Court No. - 36
Case :- WRIT - C No. - 22682 of 2008 Petitioner :- U.P. Industrial Consultants Ltd Respondent :- Presiding Officer And Others Counsel for Petitioner :- Jai Prakash Singh Counsel for Respondent :- C.S.C.,P.K.Misra And Case :- WRIT - A No. - 4401 of 2010 Petitioner :- Daya Shanker Mishra Respondent :- State Of U.P. And Others Counsel for Petitioner :- Prabha Kanta Mishra,P.K. Srivastava,S.K.Mishra Counsel for Respondent :- C.S.C.,J.P.Singh,S.K. Mishra,Vineet Pandey
Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the parties and perused the record.
Two connected writ petitions have arisen out of an award dated 26.4.2007 passed by the Presiding Officer, Industrial Tribunal (Ist) Allahabad in Adjudication Case No.25 of 1995. It is an award of reinstatement with 50% of backwages granted in favour of Daya Shankar Misra, respondent no.3 in Writ Petition No.22682 of 2008. The connected Writ Petition No.4401 of 2010 has been filed challenging the order dated 13.1.2010, whereby the petitioner had been retired from service of respondent no.4 namely, U.P. Industrial Consultant Ltd Kanpur (in short be referred as 'UPICO') on the premise that he had attained the age of superannuation, which is 58 years with respect to the employees of U.P.I.C.O. A further prayer has been made in the said writ petition of 2010 to issue mandamus commanding not to retire the petitioner before attaining the age of 60 years and to permit him to continue till the age of superannuation.
For the sake of convenience, the respondent no.3 in Writ Petition No.22682 of 2008 be referred to as the "employee", hereinafter.
Sri J.P.Singh, learned Advocate for respondent nos.1 and 2 at the outset submits that the award dated 26.4.2007 cannot be sustained in eye of law, in as much as, reference under Section 4-K of Industrial Dispute Act, 1947 (hereinafter referred to Act 1947) could not have been made. The reason urged is that Writ Petition No.7753 of 1986 filed by Daya Shankar Mishra had been dismissed vide judgment and order dated 12.12.1988 holding therein that the respondents were not instrumentality of the State within the meaning of Article 12 of the Constitution of India and hence no relief could be granted. Review petition filed by the employee had also been dismissed vide detailed judgment and order dated 6.12.1989 wherein this Court has held that no case for review had been made out as there was no factual foundation to infer that the Government has control over the affairs of the respondents.
It is, thus, contended that principles of res judicata would be attracted, in as much as, no liberty had been granted by this Court to the petitioner to approach the Labour Court. Reliance is placed on the judgment of Apex Court in case of Executive Engineer ZP Engg Divn vs. Digambara Rao reported in 2004 (8) SCC 262 to submit that with the dismissal of Writ petition by the High Court, the Industrial Tribunal could not have answered the reference to examine the correctness or validity of the termination order dated 7.5.1986.
It is further contended that the U.P.I.C.O. is a consulting company which is being funded by I.D.B.I and other financial institutions. The I.D.B.I was initially funding 51% of expenditures being incurred by U.P.I.C.O. I.D.B.I. being a "Banking company", in view of the provisions of Section 2 (l)(iii), the dispute raised by the employee would not be covered within the meaning of "industrial dispute".
Lastly, it is contended that the U.P.I.C.O had never terminated the services of the employee nor it has any concern with the termination order dated 7.5.1986. The employee was originally appointed in the India Investment Centre, a consulting company of the Ministry of Finance, Government of India. With the winding up of its office in the District Allahabad, under an arrangement made with I.D.B.I the employee was sent to U.P.I.C.O. He had neither been a regular employee of U.P.I.C.O having been appointed by it nor he had been absorbed in the services of U.P.I.C.O, at any point of time.
Being an employee of the India Investment Centre, New Delhi, his services had been terminated vide order dated 7.5.1986 having been found surplus. Under Rule 13 of the Service Rules applicable to the employees of the India Investment Centre, before terminating his services being 'surplus', salary in lieu of three months notice had been given. No infirmity, therefore, can be attached to the order of termination dated 7.5.1986.
