Rajenderi Singh Chhetri & Ors. v. Hotel Corporation of India & Ors.

14. Before the implementation of pay revision, the Department of Public Sector Enterprises issued an Office Memorandum bearing No. W- 02/0015/2016- DPE (WC)-GL-XXIV/17, dated 24th November 2017, prescribing directions for commencement of the next round of wage negotiations between the management of CPSEs and the respective workers/trade union with effect from 1st January 2017.

15. In accordance with the above said award of CGIT, the respondent NO. 1, in its 241st Board Meeting held on 20th March, 2018, decided to form a Wage Negotiation Committee to commence the wage negotiations with the union of all units of respondent no. 1. Subsequently, the department of Public Enterprises had issued an Office Memorandum dated 14th June, 2018, regarding the revised guidelines for time bound closure of sick and loss making Central Public Sector Enterprises and disposal of assets.

16. On 25th May, the management of the respondent and the Union Committee engaged into bilateral negotiations and successfully came to a mutual conclusion. A Memorandum of Understanding dated 8th August 2019, was entered into by the petitioners and the respondent no. 1 as per which the wages of the unionised worker were to be revised w.e.f. from 17th August 2008, for a period of 10 years in compliance with the Award of CGIT.

17. The Regional Labour Commissioner (Central), Jammu, vide letter dated 7th July, 2020, bearing No. 50 (49)/2019/RLC/Jmu, directed the respondents no. 1 and 2 to release the wage revision arrears to the petitioner of unionized category in 4 equal Installments.

18. The petitioners retired from the employment of respondent no. 1 but they did not receive their payments as per the revision in wage scale w.e.f., 17th August, 2008, till their date of superannuation.

19. The petitioner filed its petition being aggrieved by the respondent‟s inaction by not paid the arrears due to the petitioners despite the award passed by the CGIT, in the favour of the petitioners along with the Memorandum of Understanding (hereinafter “MOU”) which has been executed mutually between the petitioners and the respondent pertaining to the revision of the wage w.e.f., 17th August 2008. Moreover, the petitioners have pleaded that the said conduct amounts to discrimination among the unionized workers who are currently working in the organization/respondent no. 1 and petitioners i.e., the ones who have retired since, the latter have not been paid their dues pertaining to the wage revision.

20. The respondent in its counter-affidavit has filed its countered the averments of the petitioner by submitting that the respondent no.1 is running in losses and does not have the requisite finances to pay the revised wages to the petitioners. Moreover, as per the said MOU entered into between the petitioner and the respondent no. 1, it is stated that the petitioner may be entitled to the revised wage depending upon the financial condition of the respondent no.1.

21. As per the rejoinder to the counter affidavit filed by the petitioners, the petitioners have submitted that pursuant to filing of the instant petition, the petitioners had filed a representation dated 20th October 2020 to the respondent no. 1. It has been further stated, the respondent no.1‟s lack of funds cannot be a ground for the non- payment of arrears of wages of the petitioners.

22. Learned counsel for the petitioners submitted that the lack of payment of arrears to the retired unionized workmen of respondent no. 1 is arbitrary, illegal and violates their fundamental rights as provided under the Constitution of India.

23. It is submitted by the petitioners that the respondent no. 3 has pervasive control over the management, functions, and daily affairs of the respondent no. 1 and 2 and thus, they can be defined as a State within the ambit of Article 12 of Constitution of India.

24. It is submitted by the petitioners that the first revision to the original wage of the employees of respondent no. 1 was carried out in the year 1982 and the same was applicable for a period of 5 years i.e. till the year 1987.

25. It is submitted that the terms of 2013 guidelines were kept due and no negotiation for wage revision was initiated by the management of respondent no. 1, hence the grievance of the petitioners was not addressed.

26. It is contented by the petitioners that respondent no. 1 had issued a letter bearing reference no. MD/HCI/DEL/161 on dated 5th July, 2017 to the respondent no. 3 for implementation of wage revision for officers and staff for grant of interim relief w.e.f. 1st January, 2017 but nothing could be availed from the same.

27. It is further submitted that, the respondent no. 1 decided to disburse the revised wage arrears of the present unionized workers in November 2020, and the same was done without considering the wages of the petitioner which has been accrued prior to this date.

28. It is submitted that as per the award dated 29th November 2016 passed by the CGIT it has been held that the petitioners being unionised employee is entitled to revision of pay from 17th August 2008.

29. It is further submitted that the petitioners have a vested right of revision of pay in terms of the MOU dated 8th August 2019, since as per the said MOU the arrangement was made between the petitioners and respondents for payment of the arrears of wages in compliance with the award passed by the CGIT in favor of the petitioners.

