Vitthal Pandurang Kumbhar v. Kolhapur Municipal Corporation

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7. The Industrial Court proceeded on the footing that the employee held lien on a permanent post, which was a different post, in a different department, than the one which the employee worked previously on daily wages, hence, not entitled to claim the benefit of half of continuous service as a daily wager in view of Regulation 7. The Industrial Court was of the opinion that the post on which the employee worked on daily wages should be the same as the subsequent post on which he is appointed to hold a lien on a permanent post for entitling him the benefits of the Pension Regulations.

8. The claim is made by the employee on the basis of the Pension Regulations of the Corporation. Regulation 2(i) provides as under: - “2(i) Except where it is otherwise expressed or implied and subject to the provisions of clause (ii) of the regulation, these regulations shall apply to all Municipal servants who hold a lien on the permanent post or would hold a lien on such a post had their lien not been suspended under the Municipal Services Rules and Regulations.”

(ii) in any case, it is distinctly provided for by or under regulations, these regulations do not apply to: - (a) Municipal servants on daily wages; (b) Municipal servant whose time is not exclusively devoted to the duties of their offices;

(c) Govt. servants in Municipal employ;

(d) Part time Municipal Officers and servants;

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(e) Municipal officers and servants who are employed on honorarium; (f) Municipal officers and servants who are governed by Employees Provident Fund Act, 1952.”

9. On a perusal of the Regulation 2(ii), I find that had it been a case that the employee was working only on daily wages and never held a lien on permanent post, in such a case there was no question of application of the Pension Regulations. The employee, however, was engaged on daily wages in the construction department and later-on holding a lien on the permanent post as a ward boy. The employee worked on daily wages and later as a ward boy under the same Corporation, but in a different department.

10. In the context of the present case, Regulation 7 of the Pension Regulations is relevant, which reads thus: “7:- Notwithstanding anything in clause (ii) of Regulation of these regulations, a Municipal employee who has worked previously on daily wages and subsequently appointed to hold a lien on permanent post,half of continuous service rendered by him on daily wages shall be counted for the purpose of pension.”

11. The effect of Regulation 2(i), 2(ii) and 7 will have to be considered on the employee’s claim. Regulation 2(i) provides that except where it is otherwise expressed or implied and subject to the provisions of clause (ii) of the Regulation, the Pension Regulations shall apply to all Municipal servants who hold a lien on the permanent post. So far as the lien held by the employee on the permanent post of ward boy is

S. R. Joshi 8/14 concerned, the Pension Regulations are applicable in view of Regulation 2(i). Clause (ii)(a) of Regulation 2 provides that Pension Regulations do not apply to Municipal servants on daily wages. Having regard to the language of Regulation 2(ii) (a) without anything more, the employee would not be in a position to claim the benefit of service he rendered as a daily wager. However, Clause (i) of Regulation 2 starts with the expression “except where it is expressed or implied and subject to the provisions of Clause (ii) of the Regulations”, which read with the provision of Regulation 7, which begins with a non obstante clause, assumes relevance. The situation when the services rendered by a Municipal employee working on daily wages could be counted for the purpose of pension and to what extent is provided for in Regulation 7.

12. The employee is admittedly a Municipal employee who has worked on daily wages prior to his holding lien on a permanent post as a ward boy. Regulation 7 uses the expression “a Municipal employee who has worked previously on daily wages” meaning thereby that the first condition which has to be fulfilled is that prior to holding lien on a permanent post, the Municipal employee must have worked previously on daily wages. The second requirement is that such employee is subsequently appointed to hold a lien on permanent post. Regulation 7 speaks of “a Municipal employee” and therefore, what is essential is that the ‘Municipal employee’ must have worked on daily wages and subsequently appointed to hold a lien on permanent post, which obviously must be under the

S. R. Joshi 9/14 same Corporation. The plain reading of the expression in Regulation 7 viz. “a Municipal employee who has worked previously on daily wages and subsequently appointed to hold on permanent post” would indicate fulfilling a two fold requirement to claim the benefit thereunder, (1) that the Municipal employee has previously worked on daily wages; and (2) subsequently appointed to hold a lien on permanent post. Once these conditions are satisfied, there is no reason to deprive the Municipal employee the benefit of Regulation 7.

