Pratap Kumar Ray, J.
1. This writ application has been filed by 60 writ petitioners jointly, who are retired employees of South Bengal State Transport Corporation being a Corporation created under the Road Transport Corporation Act, 1950 by the State of West Bengal retaining its full control over the management, function and finance. Out of the said 60 writ petitioners, 36 writ petitioners retired before 1st April, 1997 and the rest after 1st April, 1997. The writ petitioners have prayed for following reliefs:
a) Rule NISI upon the Respondents calling upon them to show cause why a writ in the nature of Mandamus shall not issue directing them to forbear from giving effect to and/or continuing to give effect to and/or giving further effect to and/or withdraw and/or cancel and/or rescind the impugned decision, if any, taken or followed for not paying pension to the petitioners and/or the persons who retired from service of the Respondent Corporation and are entitled to pension under the said Pension Regulations.
b) Rule NISI upon the Respondents calling upon them to show cause why a writ in the nature of Mandamus shall not issue directing them not only to pay pension to the petitioners and other employees who retired from service of the Respondent Corporation and have become eligible to get pension under the said Pension Regulations;
c) Rule NISI upon the Respondents calling upon them to show cause why a writ in the nature of Certiorari shall not issue directing them to certify and transmit to this Hon'ble Court records pertaining to the non-payment of pension to the petitioners and/or other persons who have retired from the service of the Respondent Corporation have become entitled to pension under the said Pension Regulations;
d) Issue of appropriate Writ or Writs and/or order or orders and/or Direction or Directions if no cause of insufficient cause is shown to this Rule;
e) Ad-interim order of mandatory injunction directing the Respondents to pay pension to the petitioners and other eligible persons immediately;
f) Ad-interim order of injunction restraining the Respondents from giving effect to and/or continuing to give effect to and/or giving further effect to the implied or virtual decision taken or followed for non payment of pension to the petitioners and to other persons till the hearing of this application;
g) Cost of, and pertaining to this, application;
h) Any other further order or orders as may appear fit and proper to this Hon'ble Court.
2. This writ application has been opposed by the respondent Nos. 1, 2 and 3 by filing affidavits-in-opposition. In course of hearing, subsequently, to answer the question raised by the Court, two supplementary affidavits were filed, one supplementary affidavit-in-opposition was filed by the said respondents duly affirmed by one Sri Pallab Ghosal on 10th March, 2006, and another supplementary affidavit affirmed by Sri Shyamal Das on 7th January, 2007 was filed. Affidavit-in-reply in respect of the main affidavit-in-opposition and the said two supplementary affidavit-in-oppositions also have been filed by the writ petitioners. As State Government did not file any affidavit-in-opposition, who in fact is controlling the activity of the Corporation including its management and finance by appointing Managing Directors and also the Board of Directors, the Court wanted to have an answer from the Chief Secretary, Government of West Bengal as well as Principal Secretary, Transport Department about the stand of the State Government on issue of implementation of South Bengal State Transport Corporation Employees' Pension Regulations, 2002, whose implementation is the subject matter of the writ application due to refusal to implement it by the respondent Nos. 1 to 3, namely, the said Corporation by taking a contrary decision by its Board's Meeting held on 8th April, 2003 that the employees of the Corporation would be entitled to get the benefit under Pension Scheme of 1995 linked with Employees' Provident Fund and Miscellaneous Provisions Act, 1952, hereinafter for brevity referred to as concerned Act of 1952. Chief Secretary and Principal Secretary also have filed their respective affidavits, reply thereof, have been filed by the writ petitioners.
3. It is an admitted fact that all the writ petitioners earlier were the employee of State of West Bengal working in the (Home) Transport Department, Government of West Bengal. In the year 1950, Parliament enacted the Road Transport Corporation Act, 1950 being an Act to provide the incorporation and Road Transport Corporation Regulations, hereinafter referred to as said Act of 1950. Under Section 3 of the said Act of 1950, respective State Governments were empowered to establish a Road Transport Corporation for the whole or any part of the State under such name as to be specified in the notification. Section 3 of the Road Transport Corporation Act, 1950, reads such:
3. Establishment of Road Transport Corporations in the States.- The State Government, having regard to-
(a) the advantages offered to the public, trade and industry by the development of road transport;
(b) the desirability of coordinating any form of road transport with any other form of transport;
(c) the desirability of extending and improving the facilities for road transport in any area and of providing an efficient and economical system of road transport service therein; may, by notification in the Official Gazette, establish a Road Transport Corporation for the whole or any part of the State under such name as may be specified in the notification.
4. In pursuance thereof and in exercise of that power under Section 3 of the said Act, the State of West Bengal in the year 1959 made the Road Transport Corporation (West Bengal Amendment) Act. Durgapur State Transport Corporation hereinafter referred to as DSTC accordingly was created by the Government of West Bengal in the year 1972 and at present the name has been changed to South Bengal State Transport Corporation. By the said West Bengal Amendment Act new provisions were inserted under Section 47A and 47B of the Central Act. Under Section 47B(1)(f) of the said Amended Act of Road Transport Corporation Act, the State Government agreed that the employees of the State Government, who would be employed in the Corporation, their service conditions should not be less advantageous than what they were entitled to immediately before such establishment. Section 47B(1)(f) of the said Act read such:
47B(1)(f). Persons employed by the State Government in connection with the State undertaking and continuing in office immediately before the establishment of the Corporation shall be employed by the Corporation on such and conditions, not less advantageous than what they were entitled to immediately before such establishment, as may be determined by the Corporation.
