Case: Modified Voluntary Retirement Scheme of 2002 of Azam Jahi Mill Workers Association Vs. National Textile Corporation Limited &amp; Ors

action by submitting that case of 318 ex-employees is not comparable with those of 134 ex-employees as 318 ex-employees vacated the quarters and they were not in possession and that only 134 ex-employees remained in possession of the quarters. For the first time before this Court, in the counter affidavit, it is now the case on behalf of the respondent KUDA and others that to avoid any litigation and/or litigation cost, it was proposed to allot 200 Sq. Yards of plots free of cost. The respondents therefore cannot be permitted to improve their case which was not even their case earlier viz. at the time when they made a proposal to permit them to allot 200 Sq. Yards of plots free of cost to 134 ex-employees and even it was not the case so stated in the G.O. No.463 dated 27.06.2007 and even it was not the case before the High Court. Therefore, the respondents more particularly respondent Nos.2 and 3 cannot be permitted to improve their case by filing the affidavit before this Court for the first time. Therefore, the decision of this Court in the case of Shri Ram Krishna Dalmia (Supra), which has been relied upon by the learned Counsel appearing for the respondent Nos.2 and 3, shall not be applicable to the facts of the case on hand. Even otherwise on going through the entire decision of this Court in the case of Shri Ram Krishna Dalmia (Supra), we are of the opinion that the said decision shall not be of any assistance to the respondent Nos.2 and 3. It was the case with respect to the classification and the Union Government tried to justify the basis of classification by way of affidavit and it was the case on behalf of the writ petitioners that the basis of classification must appear on the face of the notification itself and reference cannot be made to any extraneous matter and to that it is observed and held that there can be no objection to the matters brought to the notice of the Court by way of affidavit being taken into consideration alongwith the matters specified in the notification in order to ascertain whether there was any valid basis for treating the appellants and/or their companies as a class by themselves. We fail to appreciate as to how the said decision shall be applicable to the facts of the case on hand. 9.6 Now, so far as the submission on behalf of the respondent Nos.2 and 3 relying upon the decision of this Court in the case of Anup Kumar Senapati (Supra) that there is no concept of negative equality under Article 14 of the Constitution and the submission that merely because there was any mistake on the part of the respondents in allotting 200 Sq. Yards of land to the said 138 persons and therefore, the appellants cannot claim the parity is concerned, again the same has no substance. At the outset it is required to be noted that it was/is never the case on behalf of the respondents that those 134 persons were allotted the plots by mistake and/or there was any wrong committed in allotting 200 Sq. Yards of plot to the said 134 persons. Therefore, there is no question of applicability of any negative equality. Therefore, the aforesaid decision shall not be applicable to the facts of the case on hand. 9.7 Now, so far as the submission on behalf of the respondents that they do not have any sufficient land at present to allot 200 Sq. Yards of plots to remaining 318 ex-employees and that all those 318 ex-employees vacated the quarters voluntarily and they settled in their houses is concerned, at the outset it is required to be noted that merely because for whatever reason and even as a law abiding person they vacated the quarters, they cannot be put to disadvantageous situation being a law abiding persons. Even it cannot be presumed that all those 318 ex-employees who vacated the quarters and stayed elsewhere were settled. It cannot be presumed like that without any factual data. There may be many ex-employees who were compelled to vacate the quarters and who might not have settled or might be staying in a one room house. In any case, to allot 200 Sq. Yards of plots to 134 ex-employees to avoid undue hardship to the ex-employees and as a welfare measure and as a rehabilitation to only 134 case ex- employees and not other ex-employees similarly situated, would be discriminatory and violative of Article 14 of the Constitution. As observed hereinabove, on the contrary, to allot the plots to 134 employees on the ground that they were in unauthorized occupation and therefore, to avoid the litigation / litigation cost would be giving a premium to those who continued to be in illegal unauthorized occupation and to punish those ex-employees who were found to be law abiding and vacated the quarters pursuant to the notice dated 17.07.1986. Even the justification to differentiate the case between two classes of ex-employees is not germane. If remaining 318 ex-employees would not have vacated the quarters and would have remained in unauthorized occupation, even as per the case on behalf of the respondents is accepted, then those who remained in unauthorized occupation subsequently might have been allotted to 200 Sq. Yards of plots free of cost like 134 ex-employees who were found to be in unauthorized occupation. Therefore, as such there is no justification at all to deny allotment of 200 Sq. Yards of plots free of cost to each of 318 ex-employees, which were allotted to other 134 ex-employees who otherwise were similarly situated. It will be open for the respondent Nos.2 and 3 to approach the respondent No.1 and/or the State Government for allotment of additional land and/or to allot the plots from the remaining land of the respondent No.4 Mills which might be vacant and available with the Central Government / NTC as the case may be.