With reference to the Office Memorandum dated 23.12.1981 annexed as Annexure CA-'1' to the counter affidavit to Writ Petition No.22682 of 2008, it is vehemently contended by Sri J.P.Singh, learned Advocate for the U.P.I.C.O. that the said order cannot be read to mean that the employee had been absorbed in the service of U.P.I.C.O. or he had become permanent employee of U.P.I.C.O. Moreover, the arrangement, if any, between India Investment Centre and I.D.B.I had no concern with U.P.I.C.O., in as much as, the said company had never accepted or absorbed the employee into its service.
However, it is noteworthy that the fact that the office memorandum dated 23.12.1981 had been issued with respect to the employee namely, Sri D.S. Mishra, on the post of Peon, no dispute has been raised. It is also not disputed that the employee namely, D.S. Mishra had worked from 1.1.1982 till 6.5.1987 in the Office of U.P.I.C.O., at Allahabad.
The question, therefore, arises before the Court as to whether the services of the employee had been absorbed in U.P.I.C.O. or he was treated being on deputation, parent employer being Investment Centre, New Delhi.
Answer to the said question, would necessary require the Court to go through the findings of the Industrial Tribunal. It is categorically recorded by the tribunal that there was no dispute about the fact that U.PI.C.O was maintaining an office in District Allahabad and that the office of the India Investment Centre had been wound up. It appears that inorder to protect the jobs of the employees of India Investment Centre, an arrangement was made between I.D.B.I and the India Investment Centre, a consultancy company which was Government of India, Undertaking to appoint them in the service of U.P.I.C.O. The finding of fact returned by the tribunal are categorical to this effect and no dispute had been raised with regard to the period of working of the aforesaid employee on the post of peon.
Further, a perusal of the Office memorandum dated 23.12.1981 indicates that under the arrangement made between India Investment Centre and I.D.B.I, it was decided that the offices of the E.G.B. (Entrepreneur Guidance Bureau) run by the India Investment Centre will be taken over w.e.f 1st January, 1982 by the I.D.B.I. or the organizations as may be designated for the purpose. The staff who was working at the E.G.B. would be transferred to the I.D.B.I. or the organization to be named by it or a new organisation that may be set up by it w.e.f 1.1.1982. It was further decided that the staff, whose services had been transferred would get the pay and allowances which they were drawing in the office of E.G.P.
An option was, however, given to the staff transferred from the Head office of the India Investment Centre at New Delhi to the E.G.B. to either continue to work with the I.D.B.I or organisation designated or to be set up by it or to revert back to the Head Office in their substantive grades. They were required to give their option in consultation with the I.D.B.I not later than 31.3.1982.
A careful reading of the office memorandum dated 23.12.1981, thus, indicates that the staff who was posted in the India Investment Centre (EGB), Allahabad was transferred with permanent effect to the I.D.B.I. or an organization designated by it or set up by it till 1.1.1982 for the purpose.
The result being that with the transfer of the employee in the office of the U.P.I.C.O, a consulting company funded by I.D.B.I, his services stood absorbed in the said company. It cannot be disputed that the petitioner namely U.P.I.C.O. is not an organisation set up by I.D.B.I. or designated by it under the arrangement made with the India Investment Centre. It is a consultancy company which was being funded by I.D.B.I. and other financial institutions to facilitate the placement of retired Central Government Employees.
The arguments of learned counsel for the petitioner namely U.P.I.C.O that the employee had not been absorbed or he remained employee of the India Investment New Delhi is fallacious.
The termination of services of the aforesaid employee w.e.f 7.5.1986 treating him as surplus employee on account of winding up of E.G.B at Allahabad, therefore, is a result of illegal approach being adopted by the respondents.
The services of the employee namely, Daya Shankar Mishra could not have been terminated by means of the order dated 7.5.1986 passed by the Executive Director, India Investment Centre. The award passed by the findings returned by the Industrial Tribunal in this regard, therefore, cannot be interfered.
As far as the plea of the petitioner-U.P.I.C.O. on the principles of res-judicata is concerned, the same is found misconceived, in as much as, the ordinary remedy of law cannot be denied simply on the ground that the writ petition was dismissed by this Court on the ground of maintainability. The fact which were brought before this tribunal had not been adjudicated by the Writ Court being directly and specially in issue. The principle laid down by the Apex Court in Executive Engineer ZP Engg Divn vs. Digambara Rao (supra) are not attracted.