5. By Gazette Notification published in the Calcutta Gazette of its publication dated 26th February, 1967, a Transport Resolution of Home Department, Government of West Bengal No. 1779-WT dated 23rd February, 1967 was published whereby and whereunder it was mentioned about setting up of Durgapur State Transport Board, which subsequently converted to Durgapur State Transport Corporation, namely, DSTC, now renamed as South Bengal State Transport Corporation. Under Clause 7 of the said Resolution, provision has been made empowering the Board to provide its employees suitable conditions of service including fair wages, establishment of Provident Fund, living accommodation, places for rest and recreation, subject to approval of the State Government. The relevant provision of Clause 7(b) reads such:
7. Without prejudice to the generality of the power referred to in Clause (5) and subject to such directions as may be issued by the State Government from time to time and subject further to the provisions of the Resolution, the Board shall have the power-
(a) ...
(b) to provide for its employees suitable conditions of service including fair wages, establishment of provident fund, living accommodation, places for rest and recreation and other amenities.Provided that the conditions of service shall be prescribed with the approval of the State Government.
6. On 15th November, 1967, in the second meeting of the Durgapur State Transport Board, a discussion was made on issue of exemption from the provision of Employees Provident Fund Act, namely, Act of 1952, when it was resolved 'as there was no exemption granted and no application filed, but the Regional Provident Fund Commissioner was insisting to follow the provisions of the said Act of 1952, so the matter should be placed for decision of the Chairman'. The discussion of the meeting dated 15th November, 1967 as aforesaid reads such:
Proceedings of the 2nd Meeting of the Durgapur State Transport Board held on the 15th November, 1967 at the Chamber of the Chairman at 45, Ganesh Chandra Avenue, Calcutta - 13. Present:
1. Dr. B.K. Bhattacherya, I.A.S. Chairman
2. Sri K.C. Shibaramkrishnan, I.A.S. Member
3. Sri I. Choudhury, I.A.S. Member
4. Sri B.K. Saha, I.P.S. Member.
Shri K.C. Shivaramkrishnan, member had to leave the meeting shortly after it started, being required to attend to an urgent matter at his Head Quarters Office at Calcutta and as such could not take part in the discussion.
2. Decision regarding Exemption from provision of Employees Provident Fund Act or Enforcement of the same.
Although deductions were being made from the pay of employees at the rate of 8% of their emoluments since July 1967 it appeared that no final decision had yet been arrived at regarding the Agency for dealing with the funds and maintenance of the records in this connection. As no exemption from application of the E.P.F. Act has yet been asked for or granted it was being insisted upon by the Regional Provident Fund Commissioner that all sums realized so fare be deposited with them immediately. From the latest note of the Finance Department on the subject forwarded by the Asstt. Secretary, it appeared however that the Government wanted us to keep the money with ourselves and maintain all records as Calcutta State Transport Corporation was doing. This was being urged in the interest of better Employer-Employee relationship, which will be stronger, if the money be kept with us. Apart from the fact that North Bengal State Transport Corporation and many other Government Undertakings in the Public Sector were keeping their Provident Fund money with the Regional Provident Fund Commissioner it was extremely difficult for us to take full responsibility for the Provident Fund unless full staff as required by us - One U.D. Asstt. and two L.D. Assistants were sanctioned for this purpose.
As the matter required further detailed examination in the light of the experience of the Calcutta State Corporation authorities the Board decided that the same be entrusted to the Chairman for taking a final decision and communication thereof to the Government.
Sd/-
B.K. Bhattacharya
7.12.67
Member & Secretary:
Sd/-
A.R. Bose
4.12.67
Member
Sd/-
B.K. Saha.
7. However, no document has been placed on the issue as to whether the Chairman had taken a final decision to introduce the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, on the contrary it appears from the Service Regulation as was existing prior to Employees Pension Regulation, 2002, which has been sought to be implemented in this writ application, there was a provision that Family Pension Scheme would be applicable and subsequently, from the Regulations, 2002 it appears that the said regulation was notified providing the benefits, namely, death-cum-retirement benefits in lieu of 'benefits of Contributory Provident Fund as provided in the South Bengal State Transport Corporation Employees' Contributory Provident Fund Regulations including the benefits of gratuity under Gratuity Rules of the State Government'. The effect of such has been discussed later on.
8. As discussed earlier, the Durgapur Transport Corporation was substituted by the words 'South Bengal State Transport Corporation' and a notification to that effect on 17th March, 1988 was published, which reads such:
No. 3323-WT
Government of West Bengal Transport Department
Dated: 17th March, 1988
NOTIFICATION
Whereas the Board of Directors of the Durgapur State Transport Corporation established under this department notification No. 18888-WT, dated the 4th December, 1973 (hereinafter referred to as the said notification), at its meeting held on the 8th January, 1988, resolved to change the name of the Durgapur State Transport Corporation as the South Bengal State Transport Corporation with a view to extending the facilities, for road transport in the five districts of South Bengal, namely, Burdwan, Bankura, Purulia, Midnapore and Hooghly;
Now, Therefore, in exercise of the power conferred by Section 3 of the Road Transport Corporations Act, 1950 (64 of 1950), the Governor is pleased hereby to make the following amendment in the said notification:
Amendment In the said notification, for the words 'Durgapur State Transport Corporation', substitute the words 'South Bengal State Transport Corpn.'
By Order of the Governor,
Sd/-
Manish Gupta
Secy. to the Govt. of West Bengal.
