Arabinda Ghosh & Ors vs Jadavpur University & Ors

Protik Prakash Banrjee, J

The order dated July 31, 2019 is formally recalled. I had posted the matter as to be mentioned after it was mentioned yesterday before rising of the Court on Behalf of Mr. Bhattacharyya appearing for the respondent Nos. 1 to 4 who had been unable to address me on the merits of the matter. Today after considering his cause of absence during the first part of hearing yesterday to be sufficient, I have recalled the order dated July 31, 2019 and permitted him to address me on the merits of the matter.

I have not allowed him to file affidavit in opposition since it was affirmed beyond time.

The short point raised by Mr. Bhattacharyya is that the right claimed by the petitioners is under a subordinate legislature being the first statute of the Jadavpur University made by the executive council under its power granted by the Jadavpur University Act 1981; However, the scheme under which the age of retirement has been fixed at 60 years after increasing it from 58 to 60 years was made under the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985 more particularly under Section 18(8) thereto. Section 18 sub-section (8) provides as follows:

"On and from the date of the coming into operation of the sanctioned scheme or any provision thereof, the scheme or such provision shall be binding on the sick industrial company and the transferee company, or as the case may be, the other company and also on the shareholders, creditors and guarantors and employees of the said companies."

He submits, therefore, that reliance upon the provisions of Section 128 (A) of the first statute and the proviso thereto by the petitioners must give away and be overridden by the Scheme having statutory binding effect on even deemed employees of the University. For that reasons Mr. Bhattacharyya has submitted that the decision of the learned Registrar of the University, that the provisions of Section 128A of the first statute are not applicable, cannot be taken exception to and must be sustained.

Mr. Adhikary, learned counsel for the petitioners submits that this is a case where for the welfare of the employees the Scheme had clause 6 which gave an umbrella protection to the employees of National Instruments Limited in terms of clause 6 of the Scheme which is part of page 95 of the petition and is set out hereinbelow:

"6. ABSORPTION OF EMPLOYEES OF THE COMPANY M/S NIL IN JU J.U. would absorb sixty eight (68) employees of the Company M/s NIL who are presently on the pay-roll of the Company, in terms of the affidavit submitted to the BIFR (Annexure-IV). The Department of Heavy Industries, Government of India would take care of the employees-related dues, till the date of transfer of assets and liabilities to J.U. In case any additional liability arises towards payment of outstanding dues of the employees of M/s NIL because of direction issued by the Hon'ble Calcutta High Court in r/o the suit(s) pending before them, the GOI would provide additional budgetary support to meet such liabilities. Both, the Company and JU reported to have reached consensus in the joint meeting held on 14.7.06 that the existing employees of M/s NIL would be governed by the following decisions emerged in the said Joint meeting:

a. All existing employees of NIL, on the date of transfer, will be absorbed in JU services.

b. Such employees will enjoy the rights and privileges of JU employees and their services will be governed by service rules as applicable to JU employees.

c. The service rendered by such employees to NIL will be counted as qualifying service towards future benefits.

d. JU/NIL authorities will finalise the modalities of fixation of pay & allowances of such employees."

He asked me to read this in conjunction with the provisions of approved Scheme at page 63 of the writ petition being clause 3 E (iii) which is set out hereunder:

"In pursuance to the discussion/decision taken in the BIFR's hearing held on 17.07.2007, the JU would fix the basic pay of all the employees of M/s NIL and provide other benefits in the following manner:

a) For the employees under CDA scheme, the basic pay under revised scale of fifth pay commission, calculated notionally, as on the date of transfer i.e. w.e.f. 1.4.07 shall be allowed tothem in the respective scales of pay.

b) For the employees under IDA scheme, the basic pay under revised scale of 5th pay commission, that would have been earned by them since joining, calculated notionally on the date of transfer, shall be allowed to them in the respective scales of pay.

c) The retirement age of all such employees would be enhanced from 58 to 60 years.

d) The existing allowances and other benefits applicable to JU employees shall also be available to them.

e) As regards terminal benefits of all such employees, the capitalized value of pension and gratuity etc. for earlier service period i.e. the period of service rendered in NIL (for counting of past service) need to be provided to JU by GOI, as already agreed earlier."

