1 316-11.doc ttm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.316 OF 2011 Subodh Gopal Bhokare .. Petitioner Vs. The General Manager, Government Milk Scheme & Ors. .. Respondents Mr.K.S.Bapat for the petitioner’s Mr.P.G.Sawant ‘B’ Panel for respondents CORAM: K.K. TATED, J. RESERVED ON: 1ST AUGUST, 2011 PRONOUNCED ON: 5th AUGUST, 2011 JUDGMENT: 1. The point for consideration in this case is whether the pension of the petitioner should be calculated on the basis of Rs.8125/- per month as contended by the petitioner or Rs.6725/- as contended by the respondents and thus, the petitioner, proves that the respondents have engaged in unfair labour practices under items 9 and 10 of Schedule IV of the MRTU and PULP Act, 1971 and whether the complaint is maintainable before 2 316-11.doc the Industrial Court. The undisputed facts are that the petitioner was appointed by respondents on 18.9.1982 as Stenographer. He served upto 31.12.2002 and retired on obtaining voluntary retirement. At the time of retirement, his basic pay was Rs.8125/- per month and his wages were paid on that basis till his retirement. After retirement, for getting gratuity and other benefits, the petitioner had to move the controlling authority under the Payment of Gratuity Act at Solapur. The said authority ordered the respondents to pay Rs. 1,46,762/- to the petitioner towards Gratuity with interest @ 6% p.a. from 28.11.2003. The respondent had challenged the order of the Controlling Authority on the ground that as the petitioner had not passed Marathi Shorthand examination as required by the G.R. dated 6.5.1991, he was not entitled to increments and the increments granted to him were required to be deducted while calculating the basic pay and the excess amount granted on account of increments required to be recovered from the gratuity amount. However, the contention of the respondent was rejected and the order of the Gratuity Controlling Authority was upheld by this court and the respondents have paid Rs.1,59,284/- to the petitioner as 3 316-11.doc gratuity calculated on the basis that his basic pay at the time of retirement was Rs.8125/- p.m. 2. According to the petitioner till his retirement on 31.12.2002, the respondent never informed him that he would be required to pass the examination of Marathi Stenography as per G.R. Dated 6.5.1991. He was being granted increments and with those increments his basic pay at the time of retirement was Rs. 8125/- p.m. and the office of the respondent also on his retirement fixed his basic pay at the rate of Rs.8125/- and sent the service book of the petitioner for verification to the verification squad at Pune. The Accountant of the verification squad objected to the fixation of the basic pay at Rs.8125/- on the ground that increments were wrongly granted to the petitioner, he having not passed Marathi Stenography was not entitled to the increments. This objection was rejected upto the High Court in the matter of payment of Gratuity to the petitioner. 3. The learned A.G.P. appearing on behalf of respondent submits that the Industrial Court rightly held that there is nothing on record to show that the respondents have indulged in the act of force or violence so as to attract unfair labour practice under 4 316-11.doc section 10 of the MRTU and PULP Act, 1971. He further submits that even the complaint as filed by the petitioner is not maintainable under item 9 of Schedule IV. Therefore, the Industrial Court rightly rejected the petitioner’s complaint holding that the petitioner failed to make out any case that respondent have engaged in unfair labor practice under item 9 and 10 of Schedule IV and therefore, petitioner is not entitled to any relief. 4. Before considering the submissions of both the counsel on merits, it is necessary to consider the objection raised by learned A.G.P. appearing on behalf of respondent about maintainability of the complaint filed by the petitioner under item 9 and 10 of Schedule IV of MRTU and PULP Act, 1971. It is to be noted that in the present case, respondent failed to consider the petitioner’s pay scale at Rs.8125/- for calculating the pension benefits. Same is contrary to the terms and conditions of employment and therefore, item 9 of Schedule IV is attracted. In support of this contention, the learned counsel for the petitioner relied on the judgment in the matter of S.G.Chemicals and Dyes Trading Employees’ Union Vs. S.G.Chemicals and Dyes Trading Limited and Another 5 316-11.doc reported in (1986) 2 SCC 624. In this case, the Apex Court held that it is an implied condition of every agreement, including a settlement, that the parties thereto will act in conformity with the law. Such a provision is not required to be expressly stated in any contract. If the services of a workman are terminated in violation of any of the provisions of the Industrial Disputes Act, such termination is unlawful and ineffective and the workman would ordinarily be entitled to reinstatement and payment of full back wages. 5. Another judgment in the matter of Manager, Solapur Municipal Corporation & Ors. v. Devidas Mahadev Potdar & Ors. Reported in 2009 LAB. I.C. 2045 held that even inordinate delay in payment of pension amounts to unfair labour practice under MRTU and PULP Act, 1971. Para 11 of this judgment reads thus: “11. Pensionary payments must be credited to the account of the pensioners under Rule 151(2) ordinarily on the first day of the following month. If that day is a holiday or if there are valid exigencies, the payment must be credited within a reasonable period thereafter. A consistent pattern of a gross delay in the disbursal of dues will amount to an unfair labour practice under Item 9 of Schedule IV. Compliance with a statutory service regulation is an implied part of the conditions of service. A breach of Rule 151(2) will constitute an unfair labour practice under Item 9 of Schedule IV. What is a reasonable period cannot be a matter of an inflexible 6 316-11.doc prescription. Even where a statutory provision or a rule does not prescribe a specific period of time to fulfill an obligation, a requirement that the function be discharged in a reasonable time should be implied in the provision. This must apply a fortiori to the disbursal of pensionary payments having due regard to the object and nature of the payment, the resultant hardship occasioned by delay and the content of the rule which requires payment on the first day of the month or thereafter. “ 6. On the basis of these two authorities, it is crystal clear that the learned Judge of Industrial Court erred in coming to the conclusion that on the facts and in the circumstances of the present case, petitioner failed to prove that the respondents have engaged in unfair labour practice under item 9 and 10 of Schedule IV of MRTU and PULP Act, 1971. 