9. It is an admitted fact as it appears from the respective affidavits and more particularly from the affidavits of the writ petitioners that all the writ petitioners have already withdrawn their contributory Provident Fund, which includes their share and the employer share as well as interest accrued after their retirement and some of the writ petitioners have already initiated a proceeding claiming gratuity under the Gratuities Act before the appropriate authority. So long there was no problem till a notification was published in the Kolkata Gazette of its extraordinary issue dated 4th July, 2002 being the Notification No. 38/14/PACM/SBSTC/2002 dated March 30, 2002, whereby in exercise of the power under Section 45 of the Road Transport Corporation Act 1950, the South Bengal State Transport Corporation with previous sanction of the State Government framed a regulation named and styled as 'South Bengal State Transport Corporation Employees' Pension Regulations, 2002'. Earlier, under the Service Regulation, which is termed as 'Durgapur State Transport Corporation's Employees' Service Regulations', a regulation constituted and framed on exercise of the power under Section 45 Sub-section (2) Clause (c) of the said Road Transport Corporation Act, 1950 with previous sanction of the State Government, which provided under Clause 14(4) that 'service in the Corporation shall not be pensionable service but Family Pension Scheme could be applicable'. Relevant provision of Clause 14(4) reads such:
14. General Conditions of Service:
(1) ...
(4) Service in the Corporation shall be non-pensionable however this will not effect family pension scheme as applicable. Provided that in the case of any Government servant in pensionable service under the State Government placed at the disposal on deputation to the Corporation, the Corporation shall be liable to pay such pension and other contributions as may be determined by the State Government and which may be necessary to secure the employee's lien in his parent department under the State Govt.
10. This Service Regulation, however, has not been explicitly repealed by regulation, namely, South Bengal State Transport Corporation Employees' Pension Regulations, 2002, which has provided that the service in Corporation is pensionable service and the effect of such pension rule has been given retrospectively from 1st April, 1984 providing relief to the retirees also, subject to adjustment of the provident fund money and the gratuity in terms of the regulation made thereon. The relevant portion of Clause 6(2)(ii) reads such:
6(2)(ii). Employees retiring upto 31st March, 1997 may be paid pension accordingly to this revised pattern w.e.f. 1st April, 1997. No arrears on account of introduction of this pension scheme may be paid to them for the period upto 31.3.97. Likewise the South Bengal State Transport Corporation will not claim refund of employer's share of contribution towards Contributory Provident Fund together with interest accrued thereon, and/or any other retirement benefits already allowed to the employees for the period upto 31.3.97. The employees who have drawn gratuity under the payment of Gratuity Act, 1972 or any other rules in force at the material time shall not, however, be entitled to revised rate of gratuity applicable with effect from 1st April, 1997.
11. The writ petitioners prayed before the Corporation to implement the said Pension Regulations of 2002, but the Board took a decision not to implement the same on the ground that majority employees did not agree to have the implementation of the said Pension Regulations of 2002. The decision of the said Board dated 8th April, 2003 reads such:
An Extract From the Proceedings of 110th Meetiting of the Corporation Board Held in the Office Chamber of the Chairman, SBSTC, At Durgapur At 11.30 A.M. ON 08.04.2003. Item No. 110.05:
To consider and approve the proposal of Introducing Death-cum-Retirement Benefit Scheme as well as Pension Regulation, 2002 for SBSTC employees.
On perusal of the agenda note submitted by MD., the Board observed that none of the existing employees of the Corporation opted for the Death-Cum-Retirement Benefit Scheme and that only 189 retired employees (which constituted 6 per cent of the total employee of the Corporation) opted for the said Scheme. The Board unanimously resolved that Pension Scheme 1995 linked with employees Provident Fund be introduced for the existing employees of the Corporation and the cases related to retired employees of the Corporation be dealt with as pr the said Scheme (Pen.'95).
Sd/-
(D.J. Chatterjee)
MD. SBSTC
Sd/-
(Narayan Biswas)
Chairman, SBSTC
12. It is the case of the respondents Corporation as well as the Chief Secretary and the Principal Secretary of the Government of West Bengal in their respective affidavits that since under Section 17 of the said Act of 1952, no application has been filed seeking exemption from the existing Provident Fund and Pension Scheme as introduced under the said Act of 1952, namely, the Employees' Pension Scheme, 1995 and as there was no scope to apply seeking exemption by the decision of the Central Provident Fund Commission in view of the fact that the majority employees did not agree, save and except, the retired employees who were only 6 per cent of the total employees inclusive of retired and the present employees, which attracts the embargo for filing such an application seeking exemption in terms of the proviso of Sub-section (2) of Section 17 of the said Act. Relevant portion of Section 17, namely, 17(1C) and Sub-section (2) reads such:
17(1C). The appropriate Government may, by notification in the Official Gazette, and subject to the condition on the pattern of investment of pension fund and such other conditions as may be specified therein, exempt any establishment or class of establishments from the operation of the Pension Scheme if the employees of such establishment or class of establishments are either members of any other pension scheme or proposed to be members of such pension scheme, where the pensionary benefits are at par with or more favorable than the Pension Scheme under this Act.
17(2). Any scheme may make provision for exemption of any person or class of persons employed in any [establishment] to which the Scheme applies from the operation of all or any of the provisions of the Scheme, if such person or class of persons is entitled to benefits in the nature of provident fund, gratuity or old age pension and such benefits, separately or jointly, are on the whole not less favourable than the benefits provided under this Act or the Scheme:Provided that no such exemption shall be granted in respect of a class of persons unless the appropriate Government is of opinion that the majority of persons constituting such class desire to continue to be entitled to such benefits.
