1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2965 OF 2008 Manager, Solapur Municipal Corporation & Ors. ...Petitioners. Vs. Devidas Mahadev Potdar & Ors. ...Respondents. .... Mr. Nitin Jamdar for the Petitioner. Mr. Nitin Mulye for Respondent Nos.1 to 13. ..... CORAM : DR. D.Y.CHANDRACHUD, J. December 10, 2008. ORAL JUDGMENT: Rule, by consent of Counsel returnable forthwith. Counsel appearing on behalf of the Respondents waives service. With the consent of the Learned Counsel and at their request taken up for hearing and final disposal. 2. The thirteen Respondents are all pensioners who were engaged in the services of the Transport Undertaking of the Solapur Municipal Corporation. As the facts before the Court would disclose, 2 they were constrained to move the Industrial Court in a complaint of unfair labour practices under Item 9 of Schedule IV to the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 on the ground that the pension which accrued to them has not been released on time and that generally speaking, there was an inordinate delay every month in the disbursal of the pensionary payments. According to the Municipal Corporation , there were financial difficulties which led to a delay in disbursement of monthly pension payments, between the fifteenth and twentieth day of each month. The Industrial Court before whom the complaint was filed, issued a declaration of unfair labour practices and directed the Undertaking to credit the monthly pensionary payments to the account of each pensioner on the first day of each following month. 3. When the petition came up for hearing on 2nd July 2008, the only challenge pressed was to the direction that pensionary payments should be credited on the first day of the following month. Counsel submitted that the Transport Undertaking was facing financial difficulties. A modification was sought to the effect that the 3 Corporation should be permitted to credit the account of each pensioner on or before fifteenth day of the following month. Notice was issued. Accordingly, the Respondent has been represented by the Counsel. 4. During the course of the hearing, it has been urged on behalf of the Petitioners that Rule 151(2) of the Maharashtra Civil Services (Pension) Rules 1982, does not mandate that pensionary payments should be made exactly on the first day of the following month. Hence, it is submitted that the Industrial Court was in error in issuing a declaration of the commission of an unfair labour practice and in directing that pensionary dues should be paid on the first day of each succeeding month. 5. Pensionary payments are not either a largesse or a charity on the part of the State or its instrumentalities. Where the entitlement to pension is conferred by statute or by rules which are framed under Article 309 of the Constitution or under Statute, pension is a right which accrues as a consequence of the services rendered by an 4 employee over long years. Payment of pension under the Maharashtra Civil Services (Pension) Rules, 1982, is an entitlement recognized by Rules framed under Article 309 of the Constitution. 6. Rule 151(2) provides that a pension fixed at monthly rates shall be payable monthly on or after first day of the following month. A monthly payment is intended to enable the pensioner to meet his/her expenditure for the month. To state the obvious, the month commences on the first day. Human needs are not postponed to an uncertain future date within the month. Expenses brook no delay and expenses of the aged are often of an urgent nature. The rule provides that the pensionary payment has to be effected “on or after the first day of the following month”. In other words, pensionary payments must be disbursed either on the first day of the following month or after that. The expression “on or after”, however, cannot be construed to mean that the payment of pension can be delayed at the discretion of the disbursing authority to any date until the end of the month. If the expression “on or after” is interpreted in that manner, it would mean that the payment can be made at any time whatsoever 5 after the expiry of the first day of the following month. This would defeat the entitlement of the pensioner and lead to a situation where the wherewithal for existence would become illusory. 7. Implicit in the concept of pension is the principle that pensionary benefits must be paid in a regular manner. That is the principle which is embodied in sub-rule (2) of Rule 151. A payment 'on or after' the first day of every month must mean that the payment has to be effected ordinarily on the first day or within a reasonable period thereafter within the following month. The word 'reasonable' however cannot be read to mean a payment at the whims of the disbursing authority, even as late as the fifteenth or twentieth day of every month (as has happened in the present case). The expression “after the first day of the following month” must be construed with reference to the fact that the pensionary payment is a monthly payment and is to take care of the monthly expenditure which must be incurred by the employee for sustaining life. 8. Constitutional rights cannot be looked upon as mere debits 6 in