30. It is contended that the petitioners have been wrongfully and arbitrarily deprived of their dues, and hence, their legal rights have been grossly violated by the respondents.

31. In view of the forgoing submissions, the counsel for the petitioners prays that the instant petition may be allowed, and the reliefs as sought by the petitioners may be granted. (On behalf of respondents)

32. Per Contra the learned counsel appearing on behalf of the respondents vehemently opposed the instant petition and submitted that at the outset, the same is not maintainable, and hence, is liable to be dismissed.

33. It is further submitted that as per the facts of the instant batch of petitions, the revision of pay scale is not a statutory right of the petitioners, and therefore, no violation of any right of the petitioners has been committed. Moreover, there is no statutory duty casted upon the respondent No.1 to revise the pay of the petitioners and hence, the same cannot be prayed for, by way of issuance of the writ of mandamus.

34. The counsel for the respondents has placed reliance on the judgments titled as, Punjab State Co-operative Milk Producers Federation Ltd. and Anr. v. Balbir Kumar Walia and Ors., 2021 SCC OnLine SC 461; Chandrashekar A.K. v. State of Kerala, (2009) 1 SCC 73; State of Punjab v. Amar Nath Goyal and ors., (2005) 6 SCC 754; Indian Drugs and Pharmaceuticals Ltd. v. Workmen, Indian Drugs and Pharmaceuticals Ltd., (2007) 1 SCC 408; and Centaur Hotel Employee Union v. Hotel Corporation of India, 2015 SCC OnLine Del 7277, to buttress his contention that the revision of pay is not a vested right of an employee.

35. It is vehemently contended that the „revision of pay‟ is a policy decision of the employer/respondent No.1 and thus, it has the discretion of implementing the same depending upon several factors, and cannot be claimed as a matter of right by the petitioners.

36. It is submitted that the concerned signatory parties, while signing the MOU, agreed that the arrears of wage revision would be considered only on the availability of funds. The respondent no. 1 is a company incurring huge losses and is in fact, entirely dependent upon the respondent no. 2 for funds. Therefore, it is contented by the respondents that due to the unavailability of requisite funds, the arrears of retired workmen could not be paid off.

37. It is further submitted that the respondent No. 1, since the year 2003, has consistently been making losses, and is in no condition to revise the pay scales of its employees. Furthermore, after disinvestment of its erstwhile parent company, i.e., respondent No. 2, the respondent no. 1 did not even receive any budgetary support from its parent company. Moreover, the respondent no. 3, vide letters dated 12th July 2019, 28th October 2019 and 6th January 2020, had refused to bear the burden of wage revision of the petitioners. The details of the loss suffered by the respondent no. 1 has been detailed herein below: Financial year Losses (Rs.In crores) 2003-04 15.07 2004-05 7.75 2005-06 3.03 2006-07 12.70 2007-08 24.97 2008-09 18.61 2009-10 29.11 2010-11 26.71 Financial year Losses (Rs.In crores) 2011-12 21.29 2012-13 35.62 2013-14 40.47 2014-15 50.45 2015-16 57.76 2016-17 61.77 2017-18 55.86 2018-19 71.20 2019-20 65.54

38. It is contended that all the office memorandums on the basis of which the petitioners are seeking revision of pay, had to be executed by such CPSEs taking into consideration their financial condition and for pay revisions to be executed, however, the respondent no. 1 is running in losses for years and is not in position to execute such pay revision.

39. It is submitted that in view of the foregoing contentions raised by the respondents, the instant petition may be thus, dismissed.

ANALYSIS AND FINDINGS

40. The matter was heard at length with arguments advanced by the learned counsels. This Court has adequately perused the entire material on record, the facts of the case, judicial pronouncements relied upon by the parties, and the pleadings presented by the learned counsel of the parties.

41. The case of the petitioners is that the petitioners, retired employees of the respondent no. 1, have not been paid their dues pertaining to the revision of pay scales by respondent no.1, despite an MOU dated 8th August 2019, being executed in their favour, and the order of the CGIT dated 29th November 2016, as per which the respondents were held entitled to the wage revision w.e.f. 17th August 2008. It has been further contended that the respondent no.1 has wrongly and arbitrarily denied the benefits of the revision of pay scale to its retired employees/petitioners and however, it paid the said benefits to its current unionised workers.

42. The respondents, in their rival submissions, have submitted to the effect that they did not possess sufficient financial resources to pay for wages at the revised pay scale to the petitioners. Moreover, as per the said MOU, it was agreed between the parties that the arrears of wage revision would be considered only on the availability of the funds, and since the respondent no. 1 has been suffering losses for years with no financial support from its parent organisation as well, therefore, it is not in a position to pay the same to the petitioners.

