Biren Chandra Baruah vs The State of Assam and 5 Ors.

Heard Mr. M. Saikia, learned counsel for the petitioner. Also heard Mr. P. Nayak, learned Additional Advocate General for the State respondent, and Mr. G. Bordoloi, learned Standing Counsel, Co-operation Department.

Challenge made in this writ petition is to the order dated 22.09.2016, passed by the Official Liquidator, Assam Co-operative Sugar Mills Limited, Baruabamun Gaon, Golaghat, whereby the claim of the petitioner for payment of differential amount on the basis of Assam Government R.O.P., 1998 was rejected. The petitioner prays for calculation of the amount claims to be due to him towards unpaid wages and VRS benefits on the basis of the wage/pay structure prevailing at the time of VRS and other allowances in accordance with the 5^th Pay Commission and also for extending the benefits granted by this Court vide judgment dated 03.01.2014 in WP(C) No. 4355/2010.

The petitioner was an employee of Assam Co-operative Sugar Mills Limited, Baruabamun Gaon, Golaghat (in short, “the Mill”). The Mill stopped production on 31.05.1996 and was thereafter taken over by the State Government through the Co-operation Department. As the dues of the employees of the Mill remained unpaid, the petitioner along with others approached this Court by filing WP(C) No. 1930/2008.

The Mill is a cooperative society registered under the Assam Co-operative Societies Act, 1949. It was leased to a private party, namely, Brahmaputra Sugar Mill Ltd., in the year 1992. After the Mill stopped production and the private party abandoned the Mill, the lease was cancelled in the year 1997 and a Board of Management was constituted. The Government of Assam thereafter introduced a revised Voluntary Retirement Scheme (VRS) for the employees of the State Level Public Enterprises on 15.02.2006, under which VRS benefits were extended to the employees of the Mill. The registration of the Mill was subsequently cancelled pursuant to a Cabinet decision on 22.03.2010.

By judgment and order dated 08.08.2008, passed in WP(C) No. 1930/2008, this Court directed the Principal Secretary, Co-operation Department, Government of Assam, to take a formal decision for closure of the Mill and thereafter to initiate the process for settlement of the dues of the employees by treating them in a manner similar to the employees of other closed PSUs and provided that if not fructified, writ petition would be revived. As the directions were not complied with, the said writ petition was subsequently revived.

After revival of the aforesaid writ petition, the State Government sanctioned certain amounts towards payment of VRS benefits to the employees of the Mill. However, the petitioner claimed that the wages and VRS benefits were required to be calculated on the basis of the prevailing wage structure and that the benefits granted to the employees of other closed PSUs pursuant to the judgment dated 03.01.2014, passed in WP(C) No. 4355/2010, were also liable to be extended to him. In this regard, the petitioner, along with others, approached this Court by filing WP(C) No. 1932/2014. The said writ petition was heard along with WP(C) No. 1930/2008 and by order dated 23.11.2015, the employees were permitted to submit their individual claims before the concerned authority for consideration and disposal.

Pursuant thereto, the petitioner submitted his individual claim before the respondent authority, seeking, inter alia, calculation of his dues and VRS benefits on the basis of the Assam Government R.O.P., 1998 and extension of the benefits granted by this Court in WP(C) No. 4355/2010. The Official Liquidator, Assam Co-operative Sugar Mills Limited, by the impugned order dated 22.09.2016, rejected the claim of the petitioner, observing that he had drawn his salary under the Central Sugar Wage Board-III and therefore, his VRS benefits were calculated on the basis of the said wage structure. Aggrieved thereby, the petitioner has preferred the present writ petition.

Mr. M. Saikia, learned counsel for the petitioner, submits that this Court, vide judgment and order dated 08.08.2008, passed in WP(C) No. 1930/2008, had directed that the dues of the employees of the Mill be settled by treating them in a manner similar to the employees of other closed PSUs. Pursuant to the revised VRS policy dated 15.02.2006, the VRS benefits payable to the employees of other PSUs were calculated on the basis of the revised pay structure, whereas in the case of the petitioner the benefits have been calculated on the basis of the Central Sugar Wage Board-III, which was applicable only for a limited period.

