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SCA/14873/2011 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 14873 of 2011
With
SPECIAL
CIVIL APPLICATION No. 15746 of 2011
To
SPECIAL
CIVIL APPLICATION No. 15956 of 2011
=========================================
VINAYAK
DAMODAR BHALERAO & 211 - Petitioner(s)
Versus
VADODARA
MUNICIPAL CORPORATION - Respondent(s)
=========================================
Appearance
:
MR SUDHAKAR B JOSHI for
Petitioner(s) : 1 - 142,144 - 189,191 - 198,200 - 205,207 -
212.MR CHAITANYA S JOSHI for Petitioner(s) : 1 - 198,200 - 205,207 -
212.
None for Respondent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 19/10/2011
ORAL
ORDER
1. These
petitions under Article 226 of the Constitution of India are filed by
the petitioners, erstwhile employees of the respondent-Municipal
Corporation whose services were put to an end on 9th May,
1988 pursuant to one tripartite agreement between the Union of
employees of Municipal Corporation, Gujarat Electricity Board and the
authorized representative of Municipal Corporation of Baroda and
pursuant to the said compromise, an amount towards compensation was
to be paid was accepted by the petitioners and for all 22 years the
said compromise remained unchallenged. The petitioners seeks
direction of invoking extraordinary jurisdiction of this Court under
Article 226 of the Constitution of India on the ground that when
their services came to an end pursuant to above compromise all the
petitioners have rendered not less than 10 years and, therefore, they
were entitled for pension under Rules framed by the government as
applicable to employees of Municipal Corporation. It is submitted
that the petitioners have made representation to authorities and some
of the petitioners who filed writ petitions on a wrong premise for
claiming commuted pension came to be rejected and claim made by the
petitioners herein is based on a different ground and that the
pension is not a bounty or charity and to receive pension is
fundamental right and when no pension is paid, delay itself will not
come in the way of the petitioners to receive pension.
2. The
brief facts of these petitions are as under:
The petitioner in each of these petitions is a former employee of the respondent-Vadodara Municipal Corporation [hereinafter referred to as, "the Corporation"] in its Electricity Department. At the relevant time, the
Corporation was a licensee under the Indian Electricity Act, 1910.
By Government Notification dated 5th March, 1988, the said
licence came to be revoked and the Electricity Undertaking was
taken over by the Gujarat Electricity Board. With the taking over
of the Electricity Undertaking of the Corporation by the
Gujarat Electricity Board, the employees in the Electricity
Department were rendered surplus. The tripartite agreement
dated 6th May, 1988 was entered into by and between the
Corporation, the unions of the Electricity Department of the
Corporation, and the Gujarat Electricity Board. Under the
said agreement, the Gujarat Electricity Board agreed to absorb
large number of employees then employed in the said
Electricity Department, the concerned employees [including the
petitioners] agreed to accept a lumpsum payment in lieu of loss of
future pension. The petitioners were paid a lumpsum amount in
lieu of future loss of pension. The petitioners did accept such
amount as was payable under the said agreement.
3. Learned
advocate for the petitioners placed reliance on the decision of the
Apex Court in the case of Deokinandan Prasad v. State of Bihar
[AIR 1971 SC 1409] that the payment of pension does not
depend on the discretion of the State but is governed by the Rules
made in this behalf and the employees entitled to claim such pension.
That, right to receive pension is part of Article 21 of the
Constitution of India and there cannot be any waiver to fundamental
right as laid down in the case of Olga Tellis v. Bombay
Municipal Corporation [AIR 1985 SC 180], the petitioners are
entitled for the prayer made in these petitions and
respondent-Corporation be directed to pay regular monthly pension to
all the petitioners-employees who were relieved from the service
pursuant to the compromise on 9.5.1988 and further
respondent-Corporation be directed to pay regular family pension to
the employees and/or legal heirs or survivors of the deceased
employee of petitioners No. 171 to 212.
3.1. Learned
advocate for the petitioners also relied on the decision of the Apex
Court in the case of S.K. Mastan Bee v. General Manager, South
Central Railway and Ans. [(2003) 1 SCC 184] and in the case
of Premilaben Prataprai Joshi v. State of Gujarat & Ors.
[(2004) 1 GLH 85] reiterating the aspect that delay itself is
not fatal and there being no waiver of fundamental right the petition
deserves to be admitted and direction be issued as prayed for.
