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TMI Blog2016 (8) TMI 1489X X X X Extracts X X X X X X X X Extracts X X X X ..... oney. The documents relied upon by the writ petitioners/respondents in respect of their contention that they served the company till the age of 60 years, are not conclusive. If the company is able to establish its case that since 2003 the Rupnarainpur Unit of the company was virtually lying closed and the writ petitioners showed attendance only on papers which were also prepared by them and their colleagues, it would be unfair to foist liability on the company for paying the wages and other benefits of the writ petitioners beyond the age of 58 years. That would also result in unjust enrichment of the writ petitioners. These are questions of fact, determination whereof requires a full-fledged trial with witness action, for which the writ court is not the forum. Labour Courts have been set up to entertain and adjudicate upon precisely the kind of dispute that is involved in the present writ proceeding. The claim of the writ petitioners projected in the present proceeding can be adjudicated properly, more conveniently and much more efficaciously by the Labour Court. It is the Labour Court which the writ petitioners should have approached instead of invoking the writ jurisdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany for making necessary payment to the writ petitioners in terms of this order if the respondent No. 1 is otherwise obliged to bear the financial burden of the company in this regard. Challenging the aforesaid judgment and order the appellant company and the Union of India have filed separate appeals which are before us. Submission on behalf of the Hindustan Cables Ltd. (appellant No. 1 in MAT No. 1446 of 2015) 3. Appearing on behalf of the Hindustan Cables Ltd. (in short the 'Company'), Mr. Partha Sarathi Sengupta, Learned Senior Counsel urged a preliminary point of maintainability of the writ petition. He submitted that the writ petitioners have filed the instant proceeding to enforce a money claim simpliciter. Mr. Sengupta then submitted that a contractual right and that too a plain and simple money claim cannot form the basis of a writ petition. In this connection he relied on a decision of the Hon'ble Supreme Court in the case of M/s. Burmah Construction Company vs. The State of Orissa, AIR 1962 SC 1320, wherein at paragraph 6 of the judgment the Hon'ble Apex Court observed that the High Court normally does not entertain a petition under Art. 226 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 2A of the Bengal Industrial Employment (Standing Orders) Rules, 1946 provides that matters relating to payment, transfer, over-time and superannuation shall be additional matters to be included in the Schedule to the Industrial Employment (Standing Orders) Act, 1946 and shall be treated as item Nos. 12 to 15 of the said Schedule. Mr. Sengupta submitted that on a conjoint reading of the aforesaid provisions, it follows that all Standing Orders must contain a clause relating to superannuation. Otherwise it is not a Standing Order at all. Since the 1977 Standing Orders do not contain a superannuation clause, it is not a valid Standing Order. 5. Learned Counsel then referred to a Tripartite Agreement dated 7 June, 1974 entered into by and between the Management of the Company and the Four Unions of the Company subject to the approval of the Addl. Labour Commissioner and Conciliation Officer. He submitted that although clause 12 of the said agreement provides that subject to the approval of the Board of Directors, the employees will retire on attaining the age of 60 years instead of attaining 58 years of which, this purported increase in the age of retirement was never made part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terial times. 7. Mr. Sengupta then submitted that the impugned judgment was passed following the judgment and order dated 13 September, 2011 passed by a Division Bench of this Court in FAAA 725 of 2011. The said appeal had arisen from an order dismissing the writ petition of 141 other employees of the Rupnarainpur Unit of the Company (WP No. 14269(W) of 2010) praying for a direction on the company to pay the salaries of the writ petitioners beyond their age of 58 years till their superannuation at the age of 60 years. The Division Bench allowed the appeal and directed the company to pay the admissible dues of the writ petitioners. A Special Leave Petition preferred against the said Division Bench order was dismissed and the review petition filed before the Supreme Court was also dismissed. However, Mr. Sengupta submitted that none of the issues involved in the present case as urged on behalf of the company was argued or considered by the Division Bench while passing the order dated 13 September, 2011 in the earlier appeal. Learned Counsel submitted that the said order of the Division Bench ought not to have been followed by the Learned Single Judge in the present case. Even thou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to perpetuate illegality. If one illegal action is taken, a person whose case is similar, cannot invoke Arts. 14 or 16 and demand similar relief illegally or against a statute. 