He submits that the benefits granted to the employees of other PSUs pursuant to the judgment dated 03.01.2014, passed in WP(C) No. 4355/2010, including House Rent Allowance and Medical Allowance, are also liable to be extended to the petitioner in view of the aforesaid direction of this Court to treat the employees of the Mill similarly to the employees of other closed PSUs. Thus, the VRS benefits of the petitioner are required to be recalculated on the basis of ROP, 1998, taking into account the admissible allowances including House Rent Allowance and Medical Allowance. He further submits that the alleged resolution of the employees' association opting for continuation of the Central Sugar Wage Board-III pay structure cannot deprive the petitioner of his accrued rights to salary and other benefits.

In support of his submission, Mr. Saikia, learned counsel for the petitioner, has relied on the following judgments:

Mr. Saikia, learned counsel for the petitioner, has also relied upon the judgment of the Hon'ble Supreme Court in Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly, reported in (1986) 3 SCC 156, and the judgment of this Court in Usha Rani Goswami v. State of Assam & Ors., reported in 2011 (2) GLT 51.

On the other hand, Mr. G. Bordoloi, learned Standing Counsel, Co-operation Department, submits that the petitioner and other employees of the Mill had been receiving their salary and other benefits under the Central Sugar Wage Board-III and the VRS benefits were accordingly calculated on the same basis pursuant to the revised VRS policy dated 15.02.2006. The petitioner had accepted the amount paid to him as full and final settlement and had also furnished an undertaking to that effect without any protest. He submits that the employees' association had also undertaken to accept the payment on the basis of the Central Sugar Wage Board-III and not to insist upon the subsequent Wage Board. The petitioner had been provided with a quarter and that neither House Rent Allowance nor Medical Allowance formed part of the salary paid to the employees of the Mill.

Learned Standing Counsel further submits that the judgment dated 03.01.2014, passed in WP(C) No. 4355/2010, does not confer any right upon the petitioner to claim benefits under the R.O.P. Rules, 1998, as the said benefits were granted to employees of STATEFED who had earlier drawn their salaries under the pay structure of the Government of Assam. The claim of the petitioner was duly examined pursuant to the order dated 23.11.2015, passed in WP(C) No. 1932/2014 and no further amount was found payable to him. He submits that the State Government, by Cabinet decision dated 31.10.2009, had extended the benefit of revision of pay under the R.O.P. Rules, 1998 only to four specified State Public Sector Undertakings, i.e. (i) Assam State Cooperative Marketing & Consumer Federation Ltd. (SCMCFED/STATEFED), (ii) Assam Government Construction Corporation Ltd. (AGCC), (iii) Assam Agro Industries Development Corporation (AAIDC) & (iv) Assam Conductors & Tubes Ltd. (ASCON), which did not include the Assam Co-operative Sugar Mills Limited. Therefore, he submits that the petitioner, having already received the amounts payable to him under the applicable VRS and having accepted the same as full and final settlement, is not entitled to seek recalculation of his VRS benefits on the basis of the R.O.P. Rules, 1998.

In support of his submission, Mr. Bordoloi, learned Standing Counsel has relied on the following judgments:

Due consideration has been extended to the submissions advanced by the learned counsel for the parties and also perused the materials available on record.

The issue involve in the present writ petition is essentially with regard to the claim of the petitioner for re-calculation of his VRS benefits on the basis of R.O.P., 1998, together with certain allowances, despite the fact that the VRS benefits have been extended to the employees of the Mill pursuant to the revised VRS policy dated 15.02.2006 by calculating the same on the basis of the Central Sugar Wage Board-III. The petitioner seeks to derive such entitlement mainly in view of the judgment and order dated 08.08.2008, passed in WP(C) No. 1930/2008, and the subsequent judgment dated 03.01.2014, passed in WP(C) No. 4355/2010.

Admittedly, this Court, while disposing of WP(C) No. 1930/2008 by judgment and order dated 08.08.2008, directed the respondents to take a formal decision with regard to closure of the Mill and thereafter to initiate the process for settlement of the dues of its employees by treating them in a manner similar to the employees of other closed PSUs. Subsequently, upon revival of the said writ petition and consideration of WP(C) No. 1932/2014 along with the same, this Court, by order dated 23.11.2015, permitted the employees having any grievance to submit their individual claims before the Official Liquidator and directed that such claims be verified and appropriate individual orders be passed thereon.

