Judgment:
P.K. Misra, J.
1. The facts which are no longer in dispute are as stated below : The petitioner was appointed as Switch-board Operator, Grade-Ill, by order 12.8.1958 passed by the Superintending Engineer, Electrical Circle, Hirakud Dam Project. Subsequently, he was terminated from service with effect from 31.3.1963 by order dated 25.2.1963 and was re-appointed by order dated 1.4.1963. He continued under the Orissa State Electricity Board till he was made to retire on 29.2.1 996 on attaining the age of 58 years as per Board's Regulation. However, as he was identified to be one of the 1200 employees working under the Hirakud Dam Project prior to 1.4.1960, by order dated 25.5.1996 passed by the Labour Court in Misc. Case No. 1/88 (SC) 481 dated 25.5.1996, he was allowed to rejoin service as per order dated 22.6.1 996 and was allowed to continue till 28.2.1998. when he attained the age of 60 years. However, subsequently under Annexure-9, an office order dated 28.1.1997 was passed stating that instead of getting the scale of pay applicable to the. employees of the OSEB/Grid Co.. he would get the lesser scale of pay applicable to the corresponding category of post in the C.P.W.D.
2. It is contended by the petitioner that he should be paid salary in the scale of pay which he was drawing as employee of the O.S.E.B. and direction for payment of lesser scale of pay applicable to the C.P.W.D. employees for two years with effect from 1.3.1996 till 28.2.1998 is not sustainable.
The learned counsel appearing for the opposite parties has contended that the petitioner was allowed to continue beyond the age of 58 years in accordance with the decision of the Supreme Court, he is entitled to the scale of pay applicable to the employees of the C.P.W.D as per the direction of the Supreme Court and he is not entitled to the higher scale of pay applicable to the employees of the O.S.E.B.
3. In order to resolve this dispute, the history of the litigation in the Supreme Court as well as in this Court is to be noticed.
Hirakud Dam Project was initially entrusted to the Central Waterways, Irrigation and Navigation Commission and the workmen employed therein were drawing the scales of pay et cetera permissible to employees in the workcharged establishment of the Central Public Works Department (in short, 'C.P.W.D.'). The State Government took over the project with effect from 1.4.1960. It was understood that the workcharged employees recruited prior to 1.4.1960 should be allowed to continue on the same scales of pay and conditions of service as were applicable to them on 31.3.1960, as evident from the order of Government of Orissa No. HKD-6A-23-61/2438, dated 8th September, 1961. The workmen employed subsequent to 1.4.1960 were paid pay scales applicable to the employees of workcharged establishment of the State Government. In order to remove the disparity between the employees employed prior to 1.4.1960 and employees employed thereafter, the State Government terminated the services of employees who were working in the workcharged establishment prior to 1.4.1960 and offered them fresh employment in the scale of pay applicable to employees of the workcharged establishment of the State Government. The dispute between the workmen represented through the Union and the State Government was taken to the Supreme Court in Civil Appeal Nos. 348 and 349 of 1974. (As a matter of fact, the narration of events made heret.obefore is based upon the observations of the Supreme Court in Civil Appeal Nos. 348 and 349 of 1974). The aforesaid cases were allowed by the Supreme Court and it was observed :
'We, therefore, allow this appeal and declare that the workmen working in the workcharged establishments of the Hirakud Project from or before 1.4.1960 are entitled to the same scale of pay and other conditions of service as before as if they were employees of the workcharged establishments of the Central Public Works Department.'
Subsequently, the Supreme Court passed an order on 20th September, 1989, directing the Labour Court to 'identify 1200 workmen who were entitled to the benefit of this Court's order dated August 13, 1985 in Civil Appeals No. 348-49/74'. Subsequently, by order dated April 5, 1990, in Civil Appeal No. 1791 of 1990 arising out of Special Leave Petition (C) No. 1 803/1990, the Supreme Court after referring to the earlier order observed :
'The Tribunal must identify only those 1200 workmen who were entitled to the benefit of this Court's order and to travel beyond.' By order dated 28.9.1988, in a petition arising out of Civil Appeal Nos. 348-49/74, the Supreme Court again observed :
'The Labour Court has asked for six months' time. Six months' time is granted to the Labour Court but it is made clear that the Labour Court will go into the question whether the workers in question are entitled to the benefit of this Court's judgment....
The question about the age of retirement is one of the conditions of service and.the Labour Court will examine the matter also.....'
4. It is not disputed that after the Hirakud Dam project was handed over to the State Government on 1.4.1960, different workmen who had been employed prior to 1.4.1960 continued under different Departments, namely Public Health Department, Irrigation Department and Electrical Department. It is further not disputed that the petitioner had been allotted to the Electrical Department. Subsequently, on the formation of the Orissa State Electricity Board, the workmen engaged in Electrical Department were continued in service under the Orissa State Electricity Board.