8. It was then urged by Mr. Sengupta that the Settlement dated 7 June, 1974 is void for non-compliance with Sec. 2(p) of the Industrial Disputes Act, 1947 (in short the 'ID Act'). Sec. 2(p) of the ID Act provides as follows:- S. 2(p) 'Settlement' means a settlement arrived at in the course of conciliation proceeding and includes a written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to (an officer authorized in this behalf by) the appropriate Government and the conciliation officer. Learned Counsel submitted that copy of the said purported settlement was not sent to the officer authorized by the appropriate government and as such it was not a settlement within the meaning of Sec. 2(p) of the ID Act and not enforceable under Sec. 18 of the Act. 9. Mr. Sengupta then referred to an Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Supreme Court allowed the appeal of the State Government, inter alia, holding that if the salaries are not paid, the remedy of the employees of CAMUL was to proceed against CAMUL in accordance with law, by approaching the forum under the appropriate labour legislation or the Cooperative Societies Act. A trade union representing the employees of a cooperative society cannot, by filing a writ petition, require the Government to bear and pay the salaries of the employees of the cooperative society, howsoever pervasive the control of the State Government over such society. 12. Mr. Sengupta then referred to Sec. 33C of the ID Act and submitted that the said provision provides an efficacious alternative mode to an employee for recovery of money due from an employer. He submitted that in view of such provision, the Learned Judge should not have entertained the writ petition. 13. Learned Counsel then submitted that if the employees are desirous of enforcing the superannuation clause in any agreement between them and the Management, the Writ Court is not the proper forum. He relied on a decision of the Hon'ble Apex Court in the case of Kerala State Electricity Board vs. Kurien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative Sugar Mills Ltd. vs. Ajit Singh, (2005) 3 SCC 232, wherein at paragraph 23 of the judgment the Hon'ble Supreme Court observed that the High Court applied wrong legal tests in upholding the views of the Labour Court which itself approached the matter from a wrong angle. The Labour Court as also the High Court posed a wrong question unto themselves and thus, misdirected themselves in law. He also relied on a judgment of the Hon'ble Supreme Court in the case of Cholan Roadways Ltd. vs. G. Thirugnanasambandam, (2005) 3 SCC 241, wherein at paragraph 34 of the judgment the Hon'ble Supreme Court observed that in the facts of the case, Industrial Tribunal as also the Learned Single Judge and the Division Bench of the High Court misdirected themselves in law in so far as they failed to pose unto themselves correct questions. It is now well settled that a quasi-judicial authority must pose unto themselves a correct question so as to arrive at a correct finding of fact. A wrong question posed leads to a wrong answer. 16. Mr. Sengupta finally submitted that the Learned Judge held in favour of the appellant company on all points but gave relief to the petitioners solely on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that case. 20. Learned Counsel referred to the Supreme Court Decision in the case of State of U.P. vs. Uptron Employees' Union CMD, (2006) 5 SCC 319, wherein the Apex Court referred to its decision in Kapila Hingorani's (supra), case and observed that in that case the Supreme Court did not lay down any principle of law of universal application and passed appropriate orders only in the compelling circumstances noticed by it. 21. Learned Addl. Solicitor General then submitted that a Government company has an independent identity and is separate from the Government. The Government cannot be made responsible to discharge the financial obligations of a Government company. In this connection he relied on a decision of the Hon'ble Supreme Court in the case of Steel Authority of India Ltd. vs. National Union Water Front Workers, AIR 2001 SC 3527, wherein at paragraph 37 of the judgment, the Hon'ble Supreme Court observed as follows:- 37. We wish to clear the air that the principle, while discharging functions and duties the Govt., companies/Corporations/Societies which are instrumentality or agencies of the Government must be subjected to the same limitations in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... control of the Central Government, the Central Government, and in all other cases, the State Government, provided that where any question arises as to whether any industrial establishment is under the control of the Central Government, that Government may, either on a reference made to it by the employer or the workman or a trade union or other representative body of the workman or on its own motion and after giving the parties an opportunity of being heard, decide the question and such decision