13. It has been further contended by the respondents, namely, the Chief Secretary of the Government of West Bengal and the Principal Secretary of the (Home) Transport Department that State Government has already approved the Pension Regulations of 2002 and same has been duly notified in the Gazette but the implementation of the same as is depended upon grant of exemption under Section 17 of the said Act of 1952, which is not possible to be done seeking exemption in view of the proviso of Sub-section (2) of Section 17 aforesaid, as the majority employees did not agree to such, hence there is no scope for implementation of the Pension Regulations of 2002.
14. The Corporation, respondent Nos. 1 to 3 in addition to the said point has taken a further plea that the Pension Regulations of 2002 is not at all a valid Regulation as under Section 45 of the said Act of 1950, Managing Director was not empowered to publish the notification and there was no decision by the Corporation Board in terms of Section 19(1)(c), which is the specific power vested to the Corporation to form and/or to establish the Provident Fund Scheme. Section 19(1)(c) as relied upon and the Section 45 of the said Act, 1950 reads such:
19. Powers of Corporation.-(1) Subject to the provisions of this Act, a Corporation shall have power-
(a) ...
(c) to provide for its employees suitable conditions of service including fair wages, establishment of provident fund, living accommodation, places for rest and recreation and other amenities.
45. Power to make regulations.-(1) A Corporation may, with the previous sanction of the State Government, make regulations, not inconsistent with this Act and the rules make thereunder, for the administration of the affairs of the Corporation.
(2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely:
(a) the manner in which, and the purposes for which persons may be associated with the [Board] under Section 10;
(b) the time and place of meetings of the [Board] and the procedure to be followed in regard to transaction of business at such meetings;
(c) the conditions of appointment and service and the scales of pay of the officers and [other employees of the Corporation other than the Managing Director, the Chief Accounts Officer and the Financial Adviser or, as the case may be, the Chief Accounts Officer-cum-Financial Advisor];
[(d) the issue of passes to the employees of the Corporation and other persons under Section 19;
(e) the grant of refund in respect of unused tickets and concessional passes under Section 19.]
15. Another point has been taken by the said Corporation that since there is a Service Regulation earlier introduced, where Clause 14(4) stipulates that service of the Corporation is not pensionable, until and unless, the said Regulation is recalled or modified, there was no scope to frame any Pension Regulation.
16. So far as the legality and the validity of Pension Regulations, 2002 as has been urged, the same has no legal basis on bare reading of the statutory provision under the Road Transport Corporation Act, 1950. It appears that the South Bengal State Transport Service Regulation as was framed and constituted by notification dated 18th May, 1987 providing under Clause 14(4) that service was not pensionable, was constituted and framed in exercise of the power under Section 45 Sub-section (2) Clause (c) of the said Act of 1950. Present Pension Regulations, 2002 also has been framed in exercise of the power under Section 45 of the said Act. Section 45 Sub-section (2) Clause (c) provides that condition of appointment and service including scale of pay of the employees and officers could be determined by the Corporation subject to previous sanction of the State Government in terms of the Sub-section (1) of Section 45 and publication of the notification in the official gazette. Section 19 of the said Act of 1950 only describes the powers of the Corporation. Under the said provision under Sub-section (1) Clause (c), Corporation is empowered to provide establishment of Provident Fund. There is no conflict in between Section 19(1C) and Section 45(2)(C) for the simple reason that Section 19 when speaks about the power of the Corporation, whereas Section 45 provides implementation of such power by framing a regulation subject to sanction of the State Government and subject to notification in the official gazette, as such, the argument as advanced by the learned advocate Mr. Bera appearing for the South Bengal State Transport Corporation, namely, respondent Nos. 1 to 3 on that score has no legal foundation. Accordingly, I do hold that the Pension Regulations, 2002 is valid piece of Pension Regulation framed and constituted on due exercise of the power under Section 19(1)(C) read with Section 45(2)(C) of the said Act and same has been duly published in the gazette on sanction of the State Government. There is no doubt about the sanction of the State Government in respect of this regulation as it appears from the letter of the Deputy Secretary to the Government of West Bengal dated 26th February, 2003 as addressed to the Managing Director of the Corporation, which reads such:
Government Of West Bengal Transport Department
Writers' Buildings, Kol -1.
From: Smt. Uma Mukherjee
Deputy Secy. to the Govt. of West Bengal.
To: The Managing Director,
South Bengal State Transport Corporation,
Dr. B.C. Roy Avenue,
Durgapur - 713 201,
Burdwan.
No: 728-WT/TR/0/12B-10/99
Date: 26.2.2003.
Sub: Introduction of Pension Scheme in SBSTC.
Sir,
I am directed to draw attention to your Memo No. 533/SBSTC/03 dt. 27.1.2003 on the subject mentioned above, and to request you to kindly place the entire matter before the Board of the Directors for taking a decision in the matter whether the Pension Scheme will be introduced or not.
The decisions of the Board in this regard may kindly be communicated to this Deptt. Positively.
Yours faithfully,
Sd/-
Dy. Secy. to the Govt. of West Bengal.