7. Now it is to be seen that when the aforesaid objection was rejected while fixing the gratuity amount can it be sustained while fixing the pension amount. It is to be noted that the candidate at the time of his appointment as English Stenographer was never asked to undergo Marathi Shorthand examination. He was working as English Stenographer and his work was satisfactory throughout and he was granted increments as and when they became due and payable. For no fault of the petitioner, he was directed to repay the payment made to him by way of increment but this move of respondent 7 316-11.doc failed. 8. It is well settled that when the increments are granted to the employee as per the terms of his appointment and he receives his pay with increments till retirement, the employer after retirement of the employee cannot reduce the retirement benefits to which he is entitled on the ground that certain condition of the service was not complied with by the employee while in service and the employer also in disregard of the said condition which was not specifically brought to the notice of the employee, granted increments to the employee. Had the employee been specifically informed he could have complied with the said condition also. For no fault of the employee, the employee cannot be after retirement be called upon to refund those benefits and no deduction in his pensionary benefits can be made on that account. In this connection, reference may be made to the decision of the Rajasthan High Court in the case of Goverdhan Lal vs. State of Rajasthan and Others reported in 2004 1 CLR Page 492. Head note of the judgment reads thus : “Recovery of excess payment from gratuity – State recovered Rs.1,30,869 from gratuity amount of petitioner, on ground of wrong pay-scale given to him – Challenged by this writ – Held that – 8 316-11.doc Benefit received without any fault on his part – Just and proper to allow him to retain such benefits – Impugned order of recovery quashed and set aside – Constitution of India, 1950 – Art.226.” 9. It was the case in respect of Gratuity. The Law declared therein also applies to the pensionary benefits. Reference be also made to the decision in the matter of Jagdish Narain Chopra vs. Allaijabad District Co-operative Bank Limited and Anothers reported in 1999 (83) FLR 784. It is also the case of Gratuity; the audit objection after retirement was rejected and it was held that the audit objection after retirement benefits became due and payable, cannot be used to reduce the retirement benefits when such objection was never raised and communicated to the employee while in service. His Lordship, D.K.Seth, J of Allahabad High Court observed that after a person has put in his youth and the prime of life in the service of the bank, he is entitled to receive his retirement benefits which is not a charity shown to him but is a deferred payment which he had earned by reason of his service rendered. 10.In the present case, petitioner while in service was never informed that for earning increments he must pass examination in Marathi Stenography. Petitioner retired on 31.12.2002. In order to get gratuity he had to undergo the pangs of litigation 9 316-11.doc upto the High Court and even after the High Court rejected the objection raised by the respondents to the petitioner’s basic pay of Rs.8125/-, the respondents have tried to reduce pensionary benefits to which petitioner is entitled on the same ground, which they are not entitled to do. Even as per the Maharashtra Civil Service (Pension) Rules, 1982, the pensionable pay means the average pay earned by the Government Servant during the last 10 months service. Rule 60, Serial Number 1, 2 and 3 reads thus: “(1) The ‘Pensionable pay” means the average pay earned by a Government servant during the last ten months’ service. (2) In the case of a Government servant who was in service on 1st March, 1976 and retires on or after that date and where the provisions of sub-rule (1) operate disadvantageously to him, his pensionable pay shall be based on the average pay earned during the last 36 months of service. (3) For the purpose of sub-rules (1) and (2) above, “pay” means the pay as defined in Rule 9 (36) (i).” 11.On the facts and circumstances of the present case, it is very unfortunate that though the petitioner has retired on 31.12.2002 and about 9 years passed thereafter, and yet, the petitioner has been denied the pension. The petitioner needs to be appropriately compensated for the suffering which he had to undergo, by awarding interest @ 9% on the arrears from the 10 316-11.doc date of the pension amount became due and payable till the date of payment. 12.In the result, petition is allowed. The impugned order dt. 26.03.2010 passed by learned Member, Industrial Court, Sangli in complaint (ULP) No.1 of 2009 is set aside. 13.The complaint filed by petitioner is allowed in terms of prayer clause (b), (c), (d) and (e) with modification in the rate of interest which is reduced from 18% p.a. and 15% p.a. to 9% p.a. which reads as under: “B) An enquiry may please be made and it may be held and declared that the Opponents have engaged in Unfair Labour Practice, mentioned in item nos.9 and 10 of Schedule IV of the MRTU & PULP Act, 1971. C) It may be held and declared that the complainant is entitled to get pension and other retiral benefits on the basis of his last basic pay of Rs.8,125/- p.m. as accepted and acted upon by the Opponent while paying Gratuity; D) The Opponents may be directed to pay arrears of pension and other retiral benefits to the complainant on the basis of his last basic pay of Rs.8,125/- p.m. with interest @ 18% p.a. and may be further directed to pay future pension on the basis of his last basic pay of Rs. 8,125/- p.m. E) The Opponents may be directed to pay interest at the rate of 15% p.a. to the complainant on Rs.1,59,284/- (amount of Gratuity) from 31.3.2005 to 17.4.2006.” (K.K. TATED, J.)