted the conditions now cannot be allowed to back out from the
same and claim that he should be retired at the age of 60 years being covered by
the Sugar Wage Board. He also submitted that the aforesaid judgment was
assailed in the LPA, which stands admitted without any interim order. He
further submitted that in view of the above, the present petitions also deserve to
be dismissed.
Submissions by learned Additional Advocate Generals, Haryana
25. Mr. Samarth Sagar, learned Addl. A.G. Haryana and Mr. Ravinder
S. Budhwar, learned Additional Advocate General, Haryana have submitted that
so far as the nature of the aforesaid Service Rules of 1991 are concerned, the
same are Statutory in nature being framed under Rule 29 of the Haryana
Cooperative Societies Rules, 1989 and the same are being implemented till
date.
26. They further submitted that it has been so provided in Rule 43 of
the Service Rules that employees covered in the Sugar Wage Board will be
governed in the matter of pay and allowances as per the Sugar Wage Board
recommendations and the pay of other employees will be as per Annexure 'A'
and their allowances as per Government Rules. Rule 43 of the Service Rules is
reproduced as under:-
"43. Pay and allowance.- Employees covered under Sugar
Wage Board will be governed in the matter of pay and
allowanes as per the Sugar Wage Board recommendations.
The pay of the other employees will be as per Annexure-A and
their allowances will be as per Govt. rules."
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27. They also submitted that when the petitioners were appointed in
the year 2015 and 2016 respectively, then they were appointed on the pattern of
Government pay-scale and allowances and not on the pattern of Sugar Wage
Board and therefore for them there was no distinction in the classification and
therefore, they are not to be governed by the Sugar Wage Board and once they
are not to be governed by the Sugar Wage Board because of accepting the same
pay and allowances as that of other Government employees who were not
governed by Sugar Wage Board, then they cannot take the benefit of Rule 14
by which it has been so provided that for the employees who are governed by
the Sugar Wage Board, they will retire as per the recommendations of the Sugar
Wage Board and therefore on this ground also, the petitioners do not deserve
any relief.
Analysis of submissions:-
28. I have heard the learned counsel for the parties at length.
29. Before considering the merits of the present case, the contention of
learned Senior Counsel appearing on behalf of the respondent-Karnal
Cooperative Sugar Mills that a Coordinate Bench of this Court has dismissed
the petition of a similarly situated person and in the light of the same, the
present petitions should also be dismissed would be appropriate to be
considered. The aforesaid judgment passed by a Coordinate Bench of this Court
is at Annexure R-2/12. A perusal of the same would show that the petitioner of
that case was also appointed like that of the present petitioner (in CWP-4445-
2024) in the year 2015 in the same Sugar Mill i.e. Karnal Sugar Mill with a
specific clause of retirement at the age of 58 years and a Coordinate Bench of
this Court dismissed the petition on the ground that he himself had accepted the
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aforesaid condition and once there is a condition in the appointment letter with
regard to the retirement age, then he cannot turn around and say that his date of
retirement should be changed to 60 years and on this premise, the aforesaid writ
petition was dismissed. On the other hand, learned counsel for the petitioners
has argued that the aforesaid judgment passed by a Coordinate Bench of this
Court does not take into consideration or even refer to the Statutory Service
Rules nor the applicability of various instructions issued from time to time but
primarily the petition has been dismissed only on the ground that a specific
clause pertaining to retirement age was inserted in the appointment letter of
that petitioner and therefore, the petition was dismissed. Therefore, it cannot be
said that the case of the respondents is covered by the aforesaid judgment.
30. For the purpose of analyzing and considering the aforesaid
submissions of learned counsel for parties, it would be apt to analyze the
position of law in this regard.
Doctrine of stare decisis, sub silentio and per incuriam
31. Doctrine of stare decisis is expressed in the maxim 'Stare decisis
et non quieta movere' which means 'To stand by decisions and not to disturb
which is settled'. The basic reason and logic of this doctrine is to maintain
consistency by eliminating uncertainity. In other words, a view which is already
settled should not ordinarily be disturbed because another view is possible.