17. As soon as the Pension Regulations, 2002 has been published in the Gazette dated 30th March, 2002 with previous sanction of the State Government as it appears from the notification, the Service Regulation Clause 14(4) as earlier was introduced by notification dated 18th May, 1987 automatically stood repealed in view of a new regulation in the field in question as framed by exercising the identical power under Section 45 by which the earlier regulation was framed, as such, the argument as advanced by the learned advocate Mr. Bera that Clause 14(4) of the earlier Service Regulation since has not been repealed, the present Regulations, 2002 is bad in law, is not accepted. It is a settled proposition of law that even if there is no explicit repeal of earlier provision but if it appears that subsequently in the same field, another regulation has been framed, which is contrary to the earlier one, the subsequent regulation should be construed and deemed impliedly for all purposes as modification/variation of the earlier regulation when the source of formulation and/or establishment of later regulation being identical with earlier one, by applying the doctrine of implied repeal under General Clauses Act, 1897. The only question, which has a legal basis and which has a vital impact for adjudication of this case is the provision of Section 17 Sub-section (2) proviso of said Act of 1952 whereby and whereunder it is clearly provided that no exemption from any earlier Pension/Provident Fund Scheme should be granted by the Central Provident Fund Commissioner for which application is required to be filed by the employer in the prescribed format, until and unless, the majority persons constituting such class desires to have the exemption by accepting the subsequent Pension/Provident Fund Scheme as intended to be introduced seeking such exemption. The same stand has been taken by the Chief Secretary of the Government of West Bengal and the Principal Secretary, (Home) Transport Department, Government of West Bengal. The relevant portion has already been quoted but for effective adjudication of this point, same is re-quoted hereinbelow:
17(2). Any scheme may make provision for exemption of any person or class of persons employed in any [establishment] to which the Scheme applies from the operation of all or any of the provisions of the Scheme, if such person or class of persons is entitled to benefits in the nature of provident fund, gratuity or old age pension and such benefits, separately or jointly, are on the whole not less favourable than the benefits provided under this Act or the Scheme:Provided that no such exemption shall be granted in respect of a class of persons unless the appropriate Government is of opinion that the majority of persons constituting such class desire to continue to be entitled to such benefits.
18. It is the case of the writ petitioners that they are all retired employees and by Pension Regulation, 2002 there past service has been declared as pensionable service with retrospective effect from 1st April, 1984. It is also the case of the writ petitioners that earlier they were in the employment of the State Government, where the Pension and Provident Fund Scheme was existing under service rule and their service was pensionable service and as such, when they have been brought to the service of the erstwhile Durgapur State Transport Board, subsequently, named as Durgapur State Transport Corporation, at present being substituted as South Bengal State Transport Corporation, under Section 45(2)(C) their service condition cannot be less advantageous than the service condition in which they were earlier continuing being the employee of the State Government. It is also their case that under the Service Regulation of Corporation as was existing prior to Pension Regulations of 2002, the service in the Corporation was not pensionable service for which they lodged grievance, which produced the resultant effect 'the Pension Regulation of 2002'. On a reading of the said protective umbrella under Section 45(1C), which is already quoted, it appears that the writ petitioners who were brought from the cadre of State Government in the service of Corporation are entitled to seek the protection of service condition and their service condition should not be less advantageous than the service condition as prevalent while they were in State Government Service. Hence, the issue of pensionable service, under the Pension Regulations, 2002 should be analyzed in the angle of protective umbrella under Section 45(1C) above.
19. To adjudicate the point as urged by the said Corporation and the State respondents that under Section 17 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, there is a necessity of seeking an exemption from earlier Scheme for introducing the new Pension Rule but there is no scope to implement as the majority employees refused to accept the Pension Regulations, 2002, the provisions of Employees' Provident Funds and Miscellaneous Provisions Act, 1952 are required to be considered and dealt with. Section 16 of the said Act provides the contingency where the said Act of 1952 would not be applicable, which reads such:
16. Act not to apply to certain establishments- [(1) This Act shall not apply-
(a) to any establishment regarded under the Co-operative Societies Act, 1912 (2 of 1912), or under any other law for the time being in force in any State relating to co-operative societies, employing less than fifty persons and working without the aid of power; or
(b) to any other establishment belonging to or under the control of the Central Government of a State Government and whose employees are entitled to the benefit of contributory provident fund or old age pension in accordance with any Scheme or Rule framed by the Central Government or the State Government governing such benefits; or
(c) to any other establishment set up under any Central, Provincial or State Act and whose employees are entitled to the benefits of contributory provident fund or old age pension in accordance with any scheme or rule framed under that Act governing such benefits.
(d) [****]
(2) If the Central Government is of opinion that having regard to the financial position of any class or [establishments] or other circumstances of the case, it is necessary or expenditure so to do, it may, by notification in the Official Gazette, and subject to such conditions as may be specified in the notification, exempt, [whether prospectively or retrospectively], that class of [establishments] from the operation of this Act for such period as may be specified in the notification.
20. On a bare reading of the said Section 16 of the said Act it appears that under Section 16 Sub-section 1 Clause (c) when in any establishment set up by any Central, Provincial or State Act whose employees are entitled to the benefits of Contributory Provident Fund or old age pension in accordance with any Scheme or Rule framed under that Act governing such benefits, the said Act has no applicability. Under the Road Transport Corporation Act, 1950, Durgapur State Transport Corporation was established, hence, it is an establishment set up under the Central Act. Under Section 45 of the said Act of 1950, the Corporation so established was empowered to make regulations with previous sanction of the State Government, the conditions of appointment and service of the employees of the Corporation. Section 45 of the said Act of 1950 reads such:
45. Power to make regulations.-(1) A Corporation may, with the previous sanction of the State Government, make regulations, not inconsistent with this Act and the rules make thereunder, for the administration of the affairs of the Corporation.
(2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely:
(a) the manner in which, and the purposes for which persons may be associated with the [Board] under Section 10;
(b) the time and place of meetings of the [Board] and the procedure to be followed in regard to transaction of business at such meetings;
(c) the conditions of appointment and service and the scales of pay of the officers and [other employees of the Corporation other than the Managing Director, the Chief Accounts Officer and the Financial Adviser or, as the case may be, the Chief Accounts Officer-cum-Financial Advisor];
[(d) the issue of passes to the employees of the Corporation and other persons under Section 19;
(e) the grant of refund in respect of unused tickets and concessional passes under Section 19.]