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]At the outset it is required to be noted that 318 ex- employees of the erstwhile respondent No.4 Mills prayed for equality and claimed the reliefs at par with other similarly situated 134 ex-employees of the erstwhile respondent No.4 Mills who were allotted 200 Sq. Yards of plots free of cost.9.1 It is to be noted and it cannot be disputed that even at one point of time as admitted by the learned Counsel appearing on behalf of KUDA that 318 ex-employees who were not allotted 200 Sq. Yards of plots are as such similarly situated to those 134 ex-employees of the erstwhile respondent No.4 Mills who were allotted 200 Sq. Yards of plot free of cost pursuant to the approval vide G.O. No.463 dated 27.06.2007. All of them as such were working with the respondent No.4. All of them were ex-employees of the erstwhile respondent No.4 Mills. All of them were residing in the quarters allotted by the Mills. All of them took voluntary retirement under the Modified Voluntary Scheme in the year 2002. All of them got the benefits under the Modified Voluntary Retirement Scheme of 2002 and all of them were relieved on and from 31.08.2002. However, 318 ex- employees vacated their quarters from time to time pursuant to the notice dated 17.07.1986. Thus, they abided the notice dated 17.07.1986. However, despite the notice dated 17.07.1986 and even after they were relieved on and from 31.08.2002, 134 ex-employees continued to retain the quarters and they were in unauthorized occupation of the quarters. Therefore, the only difference between 134 ex- employees and 318 ex-employees was that 318 ex-employees were law abiding persons who vacated the quarters pursuant to the notice dated 17.07.1986 and 134 ex-employees remained in unauthorized occupation of the quarters.At this stage it is required to be noted that at the time when the proceedings for closure of respondent No.4 Mill was held before the Ministry of Labour, a request was made to allot the quarters to the concerned workmen at reasonable rates and in the order granting approval for closure, it was submitted on behalf of the Mills that the request to allot the quarters is under consideration by the management. That, after the closure permission, proceedings were initiated by KUDA to acquire the land of respondent No.4 Mills to an extent of 135.33 Acres. However, it appears that the Vice Chairman of KUDA vide letter / communication dated 28.12.2006 submitted their proposal to permit KUDA to allot 200 Sq. Yards of plots free of cost to 134 ex-employees of erstwhile respondent No.4 Mills. In the letter it was specifically mentioned that to avoid undue hardship to the ex-employees and as a welfare measure a proposal was made by the Vice Chairman of KUDA to permit KUDA to allot 200 Sq. Yards of developed plots free of cost to 134 employees of the erstwhile respondent No.4 Mills. Vide G.O. No.463 dated 27.06.2007, the State Government accepted the said proposal and granted the permission to allot 200 Sq. Yards of developed plots free of cost to each of 134 employees of erstwhile respondent No.4 Mills. Nothing further was mentioned either in the communication / letter dated 28.12.2006 nor in the G.O. No.463 dated 27.06.2007 that to avoid any litigation and/or litigation cost as now stated in the affidavit in reply it was proposed to allot 200 Sq. Yards of plots to 134 ex-employees. However, thereafter when a request was made on behalf of the remaining 318 ex-employees, who as such were similarly situated to those 134 ex-employees, also to allot to them 200 Sq. Yards of house plots, their request came to be turned down. From the aforesaid facts and circumstances and the observations made hereinabove, it is found that 318 ex- employees were not allotted the 200 Sq. Yards of plots and 134 ex-employees who were allotted 200 Sq. Yards of plots free of cost who as such were similarly situated and as such there is no difference between them at all. On the contrary, 318 ex-employees can be said to be law abiding ex- employees who vacated the quarters after 1986 but before 2002 pursuant to the notice dated 17.07.1986. It is not in dispute that 134 ex-employees who were allotted 200 Sq. Yards of plots free of cost were in unauthorized occupation of the quarters and they did not vacate the quarters despite the notice dated 17.07.1986 and even after 31.08.2002 when they accepted the voluntary retirement and