32. However the doctrine of stare decisis is subject to two exceptions
i.e. sub silentio and per incuriam. According to the Black's Law Dictionary,
sub silentio which is a latin maxim means 'under silence, without notice being
taken, without being expressly mentioned' and the maxim per incuriam means
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'of a judicial decision wrongly decided usually because the Judge or judges
were ill-informed about the applicable law'.
33. The aforesaid two doctrines of sub silentio and per incuriam being
exceptions to the doctrine of stare decisis are although not synonymous but
they overlap with each other since there is a thin line of distinction. However
effect in their operation carrying out an exception is similar in nature. When a
point of law which has legal enforceability by way of a Statutory provision or
any other instrument has escaped from consideration in a decision, then that
point of law is said to have passed in sub silentio. A decision is per incuriam
when it does not take note of or ignores a Statutory law, judgment or
applicable law, then such a decision is said to be per incuriam. However the
end result in both the above stated exceptions is the same that in both the
eventualities, the judgments are of no legal intent and are not to be followed as
precedents.
34. In the present case, a perusal of the judgment passed by a
Coordinate Bench vide Annexure R-2/12 would show that the judgment has
been passed in personam and there is neither any declaration of law nor any law
has been laid down nor the provisions of law having statutory force in the form
of Statutory Service Rules or any such instrument having the force of law has
been considered. However, in the present case, the entire case of the petitioners
is dependent upon the enforceability of Statutory Service Rules which have
been framed under Rule 29 of the Cooperative Societies Rules, 1989 which
have been framed under the Haryana Cooperative Societies Act, 1984. Apart
from the above, the fact that the aforesaid Service Rules on which heavy
reliance has been placed by the learned counsel for the petitioners as to whether
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they are Statutory Service Rules or not is not disputed by any of the learned
counsels for the respondents including the State.
35. In other words, since the nature of Service Rules being Statutory in
nature is not disputed by the respondents in the present case, the petitioners
seek to enforce the rights vested in them in the aforesaid Service Rules which
are statutory in nature. Therefore, this Court is of the view that the aforesaid
judgment Annexure P-2/12 is per incuriam with the Statutory Services Rules
and consideration of the aforesaid issue of the applicability of these rules to the
petitioners was passed sub silentio in the aforesaid judgment. Therefore, it
cannot be said that the present petitions should be dismissed only on the basis
of the aforesaid judgment nor it would be appropriate to refer the present
petitions to a larger Bench.
36. On merits, a primary argument has been raised by learned counsel
for the petitioners that the services of the petitioners are governed by the
Service Rules of 1991, which are Statutory Service Rules and in pursuance of
Rule 14 of the aforesaid Rules, the date of retirement of the petitioners is to be
governed by the Sugar Wage Board. As per recommendations of the Third
Sugar Wage Board, the retirement age of a workman would be 60 years. It is
undisputed that the petitioners are workmen and at the time when the Third
Sugar Wage Board was constituted and recommendations were made, specific
provisions have been incorporated as reproduced above that for a workman, the
age of retirement will be 60 years. The aforesaid Statutory Services Rules
were not only adopted by the respondents-Sugar Mills by passing a Resolution
but they were also implemented later on and as per the learned counsels for the
parties, the implementation is continuing till date, which is almost 32 years.
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37. However, later on a development took place wherein there was a
revision in the pay-scale of all the employees uniformly including those who
were governed by the Sugar Wage Board vide Annexure R-2/8 and thereafter,
on the basis of the aforesaid logic which prevailed over the respondent-
SUGARFED that since now the wage structure of those who were earlier
governed by the Sugar Wage Board and that of the Government employee is
the same, their retirement age should also be altered and on the basis of the
aforesaid reasoning, the Managing Director of the SUGARFED issued a letter
dated 12/16.11.2009 in the nature of a 'clarification' vide Annexure R-2/11
whereby it was so stated that it is clarified that for those employees who are
recruited in the old pay scale before 01.09.2009, except those who are already
getting Government scale, their retirement age would be 60 years, whereas
those employees who will be recruited after the new pay scales on Government
pattern w.e.f. 01.09.2009 will have retirement age on Government pattern i.e.