21. In pursuance of the said provision of Section 45, the Durgapur State Transport Corporation framed a regulation called as Durgapur State Transport Corporation Employees' Service Regulations, which came into effect from the date of notification 18th May, 1982. Under the said regulation Clause 14 Sub-clause (4), which is already quoted earlier, the service of the Corporation became a non- pensionable service but Family Pension Scheme was made applicable. Under Clause 24 of the said regulation under the heading 'special provisions' it is stipulated that when there will be no specific provision in the regulation, the provision of West Bengal Service Rules, 1971 as amended from time to time would be applicable. Clause 24 of the said regulation reads such:
24. Special Provisions: In respect of matters for which no specific provision has been made in these regulations, the provisions of the West Bengal Service Rules, 1971 as amended from time to time shall apply, in so far as they are not inconsistent with any of the provisions of the Act or the Rules made thereunder.
22. Under Clause 20 of the said regulation it is provided that pay, allowances etc. of the Corporation employee would be at par with the pay admissible in comparable service under the State Government. Clause 20 reads such:
20. Pay, Allowances, Honorarium, Etc.: (1) The Corporation shall fix scales of pay for its employees, regard being had to the pay admissible in comparable services under the State Govt. and the State Transport Corporations of the Government of West Bengal.
(2) The Corporation shall fix dearness allowance, house rent allowance and such other allowances, as it deems necessary at the rates admissible to employees of the State Government.
23. In pursuance thereof, as it appears from Clause (2) of Regulation 2 of the South Bengal State Transport Corporation Employees' Pension Regulation, 2002 that there was already a scheme, namely, Employees' Contributory Provident Fund by the regulation 'South Bengal State Transport Corporation Employees' Contributory Provident Fund Regulations' and as such, under the said Clause (2) while notifying the Pension Regulations, 2002 it was stipulated that in lieu of the benefits under the said Contributory Provident Fund Regulation as existing including the benefit of gratuity under the Gratuity Rules, death-cum-retirement benefits in terms of the said Pension Regulations, 2002 would be available. Clause (2) of the said Regulations, 2002 reads such:
2. Commencement:
(1) ...
(2) The death-cum-retirement benefits are admissible to the employees who were on pay roll of the Corporation as on 1st April, 1984 and who are on pay roll and remain on the pay roll of the Corporation till the date of actual notification of these regulations in the official Gazette of the Government of West Bengal, in lieu of the benefits of contributory Provident Fund as provided in the South Bengal State Transport Corporation employees' Contributory Provident Fund Regulations including the benefits of gratuity under Gratuity Rules of the State Government. The employees permitted to retire under Disablement Retirement Benefit Scheme of the Corporation will, however, not be entitled to any gratuity under this Regulation.
24. Furthermore, from the Board's decision dated 15th November, 1967, as has been relied upon by the Corporation and which has been quoted earlier, it appears that the Corporation was deducting from the pay of the employees at the rate of 8 per cent of their emoluments since July, 1967 and the State Government advised to keep the money in the separate Provident Fund account of the Corporation. It further appears from the decision of 15th November, 1967 that though there was a request from Regional Provident Fund Commissioner to deposit the same under the Employees' Provident Fund Act, 1952 but no final decision was taken in the Board's Meeting and entire issue was left for decision by the Chairman. No decision of the Chairman has been placed before this Court by the said Corporation to contend that a final decision was taken to keep the Provident Fund money under the said Provident Fund Act of 1952 with due communication to the State Government. Practically it appears from the Pension Regulations, 2002 that no such decision was taken by the Chairman to bring the Durgapur State Transport Corporation under the umbrella of Employees' Provident Fund Act of 1952 as in the Durgapur State Transport Corporation, already a Provident Fund Regulation was existing being Durgapur State Transport Corporation Employees' Contributory Provident Fund Regulation. Under Section 16(c) of the said Employees Provident Fund Act, 1952 as the South Bengal State Transport Corporation renamed from Durgapur State Transport Corporation introduced Contributory Provident Fund Scheme by their own regulation, naturally, the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 got no applicability in terms of Section 16 of the said Act. The fact that the present Corporation was being controlled under South Bengal State Transport Corporation's Contributory Provident Fund Regulation is proved from the Regulation 2(2) of the Employees' Pension Regulations, 2002 as already quoted above as well as from the decision dated 8th April, 2003 of the Board's Meeting of the Corporation, which has been used as a shield not to implement the Pension Regulations, 2002 by the said Corporation as well as by the State Government despite its due notification in the Gazette in terms of the statutory provision, namely, the Road Transport Corporation Act, 1950, where the Board decided in their meeting dated 8th April, 2003 that the Pension Scheme of 1995 linked with employees Provident Fund be introduced for the existing employees of the Corporation and retired employees to be dealt with as per Pension Scheme of 1995. The decision dated 8th April, 2003 of the Corporation's Board reads such:
An Extract From the Proceedings of 110th Meetiting of the Corporation Board Held in the Office Chamber of the Chairman, SBSTC, At Durgapur At 11.30 A.M. ON 08.04.2003.
Item No. 110.05: To consider and approve the proposal of Introducing Death-cum-Retirement Benefit Scheme as well as Pension Regulation, 2002 for SBSTC employees.