shall be final and binding on the parties. Learned Counsel submitted that in the present case the appropriate Government is the Central Government since the company is under the control of the Central Government. Learned Counsel then referred to Sec. 2(f) of the 1946 Act which defines 'prescribed' as meaning prescribed by Rules made by the appropriate Government under the said Act. Hence, learned Counsel submitted, that it would be the Central Government Rules that would apply to the company. She then referred to Rule 1(2) of the Industrial Employment (Standing Orders) Industrial Rules, 1946 which provide that the said Rules extend to all union territories and shall also apply i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loyees of Central Public Sector Enterprises by memo dated 19 May, 1998. In 2001 the company entered into a bipartite settlement with the unions of the employees at its Rupnarainpur Unit reaffirming the retirement age at 60 years. The company acted in terms of such settlement and followed the retirement age of 60 years. After the company's case was registered with BIFR in 2002, the Central Government acted in terms of the settlement and released funds for payment of salary to the staff of the company up to the age of 60 years. Such fund was last released in October, 2005. 27. However, the next grant released under cover of letter dated 9 June, 2006 was for payment of salary and wages to the employees of the company who had not attained the age of 58 years as on 31 December, 2005 and those who attained the age of 58 years during August, 2005 to October, 2005. Such communication of the Central Government prompted the several units of the company to take up the matter with the Conciliation Officer, being the Labour Commissioner. After several meetings the Conciliation Officer submitted a failure report to the Central Government by letter dated 24 May, 2011 with regard to the rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not mention any retirement age. Hence, the retirement age is 60 years. Learned Counsel referred to a document at page 23A of the supplementary affidavit filed by the respondents which evidenced release of the provident fund dues of one of the employees. The said document shows the retirement age of the employee as 60 years. However, no salary was paid for the last two years of service and retiral benefit was paid only for the period up to 58 years. 31. Learned Counsel then submitted that the tripartite agreement of 1974 contained a clause regarding the retirement age being 60 years subject to approval of the Board of Directors. The Managing Director was one of the signatories on behalf of the company. The Board of Directors ratified the tripartite agreement in its 125th meeting held on 17 July, 1974. Further, copy of the bipartite agreement of 2001 was also duly sent to the Deputy Labour Commissioner as required under the law as would appear from a letter dated 10 October, 2001 written by the company to the Deputy Labour Commissioner, Government of West Bengal. 32. Learned Counsel then submitted that in the past, similarly situated employees had approached this court and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Electric Supply Company Ltd. Amitabh Textile vs. State of Uttar Pradesh, AIR 1966 SC 1471, in support of her submission that something not in the Schedule to the Standing Orders Act cannot be included in the company's Standing Orders and if so included the same will have no effect. The Hon'ble Apex Court observed that under Sec. 3(2) of the Act, the Employers have to frame draft Standing Orders and they must normally cover the items in the Schedule to the Act. If, however, it appears to the appropriate authority that having regard to the relevant facts and circumstances, it would not be unfair and unreasonable to make a provision for a particular item, it would be competent for them to do so; but the employer cannot insist upon adding a condition to the Standing Orders which relates to a matter which is not included in the Schedule. 35. In Air Gases Mazdoor Sangh vs. Indian Air Gases Ltd., 1977 LAB IC 575, a Division Bench of the Allahabad High Court following the decision in Rohtak and Hissar Districts Electric Supply Company Ltd. Amitabh Textile vs. State of Uttar Pradesh (supra), held that the certifying officer has no jurisdiction to certify Standing Orders in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reunder:- 12. The learned counsel for the appellants vehemently contended that the Division Bench of the High Court was wholly in error in allowing the appeal and in setting aside the order passed by the learned Single Judge. It was submitted that when in an identical case, a petition was allowed by a Single Judge and the said order was confirmed not only by the Division Bench of the High Court but also by this Court, the matter was finally concluded in favour of the appellants and the Division Bench ought not to have reversed the decision of the Single Judge. 