58 years. In this way, by way of aforesaid clarificatory letter issued by the
Managing Director of the SUGARFED which is the Apex body, a new
classification came into being by fixing a cut off date. However, there is
nothing on the record to show that the aforesaid clarification was in pursuance
of any direction issued by the Registrar, Cooperative Societies but as per the
learned counsels for the respondents, it was a result of various meetings which
were held between the Managing Director and Unions but there is nothing on
record to show that any formal approval was sought from the Registrar,
Cooperative Societies of the Government of Haryana. However, as per learned
Senior Counsel for the respondents, in the State of Haryana, the Managing
Director of the SUGARFED, exercises the powers of Registrar, Cooperative
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Societies for the purpose of functioning of the Sugar Mills. However, it is an
admitted position that there was no amendment to the aforesaid Service Rules
of 1991 with regard to the clause pertaining to the retirement age.
38. When the aforesaid Rules were framed in the year 1991 under Rule
29 of the Haryana Cooperative Societies Rules, then with the approval of the
Registrar, Cooperative Societies, the same were sent to the respective Sugar
Mills for adoption. The respective Sugar Mills including the present
respondents-Sugar Mills admittedly adopted the same by passing a Resolution
and thereafter, they were acted upon. In this way, the Statutory Service Rules
continued and they are still continuing till date. Rule 29 of the Haryana
Cooperative Societies Rules is reproduced as under:-
"29. Employees of Cooperative Societies (Section 131(2) (xxxix)-
Subject to the provisions of Section 37 of the Act, every society
( shall make rules in the light of model service rules to regulate) the
recruitment and conditions of service of its employees with the
approval of the Registrar."
39. In the year 2009, when the aforesaid letter was dated
12/16.11.2009 vide Annexure R-2/11 (R-3/1) was issued, then a perusal of the
same would show that it was only clarificatory in nature, whereas no
amendment has been effected in the Statutory Service Rules.
40. On the other hand, the Statutory Service Rules clearly provide
under Rule 14 that all the employees 'except' covered under Sugar Wage Board
shall retire from the service of society on attaining the age of 58 years. For the
employees who are covered under the Sugar Wage Board, the Third Wage
Board had already recommended that the age of retirement shall be 60 years
especially to that of the 'workmen'. It is not disputed by the respondents that the
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petitioners are the workmen and as per the recommendations of Sugar Wage
Board, their retirement age was 60 years but the argument which has been
raised by learned counsels for respondents was that once the aforesaid letter
Annexure R-2/11 (R-3/1) dated 12/16.11.2009 has been issued which has been
thereafter subsequently adopted by the respondents-Sugar Mills, then the
aforesaid recommendations of the Sugar Wage Board even if they are so
incorporated in Rule 14 would not be applicable to the petitioners.
41. This Court is of the considered view that any administrative order
or instruction which is contrary to the Statutory Rules is non-est and has no
force of law. This proposition of law is no longer res-integra. Hon'ble Supreme
Court in Ashok Ram Parhad and others Versus State of Maharashtra and
others, 2023 SCC Online SC 265 held as under:-
"25. In service jurisprudence, the service rules are liable to prevail.
