2006 Supreme(Guj) 24

Gujarat High Court
Judgename :K.A.PUJ
KANDLA PORT WORKERS UNION - Appellant
Versus
UNION OF INDIA - Respondent
SPECIAL CIVIL APPLICATION 6891 of 1996
Decided On : 01/16/2006

Headnote:Point in Issue :

       Petitioner Union - Members of the Union - Take over by FCI with transfer of work - Right to option with regard pay scale and retirement benefits - Scope of - Finding as to.

       Head Note :

       Food Corporation of India Act, 1964 (Central Act 37 of 1964) - Sections 12, 12-A, 12-A(1), 12-A(4) and 13 - Industrial Disputes Act, 1947 (Central Act 14 of 1947) - Section 10 - Petitioner union - Members of the union - Take over by FCI with transfer of work - Right to option with regard pay scale and retirement benefits - Scope of - Finding as to - All the 321 members of petitioner union after take over by FCI became employees of FCI from 01.01.1973 - Simply because names of 15 employees were mentioned in an award by Industrial Tribunal the benefit of option with regard pay scale and retirement benefits conferred upon the employees who were taken over by FCI cannot be denied - The notification issued by Government of India on 09.05.1996 conferring benefit to 15 employees only is not just and proper - On account of transfer their previous services have not been terminated and for all legal intent and purposes they must be deemed to have been in services of FCI before 01.01.1973 - Tribunal, rightly held that FCI will have to treat them as in its service before 01.01.1973 any they must be given statutory right for exercise of option in regard to matters - Court accordingly directed respondent not to issue appropriate order with regard all the 321 employees as having been transferred to FCI under the provisions of the Act w.e.f. 01.01.1973

       Held :

       The Court is of the view that simply because the names of 15 employees were mentioned in the award, the benefit which is conferred upon all the employees who were taken over by FCI on 01.01.1973 cannot be denied. The Notification issued by the Government of India on 09.05.1996 conferring benefit to 15 employees only is not just and proper. The award passed by the Industrial Tribunal is very clear and it is stated in more than one place that a Committee was set up to go into the revision of pay scale of the staff working in FCI in different categories. The Committee had submitted its report which was circulated by FCI vide Circular No. 1/1/1976/IPL/CEL dated 01.05.1976. The Circular inter alia provided that the staff members appointed by FCI before 01.01.1973 should be given option to opt for fixation of pay even on a later date. Such an option was not given to the concerned workmen on the ground that they were not on the rolls of FCI before 01.01.1973. They were taken over by FCI on 01.01.1973 and hence such an option was not given to them, with the result that their pay in the revised pay scales was fixed w.e.f. 01.01.1973 with the next increment on 01.01.1974. It is the contention of the petitioner union that the concerned workmen should have been given option treating them as in the service of FCI before 01.01.1973. [Para 9]

       The Tribunal, held that this should go to show that their services upto 01.01.1973 had not come to an end and their services had continued. They were merely transferred to FCI which had not resulted in termination of their previous service. Their amount credited in PF Scheme were also taken over or transferred to FCI while switching them over to CPF Scheme. Therefore, for all legal intent and purposes, they must be deemed to have been in the services of FCI before 01.01.1973, particularly when the period of service rendered by them before 01.01.1973 was taken into consideration by FCI even for payment of gratuity of that period. The Tribunal further held that FCI will have to treat them as in its service before 01.01.1973. This being the position, the FCI was required to give them option in regard to the date from which they would like to be placed in the revised pay scales. The Tribunal has, therefore, rightly directed the FCI to give the said statutory right for exercise of option in regard to the matters enumerated, in view of the provision of law and thereafter, take necessary steps accordingly. This Court is in agreement with the finding arrived at by the Tribunal as well as the submissions made on behalf of the petitioner union that this statutory right is available to all the 321 employees and it is not merely confining to 15 employees only. The Court is, of the view that the Notification issued by the Government of India on 09.05.1996 is not merely confining to 15 employees only, but it is also treated to have been extended to all the 321 employees including those 15 employees whose names were mentioned in the award of the Industrial Tribunal. [Para 9]

       Law Laid Down :

       Merely on account of transfer of services to FCI, petitioners previous service can not be considered to have been terminated.

       Conclusion :

       Considering the documents and facts of the case Court held, that for all legal intent and purposes petitioners must be deemed to have been in Service of FCI before 01.011973 and entitled to option in regard to the date from which they would like to be placed in revised pay scale - This statutory right is available to all the 321 employees.

       Decided in Favour of :

       Petitioner

       Petition Allowed