13. Regulation 7 does not say that the Municipal employee should have worked on the same post in his capacity as a daily wager and then holds lien on a permanent basis on the same post. If the interpretation to Regulation 7 as adopted by the Industrial Court is accepted, then it would amount to adding the words ‘on the same post’ which would be against the plain and unambiguous language of Regulation 7. The employee has worked almost for 17 years on daily wages. In continuity to working on daily wages, the employee worked as a ward boy. He held permanent lien on the post of ward boy till his retirement.

14. In my opinion, the twin conditions of Regulation 7 stand satisfied in the present case, on a plain reading thereof. I do not find it equitable to deprive the employee who has worked almost for 17 years on daily wages, the benefit of Regulation 7, for counting half of continuous service rendered by him on daily wages, for the purpose of pension.

15. Regulation 7 of the Pension Regulations is a provision of

S. R. Joshi 10/14 a social welfare legislation. Assuming there is any ambiguity in the interpretation of Regulation 7 which is capable of two constructions, court should adopt a beneficial rule of construction and prefer that construction which fulfills the policy of the Regulation and is more beneficial to the persons in whose interest the Regulation has been passed. I may hasten to add the limitation placed by Their Lordships while adopting such approach in Jeewanlal Ltd. and others vs. Appellate Authority under the payment of Gratuity Act and others[1]. Their Lordships observed that “in an anxiety to advance beneficent purpose of legislation, the courts must not yield to the temptation of seeking ambiguity when there is none”. Their Lordships have further observed that “when, however, the language is plain and unambiguous, the Court must give effect to it whatever may be the consequence, for, in that case, the words of the statute speak the intention of the Legislature. When the language is explicit, its consequences are for the Legislature and not for the courts to consider”. The aforesaid observations made by me are quoted from paragraph 11 of the decision in Jeewanlal Ltd. (supra).

16. The decision in Jeewanlal Ltd. (supra) though rendered in the context of the Payment of Gratuity Act, 1972, however, the observations made by Their Lordships in paragraph 11 are in the context of construing a social welfare legislation. I have taken guidance from these observations while construing Regulation 7 in the present case. Paragraph 11 in Jeewanlal

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Ltd. (supra) reads thus: -

17. It would also be necessary to refer with profit the observations of the Supreme Court in State of Rajasthan & others vs. O. P. Gupta[2]. The Supreme Court was considering the question whether, the length of the service of the employee therein for the purpose of calculating pension and other retiral benefits should include the services rendered with the Rajasthan Agriculture Engineering Board and Rajasthan State Agro Industry Corporation, prior to his appointment as Assistant Director (Agro-Industries, Department of Industries, State of Rajasthan). The observations of the Supreme Court, especially those in paragraph 28 are significant. It would also be useful to refer to the observations made in paragraphs 26 and 27. Paragraphs 26, 27 and 28, are reproduced, read thus: 2 SLP (Civil) No.16734/2002 decided on September 19, 2022.

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18. In view of the above discussion, in my opinion, the language of Regulation 7 is plain and unambiguous. It is not possible for me to accept the interpretation of Regulation 7 which will have the effect of depriving the employee the benefit of services he rendered for 17 years on daily wages before holding a substantive lien on a permanent post. I, therefore, do not subscribe to the view of the Industrial Court in its interpretation of Regulation 7 of the Pension Regulations.

19. The impugned order passed by the Industrial Court is, therefore, set aside. The complaint before the Industrial Court

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20. The Corporation is directed to grant benefit of half of continuous service rendered by the petitioner on daily wages for the purpose of pension in terms of Regulation 7 of the Pension Regulations.

21. The order passed by this Court be complied with by the Corporation, including payment of arrears, within a period of three (3) months from today.

22. No costs. (M.S.KARNIK, J. )

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