Judgment:
HON'BLE Mr.JUSTICE P.R.RAMAN, JUDICIAL MEMBER
1. These two matters were transferred to this Tribunal based on an order passed by the Hon'ble High Court in W.P(C) No.12865/07 and W.P (C) 12910/07. The applicants in both these TAs are the employees of the Mineral Exploration Corporation Limited, (hereinafter referred to as MECL) for short, a Government of India Undertaking. All the applicants took voluntary retirement from service of the MECL during 1999 to 2003. After their retirement they were settled in Kerala. The 1st applicant in TA 2/10 took voluntary retirement on 31.03.2001, 2nd applicant on 30.04.2000, 3rd applicant on 30.09.2001 and 4th applicant on 31.12.2000 respectively from the respective post they held at the relevant time. Likewise the applicants in TA 3/10 retired on pvarious dates between 1999 and 2003 and since there are 15 such applicants, we are not reiterating the actual date on which they retired from service and such details are furnished in para 1 of the application and we will refer for them if only they are relevant and found necessary. According to the applicants, they were entitled for revised pay scale due from 01.01.1997 on par with other public sector undertaking. It is also their case that the pay revision was effected in the 2nd respondent Corporation vide order dated 30.06.1998 but arrears on account of revision was paid only from 01.07.1997 and arrears from 01.01.1992 to 30.06.1997 was promised to be paid in a phased manner as and when the financial position of the company improves. But effective date for implementation is 01.01.1992. Exhibit P-1 in TA 2/10 is a pay revision order dated 30.06.1998. According to the applicants, in the case of non executives, they were governed by a different order which is produced as Exhibit P-1 in TA 3/10. The revision was effected subsequently by Exhibit P-8 dated 25.08.2006, a copy of which is produced along with TA 2/10. In the case of non executives orders have been issued in a similar manner. According to the applicants, at the time when they took voluntary retirement, they were made to believe that benefits of pay revision due from 01.01.1997 when implemented will be released to them as also the arrears of wages and consequential benefits in the payment of ex-gratia and other terminal benefits. Therefore, the 2nd respondent is estopped from turning away and denying the benefits to them. Likewise for the period from 01.01.1992 to 30.06.1997 they were entitled for the arrears of pay in a phased manner. The applicants pray for quashing the circular Exhibit P-8 dated 25.08.2006 in so far as it denies to the petitioners and similarly placed persons for the period 01.01.1997 to 31.03.2003 as illegal and seek for inclusion of the names of the petitioners also for such benefits. There are other prayers also for payment of arrears, ex-gratia and other terminal benefits as though reckoning their pay based on the revised pay as they would have drawn had they been in service based on Exhibit P-8. In the reply statement filed by the respondents, the main contention is that the applicants all have retired under the accepted scheme of Voluntary Retirement Scheme and they are bound by the terms and conditions and subsequently they cannot seek amendments to the said Scheme, the applicants having openly accepted the terms and conditions therein. It is also their contention that arrears based on pay revision could actually be paid only in a phased manner as the financial condition is very weak. According to them it is a policy decision and the Court cannot compel the payment of arrears in such cases. Hence while implementing the pay revision, only notional fixation was given till 2003 and actual arrears, if any, given to those persons who were in service on that date. The applicants have already retired prior to Exhibit P-8 and hence they are not entitled for any arrears of pay based on pay revision effected in Exhibit P-8.
2. We have heard both sides. The question as to whether the applicants are entitled for any arrears is no longer res integra. An identical question has been considered by the coordinate Bombay Bench of this Tribunal in OA 2084/09 and connected cases. Reference was made to Exhibit P-8 dated 25.08.2006 and observed as follows:-
6. A perusal of the order dated 25.08.2006 makes it clear that it is based on the two orders of Government of India, Ministry of Mines dated 08.08.2006 and 17.08.2006 by which approval, inter-alia for implementation of 1997 wage revision of regular employees was granted to MECL by the Government of India considering the request made by MECL itself in tis regard. From a reading of the three orders, i.e order dated 08.08.2006, 17.08.2006 and 25.08.2006, it is evident that the whole exercise was done as a part of financial restructuring. An analysis of these three orders further reveals that the pay revision of the employees was one of the aspects and MECL had approached the Government for other connected issues regarding financial restructuring as well.
6.1 For the present purpose, we are concerned with paras B-(1), (2) and (3) of the order dated 08.08.2006 and para (d) of order dated 17.08.2006, which are reproduced below:-
B. Wage Revision:
1) Wage revision of employees to be effective from 01.04.2003 and to be implemented w.e.f. 01.04.2006.
2) The arrears of wage revision for 2005-2006 will be paid in 2006-07 subject to achieving a gross profit (gross margin less depreciation and deferred revenue expenditure) of Rs.15.64 crores in 2005-2006. With regard to the payment of arrears of wage revision for the balance period of 2003-04 and 2004-05, performance of MECL outlined in Para 13 of the recommendations of BRPSE and its fund flow position and may permit MECL to pay the same in 2007-08 from its internal resources, subject to achievement of physical / financial projections and availability of sufficient cash to meet the liability.
