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Judgment
G.S. Singhvi, J.—This petition has been filed by the legal representatives of late Shri Suridnerjit Singh Sayan for issue of a direction to the respondent to pay them the benefit of contributory provident fund, increments in the pay scale, benefit of group insurance and gratuity and also interest on the amount of arrears of pay which was allegedly withheld by the respondent-company for a period of almost four years.
Facts of the case are that the late Shri Suridner Jit Singh Sayan joined service of the respondent-company as Junior Inspector on 4.8.1976. He was promoted as Inspector Grade-I with effect from 4.8.1979. Service of Shri Surinderjit Singh Sayan was terminated with effect from 5.1.1983. This action of the respondent gave rise to an industrial dispute which was referred to the Industrial Tribunal-cum-labour Court, Chandigarh, for adjudication. Vide its award dated 4.11.1987, the Industrial Tribunal held that the termination of service of Shri Sayam was in violation of Section 25-F of the Industrial Disputes Act, 1947. It declared the termination of Service of Shri Sayan as void and ordered the reinstatment with continuity of service and back wages. Against the award of the Industrial Tribunal-cum-Labour Court, Chandigarh, the respondent-Company filed a writ petition which was dismissed by a Division Bench on 18.2.1988. Petition for leave to appeal filed by the Company before the Supreme Court was also dismissed summarily. Thereafter, the respondent-Company gave a cheque dated 29.5.1991 to petitioner No. 1 for a sum of Rs. 83738.29 towards the arrears of salary, gratuity and provident fund payable to late Shri Sayan. This, according to the respondent-Company, amounts to full and final payment to the dues payable to late Shri Sayan but according to the petitioners that amount does not represent the dues payable to them as legal representatives of late Shri Sayan.
The petitioners have claimed that with the setting aside of the termination of service of late Shri Sayan by the Labour Court, he became entitled to be paid all consequential benefits which include annual grade increments, provident fund contribution of the employer and on his death, the petitioners acquired a right to get the aforesaid amounts in addition to the amount of gratuity and group Insurance. Petitioners have contended that with-holding of the dues payable to the petitioners amounts to depriving them of their property right without any authority of law and by doing so, the respondent-Company has violated their constitutional right guaranteed to them under Article 300-A of the Constitution.
Writ petition has been opposed by the respondents on the ground that Shri Sayan was not entitled to grant of increments in terms of para 13 of the General Insurance (Ratonalisation of Pay Scales and other conditions of service of development staff) Scheme, 1976, because he had not fulfilled the conditions specified in that paragraph of the Scheme. It has also been pleaded by the respondent that late Shri Sayan was given benefit of pay in the revised pay scale and that he was not entitled to any other monetary benefit except the one paid to petitioner No. 1 vide cheque dated 29.5.1991. Respondent has disputed the claim of the petitioners regarding provident fund and group insurance by contending that no premium was paid from the salary of late Shri Sayan towards group insurance and amount of provident fund was not deducted form his salary. Respondent has also pleaded that for claiming monetary benefits, the petitioners can file a civil suit and there is no ground for exercise of extraordinary jurisdiction by this Court under Article 226 of the Constitution.
A replication has been filed by the petitioners reiterating the claim made by them in the writ petition.
Learned counsel for the petitioners argued that denial of monetary benefits payable to late Shri Sayan is without any reason or rhyme and, therefore, contrary to Articles 14 and 16 of the Constitution of India. He argued that the respondent-company did not pay amount of back wages to late Shri Sayan during his life time and after his death also there was a delay of over two years in the making of payment and for this delay, the petitioners are entitled to be compensated by payment of interest at the rate of 18% per annum. Learned counsel also argued that the award of reinstatement with back wages must be construed as an award for grant of all consequential benefits and it was, therefore, obligatory for the respondent-company to give benefit of annual increments to late Shri Sayan. He submitted that if Shri Sayan could not achieve the cost ratio due to his being out of employment and he could not contribute premium towards insurance, the entire fault was of the respondentcompany, who had removed him from service on the basis of a void order. Learned counsel also argued that amount of gratuity paid to the petitioners is not commensurate with the service rendered by late Shri Sayan and, therefore, a direction should be issued by the Court for payment of all dues with interest. Shri Pathela, appearing for the respondent-company, could not offer any explanation for delay of about 3 years 6 months in the payment of arrears of salary due to late Shri Sayan. He, however, argued that increments are not admissible to the development staff of the Company as a mater of course and unless an employee -fulfils the conditions enumerated in para 13 of the Scheme, he has no right to claim annual increment. Shri Pathela argued that there exist no rule or a provision in the contract of service which entitled Shri Sayan to claim increments only on the ground of having served the company for a particular length of time. He further argued that the group insurance benefit could not be given to the petitioners because no contribution was made by Shri Sayan towards the group insurance. Shri Pathela also submitted that amount of provident fund by way of contribution of the employee was not deducted because he was not in service and no corresponding contribution could have been made by the respondent-company during that period and for this reason, the petitioners cannot claim award of employer''s contribution towards provident fund.
