IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST, 2017 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION Nos.16057-16059/2014(L-PG) C/W WRIT PETITION Nos.16060-16063/2014(S-R) IN WP Nos.16057-59/2014 BETWEEN:
1. SRI K. RAJAPPA, S/O LATE KEMPEGOWDA, AGED ABOUT 66 YEARS, RETIRED JUNIOR ENGINEER (ELEC), O/O THE ASSISTANT EXECUTIVE ENGINEER (ELEC.), BESCOM, N1 SUB-DIVISION, RAJAJINAGAR, BANGALORE-560010, & R/A NO.97/12, 1ST CROSS, KIRLOSKAR COLONY, W.O.C.ROAD, BASAVESWARANAGAR, BANGALORE-560079.
2. SRI. B. S. PREM KUMAR, S/O LATE B. SRINIVASA MURTHY, AGED ABOUT 66 YEARS, RETIRED JUNIOR ENGINEER (ELEC), O/O THE EXECUTIVE ENGINEER (ELEC), TL AND SS DIVISION, KPTCL, SRS PEENYA, BANGALORE-58, AND R/A NO.109, L.G.RAMANNA LAYOUT, LAGGERE, BANGALORE-560058.
3. CHAMUNDAIAH, S/O LATE CHAMAIAH, AGED ABOUT 67 YEARS, RETIRED ASSISTANT, O/O THE EXECUTIVE ENGINEER (ELEC), BESCOM, RURAL SOUTH DIVISION, RAMANAGARA, & R/A NO.1357/A, 5TH MAIN, "E" BLOCK, 2ND STAGE, RAJAJINAGAR, BANGALORE-560010.
... PETITIONERS (BY SRI DEVARAJ N., ADVOCATE) AND:
THE MANAGING DIRECTOR, KARNATAKA POWER TRANSMISSION CORPORATION LIMITED, CAUVERY BHAVAN, K.G.ROAD, BANGALORE-560009.
(BY SRI AJITH ANAND SHETTY, ADVOCATE) ... RESPONDENT …… IN WP Nos.16060-63/2014 BETWEEN:
1. SRI D. VEERABHADRAIAH, S/O LATE M. N. DODDAPPAIAH, AGED ABOUT 68 YEARS, RETIRED ASSISTANT ENGINEER(CIVIL) O/O THE CHIEF EXECUTIVE ENGINEER, BMA-2, BESCOM, K.R.CIRCLE, BANGALORE-560001, AND R/A NO.1213, 11TH CROSS, 24TH MAIN SECTOR-1 HSR (KENGAL HANUMANTHAIAH) LAYOUT, BANGALORE-560102.
2. SRI CHRISTOPHER BENJAMIN, S/O LATE D. M. JACOB, AGED ABOUT 66 YEARS, RETIRED SENIOR GRADE TYPIST, O/O THE EXECUTIVE ENGINEER (ELEC), BESCOM, ADDITIONAL EAST DIVISION, LAZAR ROAD, BANGALORE-560005, & R/A NO.9, "GRAUSTAR APARTMENT", FLAT NO.202, IIIRD CROSS, VIVEKANANDA NAGAR, BANGALORE-560033.
3. SRI S. SHIVARAMA GUPTA, S/O SRI. SUBBARAMAIAH, AGED ABOUT 67 YEARS, RETIRED ASSISTANT ENGINEER (ELEC), O/O THE EXECUTIVE ENGINEER (ELEC), TL AND SS DIVISION, KPTCL, SRS PEENYA, BANGALORE-58, AND R/A NO.103/A, 4TH ‘B’ MAIN, 4TH CROSS, MAHALAKSHMI LAYOUT, FURTHER EXTENSION, BANGALORE-86.
4. SRI SIDDAPPA, S/O LATE VENKATA DASAPPA, AGED ABOUT 72 YEARS, RETIRED MECHANIC GRADE-II, O/O THE EXECUTIVE ENGINEER (ELEC), KPTCL, SRS PEENYA DIVISION, BANGALORE-58, AND R/A NO.E3, KPTCL COLONY, RAJAJINAGAR 2ND BLOCK, BANGALORE-560010.
(BY SRI DEVARAJ N., ADVOCATE) AND:
THE MANAGING DIRECTOR, KARNATAKA POWER TRANSMISSION CORPORATION LIMITED, CAUVERY BHAVAN, K.G.ROAD, BANGALORE-560009.
(BY SRI AJITH ANAND SHETTY, ADVOCATE) *** ... PETITIONERS ... RESPONDENT THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENTS TO PAY THE PENSIONARY BENEFITS CALCULATED IN TERMS OF DEFINITION OF WAGES UNDER SECTION 2(S) OF THE PAYMENT OF GRATUITY ACT AND FURTHER TO PAY THE DIFFERENCE BETWEEN THE GRATUITY PAID TO THEM AND THE ENHANCED GRATUITY IN TERMS OF PAYMENT OF GRATUITY ACT, 1972 ALONG WITH INTEREST @ 18% P.A. FROM THE DATE OF ITS ACTUAL PAYMENT TILL THE DATE OF REALIZATION.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioners who were working as Assistants and Junior Engineers (Elec) in the respondent Corporation, on their retirement from service on attaining the age of superannuation, are before this Court for a writ of mandamus directing the respondents to pay the pensionary benefits calculated in terms of definition of wages under Section 2(s) of the Payment of Gratuity Act, 1972 (‘Act’ for short) and further to pay the difference between the gratuity paid to them and the enhanced gratuity in terms of the Act along with interest at 18% per annum from the date of its actual payment till the date of realization.