balance sheets. They represent real entitlements of citizens justified by the Constitution and sanctified by an emerging consensus in international law. Where a measure of social security has been legislated upon and implemented, the executive is duty bound to implement its obligation by making budgetary provisions and to lay down an administrative framework to ensure timely disbursal. Delay defeats justice and in this case, the right to a dignified existence for the aged. Deprive the pensioner of the payment and you deprive him/her of the right to life under Article 21. Delayed pensionary payments place a pensioner in a position of uncertainty and dependence which impinges on the quality of life under Article 21. Pensioners cannot be left to the mercy of the administration, to receive what is a matter of right. Pensioners must lead their lives with a sense of self respect and dignity. As the expectancy of life increases and the population comprises of an increasing proportion of the aged, the law must recognise their concerns. The Constitution must be innovatively interpreted to protect their dignity. The problems of the aged have become acute as traditional social structures have changed with increased mobility of human resources. The law must 7 protect those who contributed to society in their productive years and assure them a sense of dignity in what we call the twilight. The insensitivity of the State should not hasten the onset of darkness. Society and the law which regulates it must be sensitive to the concerns of the aged. Pension is a vital aspect of social security. 8 9. Counsel appearing on behalf of the Petitioners may be justified in contending that the Industrial Court was not correct in construing Rule 151(2) to mean that an unfair labour practice would arise the moment the payment is not made on the first day of each month. Yet where as in the present case, there is a consistent pattern of pensionary payments not being credited on the first day of the month or soon after, but being delayed to the fifteenth or twentieth day, the Industrial Court was justified in the view which it took. Where the first day of the month is a holiday, the rule allows free play in the joints and the payment can be disbursed on the next working day. A consistent pattern of delayed payment constitutes an unfair labour practice. The Petitioner as a body governed by Statute, namely, the Bombay Provincial Municipal Corporation Act, 1949, must act in a reasonable manner. 10. During the course of the hearing, Counsel appearing on behalf of the Petitioners has placed on the record a letter dated 25th March 2008 addressed by the Transport Manager of the Transport Undertaking of the Solapur Municipal Corporation. The letter records 9 the financial difficulties faced by the Transport Undertaking as a result of increases in costs; competition from illegal private operators and a reduction in demand due to a closure of industrial units. The letter records that the Transport Undertaking has an outstanding loan of Rs.15 crores and has faced an attachment from one of its Creditor Banks. The letter also records that the Transport Undertaking depends upon the Solapur Municipal Corporation for the disbursal of amounts due towards its pensioners. The financial difficulties that may be faced by the Transport Undertaking can furnish no justification either for the non-disbursal of pensionary dues or delays in disbursing the pension within a reasonable period in the following month. The amount which has to be disbursed is known in advance and provisions must be made in time. The Solapur Municipal Corporation cannot act in breach of its obligations to ensure timely disbursal of the pensionary payments due to the employees of the Transport Undertaking. The Transport Undertaking on its part must ensure that necessary arrangements are made well in advance with the Municipal Corporation so as to ensure that funds are made available well within time to ensure the disbursal of the pensionary 10 payments either on the first day of each following month or within a reasonable period thereafter. 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 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 11 which requires payment on the first day of the month or thereafter. 12. Hence, it would be appropriate to direct that pensionary dues shall be credited to the account of the Respondents herein, ordinarily on the first day of the succeeding month or within a reasonable period thereafter and no later than the seventh day of each succeeding month. It is also clarified that these directions should not be construed as a liberty granted to the Transport Undertaking to delay the disbursal of pensionary dues since the provisions of Rule 151(2) must be construed to mean that pensionary payments must ordinarily be made either on the first day of the month or in any event within a reasonable period thereafter. This shall in any event be no later than the seventh day of each succeeding month. The petition shall accordingly stand disposed of with the aforesaid directions. The order passed by the Industrial Court shall stand modified to the aforesaid extent. There shall be no order as to costs. .......