43. The question that arises for consideration of this Court is that whether the respondent no.1 shall pay the revision of pay scales w.e.f. 17th August 2008 to the petitioners in terms of the MOU dated 8th August 2019, executed in their favour, and in accordance with the order of the CGIT dated 29th November 2016, directing the respondent no. 1 to pay the petitioners in terms of the revised pay scale.

44. Before delving further, this Court finds it apposite to discuss the aspect of finality of the award passed by the CGIT. The said aspect has been discussed in Section 17 and Section 17A of the Industrial Disputes Act,

1947. The aforementioned sections have been reproduced herein below for ready reference:

45. As per the said provisions, an award passed by the CGIT becomes enforceable only after the expiry of 30 days from the date of its publication under Section 17 of The Industrial Dispute Act, 1974. The same is subjected to two conditions. Firstly, if the appropriate Government is of the opinion, in any case, where the award has been given by a Labour Court or Tribunal in relation to an industrial dispute to which it is a party. Secondly, if Central Government is of the opinion, in any case, where the award has been given by a National Tribunal it will be inexpedient on public grounds affecting national economy or social justice to give effect to the whole, or any part of the award, and the appropriate Government may, by notification in the Official Gazette, declare that the award that the award may not be enforced. In such circumstance, the award passed by the Labour Court or Tribunal shall not be enforceable on the expiry of the said period of thirty days. Therefore, subject to the said exceptions the award becomes enforceable within 30 days from the publication of the said Award.

46. The enforceability of the award passed by the Industrial Tribunal within 30 days from the date of publishing of such award has been discussed by the Hon‟ble Supreme Court in the judgment of Hindustan Times Ltd. v. Workmen, (1964) 1 SCR 234, and the relevant paragraphs of the same are as follows:

47. The said aspect has also been dealt with by the Rajasthan High Court in the judgment of Rajasthan Khadi Sangh v. Presiding Officer, 2007 SCC OnLine Raj 573. The observation of the Court are reproduced herein:

48. Since, the applicable law with regard to the instant dispute has been discussed in the preceding paragraphs; this Court will now delve into the facts of the matter in hand. The order passed by the CGIT dated 29th November 2016, has been reproduced below for reference: “As per the charter of demand, the workmen agitated the matter for the revision of wages on 17.6.2008, meaning thereby the workmen terminated the earlier settlement entered into in the year 2007 vide notice dated 17.06.2008. In view of the provisions of Section 19(2) of the Act, the workman can claim revision of pay only after the expiry of two months from the date of notice and taking the charter of the demand dated 17.06.2008 as notice for terminating the settlement, the workmen are entitled to revision of pay only from 17.08.2008. Thus, the workmen are entitled to revision of pay w.e.f. 17.08.2008 and not w.e.f. 1.1.2007 and the respondent management shall revise the pay of the workmen by taking into consideration all the circumstances and the existing formulas. In result, the reference is answered in favour of the workmen, holding that the workmen are entitled to wage revision w.e.f. 17.08.2008 and management would revise the pay expeditiously as soon as possible and probably within six months of the publication of the Award.”

49. As per the said order of the CGIT, it was held that the workmen including the petitioners are entitled to wage revision w.e.f. 17th August 2008 and not from 1st January 2007. Therefore, the learned Tribunal directed the respondent no. 2 to revise the pay of the workmen, including the petitioners, taking into consideration all the circumstances and the existing formulas, and further held that they are entitled for such revision of pay. It was also directed that such payment was to be made to the unionised workmen, including the petitioners, expeditiously, within six months from the date of publication of the Award.

50. This Court is of the view that in terms of the order passed by the CGIT, the workmen including the petitioners are entitled to the payment of their revised wages w.e.f. 17th August 2008. Moreover, considering the provision provided under Section 17 and Section 17A of the Industrial Tribunal Act, 1947, since the award has not been subject to the conditions as laid in the said provision, the Award became enforceable after 30 days of its publication..

51. Now, adverting to the MOU dated 8th August 2019, as per which the petitioners are claiming pay scale revision, the respondents have drawn the attention of this Court towards para 7 of the recital of the said MOU which has been reproduced herein below:

52. In regard to the above stated argument, this Court is of the view that the workmen, including the petitioners, are entitled to the payment of the wage revision w.e.f. 17th August 2008, however, not in terms of the said MOU, since, it has been agreed between the respondent no.1 and the petitioners, that the arrears of revision of wages shall be subject to the availability of the funds with the respondent no. 1. In the present facts, the respondent no. 1 had been suffering losses for years, thereby, not possessing sufficient funds for the payment of arrears of wage revision. Hence, though the petitioners are entitled to the wage revision in terms of the CGIT award, however, not in terms of the said MOU.