One such employee of the Board was asked to retire at the age of 58 years which was the age of superannuation applicable to other employees of the Board. He filed OJC No. 4507 of 1992 in this Court which was allowed by order dated 16.12.1992 with the following observation:
'4. Having heard learned counsel for both parties at length, we find that there is no scope for a dispute that the petitioner is one of the 1200 workmen, who was originally engaged in the Central Government as a workcharged employees and whose services were transferred to the State Government, as a consequence of taking over of the Hirakud Dam Project by the State Government. It is also true that the petitioner's services were placed under the Electricity Board, where he had been continuing. The Electricity Board after it was constituted under the Electricity (Supply) Act, 1948 has framed its own regulation governing the conditions of services of its employees relying on which Mr. Rath appearing for the opp. parties justifies the impugned order. But Section 60 of the aforesaid Act provides among other things that -
'All debts and obligations incurred, all contracts entered into and all matters and things engaged to be done by, with or for the State Government for any of the purposes of this Act before the first constitution of the Board shall be deemed to have been incurred, entered into or engaged to be done by, with or for the Board.'Thus service conditions of the petitioner are to be protected and cannot be changed to his detriment by virtue of the regulation of the Board.
5. We, therefore, conclude that the petitioner is entitled to continue till the age of 60 years and cannot be terminated at the age of 58 years, even though the Board's regulation prescribes the age of 58 years to be the age of superannuation; this is so because of the statutory protection given to the employees Under Section 60 of the Act and the Board's regulation to this extent must be held to be not applicable to the petitioner and similarly placed employees.'
5. In the above back-ground of judicial events, the case is to be considered. It is not disputed that the scale of pay paid to the employees of the Board was higher than the scale of pay available to the petitioner as an employee of C.P.W.D. It is further not disputed that the petitioner and other similarly situated employees who were formerly the employees of the workcharged establishment under the C.P.W.D. prior to 1.4.1960 were allowed the scale of pay of the Electricity Board till they attained the age of 58 years. The dispute is regarding the scale of pay to be paid to such employees after they were continued in service beyond the age of 58 years till the age of 60 years following the decision of this Court in OJC No. 4507/92. It is not disputed that the petitioner is one of the 1 200 employees identified by the Labour Court entitled to the benefit of the decision of the Supreme Court.
6. It is contended by the learned counsel for the Board/Grid Co. that as per the decision of the Supreme Court the erstwhile employees of C.P.W.D. are 'entitled to the same scale of pay and other conditions of service as before as if they were employees of the workcharged establishment of the Central Public Works Department'. In other words, it is contended that though such employees were entitled to continue till the age of 60 which was the age of retirement of the employees of C.P.W.D., they cannot seek double benefit by claiming the higher scale of pay available to other regular employees of the Electricity Board and they are entitled to the scale of pay applicable to the employees of the C.P.W.D. which is lower than the scale of pay of the employees of the Board. In this context, it is contended that the petitioner cannot accept one part of the decision of the Supreme Court by virtue of which he is to retire at the age of 60 years and reject the other part of the decision to the effect that as an erstwhile employee of C.P.W.D., he is to get the scale of pay as if he was an employee of the C.P.W.D. Relying upon the decisions of the Supreme Court reported in AIR 1989 Supreme Court 1985 (Ramlal Khurana (dead) by L.Rs. v. State of Punjab and others) and AIR 1988 Supreme Court, 205 (Prasun Roy v. The Calcutta Metropolitan Development Authority and another) and by invoking the doctrine of estoppel against the petitioner, he has further amplified his submission stating that the Labour Court and the High Court are to merely implement the decision of the Supreme Court and that by any other interpretation directing payment of a different pay scale to such employees other than the pay scale available to C.P.W.D. employees would amount to contempt of the Supreme Court.
7. In my humble opinion, the submission made by the counsel for the Board/Grid. Co. is too far-fetched. The decision of the Supreme Court must be understood in the context in which it was made. At the time when the employees of the C.P.W.D. were taken over by the State Government on 1.4.1 960, their scale of pay was higher than the scale of pay offered to the employees of the State Government. With a view to remove the aforesaid anomaly, the State Government retrenched the workmen of the workcharged establishment of C.P.W.D. and offered them re-employment under the State Government in the lower scale of pay applicable to other employees of the State Government. Ultimately, the matter went up to the Supreme Court which declared, '... the workmen working in the workcharged establishment of the Hirakud Dam Project from before 1.4.1960 are entitled to the same scales of pay and other conditions of service as before as if they were employees of the workcharged establishments of the Central Public Works Department'. This was because there was an understanding at the time when their services were placed under the State Government that they should be allowed to continue on the same scale of pay and conditions of service as were applicable to them on 31.3.1960.