On perusal of the agenda note submitted by MD., the Board observed that none of the existing employees of the Corporation opted for the Death-Cum-Retirement Benefit Scheme and that only 189 retired employees (which constituted 6 per cent of the total employee of the Corporation) opted for the said Scheme. The Board unanimously resolved that Pension Scheme 1995 linked with employees Provident Fund be introduced for the existing employees of the Corporation and the cases related to retired employees of the Corporation be dealt with as pr the said Scheme (Pen.'95).
Sd/-
(D.J. Chatterjee)
MD. SBSTC
Sd/-
(Narayan Biswas)
Chairman, SBSTC
25. On a bare reading of the said decision of the meeting it appears that the decision has been taken to implement the Pension Scheme of 1995 by using the word in future tense 'be introduced' in respect of the existing employees and by using the future tense 'be dealt with' in respect of retired employees. Had there been applicability of Employees' Provident Fund and Miscellaneous Provisions Act, 1952, the Employees Pension Scheme, 1995, a Scheme on repealing Employees' Family Pension Scheme, 1971 would have been effective automatically by statutory application of the said Act of 1952 and there was no question of taking a decision on 8th April, 2003 in the Board Meeting of the Corporation that the Pension Scheme of 1995 'be introduced' in respect of existing employees and retired employees 'be dealt with' under the said Pension Scheme of 1995. The very language of the decision dated 8th April, 2003 by taking a decision to implement in future the Pension Scheme of 1995 read with the earlier Board's decision dated 15th November, 1967, whereby the Board did not take any decision to bring the said Corporation under the anvil of the said Act of 1952 and from the very fact that all the retired employees have enjoyed their Contributory Provident Fund Scheme as was existing, which being a separate Scheme than the Scheme under Employees' Provident Fund Act, 1952, as is proved from the Pension Regulations, 2002, whereby the applicability of said Regulation to provide the death-cum-retirement benefits was done in lieu of benefits of Contributory Provident Fund as provided to the Corporation employee under South Bengal State Transport Corporation Employees' Contributory Provident Fund Regulations, it is clear that before 8th April, 2003 all the employees were being controlled under the South Bengal State Transport Corporation Employees' Contributory Provident Fund Regulations whereby and whereunder the employees used to deposit their Contributory Provident Fund in terms of their own regulation and scheme, which practically has made the Corporation outside the ambit of Employees Provident Fund and Miscellaneous Provisions Act, 1952 in terms of Section 16 Clause (c) of the said Act.
26. Considering that, this Court is of the view that the South Bengal State Transport Corporation since is being controlled by the Contributory Provident Fund Regulation of its own prior to the decision of 8th April, 2003 in the Board's Meeting of the Corporation expressing an opinion that Pension Scheme, 1995 should be introduced, there is no question of seeking exemption under Section 17 of the said Act of 1952 as urged on the ground that the majority employees did not agree to accept the Pension Regulations, 2002 as has been duly notified and introduced by Gazette Notification dated 30th March, 2002, before the Board's negative decision dated 8th April, 2003, due to effect of Section 16 of the said Act of 1952.
27. The writ petitioners before this Court are all retired employees and they have opted the Pension Regulations, 2002 by filing their option. The writ petitioners and other retired employees of the organization are a different class than the existing employees of the Corporation, as such, the opinion of the existing employees not to accept the Pension Regulations, 2002 but to accept the Employees' Pension Scheme, 1995, which was intended to be introduced by the Board's Meeting dated 8th April, 2003, cannot be an embargo for applicability of Pension Regulations, 2002, so far as the retired employees are concerned who opted that Scheme in lieu of Contributory Provident Fund Regulation of the Corporation and the benefit of gratuity under Gratuity Rules.
28. To provide the benefit to the retired employees, accordingly, under Clause 6 Sub-clause (2)(ii) of the said Pension Regulations, 2002 it has been provided that the retired employees need not to refund the employers' share of contribution towards Contributory Provident Fund together with interest accrued thereon and they were provided with the benefits to enjoy the pension with effect from 1st April, 1997 with a rider that no arrears on account of introduction of the Pension Regulations, 2002 would be available to them for the period up to 31st March, 1997. Clause 6 relating to the option including Clause 6(2)(ii) reads such:
6(2)(ii).- Employees retiring upto 31st March, 1997 may be paid pension according to this revised pattern w.e.f. 1st April, 1997. No arrears on account of introduction of this pension scheme may be paid to them for the period upto 31.3.97. Likewise the South Bengal State Transport Corporation will not claim refund of employer's share of contribution towards Contributory Provident Fund together with interest accrued thereon, and/or any other retirement benefits already allowed to the employees for the period upto 31.3.98. the employees who have drawn gratuity under the payment of Gratuity Act, 1972 or any other rules in force at the material time shall not, however, be entitled to revised rate of gratuity applicable with effect from 1st April, 1997.
29. Hence, the argument as advanced by learned advocate Mr. Bera on behalf of the Corporation that some of the employees already had withdrawn their Provident Fund benefits and the gratuity, which could be a bar to opt Pension Regulations, 2002, cannot be a ground to deny the applicability of Pension Regulations, 2002 on application of Clause 6(2)(ii) as already quoted above whereby they are exempted to refund any amount on account of employers' share of Contributory Provident Fund with interest accrued thereto and the gratuity amount on the condition of waiver of claim of pension amount as would be accrued prior to 31st March, 1997, due to implementation of Pension Regulations, 2002.