Pursuant to the aforesaid direction of this Court, the petitioner submitted his individual claim before the Official Liquidator. Accordingly, the claim of the petitioner was considered and by the impugned order dated 22.09.2016, the Official Liquidator rejected the claim for re-calculation of the VRS benefits on the basis of R.O.P., 1998, observing that since the petitioner had drawn his salary under the Central Sugar Wage Board-III, he is entitled to VRS benefits on the basis of the said wage structure. Therefore, the issue to be determined is as to whether the petitioner has any legal right to have the benefits already paid to him re-calculated on the basis of R.O.P., 1998.

Record reveals that the revised VRS policy dated 15.02.2006 was a general policy applicable to the State Level Public Enterprises (SLPE). Clause 1 thereof sets out the components of the VRS package, including ex-gratia, leave salary, CPF dues, gratuity, unpaid salary/wages and savings under the Group Insurance Scheme. Clause 2 further provides that, in all calculations of VRS benefits, the basic pay and rate of dearness allowance shall be taken as on the date of application by an employee opting for VRS and the date of closure of the SLPE, whichever is applicable, and no request for revision shall thereafter be entertained.

In the present case, the material placed before the Court does not disclose that the employees of the Assam Co-operative Sugar Mills Limited were ever brought under the Assam Service (ROP) Rules, 1998. On the contrary, it is the admitted position emerging from the pleadings and the records that the petitioner had been drawing his salary under the Central Sugar Wage Board-III. The impugned order records that the petitioner's VRS benefits were calculated on that basis and the calculation had been examined by the Chartered Accountant engaged by the Liquidator. The petitioner has not been able to place before this Court any order, notification or Cabinet decision specifically extending the benefit of ROP, 1998 to the employees of the Sugar Mill.

The reliance placed by the learned counsel for the petitioner on the judgment dated 03.01.2014, passed in WP(C) No. 4355/2010, also does not advance the case of the petitioner. The said judgment arose out of a claim made by the employees of STATFED for payment of Medical Allowance, House Rent Allowance and City Compensatory Allowance as components of their unpaid salary. In that case, the Court noticed that the employees concerned were governed by ROP, 1998 and the State Cabinet had subsequently accorded post facto approval for revision of the scale of pay under ROP, 1998 in respect of four specified State Public Sector Undertakings, namely, (i) Assam State Cooperative Marketing & Consumer Federation Ltd. (SCMCFED/STATFED), (ii) Assam Government Construction Corporation Ltd. (AGCC), (iii) Assam Agro Industries Development Corporation (AAIDC) & (iv) Assam Conductors & Tubes Ltd. (ASCON)

Thus, the ratio of the said judgment cannot be divorced from the factual and administrative background in which it was rendered. The fact that the employees of STATFED were held entitled to HRA, MA and CCA on the basis of ROP, 1998 cannot be said that the employees of the Sugar Mill were also governed by ROP, 1998. More importantly, the Cabinet decision referred to in the said judgment specifically identified the four PSUs to which the post facto revision under ROP, 1998 was extended. The Assam Co-operative Sugar Mills Limited does not find place in the said list.

The petitioner has also placed reliance upon the order dated 23.11.2015, passed in WP(C) No. 1930/2008 along with WP(C) No. 1932/2014. A perusal of the said order, however, shows that this Court, instead of determining the individual entitlement of each employee, directed the employees having any grievance to submit their individual claims before the Official Liquidator. The Official Liquidator was directed to verify the entitlement of each claimant and to release whatever amount was found due, with an individual order to be passed in respect of each claim. The impugned order has been passed pursuant to the aforesaid direction. The petitioner's claim was registered and examined with reference to the relevant records. The Liquidator noticed that the petitioner had already received a total sum of Rs. 15,08,905/- towards gratuity, leave salary, ex-gratia, arrear/unpaid salary and CPF. On verification, the Liquidator found no justification for the petitioner's further claim of Rs.24,86,298/- and accordingly rejected the claim, which in my view appears to be justified and valid.

Learned counsel for the petitioner has sought to contend that the employees' association could not have, by any alleged resolution or undertaking, deprived the petitioner of his accrued rights. However, the contention proceeds on the assumption that the petitioner had an accrued right to have his salary and VRS benefits calculated under ROP, 1998. As noticed hereinbefore, no such right has been established. The earlier judgment dated 08.08.2008 did not confer upon the employees of the Mill a substantive right to have their pay revised under ROP, 1998; it only directed that, for the purpose of settlement of their dues consequent upon closure of the Mill, they be treated in a manner similar to employees of other closed PSUs.