There can be Government resolutions being in consonance with or
expounding the rules, but not in conflict with the same. On having set
forth this general proposition, we now examine the scenario of the
Rules as prevalent. If we turn to the statutory Rules framed
under Article 309 of the Constitution, i.e., the 1984 Rules, Rule 2
refers to the appointment to the post of the DFO and the same to be
made by promotion from amongst officers of the Maharashtra Forest
Service and also by appointment directly. The Proviso to Rule 2 of the
1984 Rules is unambiguous and quite clear, i.e., the period spent on
training at Government Forest Colleges and other period of probation
including extended period of probation, if any, "shall not be counted
towards the requisite period of service." Thus, what is envisaged is
that the appointment is different from the recruitment process, which
starts with the commencement of training. There can be possibilities
of a candidate not completing the training satisfactorily, thereby
resulting in the candidate's removal on probation. Such probation
period can also be extended to see whether a candidate improves in
performance. (Hence, even if the Government Resolution dated
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25.01.1990 upgraded the post."of ACF from Class II to Class I, the
Proviso to Rule 2 of the 1984 Rules will continue to hold valid in
determining the period of service.) .
42. Another argument was raised by learned counsels for the
respondents-Sugar Mills that Board of Directors of a Cooperative Society is the
Chief Executive Body and it is to decide a matter placed before it which has the
force of law and since the aforesaid letter dated 12/16.11.2009 has been so
adopted by the respondents-Sugar Mills, it will have the force of law. The
aforesaid argument of learned counsels for the respondent-Sugar Mills is not
sustainable in view of the fact that even if the Board of Directors of a
Cooperative Society is the Chief Executive Body but even a Chief Executive
Body or a Board of Directors of a Cooperative Society cannot act in violation
and contrary to the Statutory Services Rules when these Rules have a force of
law and which are enforceable and therefore vests a right upon a person. These
Statutory rights cannot be taken away by passing of a subsequent Resolution in
the absence of an amendment to the aforesaid Statutory Services Rules.
Therefore any adoptation made by the Board of Directors of Sugar Mills in
pursuance of clarificatory letter dated 12/16.11.2009 is liable to be ignored in
the light of the Statutory Services Rules.
43. Another argument was raised by learned counsels for the
respondents-Sugar Mills that although there was a provision for 60 years of age
of retirement for a workman as per the recommendations of Sugar Wage Board
but the aforesaid recommendations of the Third Sugar Wage Board
extinguished and ceased to operate after a period of 10 years because the tenure
of the same was 10 years. He referred to the provisions of para No.284 of the
Third Sugar Wage Board which have been reproduced above, wherein the
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tenure of the recommendations was only 10 years i.e. from the year 1988 to
1998 and as per the learned counsels for respondents-Sugar Mills, once the
tenure has been extinguished in the year 1998 and the petitioners have been
appointed in the years 2015 and 2016, they cannot take the benefit of the
aforesaid retirement age of 60 years even if the same has been recommended in
the aforesaid recommendations to be 60 years.
44. The aforesaid argument raised by learned counsels for the
respondents-Sugar Mills although seems to be attractive but does not cut any
ice. The aforesaid recommendations of Third Sugar Wage Board came into
being on 31.01.1989 and as per the aforesaid para No.284, it was so stated that
the recommendations shall remain in force for a period of 10 years i.e. w.e.f. Ist
January, 1988. These recommendations were made on 31.01.1989, wherein
recommendations of the age of 60 years for a workman was provided. In
pursuance of these recommendations which were accepted by the respondents,
the Service Rules were framed under the Cooperative Societies Act and Rules
made thereunder in the year 1991. These Service Rules were adopted by the
Sugar Mills in the year 1992 and therefore, rights of the petitioners and
similarly situated persons got crystallized in their favour in the year 1992 itself.