19. But, once a similar case of Abdul Rashid Rather came up for consideration before a Single Judge and his writ petition was allowed, a direction was issued to the authorities to appoint him as PSI by granting consequential benefits, the learned Single Judge could not be said to have committed any error of law in following the said decision, in allowing the writ petition filed by the present appellants-writ petitioners and in issuing similar directions to the State Authorities. This was particularly true because the judgment and order of the learned Single Judge was confirmed by the Division Bench and even by this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on facts the Hon'ble Supreme Court held that the service conditions of the petitioner were to be protected and could not be changed to his detriment by virtue of the regulation of Orissa State Electricity Board. 46. Learned Counsel then referred to a decision of a Learned Single Judge in the case of Jenson Nicholson (I) Ltd. vs. Controlling Authority Under the Payment of Gratuity Act, 1972, 2008 (2) CHN 954. Learned Counsel relied on paragraph 23 of the judgment wherein the Learned Judge referred to a Full Bench decision of the Madras High Court to the effect that the provision of Sec. 22(1) of the Sick Industrial Companies Act has no application to the provident fund dues and the provisions of the EPF Act would not come within the purview thereof. The provident fund and other dues payable under the EPF Act are part of the legitimate statutory settlements of the workers. Proceedings for recovery of money to which employees are entitled by way of social security scheme cannot be stayed under Sec. 22(1) of the SICA. 47. To counter the argument of the appellants on alternative remedy being available to the writ petitioners, Learned Counsel relied on the decision in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tution filed by the employees are maintainable............ 49. Learned Counsel then relied on the case of Kapila Hingorani vs. State of Bihar (supra), which has been referred to while noting the submissions made on behalf of Union of India. 50. To counter the argument of the appellants that the writ petitioners in fact did not work or render any service as the production of the Rupnarainpur Unit of the company stopped in 2003 and there was no work to be done thereafter, Learned Counsel relied on a decision of the Apex Court in the case of J.N. Srivastava vs. Union of India, (1998) 9 SCC 559. Learned Counsel relied on the following observation of the Hon'ble Apex Court:- It was submitted by learned Senior Counsel for the respondent-authorities that no back salary should be allowed to the appellant as the appellant did not work and therefore, on the principle of no work, no pay , this amount should not be given to the appellant. This submission of learned Senior Counsel does not bear scrutiny as the appellant was always ready and willing to work but the respondents did not allow him to work after 31-1-1990. The respondents are directed to make available all the requis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1977 Standing Orders did not contain a clause relating to retirement of the employees and as such the 1964 Standing Orders would prevail. There was never any amendment to the 1964 Standing Orders following the procedure prescribed in law. To the extent there is inconsistency between agreements/settlements entered into by and between the Management and the workmen on the one hand and the Standing Orders on the other hand, the provisions of the Standing Orders would prevail. 55. On the other hand, the writ petitioners contend that the Industrial Employment (Standing Orders) Industrial Rules, 1946 which apply to the company, did not prescribe mentioning of retirement age at the time the 1964 and 1977 Standing Orders were framed. The requirement of having a retirement clause came in by way of amendment in 1983. Hence, the retirement clause mentioning age of superannuation as 58 years in the 1964 Standing Orders was superfluous and of no effect. The 1973 tripartite agreement and the subsequent 2001 bipartite agreement would be holding the field in so far as retirement age is concerned. Under both the agreements retirement age was stipulated as 60 years. Hence, according to the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve remedy. We are conscious that existence of an alternative remedy is not a complete bar to the maintainability of a writ petition. It is only a rule of self-imposed restriction that a court follows while exercising high prerogative writ jurisdiction under Art. 226 of the Constitution of India. In several cases, including the case of Whirlpool Corporation (supra), the Apex Court has observed that availability of an alternative remedy per se does not denude the writ court of jurisdiction. Thus, in cases where the order/action challenged is without jurisdiction or the order has been passed or action taken in breach of the principles of natural justice, the writ court may be justified in entertaining an application under Art. 226 of the Constitution in spite of an alternative remedy being available to the aggrieved party. However, that is not the case here. There is no reason why the writ petitioners