IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6360 of 2001 With SPECIAL CIVIL APPLICATION No. 6361 of 2001 For Approval and Signature:
HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= V K DHARIA - Petitioner(s) Versus TOURISM CORPORATION OF INDIA & 2 - Respondent(s) ========================================================= Appearance :
MR ANSHIN H DESAI for Petitioner(s) : 1, MR NAGESH C SOOD for Respondent(s) : 1, MR MD PANDYA for Respondent(s) : 2, MRS VAIJAYANTI S.PATHAK, AGP for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.B.PARDIWALA Date :11/05/2012 COMMON CAV JUDGMENT As common questions of fact and law are involved in both the above captioned petitions, they were heard together and are being disposed of by this common judgment and order.
1. By way of this petition under Article 226 of the Constitution of India, the petitioners, employees of respondent no.1 serving as Chokidar at one point of time, have prayed for the following reliefs :
“16.
(A) YOUR LORDSHIPS may be pleased to admit and allow this petition.
(B) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, by directing the respondents, mainly respondent No.1, their officers, agents and servants to give to the petitioner the retirement benefits which are due and payable to him from the date of his original date of appointment, by calculating the same from the original date of appointment i.e. 1/5/1980 within a period of 15 days or as expeditiously as possible.
(C) Pending admission, hearing and final disposal of this petition, direct the respondents, mainly respondent No.1, their officers, agents and servants to expedite the payment of retirement benefits which are due and payable to the petitioner, by calculating the same from the original date of appointment i.e. 1/5/1980, forthwith.
(D) To pass such other and further orders as may be necessary in the interest of justice.”
2. Facts relevant for the purpose of deciding these petitions may be summarized thus :
The petitioners were serving in Sasan Gir Forest Lodge owned by India Tourism Development Corporation i.e. respondent no.2. The petitioners were originally appointed vide order dated 1/5/1980 to the post of Chokidar in the Sasan Gir Forest which was under the control and administration of respondent no.2 – India Tourism Development Corporation.
Record reveals that the respondent no.1 i.e. Tourism Corporation of Gujarat Ltd., took over the management, administration and control of Sasan Gir Forest Lodge and thereafter undertook to continue the services of several persons like the present petitioners who were serving on various posts with continued service.
It is the case of the petitioners that at the relevant point of time when respondent no.1 took-over the management from respondent no.2, no option was given by the respondents and the services of all employees were continued as continuous service. No fresh appointment orders were issued nor any interviews were held and several persons like the present petitioners were absorbed under respondent no.1 - Tourism Corporation of Gujarat Ltd.
Record reveals that the services of such persons who were serving in Sasan Gir Forest were treated as continuous services and it was mutually decided between respondents nos.1 and 2 to absorb all persons working in Sasan Gir Forest in the Tourism Corporation of Gujarat Ltd., i.e. respondent no.1 and it was also resolved in the meeting of the Board of Directors of respondent no.1 at item No.7, relying upon Government Order No.2-WL-3/75-PT-I dated 26/8/1985.
Record also reveals that EPF and Gratuity of the petitioners were also transferred under respondent no.1. It was by virtue of the petitioners’ services in respondent no.2 that the services of the petitioners were transferred and absorbed by respondent no.1.
It appears that vide Resolution dated 9/3/2000 respondent no.1 floated a Voluntary Retirement Scheme and a date was fixed within which a person desirous of opting for VRS had to make such application. The petitioners opted for VRS and filled-in the requisite form. As the response to the scheme of VRS was not satisfactory, vide communication dated 20/4/2000, the date of accepting the forms for VRS was also extended. It is also the case of the petitioners that all the increments during the service of the petitioners were also given to the petitioners by stating that the services of the petitioners were termed as continuous service from the office under control of respondent no.2 to the office under control of respondent no.1.
However, a problem cropped-up when respondent no.1, while giving the retirement benefits to the petitioners under the VRS scheme, refused to take into consideration 5 years' service with respondent no.2. It appears that respondent no.1 took a decision that since the management of Sasan Gir Forest Lodge was taken over in the year 1985 and the employees were also absorbed by respondent no.1 in 1985, the past services of 5 years rendered by the petitioners cannot be considered and counted for the purpose of giving benefits as per the VRS. The petitioners sent a communication dated 26/4/2000 to respondent no.1, pointing out the relevant facts that the retirement benefits, gratuity etc. must be paid to the petitioners considering the original date of appointment and not from the date when respondent no.1 took over the services of the petitioners from respondent no.2.
Record also reveals that the petitioners, having learnt that their original date of appointment was not to be counted for commuting the retirement benefits, applied on 24/4/2000 for withdrawing themselves from the VRS scheme. It appears that the office of respondent no.1 informed that the petitioners were entitled to get the retirement benefits as per the rules of the Government. Accordingly, the petitioners were treated having voluntarily retired from 30/4/2000 after office hours vide communication dated 30/4/2000 issued by the office of respondent no.1.
It appears that thereafter number of representations were preferred by the petitioners in this regard, but there was no response at the end of respondent no.1.
