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Supreme Court dismisses CGIT award: States issue of date of birth is as important for the employer as it is for the employee.

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CASE TITLE – The General Manager, M/S Barsua Iron Ore Mines v. The Vice President , United Mines Mazdoor Union and Ors.

CASE NUMBER – 2024 INSC 264 (Neutral Citation)

DATED ON – 02.03.2024

QUORUM – Justice Ahsanuddin Amanullah

FACTS OF THE CASE

The present appeal arises out of the final judgment dated 04.02.2021, passed by a Division Bench of the High Court of Orissa at Cuttack in Writ Petition (Civil) No.9424 Page 1 of 10 of 2019, whereby the petition filed by the appellant was dismissed and the Award dated 24.01.2018 passed by the Central Government Industrial Tribunal-cum-Labour Court, Bhubaneswar in ID Case No.33 of 2003, was upheld. The respondent no.3 was employed as a Piece Rated Mazdoor at Barsua Iron Ore Mines under Rourkela Steel Plant, a unit of Hindustan Steel Limited, which later merged into Steel Authority of India Limited. The respondent no.3 was offered employment on a casual basis vide letter dated 14.04.1972 as a Piece Rated Mazdoor. On 27.12.1972, he submitted the prescribed form of descriptive roll declaring his age as 24 years but did not provide a specific date or any documentary proof of date of birth. Based on his oral declaration, his date of birth was recorded as 27.12.1948 and this date was accepted and signed on by the respondent no.3 leading to his employment. Vide Offer of Appointment dated 22.06.1981, the respondent no.3, initially employed as a casual labourer, was regularized under the appellant and worked as a Piece Rated Mazdoor in mining operations for SAIL following the merger of HSL into SAIL. It appears that on 14.08.1982, the respondent no.3 submitted the prescribed form of Descriptive Roll, wherein he changed his initially recorded date of birth i.e. 27.12.1948 to 12.03.1955, again without providing any documentary proof. Vide Office Order dated 20.12.1982, such date of birth, as disclosed by the respondent no.3, was entered in the records of the appellant who effected the change without any scrutiny. Page 2 of 10 6. On 24.11.1998, the respondent no.3 was requested to submit documentary proof in support of his date of birth, in response to which he submitted a School Transfer Certificate dated 12.01.1972, which made him 17 years and 1 month old at the time when he was offered employment on casual basis on 14.04.1972. On 29.11.2001, based on his declaration at the time of initial employment the Competent Authority of the appellant determined the date of birth of the respondent no.3 as 27.12.1948, which made him come within the statutory employment age limit and above the minimum age i.e., 18 years, required for such employment. 8. On 09.10.2003, a dispute regarding the respondent no.3’s date of birth was referred by the “appropriate Government” to the CGIT for adjudication. In the meanwhile, on 31.12.2008, the respondent no.3 superannuated from service, having attained the age of 60 years, based on his initially recorded date of birth [27.12.1948]. On 24.01.2018, the CGIT passed its Award and held that the appellant’s determination of the respondent no.3’s date of birth based on the initial Descriptive Roll was unjustified and thus, awarded him 50% back wages from his retirement in 2008 until his supposed date of superannuation in 2015, based on the date of birth disclosed in the STC i.e., 12.03.1955. The appellant filed a Writ Petition before the High Court of Orissa at Cuttack on 19.05.2019 challenging the Award passed by the CGIT on 24.01.2018. The order of the High Court dismissing the same on 04.02.2021, is impugned in the present appeal.

 

ISSUES

Whether the Award of the CGIT as well as the impugned judgment rendered by the High Court be sustained.

CONTENTION OF APPELLANTS

Learned senior counsel for the appellant submitted that the conduct of the respondent no.3 clearly dis-entitled him to any relief as he could not have been allowed to resile from his initially declared date of birth, that too after 9 years of his initial declaration, on 27.12.1972. It was submitted that the said declaration by the respondent no.3 himself on 27.12.1972, cannot be said to be an inadvertent error or omission for the reason that had the so-called correct date of birth, according to the respondent no.3, i.e., 12.03.1955 been declared, then at the relevant point of time, he would have been only 17 years and 1 month old and could not have been given the employment he had sought, since the minimum age required was 18 years. Thus, it was submitted that it was clear that he had tried to take employment relying on his date of birth as 27.12.1948, from which he cannot be allowed to backtrack. It was canvassed that the same would amount to taking double advantage; one at the initial stage on the basis of the date of birth as 27.12.1948 and later in service on a different date of birth i.e., 12.03.1955. It was contended that the CGIT reaching the conclusion, that the management could not have determined the date of birth of the respondent no.3 based on the initial Descriptive Roll being unjustified, was totally without any basis and arbitrary and thus, awarding him 50% back wages, is totally misplaced and needs interference by this Court. It was urged that the High Court also failed to take notice of basic factual aspects and more importantly, the conduct of the respondent no.3 and the time-gap of 9 years after which he suddenly woke up and made a representation for change of his date of birth.

