Shilpa S. Chandankar v. N.T.C. Ltd.

11. There are 3 issues which need to be adjudicated in these two Petitions, as under:- (a) Whether SO 11A is discriminatory against the lady employees working in the Respondent NTC Ltd. ? (b) Whether the Petitioners were healthy enough to be continued beyond 60 years up to the age of 63 ?

(c) Whether the Petitioners continued to be a different category of employees, i.e. Sales Girls / Sales women and were not in the category of Clerks ?

12. On the first issue, without any further debate, we find that the said clause is Gender discriminatory against the lady employees. If male employees could be continued till the age of 63, we do not find any logic or reason to exclude the lady employees and prescribe a retirement age for Women at 60, as against the retirement age of 63 for male employees. This would surely amount to Gender discrimination, bias and inequality.

13. Our view is fortified by a Judicial pronouncement of this Court dated 19th August, 2019 delivered in Writ Petition No. 2689 of 2018 (Anupama R. Dhukande Vs. M/s. Podar Mills & Ors.). This very Standing Order 11A read along with Standing Order 2(a) applicable for Operatives, was considered by this Court and it was concluded in paragraph Nos. 8 to 10 as under:- “8. Having heard the learned Counsel for the parties and having perused the documents on record, the short controversy that calls for consideration is whether the concerned Standing Orders permitting the employer to refrain a male employee beyond the age of 60 years, while not recognising any such power in case of a female employee is legal or not? In view of the affidavit in reply filed by NTC in which, as noted earlier, no material or any supporting contentions or documents are produced to draw such distinction, it is not necessary for us to dilate on this issue at length. Suffice it to record that the policy of the NTC as contained in the said Standing Orders of considering extension of tenure of male employee beyond the age of 60 years (upto a maximum of 63 years), while not doing so in the case of female employee, cannot meet the test of equality and lack of gender bias. Even the report of the Commissioner does not support any such distinction. Article 14 of the Constitution of India guarantees equal opportunity in public employment. Article 15 frowns upon discrimination inter alia on the ground of gender. NTC is concededly the State within the meaning of Article 12 of the Constitution and is therefore required to formulate its policies in tune with the said constitutional provisions. Providing for retention only of male employees and keeping the female employees out of the purview of this facility is wholly arbitrary and discriminatory. The relevant Standing Orders insofar as they apply only to male employees are violative of Articles 14 and 15 of the Constitution. We, therefore, declare that the provisions of Standing Orders 20A and 11A shall apply irrespective of the fact whether the concerned employee is a male or female employee.

9. At the same time, the stand of the NTC that any such extension even in case of female employee must be subject to same scrutiny and rigors as in case of male employee is perfectly legitimate. We do not intend to enlarge the scope of the retention of the service of female employee beyond what a male employee can seek consideration of. Essentially, it is in the realm of the power of the employer, a corresponding right in the employee for being considered, which must be based on relevant factors such as his/her efficiency. We also take note of a decision of the Division Bench of this Court in case of Tata Textile Mills vs. Munnilal Nanhoo Yadav' in which similar observations have been made. We may reproduce the same here:

14. The first issue, therefore, stands answered and Standing Order 11A, therefore, will have to be read as being uniformly made applicable to both male as well as the female employees working in the Textile Mills.

15. The learned Advocates representing the parties are unaware as to whether Standing Order 20-A for operatives and Standing Order 11A for clerks were subsequently amended to bring uniformity in the age of retirement as 63 years for both male and female employees, in the light of the above judicial pronouncement.

16. Be that as it may, if that has not been done despite the passage of 6 years from Anupama R. Dhukande (supra), we deem it appropriate to direct the Respondent NTC Corporation to forthwith delete the exclusion portion (pertaining to Women) from Standing Order 20A and 11A, and define the age of superannuation at 63 years for lady employees, covered by the service conditions.

17. In so far as Issue No. 2 is concerned, there is no dispute before us that both the Petitioners were healthy and there was no health issue due to which they could have been ignored for extending the superannuation age to 63 years. No adverse material is brought before us in these Petitions. As such, issue No.2 stands answered accordingly.

18. The 3rd Issue is strenuously contested by the learned Advocate for the Respondent Employer. On instructions and on the basis of the affidavit-in-reply, he submits that the Petitioners were not included under the Standing Orders for clerks which were finally settled by the Industrial Court under Section 36(6) of the BIR Act of 1946. It is also canvassed that because they were Sales Girls, they could not claim benefits available to clerks in the light of Standing Order 11-A.