4. On
perusal of the record of the case and compromise arrived at between
the authorized representatives of Municipal Corporation of Baroda,
workmen employed and the Gujarat Electricity Board, in no uncertain
term, the compromise reveal that as per the terms and conditions of
the agreement the Gujarat Electricity Board had agreed to absorb
substantially all employees working in department of electricity of
Baroda Municipal Corporation and further a formula was evolved under
the compromise and accordingly right accrued in favour of employees
to receive certain amount in case if those employees who have
completed 10 to 15 years or more service in Baroda Municipal
Corporation and subject to final approval of State Government option
was given for voluntary retirement and such persons were to be given
benefits accordingly. The amount of compensation in terms of
settlement depended upon length of service and accordingly, it is not
in dispute that all the petitioners who were in service of Municipal
Corporation had accepted the compromise. Even till today, the above
compromise after a period of 22 years remained unchallenged but some
of the employees who had invoked jurisdiction of this Court in the
year 1991 since amount of compensation was not paid in time, upon
consent of the learned advocates appearing for the parties, a
direction was given that some interest @ 6% was to be given for last
payment of compensation. Even, a challenge was made by similarly
situated employees like the petitioners, who had accepted the
compromise by filing Special Civil Application No.12626 of 2002 also
came to be rejected by learned Single Judge on 3.8.2004. While
rejecting the aforesaid petition and awarding cost of Rs.1,000/- in
last paragraph learned Single Judge observed as under:
“I
am of the view that the demand made by the petitioners is too
tall. What was agreed under the aforesaid agreement dated
6th May, 1988 was a lump-sum payment in lieu of future
loss of pension. Whether called as “lump-sum payment”
or “lump-sum pension” or “commutation of
pension”, it was intended to be the full and final settlement
of the claim of the employees governed by the said agreement.
Having once received the lump-sum amount under the said agreement,
the petitioners could not have raised further demand. It
further transpires that the phrase “commutation of pension”
was used by the Resolution passed in the year 1994 at the
request made by one of the petitioners who also happens to be the
constituted attorney of the rest of the petitioners. The
intention was to claim benefit under the Income tax Act. The
petitioners now intend to take undue advantage of the use of
the words “commutation of pension”. If the
petitioners were facilitated by renaming the lump-sum
compensation as “commutation of pension”, use of such
phrase would not confer upon the petitioners a right to receive
pension. The petitioners having agreed to receive the lump-sum
compensation and having received the same cannot be permitted
to raise a fresh demand after lapse of fourteen years. The
claim made in the present petitions is not only misconceived but
is also dishonest.
The petitions are devoid of any merit. The petitions are dismissed with costs. Notice issued in each petition is discharged. Each petitioner will pay cost of Rs. 1,000/= to the respondent-Vadodara Municipal Corporation.
Registry will maintain copy of this order in each petition.”
5. While passing the order on 3rd August, 2004 in the above writ petition it is pertinent to note that the learned Single Judge while dealing with the almost similar contentions noted that the petitioner having agreed to receive the lump-sum compensation and having received the same cannot be permitted to raise a fresh demand after lapse of 14 years, the claim made in the petitions according to learned Single Judge was also not misconceived but also dishonest.
6. The above observations and findings are applicable in this case also since Letters Patent Appeal filed against the above order being Letters Patent Appeal No.1284 of 2005 dated 14.10.2005 came to be rejected but the part of awarding cost of Rs. 1,000/- was quashed and set aside. The interference of the Division Bench was to the aforesaid extent only and even review petition being Misc. Civil Application No.1086 of 2006 filed by applicants similarly situated employees also came to be dismissed on 6.2.2008 by Division Bench.
7. In the above circumstances, if contentions raised by learned advocate for the petitioners are considered they have raised the very claim again in this second round of litigation under Article 226 of the Constitution of India and, therefore, the contention that grounds of challenge to the compromise and right to receive the pension are different then the said writ petition and Letters Patent Appeal have no substance inasmuch as the respondent-Municipal Corporation had entered into compromise and employees represented by the Union like the petitioner were to receive compensation and other benefits in terms of the settlement.
8. These petitions are not only misconceived but barred by delay and latches. Even if the aspect of delay is looked from the angle that a claim is made by the petitioners for receiving the pension in absence of any legal right accruing to the petitioners who had already accepted the amount of compensation and waived their right before 22 years cannot be permitted to resurrect and re agitate either by survivor or legal heirs and it would amount travesty of justice. The decision relied on by learned advocate for the petitioners have no applicability on the facts of this case, since in those petitions, delay had occurred in a case where the employees had right to receive the pension which not only accrued but was crystallized in their favour and thereafter the delay was condoned so is not the case in these petitions.
9. In view of the above, reliance is placed in Section 12 of Pension Act have also no applicability and petitions being devoid of any merit deserves to be rejected. Hence, the petitioners are rejected.
10. However, these petitions are filed by ex-employees and survivors of such employees of the respondent, I refrain from awarding cost.
[ANANT S. DAVE, J.]
//smita//
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