In this connection, the fact that the petitioner had been paid his salary under the Central Sugar Wage Board-III assumes significance. The petitioner has not demonstrated that, during the relevant period, the Mill had adopted ROP, 1998 or that the State Government had subsequently approved such adoption in respect of the Mill. The mere assertion that the Central Sugar Wage Board-III had ceased to operate or that no subsequent Wage Board was constituted cannot, in the absence of an appropriate government decision, result in automatic substitution of the pay structure of the Mill by ROP, 1998.

The claim for House Rent Allowance and Medical Allowance is also considered for rejection for the same reason. The judgment dated 03.01.2014 proceeded on the basis that HRA, MA and CCA formed part of the salary of the employees concerned under ROP, 1998. However, the petitioner has failed to established that these allowances formed part of the salary structure applicable to him. The fact that such allowances were directed to be paid to the employees of STATFED cannot, in the absence of any material showing that the petitioner was governed by the same pay structure, create an entitlement in his favour.

It is true that the direction issued by this Court in the earlier proceedings was to treat the employees of the Sugar Mill similarly to the employees of other closed PSUs. That direction was duly acted upon by the State Government by extending the VRS benefits to the employees of the Mill. The record placed before the Court in the proceedings leading to the order dated 23.11.2015 itself shows that substantial amounts were released by the State Government towards the VRS liabilities of the employees and that the claims were thereafter required to be individually verified and settled by the Official Liquidator. Thus, the earlier orders of this Court cannot be construed as directing a further revision of the pay structure of the employees in the absence of any decision of the competent authority to that effect.

Another circumstance which cannot be lost sight of is that the petitioner accepted the amount of Rs. 15,08,905/- towards his dues and, according to the respondents, furnished an undertaking accepting the same as full and final settlement. Even assuming that the said undertaking is not by itself conclusive of the petitioner's claim, the petitioner must first establish the substantive basis of his alleged entitlement to a higher amount. In the present case, such entitlement has not been established either from the revised VRS policy or from any subsequent government decision applicable to the employees of the Sugar Mill.

The contention that the petitioner should be permitted to claim ROP, 1998 because it would be more beneficial to him also cannot be accepted. The principle of beneficial treatment recognised in the judgment dated 08.08.2008 cannot be stretched to the extent of directing the State Government to apply a particular pay revision which was never made applicable to the employees of the Mill. The Court cannot substitute its own determination of the appropriate pay structure for that of the competent authority, particularly when the claim involves determination of financial liabilities arising out of the closure of a public undertaking.

This Court noticed that the impugned order may not be elaborate in its reasoning; but, the substance of the decision is clear. The Liquidator considered the petitioner's claim, referred to the pay structure under which he had actually drawn his salary, took note of the calculation already made and verified, and found no further amount payable to him. The petitioner has not been able to demonstrate that the conclusion reached by the Liquidator is contrary to any binding government policy or to any direction contained in the earlier orders passed by this Court.

The judgments relied upon by the learned counsel for the petitioner, therefore, do not assist the petitioner in the facts of the present case. The judgment dated 08.08.2008 directed similar treatment in the matter of settlement of the dues consequent upon closure of the Mill; the judgment dated 03.01.2014 dealt with employees of STATFED who were governed by ROP, 1998 and in whose case the State Cabinet had specifically accorded post facto approval; and the order dated 23.11.2015 merely provided a mechanism for examination and settlement of individual claims. None of these decisions confers upon the petitioner an automatic right to have his VRS benefits recalculated under ROP, 1998. The other authorities relied on by the parties are not discussed as the same are not relevant for the purpose of determination of the present issue.

In view of what has been discussed herein above, I am of the considered view that the petitioner has failed to establish any legal or enforceable right to recalculation of his VRS benefits on the basis of ROP, 1998 or to claim HRA and Medical Allowance on the strength of the judgment dated 03.01.2014, passed in WP(C) No. 4355/2010. Consequently, the impugned order dated 22.09.2016 does not warrant interference of this Court.

Accordingly, writ petition stands dismissed being devoid of merit. No order as to cost(s).