 

CONTENTIONS OF RESPONDENTS

Counsel for the respondent no.3 submitted that at the time of filling up the Descriptive Roll, the same was based on an oral declaration and apparently the authority, which was noting down the date of birth, had committed an error. It was further submitted that the STC dated 12.01.1972 clearly indicates that his date of birth was 12.03.1955, which required corrections in the records of the appellant and thus the CGIT and the High Court have not committed any error warranting interference by this Court. It was submitted that the respondent no.3 was unaware of the date of birth being recorded as 27.12.1948 and only when he came to know of the same, he had taken steps and the CGIT rightly granted relief to him. Learned counsel also submitted that the respondent no.3 cannot be made to suffer for the fault of the appellant itself and more so when later, in its own records it had correctly recorded his date of birth as 12.03.1955, in the year 1982.

 

COURT ANALYSIS AND JUDGEMENT

Having considered the matter in its entirety and the submissions made, the Hon’ble Supreme Court was of the opinion that the Award of the CGIT as well as the impugned judgment rendered by the High Court cannot be sustained. It is not in dispute that while submitting the Descriptive Roll, the respondent no.3 had himself declared his age as 24 years without any documentary proof and since the date of submission of such Descriptive Roll was 27.12.1972, his date of birth was recorded by the appellant as 27.12.1948. This position continued for almost a decade viz. till 1982, when the respondent no.3 submitted a declaration, on the merger of HSL with SAIL, wherein his date of birth was disclosed as 12.03.1955, though even at such time, again, no documentary proof was furnished by him. Page 6 of 10 The respondent no.3 submitted the so-called proof, which was the STC dated 12.01.1972, only after the issuance of letter dated 24.11.1998, whereby he was required to submit documentary proof of his date of birth. Pausing here, the Court would note that by reckoning his date of birth as 12.03.1955, the respondent no.3 would be much below the age of 18 years at the time of initial employment, which was the minimum requirement in law. Thus, it is clear that had the respondent no.3 declared his so-called correct date of birth, obviously he would not have been given the employment.  From this point of view, it is clear that the disclosure of the originally-given date of birth by the respondent no.3 was a well-thought out plan hatched by him, at the relevant time. His conduct cannot be simply brushed aside on a plea that there was an error on the part of the appellant in recording his date of birth. Another doubt cast on the conduct of the respondent no.3 is him not acting on time, which raises a question about the bonafides of his claim of having been born on 12.03.1955. In fact, even after giving a declaration on 14.08.1982, on the merger of HSL with SAIL, the copy of the STC was never provided to the appellant, which was done only in response to the letter dated 24.11.1998, requiring him to submit documentary proof of his date of birth. The court said that a decision on the issue of date of birth is as important for the employer as it is for the employee. Moreover, the principles of estoppel would come into play in the present case. The respondent no.3, having stated on 27.12.1972, that his date of birth was 27.12.1948, cannot be permitted to raise the claim of his date of birth being 12.03.1955, that too on 14.08.1982, i.e., almost after a decade (counting from 27.12.1972 to 14.08.1982). Even the STC was submitted after the appellant requested the respondent no.3 for documentary proof on 24.11.1998. The Court found that the much-delayed disclosure of the date of birth as 12.03.1955 by the respondent no.3, coupled with his initial declaration and the admitted position that based on such initial declaration, he had received employment, as otherwise based on 12.03.1955, he could not have been legally appointed due to being under-age, there is no manner of doubt that the respondent no.3, irrespective of his real date of birth, for the purpose of employment under the appellant, cannot be allowed the Page 9 of 10 purported rectification/correction of date of birth to 12.03.1955. He would have to, necessarily, be content with his service and benefits accounted taking his date of birth as 27.12.1948. For reasons aforesaid, the appeal was allowed. The Award of the CGIT dated 24.01.2018 and the impugned judgment was set aside. The respondent no.3 was held to have been rightly retired in terms of his date of birth reckoned as 27.12.1948. And needless to state that the further direction to award 50% back wages to the respondent no.3 from the date he was retired till the (notional) superannuation on 31.03.2015, was also set aside.