relieved. Therefore, to allot the plots to those employees who were found to be in unauthorized occupation would tantamount to giving a premium to their illegality and remaining in occupation and possession of the quarters illegally and unauthorizedly. As observed hereinabove, as both the classes of employees are found to be similarly situated except the difference as observed hereinabove, 318 ex-employees who as such were similarly situated with those 134 ex-employees when claimed the equality and parity, as such the learned Single Judge rightly issued the writ of mandamus and directed the respondents to treat all of them at par and allotted 200 Sq. Yards of plots to remaining 318 ex-employees also as per the G.O. No.463.9.2 The submission on behalf of the respondents more particularly learned Counsel appearing for respondent Nos.2 and 3 that the appellant Association – 318 ex-employees have no legal right and that respondent Nos.2 and 3 have no legal duty has no substance and cannot be accepted. Right to equality guaranteed under Article 14 of the Constitution of India is vested right in favour of the person who claims equality and parity and the same is enforceable against State / State instrumentalities in exercise of powers under Article 226 of the Constitution of India. We find no justification at all in treating 318 ex-employees different from those 134 ex-employees who were allotted 200 Sq. Yards of plots free of cost. We find that as such the equals are treated unequally and therefore, when the equals are treated unequally, there is a violation of Article 14 of the Constitution and therefore, the appellants were entitled to the relief sought even in exercise of powers under Article 226 of the Constitution of India.In the present case allotment of 200 Sq.Yards free of cost to 134 employees was to avoid undue hardship to the ex- employees and as a welfare measure. As observed hereinabove those 318 ex-employees who are denied the benefit of allotment of 200 Sq.Yards of plots free of cost are similarly placed persons with that of 134 employees who are allotted 200 Sq.Yards plots free of cost. There is no rationale justification in providing differential treatment to one class of ex-employees similarly placed with another class of ex- employees who are allotted the plots.9.4 Now, so far as the case on behalf of KUDA now before this Court in the form of counter affidavit that to avoid any litigation and litigation cost and to get vacant possession of the remaining land, it was proposed and decided to allot 200 Sq. Yards of plots free of cost to 134 ex-employees who were found to be in occupation and possession of the quarters and therefore, there was a valid reason to allot 200 Sq. Yards of plots to 134 ex-employees and the reliance placed on the decision in the case of Shri Ram Krishna Dalmia (Supra) that to determine the intelligible differentia an affidavit produced before this Court can be considered and/or referred to is concerned, the aforesaid seems to be attractive but has no substance in the facts and circumstances of the case. It is to be noted that in the proposal made by the Vice Chairman, KUDA to the State Government in the year 2007 to permit them to allot 200 Sq. Yards of plots free of cost to 134 ex- employees, there was no reference at all that to avoid any litigation and/or litigation cost it was proposed to allot 200 Sq. Yards of plots free of cost. As observed hereinabove and even when the G.O. No.463 dated 27.06.2007 is seen, it is found in the letter dated 28.12.2006 that to avoid undue hardship to the ex-employees and as a welfare measure. Even in paragraph 4 of the G.O. No.463 dated 27.06.2007, the State Government has specifically observed that after careful consideration of the matter, as a rehabilitation and a welfare measure, Government has agreed to the proposal of the Vice Chairman, KUDA and permit them to allot 200 Sq. Yards of developed plots free of cost to each 134 ex-employees of the erstwhile respondent No.4 Mills. Therefore, the allotment of 200 Sq. Yards of plots free of cost to 134 ex-employees was as a rehabilitation and welfare measure of ex-employees of the erstwhile respondent No.4 Mills. Even before the learned Single Judge also, it was not the case pleaded before the High Court that those 134 persons were allotted 200 Sq. Yards of plots free of cost to avoid any litigation and/or litigation cost which is now pleaded for the first time before this Court.9.5 From the above and even from the grounds of appeal before the Division Bench, respondents tried to justify their action by submitting that case of 318 ex-employees is not comparable with those of 134 ex-employees as 318 ex-employees vacated the quarters and they were not in possession and that only 134 ex-employees remained in possession of the quarters. For the first time before this Court, in the counter affidavit, it is now the case on behalf of the respondent KUDA and others that to avoid any litigation and/or litigation cost, it was proposed to allot 200 Sq. Yards of plots free of cost. The respondents therefore cannot be permitted to improve their case which was not even