In other words, the recommendations which were made in the year
1989 were duly implemented and accepted and solidified in the year 1992 by
creation of rights. Therefore, it cannot be said that as per the report, the
recommendations were only till the year 1998 and the status of the petitioners
would cease to operate thereafter. A perusal of the aforesaid para No. 284 as
reproduced above earlier would show that it would mean that after making
recommendations they will remain in force for a period of 10 years which
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means that they are to be considered to be acted upon and implemented or
accepted within the aforesaid period of 10 years and if nothing is done for a
period of 10 years, then after 10 years, the recommendations will cease to
operate. However, the position is not the same in the present cases as in the
present cases, those recommendations were acted upon within a period of 10
years and so far as the framing of the Service Rules are concerned, it
culminated into framing of the Statutory Service Rules which had the force of
law in the year 1992 within the period of 10 years by crystallizing the rights
within the aforesaid period and therefore, ex-facie argument raised by learned
counsels for the respondents-Sugar Mills is misconceived and is liable to be
rejected.
45. Another argument was raised by learned counsels for the
respondents-Sugar Mills that in the year 2004, the benefit of revision of pay
scale was granted to those employees who were being governed by the Sugar
Wage Board and thereafter, even the benefit of 7th Pay Commission was also
given in the year 2017 and all of them were brought at par with the other
employees and a uniformity was maintained and it was because of this reason
that the aforesaid clarification was issued that those who have been recruited in
old pay scales before 01.09.2009, their retirement age will be 60 years but
those who were recruited after giving the new pay scales on Govt. pattern
w.e.f. 01.09.2009 will have the retirement age on Govt. pattern i.e. 58 years
and therefore, the classification was a reasonable classification. However, the
aforesaid argument of the learned counsels for the respondents-Sugar Mills also
deserves to be rejected on the ground that the revision of pay scale or grant of
benefit of 7th Pay Commission report uniformly to the employees cannot take
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away the vested right of the employees which was conferred upon them by
virtue of Rule 14 of the Statutory Service Rules which has the force of law.
Revision of pay-scale or implementation of any Pay Commission Report is
totally different from that of the retirement age which has been fixed under the
Statutory Services Rules. Had it been a case that on the basis of the aforesaid
logic or rationale that an amendment was carried on in the Statutory Service
Rules, then the petitioners would not have any case but it is an admitted
position that there was no amendment carried on in the Statutory Service Rules
and therefore, the aforesaid rationale or logic has no basis for the purpose of
considering the retirement age of such employees.
46. Next argument which was raised by learned counsels for the
respondents-Sugar Mills was that the petitioners were appointed in the years
2015 and 2016 and in their appointment letters a specific condition was
incorporated in clause 19 that their retirement age will be 58 years and
therefore, after accepting the same, they cannot now turn around and say that
their retirement age should be 60 years. A perusal of the appointment letter
(Annexure P-3) would show that in addition to the aforesaid clause 19, there is
another clause incorporated in clause 13 which provides that the petitioner will
in all other respects be governed by the Service Rules of the Mills establishment
applicable from time to time. Therefore, clause 19 cannot be read in isolation
from clause 13. As per clause 13, the service conditions of the petitioners were
to be governed by the Service Rules of the Mills which are the Rules of 1991 as
adopted by the Sugar Mills in the year 1992 and under Rule 14 it is provided
that retirement age of employees covered by Sugar Wage Board will be as per
recommendations of Sugar Wage Board. The petitioners were covered under
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Sugar Wage Board being workmen and therefore, their retirement age was 60
years. Therefore, it is crystal clear that the aforesaid clause 19 incorporated in
the appointment letter was contrary to the Statutory Service Rules. It is a
settled law that if any clause is inserted in any instrument or in any appointment
letter which is totally contrary to the Statutory Service Rules which have the
force of law, then such a clause is void ab initio and non-est and is liable to be
ignored.
47. One additional argument was also raised by learned counsels for
the respondents-Sugar Mills in this regard that after accepting the aforesaid
condition of retirement at the age of 58 years in the appointment letter by the
petitioners and worked upon the post, they cannot turn around and say that the
aforesaid clause will not apply to them. However, such an argument is
unsustainable since there can be no estoppel against law or a Statute. If a clause
is contrary to Statutory Service Rules, then the same cannot be enforced against
the petitioners.