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Decision taken by the Bank cannot be said to be arbitrary or perverse or unreasonable as to become unsustainable: High Court Of Andra Pradesh

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CASE TITTLE: Sri Puvvada Venkata Mohana Murali Krishna Murthy V The State of Andhra Pradesh,

CASE NO: W.P. No.4861 of 2018

DATED ON:  .05.2024

QUORUM: DHIRAJ SINGH THAKUR, CJ,  R. RAGHUNANDAN RAO, J

FACTS OF THE CASE:

The factual matrix leading to the present appeal in question is that, all petitioners were employees of the Prakasam District Cooperative Central Bank Limited, who retired at the age of 58 years having attained the age of superannuation and retired by the year 2017. The case of the petitioners is that they ought to have been retired on attaining the age of 60 years. With a view to support this fact, the petitioners stated that the Andhra Pradesh Legislature enacted the Andhra Pradesh Public Employment (Regulation of Age of Superannuation) (Amendment) Act, 2014,

The Government of Andhra Pradesh, providing instructions for implementation of the said Act reiterating the fact that the provisions under the said section was applicable only to the categories mentioned therein and none else. Subsequently it was envisaged that the enhancement of age of superannuation would not be made applicable to the employees of the Public Sector Undertakings and Institutions listed in the IX and X Schedules of the Andhra Pradesh Reorganisation Act, 2014  until the matter of division of assets and liabilities of the institutions between the states of Andhra Pradesh and Telangana was settled and the allotment of the employees between the two states was finalized for those public section undertakings and institutions. It appears that the decision taken by the Government of Andhra Pradesh enhancing the age of superannuation of employees of public sector undertakings under the administrative control of the Government from 58 to 60 years was kept in abeyance till such time as a policy was formulated in that regard. The stand of the Government is very clear, The Government Order dated 08.08.2017 permitting the employees to continue up to the age of 60 years has come into effect with effect from 2.6.2014. Therefore, all employees who have superannuated on account of attainment of age of 58 years on 02.06.2014 or thereafter are entitled to the protection of their service up to 60 years of age and naturally to all consequential benefits arising there from.” The petitioners herein, in the meantime, had approached the Bank for purposes of seeking an enhancement in their age of superannuation from 58 to 60 purportedly based upon the said Act, The Bank by virtue of its decision, resolved to enhance the age of superannuation of employees working in the Bank from 58 to 60 years from the month of June, 2017 onwards. Representations filed by the petitioners to give the benefit of enhancement of the age of superannuation retrospectively came to be rejected on the ground that the financial situation of the Bank was not such as would warrant the enhancement in the age of superannuation, In the present writ petition, the petitioners challenge the action of the Bank in not enhancing the age of superannuation from 58 to 60 retrospectively with effect from 02.06.2014 as was done in the case of institutions falling in Schedules IX and X of the Reorganisation Act, It is stated that the refusal of the Bank to grant such a retrospective benefit was arbitrary, illegal, unjust and discriminatory. Apart from this, it was urged that the Bank was discriminating between those, who retired post 02.06.2014 and those who are working as on 30.06.2017 and that the decision to enhance the age of superannuation only from the month of June, 2017 onwards was irrational.

LEGAL ISSUES:

  • whether the petitioners, who are the employees of a corporate body like a Cooperative Bank can claim to have been discriminated as against the Government employees or for that matter, the employees working for entities listed under Schedule IX and X of the Reorganisation Act?
  • whether the petitioners can claim discrimination between the employees of those entities, which are listed under Schedule IX and X of the Reorganisation Act and the petitioners, who are employees of a Cooperative Credit Society?

LEGAL PROVISIONS:

Sec 3(1) of Andhra Pradesh Public Employment (Regulation of Age of Superannuation) (Amendment) Act, 2014, lays that Every Government employee shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years.”

Section 115D of the APCS Act talks about the Special provisions applicable to Co-operative Credit Societies.

CONTENTIONS OF APPELLEANT:

It petitioners through their counsel submitted that since the Andhra Pradesh Cooperative Societies Act, 1964 was silent regarding the age of superannuation and that reference regarding the age of superannuation was only made in Rule 28(6) of the Andhra Pradesh Cooperative Societies Rules, 1964, therefore, the policy as laid down in the said act was required to be followed.the counsel further urged that Section 115(D) of the APCS Act did not empower the Board of Management of the Bank to enhance the retirement age and that the decision had to be taken by the Government. The counsel further submitted that Section 115(D)(2)(iv) of the APCS Act although covered the matters of personnel policy, staffing, recruitment etc., but would not cover the matter of superannuation, which was covered under Section 28(6) of the APCS Rules, therefore, it was sought to be urged that the case of the petitioners could not have been ignored for grant of similar relief to the petitioners.

CONTENTIONS OF THE RESPONDENT:

The respondents,through their counsel Mr. C. Sumon, submitted that the petitioners are not entitled to the benefit of the said Act inasmuch as the petitioners were not Government employees as defined in Subsection (2) of Section 1 of the said Act. It was urged that the said Act was not applicable to the employees of the public enterprises and autonomous institutions. It was stated that the petitioners were employees working in the cooperative credit societies, which were autonomous in their functioning and that having considered the issue of enhancement in the age of superannuation, the Bank had taken a conscious decision to enhance the age of superannuation of their employees from 58 to 60 with effect from June, 2017, the counsel  further urged that fixation of the age of superannuation was in the nature of a policy decision and there was nothing perverse about increasing the age of superannuation with effect from June, 2017 and that being a policy decision, ordinarily, the same could not be interfered by this Court in exercise of its extraordinary jurisdiction except on the grounds of arbitrariness or unreasonableness. Counsel further stated that Chapter XIII-B of the APCS Act was a special provision applicable to the Cooperative Credit Societies, which, among others, introduced Section 115D (2) providing autonomy to the Cooperative Credit Societies. It was also stated that Section 115D was an overriding provision, which prevailed over Rule 28(6) of the APCS Rules.