3) The increased obligation of salary and wages would be met through internal resources of the company and no budgetary support will be provided for the same. Para (d) of order dated 17.08.2006.
d) MECL should be permitted to implement 1997 wage revision w.e.f. 01.04.2006."
7. On perusal of the above said terms and conditions incorporated in the order dated 25.08.2006 read with the approval granted by the Government of India by the said two orders dated 08.08.2006 and 17.08.2006, it becomes abundantly clear that the pay revision was to be effected w7e.f. 01.01.1997 but actual benefits were to accrue to employees and officers only from 01.04.2003. This is evident from reading of paragraphs 15,16 and 17 of the order dated 25.08.2006. The same are reproduced herein below for the sake of convenience.
15. PAYMENT OF ARREARS:
The arrears of wage revision from 01.04.2005 to 31.07..2006 will Be paid Immediately. with regard to payment arrears of wage revision for the period 2003-04 and 2004-05 government will review physical/financial performance of MECL as per the recommendations of the BRPSE and its fund flow position and may permit MECL to pay the same in 2007-08 from its internal resources subject to achievement of physical / financial projections and availability of sufficient cash to meet the liability. Since at present the executives will be given wage revision arrears for the period from 1.4.2005 to 31.07.2006 immediately, therefore, the executives who were on roll as on 01.04.2005 will be entitled for wage revision and arrears thereof till their date of separation. As regards the arrears for the balance period, i.e. 01.04.2003 to 31.03.2005, in eventuality of the Government approving the arrears for the aforesaid period, the executives who were on the roll as on 01.04.2003 will be entitled revision and arrears thereof till their date of separation from the company.
16. INTERIM RELIEF PAID FROM 01.01.1997 :
The payment of interim relief will automatically cease once the revised pay scales are implemented w.e.f. 01.08.2006, i .e. the date from which revised salary is paid to the executives.
Interim relief paid for the period from 01.04.2005 to 31.07.2006 will only be adjusted on payment of arrears for the period from 01.04.2005 to 31.07.2006. Similarly, interim relief will be adjusted on payment of arrears for the period from 01.04.2003 to 31.03.2005.
17. PERIOD OF VALIDITY :
The revised scales of pay will be valid for a period of 10 years effective from 01.01.1997 to 31.12.2006."
8. The whole scheme reflected above makes it clear that the actual financial benefit was intended to be given to the employees w.e.f. 01.04.2003. In fact, if we harmoniously construe the various provisions of the order dated 25.08.2006, it leads us to one conclusion only that the employees who have retired after 31.03.2003 shall be entitled to actual financial benefits from 01.04.2003 onwards. There is no clarification for not extending the said actual benefits to the 30 applicants in the second category of O.As before us mentioned herein above. The entitlement of these 30 applicants is evident from the order dated 25.08.2006."
3. Thus the actual financial benefit from 01.04.2003 to 31.03.2005 alone were to be paid immediately. Therefore, those employees who retired before 31.03.2005 have no claim based on pay revision. In the case of the present applicants, they have retired from service prior to 31.03.2003 they are not entitled for financial benefits for the period after their retirement. However, even as per order dated 25.08.2006, the employees then existed were entitled pay revision from 01.01.1997 but only notionally till 31.03.2003. Such benefits of notional fixation from 01.01.1997 will be given in the case of employees who were on the muster rolls as on 01.04.2003. There is no reason to deny the benefit of notional fixation merely to those who were not on the muster rolls on that day. The Bombay Bench of the Tribunal took the view that in the case of nine applicants who had retired prior to 2003 cannot be entitled for pay fixation, in adverse contrast with the applicants who have retired after 31.03.2003 or similarly placed employees who are in service. In other words, there cannot be discrimination to those employees who retired prior to 01.04.2003. In the matter of fixation of pay, based on the revision difference is retroactive from 01.01.1997. Therefore, the applicants are not entitled for any monetary benefits based on such revision. They are certainly entitled for fixation of pay notionally for the limited purpose of calculating their retirement benefits.
4. Though the applicants have retired under Voluntary Retirement Scheme, we have gone through the provisions contained in the Voluntary Retirement Scheme, which is produced as Exhibit P-4 in TA 2/10. Clause V of the Scheme provides that " arrears of wages due to revision etc. will not be included in computing the eligible amount. However, ex gratia amount will be recalculated and paid after wage revision, if any." Similarly in Exhibit P-3 O.M dated 08.12.2000, para 3 reads as under :-
"Whether any arrears of ex-gratia are to be paid in the event of pay revision being sanctioned subsequent to voluntary separation Ex-gratia will be re-calculated on the basis of revised pay scale and the difference be paid.".
5. Therefore, the Voluntary Retirement Scheme itself provides for necessary alteration in the ex-gratia based on the revision with reference to an earlier period when the employees were admittedly in service. Accordingly, we direct the 2nd respondent to take into consideration of the pay revision made in Exhibit P-8 and accordingly fix their pay on the date of retirement and the difference in the ex-gratia, less what has been paid will be paid to the applicants. Thus, they will be entitled for balance amount of ex-gratia which shall be calculated and paid as expeditiously as possible as in the case of applicants in OA 2084/09 and connected cases decided by the Bombay Bench of the Tribunal.
6. TAs are disposed of as above. No costs.