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IN THE HIGH COURT OF CALCUTTA
Sambuddha Chakrabarti, J.
Tapan Kumar Sarkar and Others - Petitioners
Versus
Union of India and Others - Respondents
W. P. No. 3572(W) of 2012
Decided On : 19-6-2015
For the Petitioners:Ms. Debjani Sengupta, Mr. Shoban Majumder and Ms. Julekha Khatun, Advocates.
For the Respondent Nos. 2 to 4:Mrs. Nairita Datta Chowdhury, Advocate.
For the Union of India :Mr. Arunava Ghosh and Mr. Probhat Kumar Chattopadhyay, Advocates.
Headnote:
INDUSTRIAL DISPUTE - AGE OF RETIREMENT - SALARY AND ALLOWANCES - SICK INDUSTRIAL COMPANIES ACT, 1985 (SICA) - INDUSTRIAL DISPUTES ACT, 1947 (ACT) - SICK INDUSTRIAL COMPANIES (SPECIAL PROVISIONS) ACT, 1985 (SICA) - SECTION 22(1) - INDUSTRIAL DISPUTES ACT, 1947 (ACT) - SECTION 33(3)(C)(II) - STANDING ORDER - EMPLOYEES - PETITIONERS - ENTITLED TO SALARY AND ALLOWANCES TILL THE AGE OF 60 YEARS - BACK WAGES - AWARDED - WRIT PETITION - MAINTAINABLE.
Fact of the Case:
Petitioners, employees of Hindustan Cables Limited, alleged non-release of salary and allowances after attaining the age of 58 years though they continued in service till attaining the age of 60 years. The age of retirement of the petitioners was 60 years and superannuation notices had also been issued to retiring employees a few months before attaining that age. The company had entered into a tripartite settlement with four unions in the year 1974 and the superannuation age of employees was fixed at 60 years.
Finding of the Court:
The writ petition is maintainable. The petitioners are entitled to get their salaries and allowances till the age of their retirement. The company with the financial assistance of the Central Government is duty bound to make such payment.
Issues: 1. Whether the writ petition is maintainable? 2. Whether the petitioners are entitled to get their salaries and allowances till the age of their retirement?
Ratio Decidendi: 1. The writ petition is maintainable as the petitioners have a pre-existing right to get the arrears of salaries up to the age of 60 years and such claim does not require any adjudication. 2. The petitioners are entitled to get their salaries and allowances till the age of their retirement as they have continued till 60 years and provisions of Section 33(c)(1) is more applicable than Section 33(c)(2) of the Act.
Final Decision: The writ petition is allowed and the respondent company is directed to take necessary steps for payment of admissible dues to the petitioners who have already retired from service and to release the unpaid salaries and allowances to the petitioners who are still in service and to go on paying the same till they attain the age of superannuation within a period of ten weeks from the date of the communication of the order.
Sambuddha Chakrabarti, J.
Alleging non-release of salary and allowances the petitioners have prayed for a writ in the nature of Mandamus commanding the respondents to release the same as well as making further payment of their monthly salaries till their superannuation and directing the respondents to release retiral benefits of the retired petitioners and for other reliefs.
2. The petitioners, 120 in number, are either serving or retired employees of M/s. Hindustan Cables Limited, a Government of India undertaking, i.e., the respondent no. 2 herein. They have alleged that the respondent no. 2 has not been making payment of their salaries and other allowances after attaining the age of 58 years though they continued or are continuing in service till attaining the age of 60 years. The age of retirement of the petitioners is 60 years and superannuation notices have also been issued to retiring employees a few months before their attaining that age.
3. While on the one hand the company retains employees on their roll upto the age of 60 years, the petitioners alleged, it has stopped making payment of salaries and other allowances after they attained the age of 58 years. The company had entered into a tripartite settlement with four unions in the year 1974 and the superannuation age of employees was fixed at 60 years. Since the petitioners are covered by the said settlement their age of retirement is also 60 years and not 58 years. As such they are entitled to continue till attaining the age of 60 years.
4. The Ministry of Industries, Government of India, issued an Office Memorandum through the Director of the company on May 19, 1998 raising the age of retirement in all public sector undertakings from 58 years to 60 years. The petitioners were already covered by the settlement of 1974.
5. According to the petitioners they came to know that the company by a resolution of the Board of Directors taken in its 276th meeting, held on March 28, 2001, proposed for reducing the age of retirement of its employees from 60 to 58 years. The Government of India had approved this reduction of age which should be implemented after amending the Standing Order in consultation with the Labour Department. The Standing Order had not till date been amended and the company also has allowed its employees to continue in service till 60 years. The petitioners have alleged that the tripartite settlement fixing the age of superannuation was reaffirmed in a bipartite meeting with four unions in the year 2007. It was inter alia resolved that the age of retirement prevailing before the Office Memorandum dated May 19, 1998 of the Ministry of Industries, Department of Public Enterprises came into effect, would be maintained.
6. The petitioners have further alleged that the action of the respondent company is violative of the principle of equal pay for equal work as the employees who have not attained the age of 58 years are getting their salaries whereas the petitioners despite their continuance in work are being or have been deprived of their salaries. According to them the bipartite settlement is binding upon the parties and thus the company is bound to allow the employees covered by the said agreement to allow them to work till they attain 60 years and pay salaries and allowances attached to the respective posts. The respondents also cannot back out from the promise regarding the age of superannuation as taken in the said settlement which has been annexed to the writ petition as Annexure P-4 and as such are statutorily obliged to go on paying the regular salaries and other allowances in service till the employees attain the age of 60 years. Non-payment of salaries for the period between 58 years and 60 years and payment of postretiral benefits taking into calculation the service rendered till the age of 58 years are hit by the principles of natural justice when their services have been obtained by the company.
7. With these allegations the petitioners have p