The petitioners were, therefore, left with no other option but to prefer the present petition praying for appropriate writ, order or direction upon respondent no.1 to pay all the retirement dues and benefits which accrued in their favour from 1/5/1980 to 15/10/1985 i.e. the period during which they were working under respondent no.2.
3. The learned advocate Mr.Anshin N.Desai appearing for the petitioners vehemently submitted that the decision of respondent no.1 to exclude the period from 1980 to 1985 for the purpose of retirement benefits under Voluntary Retirement Scheme is arbitrary, unconstitutional and high-handed. Mr.Desai submitted that when respondent no.1 agreed to absorb the employees working under respondent no.2 in the year 1985 no such conditions were attached that they will be treated as employees of respondent no.1 only from 1985 and that the past services with respondent no.2 will not be counted for any purpose. Mr.Desai further submitted that when there was protection of pay then for all practical purposes it must be understood that the petitioners were absorbed by respondent no.1 unconditionally. Mr.Desai also submitted that had it been a case of fresh appointment, perhaps thing would have been different, but this is not a case of fresh appointment, but a simple case of absorption with protection of pay. Mr.Desai submitted that the petitioners are Class-IV employees and they cannot be told that their service for 5 years with respondent no.2 has gone in vain and they would not be entitled to any retirement benefits so far as that interregnum period is concerned. According to Mr.Desai this action is violative of Article 14 of the Constitution of India.
4. Per contra, the learned advocate Mr.Nagesh C.Sood appearing for respondent no.1, submitted that the petitioners have already been paid their retiral dues considering the length of service w.e.f. 15/10/1985 i.e. the date from which respondent no.1 - Corporation took over the management of the Lodge from respondent no.2. He further submitted that the petitioners are entitled only for the pensionary benefits for the period during which the petitioners remained as employees of respondent no.1 and, therefore, there is no question of counting the initial 5 years of service with respondent no.2 for the purpose of grant of any retirement benefits. Mr.Sood submitted that the terms and conditions under which the management and operation of the Forest Lodge at Sasan Gir was entrusted by the Government of India i.e. respondent no.2 - Corporation in favour of respondent no.1, does not provide for absorption of the employees who were working with respondent no.2 - Corporation. According to Mr.Sood the employees were taken as fresh appointees by respondent no.1 - Corporation and, therefore, the petitioners are governed as per the terms and conditions of service provided under respondent no.1 - Corporation.
6. Thus, it appears from the submissions of Mr.Sood appearing for respondent no.1 that respondent no.1 considered the petitioners as fresh appointees from 1985 and, therefore, respondent no.1 would not be liable for payment of any retirement benefits to the petitioners for the period between1980 to 1985.
7. I could not get the benefit of knowing or understanding the stand of respondent no.2 as, despite adjourning the matters for number of times, none appeared for respondent no.2. There is no affidavit-in-reply also filed on behalf of respondent no.2 as to what is their stand in the matter. Therefore, in the absence of any reply or stand from respondent no.2 I have no other option but to decide the matter on the basis of submissions made by respective counsels for the parties and the materials on record.
8. The only question which falls for my consideration in this petition is as to whether the petitioners are entitled to count the period between 1980 and 1985 for the purpose of retirement benefits under the Voluntary Retirement Scheme which was offered by respondent no.1 and accepted. I do not find any merit in the contention of Mr.Sood appearing for respondent no.1 that the employees were taken as fresh appointees by respondent no.1 - Corporation and, therefore, they would be governed as per the terms and conditions of service provided under respondent no.1 - Corporation. To the extent that the petitioners would be governed as per the terms and conditions of service provided under respondent no.1 - Corporation is concerned, there may not be any dispute, but I do not find any material on the basis of which it can be said that the petitioners were appointed afresh by respondent no.1 - Corporation. On the contrary, I find from Annexure-D to the petition at page-29 that the Office Order dated 4/2/1987 issued by respondent no.1 states that the petitioners were absorbed by respondent no.1 from the services of respondent no.2. Even at the time of absorption no such condition was attached that the earlier services with respondent no.2 shall not be counted for any purposes at the time of retirement. I find that there was protection of pay also and the increments were also released by respondent no.1 and, therefore, it cannot lie in the mouth of respondent no.1 that since the petitioners joined their services from 1985, the past services of 5 years would not be counted for providing retirement benefits under the VRS scheme.
9. On the facts and in the circumstances of the case, I am of the view that the contentions of Mr.Desai merit consideration. The petition deserves to be allowed and is accordingly allowed. Respondent no.1 is hereby directed to give the retirement benefits to the petitioners as if the petitioners were in service from 1980 onwards. Respondent no.1 is hereby directed to recalculate the amount due and payable to the petitioners towards the retirement benefits under the VRS which was floated in the year 2000, and calculate the difference of amount after taking into consideration the period of service with respondent no.2 i.e. from 1980 to 1985. This exercise shall be undertaken by respondent no.1 within a period of 3 months from today and shall pay the requisite amount calculated with 9% interest from the date of the petition.
/moin (J.B.Pardiwala, J.)