High Court
Case Details
Neutral Citation No. - 2023:AHC:138223-DB Court No. - 39 Case :- WRIT - A No. - 31449 of 2017 Petitioner :- Dhrup Chand And Another Respondent :- Union Of India And 2 Others Counsel for Petitioner :- Arvind Kumar Srivastava Counsel for Respondent :- A.S.G.I.,Pradeep Kumar Sinha,Vinai Kumar Singh Hon'ble Saumitra Dayal Singh,J. Hon'ble Vinod Diwakar,J.
Legal Reasoning
1. Shri Arvind Kumar Srivastava, learned counsel for the petitioners and Shri Pradeep Kumar Sinha, learned counsel for the respondents. 2. The present writ petition has been filed by the original applicants before the Central Administrative Tribunal, Allahabad Bench, Allahabad to assail the order dated 5.7.2017 passed by that Tribunal in Original Application No.1237 of 2014. The Tribunal has partly allowed the said Original Application. It has negated the claim made by the petitioners/original applicants to recalculate their wages as may have been payable to them by the respondent- Bharat Pumps and Compressors Limited (BPCL in short). It has further observed, as far as the recovery of alleged excess payments is concerned, such recoveries may arise only after due notices are issued to the petitioners. 3. Having heard learned counsel for the parties and having perused the record, as to facts, it is undisputed, the petitioner nos.1 & 2 were appointed as Semi-skilled workers on 23.5.1978 & 23.9.1978. They continued to work at that establishment continuously. At the same time, it is undisputed fact that the petitioner nos.1 & 2 availed the benefit of Voluntary Retirement Scheme (VRS) and thus severed their contract of service with BPCL, on 15.10.2007. 4. Thereafter, vide Office Order No.BPC/HD/SR-1997/2008/P- 1595 dated 20.7.2008 and further Circular No.BPC/HD/NE/WR- 2007/2011/P-959 dated 29.6.2011, decisions were made by the Manager of BPCL to grant benefits of 5th & 6th Pay Commission to its existing work force. In that regard, Clause-3 of the Office Order dated 20.7.2008 and Clause-4 of the Circular dated 29.6.2011 read as below:- Clause-3 of the Office Order dated 20.7.2008 "3. All Executive employees who were on the rolls of the Company as on 1.1.1997 and also those who have subsequently joined services in the company and continue to be on the rolls of the company on the date of issue of this order will be entitled for the benefits of revision. The Executive Employees who have ceased to be in the services of the company on or after 1.1.1997 on account of resignation, retirement or death will also be entitled for the benefits of revision but on pro-rata basis, wherever due. However the benefits of revision will not be admissible to such employees whose services in the company came to an end on the following grounds: a) Dismissal or removal from service. b) Resignation without notice or permission or proper relieval. c) Resignation where disciplinary action for mis-conduct involving moral turpitude had already been initiated and was in progress. d) Resignation without notice, where bond liability had not been discharged." Clause-4 of the Circular dated 29.6.2011 "All non-executive employees who were on the rolls of the Company as on 1.2.2007 and also those who have subsequently joined services in the Company and continue to be on the rolls of the Company on the date of issue of this order will be entitled for the benefit of revision. The non-executive employees who have ceased to be in the services of the Company on or after 1.2.2007 on account of resignation, retirement or death will also be entitled for the benefits of revision but on pro-rata basis." 5. Since the petitioners were on the roll of BPCL from before the cut off dates dated 1.1.1997 (in terms of the Office Order dated 20.7.2008) and 1.2.2007 (in terms of the Circular dated 29.6.2011), they have claimed benefit of pay revision. 6. The exact arguments being raised by the petitioners, came to be considered by a co-ordinate bench of this Court in Writ-A No.76489 of 2011 (BPCL Vs. Anand Kumar and others) decided on 25.4.2014. 7. Therein, considering the language used in Clause-3 of the Office Order dated 20.7.2008, the co-ordinate bench clearly reasoned as below:- "Paragraph-3 of the circular, as quoted above, contains two parts. In the first part, such executive employees, who were on the rolls of the company as on 01.01.1997 and also those, who had subsequently joined services in the company and continued to be on the rolls of the company on the date of issuance of the circular dated 20.07.2008 have been held to be entitled for the benefits of pay revision. The respondents herein, though, they were on the rolls of the company on 01.01.1997, undisputedly, were not on the rolls of the company on the date of issuance of the circular, i.e. 20.07.2008, therefore, none of them was covered by the first part of paragraph-3 of the said circular." 8. Thereafter, the co-ordinate bench further reasoned, case of such employees may be considered at parity with those of retired employees. Since the employees, who availed VRS, were not considered to be in the category of persons excluded from the benefit of the above Office Order dated 20.7.2008, they were considered entitled to revision of ex-gratia payment in terms of the Circular dated 31.1.2001 & 23.2.2002.