COURTS ANALYSIS AND JUDGEMENT:

The court on hearing both the sides, considered that the petitioners can certainly be not called as Government employees, as they do not fall within the definition of „Government employees‟ as defined under the Act No.23 of 1984. If that be so, it is no longer res integra that employees of corporate bodies cannot demand as a matter of right to be treated similarly as employees of the State Government. The court further intend to agree with learned counsel for the respondents that Section 115D of the APCS Act, which is a special provision applicable to Cooperative Credit Societies, which was incorporated in Chapter XIII-B by the act, does give autonomy to such cooperative credit societies, among others, as regards personnel policy, staffing,etc on various other discussions, The court opined that the decision taken by the Government for those entities, which find a mention in Schedule IX and X, would not bind the district cooperative central banks, which are cooperative credit societies, who are independently required to take a call considering various factors including their financial capacity for purposes of determining as to whether there Batch should be an extension in the age of superannuation and if at all from which date. the court further opined that, the decision taken by the DCCB is in the nature of a policy decision, howerever the court opined that the decision to increase the age of superannuation from a prospective date i.e., June, 2017 has also been taken after taking into consideration the benefit of enhancement of superannuation from 58 to 60 years as also considering the financial impact on account of salary and other benefits, which the Bank would have to pay in view of such an increase. Therefore the court observed that decision taken by the Bank cannot be said to be arbitrary or perverse or unreasonable as to become unsustainable. Therefore, the court on finding no merit in the present writ petitions, dismissed the same.

CASE TITTLE: Sri Puvvada Venkata Mohana Murali Krishna Murthy V The State of Andhra Pradesh,

CASE NO: W.P. No.4861 of 2018

DATED ON:  .05.2024

QUORUM: DHIRAJ SINGH THAKUR, CJ,  R. RAGHUNANDAN RAO, J

FACTS OF THE CASE:

The factual matrix leading to the present appeal in question is that, all petitioners were employees of the Prakasam District Cooperative Central Bank Limited, who retired at the age of 58 years having attained the age of superannuation and retired by the year 2017. The case of the petitioners is that they ought to have been retired on attaining the age of 60 years. With a view to support this fact, the petitioners stated that the Andhra Pradesh Legislature enacted the Andhra Pradesh Public Employment (Regulation of Age of Superannuation) (Amendment) Act, 2014,

The Government of Andhra Pradesh, providing instructions for implementation of the said Act reiterating the fact that the provisions under the said section was applicable only to the categories mentioned therein and none else. Subsequently it was envisaged that the enhancement of age of superannuation would not be made applicable to the employees of the Public Sector Undertakings and Institutions listed in the IX and X Schedules of the Andhra Pradesh Reorganisation Act, 2014  until the matter of division of assets and liabilities of the institutions between the states of Andhra Pradesh and Telangana was settled and the allotment of the employees between the two states was finalized for those public section undertakings and institutions. It appears that the decision taken by the Government of Andhra Pradesh enhancing the age of superannuation of employees of public sector undertakings under the administrative control of the Government from 58 to 60 years was kept in abeyance till such time as a policy was formulated in that regard. The stand of the Government is very clear, The Government Order dated 08.08.2017 permitting the employees to continue up to the age of 60 years has come into effect with effect from 2.6.2014. Therefore, all employees who have superannuated on account of attainment of age of 58 years on 02.06.2014 or thereafter are entitled to the protection of their service up to 60 years of age and naturally to all consequential benefits arising there from.” The petitioners herein, in the meantime, had approached the Bank for purposes of seeking an enhancement in their age of superannuation from 58 to 60 purportedly based upon the said Act, The Bank by virtue of its decision, resolved to enhance the age of superannuation of employees working in the Bank from 58 to 60 years from the month of June, 2017 onwards. Representations filed by the petitioners to give the benefit of enhancement of the age of superannuation retrospectively came to be rejected on the ground that the financial situation of the Bank was not such as would warrant the enhancement in the age of superannuation, In the present writ petition, the petitioners challenge the action of the Bank in not enhancing the age of superannuation from 58 to 60 retrospectively with effect from 02.06.2014 as was done in the case of institutions falling in Schedules IX and X of the Reorganisation Act, It is stated that the refusal of the Bank to grant such a retrospective benefit was arbitrary, illegal, unjust and discriminatory. Apart from this, it was urged that the Bank was discriminating between those, who retired post 02.06.2014 and those who are working as on 30.06.2017 and that the decision to enhance the age of superannuation only from the month of June, 2017 onwards was irrational.

