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Judgment
Devi Prasad Singh, J.—Heard Shri Alok Mathur learned Counsel for the petitioner and Shri Sharad Kumar Srivastava learned Counsel for the respondent No. 3.
The brief facts of the case are that respondent No. 3 was appointed and joined as Watchmen in Central Storage Depot, Government of India on 12.12.1960 at Kanpur. Later on he was promoted on the post of dusting operator in the year 1972. On coming in to force of Food Corporation of India Act, the services of respondent No. 3 was transferred to Food Corporation of India in accordance to Section 21 of the Food Corporation of India Act. Respondent No. 3 was required to give option as to whether pension and provident fund as applicable in Central Government employees shall apply in his case or he shall adopt the service benefits of Food Corporation of India. According to petitioner, respondent No. 3 had not given any option. However, learned Counsel for the respondent No. 3 submitted that in pursuance to circular dated 11.1.1977, respondent No. 3 had given an option on 29.6.1977, which was duly forwarded by Assistant Manager, (D) Food Corporation of India, Faizabad to its office at Lucknow. It appears that in spite of sending of option by respondent No. 3, when no action was taken by the petitioner and decision was not communicated, another option was given by respondent No. 3 on 21.9.1979, which was duly forwarded by Additional District Manager Shri P. K. Keshwani to Lucknow Office of petitioner. During the pendency of present controversy, respondent No. 3 was retired from service on 31.1.1995.
In the year 1995 after attaining the age of 58 years when respondent No. 3 informed relating to age of superannuation then he had again claimed for continuance in service up to age of 60 years keeping in view the option given 1997 followed by in 1979. However, authorities not heeded to his argument and repeated representation submitted by the respondent No. 3 was not adjudicated keeping in view the option sent by him. On account of dispute relating to age of superannuation keeping in view the option given by respondent No. 3 in the manner referred hereinabove the Central Government had made a reference under Section 10 of the Industrial Dispute Act for adjudication to the Presiding Officer, Labour Court, Kanpur. The Presiding Officer, Labour Court after providing due opportunity of hearing to the parties had recorded a finding that petitioner has given option in the years 1977 and 1979 in the manner discussed hereinabove. Accordingly, he was entitled to attain the age of superannuation at the age of 60 years.
Relevant portion from the impugned award rendered by Labour Court is reproduced as under:
"The case of the workman is that again in the year 1979 he was asked to submit option form in the prescribed proforma and he along with other employees who were posted at Faizabad submitted their option and a photocopy of option form submitted by him on 21.9.1979 is Annexure 3 to the statement of claim. That document has been filed separately which is Ext. W2 on the record. This option form also appears to be counter signed by Sri P. K. Keshwani, Assistant Manager (QC), FSD Faizabad. This again appears to have been counter signed by District Manager, FCI, Faizabad. This option form also supports the case of the concerned workman that he submitted option again in the year 1979 to the Management of FCI but the Management of FCI did not preserve the same and deprived the concerned workman from the terminal benefits which he was entitled to get on the basis of his option. It appears that when the concerned workman came to know from the letter of Deputy Manager for Zonal Manager, New Delhi dated 24.1.1994 he made representation to the authorities of the FCI that he had given option in the prescribed form within the prescribed time twice and he is wrongly shown not to have give option for retiral benefits applicable to the Central Government and (sic) even the Assistant Manager (A), Faizabad wrote to the Regional Manager that Sri Sayed Khan had given option as required under the notification and he had submitted a photocopy of his option which was being forwarded for necessary action and he was entitled to retire at the age of 60 years according to his option."
Thereafter, Labour Court had again proceeded to held that an employee can not deprive from the benefit which was available in accordance to statutory provisions and for the negligence on the part of officers of the petitioner workmen should not be suffered, to quote:
"In these circumstances the concerned employee cannot be deprived of the benefits, which he had opted within the prescribed time in the prescribed option form. For the negligence on the part of the officers and employees of the FCI within the prescribed time."
Thus the finding of fact recorded by the Labour Court as discussed hereinabove proved beyond doubt that petitioner had given option in required form and had also completed necessary formalities for extension of two years of service period in pursuance to circular dated 11.1.1977.
A perusal of the award rendered by Labour Court further reflects that alongwith respondent No. 3 other employees of the petitioner''s department had submitted their options on 21.9.1979 and they were given benefit of the circular dated 11.1.1977 relating to age of superannuation.
Learned Counsel for the respondent No. 3 has vehemently argued that option of all the employees who had submitted option alongwith respondent No. 3 were accepted by the petitioner and have been given benefit. This fact has also not been denied by the petitioner''s Counsel.