53. Now adverting to the submission raised by the petitioner pertaining to the parity between unionized workers working presently with the respondent no.1 and the petitioners/retired unionized workers of the respondent no.1 in terms of payment of arrears of wage revision

54. The petitioners had raised a contention that the unionized workers who are still working with the respondent no. 1 have been paid their arrears in terms of the wage revision, however, the same has still not been paid to the petitioners/retired unionized employees of the respondent no.1.

55. It is a well- settled law that the employer, while giving benefits to its employees, cannot discriminate between its retired employees and the ones which are currently working under the employer. It is subjected to the condition that unless there is a sound reasoning behind why the two classes are treated differently, the employer shall not discriminate between the two categories.

56. The issue of wrongful classification among the employees working at the same position has been discussed by the Hon‟ble Supreme Court in the judgment of All Manipur Pensioners Assn. v. State of Manipur, (2020) 14 SCC 625, the relevant paragraphs of the same are as follows:

57. This Court is of the view that the respondent no. 1 has acted in contravention with Article 14 of the Constitution of India by creating such wrongful classification between the retired unionised workers/petitioners and the unionised employees which are currently employed with the said respondent. The respondent no. 1 shall pay the retired unionised workers/ petitioners their arrears of wage revision at par with the currently employed unionized workmen.

SCOPE OF MANDAMUS

58. Mandamus is one of the prerogative writs issued by the High Court or the Supreme Court in the manner of command to any authority that falls under the definition of “State” as per Article 12 of the Constitution of India for the purpose of fulfilling their constitutional/ statutory/ public duty. It is used as a last resort in cases where the Court is satisfied that without its intervention there will be a denial of justice to the party invoking such writ.

59. For issuance of writ of mandamus, the petitioner has to establish that the petitioner has a vested right and the public authority has violated such vested right of the petitioner. There is a corresponding legal duty of the public authority which could be enforced by way of issuing a writ of mandamus and such legal duty is casted upon the public authority by way of a Statute or a common law. The pre-requisite for issuing such writ is that the said duty has not been duly discharged by the concerned public authority and the party approaching this Court for seeking mandamus has claimed such relief with a bonafide intention, and does not have any alternative remedy.

60. The Court must be hyper vigilant while issuing a writ of mandamus since, the writ of mandamus is an extraordinary remedy to be invoked only upon special occasions and in exceptional circumstances. It is invoked to supplement the deficiency in law, if any, and cannot be invoked as an appellate mechanism against the decision of any Court, Tribunal, or Authority which is an exercising statutory power. The writ of mandamus is an invincible weapon in cases where there is a failure of justice or exercise of power in an illegal way or arbitrary manner.

61. The above-stated principle governing the issuance of mandamus by the Courts under its writ jurisdiction has been recently reiterated by the Hon‟ble Supreme Court in the judgment of Hero Motocorp Ltd. v. Union of India, (2023) 1 SCC 386, wherein, the following was observed:

62. In light of the above discussions, this Court is of the considered view that the present petitioners have a legal/vested right in claiming the wage revision as per the CGIT award dated 29th November 2016 and there is a legal duty of the respondent in paying the petitioners the said arrears. Therefore, this case is a fit case for issuing the writ of mandamus regarding the arrears of wage revision claimed in terms of the award passed by the CGIT, wherein, the respondent no. 1 was directed to pay the petitioners.

63. The judgments as cited by the respondents regarding revision of pay is not a vested right does not support their case since, the passing of the award in the favour of the unionised workers vested legal right in the petitioners for the revision of the wages.

64. This Court in view of the aforementioned discussions, issues writ of mandamus, thereby, directing the respondent no. 1 for payment of arrears of wage revision due to the petitioners in compliance with the award dated 29th November 2016 passed by the CGIT.

CONCLUSION

65. In view of the foregoing discussion, it is held by this Court that the petitioners have been able to make out their case and accordingly, this Court by way of its extraordinary jurisdiction under Article 226 of the Constitution of India is inclined to intervene, by issuing a writ of mandamus to the respondents. Therefore, the instant writ petition filed under Article 226 is maintainable against respondents in view of the above said discussions, and this Court accordingly deems it fit to allow the instant petition in view of the aforesaid terms.

66. The respondent No. 1 is hereby, directed to pay the arrears of the wage revision w.e.f. 17th August 2008, in compliance with the CGIT award dated 29th November 2016, to the petitioners.

67. Accordingly, all the writ petitions are allowed and stand disposed of. Pending applications, if any, stand disposed of.

68. The judgment be uploaded on the website forthwith.

CHANDRA DHARI SINGH, J OCTOBER 6, 2023 Dy/db/ryp