LEGAL ISSUES:

  • whether the petitioners, who are the employees of a corporate body like a Cooperative Bank can claim to have been discriminated as against the Government employees or for that matter, the employees working for entities listed under Schedule IX and X of the Reorganisation Act?
  • whether the petitioners can claim discrimination between the employees of those entities, which are listed under Schedule IX and X of the Reorganisation Act and the petitioners, who are employees of a Cooperative Credit Society?

LEGAL PROVISIONS:

Sec 3(1) of Andhra Pradesh Public Employment (Regulation of Age of Superannuation) (Amendment) Act, 2014, lays that Every Government employee shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years.”

Section 115D of the APCS Act talks about the Special provisions applicable to Co-operative Credit Societies.

CONTENTIONS OF APPELLEANT:

It petitioners through their counsel submitted that since the Andhra Pradesh Cooperative Societies Act, 1964 was silent regarding the age of superannuation and that reference regarding the age of superannuation was only made in Rule 28(6) of the Andhra Pradesh Cooperative Societies Rules, 1964, therefore, the policy as laid down in the said act was required to be followed.the counsel further urged that Section 115(D) of the APCS Act did not empower the Board of Management of the Bank to enhance the retirement age and that the decision had to be taken by the Government. The counsel further submitted that Section 115(D)(2)(iv) of the APCS Act although covered the matters of personnel policy, staffing, recruitment etc., but would not cover the matter of superannuation, which was covered under Section 28(6) of the APCS Rules, therefore, it was sought to be urged that the case of the petitioners could not have been ignored for grant of similar relief to the petitioners.

CONTENTIONS OF THE RESPONDENT:

The respondents,through their counsel Mr. C. Sumon, submitted that the petitioners are not entitled to the benefit of the said Act inasmuch as the petitioners were not Government employees as defined in Subsection (2) of Section 1 of the said Act. It was urged that the said Act was not applicable to the employees of the public enterprises and autonomous institutions. It was stated that the petitioners were employees working in the cooperative credit societies, which were autonomous in their functioning and that having considered the issue of enhancement in the age of superannuation, the Bank had taken a conscious decision to enhance the age of superannuation of their employees from 58 to 60 with effect from June, 2017, the counsel  further urged that fixation of the age of superannuation was in the nature of a policy decision and there was nothing perverse about increasing the age of superannuation with effect from June, 2017 and that being a policy decision, ordinarily, the same could not be interfered by this Court in exercise of its extraordinary jurisdiction except on the grounds of arbitrariness or unreasonableness. Counsel further stated that Chapter XIII-B of the APCS Act was a special provision applicable to the Cooperative Credit Societies, which, among others, introduced Section 115D (2) providing autonomy to the Cooperative Credit Societies. It was also stated that Section 115D was an overriding provision, which prevailed over Rule 28(6) of the APCS Rules.

COURTS ANALYSIS AND JUDGEMENT:

The court on hearing both the sides, considered that the petitioners can certainly be not called as Government employees, as they do not fall within the definition of „Government employees‟ as defined under the Act No.23 of 1984. If that be so, it is no longer res integra that employees of corporate bodies cannot demand as a matter of right to be treated similarly as employees of the State Government. The court further intend to agree with learned counsel for the respondents that Section 115D of the APCS Act, which is a special provision applicable to Cooperative Credit Societies, which was incorporated in Chapter XIII-B by the act, does give autonomy to such cooperative credit societies, among others, as regards personnel policy, staffing,etc on various other discussions, The court opined that the decision taken by the Government for those entities, which find a mention in Schedule IX and X, would not bind the district cooperative central banks, which are cooperative credit societies, who are independently required to take a call considering various factors including their financial capacity for purposes of determining as to whether there Batch should be an extension in the age of superannuation and if at all from which date. the court further opined that, the decision taken by the DCCB is in the nature of a policy decision, howerever the court opined that the decision to increase the age of superannuation from a prospective date i.e., June, 2017 has also been taken after taking into consideration the benefit of enhancement of superannuation from 58 to 60 years as also considering the financial impact on account of salary and other benefits, which the Bank would have to pay in view of such an increase. Therefore the court observed that decision taken by the Bank cannot be said to be arbitrary or perverse or unreasonable as to become unsustainable. Therefore, the court on finding no merit in the present writ petitions, dismissed the same.