In view of above, it has been proved beyond doubt that respondent No. 3 was not at fault and he had completed necessary formalities and submitted option in required format. It has also been established that all the similarly situated persons have been given benefit who had submitted option along with respondent No. 3. Thus the learned Tribunal had rightly recorded a finding that respondent No. 3 had suffered for no fault on his part.
Learned Counsel for the petitioner also could not point out any illegality or irregularity committed by Labour Court in recording the aforesaid finding of fact. Accordingly the finding of fact recorded by the learned Labour .Court does not seem to suffer from any impropriety or illegality and it appears that respondent No. 3 was entitled for extension of two years of service in pursuance to circular dated 11.1.1977.
It is settled law that equals can not be treated unequal. In case, other similarly situated employees who had given option alongwith respondent No. 3 were granted benefit of circular dated 11.1.1977 petitioner was not justified to deny the same benefit to respondent No. 3. It was expected from the petitioner to correct its error when the matter was brought into its noticed in pursuance to representations submitted by respondent No. 3. But it is unfortunate that petitioner had treated the workmen i.e. respondent No. 3 in a high handed manner and failed to provide benefit, which was already given to similarly situated persons.
Learned Counsel for the petitioner had proceeded to argue that the reference made by the Central Government was not made in reasonable period required under Section 10 of Industrial Dispute Act. Petitioner''s Counsel relied upon a Apex Court judgements reported in (2006) 5 SCC 433, U.P. State Road Transport Corpn. v. Babu Ram and (2006) 5 SCC 481, Asstt. Engineer, CAD, Kota v. Dhan Kunwar. Hon''ble Supreme Court in these two case held that no formula of universal application can be laid down for determination of period to make a reference under Section 10 of the Industrial Dispute Act. It shall depend upon the facts and circumstances of each case. However, burden shall be on the workmen to establish that he had taken necessary steps on his part for making of reference within reasonable period.
On the other hand, Shri Sharad Kumar Srivastava, learned Counsel for the respondent No. 3 proceeded to submit that when the fact relating to present controversy came to knowledge of respondent No. 3 a representation dated 14.2.1994 was submitted to competent authority who had forwarded the same to the petitioner. When no action was taken, another representation dated 17.1.1995 was submitted by respondent No. 3 and same was forwarded with due recommendation to petitioner for appropriate action. Respondents Counsel further proceeded to submit that attention of petitioners office was drawn by the respondent No. 3 by submitting aforesaid two representations and also by other representations and oral persuasion to taker appropriate action for disposal of option submitted by the respondent No. 3 in the years 1977 and 1979 but nothing was done.
It has been submitted by the private respondent''s Counsel that since he had persuaded the matter with the competent authority of petitioner before the retirement in the year 1995 and continue to pursue the same even after retirement he can not be blamed for any inaction.
I have considered the arguments advanced by the learned Counsel for the parties relating to the delay in seeking reference. From the Tribunal''s judgement, it is evident that respondent No. 3 had proceeded to draw the attention of petitioner to resolve the controversy even almost one year before the retirement. The representations of the respondent No. 3 noticed by the Tribunal indicates that the respondent No. 3 had approached the authorities within reasonable period to ventilate his grievance. For any delay on the part of Central Government in making reference under Section 10 of the Industrial Dispute Act shall not create a ground to deny the benefits of option given in the year 1977 and 1979 for extension of service period of two years. In the case of U.P. State Road Transport Corpn. (supra), the Apex Court had categorically held that burden shall lie on the workmen to show that he or she had raised dispute within the reasonable time.
In the present case, at the face of record, it appears that respondent No. 3 i.e. workmen had raised his grievance within reasonable time seeking benefit of circular dated 11.1.1977. Relevant portion from the judgement of U.P. State Transport Corpn. (supra) is reproduced as under:
"It is to be noted that the High Court has very cryptically disposed of the writ petition. The workman has not placed any material to show that he had raised dispute within a reasonable time, and/or that he was not responsible for delayed decision, if any, in the conciliation proceedings. It was for him to show that the dispute was raised within a reasonable time and that he was not responsible for any delay."
In view of above, keeping in view the facts and circumstances discussed hereinabove, it appears that petitioner had raised his grievance within reasonable period and delay was caused because of red tapism on the part of Government of India or the petitioner. Reference made by the Government of India under Section 10 of the Industrial Dispute Act does not seem to be bad in law because of no fault on the part of respondent No. 3 i.e. workmen.
In case respondent No. 3 has not been paid any post retiral dues then petitioner shall pay the same in accordance to law expeditiously and preferably within a period of four months.
Subject to above, writ petition is dismissed. Petition dismissed.