2. It is the case of the petitioners that petitioners were working as Assistants and Junior Engineers (Elec) in the respondent Corporation and retired from service on attaining the age of superannuation, between 2003 to 2005. Their service conditions were governed by The Karnataka Electricity Board Employees Service Regulations. In the year 1999, the Karnataka Electricity Board was dissolved and the respondent i.e., Karnataka Power Transmission Corporation Limited was formed and all the employees including the petitioners were transferred to the Corporation. The service regulations governing the employees continued to be applicable even after the respondent Corporation was formed including all the obligations in respect of payment and other retirement benefits including provident fund, superannuation pension and encashment of leave etc., The gratuity of employees who have retired and who are going to retire from the services of the Board before or after the date of restructuring was the liability of the successor corporate entity. It is further contended that the State Government by notification dated 21.11.1988, granted exemption in respect of those employees to whom pension and DCRG schemes of the Board are applicable from the application of the ‘Act’ and the said exemption ceased to operate, the moment the beneficial amendments were made to the provisions of the ‘Act’, first when the wage ceilings raised under Section (e) to `3,500/- w.e.f. 26.11.1992. The employees who retired
persons like that of the petitioners approached this Court in W.P.No.6040/2006 and connected matters. This Court, after hearing both the parties, by order dated 07.03.2013, held that the petitioners are entitled for pensionary benefits calculated in terms of definition of wages under Section 2(s) of the ‘Act’ and that such pensionary benefits shall be calculated and disbursed as expeditiously as possible. The prayers of the petitioners to enhance the ceiling limit from the effective date and to quash the exemption order dated 21.11.1988 under Section 5(1) of the ‘Act’ were dismissed. In pursuance of the said order passed by the learned single Judge, the petitioners filed the present writ petitions for the reliefs sought for.
3. Sri Ajith Anand Shetty, learned counsel for the respondent brought to the notice of this Court that the order passed by the learned single Judge dated 07.03.2013 in W.P.No.6040/2006 and other connected matters was challenged by the respondent Corporation in W.A.Nos. 3501-3636/2013. The Division Bench of this Court, by order dated 16.02.2015, allowed the appeals and dismissed the writ petitions. The order of the learned single Judge directing the Corporation to calculate the pensionary benefits payable to the retired employees by applying the provisions of Section 2(s) of the ‘Act’ was set-aside. The said order passed by the Division Bench has reached finality.
4. Having heard the learned counsel for the parties to the lis, it is not in dispute that all the petitioners were working as Assistants and Junior Engineers (Elec) in the respondent Corporation and retired from service on attaining the age of superannuation between 2003 to 2005. Some of such retired employees filed W.P.No.6040/2006 and connected matters before this Court to quash the Board order dated 17.11.2003 in so far as it restricts the benefit of payment of enhanced gratuity only to those employees retiring on or after 18.10.2003; to hold that the petitioners are entitled to payment of difference of gratuity paid to them and the enhanced gratuity and to direct the respondents to pay the difference and other consequential reliefs. The said writ petitions were disposed off holding that the petitioners therein were entitled for pensionary benefits calculated in terms of definition of ‘Wages’ under Section 2(s) of the ‘Act’.
5. Admittedly the said order of the learned single Judge was subject matter of appeals in W.A.Nos.3501- 3636/2013 which came to be allowed by order dated 16.02.2015, wherein, it is observed as under:
“10. Having heard the learned counsel for the parties, the only point to be considered by this Court is “Whether learned Single Judge has committed an error in issuing a direction to the appellant to calculate the pensionary benefits payable to the respondent in terms of definition of ‘wages’ under Section 2(s) of the Act and such pensionary benefits shall be calculated and disbursed as expeditiously as possible?
11. Admittedly in view of the notification, the act is not applicable to the appellant/ corporation. When it is not applicable to the appellant/corporation, the manner in which retirement benefits are to be extended to its employees, the appellant is governed by the Government Order dated 15.2.1999 which is not disputed by the learned counsel appearing for the respondents. In view of Clause 8.1 of the Government Order, it is manifestly clear the manner in which the benefits are to be calculated. It is not the case of the respondent that there is a failure on the part of the respondents in not adhering to clause 8.1 of the Government Order in settling the pension. When such a case is not made out by the appellant, we are at loss to understand how Section 2(s) of the Act can be made applicable for the calculation of the retirement benefits when the respondents are governed by the service conditions of the appellant and when the appellant is bound to carry out the directions of the State Government from time to time in regard to the retirement benefits. Since the aforesaid provisions has not been noticed, we are of the view that an error is committed by the learned Single Judge in issuing the direction. Therefore, the order passed by the learned Single Judge requires to be set-aside.
12. while we hold that the direction issued by the learned Single Judge has to be set- aside, if really, the appellant has not paid the amount payable to the respondents by following Clause 8.1 of the Government Order, it is always open for the respondents to approach the appellant/corporation and if the respondents are able to show that still they are entitled for the difference amount, it if for the appellant to consider such representation in accordance with law.
13. In the result, the appeals are allowed. The direction issued by the learned Single Judge in directing the appellant to calculate the pensionary benefits payable to the respondents by applying the provisions of Section 2(s) of Payment of Gratuity Act is hereby set-aside. Consequently, the writ petitions filed by all the respondents are hereby dismissed.”
6. The order passed by the Division Bench has reached finality. Therefore, petitioners herein are not entitled for any relief. Accordingly, writ petitions are dismissed.
kcm Sd/-
JUDGE