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Andhra Pradesh High Court Reviews Cooperative Bank’s Decision to Raise Retirement Age from 58 to 60 Years: Clarifies Financial Implications

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Andhra Pradesh High Court Reviews Cooperative Bank’s Decision to Raise Retirement Age from 58 to 60 Years: Clarifies Financial Implications  

Case Name: Sri Puvvada Venkata Mohana Murali Krishna Murthy v. The State of Andhra Pradesh 

Case No.: Writ Petition No.4861 of 2018 

Dated: May 22, 2024 

Quorum: Justice Dhiraj Singh Thakur and Justice Raghunandana Rao 

 

FACTS OF THE CASE: 

The facts of the present case centre The petitioners were all workers at the Prakasam District Cooperative Central Bank Limited. By the year 2017, they had reached superannuation age and retired at the age of 58. The petitioners’ argument is that they should have retired when they became sixty years old.  

The petitioners argued that the Andhra Pradesh Public Employment (Regulation of Age of Superannuation) (Amendment) Act, 2014, or simply “Act No. 4 of 2014,” was passed by the state legislature in order to bolster this claim. It replaced Section 3(1) with the following sub-section. It would be appropriate to include the Andhra Pradesh Public Employment (Regulation of Age of Superannuation) Act, 1984’s definition of “government employee” below. 

 The Andhra Pradesh government released G.O.Ms.No.147, which contained instructions for putting Act No. 4 of 2014 into effect. It reiterated that the Act’s provisions only applied to the categories listed in it. It was subsequently issued, outlining the plan to delay applying the increased age of superannuation to employees of Public Sector Undertakings and Institutions listed in the IX and X Schedules of the Andhra Pradesh Reorganisation Act, 2014, until the issue of the partition of the institutions’ assets and liabilities between the states of Andhra Pradesh and Telangana was resolved and the distribution of the employees between the two states for those public sector undertakings and institutions was finalised.  

 ISSUES: 

  • whether the petitioners, who are employees of a Cooperative Bank (a corporate body), can claim that they have been discriminated against in comparison to Government employees or employees working for entities listed under Schedule IX and X of the Reorganisation Act. 

 LEGAL PROVISIONS: 

  • Section 3(1) of the Andhra Pradesh Public Employment (Regulation of Age of Superannuation) (Amendment) Act, 2014. The last day of the month in which a government employee turns sixty years old is when they are all required to retire from service. 

 CONTENTIONS OF THE APPELLANTS: 

The learned counsel for the appellants fiercely and strongly argued that the petitioners in this writ suit contest the Bank’s decision to not raise the superannuation age retroactively from 58 to 60 with effect from June 2, 2014, as was done in the case of institutions covered by Schedules IX and X of the Reorganisation Act by virtue of G.O.Ms. No. 138. It is claimed that the Bank’s decision to reject such a retroactive benefit was discriminatory, unlawful, arbitrary, and unfair. 

 In addition, it was argued that the Bank was unfairly distinguishing between individuals who retired after June 2, 2014, and those who continued to work as of June 30, 2017, and that raising the superannuation age just in June 2017 was an illogical move.  

Learned counsel representing the petitioners argued that since the Andhra Pradesh Cooperative Societies Act, 1964 (also known as the “APCS Act”) made no mention of the age of superannuation and only mentioned it in Rule 28(6) of the Andhra Pradesh Cooperative Societies Rules, 1964 (also known as the “APCS Rules”), the Act No. 4 of 2014’s policy had to be adhered to.  

It was also argued that the Government should have made the choice to raise the retirement age rather than the Bank’s Board of Management, as Section 115(D) of the APCS Act did not grant them that authority.  

 CONTENTIONS OF THE RESPONDENTS: 

The arguments put forward by the learned counsel for the appellants were sharply and passionately rejected by the learned counsel according to Mr. C. Sumon, the learned counsel representing the respondents, the respondents’ position was that the petitioners were not government employees as defined by subsection (2) of Section 1 of the Act, and as such, they were not entitled to the benefit of the Act.  

It was argued that employees of public enterprises and autonomous organisations were not covered by the aforementioned Act. According to the statement, the petitioners were workers in cooperative credit societies, which operated independently. The Bank had consciously decided to raise its employees’ retirement age from 58 to 60 years old as of June after carefully examining the issue of employee benefits enhancement. 

The argument went on to say that fixing the age of superannuation was a policy decision and that raising it with effect from June 2017 was not perverse. Since it was a policy decision, this Court could normally only interfere with it in the exercise of its extraordinary jurisdiction if it was deemed to be arbitrarily or unreasonable.  

 COURT’S ANALYSIS AND JUDGMENT: 

The court observed that the litigation history covered in the preceding paragraphs demonstrates that the lawsuit was started at the request of workers who had worked for the institutions included in the Reorganisation Act’s IX and X Schedule for 58 years, or acquired the age of superannuation.  

The court further noted that the interim orders imposed by the Hon’ble Supreme Court had retrospective effect and went into effect on June 2, 2014. In addition, the aforementioned provided that employees of the businesses included in Schedules IX and X of the Reorganisation Act would not be eligible for superannuation only on the basis of reaching the age of 58.  