should not approach the labour Court under Sec. 33C(2) of the ID Act. 58. Further, whether or not the writ petitioners, in fact, rendered service to the company beyond the age of 58 years is a question of fact that has to be established on the basis of proper evidence at a regular tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is true that ordinarily a Writ Court would not entertain a petition under Art. 226 of the Constitution to enforce a civil liability arising out of a contract to pay money due to the claimant and would relegate the claimant to a civil suit. However, it cannot be said that the Writ Court does not have jurisdiction to direct the State or an instrumentality of the State or an authority under Art. 12 of the Constitution to honour its financial obligation when such obligation is admitted or undisputed or beyond any doubt. In this connection reference may be had to the case of ABL International Ltd. vs. Export Credit Guarantee Corporation of India, (2004) 3 SCC 553. However, in view of the nature of the disputes involved in this case as indicated above, this court is of the view that the Writ Court is not the appropriate forum for adjudication of such disputes. 61. It is also pertinent to note that in the case of State of Assam vs. Barak Upatyaka D.U. Karmachari Sanstha (supra), the Apex Court held that if salaries of the employees are not paid, their remedy is to proceed in accordance with law by approaching the forum under the appropriate labour legislation. A writ petition is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory provision or of some authority binding on the Court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account, to be demonstrably wrong. If a decision has been given per incuriam, the Court can ignore it. In Government of A.P. vs. B. Satyanarayana Rao, (2000) 4 SCC 262, the Apex Court observed that the rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or a superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue. 65. One point that arose for consideration in the course of hearing is the effect of dismissal of the special leave petitions preferred by the company as well as the Union of India against the earlier Division Bench Order dated 13 September, 2011. Did the Division Bench order merge with the Supreme Court? By dismissing the special leave petitions, did the Hon'ble Supreme Court affirm the said Division Bench order? By reason of dismissal of the special leave petitions, does the earlier Division Bench order become final and binding? These questions need not detain u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of India vs. Jaipal Singh, (2004) 1 SCC 121, the Supreme Court reiterated that an order rejecting a special leave petition at the threshold without detailed reasons therefor does not constitute any declaration of law by the Apex Court or constitute a binding precedent. In Kunha Yammed vs. State of Kerala, (2000) 6 SCC 359, a three Judges Bench of the Supreme Court held that the dismissal of a special leave petition in limine by a non-speaking order does not justify any inference that by necessary implication the contentions raised in the special leave petition on the merits of the case have been rejected by the Supreme Court. Such dismissal of the special leave petition will not preclude the party from moving the High Court for seeking relief under Art. 226 of the Constitution or by moving a petition for review. Whatever be the phraseology employed in the order of dismissal, if it is a non-speaking order, i.e. it does not assign reasons for dismissing the special leave petition, it would neither attract the doctrine of merger so as to stand substituted in place of the order put in issue before it nor would it be a declaration of law by the Supreme Court under Art. 141 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law and the procedure contemplated. There will be no order as to costs. Our decision (In AAAT 1860 of 2015) 70. Since we have set aside the judgment and order impugned, this appeal becomes of academic interest. However, we wish to make same observations regarding the liability of the Union of India as regards the claim of the writ petitioners. 71. The company may be under the control of the Central Government. However, in law, it is a separate legal entity. The age old principle of law laid down in Saloman vs. Salomon, (1897) AC 22, still holds fort. A limited company has an independent personality in the eye of law and has an identity separate from its shareholders or Board of Directors. Even a wholly held subsidiary of a company has an independent entity separate from that of the holding company. The Central Government may be the only or single largest shareholder of a limited company, but still the company has a distinct entity and its rights and liabilities cannot be attributed to the Central Government. Government companies do not become agents of the Government so as to bind the Government for their acts, liabilities and obligations as held by the Hon'ble Apex Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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