48. During the course of arguments, learned counsel for the petitioners
also raised an additional argument by stating that the aforesaid clause was also a
result of an inequality in the bargaining power and was an unconscionable
clause particularily considering the background of the case wherein the
petitioners were earlier working in Bhuna Cooperative Sugar Mill which was
wound up and they became unemployed and it was on the basis of the
directions issued by a Coordinate Bench of this Court vide Annexure P-2 that
they were directed to be taken afresh and it was to avoid unemployment and
pitiable condition of the employees of the Bhuna Cooperative Sugar Mill. There
appears to be a reason and substance in the argument raised by learned counsel
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for the petitioners. In those extraordinary circumstances, there was no occasion
for the petitioners to have not accepted the appointment letter at that point of
time only because of the aforesaid clause 19 because the only focus was on
getting an employment for livelihood and to support the family. Even otherwise
also, such kind of clauses which are unconscionable cannot be given effect in
view of the judgment of Hon'ble Supreme Court in Central Inland Water
Transport Corporation Ltd. And another Versus Brojo Nath Ganguly and
another (supra).
49. An argument was raised by Mr. Samarth Sagar, learned Additional
Advocate General, Haryana that there is a provision in Rule 43 of Statutory
Service Rules, 1991, which provides that employees covered under the Sugar
Wage Board will be governed in the matter of pay and allowances as per the
Sugar Wage Board recommendations and the pay of the other employees will
be as per Annexure-'A' and their allowances will be as per Govt. Rules. He
submitted that for the purpose of pay and allowances, two classifications were
created under the Rules. Firstly, those employees who were governed by the
Sugar Wage Board and secondly, those who were governed by the Government
Rules but this classification had eroded after the employees who were governed
by the Sugar Wage Board were granted the pay at par with those employees
who were governed by the Government Rules and uniformity had come into
play. The aforesaid classification in Rule 43 extinguished because of the
uniformity in the pay scales which ultimately became a reason and logic for
issuance of a clarification letter vide Annexure R-2/11 (R-3/1). However, the
aforesaid submission made by learned learned Additional Advocate General is
liable to be rejected because of the reason that extinguishment, if any, of the
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classification based upon the pay scale by grant of uniform pay scale cannot
have any effect on the classification which has been so made under Rule 14.
There is no inconsistency between Rule 14 and Rule 43 and they operate in an
independent domain. Even if assumingly there is some inconsistency then the
Doctrine of Harmonious Construction is required to be applied for giving effect
to both the provisions. Rule 14 deals with the retirement age and Rule 43 deals
with the pay and allowances and therefore, a change of circumstance
emanating from Rule 43 cannot be transposed into Rule 14 so as to deny a
vested right which has been so vested in an employee by virtue of Rule 14
which is a part of the Statutory Service Rules.
50. In view of the aforesaid facts and circumstances of the present
case, all the three petitions are allowed. It is held that the retirement age of the
petitioners shall be 60 years. The issue raised stands answered. The learned
counsels for the parties have stated that qua all the three petitioners, the order of
retirement has not been passed and they have not been relieved from service
even if they have crossed the age of 58 years. Therefore, it is directed that the
petitioners shall continue in service till attaining the age of 60 years.
51. Since there are hundreds of such similarly situated employees who
were appointed after the year 2009 and out of them some might have retired
and some of them are yet to retire, it will be necessary to issue following
directions:-
(1) The present judgment will operate prospectively and will not
apply to those who have already retired and relieved.
(2) The respondents are directed to consider passing of an order to
rationalize the effect of present judgment in which it has been held
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that the retirement age would be of 60 years to those similarly situated
employees who are yet to retire, by issuance of an appropriate
direction, so as to avoid any multiple litigation in view of the
principle of Interest Reipublicae ut sit finis litium, which means that
it is in the interest of the State to put an end to the litigation.
(JASGURPREET SINGH PURI)
03.05.2024 JUDGE
Rakesh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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