The court held that since the petitioners in this case did not meet the requirements of Act No. 23 of 1984’s definition of “Government employees,” they cannot be considered government employees in any sense. If that’s the case, then corporate employees’ inability to expect the same treatment as state government employees as a matter of right is no longer res integra.  

The government’s decision regarding those entities mentioned in Schedules IX and X will not bind the district cooperative central banks, which are cooperative credit societies. These institutions are required to make their own decisions based on a variety of factors, including their financial capacity, in order to decide whether or not to extend the age of superannuation and, if so, from what date. We believe that the DCCB’s decision is a decision of a policy character. 

Finally, the court laid down that the decision to raise the retirement age from a prospective date, i.e., June 2017, was made after weighing the advantages of increasing retirement age from 58 to 60 years old as well as the financial implications of salary and other benefits that the Bank would have to pay as a result of the increase. It cannot be argued that the Bank’s decision was so irrational, perverse, or unreasonable as to be unsupportable. As a result, the court denied the current writ petitions, as we see no value in them.  

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Judgment reviewed by Riddhi S Bhora. 

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Article 311(1) Guarantees Right To Fair Enquiry to Govt Employees: Karnataka High Court

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Case Title:- DR. YOGANANDA A versus THE VISVESVARAYA TECHONOLOGICAL UNIVERSITY and others

Case No:-WRIT PETITION NO.21705 OF 2021 (S-RES)

Decided on:-18-03-2024

Quorum:-THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

Facts of the case:-

The case at hand concerns the Governing Council’s disciplinary proceedings against the petitioner which led to a recommendation for the petitioner’s mandatory retirement and as a result the Disciplinary Authority, respondent No. 3-Registrar has sent out a second show-cause notice signaling the imposition of a penalty. This has raised concerns about procedural inconsistencies and possible violations of Article 311(1) of the Indian Constitution. In light of this, the petitioner in the captioned petition has contested the respondent No. 2’s contested order imposing a mandatory retirement penalty, which is listed in Annexure-A.

Contentions:-

Learned counsel of petitioner states that in the present case on hand, petitioner is challenging imposition of penalty of compulsory retirement recommended by the Governing Council and the subsequent issuance of second show cause notice by Respondent No.3. This Court in the light of the judgments cited by the counsel on record has deliberated on Constitutional and legal provisions along with pertinent precedents. Article 311(1) of the Constitution of India Guarantees certain safeguards to Government employees including the right to fair enquiry before any adverse action is taken against the employees. This constitutional provision ensures that no Government employee is deprived of their livelihood arbitrary or without due process. It would be useful for this Court to take cognizance of the Landmark judgment rendered by the Hon’ble Apex Court in The case of Managing Director, ECIL Hyderabad and Others vs. B. Karunakar and Others.The Hon’ble Apex Court while examining the employees right to have a reasonable opportunity to refute and offer his explanation to the findings recorded by the Enquiry Officer was of the view that right to show cause against the findings of the enquiry report is considered to be an essential part of a reasonable opportunity incorporated earlier in Section 240(3) of Government of India Act and later in Article 311(2) of Constitution as originally enacted.

The Apex Court was of the view that right to receive the enquiry officer’s report and to show cause against the findings in the report was independent of the right to show cause against the penalty proposed. The Apex Court while noticing the anomaly prior to amendment and post 42nd amendment to Article 311 of the Constitution Of India was of the view that the two rights came to be confused with each other as the law stood prior to 42nd Amendment to the constitution. The Apex Court noting that 42nd amendment of constitution dispenses with issuance of notice to show cause against the penalty proposed held that if the law as it stood prior to 42nd amendment and notice is issued to show cause against the proposed penalty the right of employee to receive the report and represent against the finding of guilt would be rendered infructuous. What can be gathered from the dictum laid down by the Apex Court is that prior to 42nd amendment, both issuance of show cause notice and the commencement of disciplinary proceedings are simultaneous. However, subsequent amendments preclude such concurrent actions. Amending the sequential process wherein show cause notice must precede by furnishing of enquiry report on the delinquent employee. The culled out portion of the proceedings of the governing council clearly indicates that it is the Governing Council by recommending to impose penalty has virtually Preempted the right of the Disciplinary Authority to receive explanation and then apply its mind as to whether this is a fit case to impose penalty. Therefore, it is clearly evident that respondent No.3/Registrar/Disciplinary Authority being Sub-ordinate to the Governing Council had no discretion to independently evaluate the situation or apply its own judgment.

Court Analysis and Judgement:-

Court stated that the writ petition is allowed; The impugned penalty of compulsory retirement passed by the respondent No.2 as per Annexure-A is hereby quashed; The respondent No.3-Disciplinary Authority is hereby directed to adhere to the Mandate of the Hon’ble Apex Court in the Judgment cited supra and also take cognizance Of Article 311(1) of the Constitution of India and shall issue a fresh show cause notice in accordance with law; If such a show cause notice is issued, liberty is reserved to the petitioner to offer fresh explanation and the respondent No.3 shall thereafter proceed to take appropriate action by strictly adhering to the findings and observations recorded by this court supra.