It is evident that the service conditions of such employees who were taken over could not be changed to their disadvantage by reducing their scale of pay or by taking away any other service benefit. However, such decision cannot be understood to mean that the employees would be deprived of the benefit of higher scale of pay available to other employees of the same employer. In other words, while there was a bar to change the service conditions of such employees to their detriment, there was no bar to offer such employees better prospects.
That the Supreme Court decision was understood in the above light, is also evident from the subsequent decision of this Court in OJC No. 4507 of 1992 wherein after referring to the decision of the Supreme Court and Regulation of the Board, this Court observed :
'...... Thus the service conditions of the petitioner are to be protected and cannot be changed to his detriment by virtue of the regulation of the Board......'
This decision was rendered in the context of dispute relating to the age of retirement as the Board had prescribed the age of retirement as 58 years, whereas the age of retirement of employees of C.P.W.D. was 60 years at the time when the petitioner was taken over by the State Government and subsequently by the Board and the question of estoppel does not arise. It is not the case of the Board that at the time when the petitioner was absorbed by the Board, he was asked not to accept the scale of pay offered by the Board. The scale of pay available to the employees of the Board was also made available to him which was evidently higher than the scale of pay applicable to the employees of C.P.W.D.. The only controversy so far as the employees of the Board who were the erstwhile employees of C.P.W.D. were concerned, was relating to their age of retirement. Though the Board had fixed the age of retirement at 58 years; this Court after interpreting the decision of the Supreme Court as well as the Regulation of the Board held that the age of retirement of such employees of the Board who had come over from the C.P.W.D. and identified to be one of 1200 employees entitled to the benefit of the judgment of the Supreme Court was 60 years. The correctness of the said decision had not been assailed in any higher forum, nor has been questioned in the present writ application.
8. Apart from the aforesaid legal principles, it appears that the Board had not taken any decision that the employees of the Board who would be continued till the age of 60 years in accordance with the decision of the Supreme Court in Civil Appeal Nos. 348 and 349 of 1974 shall not be paid the higher scale of pay of the Board which was being hitherto drawn by them, but shall be paid at the lower scale of pay applicable to the employees of the C.P.W.D. Annexure-4 is the office order dated 2.3.1994, which is extracted hereunder :
'ORISSA STATE ELECTRICITY BOARD
BHUBANESWAR
OFFICE ORDER
No. Law : JT : 59/92.5565/Dated, the 2.3.1994.
In pursuance of the decision taken by the Board in its 334th meeting, held on 3.2.1994 vide Memorandum No. IV (2nd Supplementary) of the proceedings thereof and the orders dated 13.8.1985 of the Hon'ble Supreme Court of India passed in Civil Appeal Nos. 348 and 349 of 1974 between the Workmen of Hirakud Dam Project and the Management of Hirakud Dam Project, the Ex-Employees of the defunct Hirakud Dam Project who have been transferred to this Board as employees in the work-charged establishment alongwith the power system of the Hirakud Dam Project with effect from 1.4.1969 by the Government of Orissa and have been categorised as employees in any category other than category-IV under the O.S.E.B. Employees (Age of Retirement) Regulation, 1979 are allowed to retire on superannuation on attaining the age of 60 years. notwithstanding anything to the contrary in Clause 3 (a) of the O.S.E.B. Employees (Age of Retirement) Regulations, 1979.
2. Any such work-charged employee of the former Hirakud Dam Project who have already been retired on completion of 58 years of age in accordance with the age of retirement stipulated in Clause 3 (a) of the said Regulations shall also be allowed to retire on attaining the age of 60 years.
By order,
Sd/-
MEMBER ADMINISTRATION AND SECRETARY.'
A perusal of the aforesaid order indicates that the Board had taken a decision to allow employees coming within the scope of the said order to retire on attaining the age of 60 years notwithstanding anything to the contrary in the OSEB Employees (Age of Retirement) Regulation, 1979. The said order, however, nowhere indicates that the Board had also taken the decision to pay salary at a reduced scale to such employees who were to be allowed to continue till 60 years. In the absence of any specific decision of the Board to that effect, it was not open to opposite party No. 1 or opposite party No. 3 to take a decision that the petitioner shall be paid salary at a reduced scale for the two years. As such, the order under Annexure-9 is not supportable in law, nor on fact.
9. For the aforesaid reasons, I am unable to accept the contention of the counsel for the Board/Grid Co. that the employees of the Board who had been taken over from the C.P.W.D. on 1.4.1 960 by the State Government and subsequently by the Board would be entitled to C.P.W.D. scale of pay even though the Board had prescribed higher scale of pay. The writ application is accordingly allowed. There will, however, be no order as to costs.
Susanta Chatterji, ACJ.
10. I agree.