As far as the plea that the reference under Section 4-K of Industrial Disputes Act was bad, it is undisputed that the petitioner-U.P.I.C.O though is being funded by I.D.B.I. but is not a "Banking company" within the meaning of Section 5 of the Banking Companies Act. 1949. The sub- Clause (iii) of section (l) of Section 2 of U.P. Industrial Dispute Act, 1947, therefore, would not be attracted.
For all the aforesaid reasons, no infirmity is found in the award of reinstatement with 50% of the back wages. It is admitted that the employee had been reinstated on 20.10.1998 pursuant to the interim order passed by this Court in Writ A No.2268 of 2008. No plausible submission could be made by the learned counsel for the petitioner U.P.I.C.O to assail the backwages to the extent of 50%, granted by the Industrial Tribunal. It is found that the services of the employee had illegally been terminated and he had been illegally restrained from working in the office of U.P.I.C.O.
The award of reinstatement with 50% backwages therefore, cannot be said to suffer from any error of law. With the above finding, the award dated 26.4.2007 passed by Industrial Tribunal is hereby upheld.
In so far as the connected writ petition no.4401 of 2010, is concerned, learned counsel for the respondent-employer therein has placed rules governing the services of employees of U.P.I.C.O named as Staff Rules 1979, which has been brought by means of a supplementary counter affidavit filed on 11.8.2014. Reference has been made to Rule 7(2) of the said Rules to assert that the age of superannuation of employees of U.P.I.C.O is 58 years. The employee, therefore, had rightly been retired on attaining the age of superannuation i.e 58 years. No infirmity, can be attached to the order dated 13.1.2010 passed by the respondent no.4/U.P.I.C.O in Writ Petition No.4401 of 2010.
Learned counsel for the employee, on the other hand, brought the resolution of I.D.B.I. passed in the year 2010 to submit that the age of superannuation of the employees of I.D.B.I., India Investment Company and all its subsidiary companies or organizations was raised to 60 years. The petitioner had been discriminated by superannuating him at the age of 58 years.
To deal with the submission, relevant is to read the Rule 7(2) which has been relied by the learned counsel for the petitioner. For ready reference the same as is reproduced as under:-
“7.(2) After an employee has reached an age of 55 years, he may be retired after giving him three month's in writing in case his efficiency is found by the Board to have been impaired. Subject to this, an employee shall retired on completion of 58 years of age.”
A perusal of the Staff Rules (2) 1979, indicates that the said rules have been framed by the Board of Directors of the U.P.I.C.O in the year 1979. The said rules have been brought on record by means of the supplementary affidavit filed on 11.8.2014. It has not been mentioned therein that all employees of U.P.I.C.O were being retired at the age of 58 years in the year 2010 as per the Staff Rules, 1979, as relied herein. Being an organization associated with the Central Government it would, thus, be assumed that the age of superannuation of the employees of Central Government had been taken as age of superannuation of employees, U.P.I.C.O, in the ordinary course of employment.
The decision of the respondent no.4 U.P.I.C.O. dated 13.1.2010, does not refer to the Staff Rules,' 1979 and thus, been found bad. While setting aside the notice dated 13.1.2010 issued by respondent no.4 namely, the Chairman, U.P.I.C.O. it is held that the employee namely, Daya Shankar Mishra was entitled to continue in the services of U.P.I.C.O till 31.1.2012 and he had been illegally retired from services. The Rule 7(2) of Staff Rules, 1979, therefore, is of no benefit for respondent no.4 to defend the notice dated 13.1.2010.
It is directed that the Managing Director of the U.P. Industrial Consultancy, Kanpur shall ensure payment of 50% of backwages to Sri Dayashakar Mishra, the employee concerned w.e.f the date of termination i.e. 7.5.1986 till the date of reinstatement i.e. 20.10.1998, after computation of the same, preferably, within a period of three months from the date of submission of certified copy of this order.
The employee namely, Daya Shankar Mishra, is also entitled for the arrears of salary along with allowances from 31.1.2010 till 31.1.2012 with interest @ 6% from the date of filing of the Writ Petition No.4401 of 2010 till the date of actual payment as payable to the employees of U.P.I.C.O. in the same cadre in which he was working as on 31.1.2010. Treating his date of superannuation as 31.1.2012, retiral benefits are to be computed and paid, if unpaid or after adjustments of payments made, as the case may be, in accordance with law, within the period as aforesaid.
Disposed of.
Order Date :- 29.4.2019/Harshita