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Delhi High Court Dismissed the writ of certiorari and granted petitioner liberty to argue their matter before Armed forces tribunal

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Title: LT COL PRAVAL PETER RETD & ORS. versus UNION OF INDIA & ORS.

Reserved on: 14th July, 2023

Pronounced on: 18 th July, 2023

+ W.P.(C) 3042/2023 & CM APPL. 11815/2023

CORAM: HON’BLE THE CHIEF JUSTICE MR. JUSTICE SATISH CHNADRA SHARMA

    HON’BLE MR. JUSTICE SANJEEV NARULA

Introduction

Delhi High Court Dismissed the writ of certiorari and granted petitioner liberty to argue their matter before Armed forces tribunal, Keeping in mind the principles outlined in the judgment of Squadron Leader Neelam Chahar and also keeping in mind a more prudent redressal path for petitioner which is more efficient and effective.

Facts of the case

The petitioners, who were ‘premature retirees’ from the Indian Army and Air Force, held Permanent Commissions before their early retirement. According to them, their retirement pension and other perks were Due to their failure to fulfil the required twenty years of service, which is a requirement for getting a full pro-rata service pension, it was unjustly denied to them.

The Petitioners were allegedly forced to retire early after successfully completing 10 years of service, but before reaching the twenty-year milestone, due to reasons beyond their control. Despite the fact that this early exit was approved by the appropriate authority, the petitioners argued that the respondents had conveniently ignored the pre-commissioning military training and reserve service periods, which when taken into account would total more than the required twenty years of service for the grant of a service pension. They should be qualified for the pension because these periods were essential and contributed to their overall service time.

The Petitioners demand service pension, even on a pro rata basis, due to them on reason of their early retirement, based on the afore-noted inconsistencies in computation of their service periods and application of criteria for providing benefits to them.

They had previously filed a writ petition [W.P.(C) 11893/2021], but due to the nature of the reliefs requested, it was rejected by order dated October 22, 2021, with the liberty to continue agitating the subject by launching a public interest lawsuit [“PIL”].

Petitioners elucidated their personal interest in the matter and urged the Court to consider their case within the ambit of the aforesaid writ petition, rather than as a PIL.

The policy dated February 19, 1987, which reportedly served as the basis for Respondents’ decision to deny benefits of pro-rata pension and other benefits like pension commutation and ex-servicemen status, was among the policies that Petitioners sought to have declared invalid in the instant petition in the nature of a PIL. They also sought a writ of certiorari to overturn the existing policy, non-statutory pension regulations, and other related instructions.

Analysis of the court

According to Regulation 34 of the Pension Regulations for the Army, 2008, which stipulates a minimum qualifying service of twenty years as a prerequisite for officers to receive service or retiring pension, the impugned communication, dated April 24th, 2019, cited in the aforementioned prayer clause, is Respondents’ decision.

Respondents claim that because the Petitioners are considered premature retirees, they are not eligible to benefit from Ministry of Defence policy dated 19th February, 1987.

It is important to emphasise at this point that the Petitioners fall under the purview of the Armed Forces Tribunal Act, 2007, and have access to a specialised forum for airing their complaints, the Armed Forces Tribunal (the “AFT”). However, the Petitioners opted to file a writ petition before this Court given to the ambiguity surrounding AFT’s ability to consider issues about the constitutionality of subordinate legislations, including rules, regulations, notices, and circulars.

Fortunately for the Petitioners, a recent decision by the full bench of this Court in Squadron Leader Neelam Chahar v. Union of India and Others, W.P.(C) 9139/2019, has clarified the issue surrounding the competence of the AFT to entertain petitions challenging circulars, statutory rules, regulations, and policies. The court held that the Armed Forces Tribunal is competent to hear the challenge to the vires of the subordinate legislations, rules, regulations, notification.

We feel that the AFT, given its specialised character, would provide a more swift determination for the Petitioners’ complaints given the recent clarification provided by the judgement mentioned above and taking into account the larger circumstances. There is no question that the Petitioners have a direct, personal interest in the issue, which usually precludes using a PIL. We are also aware that the petitioners who filed the current PIL did so with the freedom provided by a coordination bench, and that their perception of our decision to refer their case to the AFT may be unjust given that they have been exploring legal options since 2021 without receiving any redress.

However, our understanding relating to the jurisdiction of the AFT, has evolved in the wake of the judgment referenced above. Therefore, it becomes prudent to steer the Petitioners towards a path of redressal that is more fitting, efficient, and effective i.e., the AFT.

The current PIL is dismissed, together with any related ongoing petitions. The Petitioners are given the freedom to express the complaints made in their petition before the Armed Forces Tribunal while keeping in mind the guidelines provided in the aforementioned Squadron Leader Neelam Chahar judgement.

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