their case earlier viz. at the time when they made a proposal to permit them to allot 200 Sq. Yards of plots free of cost to 134 ex-employees and even it was not the case so stated in the G.O. No.463 dated 27.06.2007 and even it was not the case before the High Court. Therefore, the respondents more particularly respondent Nos.2 and 3 cannot be permitted to improve their case by filing the affidavit before this Court for the first time. Therefore, the decision of this Court in the case of Shri Ram Krishna Dalmia (Supra), which has been relied upon by the learned Counsel appearing for the respondent Nos.2 and 3, shall not be applicable to the facts of the case on hand. Even otherwise on going through the entire decision of this Court in the case of Shri Ram Krishna Dalmia (Supra), we are of the opinion that the said decision shall not be of any assistance to the respondent Nos.2 and 3. It was the case with respect to the classification and the Union Government tried to justify the basis of classification by way of affidavit and it was the case on behalf of the writ petitioners that the basis of classification must appear on the face of the notification itself and reference cannot be made to any extraneous matter and to that it is observed and held that there can be no objection to the matters brought to the notice of the Court by way of affidavit being taken into consideration alongwith the matters specified in the notification in order to ascertain whether there was any valid basis for treating the appellants and/or their companies as a class by themselves. We fail to appreciate as to how the said decision shall be applicable to the facts of the case on hand.9.6 Now, so far as the submission on behalf of the respondent Nos.2 and 3 relying upon the decision of this Court in the case of Anup Kumar Senapati (Supra) that there is no concept of negative equality under Article 14 of the Constitution and the submission that merely because there was any mistake on the part of the respondents in allotting 200 Sq. Yards of land to the said 138 persons and therefore, the appellants cannot claim the parity is concerned, again the same has no substance. At the outset it is required to be noted that it was/is never the case on behalf of the respondents that those 134 persons were allotted the plots by mistake and/or there was any wrong committed in allotting 200 Sq. Yards of plot to the said 134 persons. Therefore, there is no question of applicability of any negative equality. Therefore, the aforesaid decision shall not be applicable to the facts of the case on hand.9.7 Now, so far as the submission on behalf of the respondents that they do not have any sufficient land at present to allot 200 Sq. Yards of plots to remaining 318 ex-employees and that all those 318 ex-employees vacated the quarters voluntarily and they settled in their houses is concerned, at the outset it is required to be noted that merely because for whatever reason and even as a law abiding person they vacated the quarters, they cannot be put to disadvantageous situation being a law abiding persons. Even it cannot be presumed that all those 318 ex-employees who vacated the quarters and stayed elsewhere were settled. It cannot be presumed like that without any factual data. There may be many ex-employees who were compelled to vacate the quarters and who might not have settled or might be staying in a one room house. In any case, to allot 200 Sq. Yards of plots to 134 ex-employees to avoid undue hardship to the ex-employees and as a welfare measure and as a rehabilitation to only 134 case ex- employees and not other ex-employees similarly situated, would be discriminatory and violative of Article 14 of the Constitution. As observed hereinabove, on the contrary, to allot the plots to 134 employees on the ground that they were in unauthorized occupation and therefore, to avoid the litigation / litigation cost would be giving a premium to those who continued to be in illegal unauthorized occupation and to punish those ex-employees who were found to be law abiding and vacated the quarters pursuant to the notice dated 17.07.1986. Even the justification to differentiate the case between two classes of ex-employees is not germane. If remaining 318 ex-employees would not have vacated the quarters and would have remained in unauthorized occupation, even as per the case on behalf of the respondents is accepted, then those who remained in unauthorized occupation subsequently might have been allotted to 200 Sq. Yards of plots free of cost like 134 ex-employees who were found to be in unauthorized occupation. Therefore, as such there is no justification at all to deny allotment of 200 Sq. Yards of plots free of cost to each of 318 ex-employees, which were allotted to other 134 ex-employees who otherwise were similarly situated. It will be open for the respondent Nos.2 and 3 to approach the respondent No.1 and/or the State Government for allotment of additional land and/or to allot the plots from the remaining land of the respondent No.4 Mills which might be vacant and available with the Central Government / NTC as the case may be.