19. In view of the record before us, there is no dispute and it is undisputable by the Employer that the Petitioners were Chief Clerks when they were superannuated at the age of 60 years. The Office Order dated 19th December, 1997 issued by the Senior Manager Personnel, reads as under:- “NTC(SM) PERS- 6/10/1997 Date: 19.12.1997 OFFICE ORDER On the basis of approval of competent authority Mrs. S S. Chandankar, Salesgirl. Digvijay Showroom is placed in the Mill Grade of Rs.294-4.50- 339-E.B.-6.50-430-6.50-456 at basic pay Rs 307.50/ (Rs. Three hundred ninety seven and fifty paise only) per month with effect from 1.11.97 on the following terms and conditions of service:i) After refixation as mentioned above you will not be entitled for sales incentive, special allowance 0.5% shortage allowance, tea allowance, uniform & washing allowance etc. ii) You will be governed by rules and regulations (MOA terms and conditions) as applicable to Mill Grade Employees. iii) You are liable to be transferred to any showroom or mills under this Corporation at an time at the discretion of the Management. iv) Your next annual increment will due on 1.11.98 Please sign a duplicate copy of this office order as a token of your acceptance. For N.T.C. (S.M) Ltd. sd/- (P. W. Waghmare) Sr. Manager ( Personnel)” Similarly order dated 29th November, 1997 was issued to Priyanka Chavan.

20. The above Office Orders clearly indicate that after re-fixation of the salary / pay-scale of the Petitioners, they were held disentitled for various incentives that were available only for Sales Girls. They were brought under the Rules and Regulations applicable to mill grade employees. Their service was liable to be transferred to any showroom or mill under the Corporation.

21. The afore-stated fact situation will have to be read in the light of the definition of an employee under Standing Orders 2(a) which defines an employee to be a ‘Clerk’. These Standing Orders, which have been certified by the Industrial Court, are to be made applicable to employees who fall within the nomenclature of clerk. As noted above, it is undisputable that the Petitioners were Chief Clerks and by the two Office Orders, they were brought out of the category of Sales Girls. We do not find that any further narration or explanation is necessary to unravel the status of the Petitioners as Clerks with the NTC Limited. Undisputedly, they were Chief Clerks and, therefore, fell under the definition of Standing Order 2A. Consequentially, Standing Order 11A would squarely apply to her case.

22. The learned Advocate for NTC Limited has drawn our attention to the following two Judgments: Krishna Ganpat Kasar Vs. India United Mills No. 2 & Anr, 2004 (3) Bom.C.R. 691 and National Textile Corporation (South Maharashtra) Ltd. Vs. Ashok Shridhar Athavale & Ors. (Appeal No. 438 of 1991 dated 18th December, 1991).

23. The Judgment in Krishna Ganpat Kasar (supra) is delivered by the learned Single Judge Bench of this Court wherein the Petitioner was held to be working in the retail shop of NTC Limited. At the time of his superannuation, he was working in the retail shop. The learned Single Judge, therefore, concluded that there are two different establishments and hence, two sets of service conditions were applicable to the employees differently in the two different establishments.

24. The same view has been taken by the Division Bench of this Court in Ashok Shridhar Athavale (supra). We are in respectful agreement with the said view because two sets of service conditions cannot be prevalent in a single establishment and cannot be made applicable to a single set of comparable employees. Per contra, if there are two sets of employees working in two different establishments, two sets of service conditions depending upon the nature of duties performed by the two sets of workers in two distinct and separate establishments, would not be an anathema. However, in the present case, the Petitioners were brought out of the category of Sales Girls, were promoted initially as Clerks and then as Chief Clerks and were deployed in the mill. In the backdrop of this admitted position, the two judicial pronouncements would not be applicable to the present cases considering the distinction on the facts of the cases.

25. In view of the above, both these Writ Petitions are allowed. The superannuation of the Petitioners, Shilpa S. Chandankar and Priyanka Chavan, on 14th January 2020 and 14th November, 2021, respectively, are unsustainable in the light of Standing Order 11A. They are entitled to continuing in employment until 14th January, 2023 and 14th November, 2024. Since involuntary unemployment has been foisted upon them, they would be legitimately entitled for salary as per the last drawn pay scale with allowances.

26. Shilpa S. Chandankar was granted ad-interim protection by this Court and she continued in employment till 14th March 2022, until the interim order was set aside by the Hon’ble Supreme Court primarily on the ground that final relief was granted at the interim stage. Priyanka Chavan was continued till December, 2021, under the Interim Order of this Court. However, she was paid her salary only till October, 2021. We, therefore, direct the management that the salary shall be calculated as per the last pay-scale for the remaining period of their service with simple interest @ 6% per annum, to be paid to both of them, within a period of 45 days.

27. We are informed, at this juncture, that these two Petitioners have neither been paid their retirement benefits nor the gratuity amounts. In view of our conclusions in this Judgment, both would be entitled to their retirement benefits inclusive of leave encashment and gratuity to be calculated as per the last drawn salary/ pay-scale as on the date of retirement at the age of 63 years, within a period of 45 days with 6% simple interest per annum. Gratuity would be paid with statutory interest @ 10% p.a.

28. Rule is made absolute in the above terms.

29. The Interim Application No.188 of 2022 would not survive and stands disposed off. (ASHWIN D. BHOBE, J.) (RAVINDRA V. GHUGE, J.)