30. The decision of the Board dated 8th April, 2003 was taken after the Pension Regulations, 2002 came into effect, hence, there was no question of taking exemption under Section 17 of the said Act of 1952. The exemption is required to be taken where an establishment is not entitled to remain outside of the ambit of said Act of 1952 in terms of Section 16(1)(c) of the said Act, which has already been discussed in details. As such, the plea for non-implementing the Pension Regulations, 2002 on the ground that the majority of existing employees did not agree in terms of proviso of Sub-section (2) of Section 17 of the said Act of 1952, has no legal basis and foundation. From the aforesaid discussion, accordingly, it is clear that a separate Contributory Provident Fund Scheme was already existing in the Durgapur State Transport Corporation by framing a Regulation providing a scope of applicability of West Bengal Service Rules and the pay structure as per State Government employees and thereafter by introducing South Bengal State Transport Corporation Contributory Provident Fund Regulation, which was lifted with effect from 4th July, 2002, by introducing and effecting the South Bengal State Transport Corporation Employees' Pension Regulations, 2002.
31. The writ petitioners since retired prior to coming into effect of the Pension Regulations, 2002, which came into effect with retrospective effect from 1st April, 1984, as such, for all purposes for retired employees it will be deemed that prior to 1st April, 1984, they were under the control of South Bengal State Transport Corporation Employees' Contributory Provident Fund Regulations and they came into the umbrella of Pension Regulations, 2002, with effect from 1st April, 1984 subject to payments of revised pattern of pension with effect from 1st April, 1997 on waiving their rights to get the benefits of pension prior to 31st March, 1997 with the condition that they would not be liable to refund the employers' shares of contribution towards Contributory Provident Fund together with interest accrued thereon for the period upto 31st March, 1997.
32. The Board's decision of 8th April, 2003 is a decision passed without jurisdiction to nullify the Pension Regulations, 2002 as effected from 1st April, 1984, in respect of the retired employees are concerned, for the sole reason that once on due approval of Board and sanction of State Government when any regulation is framed and notified, same becomes a statutory regulation in exercise of power under Road Transport Act holding status of subordinate legislation and thereafter to amend or charge it, it requires to follow the process of taking a decision of Board, then sanction of State Government and thereafter to notify it by proper notification in Gazette in terms of Section 21 of the General Clauses Act, 1897, which provide that when a rule/regulation is framed by notification, to amend it, it requires another notification following same process.
33. Section 21 of the said General Clauses Act reads such:
21. Power to issue to include power to add to, amend, vary or rescind notifications, orders, rules or bye-laws.- Where, by any Central Act or Regulation, a power to issue notification, orders, rules or byelaws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or byelaws so issued.
34. Under Section 3(51) of the said Act of 1897, the rule includes a regulation, which reads as follows:
'Rule' shall mean Rule made in exercise of a power conferred by any enactment, and shall include a Regulation made as a rule under any enactment.
35. Hence, in terms of said General Clauses Act as the Pension Regulations, 2002 has not been amended as yet following same procedure by which it was framed, mere decision of Board cannot amend or supersede it. Furthermore, a statutory regulation, namely, Pension Regulations, 2002, framed under Section 45 of the Road Transport Corporation Act, 1950, cannot be superseded or annuled by executive decision of Board after it is duly notified and gazetted. It is a settled law that there is no substantive difference between a rule and a regulation inasmuch as both are 'subordinate legislation' under powers conferred by the statute. Reliance is made to a Constitution Bench judgment passed in the case Sukhdev Singh v. Bharatram Sardar Singh Raghuvanshi reported in : (1975)ILLJ399SC . It is also a settled legal position that regulations impose obligation on the statutory authorities and they cannot deviate from the condition of service stipulated by regulation. Reliance is made to the judgment passed in the case L.I.C. and Ors. v. Retd. L.I.C. Officer's Association and Ors. reported in : AIR2008SC1485 . In the angle of those views, the Board's decision dated 8th April, 2003, has no effect upon the writ petitioners and other retired employees whose service condition is controlled by Pension Regulations, 2002 and they are bound to implement it.
36. Considering all material facts and on considering the respective affidavits of the parties and having regard to the findings and observation as above, writ application, accordingly, succeeds.
37. It is ordered that writ petitioners and all the retired employees who opted the Pension Regulations, 2002 are entitled to get the benefits of death-cum-retirement benefits in terms of the South Bengal State Transport Corporation Employees' Pension Regulations, 2002. The respondents are directed to take steps for release of the pension and other death-cum-retirement benefits in terms of the said Regulations, 2002 by implementing the Pension Regulations, 2002 in respect of the writ petitioners and the other employees who opted such Pension Regulations, 2002 by releasing their all arrears amount of pension and other dues within four months from this date and to start to release the pension by issuing Pension Payment Order in terms of the Pension Regulations, 2002 within two months from this date. A compliance report to be submitted by the respondent Corporation through its Managing Director to the High Court Registry by complying with this order of release of current pension by filing such affidavit within two months from this date and by filing further affidavit of compliance to the High Court Registry by making payments of arrears amount of pension on adjusting the dues, if any, in terms of Pension Regulations, 2002 within six months from this date.
38. The writ application, accordingly, is allowed. There will be a cost of Rs. 20,000/- to be paid to the writ petitioners, the retired employees who have been compelled to take shelter of the Writ Court due to arbitrary action of the Corporation who despite introduction of the Pension Regulations, 2002 did not implement the same. Such cost to be paid within a month from this date and compliance report to be filed by the Managing Director of the Corporation to the High Court Registry.
Later:
39. It is clarified that the cost as awarded to be paid by cheque in the name of learned Advocate-on-Record appearing on behalf of the writ petitioners, who thereafter will disburse the amount to the respective writ petitioners proportionately.
40. In view of the prayer made by the parties, let urgent xerox certified copy of this judgment be given within ten days from this date by the Registry.