Decision
9. In view of exact similarity of facts, we find ourselves unable to note any point of difference as may lead to a different reasoning in the present case. Therefore, we hold that the petitioners remained not entitled to claim wage revision in terms of the Office Order dated 20.7.2008 and the Circular dated 29.6.2011. 10. Insofar as revision of ex-gratia payment is considered, in the present case, the petitioners had earlier filed representations before the BPCL. By earlier order passed by the Writ Court, that representation was required to be decided by BPCL. While dealing with the representation, the Senior Manager (HR & CWD) vide his order dated 10.7.2014 has observed as below:- "Your entitlement after the implementation of 1997 Wage Revision is only in terms of Circular dated 22.3.2002 issued by the Company, which reads as follows:- Ex-gratia will be recalculated on the basis of revised scale of pay in case the revised scale of pay are made effective subsequently with effect from 1.1.1997 the increased ex-gratia (50%) would also be adjusted. The other elements like gratuity, leave encashment, etc. are to be paid as per the provisions of relevant statutes and service condition. These are outside the computation of ex-gratia on voluntary retirement. Upon implementation of 1997 Wage Revision by Office Order dated 20.7.2008 the Company has calculated your dues as per Circular dated 22.3.2002 since you had come under the zone of consideration and your dues after the adjustment was calculated to Rs.28,197.09 but the Company inadvertently, has paid you Rs.1,96,181.42, whereas you were entitled to only Rs.28,197.09. The Company, therefore, has paid you an excess amount of Rs.1,67,984.33. The Company will initiate recovery proceeding in appropriate forum for recovering excess amount paid to you." 11. Thus excess payment is being claimed by BPCL. 12. On one hand, the BPCL has not disclosed computation of such excess payment and it is also their case, at present the Company in question has closed down permanently, the petitioners have failed to lead any facts as may lead to any reasonable doubt to the correctness of the observations made in the communication dated 10.7.2014, on facts. 13. Unless prima-facie, material had been placed before the Writ Court to establish the correctness of the claim being made by the petitioners- that they had not been paid ex-gratia payment as per the Circular dated 31.1.2001 and 22.3.2002, it is not for the Writ Court to speculate as to the amount that may have been payable to the petitioners. The burden to establish the correctness of their claim was on the petitioners. 14. Unless minimum facts had been disclosed, we may not reach any conclusion other than that reached by the Tribunal. Therefore, at present, we do not find any case made out to compel the BPCL or the Union to consider award of any higher amount than has been paid out to the petitioners. 15. As to the recoveries, we are mindful of the fact that the contract of service of the petitioner were severed in the year 2007. 16 years have passed since then. The amount paid to the petitioners was about Rs.1,96,181/-. Of that about Rs.1,70,000/- is disclosed to be excess payment. While the Tribunal has allowed the BPCL to issue notice to the petitioners to determine the excess amount paid and to recover the same, we find no useful purpose may be served by allowing the recoveries to arise when the corporation itself has closed down and the petitioners have long retired from service. Generally speaking, retired employees may not be inconvenienced with such recoveries long after their retirement. 16. In the present case, keeping in mind the petty amount involved and the fact that there is no conduct attributed to the petitioners as may have led to any excess payment, the writ petition is disposed of with the modification to the order of the Tribunal that no recoveries be made from the petitioners. Order Date :- 12.7.2023 Anil K. Sharma (Vinod Diwakar, J.) (S.D. Singh, J.) Digitally signed by :- ANIL KUMAR SHARMA High Court of Judicature at Allahabad