Mr. Adhikary asked me to consider whether it is reasonable for a welfare scheme for employees to provide that the terms and conditions, rights and privileges of employees of erstwhile National Instruments Limited while becoming the same as that of Jadavpur University and being governed by the service Rules as applicable to Jadavpur University employees, can at the same time contain the provisions which would negate this benefit even while counting past service of the said employees of National Instruments Limited as qualifying service to future benefits. He submits that in fact career advancement scheme benefit had been extended to his clients on the basis of the said clause 6 of the Scheme. He also submits that the executive council of the University at page 114 treated as if the age of retirement of the erstwhile NIL employees to be 62 years. He submits that at best a contradiction can be argued to exist between the approved Scheme under the primary legislation and the conditions of service stipulation to exist in terms of subordinate legislation but in such case the terms and conditions of service cannot be altered to the prejudice of the workmen and employees.

Therefore, the issues to be decided are whether the rights claimed by the petitioners under a subordinate legislation can override the Scheme made under a primary legislation and if there is a contradiction in the provisions of the Scheme which has been approved can the same be harmonized?

At the outset I record that Mr. Adhikary has fairly submitted that he does not know whether any application was made for clarification of the so called contradictions before the learned appellate authority for Industrial and Financial Reconstruction by his clients. That means I have to proceed as if the employees accepted the Scheme as approved as it was, particularly when they were represented before the Board of Industrial and Financial Reconstruction and thus presumably the appellate authority. It is not in dispute that the Sick Industrial Companies (Special Provisions) Act, 1985 was enacted by the Union Legislation under the field of legislation mentioned in Entry 52, List 1 of the 7th Schedule of the Constitution of India for the purpose mentioned in the preamble to the said Act of 1985. It is also not in dispute that Section 18(8) of the said Act of 1985 makes the provisions of the Scheme binding upon inter alia, both the Jadavpur University as also the employees of it. Therefore, the Scheme must bynecessity be given an overriding effect and precedence on the subordinate legislation of the Jadavpur University which is the general service rules and not speaking service rules as envisaged in the Scheme. While the Scheme does accept the applicability of the general service rules it has made special terms and conditions of service by way of the provisions mentioned in Clause 3 E (iii). Therefore, one can harmonise the apparent contradictions between Clauses 6 with the general rules of service allow retirement under the proviso to Section 128A of the first statute,when an employee retires on attaining the age of 62 years with the provisions that the age of retirement of the employees of the National Instruments Limited is increased from 58 to 60 years. A simple way of understanding this would be that had there been no take over, the employees of the National Instruments Limited would have retired on reaching the age of superannuation of 58 years. The only reason why the question arose to the increase of the age of retirement was because of the Scheme. The said Scheme increased the age of retirement to 60 years from 58 years. This is a special provision. Had this not been so, then the employees of National Instruments Limited would have retired at the age of 58 years regardless of the taking over of its assets and business by the respondent No. 1. The respondent No. 1 has enabling power under its parent statute being a State Legislation to take over assets of other entities. When it takes over the business of other entities the terms and conditions of the employees of the said entity depend upon not its own service rules but by the instrument by which the business and assets are taken over. Such instrument may make general provisions that the service rules of the respondent No. 1 shall apply to the employees but make a special stipulation as to the age of retirement and if the said provision in the Scheme that is to say the instrument is not challenged before the competent Forum then the special provision shall prevail over the general rule.

Accordingly I hold that the provisions of Section 128A of the first statute more particularly its proviso relating to the age of retirement of non-teaching staff who were appointed before July 1979 shall not apply to the present case since the writ petitioners did not challenge the provisions of Clause 3 E (iii) of the Scheme contemporaneously before the AIIFR or at any time thereafter before any competent Forum including this Forum. Once it allowed the said provisions in the Scheme to pass unchallenged, the decision of the learned Registrar which is the consequence of such acceptance cannot be challenged by the writ petitioners and, therefore, with reluctance and regret I hold that order of the learned Registrar to be plausible one and no judicial review is warranted in the case.

Accordingly, the writ petition is dismissed.

There shall be no order as to costs.

Photostat certified copy of the order, if applied for, be given to the parties on compliance of requisite formalities.