After having given thoughtful consideration to the rival contentions, I find sufficient justification for grant of interest to the petitioners on the amount of arrears of salary payable to late Shri Sayan. It is an admitted position that Industrial Tribunal-cum-Labour Court had passed award on 4.11.1987 directing reinstatement of Shri Suridnerjit Singh Sayan Along with the benefits of back wages. It is not in dispute that cheque towards arrears of salary etc. was handed over to petitioner No. 1 as late as on 29.5.1991. For the entire period between 4.11.1987 to 29.5.1991, the respondent-company had withheld the aforesaid amount payable to late Shri Sayan and after his death to his legal heirs. This withholding of the amount has indirectly benefited the respondent-company and the petitioners have suffered. By withholding the amount payable to the petitioners, the respondent-company will be deemed to have deprived the petitioners of their property right without any authority of law. Therefore, the respondent-company is bound to pay interest, which in the facts and circumstances of this case is assessed at the rate of 15% per annum.
Plea raised on behalf of the petitioners regarding the employer''s contribution towards the provident fund also merits acceptance. Once the Industrial Tribunal-cum-Labour Court held that the termination of service of Shri Surinderjit Singh Sayan was contrary to the mandatory requirements of law, it will be deemed that service of Shri Surinderjit Singh Sayan was never terminated. The benefit of continuity of service would carry with it all other consequential benefits admissible to Shri Surinderjit Singh Sayan under the provisions of rules or order regulating the conditions of service. If Shri Surinder Jit Singh Sayan had not been removed from service, he would have contributed to the provident fund and in that event the employer was obliged to make its own contribution but on account of arbitrary removal from service Shri Surinder Singh Sayan was denied opportunity of making contribution to the provident fund. However, once he is treated to be in continuous service, the employer''s duty to pay its contribution towards provident fund will be deemed to have revived. It would have been perfectly legitimate for the respondent-Company to make the deduction of the provident fund amount from the arrears of salary payable to Shri Surinder Singh Sayan and then to pay the amount to the petitioner by adding his own contribution. However, mere failure of the respondent-Company to deduct the share of provident fund from the salary payable to Shri Sayan cannot absolve it from the responsibility to make its own contribution towards provident fund. In the peculiar facts of this case. It is reasonable to direct the respondent-Company to make payment of amount of provident fund (employer''s contribution).
However, so far as the claim of the petitioners for addition of two increments in the pay of Shri Surinderjit Singh Sayan is concerned, I find substance in the contention of Shri Pathela that increments could not have been claimed by Shri Sayan as a matter of course and, therefore, his heirs are also not entitled to get benefit of increments. It is not a case where increment is admissible to an employee as a matter of course. In fact, provisions contained in paragraph 13 of the Scheme clearly postulate increase of business as a condition precedent to the grant of increment and although it is true that late Shri Surinderjit Singh Sayan had not voluntarily absented from duty, it is equally true that he did not transact any business between 5.1.1983 and the date of his death in the year 1988. During this period, Shri Sayan could not possible improve upon his performance. Therefore, he could not have made a claim that benefit of annual increment should be given to him even though he had not shown improvement in his performance. Consequently, this part of the claim made by the petitioners deserves to be rejected.
Though the petitioners have made a claim for award of higher amount of gratuity, a careful reading of the petition and the replication shows that the petitioners have not shown as to what amount was due to them by way of gratuity and how the amount paid by the employer is not the total amount of gratuity payable to them. In the absence of any material particulars having been placed on record, no direction can be given by the Court for payment of higher amount of gratuity.
In the result, the writ petition is partly allowed. The respondent is directed to pay interest at the rate of 15% per annum to the petitioners on the amount of arrears of salary payable to late Shri Surinderjit Singh Sayan and which were paid to petitioner No. 1 vide cheque dated 29.5.1991. The amount of interest shall be paid for the period between 4.11.1987 and 29.5.1991. This amount shall be paid to the petitioners within a period of two months. The respondent is also directed to make payment of employer''s contribution towards provident fund payable to Shri Surinderjit Singh Sayan. This amount shall also be paid within a period of two months, failing which the petitioner shall get interest on the amount of arrears at the rate of 15% per annum from the date of this order. Claim of the petitioners for grant of benefit of increments, group insurance and enhanced gratuity is rejected.
Parties are left to bear their own costs.