Abdul Rashid vs Calcutta Dock Labour Board and Others

Hon''ble Mr Justice Jayanta Kumar Biswas

The petitioner in this WP under art. 226 dated September 20, 2011 is seeking a mandamus commanding the respondents to pay him the benefits mentioned in para. 8 of the WP with interest and costs. The relevant part of para.8 of the WP is quoted below: -

The petitioner states that the petitioner being a retired employee of Calcutta Dock Labour Board is legally entitled to get money on account of less payment of pension, commuted value of pension, arrear gratuity amount, leave encashment money for 12 days, arrear salary in view of settlement dated 19.01.2010 on and from 01.01.2007 to 30.11.2009, Medical allowances @ Rs. 150/- per month from December 2009 to September 2010 onwards, washing allowance and TR allowances, House rent allowances since 01.01.2007 to 31.11.2009 as well as arrear pension in view of settlement dated 19.01.2010. Your petitioner further states that after settlement dated 19.01.2010, pension amount of your petitioner must be fixed at the revised rate but the respondents did not take step to make aforesaid payment to the petitioner. On the other hand the respondents paying entire benefit of settlement dated 19.01.2010 to the present employee of the Board................................

The respondents have dealt with the case stated in para. 8 of the WP in para.7 of their affidavit-in-opposition dated December 1, 2011, which is quoted below: -

Save and except what are matters of record all statements and/or allegations contained in paragraphs No. 6 to 8 of the writ petition, are denied and disputed. In this connection it is repeated and reiterated the statements made in paragraph No. 2 hereinabove to avoid repetition in the matter.

Under the above compelling circumstances as stated in the above mentioned paragraph No. 5, the Board is not in a position to release the dues of the petitioner including all retires of the Board similarly situated without having any financial assistance from the Govt. of India, as proposed, which is under consideration of the appropriate authority of the Central Government.

It is, therefore, evident that the respondents have not disputed the petitioner''s claims; nor have they disputed the petitioner''s case that they are paying their existing employees giving full benefits of the settlement dated January 19, 2010. The petitioner retired from service on December 1, 2009 and he was paid the benefits according to the wage settlement that was valid till December 31, 2006. The case stated in para.3 of the WP has not either been disputed by the respondents who have said that "due to acute financial crisis, the Board is not in a position to release the payment......."

Relying on a DPE OM No. 2(7)/2005 DPE - (WC) GL -III dated February 26, 2008 and an interim order dated April 4, 2012 passed by a Division Bench of this Court in an MAT No. 157 of 2012, Mr Pal appearing for the respondents has argued that the petitioner is not entitled to a mandamus commanding the respondents to pay the benefits according to the wage settlement dated January 19, 2010, because benefits thereunder were to be given only if sufficient fund was available for the purpose.

The DPE OM dated February 26, 2008 was issued in connection with merger of 50% dearness allowance with basic pay of employees of Central Public Sector Enterprises (CPSEs) following the 1997 Industrial Dearness Allowances (IDA) pattern scales of pay. It was issued in the context of the recommendations of the Second Pay Revision Committee.

I am unable to see how relying on the OM the respondents can contend that the petitioner was to be given retirement benefits according to the wage settlement dated January 19, 2010 only if Calcutta Dock Labour Board, the petitioner''s former employer, had the capacity to pay. And as to the interim order of the Division Bench, I am unable to accept that treating it as a precedent this Court should refuse to direct the respondents suffering from acute financial crisis to pay the petitioner retirement benefits according to the wage settlement dated January 19, 2010.

Shortly after the petitioner retired the wage settlement was reached making it applicable as from January 1, 2007. The respondents have not disputed that the benefits of the wage settlement were given to all the employees still in service of Calcutta Dock Labour Board. Citing financial crisis the respondents refused to give the benefits of the wage settlement to the petitioner who needed the benefits no less than the employees still in service. This is an evident unfair treatment. For these reasons, I allow the WP and order as follows. The respondents shall pay the petitioner retirement and other benefits according to the wage settlement dated January 19, 2010 with 8% p.a. interest from January 19, 2010 and Rs. 5,000 costs. Compliance within six weeks from the date this order is served. Certified xerox.